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Front Page > Reading Lists > Liberty and Responsibility in Adam Smith

Liberty and Responsibility in Adam Smith

This List Is By:

Dr. David M. Hart

Liberty Fund, Inc., Indianapolis, Indiana

Director of the Online Library of Liberty Project at Liberty Fund, Inc.

B.A. (Macquarie), M.A. (Stanford), PhD (King’s College Cambridge).

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Topic

This set of readings is designed to explore a broad range of Adam Smith’s thinking on topics as diverse as moral philosophy, political economy, the history of science, jurisprudence, and the creative arts.

Editions Used

We will be using The Glasgow Edition of the Works and Correspondence of Adam Smith which was originally published by Oxford University Press and which is published in paper back and on the web under license by Liberty Fund.

Adam Smith, The Glasgow Edition of the Works and Correspondence of Adam Smith (Indianapolis: Liberty Fund, 1982). 7 vols. Accessed from title/197 on 2007-11-30

PART I: Of the Propriety of Action Consisting of Three Sections - Adam Smith, Glasgow Edition of the Works and Correspondence Vol. 1 The Theory of Moral Sentiments [1759]
PART II: Of Merit and Demerit; or, of the Objects of Reward and Punishment Consisting of Three Sections - Adam Smith, Glasgow Edition of the Works and Correspondence Vol. 1 The Theory of Moral Sentiments [1759]
Session II: The Theory of Moral Sentiments, Reading 1
Session II: The Theory of Moral Sentiments, Reading 2
Session III: The Theory of Moral Sentiments, Reading 1
a PART VI: Of the Character of Virtue Consisting of Three Sections - Adam Smith, Glasgow Edition of the Works and Correspondence Vol. 1 The Theory of Moral Sentiments [1759]
PART VII: Of Systems of Moral Philosophy Consisting of Four Sections - Adam Smith, Glasgow Edition of the Works and Correspondence Vol. 1 The Theory of Moral Sentiments [1759]
LECTURES ON JURISPRUDENCE: REPORT OF 1762–3 - Adam Smith, Glasgow Edition of the Works and Correspondence Vol. 5 Lectures On Jurisprudence [1762]
BOOK I: Of the Causes of Improvement in the productive Powers of Labour, and of the Order according to which its Produce is naturally distributed among the different Ranks of the People - Adam Smith, Glasgow Edition of the Works and Correspondence Vol. 2a
Session VII: The Wealth of Nations
Session VIII: The Wealth of Nations
BOOK V: Of the Revenue of the Sovereign or Commonwealth - Adam Smith, Glasgow Edition of the Works and Correspondence Vol. 2b An Inquiry Into the Nature and Causes of the Wealth of Nations, Vol. 2 [1776]
Session X: Essays on Philosophical Subjects
Session XI: Essays on Philosophical Subjects

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1: PART I: Of the Propriety of Action Consisting of Three Sections - Adam Smith, Glasgow Edition of the Works and Correspondence Vol. 1 The Theory of Moral Sentiments [1759]

Adam Smith, The Theory of Moral Sentiments, ed. D.D. Raphael and A.L. Macfie, vol. I of the Glasgow Edition of the Works and Correspondence of Adam Smith (Indianapolis: Liberty Fund, 1982). Chapter: PART I: Of the Propriety of Action Consisting of Three Sections

Accessed from oll.libertyfund.org/title/192/122382 on 2007-11-30

The Glasgow Edition of the Works and Correspondence of Adam Smith and the associated volumes are published in hardcover by Oxford University Press. The six titles of the Glasgow Edition, but not the associated volumes, are being published in softcover by Liberty Fund. The online edition is published by Liberty Fund under license from Oxford University Press.

©Oxford University Press 1976. All rights reserved. No part of this material may be stored transmitted retransmitted lent or reproduced in any form or medium without the permission of Oxford University Press.
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2: PART II: Of Merit and Demerit; or, of the Objects of Reward and Punishment Consisting of Three Sections - Adam Smith, Glasgow Edition of the Works and Correspondence Vol. 1 The Theory of Moral Sentiments [1759]

Adam Smith, The Theory of Moral Sentiments, ed. D.D. Raphael and A.L. Macfie, vol. I of the Glasgow Edition of the Works and Correspondence of Adam Smith (Indianapolis: Liberty Fund, 1982). Chapter: PART II: Of Merit and Demerit; or, of the Objects of Reward and Punishment Consisting of Three Sections

Accessed from oll.libertyfund.org/title/192/122417 on 2007-11-30

The Glasgow Edition of the Works and Correspondence of Adam Smith and the associated volumes are published in hardcover by Oxford University Press. The six titles of the Glasgow Edition, but not the associated volumes, are being published in softcover by Liberty Fund. The online edition is published by Liberty Fund under license from Oxford University Press.

©Oxford University Press 1976. All rights reserved. No part of this material may be stored transmitted retransmitted lent or reproduced in any form or medium without the permission of Oxford University Press.
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3: Session II: The Theory of Moral Sentiments, Reading 1

We will begin Session by reading Part III of TMS on “The Foundation of Our Judgments.”

Adam Smith, The Theory of Moral Sentiments, ed. D.D. Raphael and A.L. Macfie, vol. I of the Glasgow Edition of the Works and Correspondence of Adam Smith (Indianapolis: Liberty Fund, 1982). Chapter: PART III: Of the Foundation of our Judgments concerning our own Sentiments and Conduct, and of the Sense of Duty a Consisting of One Section a

Accessed from oll.libertyfund.org/title/192/122449 on 2007-11-30

The Glasgow Edition of the Works and Correspondence of Adam Smith and the associated volumes are published in hardcover by Oxford University Press. The six titles of the Glasgow Edition, but not the associated volumes, are being published in softcover by Liberty Fund. The online edition is published by Liberty Fund under license from Oxford University Press.

©Oxford University Press 1976. All rights reserved. No part of this material may be stored transmitted retransmitted lent or reproduced in any form or medium without the permission of Oxford University Press.
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4: Session II: The Theory of Moral Sentiments, Reading 2

Then Part IV of TMS on “The Effect of Utility.”

Adam Smith, The Theory of Moral Sentiments, ed. D.D. Raphael and A.L. Macfie, vol. I of the Glasgow Edition of the Works and Correspondence of Adam Smith (Indianapolis: Liberty Fund, 1982). Chapter: PART IV: Of the Effect of Utility upon the Sentiment of Approbation a Consisting of One Section a

Accessed from oll.libertyfund.org/title/192/122463 on 2007-11-30

The Glasgow Edition of the Works and Correspondence of Adam Smith and the associated volumes are published in hardcover by Oxford University Press. The six titles of the Glasgow Edition, but not the associated volumes, are being published in softcover by Liberty Fund. The online edition is published by Liberty Fund under license from Oxford University Press.

©Oxford University Press 1976. All rights reserved. No part of this material may be stored transmitted retransmitted lent or reproduced in any form or medium without the permission of Oxford University Press.
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5: Session III: The Theory of Moral Sentiments, Reading 1

We will begin Session III by discussing Part V of TMS on “The Influence of Custom and Fashion.”

Adam Smith, The Theory of Moral Sentiments, ed. D.D. Raphael and A.L. Macfie, vol. I of the Glasgow Edition of the Works and Correspondence of Adam Smith (Indianapolis: Liberty Fund, 1982). Chapter: PART V: Of the Influence of Custom and Fashion upon the Sentiments of Moral Approbation and Disapprobation a Consisting of One Section a

Accessed from oll.libertyfund.org/title/192/122469 on 2007-11-30

The Glasgow Edition of the Works and Correspondence of Adam Smith and the associated volumes are published in hardcover by Oxford University Press. The six titles of the Glasgow Edition, but not the associated volumes, are being published in softcover by Liberty Fund. The online edition is published by Liberty Fund under license from Oxford University Press.

©Oxford University Press 1976. All rights reserved. No part of this material may be stored transmitted retransmitted lent or reproduced in any form or medium without the permission of Oxford University Press.
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6: a PART VI: Of the Character of Virtue Consisting of Three Sections - Adam Smith, Glasgow Edition of the Works and Correspondence Vol. 1 The Theory of Moral Sentiments [1759]

Adam Smith, The Theory of Moral Sentiments, ed. D.D. Raphael and A.L. Macfie, vol. I of the Glasgow Edition of the Works and Correspondence of Adam Smith (Indianapolis: Liberty Fund, 1982). Chapter: a PART VI: Of the Character of Virtue Consisting of Three Sections

Accessed from oll.libertyfund.org/title/192/122475 on 2007-11-30

The Glasgow Edition of the Works and Correspondence of Adam Smith and the associated volumes are published in hardcover by Oxford University Press. The six titles of the Glasgow Edition, but not the associated volumes, are being published in softcover by Liberty Fund. The online edition is published by Liberty Fund under license from Oxford University Press.

©Oxford University Press 1976. All rights reserved. No part of this material may be stored transmitted retransmitted lent or reproduced in any form or medium without the permission of Oxford University Press.
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7: PART VII: Of Systems of Moral Philosophy Consisting of Four Sections - Adam Smith, Glasgow Edition of the Works and Correspondence Vol. 1 The Theory of Moral Sentiments [1759]

Adam Smith, The Theory of Moral Sentiments, ed. D.D. Raphael and A.L. Macfie, vol. I of the Glasgow Edition of the Works and Correspondence of Adam Smith (Indianapolis: Liberty Fund, 1982). Chapter: PART VII: Of Systems of Moral Philosophy Consisting of Four Sections

Accessed from oll.libertyfund.org/title/192/122492 on 2007-11-30

The Glasgow Edition of the Works and Correspondence of Adam Smith and the associated volumes are published in hardcover by Oxford University Press. The six titles of the Glasgow Edition, but not the associated volumes, are being published in softcover by Liberty Fund. The online edition is published by Liberty Fund under license from Oxford University Press.

©Oxford University Press 1976. All rights reserved. No part of this material may be stored transmitted retransmitted lent or reproduced in any form or medium without the permission of Oxford University Press.
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8: LECTURES ON JURISPRUDENCE: REPORT OF 1762–3 - Adam Smith, Glasgow Edition of the Works and Correspondence Vol. 5 Lectures On Jurisprudence [1762]

Adam Smith, 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). Chapter: LECTURES ON JURISPRUDENCE: REPORT OF 1762–3

Accessed from oll.libertyfund.org/title/196/55585 on 2007-11-30

The Glasgow Edition of the Works and Correspondence of Adam Smith and the associated volumes are published in hardcover by Oxford University Press. The six titles of the Glasgow Edition, but not the associated volumes, are being published in softcover by Liberty Fund. The online edition is published by Liberty Fund under license from Oxford University Press.

©Oxford University Press 1976. All rights reserved. No part of this material may be stored transmitted retransmitted lent or reproduced in any form or medium without the permission of Oxford University Press.

Note

The above is a reproduction of the incomplete list of contents which appears on the recto page of the third leaf of vol. i (see Introduction, p. 10 above). The page numbers are those entered by the reporter himself, and relate to the numbering scheme he adopted for the first 39 pages of the MS. (see Introduction, p. 37). The verso page of the third leaf, and the five following leaves, are blank.

REPORT OF 1762–3

| Friday Decr. 24. 1762

Of Jurisprudence.

Jurisprudence is the theory of the rules by which civil governments ought to be directed.

It attempts to shew the foundation of the different systems of government^a in different countries and to shew how far they are founded in reason.

We will find that there are four things which will be the design of every government:^b

1^stThe first and chief design of every system of government is to maintain justice; to prevent the members of a society from incroaching on one anothers property, or siezing what is not their own. The design here is to give each one the secure and peacable possession of his own property. {The end proposed by justice is the maintaining men in what are called their perfect rights.}^c When this end, which we may call the internall peace, or peace within doors, is | secured, the government will next be desirous of promoting^d the opulence of the state. This produces what we call police. Whatever regulations are made with respect to the trade, commerce, agriculture, manufactures of the country are considered as belonging to the police.

When Mr. Blank in MS.1 resigned the office of Blank in MS.2 of Paris to Mr. D’Argenson, he told him that the king required three things of him who held that office,^e that he should take care of 1^st, the clean<n>ess or neteté; 2^d, the aisance, ease or security; and 3^dly, bon marché or cheapness of provisions.—The 1^st of these is two mean and trifling a subject to be treated of in a system of jurisprudence. The 2^d is of two sorts, first that which provides for the security of the inhabitants against fires, or other such accidents. | This also is of too^f trifling a nature to be reckoned a branch of jurisprudence. The other branch is that which provides against any injuries that may be done by other persons to the inhabitants; and this end is accomplished either by guards and patroles that prevent the commission of such crimes as it were a priori, or by the constitution of statutes for the punishment of transgressors and the encouragement of those who discover the offenders and bring them to justice.—The 2^d part may be called the justice of police, and as it is connected in that manner with the former part of jurisprudence, we shall consider it under that head. The 3^d part of police is bon marché or the cheapness of provisions, and the having the market well supplied with all sorts of com|modities. This must include not only the promoting a free communication betwixt the town and the country, the internall commerce as we may call it, but also on the plenty or opulence of the neighbouring^g country.

This is the most important branch of police and is what we shall consider when we come to treat of police; and in handling it we shall consider the different regulations that have subsisted in different countries and how far they have answered the intentions of the governments that constituted them; and this we shall <?> to ancient as well as modern times.

3^d. As the government can not be supported without some expence, though the state was very opulent, it would next be considered in what manner this expence should be | born. In all cases it is evident that this burthen at last must lye on the industrious part of the people. Whether 1^st, it be born by the rents of what are called demesne lands, viz those that belong to the crown or the governing part of the nation. This as it abridges the possession of the subjects must be considered as a burthen on them. Or 2^dly, it may be supplied by a tax on the lands possessed by the subjects. These though not rents of the crown are a deducement from the rents of the possessor. Or lastly, if it be raised by customs, on manufactures, imports and such like, where it is immediately levied from the people. In all cases therefore the expenses of the government must be defrayed by the people. The summ | levied to defray these expenses is what we call the revenue of the government. In treating of that branch of jurisprudence^h which relates to government, we shall consider the different methods which have been taken to raise the sum necessary for the expense of the state in different countries, and how far they are adapted to do this with the least loss or hindrance to the industry of the people, which ought to be the chief thing in view. For it will also be shewn that the same summ may be raised in some ways which would mightily discourage the industry and improvement of the country and in others which would have those bad effects in a much less proportion.

4 Besides these 3 considerations of the security of property, the police, and the revenue of the kingdom or state, it must also be necessary to have some means of | protecting the state from foreign injuries. Tho’ theⁱ peace within doors be never so firmly established, yet if there be no security from injuries from without the property of individualls can not be secure. The danger to them on this head is no less to be feard than from those of their own society; and not only is the security of private persons in danger but the very being^j of the state. It is therefore requisite that an armed force should be maintained,^k as well to defend the state against externall injuries as to obtain satisfaction for any that have been committed. In treating of this subject we shall consider the various species of armed forces that have been in use in antient and modern states; the different sorts of militias and train’d bands; and observe | how far they were suited to the different natures of the governments.

This naturally leads us to consider in the 4^th place the laws of peace <and> war, the jura belli et pacis. That is, the different regulations that subsist betwixt different independent states, with respect both to the mutual intercourse betwixt them in time of peace and what priviledges may be granted them, and to the^l effects of the success in war and what is permitted as lawful in the time that war is waged betwixt different nations. We shall under this head compare those laws of war that subsisted in antient times with those now in force and shew how far the latter are superior in moderation and humanity; and also^m point out the causes of the gradual restrictions that have been made on the laws of war in the refinement of society. | We shall also on this head shew how these regulations vary according as the independent states are of a republican, or monarchicall or aristocraticall form; which will lead us to consider the various priviledges granted to strangers in different countries, as aliens,

etc.

The first and chief design of all civill governments, is, as I observed, to preserve justice amongst the members of the state and prevent all incroachments on the individualls in it, from others of the same society.—{That is, to maintain each individual in his perfect rights.} Justice is vio<l>ated whenever one is deprived of what he had a right to and could justly demand from others,ⁿ or rather, when we do him any injury or hurt without a cause. Let us consider then in how many ways justice may be violated, that is, in how many respects a man may | be injured.—1^st, he may be injured as a man; 2^dly, as a member of a family; and 3^dly, as a citizen or member of a state. Every injury that can be done a man may be reduced to some of these, and in all of these he may be injured without being affected when considered in any of the other views.—When one attempts to kill an other he does him an injury as a man; when a man is deprived of his wife or she is ill treated he is injured as a husband; or when he is deprived of his son, or his son does not act with proper regard to him, he is injured as a father, and member of a family.—If one behaves^o disrespectfully and without due honour to one that is dignified with an office or title, this is an injury done as a citizen, as his pre–eminence is founded on a civil constitution. If one who has no just right assumes any title of nobility, this is an injury both to his equalls in taking upon him the character of one of rank superior | to them, and to his superiors in assuming to have himself reckon’d as their equal when he is their inferior; and the injury here proceeds as from the quality of a citizen or member of a state in which he is considered.^p In each of these examples the injury is peculiar to the quality in which the person is considered [in]. The injury done to one as a father could not affect him merely as a man, nor could that which is done to him as a member of a state be competent to him as a man or member of a family, but intirely proceeds from his state as a citizen.

We shall consider in the first place those rights that belong to a man as a man, as they are generally most simple and easily understood, and generally can be considered without respect to any other^q condition.

| A man merely as a man may be injured in three respects, either 1^st, in his person; or 2^dly, in his reputation; or 3^dly, in his estate. 1^st A man may be injured in his person two ways also, either 1^st, by killing, wounding, or maiming him, or any way hurting his body, or secondly by restraining his liberty.—These rights correspond to what Puffendorff call<s> naturall rights as those which respect a man as a member of a family or of a state do to those which they call adventious.3 —Amongst these natural rights^r which they define to be jura, quae omnem actum humanum antecedunt, vel, quae ex nullo actu humano proficiscuntur, they reckon up jus ad vitam, ad corpus, liberi commercii, a right of trafficking with those who are willing to deal with him, jus connubiorum, etc., and lastly jus sincerae aestimationis, or a right to an unspoiled character, to what he possesses—in all about a dozen. Now these may all be reduced to the | three above mentioned. Those which affect his body may all be reduced to the first^s class of those respecting his person; the right to free commerce, and the right to freedom in marriage, etc. when infringed are all evidently incroachments on the right one has to the free use of his person and in a word to do what he has a mind when it does not prove detrimentall to any other person.^t

A man is injured in his reputation when one endeavours to bring his character below what is the common standard amongst men. If one calls another a fool, a knave, or a rogue he injures him in his reputation, as he does not then give him that share of good fame which is common to almost all men, to perhaps 99 of 100. | But, again, if one calls another an honest good natured man, tho perhaps he deserved a much higher character, he can not complain of any injury being done him, as that is the character due to the generality of men. We may here observe the distinction which Mr. Hutchinson, after Baron Puffendorf, has made of rights.4 He divides them into jura perfecta and imperfecta, i.e. perfect and imperfe<c>t rights.—Perfect rights are those which we have a title to demand and if refused to compel an other to perform. What they call imperfect rights are those which correspond to those duties which^u ought to be performed to us by others but which we have no title to compel them to perform; they having it intirely in their power to perform them or not. Thus^v a man of bright parts or remarkable learning is deserving of | praise, but we have no power to compel any one to give it him. A beggar^w is an object of our charity and may be said to have a right to demand it; but when we use the word right in this way it is not in a proper but a metaphoricall sense. The common^x way in which we^y understand the word right, is the same as what we have called a perfect right, and is that which relates to commutative justice. Imperfect rights, again, refer to distributive justice. The former are the^z rights which we are to consider, the latter not belonging properly to jurisprudence, but rather to a system of moralls as they do not fall under the jurisdiction of the laws.5 We are therefore in what follows to confine ourselves entirely to the perfect rights and what is called commutative | justice. — — —

The last particular in which a man may be injured is his estate.

Now what is it we call ones estate. It is either 1^st, what he has <?in his> immediate possession, not only what he has about his own person as his cloaths, etc., but whatever he has a claim to and can take possession of in whatever place or condition he finds it. {A man has a real right to whatever vindicari potest a quocunque possessore.6 } Or 2^dly., what is due to him either by loan or by contract of whatever sort, as sales, etc. The first is what we call real rights or a right to a particular thing. The 2^d is called a personall right or a right against a particular person. {Jura personalia, sunt jura ad certam tantum personam competentia, ad certam rem servitu Blank in MS.7 vel valorem.8 }

{A personal^a right may sometimes be constituted against a certain thing, but then it [is] only extends to that thing when in the possession of a certain person. Thus e.g. if a man sells another a horse, but the horse is not delivered, the buyer has a personal right against the seller. He can demand the horse from the seller at any time. But if the owner sells him a 2^d time to another man who gets possession of him [v.16] bonâ fide, the first purchaser can not claim him from the 2^d to whom he has been delivered, tho he may have an action against the seller for damages. But the case is quite different when the byer has got the horse delivered; thus if after he had been delivered the byer had desired the seller to keep him for a short time and he sold him again to another purchaser, the former can claim him from the 2^d altho he be a possessor bona fide.}

We shall first consider the real rights; they are four of them as they are enumerated in the civill law. Dominium, Servitus, Pignus, Haereditas. Dominium, or the full right of | property. By this a man has the sole^b claim to a subject, exclusive of all others, but can use it himself as he thinks fit, and if he pleases abuse or destroy it. By this right if any subject be lost or abstracted from the right owner he can claim it from any possessor, and tho perhaps that possessor came jus<t>ly by it, yet he can not claim any restitution but must restore it to the owner. He may indeed^c if he can find the means obtain restitution from him who by wrong means first possessed it. Property is to be considered as an exclusive right by which we can hinder any other person from using in any shape what we possess in this manner. A man for instance who possesses a farm of land can hinder any other not only from intermedling with any of the products but from walking across his field. ’Tis from the relaxation or | yielding up some part of this exclusive right^d in favours of a particular person that the right of servitudes has arose.

The 2^d species of real rights therefore is servitudes. These are precisely the giving up some part of the full right of property. As if a mans farm lies betwixt me and the publick road or any market town, I may by agreement or by law (as we shall hereafterwards observe<)> obtain a servitude (that is, relaxation of his exclusive right) by which I am allowed to travel on horse or foot or drive carriages thro’ his farm.

{All sort of claims on another mans property is to be considered as a relaxation of the exclusive right of property, whether they be constituted as a security for some claim against the dominus serviens, or whether they be constituted without any such design. The first are what we call pledge, mortgage, or hypothec. The others are denominated servitudes. Thus the servitus tigni ingrediendi9 is a relaxation of the exclusive right by which a man can hinder any one from making any use of his wall that can be any way detrimentall.}

As a man may have an opportunity of letting out his money but is not assured of its being on good security, he may take some part of the property of the person who owes the debt. By this means pledges or mortgages came | to be established. There is not here any proper acquisition, as in the former case, the mortgaged subject being considered as of equal value with the debt for which it is pledged, but he has property in it so far that the debt not being paid he can claim payment from the pledge.

4^th. If we consider the right which an heir has before his accession to the estate of his father we shall find that it is a real right, tho different from that of property. The heir has the exclusive right to the inheritance. No one can meddle with it in any shape untill he has refused it, and he can obtain restitution for anything that it may have suffered from others as well as [to the] all the accessions that may have been added to it. And as soon as he has consented to enter to the inheritance | he^e becomes full and complete proprieter of it.

{If therefore we account the right of inheritance to be a real right, as it certainly is, all other exclusive priviledges will for the same reason be accounted real rights, as the right of monopolies, which is a priviledge constituted intirely by the civil law, the right of an author to his book, the right an inventer of a machine or medicine has to the sole vending or making of that machine or drug. These often make the greatest <?part> and sometimes the whole of ones estate, and they are all creatures of the civil law in each country. There are severall others that have their origin in naturall reason, as the right one has to hunt down the game he has started and such like; but the most considerable of all the exclusive priviledges that are founded in nature is succession, which as we shall shew hereafter is altogether agreable to the constitution of nature.}^f

We may observe that not only property but all other exclusive rights are real rights. Thus the property one has in a book he has written or a machine he has invented, which continues by patent in this country for 14 years, is actually a real right. During that time he can claim restitution, or shew for damages from any one who prints his book or copies his machine, so that he may be considered as having a real right to it.

| We come now to the personall rights, which we will find proceed from three sources: 1^st, Contract; 2^d,^g what is called quasi ex contractu, which is called now from Quasi Contract, or more properly the right of Restitution; 3.^d—10

1^stPersonall rights may proceed from contract. The origin of this right is the expectation raisen in him to whom the promise was made that the promiser will perform what he has undertaken. Thus if one promises to give an other five pounds, this naturally creates an expectation that he will receive five pounds from him at the time promised; and here the promiser must be bound to make up to him any^h loss he has suffered by this expectation.

2^dlyQuasi ex contractu. This is no more as we observed already but the right of restitution.—If one finds any subject, as <a> watch, which is the property of an other, he is bound to restore this watch to the right owner whenever he | can discover him, and this without any claim to the contrary.

But if,ⁱ for example, one imagines his father owed my father five pounds, and I imagined that there was such a debt, and receive payment of this supposed debt.—After, the other discovers that the summ had been paid and produces his discharge. Here if the money has been spent, he can not have a real claim against me for the money. There is no particular five pounds which he can demand of me. But nevertheless I am bound to make restitution of five pounds to him. They say, est res aliena in patrimonio, there is something in my patrimony which is the property of another. In the same <?way>, whenever I am benefitted by the property of another in a manner to which I have no just claim, I am bound to make restitution quantum ex re aliena locu|pletior factus sum;11 and this not only when the subject exists but even after it has been consumed. {Hence arise many actions mentioned in the civil law, as that called condictio^j indebiti, and the actio negotiorum gestorum, as when one in the absence of the owner repairs the house to prevent it from going to ruins, he has an action neg. gest.; though he had not any of his money, yet he was benefitted, and has the possession of what was bought by his money, and is bound to make restitution of what he has laid out on his house.}

3^dly. Ex delicto. Whatever reason there is for ones restoring what he has come by, that was the property of another, taking it to be his own, there is as strong if not stronger reasons for his being bound to make up any damage another has received from him. The injury is here more sensibly felt and affects us more as the wilfull transgression or criminall negligence of the person who has injured us adds greatly to the uneasiness^k for the damage sustained. {We think one has injured us more who wilfully did us an injury than one who only did not perform some promise.} Hence arise the severall claims against another for damage sustained whether it be from negligence which they say is ex culpa, or from wilfull injury, ex dolo. These are the several personall rights.

The first thing that comes to be considered in treating of rights is | the originall or foundation from whence they arise.

Now we may observe that the original of the greatest part of what are called natural rights {or those which are competent to a man merely as a man} need not be explained. That a man has received an injury when he is wounded or hurt any way is evident to reason, without any explanation; and the same may be said of the injury done one when his liberty is any way restrain’d; any one will at first perceive that there is an injury done in this case. That on<e> is injured when he is defamed, and his good name hurt amongst men, needs not be proved by any great discussion. One of the chief studies of a mans life is to obtain a good name, to rise above those about and render himself some way their superiors. When therefore one is thrown back not only to a level, but even degraded below the common sort of men, he receives one of the most affecting and atrocious injuries that possibly can be inflicted | on him.—The only case where the origin of naturall rights is not altogether plain, is in that of property. It does not at first appear evident that, e.g. any thing^l which may suit another as well or perhaps better than it does me, should belong to me exclusively of all others barely because I have got it into my power; as for instance, that an apple, which no doubt may be as agreable and as usefull to an other as it is to me, should be altogether appropriated to me and all others excluded from it merely because I had pulled it of the tree.

We fill12 find that there are five causes from whence property may have its occasion. 1^st, Occupation, by which we get any thing into our power that was not the property of another before.—2^dly., Tradition, by which property is voluntarily transferred13 | from one to an other. 3^dly, Accession, by which the property of any part that adheres to a subject and seems to be of small consequences as compared to it, or to be a part of it, goes to the proprieter of the principall, as the milk or young of beasts.—4^thly., Prescription or Usucapio, by which a thing that has been for a long time out of the right owners possession and in the possession of an other, passes in right to the latter.—5^thly, Succession, by which the nearest of kin or the testamentary heir has a right of property to what was left him by the testator.—Of these in order.14

1^st OF OCCUPATION

Before we consider exactly this or any of the other methods by which property is acquired it will be proper to observe that the regulations | concerning them must vary considerably according to the state or age^m society is in at that time. There are four distinct states which mankind pass thro:—1^st, the Age of Hunters; 2^dly, the Age of Shepherds; 3^dly, the Age of Agriculture; and 4^thly, the Age of Commerce.

If we should suppose 10 or 12 persons of different sexes settled in an uninhabited island, the first method they would fall upon for their sustenance would be to support themselves by the wild fruits and wild animalls which the country afforded. Their sole business would be hunting the wild beasts or catching the fishes. The pulling of a wild fruit can hardly be called an imployment. The only thing amongst them which deserved the appellation of a business would be the chase. This is the age ofⁿ hunters. | In process of time, as their numbers multiplied, they would find the chase too precarious for their support. They would be necessitated to contrive some other method whereby to support themselves. At first perhaps they would try to lay up at one time when they had been successful what would support them for a considerable time. But this could go no great length.—The most naturally contrivance they would think of,^o would be to tame some of those wild animalls they caught, and by affording them better food than what they could get elsewhere they would enduce them to continue about their land^p themselves and multiply their kind. Hence would arise the age of shepherds. They would more probably begin first by multiplying animalls than vegetables, as less skill and observation would be required. Nothing more than to know what food suited them. | We find accordingly that in almost all countries the age of shepherds preceded that of agriculture. The Tartars and Arabians subsist almost entirely by their flocks and herds. The Arabs have a little agriculture, but the Tartars none at all. The whole of the savage nations which subsist by flocks have no notion of cultivating the ground. The only instance that has the appearance of an objection to this rule is the state of the North American Indians. They, tho they have no conception of flocks and herds, have nevertheless some notion of agriculture. Their women plant a few stalks of Indian corn at the back of their huts. But this can hardly be called agriculture. This corn does not make any considerable part of their food; it serves only as a seasoning or something to give a relish to their common | food; the flesh of those animalls they have caught in the chase.—Flocks and herds therefore are the first resource men would take themselves to when they found difficulty in subsisting by the chase.

But when a society becomes numerous they would find a difficulty in supporting themselves by herds and flocks. Then they would naturally turn themselves to the cultivation of land and the raising of such plants and trees as produced nourishment fit for them. They would observe that those seeds which fell on the dry bare soil or on the rocks seldom came to any thing, but that those[s] which entered the soil generally produced a plant and bore seed similar to that which was sown. These observations they would extend to the different plants and | trees they found produced agreable and nourishing food. And by this means they would gradually advance in to the age of agriculture. As society was farther improved, the severall arts, which at first would be exercised by each individual as far as was necessary for his welfare, would be seperated; some persons would cultivate one and others others, as they severally inclined. They would exchange with one an other what they produced more than was necessary for their support, and get in exchange for them the commodities they stood in need of and did not produce themselves. This exchange of commodities extends in time not only betwixt the individualls of the same society but betwixt those of different nations. Thus we send to France our cloths, iron work, and other trinkets and | get in exchange their wines. To Spain and Portugall we send our superfluous corn and bring from thence the Spainish and Portuguese wines. Thus at last the age of commerce arises. When therefore a country is stored with all the flocks and herds it can support, the land cultivated so as to produce all the grain and other commodities necessary for our subsistance it can be brought to bear, or at least as much as supports the inhabitants when the superfluous products whether of nature or art are exported and other necessary ones brought in exchange, such a society has done all in its power^q towards its ease and convenience.

It is easy to see that in these severall ages of society, the laws and regulations with regard to property must be very different.— | In Tartary, where as we said the support of the inhabitants consist<s> in herds and flocks, theft is punished with immediate death; in North America, again, where the age of hunters subsists, theft is not much regarded. As there is almost no property amongst them, the only injury that can be done is the depriving them of their game. Few laws or regulations will <be> requisite in such an age of society, and these will not extend to any great length, or be very rigorous in the punishments annexed to any infringements of property. Theft as we said is not much regarded amongst a people in this age or state of society; there are but few opportunities of committing it, and these too can not hurt the injured person in a considerable degree.—But when flocks and herds come to be reared | property then becomes of a very considerable extent; there are many opportunities of injuring one another and such injuries are extremely pernicious to the sufferer. In this state many more laws and regulations must take place; theft and robbery being^r easily committed, will of consequence be punished with the utmost rigour. In the age of agriculture, they are not perhaps so much exposed to theft and open robbery, but then there are^s many^t ways added in which property may be interrupted as the subjects of it are considerably extended. The laws^u therefore tho perhaps not so rigorous will be of a far greater number than amongst a nation of shepherds. In the age of commerce, as the subjects of property are greatly increased the laws must be proportionally multiplied. | The more improved any society is and the greater length the severall means of supporting the inhabitants are carried, the greater will be the number of their laws and regulations necessary to maintain justice, and prevent infringements of the right of property.

Having premised thus much, we proceed as we proposed to consider^v property^w acquired by occupation. The first thing to be attended to is how occupation, that is, the bare possession of a subject, comes to give us an exclusive right to the subject so acquired.—How it is that a man by pulling an apple^x should be imagined to have a right to that apple and a power of excluding all others from it—and that an injury should be conceived to be done when such a subject is taken for15 the possessor. From the system I have already explain’d,16 you | will remember that I told you we may conceive an^y injury was done one when an impartial spectator would be of opinion he was injured, would join with him in his concern and go along with him when he defend<ed> the subject in his possession against any violent attack, or used force to recover what had been thus wrongfully wrested^z out of his hands. This would be the case in the abovementioned circumstances. The spectator would justify the first possessor in defending and even in avenging himself when injured, in the manner we mentioned. The cause of this sympathy or concurrence betwixt the spectator and the possessor is, that he enters into his thoughts and concurrs in his opinion that he may form a reasonable expectation of using the fruit or whatever it is in what manner he pleases. | This expectation justifies in the mind of the spectator, the possessor^a both when he defends himself against one who would deprive him of what he has thus acquired and when he endeavours to recover it by force.—{The spectator goes along with him in his expectation, but he can not enter into the designs of him who would take the goods from the^b 1^st possessor.} The reasonable expectation therefore which the first possessor furnishes is the ground on which the right of property is acquired by occupation. You may ask^c indeed, as this apple is as fit for your use as it is for mine, what title have I to detain it from you. You may go to the forest (says one to me) and pull another. You may go as well as I, replied I. And besides it is more reasonable that you should, as I have gone already and bestowed my time and pains in procuring the fruit.17

Having explain’d the foundation on which occupation gives the property to the occupant, the next thing to be considered is at what time property is | conceived to begin by occupation.—Whether it be when we have got a sight of the subject, or when we have got it into our actual possession. In most cases the property in a subject is not conceived to commence till we have actually got possession of it. A hare started does not appear to be altogether in our power; we may have an expectation of obtaining it but still it may happen that it shall escape us. The spectator does not go along with us so far as to conceive we could be justified in demanding satisfaction for the injury done us in taking such a booty out of our power.—We see however that in this point lawyers have differed considerably. Trebatius, as Justinian informs us,18 conceived that an animall began to be our property when ever it was wounded; that this gave us a just title to it, and that one might claim it from any possessor rei vindicatio compelere ei judicabat.19 | Other more strict lawyers, as Proculus and Sabinus, were of opinion that it did not become ours till it came into our actual possession. Frederic Barbarossa, refining still more on Trebatius doctrine, made a distinction with regard to the manner in which the wound was given.20 If it was given with a missile weapon he judged that it did not immediately convey property; but if it was with a weapon held in ones hand, as a spear or sword, he judged that the beast, e.g. a wild boar, came^d immediately under the property of the person who gave the wound. {It was without doubt very near being in his power and he conceived it to have been altogether.} In different countries there are different constitutions on this head. It was enacted by a law of the Lombards21 that a hart which was wounded, if killed in 24 hours after he received the wound, should belong partly to the person who gave the wound and partly to him who killd him, as the former was | conceived to have had a hand in the catching him. The part given to the wounder was I think a leg and 4 ribs. In the same manner, at this day, [in] the ships which go to the Greenland fishery share the whale that was wounded betwixt the ship who wounded and that which killed the whale.22 If the harpoon of any ship that was at the fishing the same season be found in the fish, a certain part is alotted to that ship as having by the wound contributed to the taking of the fish. In most cases however property was conceived to commence when the subject comes into the power of the captor. — — — — —

The next thing in order which comes to be treated of is, how long and in what circumstances property continues and at what time it is supposed to be at an end.

| At first property was conceived to end as well as to begin with possession. They conceived that a thing was no longer ours in any way after we had lost the immediate property of it. A wild beast we had caught, when it gets out of our power is considered as ceasing to be ours. But as there is some greater connection betwixt the possessor who loses the possession of the thing he had obtained than there was^e before he had obtain’d <it>, property was considered to extend a little farther, and to include not only those animalls we then possessed but also those we had^f once possessed^g though they were then out of our hands, that is, so long as we pursued them, and had a probability of recovering them.

If I was desirous of pulling an apple and had stretched out my hand towards it, but an other who was more nimble comes and pulls it before | me, an impartial spectator would conceive this was <a> very great breach of good manners and civility but would not suppose it an incroachment on property.—If after I had got the apple into my hand I should happen to let it fall, and an other should snatch it up, this would <be> still more uncivil and a very heinous affront, bordering very near on a breach of the right of property. But if one^h should attempt <to> snatch it out of my hand when I had the actuall possession of it, the bystander would immediately agree that my property was incroached on, and would go along with me in recovering it or preventing the injur<y> before hand, even suppose I should use violence for the accomplishing my design. Let us now apply this to theⁱ case of the hunters. When | I start a hare, I have only a probability of catching it on my side. It may possibly escape me; the bystander does not go along with me altogether in an expectation that I must catch it; many accidents may happen that may prevent my catching it. If one^j in this case should come and take the game I had started and was in pursuit of, this would appear a great tresspass on the laws of fair hunting; I can not however jus<t>ly take satisfaction of the transgressor. The forester may in some countries impose a fine on such an offender. If after I had taken the hare or other wild beast it should chance to escape, if I continued to pursue it and kept it in my view, the spectator would more easily go along with my expectations;^k one who should prevent me in this pursuit would appear | to have tresspassed very heinously against the rules of fair hunting and to have approached very near to an infringement of the right of property. {But after it is out of my power, even tho I may possibly see it, there is no longer any connection betwixt it and me; I can have no longer^l any claim to it any more than to any other wild animall, as there is no greater probability I should catch it.} But if he had violently or theftuously taken from me what I had actually in my possession, this would evidently be an atrocious transgression of the right of property such as might justify, in the eyes of the beholder, my endeavours to recover what I had been so wrongfully deprived of.—In this age of society therefore property would extend no farther than possession.

But when men came to think of taming these wild animalls and bringing them up about themselves, property would necessarily be extended a great deal farther. We may consider animalls to be of three sorts. 1^st, Ferae, such as are always in a wild state. 2^dly., Mansuefactae, [or those] which | are those which have been tamed so as to return back to us after we have let them out of our power, and do thus habitually; tho there be others of the same sort, as stags, hares, ducks, etc. of which there are some wild and others tame. 3^dly, Mansuetae, which are such as are only to be found tame, as oxen. When men first began to rear domestick animalls, they would be all under the class of the mansuefactae, as there must have been others still wild. But even in this case it would be absolutely necessary that property should not cease immediately when possession was at an end. The proprietor could not have all those animalls^m about him which he had tamed; it was necessary for the very being of any property of this sort that it should continue some what farther. They considered therefore | all animalls to remain in the property of him to whom they apertaind at first, as long as they retain’d the habit of returning into his power at certain times.23 And this continues still to be the case with regard to those animalls that are mansuetae, or what we properly call[ed] tamed.—{Hawks, stags, etc. when they no longer return into the power of their owner are supposed to cede to the occupant.} But in process of time, when some species of animalls came to be nowhere met with but in the state of mansuefactae, they lost that name and became mansuetae. A farther extention was by this means introduced into the notion of property, so as that all these animalls were esteemd to be in the property of their master as long as they could be distinguished to be his; altho they had for a long time ceased to come into his power, yet still they were considered as fully his property. This was no doubt a great extention of the notion of property. But a still greater followed | on the introduction of agriculture. It seems probable that at first, after the cultivation of land, there was no private property of that sort; the fixing of their habitations and the building of cities first introduced the division of land amongst private persons.24 —The notion of property seems at first to have been confined to what was about ones person, his cloaths and any instruments he might have occasion for. This would naturally be the custom amongst hunters, whose occupation lead them to be continually changing their place of abode.—{Charlevois tells us that a certain Canadian woman having a great string of Blank in MS.25 which serves for money amongst them was so extremely fond of it that she could never let it out of her sight. One day it happened that she carried it with her to a field where she was to reap her corn. There was no tree in her field, but one in that of her neighbour hard by. In this tree she hung up her string. Another woman, observing her, went and took it off. The owner of the string demanded it from her, she refused, the matter was referred to one <of the> chief men of the village, who gave it as his opinion [v.47] that in strict law the string belonged to the woman who took it off the tree, and that the other had lost all claim of property to it by letting it out of her possession. But that if the other woman did not incline to do very scandalous action and get the character of excessive avarice (aⁿ most reproachfull term in that country), she ought to restore it to the owner, which she accordingly did.}

The introduction of shepherds made their habitation somewhat more fixed but still very uncertain. The huts they put up have been by the consent of the tribe allowed to be the property of the builder. For it would not appear at first why a hut should be the property of one after he had left it more than | of another. A cave or grotto would be considered as belonging to him who had taken possession of it as long as he continued in it; but it would not appear that one had any right to it tomorrow night because he had lodged there this night. The introduction of the property of houses must have therefore been by the common consent of the severall members of some tribe or society. Hence in time the house and the things in it became to be considered as the property of the builder. Hence the Greek and Latin words for property, dominium and οἰκειον.26 {It is to be observed that even in the age of hunters there may be fixt habitations for the families, but property would not be extended to what was without the house.} But still property would not be extended to land or pasture. The life of a shepherd requires that he should frequently change his situation, or at least the place of his pasturing,^o to find pasture for his cattle. The property of the spot he built on would be conceived to end as soon as he had left it, in the same manner | as the seats in a theatre or a hut on the shore belong no longer to any person than they are possessed by him. They would not easily conceive a subject of such extent as land is, should belong to an object so little as a single man. It would more easily be conceived that a large body such as a whole nation should have property in land. Accordingly we find that in many nations the different tribes have each their peculiar territory on which the others dare not encroach (as the Tartars and inhabitants of the coast of Guinea). But here the property is conceived to continue no longer in a private person than he actually poss<ess>ed the subject. A field that had been pastured on by one man would be considered to be his no longer than he actually staid on it.—Even after the | invention of agriculture it was some time before the land was divided into particular properties. At first the whole community cultivated a piece of ground in common; they divided the crops produced by this piece of ground amongst the severall inhabitants according to the numbers in each family and the rank of the severall individualls. The inclination of any single person would not be sufficient to constitute his property in any parcel of land if it were but for one season; the rest of the community would cry out against him as incroaching on and appropriating to himself what ought to be in common amongst them all. In the same manner as any corporation or society amongst us would not permit any of their body to set appart for his own use any part of their common field or any tree in it, etc., as they ought to | reap in common the fruit of these common’d subjects. {As a confirmation of this, we^p learn from Tacitus27 that each nation who had any agriculture amongst them cultivated some spot of ground the product of which was divided amongst the members of the community.} The first origin of private property would probably be mens taking themselves to fixt habitations and living together in cities, which would probably be the case in every improved society. The field they would cultivate when living together in this manner would be that which lies most contiguous to them. As their place of abode was now become fixt, it would readily appear to them to be the easiest method^q to make a division of the land once for all, rather <than> be put to the unnecessary trouble of dividing the product every year. In consequence of this design^r the principall persons of such a community, or state, if you please to denominate a set of men in this condition by that honourable appellation, would divide | the common land into seperate portions for each individuall or family. We find accordingly that Homer28 and Aristotle, whenever they give us an account of the settling of any colony, the first thing they mention is the dividing of the land. Aristotle29 too mentions the manner in which this was done. He tells as30 that the ground lying nearest to the new built city was divided into seperate parcells as it was most convenient for each, but that which was more remote was still allowed to remain common.^s

One thing which strengthens the opinion that the property of land was settled by the chief magistrate posterior to the cultivation is that, in [the] this country, as soon as the crop is off the ground the cattle are no longer kept up or looked after but are turnd out on what they call the long tether; that is, they are let out to roam about as they incline. Tho this be contrary to Act of Parliament31 | yet the country people are so wedded to the^t notion that property in land continues no longer than the crop[t] is on the ground that there is no possibility of getting them to observe it, even by the penalty which is appointed to be exacted against <?>.

This last species of property, viz. in land, is the greatest extention it has undergone. We shall hereafter consider in what shape it has been limited in different countries.

By the severall methods above mentiond property would in time be extended to allmost every subject. Yet there are still some things which must continue common by the rules of equity. Thus, first, wild beasts can not be a subject of property; to wit those which either by their swiftness or fierceness refuse to submit themselves into mens power; these are what the Roman lawyers called ferae naturâ, and also such as have not been tamed.

| The tyranny of the feudal government and the inclination men have to extort all they can from their inferiours, has brought property in some measure into these subjects. By the civil law and the constitutions of most countries in ancient times, game was considered as being free to every one. And this certainly is what is most agreable to reason. For no one can have any power over an animall of this sort, nor can he claim the property of it, because it pastures on his ground just now, for perhaps the next moment it may be on another^u mans ground. But when the feudal government was established, which was the foundation and still prevails in some measure in all the governments in Europe, the king and his nobles appropriated to themselves every thing they could, without great hazard of giving umbrage to an enslaved people. Amongst other encroachments | it became the rule that wild animalls should belong only to the king and those of his lords to whom he gave the power of catching them. Accordingly in the time of Henry the 7^th. a law was made that no one should kill game but on his own ground unless <?licensed> by the owners of the land;32 another was made in the time of King James 1^st. by which no one who had not 100£ a year of land rent or a lease worth a 150£ for a long term of years as^v 99, or some life rents, could kill game even on his own estate;33 and in the time of George the 1^st and 2^d it was made^w punishable by a fine of 5£ st.^x to have arms or game in ones possession unless he had the rent above mention’d;34 and by an other statute in this reign not only the magistrate but any informer had a title to claim the fine.35 —There can be no reason in equity given for this constitution; if one did the proprieter damage he might be | obliged to give him satisfaction, but when there is no danger of damage any one might catch game as well as the proprieter of the ground. The reason they give is that this prohibition is made to prevent the lower sort of people from spending their time on such an unprofitable employment; but the real reason is what we before mentioned, the delight the great take in hunting and the great inclination they have to screw all they can out of their hands. In the same manner the fish of the sea and rivers are naturally common to all; but the same incroaching spirit that appropriated the^y game to the king and his nobles extended also to the fishes. Thus all the larger fishes, as of greater importance, are considered as belonging only to the king or his vassals to | whom he has given the right of taking them. Whales, porpoises, sturgeons, etc. are of this sort. {These larger fish are all called royal.} Salmon,36 too, can not be taken unless the king has granted it by express charter. The fish no more than the game can become the subject of property; they are not in our power, nor can they be considered as belonging to an estate as they are often changing their place, but ought to be common to all.—An other encroachment made on the rights of the lower rank of people was made by the statu<t>es which enacted that what ever was wafe, as they called it (that is, being stolen was left by the thief), should if not claimed by the owner within a year be appropriated to the king or the lord of the land on which it was found, and to whom the king had given the Franchise of Wafes.37 This extended also to all subjects that had no master: ἀδεσποτα. In the same manner, those animalls that had strayed from their master and were found on any mans ground were not the property of the finder but of the lord of the manor. It is evident | that by the law of equity such possessions should be restored to the right owner in the same manner as any other subject, as a watch that can be known certainly to be his, which are restored whenever he can shew his property in them. The only reason that is given is that it is so constituted to make the people more careful in preventing strays and more attentive to claim them in due time; but allowing this to be the case, why should they not belong to the possessor, rather than^z be given to the king or the lord of the mannor, who can have no title to them, not even prescription itself.—In like manner, unless the king had granted a proprietor of land the^a Franchise of Treasur<e> troff38 he could not take to himself the treasure found in his own ground, and far less what he found on anothers. These often made a good part of the kings revenues, for tho now they are seldom met with, yet formerly in those confused periods when property was very | insecure and it was dangerous to be known to have any money about one, as the laws could not assure of the possession of it, nothing was more common than for a man to bury what he had got together. At this day in Turky and the Moguls dominions every man almost has a treasure, and one of the last things he communicates to his heirs is the place where his treasure is to be found. In such times the right of treasure–troaf would be of considerable importance. The reason why the nobles and those of power established these constitutions was that the people could more easily be brought to bear with some incroachment in this way than in any other. One does not form such an attachment to a thing he has possessed for a short time (as is the case here) and has acquired by little labour as he does to what he has got by great pains and industry; and so will not think himself so highly^b injured in | being deprived of it.

Besides those things already mentioned there are many others that are to be considered as common to all, as they can not be lessend or impaired by use, nor can any one be injured by the use of them. Thus the air is necessary to be breathed by all, and is not rendered less fit or less in quantity for the use of others. Running water in like manner or the sea are by nature common to all.39 A fountain by the way side is not the worse that one has drunk from it, nor can the proprietor of the ground hinder any one from drinking out of it. But if indeed it should be in the midst of the field, one can be hindered by the proprietor, as he could not go to it without doing him damage (unless he have a servitude against the proprietors farm, ad aquam appellendi40 <)>.—In the same manner the water of rivers and the navigation of them, the navigation or right of sailing | on the sea, is common to all. No one is injured by such use being made of them by another; one who has ship in a certain station does not usurp the property of that spot; he only has the right to it when he possesses it; then indeed he can defend his right against any one who would displace him, but as soon as he leaves it the right cedes to the next occupant. {The sea coast in the same manner seems to be common to the whole community, and accession to it to belong to the whole body, but the king has usurped this to himself, in so much that in Lincoln shire,41 where frequent accessions and diminutions happen, a certain person having 100 acres added by the sea could not take possession of it tho his charter comprehended all the land betwixt that coast and Denmark, because that number of acres was not specified, but the whole ceded to the king.} Tho the right of navigation is in this manner naturally common to all, yet the nations and states who lye adjacent to any river or inlet of the sea have often usurped the jurisdiction imperium, tho not dominium or property, over them, so that they will not allow ships to enter them without their permission.42 The reason is because this would otherwise expose them to their enemies and strangers and let them into the heart of their country. They do not however pretend to any right to the water of these rivers, only to [the] restrict the navigation.

| It is only such arms of the sea which make but a small appearance compared to the land adjacent which are thus under jurisdiction, as the friths of Clyde,^c Forth, and the Murray frith.43 The Baltick Sea, on the other hand, tho^d it is of a large extent, is brought under the jurisdiction of the King of Denmark, but this was not from being considered as part or appendage of the land, but had its beginning from the tribute he rais’d for the support of light houses. Both Sweden and Denmark, tho’ their territories on its banks have often been much larger than they are now, never exacted any tribute on that head. In the same manner as rivers and small inlets are considered to be a part of or appendage^e of the land, so the sea and sea–coast come in like manner to be under jurisdiction. To44 that strangers are not allowed to navigate or fish near the coast | without express permission. This is particularly the case in such parts of the sea as are near any fort and within the range of its cannon, where no ships are allowed to pass or fish without acknowledging its jurisdiction. That strangers should not be allowed to fish has some foundation in nature, as what is got in this way is often the chief^f part of the support of a large number of the inhabitants, and they would naturally think themselves injured if strangers should in<ter>rupt them. Besides this the fish in narrow seas and rivers are not unexhaustible. The restriction however on navigation and the appropriation of rivers by the community or state through whose territories it passes go on the foundation of accession, by which the smaller things cede to the larger to which they adhere.

{Accession comes next to be treated of. These two are the originall methods of acquiring property. The others are secondary, by which it is conveyed either from the dead to the living by will or succession, or by voluntary transference amongst the living.} This method of acquiring property has also undergone very considerable | alterations in the different ages of society. {In the age of hunters there was no room for accession, all property at that time consisting in the animalls they had caught.} In the age of shepherds accession could hardly extend to any thing farther than the milk and young of the animalls. They would naturally be given to the person who had tamed the animall. Tho perhaps he had not them in view, yet there would seem an impropriety in allowing the milk to any other. This as well as in many other cases goes on the impropriety that appears in it rather than any inconvenience. {It would appear ridiculous that the milk of an animall should remain common, after the animall had been tamed and appropriated by a certain person; we are naturally inclined to compleat or square ones property or any other right in the same manner as we would incline to square his land estate; we do not incline to have corners sticking into it.} Even the right of occupation seems as we said to be chiefly founded on this apparent impropriety. It is to be observed that the young of all animalls is supposed to be an accession to the mother rather than the father. The actions of^g conceiving, bearing, bringing forth, and suckling appear to produce a much stronger connection betwixt the young and the mother than the transitory act of begetting does with the | fathers. {Besides this, the young even for some time after its birth as well as the milk for ever seem to be a part and but a small part of the mother, and accordingly goes to the proprietor of the whole as a part of it.—} There is no exception to this but in the swans, where it is the rule that part of the young goes to the proprietor of the male and part goes to that of the female; the reason given is that as the male cohabits only with one female he could be of no benefit to his owner unless he got part of the young he had produced. Amongst men too the child is considered as the property of the mother unless where she is the property of the husband, and then^h the ofspring belong to the father as an accession to the wife. This was the case in the old law in the state of wedlock and in this point is still so, but naturall children are the property of the mother and generally take her name.—{Severalls ofⁱ the Roman lawyers did not give the name of accession to the right the dominus of the female had to the young, they called it jus ventris;45 but what is said above shows that it has all the circumstances necessary to constitute the right of accession.}

Tho the opportunities of accession are but very few in the age of shepherds, yet they multiply to a number almost infinite when agriculture and private | property in land is introduced. Then when the land was divided by the common consent of the state, the thing they would have in view would be to give each the property of the land in order that he might raise crops on it. But it would naturally arise from his having this principall part of property that he should have the property of all the trees, stones, and mineralls also that were found in it. The reason at first might be that these could not be come at without injuring the surface. But as to mineralls, a mine in one farm might be extended to that of another proprietor without injuring the surface, and would rather serve as a drain.^j But the connection betwixt the surface and the subterraneous parts is so great that it would soon come to be the rule that every thing betwixt the surface and to the center of the earth, if he could go so far, should be the property of the owner of the surface.—{The right that was at first conveyd to the private proprietor was realy^k that of plowing, sowing, reaping the fruits, or of pasturing upon it. This would be more easily expressed and as well conceived by saying that he had the^l property of the land, and the same would be the method or form of expression in sales or transference. As the surface was the thing of which the property thus came^m to be transfered, the soil and all in it would soon be considered as appertaining to the same proprietor. Tho perhaps the soil and its contents might be come at without injuring the surface, the mines serving rather as drains to carry off the superfluous moisture, yet propriety would make this be looked on as an injustice and introduce theⁿ laws which now take place, viz that the whole soil belongs to the proprietor of the surface.} There is this difference | also betwixt the civil and fewdal law, that by the former all mines were considered as the property of the possessor of the ground. The lands in those countries were all what we call allodial,46 i.e.^o held of no one, but were intirely the property of the^p proprietor, so that the state could not limit the use he was to make of any part of his estate. But in the feudal governments, the king was considered as the dominus directus, which had then a considerable benefit attending on it. The possessor<s> as domini utiles were only his tenants, as they are called, and held of him. As therefore a tenant who got a lease of a woodland was supposed, altho that was not expressly specified, to [to] have a right to the brush and underwood but not to the timber trees which were reserv’d for the proprietor, so the vassals were accounted as having a right of property to the mines of lesser value, as coal, lead, tin, iron, copper, etc. but | those of silver and gold were con<si>dered as reserved by the dominus directus, that is, the king, for his own use. And thus it came to pass that one who holds of the king may work for his own account the mines of lesser value, but not the gold and silver mines unless that be expressly granted by charter. — — — —

In the same manner as the soil and other substances were considered as an accession to the surface, whatever was added by the retiring of the sea or the shifting of a river was considered^q as belonging to the proprietor of the field next adjoining. But these accessions has^r been differently regulated in different countries. In high countries, as Italy and the most part of Great Britain, where the coast and the banks of the rivers are very high above the waters, the accessions | to the land can not be very considerable either from the sea retiring of the,^s or from the shifting of rivers; in all such countries the accessions of this sort, as being but of little consequence in respect of the land adjacent, was considered as an accession to the property of that ground. But in flat countries as Egypt and the countries on the banks of the Ganges, and the Low Countries, the sea^t often retire<s> or the rivers change their course so considerably as that the tracts of ground thus added can not be considered as an accession to the neighbouring field, but is the property of the state.47 In the fens of Lincoln shire, where the additions are by law considered as^u accessions to the neighbouring ground, yet even here the field must be particularly specified otherwise the addition goes to the crown.

In all cases of this sort there is no | great difficulty in determining the proprietor of the accessions. The only case where there is any perplexity is where the accession is the property of a different person^v from the proprietor of the subject. {As when one makes a ship of anothers wood, wine of anothers grapes, or a cup of anothers metall.} Thus when one builds a house on another mans ground, it is a question whether the house should be considered as an accession to the ground or the ground to the house. It is to be observed here that in all cases where the proprietors of the accession and principall are different, the question is not which of them shall have the sole right to both, but which shall be considered as the principall and have the right to claim the other, giving a recompense^w <to> the proprietor of it as far as he is thereby benefitted. Thus in the case above mentioned the matter in question is whether the house shall be considered as the principal, and consequently the builder^x of it will have a right to possess it after paying a reasonable price | for the ground or an adequate rent, or whether on the other hand the proprietor of the ground should have a right to the house, paying the builder as much as he is benefitted by it (quantum locupletior factus est48 <)>, altho’ perhaps this may be greatly under the expense laid out upon it. In this case it is determin’d by all lawyers that the proprietor of the ground should be considered as having the right to claim the house on the condition above mentioned. It is true the house will in most cases be of greater value than the ground it stands upon, but the rule which is attended to here is that no one by the deed of another should be deprived of his property. Nemo ex alienâ actione rem suam amittat.49 This generall rule is suited well enough^y to most cases, but there are some where the determination agreable to it would appear very hard. If one should draw a fine painting on the wood or canvass of another man | it would appear hard that the painter should lose this work, which might be of great value, because it was considered as an accession to a subject of so inconsiderable value as the wood or canvass. Accordingly tho Proculus and Blank in MS.^z who were of the more moderate lawyers gave the right of accession to the painter, yet the more strict ones, as Cassius and Sabinus,50 adhered to the generall rule,^a saying that as the picture had not altered the wood, it was to remain^b the property of the former proprietor.^c 51 {The picture was not considered as altering the substance; the board was considered to be still a board, and the reason probably was that as their walls were all either plaster or stone the only thing that would be hung on them of that sort would be the pictures, which were accordingly distinguished by the name of tabulae.} In many other cases the same difficulty would occurr, as when one made wine or ale of an other mans grapes or barley, or if^d he made a cup of another mans silver, or a ship of his wood. The strict lawyers decreeed that the proprietor of the substance should continue to be so even after it had | assumed the new form. The others were of opinion that the specificator should in these cases be reckon’d the proprietor of the principall part.52 But that they might not contradict their generall rules they said that this was not properly a species of accession, but the substance produced was a new thing, res nova in rerum natura, that the grapes turnd into wine were no longer grapes, the barley was become ale and the silver a cup, and therefore could not be claimed by the proprietor of the substance so reasonably as by him who had as it were produced it. Paulus53 and after him Tribonian54 and Justinian took what they thought a middle way, though more whimsicall than either of the others. The rule they made was that when the subject could be reduced into its former state it should be the property of the former proprietor | but, when it could not, the substance should be considered as an accessary to the form. From this rule metalls, into whatever curious form they were wrought, would still be^e considered as a part of the former proprietors^f goods, but the ship, the wine, and the ale should be accessions to the work^g of the specificator.—This rule has no foundation in reason, and has proceeded only from the small^h connection there is betwixt the substance and the proprieter, when it can be reduced to its former state, more than there is when it can not, as the substance is still the same. But in many cases this rule would not be at all agreable to reason, as in the case of the engraving. It seems more agreable to reason that the substance should in many of these cases be considered as an accession to the form, because in this way the | proprieter of the substance might be compleatly recompensed by having the profit of the specificator paid him; whereas if the dominus substantiae should have the accessionⁱ <to> it, the specificator would perhaps lose considerably by receiving only as much as the dom. subst. was enriched by his work. This might often happen with regard to the painting, the sculptor, etc. {This determination may show us on what slight connection in the imagination the lawyers formed their opinions.}

There are many other cases pretty similar to this, as when a gem is set in another mans gold; here tho the gem is probably the most valuable, yet^j it was considered as an accession to it, being applied or set in it in order to be an ornament to it. They however considered^k the gem was no longer an accessory to the gold than it was thus fixt in it | and that when seperated it became the property of its former master. For this reason they contrived an evasion of the strict law, and gave the owner^l of the gem an action against the other (ad exhibendum), that is, to get a sight of it, and then as it would be seperated he might claim it.55 Reason here likewise seems to be on the side of the owner of the gem,^m as he might not be sufficiently indemnified for his gem, tho the other would be recompensed for his gold, as the whole value of it would be gain to the possessor of the conjunct ring.

These two makeⁿ all the originall methods of acquiring property. The 1^st of those called derivative,56 by which the property of a thing already in the possession of some other <?> is Prescription | {Prescription, that is, the right one has to any subject he has possessed a long time which otherwise without this possession would not have been his. The origin of the introduction of this manner of acquiring property seems to be that}^o after property was extended beyond possession, and goods were^p thought to remain in the property of the former possessor longer after they were out of his power, it was found necessary that some length of possession should transfer the right of property, that the possessor might be assured he had then the full right to the goods; otherwise property would be always uncertain. The foundation of this right is the attachment the possessor may be supposed to have formed to what he has long possessed; and the detachment of the former possessers affection from what^q had for a long time been altogether out of his power.57 {This right of prescription is in fact derived from the same principles as that of occupation. For in the same manner as the spectator can enter into the expectations of the 1^st occupant that he will have the use of the thing occupied, and think^r he is injured by those who would wrest it from him; in the same manner, the right of prescription is derived from the opinion of the spectator that the possessor of a long standing has a just expectation that he may use what has been thus possessed, and that the form<er> proprieter and has so far lost all right to it, has no expectation of using it,^s as that it would appear injurious in him to deprive the present possessor. [v.77] That these two principles, of the attachment of the possessor and the detachment of the former proprietor, are the grounds on which this right is founded is greatly confirmed by the different requisites that have been introduced to make possession of a long continuance transfer the right of property.}

It is necessary that the possessor should be bona fide, that is, should have an opinion that he is the lawfull proprietor^t of the subject; if he knows that it belongs to another the greatest length of time can not give him the property of it. Be|sides this it is necessary that he should possess it justo titulo, i.e. that he should have got possession of it in a manner by which property can lawfully be transferred. Thus if one byes any piece of goods in the market or elsewhere, he has a justus titulus to this and may reasonably think he has the right of property to it. But if he should find e.g. a watch on the road and should not give publick notice that such a thing was found, though he should possess it for 100 years, and the owner or his heirs afterwards come to the knowledge of it, he would be obliged to restore it.^u — {It will seldom happen that one will think he has a right to any thing, unless he has come by it justo titulo. But if one should be so foolish, the possession would not give him a right to it. In many cases however any^v title is sufficient altho it be very slight. Amongst moveable goods no title is required, but possession alone bona fide gives the right; and in immoveables, a seasin58 from a writ of clare con.59 } A land estate can not be possessed without some title. As the king was considered as the proprietor of all lands they could not be given to another without some token for the transference of the right. This was | a charter or parchment. Accordingly one can not enter to an inheritance of a land estate unless he can produce some title he has to it. But here a very slight one will suffice as the seasing his father had when he was served heir. {The forementioned requisites tend to make it certain that the possessor had formed an attachment to the thing he possessed. That it might be certain the affection of the former proprieter had been detached from it, it is, etc.} It is also necessary that the possession be uninterupted, and that not only in a just but even in an unjust manner.^w In this country the only lawfull method of interruption^x is when the proprieter claims a right to the possession of the subject.^y It is also requisite that the possessor should be in such a condition as that it is in his power to make an interruption. Contra nolentem non currit praescriptio.60 Thus it does not run against one who is absent or any other way deprived of the power of making an interruption {as minors, mad persons, wives during their husbands life time; exiles unjustly banished, as those during the usurpation of Oliver Cromwell in 1648.} | Prescription too does not take place against minors; and the possessor is obliged to continue his possession for the term of years after the pupill comes of age. It is to be observed that the nature of things does not point out any precise time at which^z prescription is to take place, whether it be at a month, a year, 10, 20, 30, or 40, etc. years. But as it was necessary that some period should be ascertain’d which gave one the right to what he possessed, so we find that some such period has been settled in all countries. In the first periods of the Roman state, when the society had made no great advances, and property was very uncertain, the composers of the 12 Tables thought a year sufficient time for the prescription of moveables and two years in immoveables. Afterwards this period was lengthned to 3 years, and some time after to 3 years in moveables and 10 years for | immoveables in Italy and 20 in the provinces, which took place at last in Italy also.61 — In like manner in the feudal governments, when the proprieters of land held it of the king by certain services they were to perform to him, as attending him in his wars and be<ing> always at his call to his councils in peace, it was necessary that there should not be any estate but what was possessed by some one who performed these services. If therefore any proprieter should desert his estate but for one year and not perform that by which he had the right to it, and another came and possessed it and performed his part, the latter (as he had done all that was requisite to get a right) would have the full right to the estate, and on the other hand, he who had neglected his duty could have no claim. {The king might indeed claim it, as he had no charter, but the former possessor could have no claim.} But when this government came to be considerably altered, and the right to an estate did not depend on personall service, it seemed unjust that | one should be turned out of his estate by so short a prescription, when the troubles and insecurity of property that had given occasion to this constitution no longer subsisted. It could not then be supposed that either of the two grounds of prescription would take place in so short a time; that either the possessor had formed any attachment to it, or that the proprieter had detached his affection from what had been so lately in his possession. From hene62 they run into the other extreme, and property was conceived to continue long after possession had been lost; but no time was fixed at which prescription should take place. This introduced a great confusion and uncertainty in property. To remedy this Hen. II^d enacted that no action should be raised against possession, the ground of which was farther back than the reign of his grandfather Hen. I^st.63 Henry III^d made the same con|stitution, that they should extend only to the time of Hen. II^d.64 Edward III^d. also to the time of Richard the 1^st,65 and afterwards to that of the 2^d. From his time it run on till the time of Henry the^a VIII^th, who, finding that there were few estates against which some claim could not be raised, appointed that no claim should thenceforth be valid after a prescription of 60 years, if the title was Blank in MS.66 nor after 50 if it was of any other sort; nor after 30 if the possession had been begun during the claimants life.67 In Scotland by a law of Charles the 2^d prescription is to take place after a possession of 40 years uninterrupted.68 The prescription of moveables in England and in Scotland was originally a year; this continues still in England; in Scotland it is now restricted to those that are called wafe. Formerly after a year and a day, proclamation being made, all lost^b goods or such as are called adespota69 were adjudged to the kings officers | or those vassalls to whom he had given the Franchise of Wafe.70

The^c terms of prescription being different, the circumstances necessary to confirm a right by a long possession are also different. In Scotland, as we observed, the term of prescription being pretty long, viz 40 years, they have not required that the possessor should be bona fide; they think that this must necessarily follow from the justus titulus and longa possessio non interrupta.—The time being so long, it can hardly happen that an estate can be prescribed in less than 50 or 60 years as some minority or other interruption71 will take place. It has therefore been customary to strengthen the right of prescription, and most lawyers have accordingly been very favourable to it. It is likeways from this that the time is continued after the interruption and not begun afresh. By the Scots law no interruption is good against the | prescription except a claim instituted by the former possessor or his heirs. Interruption by war or other externall means is of no effect.—In England, where the possession must be still longer, neither bona fides nor justus titulus is thought necessary, and every thing is contrived to shorten that time; for an estate can hardly be prescribed there in less than 70, or 90 years.—{When during the mans life time it is prescribed in 30 years, but this can never take place.} The civill law, as it allows prescription to take place in a very short time, is on the other hand favourable to the claim of the proprietor. Thus not only an interruption from him but from the incursions of an enemy, their fixing their camp on his ground, was sufficient to make an interruption. Besides this an interruption did not only^d prevent the running of prescription for the time it took place, but made the possession prior to it of no effect and obliged the possessor to count anew^e from the ceasing of the interruption, and this in whatever way the interrup|tion had been made {in the same manner as by a claim being preferred in our law.} There is however one thing in the civill law extremely favourable to prescription, and that is that bona fides was only required at the beginning; but tho he could be proved afterwards to have known he was not in bona fide the prescription still took place. {Res furtivae again were not prescribed[ed] by any length of time, whereas in this country they are prescribed, after being proclaimed, in a year and a day.72 }

The cannon law on the other <hand>, regulating every thing according to the rules to be found in foro concientiae, do not allow prescription to take place when mala fides supervenerit, as the man must be concious he detains the goods of another.73 The civil law again pays more regard to the frailty of human nature.

Some authors derive the right of prescription from a different origin <?from> that here laid down. Grotius74 founds it on the presumed dereliction of the possessor, but when we consider that no one would willingly give up a right to a considerable estate, especially a land one <?>. It is ignorance only that will hinder one (that has it in his power) from | occupying such possession that he has a right <to> or his forefathers were in possession of. Baron Coceii75 founds it on the respect paid to possession Gap of one–quarter of a page in MS.

The great benefit of prescription is that it cuts off numbers of disputes.—If no land especially could be possessed that could not shew an originall title, there would be none that could be secure, for then we would be obliged to trace our right back as far as the flood.

Prescription, as shall be more fully explained hereafter,76 takes place[s] against^f all rights, personall as well as real. I shall only at present observe that the law of nations^g likewise prescribes that prescription | should take place amongst sovereign states or kings. The right a king has to the obedience of his subjects will prescribe for the same reason as the right to the sole use of land or other estates.^h Long possession here forms an attachment betwixt the possessing king and his subjects and an expectation that he shall govern them; and at the same time detaches the former king from the affection and expectations of his people. Immemorial possession cuts off all claims. And should the lineal descendent of the Saxon kings whom William the Conq. expelled prove their descent, no one would imagine they would exclude the present family; or those of Charlemain or the Greek emperors exclude the French king or the Grand Turk. But to the misfortune of mankind, those who sit at the head of human | affairs, tho they regulate the disputes of their subjects, have not always the disposition to bring their own disputes to an end; but choose rather to keep up some phantasticall claims which some accidentall occasion may give them an opportunity of employing to their own and their neighbours disquiet. Such is the claim kept up by the Kg. of Sardinia after 200 years to the Isle of Cyprus, by the Venetians to Cyprus and Creetes,ⁱ by the kings of Great Britain to the crown of France, and by the French king to the kingdom of Navarre. The King of Prussias claim to Silesia is likewise of this sort. His fam. had by the treaty of Westphalia been above 100 years out of possession. But, says he, I ought not to be deprived of my right because my forefathers were good natured, generous, or silly enough to part with it before I was born. But this | can be of no force. For then there would never be wanting some child or kinsman who could claim the estate, as some one would always appear who had not given up the right in any shape.

Thursday 6 Jan. 1763.

Having now considered the three first^j methods of acquiring property, I come now to the 4^th which is sucession. By succession is meant the transference of property from the dead to the living. There are two sorts of succession, either 1^st, where the succession is directed by the law; or 2^dly, where it is by the testament or will of the deceased. The 1^st is what I shall now consider, viz. successio ex lege.

Most writers77 on the subject of the law of nations found this method of succession on the supposed will of the deceased. The magistrate is to consider to what person he would (if he had^k made a will) have given the inheritance, and that to him as the most naturall^l sucessor the estate of the deceased should be confirmed by the | publick authority. If this was realy the foundation of succession ex lege,^m it would follow that in all countries where it has taken place testamentary succession must have preceded. For if the express will of the deceased directing how his estate should be possessed was of no effect, we can not reasonably imagineⁿ that this supposed inclination should be of any, far less of greater, force. In all countries therefore succession ab intestato must have succeded testamentary succession, if this hypothesis was just. But we find on the contrary that in allmost all countries where records have been kept testamentary succession has been introduced much later than succession ab intestato. In Tartary, and the countries on the coast of Africa, there are at present certain rules by which succession is directed, tho’ they have no notion of a testament. Amongst the earlier Romans, testaments were unknown; they were first introduced by the | laws of the 12 Tables.78 Before that time one who had no heirs could not leave his estate but by a law made in the Comitia Curiata,79 which was similar to our Acts of Parliament. In like manner we find that Solon80 was the author of testamentary succession amongst the Athenians, and in our own country the people had been formed into a regular community for 600 years before testamentary succession took place. {Besides this of the real priority of the succession of the heir at law, to testamentary succession we are also to observe that the heir at law in allmost all countries is more favoured than the testamentary heir; and the testament is reckond null and void if a few formalities, etc. be wanting. This preference could never be made if the foundation of the succ. ab intest. was the presumed will of the testator: for his presumed will could not be in reason preferred to that which he had plainly expressed.^o It shall likewise afterwards be shewn81 that the right of succession ex testamento is one of the greatest extentions of property we can conceive, and consequently would not be early introduced into society.—} Since, then, succession ab intestato is always prior to the testamentary succession, contrary to what would necessarily be the case if the supposed inclination of the deceased was the foundation of it, we must look somewhere else for the foundation of succession ab intestato than in the will of the deceased.

{In the age of hunters there could be no room for succession as there was no property. Any small things as bows, quiver, etc. were buried along with the deceased; they were too inconsiderable to be left to an heir.—In the age of shepherds, when property was greatly extended, the goods the deceased had been possessed of were too valuable to be all^p buried along with him. Some of those^q which he might be supposed to have the greatest attachment to would be buried, as a horse, an ox, etc.; the rest would go to the other members of the family as is hereafter explain’d. Some traces of the custom of burying goods are found long after.}

The most probable account of it is this.^r 82 The children and their parents all lived together, and the goods of the father were supported by the joint labour of the whole family. | The master of the family, again, maintain’d them from this stock, which as it was maintained and procured by the labour of the whole family was also the common support of the whole. The master of the family had indeed the priviledge of alienating in his life time his stock; which^s the others had no claim to; but at the same time he could not alienate it at his death. All the members of the family came in for an equall share in it at his death, as they had all contributed their assistance to the support of it. No distinction was made with regard to sex; sons and daughters equally gave their assistance to the master of the head of83 the family, and for this reason were equall sharers in his possessions after his death. {So that on the whole it was the connection betwixt the children and other members of the family with the goods of the master of it, that gave rise to their succession,^t rather than the attachment of the master of the family himself, and the supposition of his will that his goods should be left to the persons to whom he was thus attached.—The members of the family did not take possession of his goods from this supposall of his will that they should do so, but they only continued their possession in what they had given their assistance in procuring and by which they had already been supported.—This is confirmed by what immediately follows.} The rules of succession have been pretty much the same in this respect in our country and amongst the Romans; excepting one considerable difference that was | occasioned by the state of the wife in the different countries. She was considered in the character of a daughter84 amongst the Romans {and came in accordingly for the same share in the inheritance as a daughter and was called by the same name, filia familias,} but is a more respectable person by the custom of this country. The reason of this shall hereafter be more fully explain’d.85 We shall first consider the order of succession amongst the Romans. We observed that the children all shared equally in the estate of the father or master of the family. But this is only with regard to those who were in the family. A son whas86 emancipated, and by that means seperated from the society, or one who had been given in adoption, one who was a captive, an exile, or capite deminutus, had no right to any part of the inheritance.87 A daughter who was given in marriage, whether she had been given with a portion or not, for the same reason took no share as she was then become a member of another society. {If she survived her husband the part of his inheritance came in^u to the stock of her father, and she, as she again made a part of his family, had a claim as before for her share.} Sons given in adoption in the same manner had no part; they were already provided for by being members of another | mans family and had no occasion to receive an addition. Tho when men get the power of conveying an estate by a testament they are often more willing to give their fortunes to those who are already rich, as they are their more respectable relations, than to those who are in lower circumstances.^v {This perhaps is not altogether just but it is what men are naturally inclined to.} Not only the immediate offspring of the deceased but also the grandchildren by a deceased son took part in the inheritance. (If the son was alive they had no claim, as he would get his share.) The reason of this was that in the more early and simple times when the demands of a family are few the sons do not, as in more luxurious times, seperate from the family of the father as soon as they are married; but they and their families continued in the same house and contributed their part to the maintaining a common stock. When therefore a father of a family died, the children who made a part of it succeded equally in it. But if it happen’d that a son had died and | left children, these, as they continued in the family, came in for the same share as the father would have had he lived. This connection betwixt the children of two brothers, as they all made a part of the same family, occasioned that marriages betwixt cousin germans should be looked upon as incestuous as well as those betwixt brothers and sisters. The foundation of the latter is that the great opportunity of intercourse betwixt them makes it necessary that all^w hopes of union betwixt them should be cut off; and for the same reason where the brothers lived in the family of their father the like prohibition would be necessary with regard to cousins. This we find is the case; in all nations where the marriage of brothers and sisters is accounted incestuous, that of cousins–german was originally accounted^x so also. This like all other customs often continues after the reason of it is at an end; it was so amongst the Romans long after the sons lived in seperate families | from their fathers. It was first altered by the people to gratify the whim of a tribune who had taken a fancy to his cousin–german.88 — Cousins german were accounted as brothers somewhat farther removed. Thus Cicero calls [calls] Quintus Cicero his brother, Quintus Cicero frater meus, natura quidem patruelis, affectione autem germanus.89 And it is to be observed <?that the words> that signify a cousin german are, as their termination evidently shows, originally adjectives. Patruelis and consobrinus, that is, patruelis vel consobrinus frater, a brother by an uncle or aunt.90 — If, for example, a master of a family dying should leave 3 grandsons by a predeceased son and, besides, two sons, the inheritance would here be divided into 3 parts; each of the sons would have a third, and each of the grandsons ⅓ of ⅓, that is, 1/9 of the whole estate. This, which <is> called sucessio per stirpes, to distinguish it from suc. per capita, seems to contradict the generall rule, propriores excludunt remotiores. But to this is answered, that they are indeed more remote and have less of the blood of the master of the family, but then they are considered here not as succeding by their own right | but as representing their father; hence it was also called successio per representationem.—In the Roman commonwealth this took place very soon, but in this country it was pretty late before it was established. This proceeded from the nature of the governments; besides severall other reasons which we shall consider hereafter, one which would be of considerable effect is that in this country it was established in favours of the nephews^y and in prejudice of the uncles,91 in favours of^z a boy and in prejudice of a man; that is, in favours of the weak and in prejudice of the strong. But on the contrary it was established amongst the Romans in favours of the strong and in prejudice of the weak; this would certainly make it much sooner and more easily brought about. A father of a family, dying, leaves a son and two grandsons by a predeceased son. The grandsons, as they had been in the same possession of the fathers stock as the son, would probably claim each an equall share in it after his death; but the uncle, on the other hand, would complain that he was by this means cut out of part of | lawfull inheritance^a by his brothers death; he had not only lost his brother<s> but had a less share of his fathers fortune than had he lived. On this ground the uncles as the stronger party would get it established that they should have the same part as if their brothers had lived. But the contrary was the case in the feudall governments.

In the same manner as grandsons, great–grandsons, if their father and grandfather were dead, came in for their share. Grandsons and other descendents by daughters took no share, as they were not in the family, nor their mother.—After the succession of descendents was established, that of the nearest adgnates92 was the next that followed. By this, when a [a] man who had no children died his inheritance was given to his nearest adgnate.^b This was not so much founded in the nature of things, as the families of two brothers, etc. would be seperate and the same connection would not subsist betwixt them as betwixt a father and his immediate descendents. {But tho’ it was not so much founded in the connection betwixt the heirs and the goods or the continuance of possession, yet there are severall incidents that would naturally introduce it. Thus if two brothers succeded to an inheritance, <?and> one of them [of them] died soon after, it would appear hard in this case that the surviving one should, by his fathers dying a^c year or two sooner, be deprived of one half of the inheritance; this would soon produce a custom that brothers should succeed; and for the reason mentioned afterwards this would soon be extended to cousins, etc.} It was accordingly introduced by a law93 | but this, as all other[s] laws which introduce a new connection or right, as this would appear to be, was inter[re]preted in the strictest manner; so that if the nearest adgnate did not choose to accept, it was not offered to the next nearest but was immediately seized by the fisc.94 This afterwards was extended to the agnates as far as the 7^th degree of their reckoning; afterwards the praetor, who was the judge of equity, gave the offer of it in like manner to the cognates to the 7^th degree also. {^d From the inclination we naturally have to square and compleat every thing, even when by this means we stretch the originall constitution; and thus it is that all laws that found any new right become in time of extensive interpretation.) But in all cases when there was no heir the fisc. claimed the inheritance, that is, it was adjudged to the publick, which always takes to itself all goods that have no master to prevent the scramble that would be made for such goods and the confusion that would ensue on^e this scramble. In the same manner in this country the superior, or if there be no other the king as the ultimus heres and superior of all lands, takes all inheritances that are without a representative. {It is to be observed that originally the successio per stirpes did not take place in the collateral succession. If a man^f dying intestate left a brother and two nephews, the brother took the whole inheritance. In the same manner nephews excluded cousins german and they again second cousins. If a man had 3 nephews by one predeceased brother, 2 by another and 1 by a third, these would each take ⅙^th part, as the inheritance here was given per capita; and neither succession per stirpes nor per representationem was allowed to take place. Justinian afterwards allowed that it should take place for one degree, that is, that nephews should come in with the brothers, cousins with nephews, etc. and so on.95 The reason that [v.100] successio per stirpes was not allowed amongst collateralls was that by this means the inheritance would be reduced to such small portions as would hardly be worth accepting. A man might easily <have> 20 or 30 cousins german and 40, 50, or more 2^d cousins.}

| In the earlier times, a son or any child could acquire nothing to himself as long as he made a part of the fathers family; all the produce of his labour went into the fathers stock, and when he died all that he might perhaps possess at that time fell back to the father as his own property. Emancipated sons indeed might have property of their own seperate from the fathers, but this the father at their death claimed, not as being the nearest of kin, but as being the patron, in the same manner as patrons claimed the inheritance of emancipated slaves.—Julius Caesar afterwards established in favours of his soldiers that what one acquired by serving in war should belong to them intirely without any claim on it by the father. This was called peculium castrense.96 The same was afterwards established with regard to what they acquired by the practise of the liberall arts. These, being less connected with the father, could be more easily seperated from him, and the same holds with regard to the pec. adventi.97 — Of all these the son had the power of disposing by testament. | It was necessary therefore that as the father had not the property of these, [that] it should be establishd that he should suceed as heir at law, as the son would be supposed to incline that his father should suceed if he had no children of his own. It was therefore 1^st established that the father on the death of his son who had no nearer^g heirs should take the whole inheritance. {This was afterwards extended to grandfathers, etc.} And it is to be observed that this succession, which is called^h successio ad scendentiam,98 would take the preference of the collaterall succession, as the father is more nearly connected with the son than the brothers were with one another; there beingⁱ a step betwixt the brothers, whereas there is no intervening one betwixt the son and the father.99 In this manner it continued till the time of Adrian, when, divorses being become very frequent, it often would happen that the husband and wife did not live together but had seperate families and seperate estates. It was therefore enacted that when a son died his fortune should be equally divided betwixt his father and mother.1 If either of them happened to be dead the | sucessio secundum lineas took place. That is, if^j the father should dye, and leave a father and mother behind him, the one half went to the mother and the other half was equally divided betwixt them, and so on, always going to the immediate ascendents of the person who if alive would have had the inheritance. This excluded collateral heirs even when they were nearer than the ascendents.—It followed also from the frequency of divorce that as the mother had also a seperate aliment from the husband so she could leave it as she pleased; and^k her children were considered as her heirs at law. So that at the same time that the mother came to succeed to her son, the son had also the benefit of inheriting from his mother.

Of all these three methods of succession, viz of descendents, collaterall, and of ascend[end]ents, the first would take place long before the others; it is evidently founded on the connection betwixt the heirs at law and the goods of the defunct. The other two are not indeed founded on the same principle, but on the supposed will | of the testator;2 which as we said^l could not be the case with regard to the succession of descendents. This sort is, as we said,3 in all countries prior to testamentary succession; the others again are always posterior to it and so might very probably take their arise from it and the supposall of the testators inclination in such cases as [as] he had made no will.

I shall now proceed to consider the order of succession which has prevailed in modern countries. We will find here that the succession to moveables is founded on precisely the same principles and has been in most respects the same as the order of succession in generall amongst the Romans; and indeed during the allodiall government of Europe the succession to land estates was directed in the same manner.

We shall then consider 1^st the order of succession to moveables. The father of the family dying, the moveable goods he had possessed were divided into 3 equall parts. One of these was given to the wife, another was | divided amongst the children {and for the same reason grandchildren by sons who were in the family, if any were, perhaps I think took part.} The 3^d part was considered as the part of the deceased; this part was at first laid out in charitable purposes to get mass said and other things of that sort, that they thought might tend to the quiet rest of the souls of the deceased, {as these appeared then to be the method in which he would incline to dispose of it.} But when these superstitious rites fell into disrepute, and the maintenance of the children appear’d to be the most pious use it could be applied to, this part also was given to the children, {except a little still reserved for those pious use<s>.} This division appears evidently founded on the same principles as the division amongst the Romans. The family was considered as consisting of 3 parts during the husbands life time, each of which had their share in the possessions, and this was still continued after his death, {this manner appearing to keep up in the most proper way the communio bonorum that before subsisted — — —^m and it was this third part alone that the father, after testamentary succession was established, could alienate by any deed at his death, altho in his lifetime he could spend every shilling of what should haveⁿ <been> the common support of the family; in every case,^o excepting that where the estate which had been left him was under the care of tutors.—The wife again had not the power of alienating any part during her husbands life, any [v.105] more than the children, all they poss<ess>ed falling back into the common stock. — — —} That this division also was founded on the connection of the children with the fathers goods, and not on the connection betwixt them and the deceased himself, will appear from this, that daughters who were given in marriage and were by that means no part of the family, had no share in the bairns–part, | as it is called in this country. In the same manner as emancipated sons amongst the Romans, so forisfamiliated4 sons who were precisely similar to them amongst us formerly took no part in the inheritance.—They were called so because for the convenience of both parties they did not live in the same house with their father, but having settled in some other place were no longer considered as a part of the family, and this without any distinction betwixt those who had received a portion at their removall from the family and those who had not; neither of them had any claim to a share of their fathers inheritance. It has indeed been establishd some time ago that a son shall not be esteemed as compleatly forisfamiliated unless he has given his father a compleat discharge of his share of his fortune.—^p In this case he has no claim for any share. But if he has not given this discharge, altho he has received a portion at his leaving the family, he^q is then to bring | his portion into what is called in England hotch–pot,5 that is, he is to join with the bairns part of the inheritance and take his share of the whole as if he had no portion before. Thus if an emancipated son had receivd a portion of 100£, <and> his father dyes worth 1500£ leaving 3 children besides, the bairns part is 500; to this he joins his 100£, and each of the 4 will have 150£. These statu<t>es, as they enact that a son shall not be considered as forisfamiliated^r unless he has given his father a discharge,6 show that formerly this word was of a more strict sense and that those who had left the family, whether they had received a portion or not, were considered as intirely forisfamiliated, and this is what the word itself seems to imply.

In England we will find the progress of succession has been very nearly the same.^s [The cannon law was what^t regulated succession amongst them and this being chiefly founded on^u the novells | of Justinian the order of succession was the same in most respects as that established by the 18 and 19 novell.7 — This was the legall distr] In the first periods the bishop[s], who was the ordinary in these matters thro the greatest part of Europe, had the distribution of every inheritance committed to his care; and as he was a holy man and therefore not considered as capable of acting amiss, he was not accountable to any one. But in time, when they had greatly abused this power, giving to themselves, that is, to the church, a considerable part of the estate in prejudice of the creditors, it was found necessary in the time of Edward the 1^st. to make the ordinary accountable <to the> creditors.8 This throwing a great deal of trouble upon them, they constituted commissaries to settle the distribution of inheritances; but these they made accountable to themselves for their administration, and by this means they insured | themselves of their share. To prevent this it was enacted that no one^v appointed commissaries should be accountable to the ordinary.^w But as the ordinary had still the power of choosing whom they pleased for their commissaries, these good bishops, who do not easily quit their power, used not only to make an agreement with the commissary beforehand in what way he should settle the inheritance, but even took surety for him, or made him out of his own private fortune disburse the summs they wanted to apply to their own uses, and left him to reimburse himself out of the inheritance, under the pretext of those pious uses. To prevent these contrivances it was also farther constituted that no one could be appointed a commissary but those who were nearest of kin to the deceasd. But as there might often be a considerable number in the same degree, as 6 or 7 brothers, 20 or 30 cousins, the ordinary had still an | opportunity of choosing whom he pleased of this number; and might in the same manner make a bargain with him beforehand. To prevent this, a constitution settling the distribution of goods <?was made> pretty much in the same manner as it is in Scotland.9 Before this regulation, the rule by which the ordinary called the relations to the inheritance was that establish’d by the cannon <law>, which being chiefly founded on the novells of Just. the method would be that appointed in the 19 novell.

The chief difference betwixt this distribution and that settled amongst the Romans was the great share the wife took in the inheritance. This arises from the difference betwixt the Christian and Roman marriage. Amongst the Romans the husband had the power of divorcing his wife on any pretence he thought proper. (This was indeed afterwards restraind to certain causes and the same priviledge granted to the | wife.) And divorces were always so frequent that the wife was greatly dependent on the husband and could not be considered as having any great connection with his goods. But some time after Christianity was established, marriages became almost indissoluble, as no divorce could be granted but by the spirituall court on account of some great transgressions. This rendering divorces not easily obtainable gave the wife a more respectable character, rendering her in a great measure independent on the husband for her support. She was accordingly considered as a considerable member of the family, who had the same interest in the common stock as the master or the children; and from this it was that the wife after the demise of her husband came in for the same share as either of the other two parts of the family. — — — — —

Another considerable odds arose from the difference of the constitution of the two states. — — The greater and lesser noblesse, i.e. the nobility and the gentry, were the only persons who could | have any thing to suceed to, as they indeed were the only ones who had any property. It is well known that the tenants were then in a state of villainage or slavery, and had no property of their own; whatever the<y> acquired went to their masters. It is as certain, tho’ not equally known, that the burghers and traders in towns, tho they might have some greater liberties, were also in a state of villainage. This is evident from the charters granted them in the earliest times, in which they have granted them the right of marrying when and whom they incline, of giving their daughters in marriage and succeding to estates, and other such like^x that plainly show those who [who] had them not must have been in a state of abject slavery; and in fact all the buroghs were absolutely dependent on the king or some of the great men in the neighbourhood. The only persons, then, in this state of the country, who had any thing to leave behind them were the | greater and lesser noblesse. The lower people would probably live in the same manner as the poorer sort in other countries; the sons would not leave the house of their fathers after marriage but [the] all their^y families would form one society. But they could have no weight in the establishment of succession as they had nothing to succeed to. The noblesse, on the other hand, who were alone capable of inheritance, were of too considerable^z a fortune and genteel appearance to admit of two families living in one society. That way of life would not suit with the pomp and state they had to maintain; {nor did the grandchildren after their fathers death return with their mother into their grandfathers family, but continued with their mother in their fathers house.} The law of sucession, as it must be ruled by their convenience, established succession in such a manner that those sons who were thus forisfamiliated should take no part of the succession, and far less^a could successio per stirpes take place when the parents had no right to the succession. Thus it was that the right of representation did not take place at^b those countries where | these^c customs prevailed. This rigour has however been softened with regard to the forisfamiliated sons in this country, and in England their children are allowed by order of succession to take their fathers part; this has not [yet] been introduced in Scotland as yet tho it may probably soon be extended to them also.

Another considerable odds that subsists betwixt the Scots law and the civill arose from the method of succession established by the feudall law in the succession to indivisible subjects; by the feudal constitution, as shall be explaind hereafter, the collaterall succession is preferred to that of ascendents. And from hence they imagined that collateralls were nearer to the inheritance than ascendents, and called them to the inheritance before <?> ascendents whatsoever. In this country, therefore, if a man dyes his brothers succeed him, altogether excluding his parents of either sex. In England it is otherwise. If he leaves a father, he takes the whole inheritance; and if he leaves a mother, she | comes in equally with the^d children.10 —There is this difference also^e betwixt the Scots and English law, that in Scotland the successio per stirpes never takes place; but in England grandsons come in for their fathers share. This difference, as well as an other that is made by the statute of distribution,11 are borrowed from the novells of Justinian by which those statutes are generally directed [by]; the difference is that in collaterall succession representation does not take place, whereas it is allowed in England in the same manner as we mentioned that Justin. had permitted it.

Monday Jan. 10^th. 1763

The method of succession therefore to all subjects, indivisible as well as divisible amongst the Romans, and to divisible subjects amongst the modern nations of Europe, for in most of them succession (ab intestato) is governed by the same laws, {There are indeed some varieties. In Blank in MS.^f females are not allowed to succeed. This is said to have been the case in Athens; but it is somewhat uncertain.12 In Rome we know females came in for the same share as males.} is intirely founded on the communio bonorum. This was the rule formerly in all the nations of Europe; the subjects of the deceased of all sorts were equally divided by the children. {The Goths, Hunns, Vandals, etc. all used that method of succession.} But now a different method is introduced, | I mean the right of primogeniture. As this method of succession, so contrary to nature, to reason, and to justice, was occasioned by the nature of the feudall government, it will be proper to explain the nature and temper of this constitution or form of government, that the foundation of this right may be the more evident.

When the barbarous nations of the north overran the Roman Empire, and settled in the western parts of Europe, property came to be very unequally divided. At the same time all arts were intirely neglected. This threw a great share of power into the hands of those who possessed the greatest property. It will be evident also that the balance of property will make those who are possessed of it have a far greater superiority in power, than the same share of property will give one in a more refind and cultivated age. In these times one who is possessed of 10000£ sterling per year may | be said to possess what would maintain 1000 men; if he was to restrict himself to a moderate allowance such as is necessary to support a man and^g furnish <?him> with food and cloathing. But we see that this is not the way men use their money. This ten thousand pound maintains only the man himself and a few domestic servants. The arts which are now cultivated give him an opportunity of expending his whole stock on himself. He has architects, masons, carpenters, taylors, upholsterers, jewelors, cooks, and other minissters of luxury, which by their various employments give him an opportunity of laying out his whole income. He gives nothing away gratuitously, for men are so selfish that when they have an opportunity of laying out on their own^h persons what they possess, tho on things of no value, they will never think of giving it to be bestowed on the best purposes by those who stand in need of it.13 Those tradesmen he employs do not think themselves any way indebted to him; they | have given him their time and labour equivalent to what they have received of him; and tho they may reckon it a small favour that he gives them the preference in his custom, they will not think themselves so greatly indebted to him as if they had received a summ from him in a gratuitous manner. This manner of laying out ones money is the chief cause that the balance of property conferrsⁱ so small a superiority of power in modern times. A tradesman^j to retain your custom may perhaps vote for you in an election, but you need not expect that he will attend you to battle. On the other hand when^k the western parts of Europe were first possessed by the barbarous nations, arts were in a very low state. Architecture and masonry were almost unknown; the men of the greatest property lived in houses little better than those in the remotest parts of this country. The other arts were all proportionably uncultivated. It was impossible for a man in this state, then, to lay out his whole fortune on | himself; the only way his14 had to dispose of it was to give^l it out to others. A man then who possessed a property equall in value to 10,000£ at this time would be able to maintain a thousand persons. This, as it rendered the whole of these people dependent on him, would give him vast authority. The lands he possessed could not easily be disposed of any other way than by parcelling them out to others; the possessors of these farms pay’d a small rent to the possessor rather as an acknowledgement of their dependence than as the value of the land. This rent again he could dispose of no other way than by bestowing it on those who came to his table. The rent of the land was accordingly paid in victualls; and the term farm lands signifies properly lands which paid victuals for their rent; the word farm signifying in the old Saxon or German language victualls;15 feu lands, feodum or feudum signifying lands that were held in another way afterwards to be explained. These farms, as the lord or great man could not consume them all himself, were eat about his house by those whom he enter|tain’d, and often a great part by the very tenents who had payd them. Hospitality was then such as we can now have no notion of; the lord entertain’d ordinarily about his house for 3, 4, 5, or 6 months in the year all those who held their lands of him. {And in the same manner as the lesser lords entertain’d their vassals, so the greater ones entertained them, and the king again those who depended on him; for (as shall be hereafter explained<)> the different lords were in time dependent on each other.} We read that the great Earl of Warwick dined at his table in his different manors in the country about 30000 persons every day in the year, of his dependants; this was in the reign of Hen. 7^th16 It is told too in commendation of the famous Thomas Becket, who lived in the time of Henry the 2^d, as a piece of great luxury and nicety, that he had always the floor of his hall strewed with rushes,17 that the nobles and great men who dined with him might not dirty their cloaths as they sat on the floor. This may at the same time shew us the immence hospitality of those times, and the great want of all sorts of arts that was amongst them. And if they were thus barbarous in the time of Henry 2^d we may conjecture what must | have been in the time of Alfred or Edgar, in comparison of which those of the Henry’s were polite and cultivated.—The hall of William Rufus, now called Westminster hall, is three hundred feet long and proportionably wide, and was then not reckoned too large for a dining room to him and the nobles who attended his court. As the dependents were in every respects so entirely maintain’d by these allodiall lords (as they were called) for maintainance and every thing they enjoyed, it was naturally that they should attend^m him <in> war and defend him when injured by the other lords or their dependents. And they were constantly about him, whether in peace or in war; in peace they were entertained at his table, and in war they were his soldiers. These vassalls, in the first establishment of this government, possessed their lands during the pleasure of their lord, and might be turned out by him on neglecting their attendance in war or any other transgression, and their farm given to any one the lord inclined. In this state they | continued for some time, till by the demand of the tenants and to secure their service, the lords granted them for lives, one or more as was agree’d. {These sort of farms that were held for a life were called beneficia, benefices, as those that were for pleasure were called munera. From this it is that the livings of the clergy were called benefices, as they are settlements for life.18 } Conrad the second, the German emperor, was the first who introduced the perpetual tenure, which was called feudum.19 In his expedition into Italy, his soldiers (that is, his tenants, for then there were no others) complained that as they were going on a dangerous expedition into a distant country from whence it was uncertain if they should ever return, the wives and children of many of them would be intirely ruined. To satisfy these complaints and make them easy as to their service, he assured them that their wives and their posterity should be certain of the possession of those lands. This custom was soon diffused over the rest of the west. There is no mention of the word feodum in the English law till a few years after the Norman conquest, nor in the French till after the time of 50 or 60 years after Conrad. These periodsⁿ are all somewhat posterior to that of the | introduction of perpetuall possession of lands by Conrad, abovementioned, and shew that the generallity of writers on the origin of the feudall government are mistaken when they give out that the feus were establish’d immediately after <the> destruction of the Roman Empire by the barbarians, as it was in the 5th^o century before these feus were introduced in Germany and some other countries, and abou<t>^p 500 and some more before it was established in Britain.20 After this time (as was hinted above) came in the distinction of the words feudum and allodium. Allodium is a barbarous word of uncertain etymology,21 signifying a farm or possession of any sort, exactly synonymous to the Latin words praedium or fundus. But when the feuda, feoda, now called fee lands from the word feu or fee, signifying a rent or hire (as a servants fee) <?>, those lands were denominated allodia that were free from this burthen and were held without any rent. At the same time the words which denoted the possession or holding of a farm were in like manner | altered from habere, possidere, to have, to possess, to tenere, to hold. This method of holding land soon spread over the most part of Europe, for such causes as it was begun in Germany. In process of time, too, when some of the lesser lords were incroached on by others and were not able to defend themselves, they had no other way of obtaining assistance but from other allodiall lords of greater power. This they could not obtain without some concession, and the one they agreeed to as most common was that they should hold their lands in feu from them. {This too was a less concession than if they had subjected themselves to hold of him^q lands as munera or beneficia. Besides in these barbarous times they are always very ready to come under contracts,^r possibly because they have no very strict notion of the obligation they are under to keep them.} These greater lords again being afterwards in danger from others or a combination were induced as their last resource to ask assistance of the king, and obtain’d it on the same conditions, viz. that they should hold feu of him. By this means it was, that in about 500 or 600 years after the destruction of the Roman Empire all the west of Europe^s was brought under the feudall government.

{N.B. it will be proper to read what is said of jurisdiction before the burthens the lords or superiors imposed in order to maintain their authority, as it is the end of this account.}^t

| It is to be observed that^u this form of government required that the possessors of estates should attend their lord in war, or in council in peace, so it was requisite that every estate should be filled by one who was able to perform those duties. Hence it came soon to be established that when an estate fell to a minor, the lord considered as his tutor took it up and disposed of it to some one who was capable of serving him. By this means the burthen of ward was introduced. And^v this view of considering the lord as the tutor of all the wards of his vassalls introduced also another burthen. For as it would seem a high affront for the pupil to marry without the fathers consent, so in this case it would seem somewhat more than affront, an heinous injury, for the pupil to marry without the consent of his lord and tutor who had the sole management of him. By this pretext, and also as they gave out that no one might marry into a family that was in enmity with the lord and by that means be withdrawn from his allegiance, they established | the burthen of marriage on the feudall vassalls, by which no man could marry without the consent of his superior. In the same manner as the burthen of wardenage was established, so likewise that of marriage; for as a woman could not discharge the duties of a vassall, it was necessary that the man she married should be one willing and able to perform these duties. For this reason it came also into use that no heiress^w could marry without the consent of the superior of the estate.

As the lord had once got the estate of a minor into his power, and as there was a procedure at the lords court necessary to reinstate the pupill when he came of age, the servants of the king or lord must be satisfied for their trouble, and such was their rapacity that it was necessary^x to settle what this summ should be, and this was in some places a | years, in others two years or more years rent. This was called the burthen of^y relief or sufferage. Besides these it was always taken for granted that failing of heirs the estate or feu should fall to the lord, or be escheated22 to him.—By these means all lands came at length to be holden primarily of the king and under him under the superior lords, with the burthens 1^st, of Hommage, that is, being his man or servant on all demands;^z 2^d, of Fealty or fidelity to him; 3^dly, of Knights Service, or the burthen of serving him in his battles; 4^th, of Wardenage; 5^th, of Marriage; and 7^th,^a of Relief; and 8^th, of Escheat.

It is to be observed that this government was not all23 all cut out for maintaining civill government, or police. The king had property in the land superior indeed to what the others had, but not so greatly superior | as that they24 had any considerable power over them. The only person who had any command in the remoter parts of the kingdom was the superior or lord. How then should one recover a debt at a distance, a merchant at London, e.g. from one residing at York? Or in Scotland, how could one have any thing restored to him at a distant place; when in neither case the king had any standing army, nor garrisons, nor in Scotland were there any towns than the poorest village in the Highlands. If he should send the kings messenger they would hang him up without delay, and the king could have no redress but by a civill war carried on betwixt him and the chieftan. The only method was to gain the good will of the lord; he, if he inclined, might by raising what they called the posse comitatus25 give him restitution; if not there was no remedy. By | this means it was established that all the lords and great men^b {The chief of the feudal ones likewise, as their possessions were sometimes as large as the others, had often the jurisdiction in their grounds as well as the allodiall — —} who held of the king should exercise the right of jurisdiction in their own country; allmost all the great men had this right. Till the time of the Rebellion in ’45 Mr. Cameron of Lochiel26 was in the common practise of exercising this priviledge, and even hanging or illegible word^c any offender. Thus al the lords held of the king by Hommage, Fealty, Knights Service, Wardenage, Marriage, Relief, and Escheat, having the same rights and that jurisdiction over their vassals.—We shall afterwards shew how the right of primogeniture <?>.

The severall great allodial lords (and the chief of the feudall in some measure^d ) were in all respects to be considered as little princes in the kingdom. (The feudalls indeed paid a small acknowledgement to their superior, and were subjects to severall burthens | but still their power was very great.) They made regulations in their territories, exercised[sed] jurisdiction on their vassals, and that frequently without any appeal to the kings courts. They had the power of carrying their vassalls to war and concluding a peace with their enemies. The law at that time (as we shall explain when we consider the origin of government) did not provide, nor indeed could it, for the safety of the subjects. Each principality, as they may very well be called, being in much the same state as the greater and lesser princes of Germany at this day, provided for its own defence; if they repulsed their enemies by their own strength so much the better; but if they could not they had no resource but to call the assistance of some of the neighbouring lords, or of the king, who was equally bound to defend his own territory, and if he was not able of himself and his vassalls he must in the same manner call the assistance of some of his allodiall lords. In this state a small property must be very insecure, as it could not defend itself and must be entirely depen|dent on the assistance of some of the neighbouring great men. Nowadays, the^e smallest property is as secure as the greatest; a single acre is as securely possessed by its owner as 10000, and as the law takes the defence of property under its protection there could not in this condition be any hazard in dividing an immoveable subject into as many parts as one inclined. But as the only security in the other case was from the strength of the possessor, small property could be in no security. If therefore an estate^f which when united could easily defend itself against all its neighbours should be divided in the same manner as moveables were, that is, equally betwixt^g all the brothers, it would be in no state of equallity with those to whom^h it was before far superior.

It has always been found a most detrimentall practise, and one that tended most to weaken the kingdom, to divide it amongst the children of the deceased king. This was the practise in France during the two first races of its kings. The whole kingdom was divided amongst | the sons which the preceding king had left. E.g. if a king had left two sons, each of theseⁱ took a half of the kingdom. But tho their territories were thus seperated, there^j were in the dominions <?of> each enemies to their sovereign. The brothers, being both bredd at their fathers court, would have formed acquaintances and friendships with the noble men thro the whole kingdom. When therefore the kingdom was divided there would be a party in each court formed for the other brother. They would by all means encourage and incite him, who was naturally enough disposed, to free them from a king they did not like and take the whole kingdom to himself, which he well deserved. While this was going on in the court [of the court] of one, the same schemes would be brewing in the others dominions, the same incitements and the same encouragements of assistance would be given him. In this manner civill wars betwixt the brothers were almost unavoidable, till the whole was brought into the power of one. We see accordingly that in the times of the two first | races of French kings, after the death of a king there were frequently 5 or six different sovereigns, but in 4 or 5 years at most they were reduced to one, and this surviving king was not only the conqueror but the murtherer of his brother. The same bad^k consequences which^l attended the division of a kingdom amongst the sons, would attend the division of an allodiall estate. The Gordon estate, or the Douglass one, could when under one head support itself against the neighbours, the Frasers e.g., but had this estate been divided amongst 7 or 8 sons, no one of these portions could have supported itself against the neighbours, or against the designs which would be formed amongst the others, without subjecting himself to some of those powerfull neighbours, who were able to defend him against injuries and perhaps could cope with the king himself. {It is to be remarked, then, that it was not the introduction of the feudal government and military fiefs that brought in the right of primogeniture; but the independency of the great allodiall estates, and the inconveniencies attending divisions of such estates. The time indeed of the introduction of this right and that of the milit. fiefs coincide pretty nearly, as it was not till about that time [v.133] that the inconveniencies attending on the division of these lands were sufficiently experienced so as to shew the necessity of introducing a practise so contrary to nature, and which met with so many other obstacles. The allodial government, as it subsisted only for 3 or 400 years, did not afford sufficient time for this. But after the introduction of the feudal govern., altho the great fiefs were not so independent yet they were almost equally liable to those inconveniences which had begun this right amongst the allodial estates.} But notwithstanding all these inconveniencies, the right of primogeniture was^m not established for | a considerable time after the introduction of the allodial government. But when the abovementioned inconveniencies had been for some time endured, it was found proper that the land estate should be given to one of the sons. When this was agreed on there was no doubt which of them should be preferred. The distinction that determined the choice must be something that could not be called in question; it could not be beauty nor wisdom, nor strength; these were all disputable; it would beⁿ seniority. This could always be known without any doubt. {Besides this, in barbarous nations where literature is little cultivated and wisdom can only be got by experience, age is much more respected than when letters, conversation, and other artificiall methods of acquiring knowledge are introduced. Father is the most [is the most] honourable title one can confer on another. Brother, makes one his equall; son,^o his inferior. Age is so much respected by some nations that the succession is not to the eldest son but the eldest of the family. Amongst the Blank in MS.^p Tartars at the death of the [v.134] king, a meeting is held to choose a new one, but this is no more than to enquire which is the eldest of the royal family.} This right however was not introduced very early, and no wonder; the younger brothers would think it very hard that they should be entirely excluded from their fathers inheritance and instead of being the equalls should become his subjects and dependents. The people too would be apt to take part with them and facilitate their seizing a part to themselves. By this means it was not till the 10^th or end of the 9^th. century that^q this right was introduced into generall | practise. We find that some of the lands in the end of the Saxons government were succeded to in this manner, {as the estate of the great allodial lords Leveric and Alric}27 but many more continued as formerly to be divided in the manner called Blank in MS.28 equally betwixt the sons. We mentioned before29 that this was continued for 2 races of kings amongst the French. In the later reigns of the second race it was more and more adhered to, and at length was firmly established. — —

But whatever difficulties there were in the introduction of the right of primogeniture, there would be far greater in the introduction of the right of representation or succession per stirpes. {It would even be impeded by the right of primogeniture being introduced before, as on that account the injury done to the sons would appear to be far greater.} If it was hard that the eldest son should exclude his brothers, they would think it hard that their nephew should exclude them^r after his death. That he who should naturally owe his safety and depend on them for his protection should be not only not dependent on them but, on the other hand, that they who were men should be subjected and dependent on one who might often | be a minor or an infant. {They would say, that by his repre<se>nting his father they could understand nothing but that he represented him in affinity; in age he could not represent him. His father was prefered on account of his seniority; but he had no such claim.} By these and such like motives the younger brother would be prompted to deprive^s their elder brothers children of the right of inheritance, and by this means it was long after the introduction of primogeniture ere the right of representation took place. The succession of the collaterals^t also was found to have its hardships as well as that by representation. {It often occasiond great disputes and contest about the succession.} It appeared hard that the minor should be deprived of the best part of his fathers inheritance because his father had died a few years before; had he survivd his brothers he would have inherited the whole without dispute. If he was of age to form any hopes, he must have formed a reasonable expectation of^u succession to his father.—It was objected also that one in this age could not perform the necessary duties to the superior. We see accordingly that this right was introduced by slow degrees and with con|siderable difficulty. The sentiments of the people were often divided betwixt those who claimed the succession on these different titles. The author of our old Scots law–book, the Regiam Majestatem,30 states it as a question, which had puzzled him not a little, whether the son of the deceased father or his brother should inherit his estate. For my part, it would seem rather that his son should retain the possession,^v and especially if he had done homage for the land to his superior. But in all cases, says he, it may be decided by single combat. The uncertainty of this right it was which gave occasion to the dispute betwixt Bruce and Baliol.31 The latter, by our account, would have the undoubted right, being come of the eldest daughter. But in that time the opinion, as we learn from the foreign authors who mention this dispute, was rather in favours of Bruce, as being a step nearer to the common stock. And Edward 1^st gave sentence in favours | <of> Baliol merely because he had made some concessions to him that could not be obtained from Bruce, who was of a far more generous and spirited temper. It was introduced the famous betwixt32 the houses of York and Lancaster. The claim of the house of Lancaster was founded on the right of representation; that of the house of York on the nearest step of the relation. There had been one precedent in favours of representation, and severalls against. In the time of the Saxons a manner of succession prevailed which would now appear^w very strange. The great Alfred was the third brother33 who succeeded, all the former^x having left child behind them. The Lancaster family always favoured the right of representation, as the more instances there were of it the stronger was their claim. The York family, on the other hand, being possessed | of the throne <?(> by the inclination of the people who began to doubt the right of the Lancastrians after they had succeded 3 or 4 times by representation) did all in their power to discourage it. However in time this method of succession has come to be established thro all Europe. But in some places but very late. In the German electors, the houses of Brandebourg, Brunswick, and Hanover have receivd it but very lately. When this is established in its full extent,^y which soon follows after it is once generally practised, there can be no doubt concerning the succession, as the descendent<s> of the eldest son exclude all others (whether the descendents be male or female in this country), and so to the next eldest son, etc.; this is the order observed by the royall family on the throne.—{And for the same reason there can be no objection to collaterall representation in this case, as it can allways be ascertain’d who is come of the eldest branch of the family, and to him or her the whole estate goes as it is indivisible, and he excludes all others of the same rank. But as we observd already this is otherwise in moveables, as they are divisible subjects.} As an instance of the difficulty of introducing this representation we may take the succession Blank in MS.^z of Don Sebastian34 to the throne | of Portugal, in preference of his brothers daughters. They said in his favours that as this right of representation was borrowed from the Roman law, they should consider what^a effect it had amongst them. This was that if any one died leaving, besides his children, grandchildren by a predeceased son, they should come in for the same share as their father would, and in every shape should represent him. Let then, say, this child^b come into his place as a son; but why as an eldest; the child can represent him in nothing but affinity; it cannot represent him in age and far less in sex. The father was preferred to the other brothers as being elder and superior in wisdom and age. But shall his daughter be preferred, who is inferior not only in age, but in sex. She should be farther from the inheritance than his sisters, as they are equall to her in sex and superior in age. This may shew the great difficulties that stood in the way of this right of^c representation and the great time it took to establish it.

In the first period of the feudall | government the succession of females was never allowed; for they could not perform any of the services required of those who were vassalls either of the king or his nobles; they could neither serve him in the field nor in the council; and as they could not inherit so neither could their descendents by their right. {Nor could it for the same reason be allowed of in the allodial governments, as the females could neither lead the vassalls to battle nor preside in council and exercise jurisdiction. But in time^d the military fiefs came to be considered in most respects as property, and the services of the field were not always required, but were^e dispensed with for a certain gratuity. This gratuity, which they called Blank in MS.35 , was often more esteemed than the performance of the actuall services, and new fiefs were given out on that condition. The lords or feudall chiefs did not now exercise the jurisdiction themselves, but by their steward. In this state of things females could succeed in every shape as well as males; they could pay the Blank in MS.35 and maintain a steward to exercise judgement on their tenents as well as men. From this time therefore females were admitted to the succession.} But afterwards when this sort of service was not so necessary, and the feudall government had in time rendered feudall lands nearly of the same priviledges with property, they came both to be inherited by females as well as males; and at the same time this would be extended to their descendents allied to the estate. Collateralls too by females were called after those allied by males.^f

After | the introduction of female succession, fiefs (or feus) became of two sorts, masculine and feminine. The masculine are those wherein the^g old Salic law is adhered to, and in which no females are admitted, neither are their descendents. In the feminine again females and their descendents are admitted, in defect of males. The royal family of France succeed in the manner of a masculine fief. The crown of Great–Britain, on the other hand, is a feminine fief; thus in the present royal family, the late Prince of Wales would have succeded to his father, but on his death it fell to his son, the present king, and failing him would have gone to his next eldest brother, and so on thro them all, and failing all male issue of him, to his daughters in order.36 Then in defect of them to the Duke of Cumbe. and his issue, and in defect of them to the Princess Royal and her sons and so on.^h | Some German authors talk of a third kind which they call mixt fiefs. In these the inheritance goes to the sons in succession and then returns to the descendents of the eldest son, and so thro them. Of this sort I can find no example in any country either in publick or private possessions. If it has ever taken place at any time it must have been only by an entail, which may establish this as well as any other foolish order of succession.

Thus it was that the rights of primogeniture and of representation and of female succession were established in the greater land estates, and now it is extended to all sorts of indivisible estates in the same manner in Scotland and England, excepting a fewⁱ cases to be mentioned in the next lecture.

We may observe here that though females were not at first admitted to the inheritance of the greater allodial and feudal estates, yet there were two sorts of inheritances | to which they were at all times admitted. These were, I^st, the inheritance of moveables to which they were admitted equally with males as a divisible subject which had no priviledges attending them nor any burthens imposed on them. Of this already.37 II, sockage, or sock lands.38 The great allodiall and feudall lords in letting out their estate gave the greatest part <of> it as military fiefs, for the service in war, etc. Other parts they gave either for a certain rent, or for the performance of certain works. These latter were called sock lands [lands]. Those who live in the country^j must keep some part of their lands in their own hand for the maintenance of the family. This land they did not cultivate by their own servants, but by the tenants who held in this manner and were thence said to hold by the sock. Of this method of holding there are still many remains in this country. Those who held in this way were always men of no great possessions in property; they [they] could have formed no reasonable | hopes, imagination, or expectation that he could of himself defend his possessions; for this he must depend on his master. There could be no reason here for not dividing the inheritance, as it would be as safe in the one case as in the other. And as females were at that time equally engaged in the country work as the men, there was no reason why they should be excluded, as they could do the service as well.^k Accordingly they were always held capable of the inheritance of sock lands, to which they were admitted as heir portioners.—Here I have a blank and you etc. ^ others have no more.39

Gap of three and one–half pages in MS.

| In some of the last lectures I have endeavoured to explain the different methods of succession ab intestato. These differ according as the subjects are divisible or indivisible. There are two generall methods of succession to divisible subjects; either 1^st., that where they are equally divided^l amongst all the children and the wife, she being considered in the same manner as a daughter; or 2^dly., where the wife takes one third and the children two thirds amongst them, one third as their own share and the other as the successors of their father. The first is that which prevailed [in] amongst the Romans and most ancient nations. The other is that which is universally in use in all the modern states of Europe.—In like manner there are two methods of succession in indivisible subjects, viz masculine fiefs, and feminine fiefs. These were exemplified in the succession of the crowns of France and England. It was observed also that the methods of succession in Scotland and England were not altogether either in the manner of masculine fiefs or feminine fiefs, but differed in | severall particulars from both and from one another. These differences we may observe are only to be found in the succession of collateralls or ascendents. In that of descendents there is hardly any variety; men are more explicit with regard to the latter as it is more founded in nature. But in the other their opinion is less fixed^m and may be turned different ways by many different circumstances.—{And many of them are accordingly very whimsicall, as those with regard to halfblood, and the relation by the mother, and the succession of ascendents.} All these varieties betwixt the Scots and English law with regard to succession, as well as severall differences in the order of succession betwixt them and the civil law, have been already considered, and the causes which brought them about explained from the nature of the severall constitutions. There are two other methods of succession different from both these. The first is called gavelhaide.40 This took place amongst some of the Saxonⁿ principalities, and does so still in soccage^o lands in severall parts of England. By it the inheritance was equally divided amongst the sons exclusive of the daughters, and only came to them in failure of sons. This is said to have | been the law amongst the Athenians prior to the time of Solon; but the matter is not altogether certain. The other method, which is still in use in some parts of England as well as in some other countries in Europe, is called burrow English;41 by this manner of succession the youngest son inherits all that the father was possessed <of> at his death. The reason of this seems to be that in the farm lands, as soon as a son was come to be a man, his father got him a farm and settled him in it. In this manner it had often happened that the sons being all forisfamiliate before the death of their father, excepting the youngest, who generally staid with his father, the whole inheritance devolved on him. The judges, who must regulate their sentence by the common practise, finding it to be^p in common use that the youngest son should succeed to all his father died possessed of, established this as the rule in the severall burrows and counties where they found this practise.

| We come now to treat of testamentary succession. There is no point more difficult to account for than the right we conceive men to have to dispose of their goods after their death. For at what time is it that this^q right42 takes place. Just at the very time that the person ceases^r <?to have> the power of disposing of them; for the testamentary heir has no claim or right to any of the testators goods untill the moment that he is dead; for till that time he can not even have any reasonable expectation of his possessing them, as the testator may alter his inclination. A man during his own life may very well be conceived to have the power of disposing of his goods; the very notion of property implies that he may abuse, give away, or do what he pleases with them. In the very beginnings of property it would be^s uncontroverted that a man might make what use he pleased of a wild beast he had caught in hunting.—But how is it that a man comes to have a power of disposing as | he pleases of his goods after his death. What obligation is the community under to observe the directions he made concerning his goods now when he can have no will, nor is supposed to have any knowledge of the matter. {For what reason is it that we should prefer the person made heir in the testament to the heir at law if he has one.} The difficulty is here so great that Puffendorff43 called in to his assistance the immortality of the soul. He says we allow the will of the deceased to take place supposing that he is still alive and wills^t in the same manner; and that out of regard to this will^u we allow his testament to be effectual. But we need not go so far to find a sufficient account of this.—The regard we all naturaly have to the will of a dying person seems to be sufficient to explain it. That period is of so momentous a nature that every thing that is connected with it seems to be so also. The advices, the commands, and even the very fooleries of the dying person have more effect on us than things of the same nature would have had at any other period. | We have a great reverence for his commands at such a time; and after his death, we do not consider what he^v willd, but what if he was then alive would be his will: we think, as we say, what would be his will if he should look up from the grave and see things going contrary to what he had enjoined. Suppose a man on his death bed calls his friends together and entreats, beseeches, and conjures them to dispose of his goods in such or such a manner, {to look upon such a friend in the same manner as they did on him or on his children, etc.}. They would afterwards be, as it were, forced by their piety to the de<ce>ased person to dispose of his goods as he desired; they would imagine what he would think were he to see them disposing of them in a manner^w contrary to what they were so solemnly intreated. But this piety to the dead is a pitch of humanity, a refinement on it, which we are not to expect from a people who have not made considerable advances in civilized manners. Accor|dingly we find that it is pretty late ere it is introduced in most countries. In the first ages of Rome no testament could be made, but by what we would call an Act of Parliament, viz a decree of the whole people assembled in the Comitia Calata, where he adressed them thus: Velitis jubaeatis, juveniles, etc., the will of the whole people appointing that such an one should be accounted as his son.44 So that it was rather an adoption than a testament; and we are told that this was only allowed in the case that a man had no children. It was natural for one in that condition to desire that some of his most intimate and dearest friends should possess his fortune and represent his family. Private testaments were not thought of till they were introduced by the laws of the 12 Tables, which borrowed it probably from the laws of the Athenians. Testaments were also | introduced by Solon into Athens,45 before his time under the laws of Draco.46

In the same manner no testament could be made in England for a considerable time {for more than the fathers share, that is, ⅓ of his property if he had a wife and children, or one half if he had no wife or no children.} Henry 8^th gave the liberty of disposing^x of the estate by testament, and now the whole estate may be given in that manner.47 In Scotland, no testament can be made with respect to an estate; it can only be disposed of by a disposition of the same sort as that by which property is transferred amongst the living.48 — In the savage nations of Asia and Africa testamentary succession is unknown; the succession is intirely settled; a mans estate goes always to his nearest male relations, without his having the power of disposing, by any deed to take place after his death, of the smallest subject. It is not till society is considerably refined that such respect is paid to the will of the decceased; piety to the dead (as it is called<)> is too refined a doctrine for a barbarous people. | But tho’ this piety to the deceased and regard to the will of the testator inclines us to dispose of his goods^y and obey his will for some time after his death, yet we do not naturally imagine that this regard is to last for ever. In a few years, often in a few months, our respect for the will of <the> testator is altogether worn off. A man who died 100 years ago, his will is no more regarded than if he had never lived. We do not naturally imagine that a man can settle how his estate shall go for any longer time than that which immediately follows; as soon as he dies and the heir succeeds, they are possessed by another who has the same <?power> of doing with them as <he> pleases as the deceased had. There are therefore no such thing as entails amongst the Romans for a long time after testamentary succession had been introduced. The only thing that bore any resemblance to it was the vulgar and pupillary substitution. The former was establishd that if it should happen that an inheritance was so burthend that the man whom he intended for his heir, who perhaps was rich,^z might not incline to accept of, | and the trouble attending it, the testator was in this case allowed to name severall heirs in order {that he might not die without some one as his heir, which was reckon’d discreditable}. But then this went no farther than one succession, for if any one accepted it went intirely to him and his heirs, the rest being altogether excluded. The other kind provided that if a mans nearest relation or any other49 whom he designed to institute heir was under tutors and consequently incapable^a of making a testament, and if there were severalls whom he had a greater affection for than the heir at law to this pupill, the testator was then allowed to appoint an heir to him in case he died before the age of puberty. But in this case also it did not extend^b above one degree.

In time however entails were introduced amongst the Romans, and as this was brought about by means of fideicomisses,50 it will be necessary to explain their nature and origin. By the ancient marriages, which were performed either by confarreatio or coemptio, the wife became intirely the slave of the husband.51 He had absolute power over her, both of death and of divorce. Wives | could not at that time give any great adition to a mans fortune. They brought either nothing with them or a very small matter, as seven acres of land were accounted a large estate. The wives were accordingly not much regarded in those times. {It was also introduced that if a man lived with a woman for a year and day without being three nights absent, she became his wife in the same manner as those who had been married by the former ceremonies. She became his wife usu, and was prescribed in the same way as any other moveable.} But when the Romans became from a very poor a very wealthy people; and the women, who are in all polite and wealthy countries more regarded than they are by a poorer and more barbarous nation, came to have large fortunes which they could conferr on their husbands; they could not submitt, nor would the friends allow it, to the subjection that attended the old form of marriage. They therefore made certain concessions to one another; the husband, on consideration of the use of such large summs of money as they might sometimes receive, gave up some parts of his authority, and the woman on the other hand gave him the use of her portion during his lifetime. There articles were drawn up in a^c writing called the instrumenta dotalia,52 which as I shall shew hereafter,53 | like the priests form of marriage, was what chiefly made the difference betwixt^d wives from concubines, which chiefly consists in this, that the children of the latter can not inherit and are counted no ones relations. By this marriage the husband and wife might seperate whenever they inclined; and least the wife usû conveniret in manum54 she was directed to be absent from her husband three nights every year, which interrupted the prescription.

As these procedings seemed very great infringements on the ancient disciplines and severity of manners to Cato, Oppius,55 and other such austere disciplinarians, they did all in their power to curb them by bringing the wives into their former subjection; and this they attempted by bringing their portions to be of a less value. For this purpose the Voconian law56 was made. Some are of | opinion that after it no one could leave to a woman above ¼ of his inheritance, but for this their can be no good reason given. In some way or other however it is certain the property of women was restricted; {For as women are reckoned incapable of publick offices or the exercise of the more lu<crative> employments, the only means by which they can be possessed of considerable fortunes is succession, and when this is restricted their property must of consequence be diminished.} and it is also evident that contrary to the opinion of Perizonius57 and others, this law must have extended to successors ab intestato as well as testamentary successors, otherwise it might have been evaded by dying intestate. To evade this law, which would <be> very dissagreable to the rich and powerfull, they contrived that e.g. am58 who inclin’d to leave all his fortune to a daughter or to his sister, should appoint some friend whom he could trust as his heir, and desire him solemnly to restore it afterwards to his daughter. For tho they might hinder death bed deeds, the law did not extend to donations inter vivos. This was called a fideicomiss.—For some time these were not reckond absolutely binding, tho the not | performing the promise which was often express’d in the testament was reckon’d dishonourable. There were however many instances of their not being observed,^e some of which are mentioned by Cicero.—The first who made them absolutely binding was Augustus. He, being left heir in this manner by Blank in MS.59 , not only performed the fidecom. himself but made all those to be made thereafter, or lately before, absolutely binding, and appointed the consuls to take care of the observance of the law. This office was afterwards conferred on a pretor fideicommissarius.—This constitution in effect abrogated the Voconian law, and so we find it is hardly ever mentioned after the time of Augustus.

The praetor fideicomissarius had it assigned him as his province to take care that the fidieicomisses were duly observed, and that the three persons concerned should perform their part. These three were the fi|deicommittens, who made the fideicomiss; the haeres fiduciarius, who was bound verbis prec.60 by the testament to give it to the 3^d person, called the haeres fiduciarius.61 In these fideicomissary inheritances the heir might be bound either to restore the inheritance either at such a time in his life or he might be desired to give at his death to such an one the sum respected.^f By this latter method it might be continued for a very long time after the testators death. This was indeed restricted to 4 degrees, by a novell of Valentinian and Severus;62 but for som<e> considerable time there was no restraint, viz from the time of Trajan or thereabouts, when fideicomisses had come to have their full force, till Valentinian. But notwithstanding this,^g entails in the full extent of the word never^h were in use amongst the Romans. They do not seem to have allowed that a man should leave his estate to Varro, e.g., failing him and the heirs of his body to Seius, and so on thro the whole of his children or other relations. This if it had been allowed would have been a compleat entail. | This is however the case in most of the nations of Europe. The German nations which overran Europe had no notion of testamentary succession; every inheritance was divided amongst the children; the only people amongst them {after the introduction of Christianity} who had any such idea were the clergy. They wereⁱ under a necessity of understanding Latin that they might read the liturgy; they had likewise generally read the book wherein the Roman law was contained, and had from it, as well as the practise of the country where they had been educated, contracted a reverence for the will of the dead. This they enculcated to their people, as a piece of piety not to be dispensed with, and by this means gradually brought it about that the will of the deceased with respect to his goods or^j heirs should be observed. As the clergy were the introducers of testamentary succession, so they were reckond the most proper persons to judge of it, as being best skilled; and accordingly each bishop | in his diocese, and even every priest in his parish, had formerly the judgement of all testamentary succession. In England indeed before the Conquest, the bishop and the sheriff of the county, which then was the same extent with the diocese, sat in judgement together.63 He, according to the custome which prevaild in his own country, took this altogether from the civil judge and appointd the spiritual court to be the sole judge in all testamentary matters. In the eastern parts of Europe, where the civill law was that by which the magistrate was directed, the clergy had no concern with testaments, and Blank in MS.64 expressly prohibited testaments being presented to the bishop.—The bishop however continues to be the judge in all testamentary matters. The making of entails came in also in some degree soon after the introduction of testaments. When once the notion of the will of the deceased directing his succession for one step <?> it was no difficult matter to^k | suppose that it should extend farther. They however found some evasion of all entails before the statute de donis65 was made, which appointed that all gifts of the testator should be valid in the very manner he appointed, and that no one of the heirs of entail could alienate what was entaild to him and his heirs, and that when it came to the last heir of entail it should not be alienated but fall to the crown. They have however contrived to evade this statute, which is in effect abrogated with regard to entails by what is called the statute of fine and Blank in MS.66 . In Scotland however entails that are valid in law may be made if they are done without^l exclusive, restrictive, or irritant clauses.67 The first of these prohibits him from leaving the inheritance to any but those specifi’d, but does not prohibit its being68 alienated. The 2^d. proh Gap of five or six lines in MS. |

Intails made in this manner were by a statute in the time of James the 2^d in 168269 made altogether binding, and are so at this day.—{It has been a question whether deeds of this sort made before that time are to be accounted valid or not. The most of our eminent lawyers70 determine that they are not.—It may be a question too whether they may not even now be looked on as null at common law. An eminent lawyer says <?>} Now there can be nothing more absurd than this custom of entails. That a man should have the power of determining what shall be done with his goods after his death is aggreable to our piety to the deceasd, and not contrary to reason. But that he should have the power of determining how they shall dispose of it, and so on in infinitum, has no foundation in this piety and is the most absurd thing in the world. There is no maxim more generally acknowledged than that the earth is the property of each generation. That the former generation should restrict them in their use of it is altogether absurd; it is theirs altogether as well as it was their predecessors in their day. It would <be> altogether absurd to suppose that our ancestors who lived 500 years <ago> should have had the power of disposing of all lands at this time. But this | is no more than would have been the case had they had the power of making entails; and is what we claim to ourselves over the estates of our posterity, not only for 500^m years but for ever. The difficulty is to find at what period we are to put an end to the power we have granted a dying person of disposing of his goods. There is no evident time at which this should cease. And it has been this uncertainty that has introduced the right of making intails into all the countries of Europe. The best rule seems to be that we should permit the dying person to dispose of his goods as far as he sees, that is, to settle how it shall be divided amongst those who are alive at the same time with him. For these it may be conjectured he may have contracted some affection; we may allow him reasonably then to settle the succession amongst them. But persons who are not born he can have no affection | for. The utmost stretch of our piety can not reasonably extend to them.

This right is not only absurd in the highest degree but is also extremely prejudiciall to the community, as it excludes lands intirely from commerce.—The interest of the state requires that lands should be as much in commerce as any other goods. This theⁿ power of making entails intirely excludes. I shall hereafter shew more fully, only hinting at it now, that the right of primogeniture and the power of making entails have been the causes of the almost total bad husbandry that prevails in those countrys where they are in use.—When land is in commerce and frequently changes hands it is most likely to be well managed; those who have raised a fortune by trade or otherwise have generally money besides what they lay out. They are generally also men of scheme and project, so that they for the most part have both the desire and the ability of improving. Those on the other hand who possess old family estates seldom | have any money besides.^o The anual luxury and expense of the family consumes the income. We see accordingly that lands which lie near great towns, which frequently change masters, are much better cultivated than those which lie at a distance from them and continue long in one family.—The estate of a great family stands very little chance of being farther improvd than it is at present. The lord has nothing to lay out upon it and the ten[en]ants are not^p in the state which would induce them to improve. If this estate was divided into a number of small possessions each^q having a seperate master, it would soon be cultivated to a high degree. Farms set out for long leases or feus^r are those which tend most to the improvement of the country. Short ones, as leases at pleasure, can never induce the tenent to improve, as what he lays out will not be on his own account but on an others. But even in long leases the tenent has perhaps a third part of his End of Volume One of MS. | ii.1 income, to pay as a rent. This is a great discouragement. But were all these farms converted into property, the land as being all cultivated by the masters would soon be well improved. And this would soon be the case were it not for the unnaturall right of primogeniture and this of entails, supported by nothing but the vanity of families.

Monday January 17^th. 1763.

I come now to the last method of acquiring property, viz voluntary transference. To this there are two things necessary: 1^st., the will of the proprieter or transferrer, distinctly signified, that the thing should be transferred to the transferré; and II^dly, tradition, that is, that <the> thing the property of which is transferred should be put into the power of him to whom it is transferred. The will of the proprieter, without transference, can signify only that he has a design of giving the property to the other; but unless the transferre has got the subject once into his power he can not be said | to have got the property of it. As occupation, by which property is originally acquired, can not take place^s unless the subject has been brought once at least into the power of the occupant, and becomes by that means seperated from the common^t ones, so a thing that is the property of a certain person^u can not become the property of another unless it be given into his power.

As the will of the proprieter and tradition are both absolutely requisite, so the effects are also different when they are seperate and when they are both conjoined. The declaration of the proprieters will conveys to the transferreé (if we may be allowed the expression) a personall action against the proprieter, by which he can demand and compell him to fulfill the engagement he has come under; but does by no means give him a real right to the thing of which the proprieter made the declaration; that right is acquired only when tradition is joined to the declaration of the pro|prieter. (For we are to observe that tradition [without that tradition] without a declaration [without a declaration] of the will of the proprieter can constitute no right to the thing transferred.) If e.g. a man should sell one his horse and receive^v the price, should even show him the horse in the stable, but did not deliver him into the power of the byer, if he should afterwards sell and deliver him to an other, the first purchaser would have an action against the seller for the price and what damages he might have sustain’d, but he could not claim the horse from the 2^d byer, as he had never properly been in his possession. But if after the bargain was concluded the proprieter should deliver the horse into the power of the other, and if he should only touch the reins or any other way signify his having got him in his power, but should afterwards desire^w the proprieter to keep him for some time, and the^x seller should in that time sell him to another, the first purchaser could then claim him as his (by a real action) from | any possessor. Grotius71 disputes the constant necessity of tradition, affirming that there are some cases where the^y bare will of the proprieter is sufficient to transfer the property. The instances he gives are, when the property of the mortgage is transferred to the mortgagee, of the pawn to him who has it pledged, of the depositum or trust to the trusteé. In all these cases, he says, the will of the^z proprieter without any tradition transferrs the property. But let us consider for what purpose is it that tradition is required and what end it serves;^a for no other cause than to give the transferree the power over the subject. Now in all these cases the subject is already deliverd into the power of the person to whom the property is transferred; the pawn broker is already in possession of the pledge, the trustee of the thing trusted, etc., so that in all these tradition is unnecessary, because it has already preceded the will of the proprieter to transferr the property. He quotes also a law of the Wisigoths, a barbarous nation who settled in the south–west of France, which enacts that property should thereafter begin from the time of | the delivery of^b {a contract or writ of livery, which when writing came to be in use was taken in place of a verbal declaration.} But we find the following part of the law, which he has not quoted, that the legislator, tho willing to begin property from the declaration of the proprieters will, yet he found this not easily reconciled to all the different circumstances. For in case that the transferree should die before the tradition was made, he determines after some hesitation that the property of the subject should remain with the proprieter and his heirs; whereas if the property had been transferred from the delivery of the writ the property must have belonged intirely to the transferree and his heirs, without any connection with the former proprieter. We are to take notice also that as the laws of these nations were regulated by the clergy, they were formed on the plan of the cannon law, that is, on the novelles of Justinian, to which the cannonists chiefly adhere;^c both of which laws, as well the imperiall as the civill, endeavour to extend the effect of contracts | and obligations of all sorts much farther <than> they naturally do, or would have done amongst a barbarous people left to their own disc<r>etion. {The ancient Roman law plainly affirms that property is transferred only usucapionibus and traditionibus.72 } We can easily conceive in what manner the tradition of moveable subjects should be performed,^d as a horse, a book, etc., as these subjects can easily be put into the power of the transferree. But it is not so easy to conceive how the larger subjects, as houses or land, should be transferred by tradition, as the other can not take possession of every part of these. The way in which this has always been performed is by a symbolicall tradition; as the^e delivery of the keys of the house and the opening of the door give the possession to the transferree. In the same manner, the keys of a granary. In this country when a crop is sold, if it be standing the delivery of a single stalk, or if it be cut down of a single sheaf, is supposed to give possession of all the stalks or all the sheaves. | In the same manner the tradition of a land estate is made by the delivery of a turf and a stone; and if it be to be held by esquirage, a staf<f> and a shield. Bacculus et parma are delivered along with it.—{In England a land estate may be transferred with<out> the transferree’s being actually upon it, by its being only pointed out at a distance; but this does not serve for a delivery unless he afterwards take possession of it.—In England also it is necessary that when one alienates an estate the new acquirer should be infeft by him in every part, if it so happen that it should not be contiguous. But in Scotland the levery of one part serves to convey the property of the whole, whether the severall parts lie in the s[h]ame shire or not. For every one in the same manor (or baronny or lordship) is supposed to know what is doing in all the different parts of it, and in the same manner all in the same shire are supposed to know what is doing in it; and for this reason also there is but one registration required. — — —}

It is to be observed here that in the first times of the feudall government, when it was in its full vigour, no vassal whether of the king or of any lord could alienate his lands without the consent of his superior, either to hold of himself,^f or to hold of his superior in the same manner as he did. For as they held by military tenure, it was not just that they should have it in their power to alter the persons who should be his servants. It was however pretty soon introduced that the vassals could give their lands to others to hold of them, tho they were prohibited from alienating the right they had to it.—In the same manner as the vassals were prohibited from alienating the right they had to the use and profit of the land, so the superior was prohibited from alienating the property he had in the land without the consent | of the possessors, whether they held by the noble tenures of military service or by the ignoble ones, as soccage, which was before explain’d.73 For if they were of the noble sort, it would not only be hard that the master whom he should serve was to be at anothers disposal, but also it would often happen that his master, having been at variance with any of his neighbours, might make peace with his enemy, who dropt his resentment against the master but perhaps retained it against the vassall, who by this means would often have been ruined. If they held by the ignoble tenures the 1^st argument is equally strong, as they held their lands^g for ever [as]; or even altho they held but for their own life time, as was the case in the first beginnings of the feudall government.—There were in this manner two properties conjoined in the feudal governmen<t>, one of which was vested in the lord and consisted in certain casualities or services which he had a title to from the vassall, | and the vassal had on the other hand the benefit of the land and its fruits, in his own property; and (as is the case of all conjunct proprieters<)> neither of them had the power of alienating their part without the consent of the other. When the vassal designed to alienate his property, in any part of his possessions, he must surrender it into the hands of the superior,^h 74 either in Blank in MS.75 or in favorem. In the first case the land returned into the intire property of the proprietor, who was thereafter vested both in the domin. directum et utile. In the other case it was resigned to the superiors in favor of some third person who was to hold it in the same manner as the present vassall did, and to whom the superior was desired to transfer it. In this later case if the superior should not incline to transfer it to the person specified, it returned to the vassall in the same manner as it was before, notwithstanding of the surrendering. The consent of the superior was at first altogether voluntary. The 1^st case in which he was obliged to grant his consent wasⁱ that the estate might be sur|rendered to creditors. After this was enacted, it might easily be brought about at any time that the superior should be obliged to grant his consent. For the vassal who had a mind to alienate his estate had no more to do^j after he had received the value of the estate than to grant a bond to that extent to the bargainneé, to whom as a creditor adjudger the superior was obliged to grant the lands.—On the other hand the superior came in time to have the power of alienating his part of the^k estate without the contour Blank in MS.76 of the vassal. This was gradually introduced after the fiefs came to be considered as property and the superiority only as a small burthen, and when the vassals were not intirely dependent on the protection of their superior but were protected in their part of the property by <the> law of the land, whatever master they were under. In this case their contour77 of the vassall need not be looked on as so absolutely necessary. We may observe here also that in England the consent | of the superior to the alienation of the vassals land was very soon dispensed with; and it was but of late that the contournement of the vassal was not thought requisite to the superior. On the other hand in Scotland the cont Blank in MS.78 of the vassal has been thought unnecessary for 300 or 400 years, whereas it was not till the end of 16 or beginning of the 17^th century that the method of alienation by the purchaser claiming to be infeft by the character of a creditor adjudger <?>; and this is the form which is in some measure still kept up.

There was^l a method of transferring property lately^m in use in England wherein tradition was not necessary. It was thus introduced. In the feudal government, the landholders being often called out to war and obliged to leave their estate, they found it necessary in order to preserve their estates to transfer the use of it to some persons who should possess it till they came to claim it. When this was the condition of uses, the bargainer who sold an estate might begin79 continue the use of the estate to the | bargainee but could not be considered as possessing it for him. And if he should during the time of this use sell it to another person, the bargainee would have a personall action against him for the value of estate he had had and for damages, but would have no real action for it, a quocunque possessore. But when it was declared by the statute of Uses80 that use continued possession, tradition was no longer necessary as it theⁿ possession of the former proprietor, who came then to be considered after the sale as the bargainees servant or attorney, was the same as if he had possessed it himself, and when he took actuall possession of it it was not^o considered as if he took possession of what had been an others till that time^p but only as a continuation of his own.—The bargainer possessing it for him from the time of the sale.

There is also another method of transferring property now in common use in England where no tradition is requisite; viz. by lease and release. That is, the bargainer gives the bargainee | a lease of the estate he designs to alienate in his favours for a certain gratuity, reserving to himself certain burthens and services; of these he releases by a subsequent deed, wherein he declares that he shall be free from all the burthens or duties he had reserved to himself in the preceding lease. From that time then the bargainee becomes fully proprietor of the estate. This is the method generally in use in England,^q or rather a method where the method by sale and use is joined with it. For it being often inconvenient that the bargainèe should come and take possession of the estate betwixt the making of the lease and the release, it is now customary that the proprietor shall be supposed to possess it for him.

Having now gone thro all the 5 different methods of acquiring property, I come to consider the 2^d species of real rights, viz.

| SERVITUDES.

Servitudes are burthens or claims that one man has on the property of another. The Romans considered servitudes as being either real or personal; i.e. as being due by a certain person or by a certain thing. They divided them also into servitutes urbanorum praediorum and servitutes rust. praed. The 1^st are those that are due by one farm in the country to another, as servitus aquae, etc. The other such as were due by one praedium in the town to another. It is to be observed that all servitudes were originally personall; and this will easily appear if we consider the manner in which they have been introduced. Thus to take a common instance, we shall suppose that the farm of one man lies betwixt the high way or the market town and the farm of his neighbour. Here it will be very convenient if not highly necessary that the possessor of the former farm should have the liberty of a road thro the farm of his neighbour. This he may obtain for a certain gratuity from the possessor; and take his obligation to grant^r him | that liberty in time to come. This^s would be given him not as being such a man but as being possessor of such a farm, and would be stipulated not only for him but for his heirs and successors likewise. And if he should afterwards sell or dispose of his farm he would account that liberty as a part of his possessions, and demand some reasonable compensation for it from the purchaser as well as for the farm itself.—But let us suppose that the proprietor of the servient farm should dispose of his farm, and that he should according to agreement with the owner of the dom. praed.81 take the purchaser bound to grant him the liberty stipulated; that the farm in this manner passes thro three or four different hands; and that the 4^th possessor refuses to grant him the liberty stipulated.^t In what manner shall he compel him to perform it. He is bound indeed to the third possessor, but not to him, so that the dom. prae. dom.82 can have no action | against him. He can only come at his right by raising an action against the first possessor, to make him perform the obligation he had come under. He again might compell the 2^d, and he the third, and he the 4^th; or he might raise an action against the 1^st to oblige him to cede to him the obligation the 2^d had come under, and then the 2^d the 3^d and so on. To prevent such a multiplicity of actions, which would often be very troublesome, it came to be enacted by^u actio servitia, and afterwards by the^v actio quasi servit.,83 first that some and afterwards that the greater part of servitudes should be consider<ed> as real rights.

There were a great number of different servitudes amongst the Romans, both urbane and rustic.84 Amongst the latter are jus itin. act. and via jus aquaehaust. and ad aquam appellendi, etc. 2^d, jus stillicidii, tigni injiciendi, oneris ferendi, etc.85 Most of these besides many others are in use amongst us. { The life rent or 2^dly the use of a house or other subject, as the opera servorum, may also be considered as servitudes as soon as it is lawfull, as it certainly may be, to sell a superiority with such a burthen.} It is to be observed that all feudall hold|ings^w may be considered as servitudes and in like manner were at first personal. The vassals at first held their lands by military and other such service during pleasure or for lives,^x and were intirely dependent on the proprietor of the land. The property was vested in him and the other had only the use of the land for the time he pleased or for the number^y <?>. After the feudal government was introduced and the holdings came to be^z hereditary the dominium directum was still in the hands of the superior; the vassal, for the smallest defect of service or trespass on the property of the superior or other land which he had not in his holding, was liable to be turned out and his lands forfeited to the superior. The lands could not be alienated to another without the consent of the superior and the performance of the same services on the part of the new vassall which the former one had payd him. In the same manner the heir could not enter to an inheritance unless he performed homage and swore fealty to his superior, and if the heir | happen’d to be a minor he could not enter to the inheritance, but the whole profits of the estate during his^a minority fell to the superior, nor could he reasume the estate unless he payd the relief, which was at first arbitrary. From this it evidently appears that the property was lodged in the superior burthen’d with a servitude to the vassal which in effect was only personall, as the holding was so precarious.—But in progress of time (by a progress we shall explain more fully explain’d^b <)> the vassal came to be more secure in his estate; the casualties due by the vassal were converted into a^c setled^d rent or escuage,86 and the relief was fixt to a certain sum, which were all of very small value compared to the value of the estate. {Which they paid either to the king or to some one who held of him, for all in time held of him either mediately or immediately.} So that here which ever of them we consider as having the dom. dire. the vassal had the profit,^e which was burthend only by a small servitude due to the superior. In the same <manner> | as these above mentiond, all other valuable and necessary servitudes came to be reckoned real; those that are of less value being only for pleasure are now, and were amongst the Romans, considered only as personal. We shall by and by show that this conversion begun with a sort of servitudes which of all others should have^f last, and inde<e>d ought never to have been a real one.

All burthens on property, as they can only have taken their rise from a contract, must have originally been personall, as was said, for a contract can produce nothing but a personall right. They became real only by the intervention of the law. This holds equally with regard to the 3^d species of real rights, viz

Pledges

That is, a subject^g which is given or pledged to an other for the security of a debt due to him. Now if this subject was to be any way abstracted so that the pawnee had it not in his power to make his payment, from whom could he claim | it? If he should claim it from any possessor he would^h refuse to restore it; as he was not the proprietor so he could have no action against the possessor; the only way was for him to demand it from the pawner, who could as proprietor claim it a quocumque possessore. To prevent this troublesome circuit it was established that pledges should be esteemed to constitute a real right. The difference betwixt a pawn or pledge and a hypotheque is that in the former case [that in the former case] the thing from whence the security is given is put into the hands of the pawnee, and in the other case it is allowed to remain with the pawner. This distinction may be as well considered as being a division of pledges into those of moveable and small subjects and of immoveable ones.ⁱ Moveables when pledged are generally put into the possession of the pawnee. Thus if one wants to borrow 5 guineas he gives the lender his watch which may be worth 10,^j and tells him that if he does not pay it he may keep that watch. | Now there is nothing in such an agreement which can properly be called unlawfull, for the parties can make any agreement they incline with regard to the disposal of their own property. If they made this agreement there can be no reason why they should not stand to it. It is a well known maxim that uti contrahentes verbis nuncupaverant ita jus esto.87 The agreement of alienating^k the subject may be considered as a wager that {they should pay against such a time, as^l people in low88 circumstances are very ready as they commonly expect that they will be able to perform more than what they find is the case.}

Now in these cases, before^m the lex commissoria,89 if the payment was not made at the time appointed, or if there was no time specified, in a certain time after the payment had been demanded the whole pawn fell to the pawnee, to the great loss of the pawner as these pawns would often be of much greater value than the debt and interest could amount to. But it being found that this was allmost always the case, as debtors are often inclined to please themselves when the creditors do not push them, and for this <?reason> are generally inclined to be slow in paying the debts, it was enacted as more equitable that if the debt was not payd at the time appointd or in a certain | time after it was demanded, [that] the pawn should not from that day be the pawnees but that he should be allowed to sell it at a reasonable price, and take payment of principall and interest and the costs of his suit, {the rest being restored to the pawner or his heirs.} This is the case too in Scotland; but in England the pawn brokers as they are called, but more properly the pawn–takers, as they do not deal in broking, if the pledge be not redeemed, which is often not easily done, as they take a most extravangt interest, at the day appointed or before the death of the pawner, take the whole subject pawned. So that neither the persons themselves nor their heirs have any claim against him. For as the persons who enter into such agreements, who would pawn their cloaths, etc., are not inclined that their transactions should be known, there90 is commonly known, as it is an evident sign of their poverty and low circumstances <?>. The licensce of pawn brokers is therefore, as shall be shewn hereafter, one of the greatest nuisances in the English constitution, especially | in great cities. With regard to immoveable pledges the constitutions in Romeⁿ and Scotland are the same as with regard to moveables. An heritable bond on an estate does not commonly bear any time at which payment shall be made, but only that it shall be paid when demanded. Therefore in a certain time after the demand the creditor may sell the estate, having it adjudged to him for the principall and interest and a 5^th part of what was due at the time of demand as costs and damages. In England on the other hand if the debt was not pay’d at the time when it was demanded, the lands or other immoveables fall immediately to the mortgager; but by the statute law all lands^o are redeemable for forty years, and then prescribe. But the Chancellor declared that in this case he will allow the pawner to redeem them for twenty years,91 counted from the time the debt was demanded. Besides these that are constituted by agreement there were amongst the Romans a great many tacit hypotheques, | many of which are received amongst us. But all of these have no other effect than to constitute a preferable claim to the person who has such a hypotheque. Thus one who lets a house has no other security for his rent than the furniture and goods of the tenent, from whic<h> he can take his payment preferably to any other creditor. Anciently in this country he would have had an preferable^p action not only againstt those goods which were in his own hands but preferable to all others. After the cultivation of lands by villains or slaves was not used, the most common sort <of> farms were those which held by what is called steel–bow, and in French Blank in MS.92 . The method was that the landlord when he set the land at the same time gave him a plough of oxen, 5 or 6 yoke, which he was obliged to return^q as many and of equal value according to the judgement of some honest man. At the end of every harvest the lord and the tenent divided the crop equally | sheaf by sheaf. In this case the lord had equall property in all his goods and crops,^r and if he alienated any part of it without his consent, and before he had got his payment, he could claim it as his own from any possessor. This method of letting land, which as shall be shown hereafter is one of the worst that have ever been in use, is now laid aside in most parts of this country, unless some of the remoter parts, but is that which is practised over more than 5/6 of France. But even after that^s method of^t letting land came to be laid aside, the landlord was still considered as having a property in the goods so that he could claim them if sold without his consent. This however has not long ago been restricted by a decree of the Court of Session, continued by Act of Parliament;93 so that now the land<l>ord has only a preferable debt to all other debtors, but can not [but can not] claim the goods if alienated without his consent, especially if the purchaser be bona fide, that is, had no intention | by his bargain to defraud the landlord of his rent and had entered into no such scheme with the tenent.94 (The Romans had also many other tacit hypothecs, which are not admitted by our law. Thus if one borrow’d money with which he built a ship or a house, as there was something in this house or ship which was purchased by his money, so he was supposed to have a preferable claim^u to that of all other debtors. But this is not now admitted.) (The lands in Italy were in the same manner cultivated either by servi, slaves which were the property of the landlord, or by coloni, which were in much the same condition as the holders by steel bow or Blank in MS.95 ; and the landlord had a joint property with the colonus and consequently could <?claim> the goods alienated before payment without his consent.<)>

We come now the 4^th real right, viz — — —

| Exclusive Priviledges.

The four real rights treated of in the civil law are the three we have already mentioned, Property, Servitude, Pledge, and fourthly, Haereditas, or Inheritance.

It is plain that this can not be considered as a different species of real right after the heir has entered to the inheritance, for then he has the same right that the defunct had and is considered as the same person, having full property in every respect. It can be in no other case than during the time^v betwixt the death of the last proprietor and the entrance of the heir that the inheritance can be considered as giving a new species of a real right. Now what right is it that the heir has before his entrance? No other but that of excluding all others from the possession untill he determine in whether he will enter heir or not. Before this determination the other heirs who follow after him can not have any claim for the | inheritance, but after his refusall the subsequent heir has the same right as he had. If therefore inheritance is to be considered as a real right, all other exclusive priviledges have the same title, and appear evidently as well as it to be real rights. Some of them are founded on^w natural reason, and others are intirely the creatures of the civil consti<tu>tions of states. This of inheritance is evidently founded on natural reason and equity. There are however some others that owe their origin to it. Thus if one who has a right to hunt starts a deer, and when he is in pursuit another comes in and takes this deer before he [he] has given over hopes of catching him, this 2^d person appears evidently to have acted contrary to good manners and may accordingly be punished by the forest laws. It can not however be accounted a breach of property, as that can not begin till the beast is actually brought into | the possession of the pursuer.96 If after that time he should take away the beast this would be considered as a theft or a robbery.—The trespass here is plainly against the exclusive priviledge the hunter has to the chase or pursuit of the beast he has started.—^x In the year 1701 an English man[ner] of war came up<on> some French merchantmen under convoy of a man of war, and when he was engaging the war ship a Scots privateer came and pi<t>ched up<o>n the merchantmen. The captain of the man of war sued the privateer before the Scots Privy Council which then subsisted; he represented that without he had engaged the war–ship the privateer could never have taken the mer. men, and that if he had not come up they would inevitably have fallen into his hands. He therefore demanded they should be restored. The Privy Council agreed | and adjudged the privateer to restore them, specifying that he had been guilty of a breach of property.97 But if they had spoke properly they would have said that he had been guilty of a breach of an exclusive priviledge. For if he had broke property he would have been sued not for restitution but have been tried as a pirate, yet <?that> was not the case. The breach was of the exclusive priviledge one has to pursue and take the ships he spies^y and^z chases. Had the ships been in tow of the man of war and he cut them off in the night, this would have been piracy and a breach of property.

The greatest part however of exclusive priviledges are the creatures of the civil constitutions of the country. The greatest part of these are greatly prejudicial to society. Some indeed are harmless enough. Thus the inventor of a new machine or | any other invention has the exclusive priviledge of making and vending that invention for the space of 14 years by the law of this country,98 as a reward for his ingenuity, and it is probable that this is as equall an one as could be fallen upon. For if the legislature should appoint^a pecuniary rewards for the inventors of new machines, etc., they would hardly ever be so precisely proportiond to the merit of the invention as this is.^b For here, if the invention be good and such as is profitable to mankind, he will probably make a fortune by it; but if it be of no value he also will reap no benefit. In the same manner the author of a new book has an exclusive priviledge of^c publishing and selling his book for 14 years.98a Some inde<e>d contend that the book is an intire new production of the authors and therefore ought in justice | to belong to him and his heirs for ever, and that^d no one should be allowed to print or sell it but those to whom he has given leave, by the very laws of naturall reason. But it is evident that printing is no more than a speedy way of writing. Now suppose that a man had wrote a book and had lent it to another who took a copy of it, and that he afterwards sold this copy to a third; would there be here any reason to think the writer was injured. I can see none, and the same must hold equally with regard to printing. The only benefit one would have by writing a book, from the natural laws of reason, would be that he would have the first of the market and may be thereby a considerable gainer. The law has however granted him an exclusive priviledge for 14 years, as an encouragement to the labours of learned men. And this is perhaps as well adapted to the real value | of the work as any other, for if the book be a valuable one the demand for it in that time will probably be a considerable addition to his fortune. But if it is of no value the advantage he can reap from it will be very small.—These two priviledges therefore, as they can do no harm and may do some good, are not to be altogether condemned. But there are few so harmless. All monopolies in particular are extremely detrimental.—The wealth of <?a> state consists in the cheapness of provisions and all other necessaries and conveniencies of life; that is, the small proportion they bear to the money payd, considering <the> quantity of money which is in the state; or in other words that they should be easily come at. Its poverty again consists in the uncomeatibleness or difficulty with which the severall necessarys of life are procured. Now all monopolies evidently tend to^e promote the poverty or, which comes to the same thing, | the uncomeatibleness of the thing so monopolized. Thus for example if one should get an exclusive priviledge of making and selling all the silk in the kingdom, he would as he had it at his own making greatly increase the price; he would perhaps lessen the quantity made to a tenth part of that now in use; and would raise the price nearly in proportion; and by this means he would make great profit at a less expense of materialls and labour than can be done when many have the same liberty. The price of the commodity is by this means raised, and the quantity of this necessary, ornament, or conveniency of life is at the same time lessend, so that it becomes doubly more uncomeatible than it was before. The same bad consequences follow from all other monopolies. The establishment of corporations and other societies who have an exclusive right is equally detrimental. The severall corporations in towns | have all an exclusive priviledge of exercising that trade within the liberties of the town, {no one being allowed to take up a business but who has served an apprenticeship in the town; formerly no one but whose father had been a burgher.} Now, e.g., the corporation of butchers have the sole liberty of killing and selling all the flesh that is brought to market. Here the priviledge is not vested in the person of one man, but as the number is fixt they will readily enter into compacts to keep^f up the price of the commodity and at the same time supply the market but very indifferently with flesh.—In the same manner the bakers, the brewers, the tanners, etc. have all the exclusive priviledge of exercising the severall trades.—Now^g these priviledges must be of a great hurt to the community is very evident, as it makes all sorts of necessarys so much the more uncomeatible. {Besides this the goods themselves are worse; as they know none can undersell them so they keep up the price, and as they know also that no other can sell so they care not what the quality be.} This has never been doubted. But that they are hurtfull to the corporations is not so generally acknowledged. But it is no less true. If there was but one corporation in a place, the profits of that society would be immense as they would be in a state the most profitable of any,^h | that of bying cheap and selling dear. But as there are always a great number of such corporations where there is one, the priviledge comes to be of no value. They sell theirⁱ commodity dear, but then they bye every thing else dear also. He hinders indeed this concourse to the market of those who trade in his goods, but at the same time the others hinder the concourse which would be if the trade was free of all other traders; in which the price of every thing would be at the proper and naturall standard, for if one was not inclined to sell at a low price another would. Besides by these corporations the number of inhabitants is greatly diminished; and any who would settle in the city are hindered from so doing. By this means there are generally two or three large villages in the neighbourhood of every city. If a corporation lessens the number of rivalls, it also lessens the number of | customers. These shall be more fully treated of hereafter.

I have now considered the severall real rights, not only property but also servitudes and pledges, and shown that these were originally merely personall rights, tho by the determination of the legislature, to prevent the confusion this was found to produce, they were afterwards changed into real rights. I have also endeavoured to shew that the severall feudall duties were all properly speaking servitudes, and make by far the greatest and most important parts of the servitudes in use in this country. That which is commonly distinguished however by the name of servitude, is indeed no servitude; it is^j the obligation that the possessors of some estates are under to grind their corn at a certain milne and no other. This they call being thirrle to the milne, and this burthen is generally called by the lawyers99 the servitude of thirrleage. But it is very evident that this is no servitude, but only an | exclusive priviledge. For that the severall estates in the neighbourhood should be obliged to grind at a certain milne can not be at all answerable to a servitude, which always implies that there is jus in re aliena constitutum. It is an exclusive priviledge of grinding all the corn that shall grow on a certain tract of ground. This is a priviledge that extends over all most all the low parts of Scotland; there is hardly any estate but what is thirlle to some milne. This in the present state of things is one of the old constitutions which had much better been removed; and of this sort there are many. But notwithstanding of this, it may have been very convenient in the first constitution or settlement of milnes. A wind or a water milne dispatches the work much easier and in less time that it could be performed by the hands of men. When therefore some persons set up these machines for the service of the neighbourhood, it was necessary that they should some way <?be> secured in a reasonable profit; and for this end the neighbours for a greater or less distance bound themselves and their heirs to give their work | to that person; and by this means secured him in a tollerable subsistence. But such constitutions at this day are not only altogether useless but very detrimentall, as they discourage industry and improvement of the arts. It is in many places a very considerable grievance and a great burthen on the persons who are under it. And from this it probably has been that the lawyers called it a servitude, meaning that it was a burthen.

In the same manner^k the exclusive privileges of corporation which, as I endeavoured to shew, are now detrimentall to the community, but <?to> the individualls of each corporation may have at first been very convenient and all most necessary. When a set of men agree’d to live together in a community, it was necessary that they should have the power of defending themselves against the incroachments of their neighbours, (that is) that they should have a jurisdiction of a certain extent, which we find accordingly that all cities have. | By this means a provision was made for their^l safety, but it was also necessary to provide for their safety in prosperity. It is^m found that society must be pretty far advanced before the different trades can all find subsistence, that is, before those trades which do not immediately procure food of some sort, as bread, flesh, etc., or even most of these, can be depended on for a subsistence. A carpenter or a weaver could not trust intirely to his work in that way; he would only take in this trade as a subsidiary one. And to this day in the remote and deserted parts of the country, a weaver or a smith, besides the exercise of his trade, cultivates a small farm and in that manner exercises two trades, that of a farmer and that of a weaver. To bring aboutⁿ therefore the separation of trades sooner than the progress of society would naturally effect, and prevent^o the uncertainty of all those who had taken themselves to one trade, it was found necessary to give them a certainty of a comfortable subsistence.— | And for this purpose the legislature^p determined that they should have the priviledge of exercising their seperate trades without the fear of being cut out of their livelyhood by the increase of their rivalls. That this was necessary therefore in the 1^st stages of the arts to bring them to their proper perfection, appears very reasonable and is confirmed by this, that it has been the generall practise of all the nations in Europe. But as this end is now fully answered, it were much to <be> wished that these as well as many other^q remains of the old jurisprudence should be removed.

Having now finished all I shall advance at present with regard to real rights, I proceed to consider:—

PERSONAL RIGHTS

That is, the right one has to demand the performance of some sort of service from an other. The former or real rights are by the civillians called jura in re. These are called jura ad rem; or jura personalia; and are | defined to be facultas vel jus competens in personam quo aliquid facere vel dare teneatur.1 It is evident from this that all personall rights must take their origin from some obligation. Now obligations are of three sorts. They proceed either 1^st, from contract; or 2^dly, from what the civilians call quasi contract, that is, the obligation one is under^r restore to the owner whatever of his property has come into his possession either voluntarily or otherwise; or 3^dly, from some injury (or delict) he has done what is his.

We shall first consider the obligations which arise from contract or agreement; and before we consider them, it will be proper to consider^s what it is in^t a contract which produces an obligation to perform the thing contracted.2 Now it appears evident that a bare declaration of will to do such or such a thing can not produce an obligation. It means no more than that <?it> is the present design of the person who makes such a | declaration to do so and so; and all that is required of him to make such a declaration lawfull is sincerity, that is, that it be really his intention at that time to do as he said. If he should afterwards be induced by circumstances to alter his intention, we could not say that he had violated an obligation; we might indeed^u if he did so on slight grounds accuse him of levity, and being easily turned and altered in his designs. The only thing that can make an obligation in this manner is an open and plain declaration that he desires the person to whom he makes the declaration to have a dependance on what he promises. The^v words in which we commonly make such a declaration <?are> I promise to do so and so, you may depend upon it. The^w expectation and dependance of the promittee that he shall obtain what was promised is hear altogether reasonable, and such as an impartial spectator would readily go along with, whereas in the former case the spectator could <?not> go along with him if he formed any great expectation. | If I should say that I intend to give you voluntarily £100 next new years day, but make this declaration in such a manner as plainly shews I don’t intend you should depend upon it, and expressly say, ‘You need not depend upon it, but this is my present design’, the spectator could not here imagine that he to whom I made the promise would have any reasonable expectation; but this without doubt he would, if I should plainly declare that I meant that he should depend upon it.—We are to observe here that the injury done by the breach of a contract is the slightest possible; at least the slightest one can well account to require any satisfaction. It is a common saying, that he who does not pay me what he owes me, does me as great an injury as he who takes as much from me by theft or robbery. It is very true the loss is as great, but we do not naturally <look> upon the injury as at all so heinous. One never has so great dependence on what is at the mercy or depends on the good faith | of another as what depends only on his own skill. The spectator can not think he has so good a ground for expectation of the possessing it. We accordingly find that in the early periods of every society those crimes were punish’d much more severely; in those times no punishment was inflicted but on the more heinous crimes, such as murther, robbery, and theft and other such which were breaches of the peace and disturbed the order of society. All trials in early times were carried on by the whole people assembled together; and this was not so much to inflict a punishment as to bring about a reconciliation and some recompense for the damage^x the injured party may have sustained. Even in case of murther the chief business was to procure some concessions from the murtherer in order to attone for the injury done the friends of the deceased, and on the other part to mitigate the resentment of the friends of the murthered person. When all trials | were thus carried on by the assembly of the whole people, which must have been attended with many inconveniences in calling the people from their necessary employments, none but the most important causes would^y be brought into judgement. The injury arising from the breach of contract would not be thought of consequence enough to put the whole people to the trouble which trials then necessarily occasioned. Besides this there are^z several reasons which greatly retard the validity of contracts, as^a the uncertainty of language. Language at all times must be somewhat ambiguous, and it would be more so in the state of society we are talking <?about>. This must render it very difficult to conclude with exactness the intention of the contracting parties, and determine whether it was their inclination to produce a reasonable expectation or only to signify a design which they had at that time of acting in such a manner. | 2^dly, the small value of the subjects which in an early period would be the objects of contract, would make it not of great consequence whether they were binding or not; and 3^dly, the small number of occasions in which they would be requisite.—We find accordingly that in the first periods of society, and even till it had made some considerable advances, contracts were noways binding. Blank in MS.3 of Damascus, an author quoted by Stobaeus (where we have many passages from him very useful with regard to the state of society in the first periods of it) tells us that among some nations in the East Indies no contract was binding, not even that of restoring a depositum, that in which the obligation seems to be strongest as the injury in the breach of it is most glaring; {and they gave as th<e> reason, that by so doing they avoided a multitude of lawsuits which would^b the validity of contracts follow immediately.^c } Aristotle4 tells us also that even as far down as his time, there were severall states in Greece where the validity of contracts was not acknowledged, and that both^d to prevent the multitude of judicial proceedings, and also because, said | they, one who enters into a contract trusts to the fidelity of the person and is supposed to have trust in him. He has himself to blame therefore if he is deceived, and not the law which {does not give him redress.} We see also from our old book the Regiam Majestatem, and from Glannmores book5 which was wrote in the time of Henry 2^d, that contracts were just beginning to be regarded at that time, both in Scotland <?and in England>. The Kings Court was then established and took notice of some of the most necessary ones. The author of the Reg. Maj. however tells us that, in matters of so small importance as contracts are, the Kings Court seldom interests itself.6

If we consider now the reasons why contracts were not binding, we will discover also the causes which gradually introduced their validity. The 1^st thing I mentioned which obstructed their being allowed to be binding was the uncertainty of language; when therefore this was removd the objection could no longer have any effect. We find accordingly that the first contracts which were binding were^e {those wherein the intention of the contracter was plain and uncontroverted; that is, such} as were con|ceived in a certain set form of words which it was agreed expressed the design of the contracter that the other should depend on the performance of what was contracted. {That it was this reasonable expectation of the contracter to whom the promise was made which constituted the obligation appears pretty plainly from this, that for some time after these contracts were reckoned binding the breakers of them were not made liable to perform the thing contracted, but only to pay the damages he might have sustained by the dissapointment of his expectations.} These were called verborum obligationes or verbal contracts.7 They were performed by a set form of words, called stipulationes; on both sides, the question was solemnly asked and solemnly agreed to. Thus in the settling of a dower, Annon manus causeos spondes mihi cum tua filia nomine dotis: Spondeo: Et ego accipio.—In Scotland at this time all contracts of whatever sort are equally binding; a bare promise produces an obligation at law.—This proceeded from the ecclesiasticall law. They at first introduced the custom that contracts of the sort above mentioned should be binding;^f not only obliging them to perform the engagements but also enjoining them ecclesiasticall pennances; and even threatening them with excommunication, which at that time was a very | terrible punishment as it not only banished them from all Christian society but also forfeited their estate to the crown. These constitutions soon rendered the contracts effectuall; and to these the ecclesiasticks soon added all contracts whatsoever. In the same manner as all other constitutions introduced by the clergy so the judgement of all matters regarding contracts was by the people, who payd them a very great veneration, devolved back upon them. This veneration however was not a blind superstitious one as we are now apt^g to imagine, but a very rational one. The clergy were at that time the chief support of the peoples rights. The civill law of the country was at that time very imperfect, and the cannon or ecclesiasticall law, tho far from perfect, was much preferable to the other; and it was by this the clergy were directed. Their judgements would therefore be most equitable. The whole right of testamentary succession | proceeded from them, as well as the obligation of contracts. They were <the> only obstacle that stood in the way of the nobles; the only thing which made them keep some tollerable decency and moderation to their inferiors. The people saw this; they saw that if that body of men were oppressed, they would be oppressed at the same time. They were therefore as jealous of their liberties as of their own, and with reason paid them a very high degree of veneration. Thus an ecclesiasticall court, which in a country where the regulations of the civill government are arrivd to a considerable perfection is one of the greatest nuisances imaginable, may be of very great benefit in a state where the civil government is baddly regulated; just in the same way as corporations may be very advantageous in a low state of the arts tho of the greatest detriment when they are carried to a considerable length.8

| After these verball obligations the next that were introduced were what are called real obligations.9 We are to observe here that the word realis has very different significations when applied in different ways. Thus a real right is a right to a certain thing in whatever condition. A real servitude, servitus realis, is not a^h servitude upon a certain thing, for all servitudes are due in that manner, but a servitude which is due to a person not as being such an one but as being the owner of such a farm; it is said to be due to such a thing. Here again a real contract is not one which gives an action for a certain thing, but one in which there has some thing been actually done. {As an other hindrance of the validity of contracts was the small value of the subjects into which they could enter, so whenⁱ property came to be very valuable they were^j of too great impo<r>tance to be overlooked, as^k contracts might then extend to a very great value.} These were very soon made binding, as otherwise when a part of the contract was fu<l>filled on one side, if the other did not fulfill his part the loss would have been too considerable. Of this sort were mutuum, a loan, | dipositum, pignus, etc. These when^l one part of the contract was performed became binding for the rest. But if there had been no part^m performed the verball agreement was not considered.

The extension of commerce also added several contracts to those already binding. In the first stages of commerce, when it was confined to those at no great distance and amongst them was not very extensive, all sort of commodities were purchased by immediate exchanges. One man gave an other money and got wine, or gave one corn and had <a> horse in exchange, in the same manner as trade is carried on at this day amongst the negroes on the coast of Guinea. At this time no contract could be made but amongst those who actuallyⁿ uttered the words^o by which the contract was comprehended. An oath can only be taken from | one who actually delivers it from his own mouth. A written and signed oath is of no effect. Writing is no naturall expression of our thoughts (which language is,^p ) and therefore is more dubious and not so setled in the meaning. Oaths we may observe are most in use amongst barbarous and uncivilized nations; as they are there thought necessary to signify plainly the will of the person; as the language is not fixt in its meaning; and in the state of the greatest barbarity, an oath is thought necessary to confirm every thing that is deliverd. Contracts (as I said) at first could be only made^q betwixt parties who were present; contrahitur tantum inter praesentes non autem inter absentes.10 But when commerce was more extended, it was found necessary to extend the power of making contracts. A merchant11 | at Rome wanted to bye corn of one at Alexandria, but this by the old constitutions he could not do unless he had been present and delivered the money. But that trade might go on the more easily, it came to be in use that all the more necessary contracts were considered as binding, and that whether inter praesentes or absentes. In this manner emptio venditio, locatio conductio, societas, and mandatum were all considered as binding obligations. That is, a contract of sale; one where a thing is hired for a summ of money; societas, a contract of copartnership; and mandatum, whereby one give<s> another a commission to do so and so in his name. These as being most necessary to commerce were alltogether binding; others of less importance were never made binding by the Roman law, they saying that | when those which were necessary were so, there was no great matter with regard to the others. And indeed these would be very extensive. Thus loc. conductio might include the settling a factor, etc., and so of others. These were called nominati contractus, as they had a particular name by being frequently in use; and the others which were not so much in use and had no particular name, innominati. — — —

Friday. January 21^st. 1763.

In my last lecture I endeavoured to shew in what manner the obligation of contracts arises; that it arose intirely from the expectation and dependance which was excited in him to whom the contract was made. I shewed also that declaration of the will or intention of a person could not produce any obligation in the declarer, as it did not give the promittée a reasonable ground of expectation. It is the dissapointment of the person we promise to which occasions | the obligation to perform it. What we have solemnly promised^r to perform begets a greater dependance in the person we promise to than a bare declaration of our intention. But the dissapointment occasion’d by the breach of a promise depends on two causes; not only on the solemnity and certainty with which the promise is made, but also upon the importance of the thing promised. The dissapointment occasioned by the breach of a promise of little value is not so great as when it is a matter of more importance. If one promised to drink tea with me tonight and did not fullfill the engagement, I would not be so much dissapointed as if he^s paid me a summ of money he owed me.12 We see accordingly that all sensible men have measured the obligation one is under to perform a promise by the dissappointment the breach of it would occasion. Thus if I promised to drink tea or walk at the cross with one, and, something intervening, could not conveniently do it; tho’ I had made this promise in pretty solemn terms yet the matter itself is of so small importance that the dissa|pointment can not be great. If I did not fulfill it^t I might very reasonably be thought to have acted amiss and in an ungentlemany manner; and might perhaps be thought to have put a slight affront on the person, but not such^u an injury as would merit a very high resentment, or give a sufficient cause for a suit at law.

On the other hand if I had come under an engagement to pay a summ of money, as a debt, this may be of such importance to the person as may^v if not performed dissapoint and perplex him considerably. All such contracts are therefore thought binding by every one; whereas trifling engagements, though they ought in good manners and fair gentlemany behaviour to be performd, yet the injury occasioned by the breach of them, nor the crime of the breaker, are never looked on as so heinous.

We may observe here that the obligation to perform a promise can not proceed from the will of the person to be obliged, as some authors13 imagine. For if that were the case a promise which one made without an intention to perform it would never be binding. If I promised to pay you | £10 tomorrow, but had no intention of performing, this promise according to the doctrine abovementioned would be noways binding, as the promisor did not will that he should be under any obligation. But such promises are and have universally been acknowledged to be as binding as any others, and the reason is plain: they produce the same degree of dependance and the breach of them the same dissapointment as the others.—Nor can the obligation to fullfill a contract be probably derived from the obligation to veracity which most writers14 on the law of nature and nations assign as the cause of this obligation; nor the crime of a breach of a promise from that of the breach of veracity. For all that veracity can extend to is either what is past or what is present. If one tells what he realy thinks to be true with regard to the past and the present state of things, this is all that the man of the greatest veracity can require of him; with regard to what is future veracity can have no effect, as knowledge does not extend to it.—Besides, it can never happen that a less crime should be | of a greater.15 Now it is evident that the breach of a contract or promise is a much greater crime than that of the breach of veracity. If we see one whom we know makes a common custom of telling lies and making up wonderfull and amazing adventures to entertain the company with, we may justly look on this as a very low and despicable character, but we do not consider him as being guilty of a very great crime. A man of this sort may often have a very strong sense of the obligation of a contract; and we would do him a very great injury if we should conclude from this way of talking that he would pay no regard to his promise or contract.—If a man should engage to do me some considerable service, his failing in which would be a great dissappointment to me, and should in this promise act sincerely and realy have an intention to perform, but should afterwards thro some inconvenience he found in the performance [should] not fullfill his promise; if again | another should thro levity or idleness promise me the same service tho he had no intention to perform it, but afterwards, from a sense of the great dissapointment his failure should give me, should alter his former design and perform his promise: which of these two, I ask, would be the best man. The latter without doubt, who tho he promised what he did not intend to perform, yet afterwards, reflecting on the dissapointment I must suffer, became of a better mind. But the other man is he who adhered strictly to the truth and had the greatest sense of honour, as he did not undertake what he had no design of fullfilling, but being overballanced by a selfish motive broke his obligation notwithstanding of the dissapointment he knew it would produce. We may see from this instance that sometimes the sense of honour and veracity may be without a sense of the obligation of a promise, and that on the other hand, one who is no great | observer of truth in small matters may yet pay a great regard to the obligations of a contract, at least to the dissapointment the breach of them would produce.

I endeavoured also to point out some reasons which would hinder contracts from sustaining action, that is, from being a subject for a judiciall claim, and cause that constitution to be of very late introduction into most nations. These were, 1^st, the smalness of the injury done by a breach of promise, which I showed to be much less in the eyes of most men than the breach of property; 2^dly, the uncertainty of language, which would make it hard to determine whether a man barely signified his intention or made a promise; 3^dly, the difficulty and inconvenience of^w obtaining a trial of any crime. Men are at first very shy in punishing crimes; the whole body of the people must be assembled at every trial. This makes all judicial procedings very troublesome. | It is not also^x what we call civill causes that are first brought into judgement, but criminall ones; that is, such as require force and violence (which <?we> call breaches of the peace) such as disturb the peace and order of society. Murder, robbery, larceny, and the like, which either violently injure a man in his person or in his property.—Breaches of contracts are in themselves done very quietly and without any open violence. They may indeed provoke the injured person to revenge, but do not in themselves produce great disturbance. 4^thly, to these we may add the small value of the things which contracts could include in the early times.

I showed also that those contracts were first allowed to sustain action, wherein the will and intention of each^y party to create a dependance in the other was indisputable; these were such as were conceived in a set form of words appointed for that purpose and were called stipulationes.— | We find too that those contracts where the will of the contracting parties was indisputable were the first which were thought to sustain action in England before the civill court. I mentioned that those which were confirmed by an oath were those which the ecclesiasticall court first allowed to sustain action; and afterwards extended this to all contracts whatsoever. But those which the civill court first sustain’d were such as the parties entered solemnly into in presence of the Kings Court. Of this there are some traces to this day in the English law. What they call a recognoiscance is precisely of the same nature. These are entered into by an indenture hoc modo16 wherein the terms of the agreement were wrote, and the paper being cut in two denticulariter, the one half was formerly kept by the contrahee and the other by the clerk of the court; but now each party has a half.—This method <is> in dissuse in Scotland. We may observe that where courts are | for a long time on the same footing there is much less difference^z in the manner of proceding from the old customs than where new courts are instituted. Now the constitution of England has been long much the same with regard to the courts as it is at present. The Court of Kings Bench is as old as Edward the 1^sts time; that of the Exchequer much older; and also that of Common Pleas is very old: these accordingly adhere in a great measure to the old manner of proceedings. A new court, as that of the Star Chamber instituted by Henry 8^th., would pay little attention to those of former courts, and we see accordingly that it proceeded very arbitrarily as long as it subsisted. The constitutions of Scotland are of very late establishment. The Court of Session in its present form was created by James the Blank in MS.17 . A new court, ispecially a supreme one as this is in | many causes, would instead of adhering to the proceedings of the old alter them in many circumstances; as all new courts are supposed to be intended to correct some defects of the old ones. We find accordingly that the English courts have many more traces of the old proceedings than those in Scotland, and this of recognizan<c>e amongst them. It is to be observed that after these contracts by stipulation sustained action,^a gratuitous contracts were not even then allowed to sustain action unless they had what was called a compensation,18 that is, some just cause of entering into them. Thus if a father promised a portion with his daughter, his being her father was a justa causa. If an uncle promised to give a portion with his niece, this was sustained also, quia loco parentis habetur. But if a stranger promised a portion this was not sustained, nor others of this sort. It is without question a very improper and blameable piece of conduct for | one thus to break thro his engagement, and such as he would be justly condemned for; but then it seems as ungentlemanny and worthy^b blame^c to ensist on ones^d making such a contract. It is to be taken notice of here that if one in this manner entered into a gratuitous contract, tho this would not sustain action, yet if he confirmed this engagement and declared his desire that he should depend upon the performance, the 1^st contract was sustained as a justa causa for the 2^d.

The same reason which made the contracts which were entered into by a solemn form of words sustain action would soon bring those which are called real contracts (which were before explained) to sustain action also, for in them all the inclination of the contracting parties to be bound is as plain as if expressed by the most solemn form of words. {At first a stipulation was required even in real contracts, but this was afterwards dispensed with, as the will of the contracters to great19 a dependance was equally evident as in those where a sollemn form of words was made use of.} In this manner, the four contractus nominati were soon allowed to sustain action. | When one enters into the contract which they called mutuum, the will of the parties is altogether plain. This contract is when a thing is lent which is consumed by use, as money, wine, corn, etc. The commodatum is that where a thing is lent to be used but not consumed. The distinction here is not merely an imaginary one but produces some real difference. In the mutuum the property of the thing is transferred and the borrower is allowed to consume it, and is only bound to restore an equall quantity and quality but not the same thing; in the other he is bound not to consume or destroy th<e> thing lent, but to restore the very individuall thing. In the first case there can be no action for damages done to the thing lent, as it is the property of the borrower, but in the 2^d. case there may, as he has only the use. These would very soon be allowed to sustain action, as the desire of the contracting parties is very plainly to be bound to fullfill the contract or at least to create a | dependance. When these were allowed to sustain action, deposita would soon follow, where the thing put into ones custody is not to be used but only kept for the owner. Here if he uses it contrary to the agreement or consumes it, the truster would have an action against him. In the same manner in pledges, the pledge is not given away intirely to pay the debt but only as a security of payment; the agreement in this case is plain; and therefore if the pledge was appropriated by the pawnee the pawner had an action against him on the contract of pledge.

The extension of commerce introduced severall others. All contracts which were necessary for the carrying on of business after this time were considered as sustaining action, and that^e whether made inter praesentes or absentes. Thus (as I said) contracts of sale, of letting and hiring, partnership, etc., were^f soon allowed to sustain action.— | We are to observe, however, that for some time at least these contracts were not allowd to sustain action unless a stipulation had accompanied them, either by word of mouth or one in the same manner by writing. Some solemnity is at first required to make a contract appear altogether binding.—Herodotus20 tells us that the Scythians, when they desired to make a contract entirely binding, drew blood of one another into a bowl, dip’t their arrows in it, and afterwards drank it off. The Arabians had a similar custom. And Tacitus21 tells us that the Armenians, when they made a contract, let blood of each other in the thumb and sucked out some of the blood. Sallust says it was commonly reported that Cataline and his conspirators, when they took the oath of secrecy, mixt blood with the wine they drank.22 This report he attributes to the fear and terror of the people. But that may serve to shew that the people generally believe that such horrid ceremonies make the contract which they | accompany appear the more binding, and they must make a great impression on the mind of the contracters. — — —

We may observe that those contracts which were allowed to sustain action on account of the great necessity they were of in the carrying on of commerce, at first even after this required the transmission of writings, at least in some cases. These were called contractus literales and are pretty fully explaind in the Theodosian Code.23 Justinian mentions them in his Institutions, but in a very confused manner.24 This afterwards was not required, and the consent of the parties was sufficient without either tradition or any other ceremony. These were called contractus consensuales. In this manner the contracts were at first of four sorts.^g 1^st, those which were entered into by a solemn form of words, or stipulation; 2^dly, real contracts; 3^dly, those which were enterd into literis; and 4^thly, consensuales, besides the nuda pacta which we shall take notice of immediately. Afterwards | they were reduced to four, even when the nuda pacta are included; the literales bein<g> put on the same footing as the consensuales; or indeed to three, as the consensuales had intirely the same effect as those per stipulationem.^h

The nuda pacta, as well as those verbal contracts which had a justa causa or compensatio, were never allowed by the Romans to sustain action. But at the same time they gave an exception.25 That is, they were sufficient to overturn an action, though they could not constitute one. Thus if I owed you an hundred pounds, and youⁱ said you would not require it of me, this was sufficient on a satisfactory | proof to free me from the debt; but if you had gratuitously promised to give me £100, this would not give me a claim at law for that summ. The same tenderness for the liberty of individualls which made action on contracts so late of taking place, as all such obligations are a restraint on this liberty, inclined them to free those who were under such obligations, on a very slight ground.—Among the European nations at first the common law gave no actions on contracts of any sort; the ecclesiasticall courts were the only ones which sustained them as giving action. When the civil courts came at length to allow action on contracts, it was only on such as were entered into in the form of a recognizance or a sollemn deed done in presence of the court and recorded in their books. The ecclesiasticall or cannon law^j proceeding alltogether on the principles of honour and virtue, did not so much attend to [the] what would naturally appear equitable | to a rude people, as what was the duty of a good Christian and the rules by which he ought to regulate his conduct. They accordingly gave action on every contract how slight soever.^k The Scots law and [in] that of most other nations of Europe^l are altogether the same with the civil law, except that the nuda pacta sustain action. If a man in this country promise any summ of money or other thing, and this can be plainly proved, he is obliged to perform. The reason of this was that these courts, as the Parliament of Paris and the Court of Session, were established long after the civil and cannon law had been in great force in those countries, and consequently borrow considerably from both of those laws. The English law was on the other hand formed into a system before the discovery of Justinians Pandects; and its courts established, and their method of proceedings pretty much fixed, before the other courts in Europe were instituted, or the civil or cannon law | came to be of any great weight. It is for this reason that it borrows less from those laws than^m the law of any other nation in Europe; and is for that reason more deserving of the attention of a speculative man than any other, as being more formed on the naturall sentiments of mankind.

On this account also it is very imperfect with regard to contracts. It was not till after the erection of the Court of Chancery and the great powers which it assumed that the English law allowed an action for the specifick performance of any contract. It allowed only of an action of damages for the breach of a contract. This indeed appears to be naturall enough in the first stages of a civill government, as the point it has in view is to redress injuries rather than make the individualls perform their engagements; that they left to their own good faith. This action for damages might in many cases be equall to the specifick performance, as where the one party in contract of sale had delivered the goods and the other | had not paid the price. Where there had been a rei traditio, in deposi[s]tum especially, indeed, by a fiction of law restitution at least of the thing given might be obtaind. This was done by the action of trouver and conversion,26 where they feigned that the thing had not come into his possession by his knowledge, but had been found and claimed in that manner; either the individuall if it existed, or the value if it had been converted to his use. But in all cases this might be evaded by the oath of the person against whom the suit was instituted. If it was but a simple contract, he might wage his law and a simple bailment was sufficient to acquit him.27 {The same reason was given as the Grecians gave for not giving acction on contracts, viz, that as he had trusted his honesty and fidelity, why might not they be allowed to trust it now he was put to his oath.}ⁿ That is, his oath without any proof on his side was sufficient to free him, and no proof on the side of the pursuer was admitted. An<d> in case there had been something delivered, the action may be voided by his oath and the concurrent testimony of six witnesses that he had either not received or had returned the thing claimed. And in cases where the contract was not performed on either side there | was no action till the Court of Chancery. The method they made use of in contracts where something had been delivered was to sue for damages whenever^o it was apprehended the defendant would wage his law; as in this case he cant swear that he has done no damage to the amount to be provd as he does not know what it is. The damages are left to the determination of the jury, which in many cases may make it equall to the specific performance, as before observed; and by this means the writ of detinue, which is that which is generally used^p with the action of trouver and conversion, is seldom applied, but the action of damages, in all cases where it is in the least to be suspected that the defendant would wage his law. But by the Scots law action is given on all contracts. They are here on precisely the same footing as | by the civil law, excepting that the nuda pacta are also allowed to sustain action. By which means there are but two species of contracts amongst us, viz real contracts which do not sustain action unless traditio rei has intervened, and consensual ones which are allowed to sustain action by the bare consent of the contracters.

There are two questions with regard to contracts which I shall just mention here, as there will be a more proper plac[c]e afterwards for treating of them. The 1^st is to what degree of diligence the contracters shall be bound. To this purpose we must take notice of the distinction of culpa or neglect into culpa lata, levis, and levissima, which is handled in the Institutes28 and was explained at length in the Theory of Morall Sentiments29 and therefore need not be here repeated. The Romans considered contracts as being either gratuitous or | onerous. Amongst the first were: mutuum, commodatum, depositum, and mandatum; in these the profit is intirely in ordinary cases on the side of the mutuarius, comm<o>daturius and deponens, and mandans. They therefore are bound to pay even culpa levissima and are bound to the greatest diligence; and the other person to the smallest, and the praestandum illegible word30 salam. For even in the mutuum th<e> contract is reckond to be gratuitous, as no reward or interest is given. And even in our law no interest is due on the loan of money unless it be seperately mentioned. It is true an accepted bill of exchange bears interest from the time it becomes due, but that is by a particular statute.31 In other cases where the[y] contract is onerous on both sides, they are bound to the culpa levis.

Another question is, if one borrows a summ of money and before the time of payment the money is called in and | a new coinage <?is introduced> where the value of the money is altered, commonly debased, whether the debtor will be allowed to pay his debt with the new coin or will be obliged to pay it in the old. As for instance if one should borrow £100 and before the payment the silver should be called in and a new coinage <?introduced> where the same nominall value <?is> put on the half of the silver debased with alloy as before, that is, that instead of near 400 ounces the £100 should contain only about 200; the question is whether in this case the debt is to be paid with 200 ounces debased in this way, or by 400 ounces of the old, or a real value equall to it in the new. And here the civil law of all countries and naturall justice and equity the32 quite contrary.33 Justice and equity plainly require that one should restore the same value as he received without regard to the nominal | value of money, and therefore he is to restore as much in the old coin or an equall value in the new as he receiv’d. But the civil government in all countries have constituted the exact contrary of this.—The reason of this conduct is as follows. The only cause which can induce the government to make any alteration on the value of the money {which as shall be shewn34 is a very detrimental step} is the difficulty of raising money. Suppose for instance that the government should have use for and be obliged to expend above 10,000000 liv^q but that by no means whatever they could raise above 5 millions. In this what shall they do. The only expedient they can fall on is to call in the coin and debase the value one half. It is seldom that such great changes [as these] are made as this; but in the year 1701 the French, being in this condition, instead of 28 caused 1^st of all 40, then 50, and at last 60 lvres^r <?> out of the 8 oz French of silver.35 In this way with less than half the real value | they paid all their troops, fleet, officers, and loans. But least the imposition should be too soon felt by the creditors of the government, they ordered that all debts should in like manner be paid by the new coin. This expedient concealed the fraud. For there are two purposes in which we may use money, either 1^st, in bying commodities; or 2^dly, in paying of debts.^s Now in the 1^st method of using money, the money when debased in its real value and raised in its nominal one half, will purchase no more than the same quantity of silver did before, for^t the value of the money is always to be counted by the quantity of pure metall; the alloy goes for nothing, as the labour in seperating counterballances the small additionall value. By this means the money would soon fall to its former value with regard to all goods. But then it is also applied to pay debts. As I shall shew hereafter,36 | it is the riches of the lower class of people that regulate the price of all sorts of ordinary commodities, bread, beef, beer, etc. These can never rise higher than they can afford. Now the soldiers, and all sorts of mechanicks, being paid by the new money and consequently receiving but half their former wages, can afford but half the price they formerly gave for the commodities, so that here the new money would purchase as much for the same nominal value as the old. And by this means, and also by all former debts being paid in this manner, the value of money or coin would fluctuate betwixt the old and the new for some time. Its value in bying would only be the half; for instance, one of the new shillings would only purchase as much as an old 6^d.; but then a new sh. will pay as much as an old one, and by these combined the value will for some time continue abou<t> | 10 or 9^d. So that by such an alteration the loss of the creditors will not be so sensible, and the money will not by this lessening of its real value and increase of its nominall lose above 1/3.

There is also another question pretty much similar to the last one. That is, <if> the gold should <be> lessend with regard to its comparative value [of it] to silver, whether one who had borrowd e.g. G.100 when they were worth 25 shillings would pay his debt by 100G. when they are brought to 21 shillings; and the answer plainly is that he would not, for he received 125 and would by this means pay only 105. For in all cases the value of gold is estimated by that of silver, and not that of silver by that of gold. Indeed if he had agreeed to pay 100 guineas in specie the case might be different. But all bonds are drawn with regard to the silver coin, so that this could seldom happen.—

| We come now to the 2^d species of obligations, viz those which arise from quasi contract, or quae quasi ex contractu nascuntur;37 that is, the duty of restitution. The most simple sort is that which the civilians call petitio indebiti, where one thinks that he is due an other a certain sum, and that other that the former is due that summ also, and payment therefore insues; but on casting up his accounts the former finds that this summ has been paid. In what way shall <he> claim restitution. He can not claim it from contract, for no contract was made, nor did either expect such an accident; nor can he claim the pieces as his own, they are probably spent; and besides he fairly alienated them without any reservation. But still the other has what belongs to him; est res aliena in ejus patrimonio, and no one it is presumed is inclined to be made richer by what is an others. | For this reason he is obliged to restore the money and the repetitio indebiti is given against him. In the same manner in the negotia utiliter gesta, tho my money is not in his patrimony yet there is something purchased by money. Therefore he is bound to make restitution of what I have laid out on it. This is the case when by these negotia some advantage accrues to the person for whom I act. And if there should no advantage accrue to him, yet if the negotia be utiliter and honestly done to encourage such good offices, he is bound to restitution. In the same manner it is with averaging the obligation which arises from the lex Rhodia de jactu,38 as here the goods of the others are savd by the loss of one. As well as the actions which joint sureties or cautioners have for being indemnified by each other, for here the others are locupletiores facti jactura ejus, qui debitum etc. solverit.^u 39 All the actiones contrariae of the Romans go on this principal, for from the contracti the cases in which they occur are never attended to. But in case any | impensae extraordinariae, non autem^v ordinariae, should be laid out, the expender has an action against the proprietarius; and in the same manner the action the tutor has against the pupil for extraordinary ex–expenses proceeds from this, but not for ordinary. {Neither need we consider the duty of tutors as arising from quasi contract, as their duty arises from their accepting of that office.} For in all these^w the obligation to indemnify the person who is at the expense is not from the contract but from the duty of restitution, which requires neminem locupletiorem fieri aliena jactura.40 In all countries these actiones contrariae are given; and as the duty of restitution is the foundation of them, so the expender may either bring an actio contraria or an actio negotiorum gestorum against the person whom he has served. I shall only observe farther on this head that it may often <?be> that all the severall kinds of personall rights may concur in the same cause, both that from contract, from quasi contract or restitution, and | from delinquency. Thus if I employ one to hire a house41 for me, the owner may have an action against the hirer to fullfill the contract; the hirer may have an action from quasi contract for what extraordinary expenses he may have been at; and the owner against the rider from delinquency if he has overrode or any way abused his horse.

I come now to consider the third species of personall rights or obligations, which is, those which arise from

Delinquency.

That is, the right one has to be repaid the damage he has sustained ex delicto, from the delinquency of an other. Delinquency may be of two sorts. Either the damage may arise from the willfull injury^xmalice propense of the person, or from a criminal or faulty negligence, or culpa. Negligence or culpa may also be considered, as was before observed,42 as being | of 3 sorts. Either the negligence is so great as that no man could have been guilty of the like in his own affairs, tho this man has been in those of another, in which case the delinquency is said to arrise from culpa lata; or 2^dly, it is called culpa levis, where the delinquent has been guilty of no greater negligence in the affairs of an other than he is in his own, being generally a man who was not very attentive to his affairs;43 or lastly, from culpa levis<sima>, where the^y negligence or culpa is no more than the most attentive man might have been guilty of.—I shall however consider in the 1^st place those which arise from dolus, or what we call malice propense, and is a willfull and designed injury done to another.

Now in all cases the measure of the punishment to be inflicted on the delinquent is the concurrence of the impartial spectator with the resentment of the injured.44 If the injury is so great as that the spectator can go along with the injured person in revenging himself by | ^z the death of the offender, this is the proper punishment, and what is to be exacted by the offended person or the magistrate in his place who acts in the character of an impartial spectator. If the spectator could not concur with the injured if his revenge led him to the death of the offender, but could go along with him if he revenged the injury by a small corporall punishment or a pecuniary fine, this is the punishment that ought here to be inflicted. In all cases a punishment appears equitable in the eyes of the rest of mankind^a when it is such that the spectator would concur with the offended person in exacting <it>. The revenge of the injured which prompts him to retaliate the injury on the offender is the real source of the punishment of crimes. That which Grotius and other writers45 commonly alledge as the originall measure of punishments, viz the consideration of the publick good, will not sufficiently account for the constitution of punishments. | So far, say they, as publick utility requires, so far we consent to the punishment of the criminall, and that this is the naturall intention of all punishments. But we fill46 find the case to be otherwise. For tho in many cases the publick good may require the same degree of punishment as the just revenge of the injur’d, and such as the spectator would go along with, yet in those crimes which are punished chiefly from a view to the publick good the punishment enacted by law and that which we can readily enter into is very different. Thus some years ago the British nation took a fancy (a very whimsicall one indeed<)> that the wealth and strength of the nation depended entirely on the flourishing of their woolen trade, and that this could not prosper^b if the exportation of wool was permitted. To prevent this it was enacted that the exportation of wool should be punished with death.47 This exportation was no crime at all, in naturall equity, and was very far from deserving so high^c a punishment in the eyes of the people; they therefore found that | while this was the punishment they could get neither jury nor informers. No one would consent to the punishment of <a> thing in itself so innocent by so high a penalty.48 They were therefore obliged to lessen the punishment to a confiscation of goods and vessel. In the same manner the military laws punish a centinell who falls asleep upon guard with death. This is intirely founded on the consideration of the publick good; and tho we may perhaps approve of the sacrificing one person for the safety of a few, yet such a punishment when it is inflicted affects us in a very different manner from that of a cruel murtherer or other atrocious criminall.

We may likewise observe that the revenge of the injured will regulate the punishment so as intirely to answer the three purposes which the authors above mentioned mention as the intention of all punishments. For 1^st., the resentment of the offended person leads him to correct the offender, as to make him | <?feel> by whom and for what he suffers. Resentment is never compleatly, nor as we think nobly gratified by poison or assassination. This has in all nations and at all times been held as unmanly, because the sufferer does not by this means feel from whom, or for what, the punishment is inflicted.—2^dly, the punishment which resentment dictates we should inflict on the offender tends sufficiently to deter either him or any other from injuring us or any other person in that manner. 3^dly, resentment also leads a man to seek redress or compensation for the injury he has received.

Crimes are of two sorts, either 1^st, such as are an infringement of our natural rights, and affect either our person in killing, maiming, beating, or mutilating our body, or restraining our liberty, as by wrongous imprisonment, or by hurting our reputation and good name. Or 2^dly, they affect our acquired rights, and are an attack upon our property, by robbery, theft, larceny, etc.

| It is to be observed that the declining to fullfill a contract has never been considered as a crime, tho a fraud always is. The judge sentences a person cited before him for having neglected to fullfill a contract, in the first place to fullfill it, and 2^dly to make satisfaction to the other party for what damages the delay and suit may have occasioned him, but never inflicts any punishment for the intended evasion. But on the other hand one who fraudently would bring another under a contract is very severly punished. Thus one who forges a bill or bond is in this country punish’d with death.49

We shall begin with those crimes which are an attack upon the person. The first and the most attrocious of these is willfull murder. For this, to be sure, the only proper punishment is the death of the offender. The resentment of the injured persons can not be satisfied by a mere simple punishment, unless there be an equality at least betwixt the sufferings of the injur’d person and the offender, (that is) unless the injury be in some measure retaliated. | We find accordingly that in all civilized nations the punishment has been the death of the murderer. But amongst barbarous nations the punishment has generally been much slighter, as a pecuniary fine.—The reason of this was the weakness of government in those early periods of society, which made it very delicate of intermeddling with the affairs of individualls. The government therefore at first interposed only in the way of mediator, to prevent the ill consequences^d which might arise from those crimes in the resentment of the friends of the slain. For what is^e the end of punishing crimes, in the eyes of people in this state? The very same as now of punishing civil injuries, viz the preserving of the publick peace. The crimes themselves were already committed, there was no help for that; the main thing therefore the society would have in view would be to prevent the bad consequences of it. This therefore they would not attempt by a punishment, which might interrupt it. For it was not till a society was far advanced that the government took upon them to cite criminalls | and pass judgement upon them.

Intercession was therefore made betwixt the parties, either by some individuall of eminent worth and consequently of authority, or by the whole society together, advising and exhorting the parties concerned to such and such measures. What then is the most reasonable thing persons thus interposing would propose to be done. They would certainly exhort the murderer to appease the friends of the slain by presents, and them to accept of such satisfaction. Pére Charlevoix50 and de La Fulage51 tell us that among the Iriquois and severall other of the savage nations of North America, when a person is slain by an other of the same family the society never intermeddles, but leaves it to the father or head of the family to punish or forgive it as he shall think proper. But if a person of one family is slain by one^f of another, then they interpose and settle the presents which are to appease the friends of the slain; and if the person is not able to furnish sufficient presents, the whole community makes a collection for him, every one contributing | something to so good a design. These presents are generally divided into 60 parts, one of which goes to the mother of the slain to get her something to sit upon to mourn over her son, another to procure her a pipe of tobacco for her comfort, another part is given to the sister, to the brothers, etc., one is to clear the road of the brambles, another to cover the blood which has been spilt, as they express it; and so on.—Among the northern nations which broke into Europe in <the> beginning of the 5^th century, society was a step farther advanced than amongst the Americans at this day. They are still in the state of hunters, the most rude and barbarous of any, whereas the others were arrived at the state of shepherds, and had even some little agriculture. The step betwixt these two is of all others the greatest in the progression of society, for by it the notion of property is ext<end>ed beyond possession, to which it is in the former state confined. When this is once established, <it> is a matter of no great difficulty to extend this from one subject to another, from herds and flocks to the land itself.—They had therefore got a good way before the Americans; and government, | which grows up with society, had of consequence acquired greater strength. We find accordingly that it intermeddled more with those affairs; so that in the laws of all those nations there is a particular rate fixed for the attonement that shall be made for the death of persons of every rank in the state from the king to the slave, and this is called the wingild.52 This wingild varies according to the different ranks of the persons; for as they were of higher rank their friends would be more powerfull and consequently more difficulty appeased, as they would have the greater hopes of obtaining satisfaction. For this reason the compensation or wingild of a king is much greater than that of a thain, that than that of an earl, that than <that> of a baron, that again greater than that of a simple free man, and this still more than that of a slave or villain.—By the Salick law,53 when a man was not able to pay the wingild he was confined by himself in a tent, {the first time he was asked if he could pay it; if not his friends were called and each asked seperately; if none of them would pay it for him, then they were desired to pay it amongst them; and if this third time they refused, he was delivered up, etc.} and his friends were three times called together arround him and asked if they would contribute to pay his fine; if they refused every time, then | he was delivered up to the friends of the slain to be put to death or treated as they had a mind. {The relations of the deceased were at firsst always the executioners, tho this is now given to the^g public officers, as the publick now comes in the place of these relations.—The death of one who has murthered a near relation from accident, or his punishment from some other cause, may sooth the anger of his friends but can not gratify their revenge, as it does not come from them.—Poison or assassination by unknown persons is somewhat more satisfactory, as they know he suffers by their means. But the revenge is then only fully and nobly gratified when he is made sensible that it is by them and for their sake that he suffers.} This expiation of a crime by presents we find very universall in ancient times. There are severall instances of it in Homer. Nestor54 tells Achilles that presents appease everyone; for presents a father forgives the death of his son.—In the description of the shield of Achilles, in one of the compartments the story represented is the friends of a slain man receiving presents from the slayer.55 The government did not then intermeddle in those affairs; and we find that the stranger who comes on board the ship of Telemachus tells us he fled from the friends of a man whom he had slain, and not from the officers of justice.56

As the governments of Europe gain’d more and more strength, they thought themselves intitled to some gratuity for their trouble in interposing. As their interposition was always favourable to the criminall, in protecting him from those who would take away his life and procuring him some easier way of satisfying them, they thought them|selves well intitled to some gratification for this protection. This was called the freedom or frank–guild. And as the composition bore proportion to the power of the relations of the deceased and the danger of his punishment, so this bore proportion to the power of the protector, and was greater or less according to the dignity of the person within whose peace (that is, jurisdiction) the crime was committed. Thus the freeguild payable for a crime committed within the jurisdiction of the king, for he too had a seperate jurisdiction, was much greater than that due for a murder committed within the peace of an earl, and this than that within the peace of a baron.—By degrees the sovereigns came to consider, at least in practise, themselves as the persons chiefly injured. The addition therefore which was made to the punishment of the offenders was not to the composition or wingild due to the friends of the deceased, but to the frank–gild due to the king. This in Scotland and severall other countries came to be a considerable part of the | kings revenues, and the kings advocates (as I shall show hereafter)57 were nothing else but officers who went about to collect these compensations due to the king which were inflicted by the judges, who then acted as the jury, tho now they have little more authority than to keep order and regularity. This compensation due to the king, in Scotland especially, so far exceeded that which was paid to the friends of the deceased that the criminal came to be considered as punished, not as the murtherer of the relation of such persons, but as the murtherer of the free subject of the king. The sovereigns however in time found it more for their advantage, in order to keep peace and harmony amongst their subjects, to substitute a capitall punishment in the room of that frankguild which was due them. This punishment in Scotland was never substituted in the room of the wingild, but as that due to the king for the death of his subject. This idea took place very compleatly in Scotland, where the government was very | early aristocraticall and favourable to the kingly power. So that the relations can not of themselves, nor without the concurrence of the kings advocate, prosecute the murtherers of the deceased. And as the prosecution, at least as far as it regards the life of the murtherer, is carried on in the name of the king, so he claims also the power of pardonning and forgiving the capitall punishment as due to him alone. But it was found by a late decree of the Court of Session in the case of one , a Blanks in MS.58 who murthered a smuggler without sufficient cause, that the royal pardon, tho it extended to the capital punishment, could not however free him from what is called the assythment (the name now given to the wingild) due to the friends of the deceased. Tho the king could^h pardon the capitall punishment due to himself, as any other man can forgive debts due to himself, yet he could not pardon that satisfaction due to the friends of the deceased, any more than he could excuseⁱ them from any other debt due to them. For it is realy and truly a debt as any other due | from contract. In England, where the seeds of democracy were earlier sown, {Capital punishment here came in place not only of the frank guild due to the king, but also of the wingild or compensation due to the friends of the slain.—} the relations had the power of prosecuting independent of the crown, and capital punishment followed on this prosecution as well as that derived from the kings authority. When therefore the king assumed the right of pardoning, the relations of the deceased had still a prosecution after this pardon, under the name of an appeal of blood, and the capitall punishment which followd on this the king could not pardon. This process still subsists but is very seldom attempted, because the legislature is very unfavourable to it and the least informality renders it void.59 —Thus if a husband is murthered no one can prosecute but the widow, and failing of her the nearest male relation, and failing of them no one. No one can prosecute for the death of his brother but the elder brother or other relation of the males, | ^j and failing one step the rest can not prosecute, etc. The error in the name, time, or other circumstances all render the suit void. So that it <is> hardly ever attempted nowadays — — — — — — Gap of one and two–thirds pages in MS.

| Excepting this priviledge of appeal, there is very little difference betwixt the English and Scots law with respect to murder, or indeed betwixt it and the law of most other countries. There are however some distinctions with regard to the killing of a man which are more fully observed in the English law than in any other. Murther properly signifies the killing of a man,^k for whom the murtherer has lain in wait. Men (as I observed before) are very late of punishing even the killing of a man with death. The first attempt that was made this way in England was by Canute the Dane.60 The resentment of the English against their new masters made it often happen that they lay in wait for the Danes and killed them on a sudden. Canute, to prevent this, made a law that any one who killed a Dane in this manner should be punished with death. The crime was also denominated murdrum, murder. This punishment, for reasons we | shall soon advance wore out after the Norman Conquest and a composition was taken, but was not long after established with regard to the wilfull and premeditated killing of a man in whatever manner, which is what is properly to be called murder and is always punished with death. But when one 2^dly who had no malice forethought or evill designs against the person he killed, but by some sudden provocation should thro passion kill an other, this is not considered as so great a crime, as there was no premeditated design of injuring the person; it is therefore called by the name of manslaughter, which [is] indeed is not accounted an excusable crime but a slight punishment inflicted when one claims the benefit of clergy (to be explained hereafter). {His goods are by law forfeited to the king but there is a regular process by which he may recover them and claim pardon, which is always done immediately after he pleads the benefit of clergy.} It is not however reckoned justifiable, for tho there was no premeditated intention of killing a man yet there must have been one before the action was committed. For this reason it is even esteemed felonious.^l {These two kinds are called felonious homicide, as the punishment is capitall, for even in manslaughter sentence of death is pronounced, and the punishment is not lessend till the criminall plead the benefit of clergy.} The 3^d distinction is that which they call chance manly,61 that is, when one kills a man altogether thro’ accident without any intention of killing him either beforehand | or at the time of his comitting the action. {This is said to be per infortunium—where the killing of the man is merely a matter of accident without any design. There is also a 2^d species of excusable homicide, which is that called homicidium se defendendo,62 where after a quarrell has been begun one is brought to such a condition that <he> has no probable means of making his escape. This is reckoned excusable but not justifiable, as the quarrel which brought it on and the using deadly weapons is of itself criminall.—} This is^m reckoned excusable and is therefore not capitally punished (but as there is generally some rashness attending such accidents the killer is generally punishedⁿ by the forfeiture of his goods, to make others be more upon their guard.) {We are also to distinguish the last species of excusable homicide from that one where it is reckoned justifiable63 to kill one in his own defence, as in the former case, viz se defendendo, a quarrell is supposed to have preceded, whereas in the other the man is reduced to this strait without any fault of his own but merely by the attack of another.} There are however two cases in [the] which the killing of a man is reckoned altogether justifiable, and is not affected with any punishment. These are the killing of a man who made resistance by any of the kings officers, going about their lawfull business and executing their office, or 2^dly the killing a man in^o defence of ones person or in that of his house and goods.^p This is to be distinguished from manslaughter by there being no injury done on the part of the killer, but merely in the defence of his rights. For these no punishment is exacted. The only thing that can be called in question is the distinction betwixt these severall different sorts of homicide. Murder, strictly speaking, is where one kills another of set purpose, having lain in wait for him. But all homicide which proceed<s> | from an evil intention where there was ill will before is also accounted murder. For though the killing of a man in passion be accounted only manslaughter, yet this is always taken in the strictest sense.64 Thus as to the provocation which will acquit one from murder, it is limited to that which proceeds from blows. Words or gestures are not reckoned to give a sufficient provocation. But at the same time the law is so far favourable to the man who kills one in this way, that if the provocation has been sufficient to provoke him to strike the person, and he has returned the blow, the killing him afterwards is looked on as manslaughter. If the persons having had a dispute should both draw and fight, the person who has been obliged to kill the other in this manner is only guilty of killing se defendendo,^q but can not be altogether justified, as the quarrel which preceded it and^r the fighting with deadly weapons is of itself a crime.—But if these persons had bore a grudge to on<e> another, tho neither of them had layn in | wait for the other, yet if they drew and fought on meeting this will be accounted murder. In like manner if two persons should fight in the evening for a quarrell that happend in the morning, or in the morning after having quarrelled the evening before, it will be constructed as murther. But if in the heat of the quarrel, when they had no weapons, they should run each to his house for arms and fight immediately, it will be accounted manslaughter only. {If after any quarrel one of the parties should challenge the other, and he should not accept of it, but should at the same time tell him that he was every day at such a place, the death of one of the parties would then be considered as murder, as it is evident they designed to evade the law by not fighting of set purpose. And all duels where time or place are mentioned are in like manner held as productive of murder.—} The same is found to be the law if a son should come in all^s beat and abused, and his father should immediately run out and come up with the person who had abused him and kill <him>, even tho’ he had 3/4 of a mile to run, so that he might be supposed to have cooled, yet as it was done uno actu, without any interruption, it is interpreted only as manslaughter.—Manslaughter is not punished with death, but with a brand in the hand, on the pannels pleading his clergy, and confiscation as above. The origin of this custom of acquitting one for manslaughter who | can read took it<s> rise in the following manner.65 The clergy in the earlier times, as we are all apt to think well and commend the customs of the times we live in and prefer them to all others, were very averse to the introduction of capitall punishments. They said that <?the> mild and humane temper of the Christian religion could not admit of such severe punishments, {as we find by severall of the books of cannon law}; a fine or composition was all that could be exacted by a man who had a due regard for religion, even for the greatest crimes.—They therefore opposed with all their might all capital punishments, ascribing that to religion which was no more than the remains of barbarity and an evident mark of the weakness of government. When Canute introduced capital punishments, they did all they could to illegible word^t that proceeding, but all their endeavours were to no purpose. They still however contended that the clergy could not be subjected to such an unjust constitution. When therefore any one | was condemned before the civil court, he might be claimed by the bishop, which generally was the case; or if not he might claim the benefit of clergy and by that means be carried before the ecclesiasticall court, which as it was of the least severity was always more agreable. Here, notwithstanding of his former sentence, he was allowed an oath of purgation, to which if he could add the oaths of 12 witnesses declaring him to be innocent in their opinion, he was acquitted. But altho he could not thus purge himself of the crime, the bishop might consider whether he was reclaimable or not; if he was thought reclaimable he was adjudged to perform certain ecclesiasticall pennances; and if he was not thought reclaimable he was confined for life.—In this manner not only the clergy themselves evaded the law, but all those who had any dependance on the church evaded the law; the man who swept the church, the doorkeeper and the other servants all came in as clergy. {As every one who was any way a clergy man was freed from the punishment, it was easy for the clergy to free any one they pleased from it by making one of the lower orders of clergy, as deacons, by the first tonsure, similar to what we call preachers; [v.111] and as the clergy were then inclin’d to grant their protection to any one who asked it few or none would be punished.} To | restrain therefore in some measure this power of the clergy, it was established that when one claimed the benefit of clergy the Bible should be brought him, and if he could read the claim was sustained but if he could not he was rejected. Reading was then thought a sufficient test of his being a clergy man, as the chief part of their employment was to read the liturgy and none but clergy men had acquired so much learning as to be able to do this. This continued till the time of Henry the 8^th, who took it away intirely with regard to murder.66 {This benefit of clergy extended at first not only to homicide but to all felonious deeds or felonies, that is, all crimes which were under the pain of capitall punishment excepting treason, and by this means included even homicide from malice forethought. — — —} But notwithstanding, it still subsists with regard to manslaughter, {which is the 2^d species of felonious homicide. In the excusable it was never necessary.—}^u and to this day it is in use that one who claims the benefit of clerg<y> having been guilty of manslaughter, excepting in the cases above mentioned, is acquitted, unless a small punishment of being branded in the hand. {The power of the clergy was no less in Scotland than in England; but as this benefit of clergy was not necessary in the civil courts here, so it was intirely abolished on the expulsion of the Romish clergy. And now there is no distinction betwixt murder and manslaughter according to the Scots law, both being equally punishable with death.67 [v.112] By a statute of Queen Anne68 this priviledge of the benefit of clergy was extended even to persons who can not read, as many cases occurred where the person was not to be got off, for want of that qualification.}

Chance manly, which is the accidentall killing of a man without any design, is | reckoned altogether^v excusable; but this as well <as> manslaughter is under severall restrictions. For <if> it is committed in the attempting some felonious action, the crime is considered in the same light as murder.69 Thus if one in shooting tame fowls, in order to convey them away by stealth, should happen to kill a man, he is considered as a murderer altho he had no design to kill any one, as the action he was engaged in was of itself unlawfull and felonious. The same is the case with one who in breaking a warren or park in order to steal the deer or rabits^w should happen by accident to kill the keeper. For tho neither the accidentall killing of a man, nor the breaking of a park or warren, when there was no theft committed are capital, yet as the attempt is felonious he is considered as a murtherer. {And here not only the murtherer but all who were engaged in the same undertaking will be liable to a prosecution for murder.} The stricter lawyers are even of opinion that one who has no title to hunt or carry fire arms, if he should then happen to kill a man, would be capitally punished; but by the present law he | will only be liable in the penalty enacted against those who hunt or carry arms without a proper title. In the same manner, if one riding an unruly horse in the streets with a design to frighten people should by any means kill a man, he would according to the opinion of the more strict lawyers be considered as a murderer, but by mildness of the present laws would rather, I imagine, be punished in a less severe manner. {And in the same manner, in killing a man se defendendo it must be altogether evident that there was no other way of saving his life but the death of his adversary; as when he is pushed to the wall.} The 1^st of the justifiable homicides, {which is to be distinguished from se defendendo by there being no previous quarrel, in which case it is only excusable,} is that which is committed by one in the defence of his person or goods or house. Thus if one should be atta<c>ked on the high way and had no probable way of escaping but by killing the robber; or if his house was attacked and in the defence of it he should happen to kill the assailant, he would be liable to no punishment. Nor would one who was without provocation attacked in the streets and had no way of escaping. But if he should retire 10 or | 12 paces, not with a design to make his escape, which might have been done, but to draw his weapon, and should afterwards return to the charge, he will be accounted guilty of manslaughter at least.^x ,^y The other case is when a man who resists the kings officers or flies from them is^z killed either in the scuffle or in the pursuit by them or their attendants <?this> is not thought to render them any way punishable. But if he should be killed by persons no way concerned, they will be liable to the punishment of murther. For though they have a right to apprehend and stop him, yet they can not with any justice go the length of putting him to death as they are not going about their proper business. There is a 3^d case in which homicide is justifiable and liable to no punishment. That is, where one has no way to save his life but by killing another. There is but one case wherein this can occur, as far as I know, which is the instance commonly | given by authors, which is when two men after a shipwreck get upon the same plank, and it appears evident that they can not be both saved by it; if then one of them should push the other off the homicide would be accounted justifiable, for tho’ he had here no better right to push the other off than the other had to push him, yet he had the plea of necessity on his side as there was no other way of saving his life. But this is of so little consequence and so seldom occurs that the law omitts it altogether.70

Homicide therefore by the English law is of 3 kinds. 1^st, felonious homicide, which is of two species, murther from malice forethought, and manslaughter. 2^d, excusable homicide, also of two kinds, chance manly or homicidium per infortunium, and hom. se defendendo. 3, justifiable homicide, which is also considered as being of two sorts, either where one kills a man in defence of his person, family, or property, or when an officer in apprehending a criminal who makes resistance, or when one is in this case killed by those who are giving assistance to the kings officers.^a

There is a considerable difference betwixt justifiable homicide and those which are only excusable or | pardonable by the benefit of clergy. For if one be accused of murther and knows that he has been guilty only of manslaughter, he can not free himself by alledging that he was only guilty of manslaughter, but he must plead either guilty of m. or not g.,^b be arraigned of murder and stand his triall, and leave the circumstances of the proof to shew his crime to have been manslaughter. And if it appears so to the judge, or rather jury, they give in their verdict, not guilty of murther, but guilty of manslaughter, and he may then plead the benefit of clergy. In the same manner one who being only guilty of chance–manly or se defen. is accused of murder, he can not plead at first guilty of chance–manly or murder se defendendo, but must plead guilty of murder or not guilty, and leave to the jury from the alleviating circumstances to bring him not guilty of murder but guilty of chance manly, on which he is dismiss’d with penalty of goods, etc. But on the other hand, if one who is guilty only of justifiable <homicide> is accused of murder, he need not allow himself to be arrainged of murder, but may at the first plead not guilty of murder, and may | specify what sort of homicide they have been guilty of and the circumstances which shew it to be so, on which they will be immediately dismissed.

We may observe here also that not only the rationall creatures which have been the occasion of the death of a man are liable to punishment, but in allmost all nations even the animate and inanimate things which have been the occasion of so great a misfortune as the death of a man {were in a manner given up to punishment.} We naturally look upon such things as have been the occasion of the death of our friend, especially if it has been by accident, with a certain horror and aversion, as the sword or other instrument, or the ox which gored him. They were considered as horrenda et excrabilia, horrible, excrable, and devoted. Hence they were said to be deodat,71 which signifies not only consecrated but what was to be held as unhallowed. Among the Athenians there was a court called Blank in MS.72 which had the triall and disposall | of all such things; and we read that an ax, which falling from the cornice of a house by accident killed a man, was solemnly condemned and carried with great pomp and thrown into the sea.73 By the Jewish law the ox that gored was to be put to death.74 When in this manner animate or inanimate things happen to be the occasion of a mans death, it excites in us a sort of^c resentment or anger in our animall nature which must be appeased somehow or other;75 a sword which accidentally killed our friend is, as we said, looked on with abhorrence; but if when it performed that deed it was in the hand of another, our resentment passes from the sword to the person who held it as the cause of the death. By the English law of deodat, what ever was the occasion[s] of a mans death was thus devoted; formerly the clergy claimed it, and now the king, as being the head of the church. If a single^d horse in a^e when it was standing still, killed a man, or if one climbing up by the wheel fell and was | killed or much hurt, then the wheel or the horse is deodat. But if the team be in motion, and the man is killed by the joint force of the whole {or if one fell from a waggon in motion}, then the whole team and waggon and all in it is deodat. The same hel[le]d with regard to a miln–wheel. But it has lately been determined that the goods in the waggon shall not be deodat, nor the miln–wheel unless it be severed and set up against a wall. Not only the ox that gores or the horse who kicks {which are in most countries put to death}, but the horse from whom one has fallen and been killed, tho by his own negligence, may be claimed by the king. But one who is killed by a fall from a tree or a house, and in generall all that is called vincta et fixa, does not render that thing deodat. It has been disputed whether a man by falling into the sea from a ship rendered the ship deodat. This has been determined in the negative, as sailors are by their condition exposed to such dangers at all times and they must very frequently happen.76

| This is all I think necessary to say [to say] concerning homicide or the killing of a man, the most atrocious injury which can be committed against the person of a man.—We come now to another method by which men may be injured in their persons, that is, by mutilation, demembration, beating, bruising, etc.—With regard to all these the most antient laws of all countries have appointed pecuniary compensation, and that from the same motives as they appointed them for murder.—This appears to have been the practise of the barbarian ancestors of all the nations of Europe, in one generall manner. In the laws of every one of these nations we find a particular estimation set upon each particular member.—Thus in the [the] laws of the Lombards77 if one drives out 1 teeth of those^f [teeth] which appear in laughter he paid 2 shil.; if 1 of those which do not, that is a jaw tooth, 1^sh; if 2 of the former, 4^sh.; if 3, 6^sh; if two of the latter, 2^sh.; if 3, 3^sh.; but if he smote^g out any more of either sort | he paid no more but got them into the bargain. In the same manner there was a certain price set on a blow on the head, about 3 shill. But after they had given as many as came to 18^sh. they paid no more, the rest being taken into the bargain; for otherwise one might be ruined by giving an other a very hearty drubbing. In the same manner there was a set price for the cutting off every particular finger of ones hand, which differed also according as it was of the right or left hand; and so of the foot; so much for a hand or arm, foot or leg, as it was right or left; so much for an eye, a nose, or an ear. This prevailed over all Europe. It was only such members as were absolutely necessary for military service, the great business of those times, the mutilation of which were subjected to a severer punishment, as a capitall one or retaliation; and to these we may add castration.

The laws of all countries in their secondary state have introduced retaliation in place | of the pecuniary compensation. This was at first brought in when the delinquent was not able to pay the forfeit, in the same manner as capitall punishment for murder was introduced in place of the compensation, when the murderer or his friends were not able or would not pay the composition.—And in the same manner as^h revenge requires that the death of the person should attone for the death of the friend, so it will require that the delinquent should be as much hurt and in the same way as the offended person. Thus the Jewish law says eye for eye and tooth for tooth,78 and the laws of the Twelve Tables quicunque, etc. nisi pacit cum eo, detur talio.79 Laws still posterior to these gave damages to the injured person instead of retaliation. Retaliation is without doubt a barbarous and inhuman custom, and is accordingly laid aside in most civilized nations. In Scotland and England | it is quite abolished. It however still remains in some measure in Holland, particularly with regards to wounds in the face, which is a sort of maiming very common in that country. The offender is in this case brought to the scaffold, measures the wound he had made in the face of the other, and endeavours to make one in his face of the same length, breadth, and depth.—Maiming from malice forethought is death, by a particular incident which happened in the time of Ch. 2^d.—80 During a debate in the House of Commons, whether the playhouse should be kept up or not, some of the members happend to alledge in its defence that it was kept for the kings amusement. On this Sir John Coventry asked whether this was meant of the male or the female players. This so enraged the court party, as it was a rude joke tho very great | affront, that at the kings desire the Duke of Monmouth, his natural son, and some others way–laid Sir John, and tho he defended himself very gallantly, yet he was at last overpowered and the assassins slit his nose and ears. This appeared <so> shocking to the House of Commons that they immediately made a law,81 making it capitall for any person to ly in wait for and maim another. This law has only been once put in execution since that time; and in that case too was considerably extended. The case was this. One Woodbairn, an attorney, lay in wait for his brother in law, attended by Blank in MS.ⁱ , a smith, whom he had hired for his assistance.82 They knocked down the man with a hedge–bill and afterwards endeavoured to dispatch him with a reaping hook; but instead of killing him they only mangled his face and nose in a most shocking manner. The<?y> were apprehended and tried | on the above mentioned statute, which from the cause of its being enacted is called to this day the Coventry Act. He plead in his defence that he had not lain in wait for him with a design to maim him but with a design to murder him, and that as an attempt to murder the brought to the last point,^j as the firing a pistol is not punishable with death, so he could not be condemned. The jury, however, being anxious to bring him in guilty, answered to this that though he had not lain in wait with a desire to maim, yet <?as> the instruments he used were such as that if they did not kill they must maim he ought to be condemned, and he and his accomplice were accordingly executed. Since which time, the lying in wait for one with instruments which must either^k kill or maim has been considered as punishable with death.

Not only maiming, mutilation, and such like are punishable injuries, but even the | bringing a person into fear of them by any threat or menace, as the clenching a fist, the drawing of a sword or pistol. This is called an assault. In the same manner when one beats or bruises one, without maiming or mutilating, he is punishable for the batterie. These as they are generally concommitant come under the title of assault and batterie, and are punishable by an arbitrary fine and damages. For the law is to provide not only for the safety but also for the security of the individualls.

Another injury which may be done to a mans person is by confining him and depriving him of his liberty. No one ought in equity to be confined but a criminall; there would however be an end of all exercise of judgement if the judge were not allowed to confine one before there was full proof made of his guilt. He has therefore the power of emprisonment, but not at pleasure, for a capricious emprisonment without just | foundation is accounted wrongous or false (in England) imprisonment. But the information of one witness, whether it be attended with an oath or not, common fame, or any private knowledge of the judge, is a sufficient ground and frees him from the accusation of wrongous imprisonment. But if either the judge of himself commit one with<out> sufficient grounds or the witness give designedly a false information, the imprisonment is accounted false in England and wrongous in Scotland, and a very high penalty is inflicted on the judge in the 1^st. case and in the 2^d on the witness. Besides this if the judge refuses to take a sufficient bail for all crimes that are bailable (tho indeed an insufficient bail is highly punishable), which extends even to manslaughter, he is accounted as having been guilty of wrongous imprisonment, which in Scotland incurrs a penalty of £6000 for a peer, 300 for a gentleman, and so on.83 —It might however happen that notwithstanding | of all these precautions an innocent person (or other) might be detaind a long time. For if he was taken immediately after an assize, and was not able to procure sufficient bail, he would be confined for about 6 months till the next assize before he could be brought to a trial. In England therefore it is provided that one by being at the expense of a writ of Habeas Corpus, and paying his journey costs, may be transported to the metropolis, and trial is given in 40 days.84 This however is still a hardship, as a poor man can not afford these expences. This too is avoided in Scotland, as there is no need for a writ of Habeas Corpus, the sheriff in each county being a competent judge even in criminall causes, and judgement must be given in 60 days, and illegible word^l it is delayed is punished with a highe<r> penalty, being counted wrongous imprisonment, besides a compensation of 100 pound Scots for every such day for a peer, | and so proportionally for others; and if the party incline he may be transported personally to the Court of Session at Edinburgh. Gap of three–quarters of a page in MS.

| Besides this of wrongous or false imprisonment, a man may be injured in his liberty in other shapes. Thus a man who by forcible confinement or other violence done to his liberty, or any threatenings, compells another to come under an obligation to^m him, injures his liberty, as all obligations bring one under a restraint. Now all such contracts or obligations which are forced from on<e> by duresse, as it is called, that is, by bringing one into a hardship or fear of one, are void, being extorted by fear. And all fear in the parties renders the obligation they have entered into void from the beginning.—A rape, as it is a breach of the liberty of the woman and a great injury to her,ⁿ is by the law of all civilized nations punished with death, as that alone seems to be a sufficient compensation for the injury done her. In the same way a marriage which is entered into by force is void; and besides, the party who forced the other is liable to a capitall punishment; for as it is generally the man who compells the woman, the same injury is done to her reputation as | in the case of a rape. The death of the injurious person seems here to be the only satisfactory compensation for the injury of the woman. In the same manner also the person who compelled the other involuntarily to enter into an obligation not only loses that obligation but is also liable in an arbitrary penalty. Formerly indeed an arbitrary punishment of a fine was all that was exacted for a rape, but this in more civilized countries has always been converted into a capitall punishment; and this not only with regard to the compensation due to the person but also for the fine due to the king. There are in all criminall^o cases two ways by which the criminall may be sued, either 1^st on an indictment in the kings name, or 2^dly by an appeal, which is at the instance of the private prosecutor. If therefore in the case of a rape, or a marriage or obligation extorted by duresse, the person injured should give consent to it afterwards, or as they call it posterior agreement, this vitiates his appeal, | but still the criminal may be she[e]wed on an indictment in the kings name.—{We are to observe here that though^p threatenings which put the person in fear, and by this means oblige him to enter into an obligation, render such obligations null and void; yet we are to understand this only with regard to such fear as the person has no tittle to put him into, as the threatening him with any accusation or defamation; but if he should threaten him with a prosecution on the head the obligation was demanded, this as it is malus non injustus will not render the obligation void.} There is however none of the personall rights of mankind which it is more difficult for the government of a country to preserve intire to the subject than that of liberty of his person. It must often happen that innocent persons accused of a crime will be either obliged to find bail for their appearance; or if the crime be very heinous or the bail necessary very high, even to suffer imprisonment. This indeed is not by the law looked upon as wrongous or false imprisonment, if he be committed on due evidence or information, but is at the same time a great incroachment on the liberty of the subject. It is however unnavoidable in all societies; for if no person could be put in prison or secured till the crime he was accused of be proved against him, no criminall could ever be brought to justice. If the judge was not allowed to commit a person on sufficient grounds of his being guilty, it would be the same in effect as | if he was not allowed to punish a criminall. A man who is not due a debt may indeed be made to bring bail for the summ, or if it be great to suffer imprisonment, but unless the judge had it in his power to imprison for debt many debts could never be paid. And the difficulty of bringing criminalls to justice would be still greater. The liberty of the subject is indeed as well provided for in Great Britain as in any other country. For as was before observed, the judge if he commits wrongously on his own opinion, or the person who gives a false information, is liable in a very high penalty. 2^dly, judgement may be obtained, either by being brought personally before the supreme courts, or in Scotland before the sheriff of the county, who being a judge even in capitall causes supersedes the necessity of the Habeas Corpus Act, in a very short time; and 3^dly, every day in which the prisoner is detaind after that time and not brought to trial is punished by a severe penalty, either on the judge who delays to call him to judgement or on the officer | who delays ex<e>cuting the sentence are liable in a very high penalty.^q There are few countries where so great provision is made for the^r liberty of the subject; in all arbitrary governments the subjects may be put into prison at the pleasure of the monarch; a lettre de caché in France will clap any one into the Bastile, nor has he either the power of bailing himself or of bringing on his triall till the government pleases; and in most other countries in Europe there is the same power. It must however happen, notwithstanding of all these precautions, that innocent persons will sometimes undergo hardships of this sort, in every society.

The next species of personal rights are those which entitle a man to a fair character, etc. The injuries which may <be> done to one in this way are^s [are] commonly divided into those which are done by some action in presence of others, that tends to make on <e>meanly thought. These are called real affronts. The 2^d are those which are com|mitted by words, these are called verball affronts;85 or lastly when they are put into writing, which are called libells.

First as to reall affronts. The law has been apt to consider these rather in the sense they were taken by the old law than in that which is suitable to the customs of modern times. That is, rather as assault or batterie than as an affront; and accordingly has given but a very small satisfaction for them. And to this in a great measure may be ascribed the great frequency of duelling. A blow, or the shaking of ones fist at one, or the spitting in ones face, by the law can receive but a very small satisfaction; ten pounds is all the fine that is paid for a blow in the face. {In the Roman law the penalty for such an injury was only about 2 or 3 shillings;86 and of the same little consequence was the recompense for all those injuries which would be reckoned the highest affronts. And by our law at this day the fine for pulling ones nose, etc. is but very little.^t The smallness of the punishment had not [v.136] indeed the effect of introducing duels into Rome, but the different circumstances of the nations easily accounts for that.} And indeed these injuries, considered as assault and batterie, are but very inconsiderable and are sufficiently recompensed by the penalty incurred by law. But this fine is by no means an adequate satisfaction when they are considered in the manner they are in those countries where the laws[e] | of honour are received, for there they are considered as the greatest affront imaginable, and indeed are in this case very great ones. The injury does not consist in the hurt that is done, but in the necessity it puts one to, either of exposing his life in a duel, or being for ever after despised and contemned as <a> poor, mean–spirited, faint–hearted wretch by those of his own rank, from whose company he will be ever afterwards excluded. The small pecuniary^u punishment is no sufficient recompense for such an affront. The same is the case with regard to many verball injuries, such as giving one the lye, or other reproachfull words, which as they are looked on at this time as sufficient cause for a duel must be very heinous injuries. {They are in themselves very unmannerly, but without the consideration of their consequence would not be the most unpardonable.} It is intirely from this new notion of honour that the injury of such affronts has arose. This owed its first origins to the judicial combat which was established by law, but has several other concomitant causes which | have kept it up till this day, after the judicial combat has been 300 or 400 years in dissuse. Before that time these injuries were considered merely by the hurt they did the person, and the punishment is accordingly very small, and so inaddequate to the injury that no one will think it worth his while to sue for it.—We see that formerly those actions and words which we think the greatest affront were little thought of. Plato in his dialogues commonly introduces Socrates giving the lye to those whom he converses with, which is taken as no more than ordinary conversation. Longinus quotes, as one of the most sublime passages in all Demosthenes’ writings, that where he^v relates in the most pathetick terms the hearty drubbing the clien<t> had got, how his adversary struck him first in one place, then in another, and so thro the whole of the squabble, | dwelling on every particular and explaining it fully to his judges.87 This passage[s] Longinus quotes as an instance of the sublime, so that it is evident it was not reckoned mean in any one to sue one before a court for such an affront and to expatiate on all the circumstances. But if one should at this time explain to the judge all the particulars of the drubbing he had got and beg him to give redress, this would appear the most ridiculous and mean behaviour possible, that he had not called the offender to account of himself. For when the law do not give satisfaction somewhat adequate to the injury, men will think themselves intitled to take it at their own hand. The small punishment therefore which is incurred by these affronts according to our law is one great cause of duelling, and is to be accounted a deficientia juris. The punishment which was contrived by the court of honour in France, though it did not take effect, was much better calculated to the | injury received by such an affront. Viz, as the injury done was with a design to expose the person and make him ridiculous, so the proper punishment would be to make the person who injured the other as ridiculous as he had made him, by exposing to shame in the pillory, and by imprisonment or fine, arbitrarily adapted to the circumstances of the affront.— Verball injuries are of [of] all others least easily prevented, as there is nothing so ungovernable or which is so apt to offend on a sudden as the tongue. Those^w which are of little moment are not heeded by the law; tho some of them are punished very severely according to the strict laws of honour. The law however gives redress for the more important ones which might be of prejudice to the person. Thus if one is said by another to have been guilty of murder, adultery, or any other crime which would make him liable to punishment, he may have redress before | the civill court. Or if one injures anothers title, e.g. affirms that I have no better title to the house he possesses88 than he has, as by this means he may give me trouble by setting others to raise a claim against me, he may be called to account before the court. It is also to be observed that the truth of these calumnies, tho it may be alledged as an alleviation of the crime, can not altogether barr the prosecution, for it is not the business of any unconnected person to expose the secret faults or the secret defects of right of any one. {The punishments for these injuries are what are naturally pointed out by the revenge of the injured person. For as the injury was in exposing the person, so the punishment is an arbitrary fine, imprisonment, or pilloring.—} There are other calumnies which the civill court does not attend to, as that of incontinence, etc. The civill court does not punish these if they were realy committed; that is left to the ecclesiasticall court; and in like manner when an accusation is brought against one of having charged another with these crimes, the prosecution must be before the ecclesiasticall court. And in general all redress for false accusations must be obtained before that court where the crime, if com|mitted, would be prosecuted.

Written injuries or libells, as they are more deliberate and malicious injuries than those that are spoken, often without thought, so are they more severely punishable by the law. Not only the^x author but the writer, printer, or publisher or spreader of all such libells. Pillory, imprisonment, etc. are the penalties annexed to this crime, and this is even extended to those who, finding such a libell, are at pains to spread it. {But however as the libeller generally hurts his own character more than that of him whom he libells,^y it is most prudent to despise and not to raise prosecutions on such libell, unless the accusation be particularly marked with circumstances as to make it probable, and be of such a nature as to hurt considerably the reputation of the person. For in other cases the taking notice of a libell makes the person appear more probably to be guilty than if he had despised them.} The severity of the punishment of libells and the earnestness of their prosecution depends greatly on the form of the government. In all aristocraticall governments, or where ever the nobles have great power, they are punished with the greatest severity, and even more than in absolute governments. For a libell which would not affect the king, as being too much above such scandall, would greatly irritate a lesser lord [or]^z and consequently they would prosecute the offenders with the greatest rigour. There is no country in Europe | excepting the republics of Holland and Switzerland where they are less regarded than in England; libells and abusive papers are handed about here every day which would send the writers to the Bastile in France or be punished with death; and the severity is no less in most of the monarchies of Europe at this day. In old Rome, in the monarchicall and aristocraticall governments, the publishers of libells were punished with death. The law of the Twelve Tables ran thus, Qui malum carmen in alium condiderat,^a capite plectetur.89 This is said to have been only of those which accused one of capitall crimes, but for this there is no foundation.^b But in the time of the democraticall government of Rome this punishment, which was a very unreasonable one, was taken away, and great freedom in this respect indulged to the people. But when the monarchicall form of government was again restored, the old punishment returned; Augustus renewed the law of the 12 Tables, and many were executed on that law in his time, and still more under Tiberius.90 | And in the time of Valentinian and Theodosius or thereabouts, this extended not only to the author and writer but even to one who found a libell and did not immediately burn it but shewed it to others.91 In generall the freedom in this respect is a great test of the liberty of the people. In all absolute governments and arbitrary ones they are altogether suppressed, but where the people enjoy more freedom they are not much regarded. Libells of the most scandalous sort indeed, but which are of no great detriment by their frequency, are every day published without being taken the least notice of. Aristocracies are of all others most jealous of them, and all^c monarchies endeavour to suppress them, unless it be the British.

Thursday Febry 3^d 1763

The only injuries which can be done to a man as a man which have not been already considered are those which injure one in his estate.^d {This may be done either by injuring him in his real or his personall estate. First, of the injuries done to one in his real estate.} These may | be of two sorts, for they may either 1^st injure him in his immoveable or 2^dly in his moveable possessions. Again one may be injured in his immoveable possessions either by burning and destroying his house, which by the English law is called arson; or by being forcibly dispossessed of his estate. — Fire raising, incendium or arson, when a fire is raised wilfully in an others house, is punished capitally by the Roman, English, and Scots law. The setting ones own house on fire, if it be done with design to raise fire in the adjoining, has also been thought liable to be capitally punished. It is also punishable in a less degree if it be done with intention to hurt any one or his goods who may be in it. {But the burning of a house thro negligence is not punishable.} The dispossessing one of his estate is in all cases punishable; and the dispossesser is obliged to restore the estate to the person who was turned out, by a very short and expeditious process. And in this case the civil constitution extends considerably farther than reason and | nature dictate. For naturally any one who is turned out of what he justly poss<ess>es would think himself intitled to reinstate himself in the^e possession of his property by force. But this civil governments do not allow, as dissagreable to the peace and order of society. Insomuch that one <who> violently takes possession of what he knows he has a right <to> is, as well as any other who turns one out of what he possesses, liable to be sued by an action on that head, which by a very summary process obliges him to give up the estate. And this process requires no more than the proof of the force used to dispossess him, whereas the proof of ones right to the estate is always tedious and often very doubtfull. When one has been thus reinstated in the estate he possessed, the other may then bring the proofs of his right; but violence is at all times prohibited in the taking possession of an estate. It is to be observed however, that if one | who has thus violently taken possession of an estate be allowed to possess it peaceably for the space of two years,92 he can not afterwards be sued on the plea of violence, but must be allowed to continue in the possession of it untill the other make out his rights, which <is> as was said a much more doubtfull and tedious process.—It is to be observed also that tho it be unlawfull to take possession of ones own by violence, yet it is not unlawfull to keep^f ones possessions by force, as that is no more than acting in his own defence.

In the moveable part of ones estate the injury may be of thre<e> sorts, either 1^st, theft, that is, the clandestinely conveying away anothers goods with design to apply them to his own use; 2^d, robbery; and 3^d, piracy, which differs from the other as the one is committed by land and the other at sea.

Theft appears naturally not to merit a very high punishment; it is a | despicable crime and such as raises our contempt rather than any high resentment.— It is however punished capitally in most countries of Europe, and has been so since the Blank in MS.93 century. In England all theft which amounts to above the value of 12^d is accounted grand larceny and is punish’d by death without the benefit of clergy. Thefts to a less amount than 12^d are punishd by banishment, a fine, or whipping. The English law and the Scots also accounted, till the time of George 2^d, no theft capitall unless the thing stole was the property of some certain person.94 Thus it is not theft punishable to convey away pigeons at a distance from the pigeon house, nor geese or ducks when they have strayed far from the house; {nor is it theft for one who has no title to shoot wild fowl of any sort.} tho it is theft to convey them from the house or the nests. In the same manner, till a statute of George the 2^d, it was not theft to kill a deer in a forest or chase, tho it was in a park or inclosure, unless the theft was committed in the night time by persons whose faces were blacked.95 But by that | statute the killing of a deer by a person who has no right to it is punishable with death. In Scotland all sorts of theft are punishable by death, but the amount of the theft must be considerably greater than it is in England. Thefts of smaller value are punished by banishment. But there is one case wherein thefts of the smallest value are punished with death both by the Scots and English law, that is, where a house is broken open in the commission of it. The security of the individualls requires here a severer and more exact punishment than in the other cases. Burglary therefore is always capitally punished. The punishment which is commonly inflicted on theft is certainly not at all proportionable to the crime. It is greatly too severe, and such as the resentment of the injured person would not require. Theft appears to be rather contemptible and despicable than fit to excite our resentment. The origin of this severe punishment arose | from the nature of the allodial and feudal governments and the confusions which were then so frequent. Each allodiall lord was as it were an independent prince, who made war and peace as he inclined. Each of these lords was commonly at war or at least in enmity with all his nei<gh>bours, and all his vassalls were in like manner seperate from those of the other lords and would always endeavour to carry off plunder from the lands of their neighbours. The punishment of theft was at first some pecuniary fine, or compensation. {Amongst the Romans theft was punished with the restitution of double of the thing stolen, with this distinction, that if the thief was caught with the thing stolen about him he was to restore fould,96 and two fold if he was not caught in the fact: in the fang or not in the fang (as it is expressed in the Scots law<)>, and in the Latin writers fur manifestus et nec manifestus. It will be proper to take the more notice of this, as the reason of it does not appear to be very evident, and that which is alledged by Montesquieu,97 tho very ingenious, does not appear to me to be the true one. He says that this law was borrowed from the Lacedemonians, who, as they trained their youth chiefly to the military art, encouraged them in theft, as it was imagined this might sharpen their wit [v.150] and skill in the stratagems of war. Theft therefore was as they suppose not <?at> all discouraged amongst them, but rather honoured if it was not discovered before it was finished; but when the thief was discovered it was looked on as a disgrace, as being not cleverly performed. From this custom of the Lacedemonians, the Romans, says he, borrowed their law; which though it was proper enough in the Lacedemonian government was very unfit in the Roman. But this does not appear probable in any part. For in the 1^st place there is no good ground for imagining that the Lacedemonians encouraged theft. This is conjectured from some passages^g of Blank in MS.98 , particularly one where he tells that there was a table kept at the publick charge for the old men of the city, but none for the younger men. They however were encouraged to pourloin for themselves what they could from the table, for the reason above assigned. This however is very different from what is properly denominated theft, which was not at all encouraged. 2^dly, we do not see that theft was ever encouraged by the Romans, for the fur nec manifestus was punished as well as the fur [nec] manifestus; though not so severly. The reas[v.151]on was this. Punishment is always adapted originally to the resentment of the injured person; now the resentment of a person against the thief when he is caught in the fact <?is greater> than when he is only discovered afterwards and the theft must be proved against him, which gives the persons resentment time to cooll. The satisfaction he requires is much greater in the former than in the latter case. We see too that there was the same odds made in the punishment of other crimes. The murderer who was caught rubro manu was punished much more severely than he against whom the murder was afterwards proven.} But to prevent the abovementioned dissorders the Emperor the Blanks in MS.99 made a law that theft should be punished with death. From this law of his, capitall punishment first was inflicted on those who were guilty of theft; this took place at first in Germany and Italy and spread afterwards over the whole of Europe. The great facility of committing any crime, and the continuall danger that thereby | arises to the individualls, always inhance the punishment. Theft was in this state of government very easily and securely committed and therefore was punished in a very severe manner.—The Scots law some time ago inflicted a punishment still more severe than on any others on those landed gentlemen who were guilty of theft. This would appear very odd at this time, but naturally followed from the manners of the times. Every clan was at enmity with all its neighbours, and each chieftan was the chief abbettor and receipt of all the thefts, robberies, and illegible word^h that were committed. They were the grand receipt and the chief spring of all those irregularities; it was therefore necessary that their punishment should be the more severe. It was therefore not only a capitall punishment, but this crime was allso attended with forfeiture of goods, an incapacity of inheriting, and all other parts of the punishment of petty treason.1 But tho a capitall | punishment might be in some respects proper in those times, yet it is by no means a suitable one at this time. Ignominy, fine, and imprisonment would be a far more adequate punishment.

The progress of government and the punishment of crimes is always much the same with that of society, or at least is greatly dependent on it. In the first stages of society, when government is very weak, no crimes are punished; the society has not sufficient strength to embolden it to intermeddle greatly in the affairs of individualls. The only thing they can venture upon, then, is to bring about a reconciliation and obtain some compensation from the offender to the offended. But when the society gathers greater strength, theyⁱ not only exact a compensation but change it into a punishment. The punishment<s> in this stage of society are always the most severe imaginable. It is not the injuries done to individualls that a society which has lately obtained strength sufficient to punish crimes will first take into its consideration. These it can only enter into by sympathy, by putting | itself in the state of the person injured. Those which immediately affect the state are those which will first be the objects of punishment. These the whole society can enter into as they affect the whole equally. Of this sort are treason; all conspiracies against the state; and deserting the ranks in the field of battle, and all such cowardice. Tacitus2 tells us that cowardice and treasonable practises were the only crimes punishable amongst the antient Germans, {and all such crimes were capitally punished.} When therefore the state came to take under its consideration the injuries done to particular persons, it was rather as injuries to the state than as injuries to the individualls; the punishments therefore for all crimes were in this stage of society,^j immediately after compensation had been thrown aside, the most bloody of any and often far from being proportionable to the injuries.^k When society made a still greater progress and the peace and good order of the community were provided for, and tranquillity firmly established, these punishments would again be mitigated | and by degrees brought to bear a just proportion to the severall crimes. History affords us many instances of this. The laws of the 12 Tables, which were made about the time of the declension of compensation, punished many of the slighter crimes with death. A libell, as we observed,3 was capitally punished. But afterwards the praetors changed these punishments into milder ones, more suited to naturall equity. In the same manner the first laws that the Athenians had after the method of compensation had been laid aside were those of Draco, the most bloody ones imaginable. Death was the punishment of the smallest as well as of the greatest crimes; so that Blank in MS.4 says he punished in the same manner the stealing of a cabbage as he did sacrilege or murder. These were afterwards succeeded by the mild and equitable laws of Solon. In the same manner also in Britain allmost all crimes of moment were considered as treasonable; the killing of any person, at first^l and afterwards the husband or the wifes killing the other, robbery, and theft in some cases, as that | before mentioned, even the non payment of a debt, were considered as treasonable, and punishd accordingly. We already observed that this has been in some measure taken away as with regard to theft. That regarding debt has been altogether taken away in Scotland, and is laid aside in the practise of the English law. These treasons were in generall taken away at the union of the kingdoms in Queen Annes times.5 The first punishments after compensation is laid aside are always the most severe and are gradually mitigated to the proper pitch in the advances of society.

The 2^d manner in which a man may be injured in his moveable estate is by robbery. Though theft does not excite our resentment to any great pitch, yet robbery, which forcibly takes our goods from us, will step up our resentment very much. Robbery has therefore been generally punished with death in all countries when compositions were laid aside, which was the first thing that was provided for in all criminall cases. Not only the forcible carrying off ones goods by putting him in fear of his person but | all extortions by means of fear are accounted robbery. Thus if one should either make one give him a summ of money for a commodity of no value, an expedient often try’d by robbers to evade the law, or if he should make one sell his goods at a great dissadvantage, all such extortions are accounted robbery and are punished with death. But if one should oblige another to sell him his goods for a price considerably higher than what he could reasonably expect, this would not be accounted robbery as the person was not deprivd of any part of his price, but would rather be attributed to whim and caprice.6

Piracy is another species of robbery which likewise requires a severe punishment, and that not only from the resentment which all robberies excite in us but also from the great opportunities there are of committing it and^m the great loss which may be sustained by it, as a great part of a mans property may be at once exposed, render a very high punishment absolutely necessary; and this as I said is generally a capitall one.7

| We come now to those injuries which may be done one in his personall estate. These are either, first, by fraud, whereby one cheats another out of his property in his personall estate; or 3^dly, by perjury; or 2^dly, by forgery.

The lesser frauds are generally obliged to be recompensed by the deceiver and are besides punished with a fine. There are however two species of fraud which are more severely punished; the 1^st is with regard to bankruptcy. By the statute of bankruptcy in England, the debtor, on giving up all his substance to his creditors, is freed from all farther distress; but if he embezzles above 20£, besides his and his wifes wearing apparel, he is punished with death.8 This law was made in the time of George 2^d, and many have been since executed upon it; and with great justice. For though the resentment of the injured would not perhaps require so great a punishment yet there are severall circumstances which make it necessary. The great benefit the person bankrupt receives | from this statute is no small agravation of his crime. But besides this, there is no fraud which is more easily committed without being discovered; one may take 1000 ways to conceal his effects; and the loss of the creditors may by this means be very great, as the best part of the effects may in this manner be very great.ⁿ The temptation also the debtor is under to commit this fraud and save some part of his effects make a high punishment necessary. For where ever the temptation and the opportunity are increased, the punishment must also be increased.— {For this reason, tho theft amongst the Romans was punished in most cases with the restitution of double, one half for the thing stolen and the other for retaliation, yet the stealing any of the utensils of husbandry, as plows or harrow, was punished with death; and they were deemed sacred to Ceres.9 } The 2^d. sort of fraud to be here observed is one with regard to insurance. The insurance,10 on the masters giving in an account of the value of the ship and cargo, insure her for that summ. There is an Act of Parliament11 however which makes it death for one to give in an <?account> of this sort above the real value. For by that means the master, having insured his ship above the value, might take an opportunity of wrecking her on some place where he might easily save | himself and crew; and by this means enrich himself to the great loss of the insurers. And as the detection of all such transactions is very difficult, and great profits might be made by it, the temptation to commit such a fraud is very great and consequently the punishment must be high.— — —

Forgery is the next thing we are to consider. Whenever written obligations came to be binding, it became absolutely necessary that all frauds of this sort should be prohibited. For otherwise one by forging an obligation might extort any sum he pleased. Forgery therefore is both by the English and Scots law [is] capitally punished; with this difference, that by the Scots law all sort of forgery whatever, without regard to the nature of the obligation, is punished with death. By the English law only those forgeries are liable to a capitall punishment which are done in the manner of those papers which draw immediate payment, as bills, India bonds, banks bonds, bank notes, and all others payable at a certain time.12Blank in MS.^o But | bonds, properly so called, conveyances of land estates, and such as do not exact any immediate payment, are not punished with death but with pillory, fine, and imprisonment. The reason here is the same as that of insurance and bankruptcy. For here the payment of the money being to be made immediately, the discovery of the person or the recovery of the money is very precarious. Whereas in bonds and conveyances the danger can not be so great, as the subjects are not so perishable and there is longer time to examine the title.

Perjury is a crime no less dangerous.13 For by it one may be deprived of his estate, or his life itself. The false oath of a witness may bring all that about; but this crime is not punished with death but with a very ignominious punished,14 the loss of both his ears which are naild to the pillory, his nose, and a fine and imprisonment. There are indeed some cases where one may <be> executed from perjury, but then that is not as a perjurer but as a murderer, having by his false oath been the occasion of a mans suffering innocently, | and this extends to the subborner as well as other cases of perjury. Some authors inde<e>d affirm that there have been instances of persons hanged on account of perjury, but these have probably been of the sort above mentiond. Sir George M^cKenzie and Forbes15 also alledge that women guilty of adultery have been hanged on the statute of perjury; but if there were any such instances it was a very wrong extention of that Act; for we are to observe that it is only affirmative perjury that is thus punishable. A promissory oath (tho it adds greatly to the solemnity of the obligation),^p tho it may be very sincerely made, does not appear when broke to make on<e> guilty^q <of> so heinous a crime as one who willingly and knowingly affirmd what he then knew to be false. The breach of such oaths is rather to be attributed to weakness and frailty than to any malice or ill will, and this is the case with regard to adultery.—

Gap of three lines in MS.

| Before we leave the subject of personall rights, it will be proper to consider in what manner they come to an end. All reall rights come to an end in three different manners, either 1^st., by Blank in MS.16 ; 2^dly, by praescription; and 3^dly, by voluntary transference. Personall rights of all sorts are in like manner ended in three different ways.17 — — —

The 1^st of these is by the performance of that which we have a right to exact. Thus one who owes me a sum of money,^r by paying this debt frees himself from the obligation. It would be absurd to suppose that I can have afterwards any claim against him. In the same manner one who has been guilty of a crime frees himself from the obligation he is under to the offended person by submitting^s himself to the punishment which is to be inflicted on that crime, whether it be required by the law of nature and equity or by the civil law of the country. If the punishment which is to be inflicted is death, the death of the person takes away the right of those to whom this punishment is due; and in the same way | if the punishment be a pecuniary fine or a lesser corporall punishment or any other whatever, the right of the party to demand it, whether it be the publick or an individual, is plainly at an end when the criminall pays the fine or submitts himself to the corporall punishment. For it is evident that a right against a person must end as soon as the thing or service we have a right to is payd or performed.— — —

The 2^d manner in which personall rights come to an end is by discharge or acquittance, and pardon.— If one owes me a debt and I, tho I have not received payment of this summ, engage by a contract not to demand payment of it but to free him from it, his obligation will certainly be taken away. He has then as good or a better claim to be free from the debt as I have to exact it. I may indeed alledge that he is bound by contract to pay me such a summ and that I am dissapointed by his nonperformance, but he has the same claim to be exempted from performance as he has a contract on that also to free him from the debt; and his claim is besides greatly preferable to mine, as the disappointment I receive by his nonperformance must be very small | after I have engaged not to exact it; whereas the dissapointment of the debtor may reasonably be very great after I have received an obligation to be freed from the payment of the debt. {Thus the obligation the creditor comes under by a discharge, as it is called in Scotland, or acquittance in England, must free one from the debt. The debtor has here a much more reasonable expectation of being free from it, proceeding from the discharge or acquittance, than the creditor has of payment from the bond.} In the same manner also if one is liable,^t either by the law of equity or the civill law of the country, to suffer such or such a punishment, he will be altogether freed from this if the party who has a right to exact it agrees voluntarily that he should be so. This it is which gives the foundation to the right of pardonning. The pardon frees the criminall from the punishment, in the same manner as an acquittance frees the debtor from the debt. In the same manner also, as it is the creditor alone who can grant an acquittance, so it is only the person who has a right to exact the punishment^u who can grant a pardon. If the punishment be due to an individuall, the individuall can grant him forgiveness; or if it be due to the community or the prince as representing them, the prince can for the same reason grant forgiveness | and pardon. Thus in England, where the relations of the deceased can prosecute the murderer on an appeal, as well as the king on information and indictment, these parties can free the person from the capitall punishment as due to them but not acquit him also from it as^v due to the other. The private prosecutor can not stop the prosecution in the name of the crown, nor grant him acquittance from the sentence; nor does the kings pardon free him from capitall punishment on the appeal of the relations. But the relations may free him from it as^w due to them, and the king may grant him pardon^x and freedom from the punishment which is due to him as representing the community.

3^d., personall rights are put an end to by prescription no less than real rights. The reason too is the same in both; the person who has not exercised his right for a^y long time is supposed not to have thought of it, or at least not to have any great dependance on it; and on the other hand one who has for severall <?years> | not been called on may be imagined to have forgot his debt, or at least to have an expectation.^z By the English law all bills and bonds that have a fixt day of payment prescribe in 6 years,18 and those that have any particular priviledges, as bills of exchange, lose those priviledges after three years. By the Scots law bills and obligations which have a day of payment specified do not prescribe in six years,19 but they lose their priviledges before that time also. Blank in MS.^a Bonds which in the proper sense of the word bear no day of payment ought reasonably to take a longer time to be prescribed, as the dereliction or omissions of the creditor or the hopes of the creditor20 that the debt is forgiven can not take place so soon where the time of payment is left to the will of the creditor. But still if the creditor has [for a long] neglected to call for principall or interest for a long tract of years, it is altogether just that the bond | should prescribe. For if no interest has been stipulated, and consequently none due by the debtor, it must be presumed that such a debt is to be payed in a very short time, as few will incline to ly out of their money in that manner. The time however is by the Scots law fixt to forty years,21 as well as in immoveable subjects. If there is interest payable and this interest is duly called for, it is evident that the creditor still has his debt in view, and the debtor can not form any expectation of being free from payment. In this case a bond will not prescribe at all; one may have interest paid on a bond 100 or 200 years old and be in no danger of its prescribing, for it would be unjust that he should be deprived of that which he plainly accounted as a part of his estate and depended on for a share of his yearly support. But if on the other hand he should neither call for principall or interest for 20, 30, or 40 years, it appears probable that he has altogether forgot it, as one would not readily give up so great a part of his subsistence. | The bond is 20 years doubled by interest, and in 40 years there would be due 3 times the originall summ. No one would knowingly be so much out of pocket; and at the same time it would seem hard that one who had peaceably possessed a sum for so long a time should at once be called on to pay 3 times what he had received. By the strict law, however, if one should in the 39^th year demand a years interest and obtain payment of it, neither the principall nor interest will prescribe. If in the 40^th year he demands another and gets payment, and so on, this still saves the principall, but each year a years interest will also prescribe if not paid; thus in the 41^st the 1^st years, in the 42^d the 2^d years, and so on. This is what the strict law prescribes. But it is probable that the Court of Session, which is a court of equity as well as of strict law, would cut them off considerably faster. In the same manner as debts, so the punishment due for the commission of crimes, whether it be due to the public or to individualls, ought reasonably to | prescribe in a time considerably shorter than that of a mans life time. If one has been either overlooked or has kept out of the way for a considerable time, it would be altogether unreasonable that he should be punished. We will find that it is alltogether proper that the punishment of crimes should prescribe, whether we found the reasonableness^b of punishing crimes on that principle which I have here explaind, or on those on which Grotius and most other writers on this subject have founded it.22 These are, the^c correction of the offender and the bringing him to a sense of his duty; 2^dly, the deterring of others by making him an example to them; or 3^dly, the safety of the community by taking away an unworthy and dangerous member.

As to the resentment of the injured person or his relations, it is plain that this must wear away by time; one who had been guilty of a great injury against me would not raise my resentment 20 years after near so much as at the time the deed was committed, or even in a much shorter time. On this principle it is plain therefore | that^d the punishment of crimes should not extend for a very long time. If again we should found it on those principles above mentioned the case will be the same.— As to the first, the correction of the offender, this can not make the punishment due for a very long time, for if one had been guilty of a very atrocious crime 10, 20, or 30 years ago, if he has lived since that time peaceably and innocently and with a fair character it would appear ridiculous to say that [t]he^e any way required to be corrected; he may in that time have become a very different person.— In the same way the safety of the community, which requires the removall of a dangerous and pernicious member out of the society, can not extend to a very great number of years. For one who had been guilty 20 years ago of a very great crime and was then a very dangerous member of society may by this time have become a very different person; if he has lived since that time a peaceable and innocent life we could never think it just to remove him out of society as a | dangerous person. The other reason or foundation of punishment assigned by thes<e> authors may at first sight appear to justify the continuance of the punishment for a much longer time than the two former. For it would appear to tend greatly to deterr others from being guilty of a heinous crime, when they saw that even a long continuance of better conduct could not free them <from> the punishment of their former guilt. But even this will expire after a long time; for if one should be punished in this manner for a crime he had been guilty of long before, and which was very unlike his after conduct, no one would be greatly affected by the punishment as it would <?appear> to be rather capricious than following necessarily from the commission of the crime. In all cases therefore the punishment of crimes will prescribe in a considerable time; in most cases this <is> regulated by the resentment of the person injured, tho the others will no doubt have an effect on it also. In England the prosecution on appealls | expires in one year,23 as they are entirely founded on the resentment of the private prosecutor, and are not much encouraged by the government. Treasonable practises and such like must be prosecuted within three years after the commission, otherwise the prosecution is of no effect, except in such cases as the treason was not in one single act but a continuance of treasonable practises, in which the time is considerably longer.24 And in generall the legislature allows all crimes to expire in a certain time, which is longer or shorter according to the particular nature of the crime, unless it be some very horrid crimes where the punishment may be inflicted^f at any distance of time whatever. We are to observe however that this only regard<s> those cases where the criminall has not been brought to a trial nor any sentence pronounced against him. For if sentence has been pronounced, and he has | afterwards made his escape, he may be executed or otherwise punished on that sentence by the strict law for forty years after. The very making his escape and evading the punishment that was justly pronounced against him is considered as a crime, which being added to the former lengthens the time of prescription. But tho this be the regulation according to the strict law, it will be very seldom put in practise. A very unhappy gentleman, Mr. Blank in MS.25 Lord Ratcliff, was executed on a sentence passed on him long before. He had engaged in the rebellion in the 1715 and had been tried and condemned, but made his escape to France. He resided however unmolested at London from the year forty till the forty five, solliciting his pardon. He then joined the rebellion at that time, and was apprehended and executed on the former sentence. But had he remain’d quiet it is not at all probable he would have been in | the least mollested, altho the forty years were not near being past. Dr. Cameron26 also was executed in the year 50 or 51 on the sentence passed on him in the year 1745. The government were then not altogether free from fear of another rebellion, and thought it necessary to take that precaution. But had he kept out of the way for some years longer he would probably have been altogether safe.— — —

I shall only observe farther with regard to criminall causes that there are severall phenomena in the punishment of crimes which, as they are easily accountible for by the principle of punishment I have laid down, tend greatly to establish it. The attempt to committ a crime when it comes to the last point is in every respect as punishable, tho it has not taken effect, [as if it had] according to the principles of punishment laid down by | Grotius and others, as if the crime had actually been committed; for with regard to the guilt of the offender, there can be no difference; it is the intention and not the effect which regulates that. The safety of the society also would require the removing a dangerous person as well here as in the other case; as he has given the same proof of his being so, by firing a pistoll and running at one with a sword, as if he had actually killed him. It is evident also that there is the same reason for making an example of him to the deterring of others. Yet as far as I know there is no country where the attempt to committ a crime is punished with the same severity as the actuall committing it. The resentment of the party injured is not however so great; and it is on this, as I have endeavoured to shew, that the punishing of criminalls is founded. The resentment of the friends of one who had been attacked with a design to murder him and had made his escape is not near so great as if he had been actually murdered. In this case the grief for their friend | blows up their resentment and makes them demand the greatest rigour of punishment. In the other case their joy on the escape of their friend sooths and lays asleep their indignation. In the same manner one who, doing a thing in itself dangerous, if he happens to kill or hurt one, is punished much more severely than if no bad effect should follow. Thus if one by throwing a stone into the street should kill a man he would be punished as a murderer, the action being in itself^g improper and dangerous and such as a strict police would punish, tho in most countries it would be overlooked if no bad effects had followed.27 But in this case on those principles above mentioned he should be punished with no less rigour than when these bad effects follow. The guilt of the person is the same and requires the same correction, as there was the same danger in both cases and the effect was only accidentall. The safety of the society requires punishment rather more in the one case than in the other, and in reality rather more, as the committing | such an action without any harm following may give both him and others less reluctance in the commission of such actions on future occasions than if he had been the occasion of damage by so doing.^h — The same may be said of one who, riding an unruly horse in the street or market place with design only to frighten the people for his diversion, happens to kill a man. In both these cases we feel a much less resentment against the offender when no bad effects follow[s], than when he is the occasion of a great misfortune.—It is on the same principle that we are apt to inflict some sort of punishment on irrationall animalls and even innanimate things when they have been the occasion of the death of any person. This proceeds from a resentment blind and foolish indeed, but such as illegible wordⁱ legislators have not neglected.

There are also some persons which are never esteemed liable to punishment for any actions. Such are chil|dren, idiots, and madmen. If a child^j say he would shoot or stab one and should actually do so, and altho this should proceed from rage and passion, he would not be esteemed liable to punishment. Yet by those principles they should be as liable as others. The danger is no less great to the community, and the examples where there may be an opportunity of committing are no less frequent, and even more so, as they have less reason to restrain them. But the insignificance and the weakness of that age both in mind and body makes them appear no proper objects of resentment; and in the same manner a madman who committs the most horrid crimes seems no object of resentment or punishment. The totall depravation and the^k great appearance there is that their morall faculty is in them altogether obliterated puts them on a quite different footing from other men. They appear so different from | the common idea we form of men that those actions they commit do not in the least shock us. A madman is one who would knock a man on the head that he might see which way he would fall, and committ other such like actions from the most ridiculous and frivollous motives. It is the generall behaviour of a man which makes us look on those who are guilty of the most enormous crimes with abhorrence and aversion. When the crimes are not committed from such frivolous motives as those above mentioned, but from such as would have some considerable weight with any reasonable man, tho they would not influence a good man to be guilty of such horrid actions, it is then that from the resemblance such men bear to others [that] we are shocked at their actions. Thus one who murders an other to get his money becomes an object of our abhorrence and resentment, as that | is a very strong motive, and tho it would not influence a good man to commit that crime, is still one of considerable weight with any reasonable <?man>. The resemblance betwixt the motives of such men and those of others creates an abhorrence and resentment at the actions which are committed by them in a criminall manner from such reasonable motives.— — — — —

End of Volume Two of MS.

| Monday Febry. 7^th 1763

I proposed in treating of justice to consider the rights of men on which it is founded under three heads: 1^st, those which belong to a man as a man; 2^d, those which belong to a man as a member of a family; and thirdly, those that belong to a man as a member of a society. I have now said all that I think necessary concerning the first branch of rights, under the 3 different classes of the right one has to his person, to his character, and property, and the injuries which may be done one in each of these respects.

I come now to consider the rights which belong to a man and the correspondent injuries which may be done a man as

A Member of a Family.

There are 3 different relations in which the members of a family may stand [in] to one an other. They may be either in the relation of^l Husband and Wife; or of Father and Son; or of Master and Servant.28 Correspondently to these | a (man) or person may <be> injured in as many different ways when con<si>dered as a member of a family. One may be injured either as a husband or wife; as a father or son; or as a master or servant. In order to proceed the more regularly I shall begin with the relation of husband and wife, as it is the foundation of all the rest. In considering of this there are three things to be chiefly attended to, viz 1^st, the manner in which this union is entered into and the origin of it; 2^dly, the obligation or rights that are thereby acquired and the injuries corresponding to these; and 3^dly, the manner in which it is dissolved. Of these in order. We may observe that in all the species of animalls the inclination of the sexes towards each other is precisely proportionable to the exigencies of the young and the difficulty of their maintenance. In all quadrupeds the inclination of the sexes ceases as soon as the female is impregnated. For in them the female is of herself sufficiently qualified to provide sustenance for the young. For after the birth of the young and sometimes before it the greatest part of the | food of the mother turns into milch, the proper food of the young one. So that in this case the ordinary labour of the female in providing food for herself is sufficient to provide for the maintenance of the young. In birds again who have no milch, the whole labour that is necessary to provide for the safety and maintenance of the young is an additionall one to that which the parents before required for their own support, and is such that the female would be altogether unable and unqualified to undergo. That this connection therefore may still continue, it is wisely provided that the inclination of the sexes should still continue.29 It is this inclination that is the bond of their union; they have not probably in view the maintenance and support of the young. In the quadrupeds, as soon as the female is impregnated the male ceases to be an object of desire to the female and he to her; but here on the contrary this still continues as long as the young require their assistance. In the human species, the maintenance of the young is provided | for in the same manner. The female (the woman) indeed is furnished with milch which might perhaps enable her to support the child for some time of its infancy; but then it often happens that by the time the 1^st child is weaned the woman has a 2^d, and so on. So that long before the 1^st child is any way qualified to provide for itself there is a 2, a 3^d, or a 4^th child born. This necessarily requires a degree of labour to which the woman would be altogether unequall. That therefore this additionall labour may be sustain’d, and the children supported in their helpless state, it is [was] necessary that union of the parents should be of a very long continuance. The affection of the sexes is therefore constant and does not cease on any particular occasion; and as the children, at least some of them, require the attendance of the parents pretty far in their life, this affection and love betwixt them which is the foundation of their union generally continues the greatest part of their lives (And as Mr. Smith else where observed30 is supplied in the latter part by the habitual affection and esteem that is then continued^m ). | The long time that children are dependent on their parents and unable to subsist by themselves, whichⁿ is much longer than in any other species of animalls, is likewise productive of the most salutary effects. During all this time the child being dependent on the parents is obliged in many instances to yield its will to theirs, to bring down its passions and curb its desires to such a pitch as they^o can go along with,31 and by this means learns in its very infancy a chief and most essentiall part of education, without which being first implanted it would be in vain to attempt the instilling of any others. This is one of the most necessary lessons one can acquire. Unless one can so bring down his passions and restrain his will and so^p accomodate it to that of others as that they can go along with him, it is impossible for him to have any peace or enjoyment in society. This lesson is learned by all children, even by those of the most profligate and wicked parents32

Gap of one page in MS.

| Tuesday February 8. 1763

In yesterdays lecture I gave you some account of the origin of the perpetuity of marriage, and also of the power of divorce which was generally supposed to be possessed by the husband.33 The wife amongst the Romans in the earlier times of the commonwealth was absolutely in the husbands power; the marriage was made either by the religious ceremony of confarreation which produced that effect, or else by the coemptio, a civill one by which the husband bought her as a slave, or lastly, the husband by possessing a woman constantly for a year and day prescribed her in the same manner as any moveable subject; for this was also the time in which moveables, and at first indeed immoveables, were prescribed amongst the Romans.34 By these means she came either into the place of daughter or slave, which was in effect the same. Therefore as the master of a family had the power of chastising his [his] children or slaves, even in a capitall manner as shall be shewn hereafter, either by inflicting a punishment upon them or by burning35 | them away, so he had the same power over his wife. But as a daughter or child had not the power of leaving his fathers family and manumitting himself when he inclined, nor a slave of running away or leaving his masters house without his consent, so neither had the wife the power of leaving and seperating from her husband. Besides, as I observed before,36 the government is at first in all nations very weak, and very delicate of intermeddling in the differences of persons of different families; they were still less inclined to intermeddle in the differences that happen’d amongst persons of the same family; on the other hand, that some sort of government might <be> preserved in them they strengthend the authority of the father of the family, and gave him the^q power of disposing of his whole family as he thought proper and determining with regard to them even in capitall cases. By this means the father possessed a power over his whole family, wife, children, and slaves, which was not much less than supreme. So that tho the husband had the power of divorce, the wife had not.

| In time however this came to be altered, the reason of which I before hinted at. In the earlier periods of Rome, when there was but little wealth in the nation, the fortune a woman could bring to her husband or could possibly be in possession of was not so great as to entitle her to capitulate or enter upon treaty with her husband; she was content to submit herself to the power of the husband. But when the state became exceedingly rich, there^r would be very rich[es] heiresses who brought great fortunes along with them, as happens in every country nowadays; and as Rome was much richer than this country so the wealth of the heiresses was proportionably greater. It seems to have been^s originally in favours of such ladys that the new marriage was^t introduced. The relations thought it hard to allow so great a fortune to go out of the family and be transferred to the husband, who acquired also a very great authority over the wife. {But as heiresses incline to take a husband [as husband] as well as other women, they, etc.} They therefore contrived a new sort of marriage in which none of the old forms, neither the religious nor civill one, were used. The instrumenta dotalia which | corresponds to what we call the contract of marriage were drawn up, in which the husband was specified to have the management^u of the wifes money, at least of the interest of it, for the mony was often consigned into some other persons hands. {The husband after this came to the wifes house and took her home with some solemnity, which was called domum deductio.} The wife however did not come into the power of her husband, nor was indissolubly join’d to him. And least she should be prescribed and by that means herself and her fortune belong intirely to her husband (as every thing of a slave did), and the whole effect of the contract be in this manner dissanulled, she was advised to seperate herself from her husband for 3 or four nights every year. This sort of marriage, tho it had none of the old solemnities, was found by the lawyers to save the ladys honour and legitimate the children.— After this time the husband and the wife came to be much more equall in their power; as the marriage was entered into merely by the consent of the parties, so it was dissolved without near so great difficulty as the marriages formerly contracted had been. The consent of both parties or even the will of one <?was sufficient> to dissolve the | marriage. If the husband left her and cohabited with an other woman, the wife was at liberty as before the marriage. This great liberty of divorce on the smallest occasions continued from the latter part of the Republick till a short time before Justinian, when by a rescript of the Emperors Valentinian and Theodosius divorce was allowed only on certain conditions.37 But Justinian restored the former unbounded liberty.38 As this liberty was a consequence of the new form of marriage, the old forms were laid aside almost intirely; the latter one was found to be much more convenient and better adapted to the licentiousness of the times. {It was exactly similar to the condition of a man and his mistress in this country, only that the womans honour was safe and the children legitimate. The cohabitation and connexion^v was intirely voluntary as long as it continued.} It alone therefore was used; so that Tacitus39 tells us that when a certain office of the priesthood was to be supplied in which it was necessary that the person admitted should be born of parents married by the old forms, there were none such to be found in the city. This license of divorce was productive of the worst consequences. It tended plainly to corrupt the moralls of the women.^w The wives often | passed thro 4 or 5 different husbands, which tended to give them but very loose notions of chastity and good behaviour. And as this was frequently practised by women of the highest stations and most conspicuous rank in the whole state, the corruption could meet with no opposition. Ciceros daughter Tullia, whom her father celeb<r>ates as one of the sweetest manners, greatest virtue and chastity, and in a word as poss<ess>ed of all the female virtues, was married 1^st to Piso, 2^dly Crassipes, then Dollabella, and then to a 2^d Piso;40 and many other instances are to be met with in the Roman history. Hence it was that female chastity was so rarely to be met with. For tho the anecdotes and annalls of the private life of the Romans at that time have come down to us in a very imperfect manner, yet there is hardly a great man in the end of the Republick who is not a cuckold upon record. Cicero, Caesar, Pompey, Marc Antony, [Pompey,] Dollabella, etc., etc. are all reckorded in this character. Milo, a very strict sort of man, married the daughter of Sylla, and the day after the marriage was celebrated | found Sallust the historian in bed with her.41 This licence of divorce met with no interruption in the time of the emperors till the constitution of Theod. and Valentinian above mentioned, which was also abrogated by Justinian. After his time it continued probably in the eastern Empire, for [tho] Justinian tho he conquered the western and kept possession of it for some time was properly an eastern emperor, <?and it> continued after that^x in full force as long as the Empire subsisted. In the western Empire it was much sooner abolished. The savage nations which issuing out from Scandinavia and other northern countries overan all the west of Europe were in that state in which the wife is greatly under the subjection of the husband. By the small remains of the laws of those nations which have come down to our hands, this seems to have been very much the case. The husband had then a very great authority over her and was allowed divorce in the same manner as formerly amongst the Romans, | but the wife had no power of dvorcing the husband. This was greatly strengthened by the introduction of Christianity, which was very soon received amongst them. They were then in that state which made them regard their priests not only with respect but even with superstitious veneration.—The^y laws of most^z countries being made by men generally are very severe on the women, who can have no remedy for this oppression. The laws however introduced by the clergy, and which were soon receivd by these barbarous and ignorant and consequently superstitious people, tended to render their condition much more equall. The first step which was taken was to curb the licence of divorce which was as we have seen very great. This was at first limited to certain^a cases; these were the infidelity of either of the parties or the great cruelty of the husband, as^b this will be the most common case (ob saevitiam et mortis metus<)>. The effect of divorce was that the parties were considered as if they had never been married, and were at liberty to take a husband or wife | after the divorce. But in some farther time no divorce was allowed. The only cases in which those who had been married were allowed to^c marry after being divorced were in such cases as the marriage^d would have been null from the beginning, as 1^st, when the marriage was within the prohibited degrees of consanguinity, which were extended far beyond their former limits by the clergy so that it often happened that persons might ignorantly marry in a prohibited degree. These marriages were either altogether null or were indulged by a particular licence from the Pope or other clergy; and 2^dly, on account of the frigidity of the husband and the incapacity of generation, not the barreness of the wife; for in these cases also the marriage was null from the beginning. {Or of a previous contract to another woman either in praesenti or in futuro in the case afterwards mentioned.} Separation was however allowed on two accounts, either on the infidelity of the parties, or ob saevitiam et mortis metum, as in these cases there would be an evident hardship in compelling them to live together. But there was however no allowance of marriage on this account after seperation, | and any one who married them, and they themselves, was supposed to commit adultery. There was also another great change introduced by the constitution of the clergy. Before this time the infidelity of the wife was reckoned a great breach of the conjugall duties and was allowed to be punished by him, even with death, and had^e the name of adultery given it. On the other hand the infidelity of the husband was not accounted adultery; it was called petticatus42 and in this he had all freedom, being no way accountable for it. {Indeed in the times of the later marriages they would be more carefull to conceal these transgressions, as the wife had the power of divorce as well as the husband.} This according to the^f account generally given of the punishment of adultery, viz that it was to prevent a spurious ofspring being imposed upon the husband,43 might appear somewhat reasonable, but that as I endeavoured to shew44 it is the jealousy of the^g parties, which allways attends the passion of love when society is the least refined, in which the publick goes along with the injured party; and this is equally common to the husband and the wife, as it shews the allienation of the | affection from the one as well as the other. The real reason is that it is men^h who make the laws with respect to this; they generally will be inclined to curb the women as much as possible and giveⁱ themselves the more indulgence. The clergy were much more impartiall judges. The former legislators^j were husbands and consequently a party concerned; but as the priests were not husbands, not being allowed to marry, they were the best qualified that could possibly be for the office of judge in this matter. They accordingly^k set them in this respect perfectly on an equall footing. The infidelity of the husband as well as the wife was accounted adultery and might produce a separation. {And it was for some time punished not as adultery but as a perjury.} The licence of divorce was as we observed greatly curbed and put at the same time on an equall footing with regard to both. {The husband and wife were put alltogether on an equall footing in allmost all respects. This, on the principle I have endeavoured to explain, may be very equitable, as the injury to the jealousy of the woman is [v.16] no less grievous than to that of the man. But still as in allmost all contracts of marriage the husband has a considerable superiority to the wife, the injury done to his honour and love will be more grievous, as all injuries done to a superior by an inferior are more sensibly felt than those which are done to an inferior by one whom they look upon as above them.} The laws in England with regard to divorce are on the very same footing in most respects [the same] with those of the cannon law. One cannot obtain a | divorce in any way but by an Act of Parliament, which is absolute and can do any thing. But by a suit at Drs. Commons, which comes in place of the ecclesiasticall court, {In Scotland divorce is granted to the dalys45 for infidelity by the commissaries, who come in place of the ecclesiasticall court. The clergy after the Reformation, being not confined to celibacy but allowed to be husbands themselves, were perhaps on this account[s] more indulgent. The popish clergy had before allowed a separation on this cause.—} a separation is all that can be obtaind,46 which the clergy who made the laws on this head as strict as possible found it necessary to grant, but would not allow the liberty of a posterior marriage, as a punishment to the offenders.— — —

For some time after these regulations with regard to marriage took place there was no great ceremony required at the commencement of it; the hierologe47 was not required till the time of Pope Innocent the iii^d. Before that time, as the old forms of confarreatio and coemption were laid aside, the^l form which they used was much the same as that of the new marriage amongst the Romans before Christianity. There was no more required than the mutuall consent of the parties, either before witnesses or not. The one asked the other if she inclined to be his wife, | and she replied yes, and I take you for my husband. The husband afterwards went and brought her home to his house, and no other form was required. Innocent afterwards required that these declarations should be made in facie ecclesiae, the manner much such as that now in use, by solemnly proclaiming the bands of marriage betwixt such and such persons. However after this was required as the only regular sort of marriage as it is at this day in all Christian countries, the other method by consent was not altogether without its effect, insomuch that a previous one by contract alone, that is, a previous irregular one, broke one made in facie ecclesiae. In this however there was a distinction. If the marriage or agreement was in praesenti, that is, if the parties agreed to be husband and wife from the time of the agreement, I take you for my wife or I marry you and the other agree’d, this made even a subsequent marriage in facie ecclesiae of no effect, altho consummated; the parties being still <?liable> | to ecclesiasticall punishment, as for incontinence, for all irregular marriages.—But if it was only a promise of marriage or a contract in futuro, this if it could be proved^m by witnesses or by the oath of the party pursued brought marriage, and might prevent a subsequent one (especially copula interveniente) in facie ecclesiae, but if it was completed could not annull it. This was the case in England till the late Marriage Act,48 which makes no promise of marriage nor any irregular one whatever of any effect. In Scotland any marriage of whatever sort in praesenti, where the mutuall consent is declared before any Justice of Peace or comissarie, or any other way,ⁿ is sustain’d as valid. If they be in futuro, if they be said^o by the one party and not refused^p by the oath of the other they are valid^q si copula intervenerit and this be proved in the ordinary way, viz the birth of a child; but the pa<r>ties are still liable to ecclesiasticall censure.— — —

^r Marriage came by these means | to be almost indissolluble. There was a very great change introduced by this means into the character and regard which was had to the passion of love. This passion was formerly esteemed to be a very^s silly and ridiculous [and] one, and such as was never talked of in a serious manner. We see that there is no poems of a serious nature grounded on that subject either amongst the Greeks or Romans. There is no ancient tragedy except Phaedra49 the plot of which turns on a love story, tho there are many on all other passions, as anger, hatred, revenge, ambition, etc. Nor does it make any figure in epic poems. The story of Dido50 may be called a love story, but it has no effect on the procedure of the great events, nor is it any way connected with them. The poem indeed rather thwarts love as betwixt Lavinia and Turnus;51 for we can not say that there was any love betwixt Aeneas and her as they had never seen one another.— | The Iliad we may say turns upon a love story. The cause of the Trojan war was the rape of Helen, etc., but what sort of a love story is it? Why, the Greek chiefs combine to bring back Helen to her husband; but he never expresses the least indignation against her for her infidelity. It is all against Paris, who carried away his wife along with his goods. The reason why this passion made so little a figure then in comparison of what it now does is plainly this. The passion itself is as I said52 of nature rather^t ludicrous; the frequency and easieness of divorce made the gratification of it of no great moment: it could be to day, it might <be> to morrow, and if not this year it might <be> the next; and one might find another object as agreable as the former. The choice of the person was of no very great importance, as the union might be dissolved at any time. This was the case both amongst the Greeks and Romans. But | when marriage became indissoluble the matter was greatly altered. The choice of the object of this passion, which is commonly the forerunner of marriage, became a matter of the greatest importance.— The union was perpetuall and consequently the choice of the person was a matter which would have a great influence on the future happiness of the parties. From that time therefore we find that love makes the subject of all our tragedies and romances, a species of epic poems till this time. It was before considered as altogether triviall and no subject for such works.— The importance being changed, so also the figure it makes in the poeticall performance. It is become from a contemptible a respectable passion as it leads to a union of such great importance, and accordingly makes the subject of all our publick entertainments, plays, operas, etc. In those of Greece or Rome it never once appeared.

This is the generall account of marriage | in Rome and the European nations. Divorce amongst all rude nations is considered as in the power of the husband but not of the wife. The Romans afterwards extended this to both parties equally; and lastly the clergy took it away in all cases, unless where the marriage was null from the beginning.

I shall now proceed to consider another species of marriage very different in many respects from the former, viz that where one man is allowed to have a considerable number of wives. As in Rome and Greece, so in^u all the modern European nations one man is confined to one wife; plurality of wives is not allowed, neither where voluntary divorce takes place or when it does not. But both in the ancient and in modern times polygamy has been allowed in many places. In all the eastern countries, particularly the East Indies, in Persia[n] and in Turky and^v Egypt and other countries formerly, polygamy to any extent a man inclines and can afford it is allowed.— We may observe in the first place, as is very justly taken notice of by Grotius,53 that there is not^w any | reall injustice either in voluntary divorce or in polygamy in those countries where they are allowed by the laws of the country, tho, as I shall by and by shew, they are very inconsistent with a well regulated police. For with regard to voluntary divorce, there can not be said to be any injustice done to the person who is turned away in this manner. The practise is allowed by the law, and therefore when the wives^x enter into this agreement it is during pleasure of the husband. They agree to live together as long as he shall find it convenient; their living together, when they continue to do so, is voluntary, and when they seperate it is on those conditions on which they came together.^y In the same manner where polygamy is allowed, as it has been and is in many countries, there can be no injustice in taking a wife in that manner. Where voluntary divorce is allowed, the wife is taken on the condition that the husband may turn her off when he pleases, and this is known to her. In the same manner when poly|gamy is allowed, the wife is taken to be one of 4, 5, 10, 20, 100 wives; this is the condition, and there can not be said to be any injury done her when she finds herself in that situation. But altho there is not any injustice in the practise of polygamy where the law permits it, yet it is productive of many bad consequences.

We shall consider 1^st what will be the condition of the female part of a family in which this is practised. They, it is evident, must look upon one another with the greatest jealousy; they share his affection amongst them, and must do all that they can to supplant their rivalls. Continuall discord and enmity, the naturall consequences of rivallship, must prevail amongst them. They are rivalls and consequently enemies, and this rivallship is of a nature which generally produces the greatest enmity and most unsufferable discord. These in the greatest degree must therefore attend^z polygamy with regard to the wives, from the jealousy they have to one another of their husbands love. Besides this there is another cause | of continuall discord and jealousy^a amongst them. The affection of the husband must here be greatly divided, not only amongst his wives but amongst their children; a man who has ten or twenty wives may have 50 or 100 children amongst whom his affection is divided, and consequently can not be very strong with regard to any particular one. The affection of the wives again will be entirely confined to her own children. She perhaps is the mother of 5 or 6 children; on these all her affection, all her care and concern, is bestowed. She is concerned alone for their interest and advancement. Her affection therefore to her children must be immensely stronger than the feeble and divided affection which the husband can feel for the children of any one.54 — In all cases where there is another person equally connected as we are with an object of our affection, we measure his affection by that which we ourselves feel. When therefore the mother compares the affection she feels towards | her children with that of^b their father who stands in the same relation to them, the great disproportion there is betwixt them raises her jealousy in the greatest degree. She is concerned for the interest and advancement of her own children only, and is therefore at pains to draw^c all the affection of their father towards them, and looks on all the other wives and their children as her rivalls and opposers.^d The others look also on her in the same light. The jealousy of love and that of interest both conspire to raise the discord, enmity, confusion, and disorder of such a family to the highest pitch. We are told indeed that in the seraglios of the great men of the Turks, the Persian<s>, and Mogulls there is the greatest tranquillity and the greatest humility and resignation amongst the^e women. But this apparent tranquillity, for it is only apparent, is that which proceeds from severity and hard usage. Rebellious subjects when | reduced into order are the most abject and humble of any; and unless it be in the very act of rebellion they appear to have the greatest tranquillity and submit with the utmost readyness to the will of the master. This is the very case in all these countries. As there can be only a few who are in a capacity of maintaining a vast number of wives, so there must be a great many who are utterly^f debarred from all commerce with the other sex, unless it be in the publick stews. Many of these, to render them fit for the office they are intended, are even degraded from the rank of men and made eunuchs. Their business is to attend in these seraglios and keep the women in proper order. For this purpose they are allow’d to treat them with the utmost severity and exercise all the tyranny over them which they think proper. It is this abject subjection alone which produces the apparent tranquillity which is to be found in all the seraglios of the | great men. We see accordingly that this tranquillity is only to be found with those whose wealth enables them to maintain a set of eunuchs for this purpose. In Turky there must be^g many men of this sort residing at all the chief towns, as Smyrna, Constantinople, and Cairo; and in the east, as the riches is still greater, there is still less disturbance amongst them at Ispahan and Bdelli55 and Agra; and as the Mogulls are still richer than the Persians, so they are the better able to maintain these masters to their wives; and the Chinese still more so. In these indeed we find very little disorder and a great deal of apparent tranquillity. But on the other hand in all the countries on the coast of the Mediterranean Sea, and in many places in Turky, where the wealth of the people is not such as can afford these servants, the utmost confusion, disorder, discontent, and unhappiness is altogether | apparent.—^h

The misery of these women must be greatly increased by other circumstances. The only companions they are allowed to have are those which of all others will be the most dissagreable. No one is allowed to see the women in these countries but the eunuchs who attend them. The jealousy of the husband debarrsⁱ all other communication. The only persons they can see, then, are either^j those tyrannicall masters, which can not be very agreable, or tho it may be more so than their other companions can not be much possessed by any one, as they must be continually going from one to the other in order to preserve peace amongst them. Besides these they have none to converse with but the other wives or concubines in the^k seraglio, whose company must always be rather dissagreable than otherwise. For what harmony, friendship, or enjoyment <?can there be> | amongst those who are jealous of each other and rivalls in the most tender points?— The condition of the female part of these families is then without question most wretched, and exposed to the greatest envy, malice, hatred, and disorder, confusion, etc., etc., etc., etc., etc. imaginable. We will find that that of the male part is not much more desirable. Those who are degraded from the rank of men and deprived of all the opportunities of happiness are not the persons we are to consider. But we will find that even the master of this seraglio, this happy man to appearance, is not much more agreably situated. For in the 1^st place he will be racked with the most tormenting jealousy. For tho in those countries one who keeps only one wife has never the least suspicion of her nor the least jealousy, yet when they have any great number they are sensible that in this case the women can not have great reason to be faithfull to them. They enjoy but a very small part of | their affection, which must be divided amongst the whole; or if it be any way partially bestowed^l the others are the still more dissatisfied, and his jealousy will of consequence be heightened. His affection to his children can be but very small, being divided amongst such a great number; this too is productive of the greatest discontent, as he can never satisfy any of his wives with the share of his affection he bestows on their children, which as I observed must be always greatly disproportioned to that which they expect. By this means he has no enjoyment in the exercise of the parentall affections, but a great deal of anxiety, jealousy, and vexation. He can also have but very little conjugall affection, but a greater share of jealousy than any other man has. The jealousy they entertain of their wives deprive<s> them also of the free communication and society which is enjoyed in this country and in most others where polygamy is not allowed. It hinders them | altogether from receiving one another in their houses, through fear of their getting a sight of or corrupting their women. They are jealous even of the imaginations; a Turk would take it very ill if you should ask him concerning his wife or even mention her in any shape; they must behave as if there was no such person in the world. {Even the physicians themselves are not admitted to see the women, their patients. Mr. Tourneforte56 tells that being at Ispahan, where they are still more cautious and circumspect in this respect than in Turky, he was called to visit the wives of a certain great man; he was carried into a room where there were a number of scrolls put thro’ the wall telling the person, etc., and he was allowed to feel their pulses thro holes in the wall, but did not see one of them.} By this means there can be no friendship or confidence in these countries betwixt the heads of families. They are by this means altogether incapacitated to enter into any associations or alliances to revenge themselves on their oppressors, and curb the extravagant power of the government and support their liberties. We see accordingly that all the countries where polygamy is received are under the most despotic and arbitrary government. Persia, Turky, the Mogulls country, and China are allso. They have no way of making any opposition, so that the government soon oppresses them and they can never again recover. And as the goverment is arbitrary so | the heads of the families are entrusted with the most absolute and arbitrary authority that possibly can be. The whole of the family is at their disposall, both their wives and their eunuchs, as it would be impossible otherwise to preserve order in the state.— By this method of living it necessarily happens that a great number of persons must be intirely incapacitated to have wives and families, for in all countrys of this sort they pay a price for their wives instead of receiving a dower; and many of these are made eunuchs in order to attend on the wives of the others. But altho they had sufficient stock^m to maintain their wives, yet it will still happen that the number of women will be too small; the wealth<y> will deprive the others altogether.

It is advanced indeed in favours of polygamy by Montesquieuⁿ 57 on the authority of Blank in MS.^o that at Bantam, the capitall of the island Java, there are 10 women born for one man; and a Dutch author58 tells us that on the coast of Guinea there are 50 | women for one man. In Europe we are certain that the proportion is very different. It is generally thought that <there> are about 12 women to 13 men, and others say that there are about 16 to 17, and that proportion appears certainly to be hereabouts from the bills of mortality which are kept in different parts of Europe. So that here there is a man to be lost, in war or other^p hazardous labours, out of 13 or 17 before they can all have one wife. It is not probable or to be believed without good foundation that the laws of nature vary so much in other countries. We see that the laws of nature with respect to gravity, impulse, etc. are the same in all parts of the globe; the laws of generation in other animalls are also the same in all countries, and it is not at all probable that with regard to that of men there should be so wide a difference in the eastern and the northern parts. We are told that at Macao, the capitall of Japan, when the inhabitants were | numbered there were found about 11 women to 9 men.59 This indeed would be a disproportion to the prejudice of the women, but would not be sufficien<t> to establish polygamy as there would not then be two wives, far less 30 or 40, to one man without cutting out a great number. This fact we are indeed pretty well assured of, as it was found so on a publick numbering of the people. But then it does not even establish that there was so great a disproportion as it appears to do. For we are to consider that as this was the capitall of the country, in which the head man of their religion resided who alone had 500 or 600 wives, and many other rich men who would no doubt have considerable numbers, there would be collected here a number of women which might well be supposed to make this disproportion, altho in the other parts of the country they were born in the same proportion as in Europe, which is very probable. | This is the only fact which is well attested, for we have never heard of any bills of mortality being kept in those countries of which this is related. The two facts above mentioned on which Montesquieu ground<s> this argument are not at all well ascertaind. They are taken on the authority of two Dutch skippers, the one of whom was about a year on the coast of Guinea trading from one place to an other, and in this way he might from what appeared to him have wanted to believe that Wⁿ:Mⁿ::50:1. The other was about 2 or 3 months at Bantam, and the greatest part of that time on ship board, so that in that capitall they might have appeared to be as 10:1. {If this was realy the case it would be altogether proper that polygamy should take place. The inconveniencies above mentioned would follow, but for that there would be no remedy as the thing would be necessary where such a law of nature took place.}

It is ascerted also as an argument in favours of polygamy60 that in the warmer climates the women loose there beauty much sooner than they do in this country, and that at the time when their beauty [and] would render them fit to be the object of affection^q | their weakness and youth render them all together unfit for being the objects of his confidence and proper to be put on an equall <?footing>, as this time is past before the other comes. And on the other hand when their sense and experience would render <them> fit for this, their want of beauty and incapacity of bearing children counterballance it. They tell us that the women in those countries ripen much sooner than in the northern ones, that they are fit for marriage by 7 or 8 and leave^r bearing children in 20^th or thereabouts. Now this fact is not better ascertained than the former. We are told indeed that they have children by 11 or 12 years of age, and so would many women in this country as well as in the southern ones. It is said that^s Mahomet married his wife Blank in MS.61 at 5 and lived with her at 8. But this has probably been no more than the rape of an infant, which are^t but too common in more northern climates. On the other hand there is no certainty that they | cease to bear children nearly so soon as is alledged. We find that Cleopatra, an Aegyptian, at the age of 36 when the women are past the prime of their beauty even in this country, had charms enough to retain Antony, a man generally very fickle, so as to bring on a separation with Octavia and his ruin; and about a year before this she had born a child. Blank in MS.62 queen of Naples had a child when she was 56; this indeed was reckoned a wonder there, and so it would here. And as the thing was so extrao<r>dinary, and the child to heir the crown, she got a tent erected in the middle of the street and was brought to bed in the presence of the people, that there might be no suspicion of fraud. But altho it was realy the case that the time in which a woman was capable of bearing children and being a proper companion for a man was limited to betwixt twelve and 20, this would not at all require the | establishment of polygamy. It might indeed require voluntary divorce, that the husband, after the woman was incapable of being a proper companion for him, should have it in his power to put her away and take another, but it could never require that he should have more than one who were fit wives at the same time. But the strongest argument of any against the aforementioned opinion that the women are born in greater numbers than the men in the eastern countries, is the constant importation of women into Constantinople, Smyrna,^u Agra, and other towns, from Georgia, Circassia, and other countries of Asia where polygamy is not allowed, or not practised in such extent. And as this is continually going on, it shews that altho a vast number of men are deprived of their wives, yet even by this there are not enough to supply the seraglios. The conquests of barbarous and savage nations is what has given | rise to this in all nations where it is practised. It is very common in most savage nations for the leaders and chief men to have 2 or 3 wives. When such a nation conquers an other the savages will be very apt to indulge themselves in their brutall appetites, and at^v this time^w the leaders and other chief men have it in their power to take 10 or 20 wives instead of 2, and by this means polygamy has been introduced by the savage nations into all countries where it is to be found. The Tartars, a savage nation, have overrun all Asia severall times and Persia above 12 times. The conquest of the Turks, who are properly Tartars, with some Moors, introduced it into Greece.— — —

Polygamy is prejudiciall to the liberty of the subject, not only as it prevents all associations and friendship amongst the heads of families by the jealousy it occasions, but also by the absolutely preventing the existence of a hereditary nobi|lity. When a man who is placed in an eminent station leaves behind him but three or four children, these may be all in a capacity to maintain their fathers dignity, or at^x least one, where the right of primogeniture takes place, may fill his fathers place in most respects. Those who were connected with the father can easily and naturally continue their affection to the son. The persons who are connected with those we esteem come into their place in our affectio<n>, and this when they are but few in number may extend to the whole, or be greatly fixed on one who comes into his place. But where polygamy takes place the children may be so many that the connection with the father makes but little impression on us, our affection being divided amongst so great a number that^y it will hardly be productive of any effect. Nor is there here any one distinguished amongs<t> the children of different wives, and so great a number, above the rest. When a bashaw dies, therefore, his children are no more regarded than those of the meanest person, | and they themselves often fall back into the lowest stations.^z There is not the least regard paid to one on the account of his being come of one who had possessed that dignity; if one of these raises himself to the offices of the state, the respect that is held him proceeds intirely from that new station. There is accordingly no family that is considered as noble or any way distinguished from the rest exceppt the royal family; a haereditary nobility^a is never heard of amongst them. Now we will find that it is this which chieffly supports the liberty and freedom of the people. It is absolutely necessary that there should be some persons who are some way distinguished above the rest and who can make head against the oppressions of the king, or head the people when they are in danger of being oppressed by foreign invaders. Both these ends we see have been answered by the nobility in France and England. | But in those countries where there is no nobility the people have no head to attach themselves to. The whole defense of such a country against a foreign invader must be made by the standing army, but if it be once beat the people can never after make any opposition. We see accordingly that Alexander by two victories made himself master of the greatest part of Asia then known. The same had been done by Cyrus before him. The two great conquerors Tamerlane and Cengis–Kan obtaind their empires by two or three victories. The people here after their first defeat had no persons whom they could pitch on for their leaders. The divisions and disorders which afterwards arose proceeded from the conquerors, and not from any struggles of the conquered. The empires of Tamerlane and Cengis–Kan were split immediately after their deaths, but it was amongst the Tartar chief<s> | who accompanied him. The empire of Alexander was in like man<n>er soon divided, not by the disputes or discontents of the Persians or other nations whom he had conquered, but by the rivalship of his captains. The empire of the caliphs was in like manner split in a short time after the death of Mahome[n]t, not by the efforts of the effeminate and dastardly people whom he had conquered, but by the rivalship of the savage Arabians. They have neither power to resist the invaders after the 1^st defeat, nor can they have any way to shake off the yoke when they are once subjected to the dominion of an absolute monarch, as those generally must be who govern these people. On the other hand where there is a nobility, tho the country be conquer<ed> and over run by foreign troops yet they can make repeated attempts to recover there liberty; we see accordingly that tho France has been severall times over run by the English they have as often shaken off the yoke. | Germany is every 10^th or 12^th year almost totally possessed by the troops of foreign states, but no city ever^b remains with the conquerors. Hungary has been often conquered by the Turks, but was never long in their possession as they had heads to join themselves to in their attempts for liberty.— Besides all these inconveniencies it must certainly be detrimentall to the population of the country. For^c there must be a great number who have no wives; now there would certainly be a much greater probability of a great number of children being born when the women were divided equally than when they were confined to a few. 100 women married to as many men would in all probability have many more children than when they were all belonging to one man. This may possibly be the reason why Persia, and the countries of Gre<e>ce, and those on the African coast, which were formerly very populous, are now but very thinly inhabited. There are indeed some countries | where polygamy has been admitted which are still remarkably populous. The countries on the banks of the Nile and the Ganges, and besides these China, all are^d instances of this. But then the populousness of a country is no sign that all the regulations tend to produce that end. For there may be other circumstancces which more than counterballance that hindrance. These countries are all remarkably fruitful. The banks of the Nile and the Ganges are overflowed by those rivers, and yield immense crops, 3 or 4 in a year. This as there must be plenty of food and subsistance for man must, for reasons I will afterwards explain, promote population, as the number of men is proportion’d to the quantity of subsistence. This is also the case with regard to^e China, and there may also be other reasons with which we are unnacquainted. We see too, on the other hand, that regulations that tend to population do not always produce that effect. Thus the law of marriage in Scotland evidently appears from | the reasons already mentioned to tend to population, yet it has not the effect, being counterballanced by the other obstacles, as the barreness of the country and difficulty of subsistence.^f

Thursday. Febry. 10^th. 1763.

In the two or three former lectures I gave you some account of the different sorts of marriage that are or have been in use in different parts of the world. There are in generall four sorts of marriage: either 1^st, polygamy is allowed, where every man is allowed to have as many wives as he inclines and is able to maintain. Or every man is confined to one wife; this, which we may call monogamy, is of 3 sorts: either the husband has the power of divorce; or 2^dly, both the husband and wife have this power; or 3^dly, the power of divorce is not granted to either of the parties but is lodged in the hands of the civil magistrate, who can grant a divorce on hearing the circumstances of the case. I shewed ye also that polygamy was^g on many accounts much inferior to monogamy of every sort. With regard to the | wives it produces the greatest misery, as jealousy of every sort, discord, and enmity must inevitably attend it. The children also must be greatly neglected in every shape and lead but a very wretched life. The servants must all be slaves and entirely under the power of their master. With regard to the man himself, to whose happiness or rather pleasure the good of all the rest seems to be sacrificed, he also has no great enjoyment. He is racked by the most tormenting jealousy and has little enjoyment from the affections of his family or the intercourse of other men. It is detrimentall also to population, and besides is very hurtfull to the liberty of the people. We will find also that of all the species of monogamy above mentioned that which is established in this country is by much preferable. The dissadvantages which attend the 2^d species, where the husband and wife can seperate on the pleasure of either, must evidently produce the worst effects. I shewed allready what great licentiousness and dissoluteness of manners this produced in Rome during the latter periods of the Commonwealth and those which followed. It must^h produce | very little confidence or trust in the parties, as they have the power of seperating themselves and are continually in fear of being dismissed by the other party. The children must in this case be under very great dissadvantages; it is always found that a stepmother isⁱ no proper person to take care of the children. She has not only far less affection than the mother, but has commonly a jealousy and ill will towards them as rivalls to her and her ofspring. This can never happen in the present state of marriage but on the death of the mother, or divorce, which can seldom happen, whereas the liberty of divorce gives occasion to it frequently during her life. We see that there were few of the great men of Rome, after the latter periods of the Republick, who had not two or three wives in succession, and in this state the children must lead a very uncomfortable life. The 1^st species, where the husband has the sole power of divorce, may be considerably preferable, as the expectation of a separation, tho it must considerably influence both parties, does not give such uncertainty and instability to their conduct as when both have this power. The method of marriage now in use avoids all those inconveniencies, as the union is here indissoluble and must therefore give occasion to none of those | evills above mentioned. The knot indeed^j may perhaps be too straitly tied in some cases. It has been very justly thought proper that the infidelity (of the wife at least<)> should give occasion to a divorce. That injury is such that there can be no harmony or agreement, but continuall distrus<t> and animosity amongst the parties. Now for the same account all injuries which excite the same resentment and hatred, and which render the union equally uncomfortable, ought to produce a^k divorce as well as the others. But however it is better the knot should be too strait than too loose.

These four species of marriage comprehend all those that have been ever in use as far as I know. The power of divorce was never lodged in the hand of the woman alone, as she is considered as the inferior, tho in this point she has been put on an equality. Where polygamy takes place the power of divorce is always vested in the husband. The wives are altogether the slaves of the husband, and are in the same manner bought for a summ of money. They are therefore intirely at his disposall and can be turned away when ever he inclines. This is the case in all countries where polygamy takes place, for, as far as I can learn, the laws respecting marriage | differ very little in the severall countries where it has been receivd.

It may be proper to consider here what concern and interest the husband and wife have in the effects^l of each other according to these different sorts of marriage. Where polygamy takes place the wife has not the smallest concern in the affairs of her husband or the management of the family. That is intirely entrusted to the eunuchs, who are absolutely necessary where this marriage is used. The wife is intirely the slave of the husband, and has no more interest in his affairs than any other slave.— In that species of marriage where the husband has the power of divorce, which was that used in the first ages of Rome, and amongst all the nations of Europe in early times, before the introduction of Christianity, the whole estate of the wife whether real or personall becomes intirely the property of the husband, and the wife has no longer any power over it either^m during her life nor at her death. She is considered in the same light as a daughter or filia familias; she had no more connection with the estate of the husband than she had, and at her death63 | got the same share of the fathers fortune, without any regard to the fortune she brought along with her. In the new marriage of the Romans, which as I said before63a was introduced in favour of heiresses, the case was altogether different. The husband had here no property in the goods of the wife. The whole of her estate was to return to her on the death of the husband, or to her relations if she died before the husband, or before a divorce. The husband had indeed the dominium dotis, but this was in effect no more than the administration of the estate: i.e. if it was a land estate he lifted the rents; if it was a summ of money or personall estate he had the interest of it; if it was consigned into another persons hands, or if he had the use of it, he gave security for the restitution of the principall. The dower on the death of the husband, or divorce, returned to the wife, and at the death of the husband she got besides any settlement he had made upon her; or if there was none such she came in as a daughter,64 besides the carrying away her portion. The separate interests which would often arise from this sort of | mariage would render the union of the parties very uncertain, and the society much less agreable than when they have one common interest, which is allmost allways the case by the sort of marriage in use in this country. The wife here has a middle rank in the family betwixt that which she had in the old and in the new method of marriage amongst the Romans. The law of most countries in Europe is much the same on this head, but there are severall considerable differences with regard to the Scots and English law. The law with regard to land estates inⁿ England is that^o the husband draws all the rents of them during his life.^p After his death they return to the relations of the wife, unless they have had children.— But both by the English and Scots law^q there is allowed what is called the courtesy of England and Scotland, by which^r the husband who has had a living child by his wife has the liferent of the estate. It is considered that if the child had lived the father would have been his guardian by the common | law, and this continues for the fathers life time; this is granted by the courtesy of Scot. and Eng. when ever there has been a child born who has been heard to cry, as this child would have heired the estate.^s What is called the chattles reall, which includes not only land property but all mortgages, servitudes, or what ever is due from a land estate {is so far the property of the husband that he may dispose of them by his own authority, and in that case the money he gets for them is intirely his; but if he does not dispose of them they go to the heirs of the wife.} The chattles personall are all bills and other debts, all the moveables of the wife, jewels, plate, etc.; these are intirely the husband Gap of two lines in MS. But bonds properly so called are on the same footing with the chattles real; that is, if the husband exacts them the money belongs intirely to him, but if not they go to the heirs of the woman, unless the contract specify otherwise.^t It is also provided that if | the wife has not been provided by the contract, she shall have her^u the third part of the husbands personal estate {which in England contains all debts of whatever sorts, bills, etc., as well as the moveables; besides which she has what is called the dower, which is a third part of the land estate during her life.} This is given by the laws of most nations. The Scots law does not give the husband such power over the wifes fortune, nor the wife over the husbands. For here tho the husband may sell the chattles real or draw payment of a bond, yet the wife or her executors may make him give up the money he has so got, but this can<n>ot go to their heirs. The part of the moveable or personall estate which she gets is the third as in England, but does not comprehend the debts or bills, only the bygone rents of his estates.

Gap of about eight lines in MS.

| This is the regulations with regard to the estates after the death of the parties. With regard to them during their lifetime, the wife is not supposed to be capable of entering into any contract or coming under any obligation whatever, either respecting her own or her husbands fortune, unless for such things as are necessary for furnishing the house; for she is considered to have the management of the family under the husband as his servant. If one sends his servant to market or to the shop of any particular person, and once or twice pays the goods he has taken up in his name, he is concluded to be obliged to pay those he afterwards takes up unless he signify his design to the contrary. It is the same with respect to the wife: she is conceived to have the business of furnishing the family, and what debts she contracts in that manner he is conceived to be bound to pay. But in Scotland if he finds her extravagant he may by a public intimation declare that he will not pay such debts as she contracts, and by this means interdict | her from meddling in his affairs. In England there is no such interdiction by any publick deed, but one may give this intimation by letter or otherwise to any particular persons. As she is [is]^v conceived to be^w under^x her husbands influence, so^y no sale of her estate is valid unless she come into court and declare her inclination that it should be so, and unless this be done she may claim restitution, Gap of about seven lines in MS.

I shall only observe farther on this head of marriage some few things with regard to those persons who are prohibited to marry together, and whose marriages are looked upon as incestuous. {These are betwixt those who are connected in certain degrees of affinity and consanguinity.} First, with regard to ascendents and descen<den>ts, their marriages are always prohibited by the civil and cannon laws, that is, a man can not marry his daughter, granddaughter, and | so on, nor his mother, grandmother, etc. in infinitum. With regard to the marriage of the mother and the son, this is of all the others the most contrary to nature, the most shocking and abominable. For here the affection which the son ought to feel towards a mother is very different from that which a husband ought to have towards a mother;65 and that of a mother is in like manner very different from that of a wife. A son is considered as an inferior to his mother and under her^z command, which idea is altogether inconsistent with that of a husband and wife, where the husband is conceivd to have the superiority. The marriage of the father with the daughter is also very shocking and contrary to nature, but not altogether so much so as that of the son with the mother. The affection of a father is without doubt very different from that of a husband, and that of a daughter from that of a wife. A father is considered as the guardian and tutor of his daughter, who is to educate her in all sort of virtues and instill into her the purest moralls and the chastest affections. Now this notion is altogether inconsistent with that of a lover, a seducer, for there is | always some seduction necessary to persuade one to be a wife. {Add to this that nothing could more tend^a to disturb the quiet and peace of the families than the allowing of such marriages. The mother would look on her daughter in a very dissagreable and even a jealous light when there was the least prospect that she might some time fill her place in the marriage bed, and in the same manner the father could not behold his son with pleasure when he thought there was a possibility of his taking his place as the husband of his wife.} But then there is not the same contrariety betwixt their condition in other respects. The father is the superior and the daughter the inferior, and this still continues in the husband and wife; whereas the mother is the superior and the son the inferior, which is altogether contrary to the idea of husband and wife, where the husband is always considered as the superior. Besides this, before the son is fit for marriage the mother is often past child bearing; whereas this is not the case always with respect to the father and the daughter. We see accordingly that tho the marriage of mothers and sons has been prohibited in every country {except from the delirium of superstition, from which the magi, out of veneration to Semiramis,66 allowed that practise}, yet that of fathers and daughters has been tollerated amongst some barbarous nations. The famous Attila, the conqueror of the Romans, married his daughter Blank in MS.67 , and there are other instances of the like. {The case is the same in all respects with regard to more distant ascendents.} Marriage of brothers and sisters is in most countries prohibited. The constant intercourse betwixt them who generally are bred up together, and the many opportunities as well as the great | incitements this^b connection would give them, made it absolutely necessary to put an insuperable barr to their union. There could be no other means to prevent their corruption in such a near and close connection.— Besides if it were not for this barr marriages would never be made out of the family. A man would never incline to take a wife from a family where there were brothers, as he might be pretty well assured of her being allready corrupted. That <?this> is the real reason of the prohibition of marriage betwixt brothers and sisters will be greatly confirm’d by this observation, that where there is the same danger of corruption the prohi<bi>tion is still farther extended and the marriage reckoned incestuous. At Rome^c in the early periods the sons^d lived after marriage in their fathers family, and consequently their children, that is, the cousins german, lived in the same intimacy and familiarity as brothers and sisters do in other countries; they were accordingly called brothers <?and sisters>. For this reason, as there was the | same danger of corruption, so the marriage of cousins german was prohibited and accounted incestuous. On the other hand at Athens the marriage of brothers and sisters consanguinean, tho not of those who were uterine, was allowed and often practised.68 The womens and the mens appartments were there^e altogether seperated, and no communication allowd betwixt them. The jealousy was so great that, tho they allowed a son to go into his mothers appartments with freedom, yet they did not allow the stepson to go into his mother in laws; they did not place the same confidence here as in the other case. The brothers therefor, as they never saw their sisters consanguinean and never went into their appartments, as they always staid with their mother,^f and had consequently no opportunity of corrupting them, were always allowed at Athens to marry those sisters. But as they were allowed freely to enter into their mothers appartment and saw by that means their sisters,69 there was the same necessity of preventing their corruption as in other countries.

With regard to | the marriage of uncles and nieces, and nephews and aunts, there is the same reason for the prohi<bi>tion of it as of the marriage of fathers and daughters, or sons and mothers. The uncles and aunts are considered as a sort of parents who have superiority and authority over their nephews and nieces. The affections betwixt them are very different from that of husband and wife.^g But in the same manner as the marriage of the son with the mother is more shocking than that of the father and daughter, the aunt is naturally considered as a superior to the nephew, whereas when she becomes his wife she comes into the station of an inferior; whereas the uncle is always considered in the light of a superior to his niece. {And the disproportion of age affects these less then the former, as in that of parents and children.} We see for this reason the marriage of nephews an<d> aunts has never been allowed, tho that of nieces and uncles has been in many countries. At Athens as the uncles never saw their nieces as they did never go into their brothers houses, at least into the womens appartment, there was no danger of their corrupting them. They were therefore very common there. The story which is the foundation | of one of Lysias orations,70 which I will perhaps read in the other lecture,71 proceeded from a marriage of this sort. We see also that the Roman Catholicks frequently get indulgences to marry their nieces (from the Pope) tho they never do to marry aunts; these marriages are never allowed in Protestant countries.

With regard to the marriages of remoter collateralls, there was no prohibition beyond the 4^th degree in any case unless where they were parentum et liberorum loco; that is, the brothers or sisters of immediate ascenden<t>s, as uncles and nieces, grand–uncles and grandnieces, etc.; and in this prohibition the cannon law agrees with the civil. But besides this they extend their prohibition to the 7^th degree of their computation,72 that is, to 7^th cousins according to ours. By this they had considerable imoluments, as people might often rashly and ignorently marry such distant relations, and were then obliged either to seperate or get out a dispensation. This has been taken away in this country | and all Protestant ones at the Reformation, and we now observe those regulations in most respects which are delivered in the 18 and 20^th chapters of Leviticus. It is to be observed also that by the civil and other laws the same degrees of affinity are prohibited as of consanguinity, as these persons have somewhat of the same relation. The sister of my wife is as it were my sister, and so in other cases.

Friday February 11^th. 1763.

I have now explained in the four preceding lectures the origin of the perpetuity of marriage, and the injury that is conceived to be done by the infidelity of either party, and why this injury is conceived to be more grievous when committed by the wife against the husband than e contra. I have explain’d also the 4 severall sorts of marriage, the great inconveniencies of polygamy, and made also a comparison betwixt the other 3 sorts. I have shewed also the interest which the wife had in the husbands possessions in these severall sorts; that in the old marriage, where she was in manu mariti, she was considered only as | his servant, and had no more management during his life than as considered in that capacity; and that in the new marriage, where the powe<r> of divorce was common, she had very little power over her fortune; that in the present marriage the wife was in a middle way betwixt the two; as well as the differences betwixt the English and Scots law; and lastly the degrees of consanguinity and affinity in which marriage is reckoned incestuous and is accordingly prohibited.

We may here observe that the prohibitions which are in force in this country with regard to consanguinity, and are borrowed from the law of Moses, are alltogether agreable to nature and reason. It is altogether necessary that the marriage of the mother and the son should be prohibited; the contrary would be shocking and abominable. The marriage of the daughter and the father, of the uncle and the niece, and aunt and nephew, are also prohibited as being naturally shocking and contrary to reason. The marriage of brothers and sisters is also prohibited with great reason and according to naturall Blank in MS.73 . But some of the prohibitions with regard to the marriage of persons connected by affinity appears to | be rather an ordinance of a well regulated police than to be pointed out as naturally and originally improper. There are three points which may be observed with regard to this: 1^st, that the passage of Leviticus74 from which this prohibition is collected is rather overstreatched; 2^dly, that there are severall well regulated polices where this <is> allowed, with some reason; and 3^dly, that it is however a better regulation of police to forbid them.— 1^st, the passage in Levit. from which this is collected is ‘Thou shalt not marry the sister of thy wife least it vex her.’ Now the reason here assigned, least it vex her, plainly shews that this proceeded from the customs of the Jews, who allowed of a plurality of wives, and that here it was forbade to marry two sisters at the same time, least they should be jealous of and ill will each other. And it must be a considerable extension of this to make it be a rule in those countries where it is not allowed to have two wives at the same time, but only one after another. 2^dly., there are severall countries under no bad regulations where there is no hindrance of these marriages. In the East Indies in particular they are not only allow’d but considered as the most proper of any, and are accordingly very common. | They consider that the sister of the childrens mother is likely to make a better mother in law than any other person; that she is more nearly connected with them and has already something of a parentall affection.75 And in this there is indeed some justice. But we will find perhaps, 3^dly, that it is rather more suitable, and a sign of a better regulated police, that they should be prohibited. For tho there is not the same danger of corruption, as the sister of the wife does not before the marriage live in the same house with the husband as his own sister does, yet this prohibition greatly facilitates the sisters living in the house with her sister and her husband. The inseperable barr that is put^h to the union of those persons by the law of the country makes all connections of that sort be looked on as abominable and shocking; they are considered as brother and sister, and are accordingly brothers and sisters in law. By this means the house of the married sister is made a certain refuge and shelter for the unmarried sister. As no one but a mad man would be jealous of the brother of his wife, | so by this constitution no one but a mad woman would be jealous of her husband with her sister, unless <he> be a very brutal man, as all intercourse of that sort is looked on as shocking. It may perhaps be true that the sister would make a better mother in law to the children. Yet they perhaps would be still better taken care of if the sister of the mother could live in the house of their father without scandallⁱ tho not as his wife. This she can by the above constitution do very well; and in this case they will probably be very well taken care of, as she considers them as her sisters children without looking on them as the rivalls of her own.

I shall only observe farther with regard to marriage what are the effects of the want of it. The great effect of marriage is that the children are looked on as legitimate and inherit from their father.— On the other hand those children who are not born in lawfull wedlock are not capable of inheriting. They are called spurii, nothi, sine patre nati, etc. These and all other | illegitimate children are conceiv’d to have no relations either by the father or mothers side. Their father is thought to be uncertain, even although he should acknowledge them; and tho the mother is certain yet they are not allowed to succeed her; and on the other hand as they are not supposed to be capable of receiving any thing by inheritance so they are not allowed to make a testament, at least in some countries. These dissadvantages of illegitimacy may in some respects be taken away in Scotland by letters of legitimation issued by the king.76 The effect of these however is only to render the person capable of testing; this however is not used in England. The bastard in both countries, as he was conceived to have no relations, so his goods fell back to the community, and as the king in Scotland and England is the representative of the community in these matters, and ultimus haeres of every one, so he succeeded to the fortunes which illegitimate children may have acquired.77 In Scotland it seems it was thought that where the king was the heir | there was no power to cut him out of his right by testament. (This, viz the succession of the king, indeed is the case in all countries only in case the person have no children; for if he has married and has children they succeed as in other cases <?and his widow> has her tierce of the moveables and the third of his land estate if he has any; and if he has a wife only, she will have the liferent as before of her dower and the half of the moveables;78 {and if a child has been^j born tho it be dead, that is, there was inheritable blood of the marriage, the estates go to the nearest of kin, but this is not allowed if the child be not born at the parents death; it is considered as a res non existens, contrary to the practise of the civill law which accounts children unborn as giving the same rights as those which are born in the time of the father.}) In England on the other hand this notion was never receiv’d, so that there is there no occasion for any such letters; and if they were to be issu’d they would give the person no right which he had not before. But in Scotland they are necessary to give those^k who are illegitimate the power of testing. The inheritance is supposed to be due to the king, and therefore if he does not give up his right to it the person can not give it away to any other; and the kings letters will be fully sufficient to do this. But tho they make him capable of leaving by will, they will not make him capable of succeding ab intestato to any of his relations. Tho the king can dispose of what is his own, yet he can not give one the power of depriving another of his right. The heir at | law, that is, the nearest of the legitimate relations, would in this case be injur’d, and this the king has in this country no power to do. There is however <?a means> by which in most countries bastards may be made legitimate even with regard to the power of inheriting, viz by subsiquent marriage. That is, if one marries a woman who before lived with him as a concubine, the children born <?before> the marriage are supposed to be legitimate and the stain of their blood is conceived to be washed off; which is indeed but a mere fiction as no subsequent deed can alter the manner of their origin. This manner of legitimation was introduced by the later emperors, and from them borrowed by the cannonists and so spread over the greatest part of Europe. The Romans had severall methods of legitimation besides this.79 As they allowed of adoption of the sons whose fathers were alive, so those who were sui juris were adrogated.80 If therefore a naturall son, who [was] as he was reckoned to have no father was sui juris, submitted himself to the patria potestas of his real father, he was reckond to have the same rights with regard to him | as any other who was adrogated. The rescript of the prince81 also legitimated them in every respect.— 4^th, if a father presented his son to the parish court or curia, and the son subjected^l himself to be liable to the office of decurio, a parish office of a very troublesome nature, he was said to be legitimated per curiae dationem.82 But this as well as that per adrogationem served only to make him capable of succession with regard to the father and some offices of which he was otherwise incapable; and this was also the effect of another method, viz that by which the later emperors allowed, viz that a father should by testament legitimate his children. The legitimatio per subsequens matrimonium was at first introduced by the later emperors, Anastasius, Xeno,83 etc., but not with design that it should be perpetuall. They ordained that all those who should marry their concubines before a certain time should by that means legitimate their children; and so far was it from being designed to be perpetuall that it was intended to encourage them to marry rather than to keep concubines. Justinian however | made it perpetuall; and from his novells,84 which are generally followed by the cannonists with respect to marriage, the cannonists transcribed it into their law. {The cannonists however introduced some restriction with regard to this which seem not to have been acknowledged by the civill law, as that adulterous bastards, that is, such as were born by a concubine when one or both of the parties was married, could not be legitimate by their marrying on the death of the former wife or husband.} The cannon law, as it was at one time or other in force in all countries of Europe, spread this custom over the whole and it has been accordingly universally receivd, excepting England. The clergy at the time this was introduced into other countries had rendered themselves very odious to the nobility by joinin[in]g with King John and Blank in MS.85 in their designs against the people. So that when this law was proposed they replied nolumus veteres leges Angliae mutari.86 It has been intirely receivd in Scotland. The ecclesiasticall court however receivd this custom, and accounted all those legitimate whose parents had married together;^m and as the civil courts did not acknowledge it there have arose several niceities which are unknown in other countries. If one marries a woman who has bore him children before, those born after are without <?doubt> lawfullⁿ and may succeed him; but those who were born before are not by the civill or common laws^o | accounted legitimated. These are called speciall and all others generall bastards. These however do not by the English law succeed in preference of the younger sons^p born after the marriage. He is therefore called the mulier Blanks in MS.87 , corrupted from the French Blanks in MS.87 . {Robert III^d. succeeded to Robert II^d., tho he was born of Eleanor More88 who was within the prohibited degrees, before the dispensation came from the Pope.} But if the eld<?er> speciall bastard, or bastard enné, gets possession of the estate and is not disturbed by his brothers, and his children are allowd to succeed, they cannot be turned out by the heirs of the mu Blanks in MS.87 . Speciall bastards also are allowed to be clergymen, as they are not reckoned bastards by the ecclesiasticall law, but generall bastards, who are so by both laws, are not. An Act of Parliament however can legitimate any one. The predecessor of Henry the Blank in MS.^q , by whom he came to the crown, was a bastard who had been legitimated.89 Other dissadvantages attend bastards in some countries, as they are not capable of publick offices.

| Monday. Febry. 14^th. 1763.

After having taken notice of the 4 different sorts of marriage and the different consequences which followed them, I made some observations concerning the effects of marriage, the chief of which respects the children, as it is the marriage of the parents which gives the children the power of inheriting, etc., and the want of it which makes the children of a concubine incapable of it. We may observe here that <it> is these incapacities which attend the want of marriage which alone maintain monogamy in any country. We see that in all countries where polygamy takes place there are no such incapacities attending the children of a concubine. Where a man has a number of women about him, it matters but little whether he gives them the honourable title of wife or not; there can be but very little difference in the situation of any of his women. The incapacities attending on illegitimacy are the only thing which prevents the introduction of polygamy into any country. For if the children were allowed to suc|ceed, the conveniencies, at least the apparent ones, which attend the want of marriage would soon cause it <to> be laid aside. In the first place, the liberty of separation; 2^dly., the having it in his power to take another wife; and 3^dly, the having the wife absolutely under his power. It is not generally the desire of possessing a womans fortune that makes one submit himself to the restraints of marriage, as that might be had without them; nor is <it> that he may leave her a share of his fortune: a voluntary deed could answer that end; nor is it that they may live together, as they could do that without it; but it is that he may have children who should succeed to his fortune and represent him in the state; and if children out of wedlock were equally capable of this men would not confine themselves by it, but would live with their women during pleasure only and not confine themselves to one. Polygamy would in this manner be very soon introduced.

| We come now to consider the second^r relation which arises from the connections in a family, viz the authority of a father over his children. This we find in all early societies was altogether absolute. There are many reasons which would make this very naturall, which have been already hinted at in treating of marriage. We may observe also that in the early and more rude periods of society men were not conceived to be bound to aliment their children (or maintain them). It was not then supposed that one was bound to do any thing for those who did not do their part to their own maintenance. As now men are only bound not to hurt one another and to act fairly and justly in their dealings, but are not compelled to any acts of benevolence, which are left intirely to his own good will, so in the ruder times this was extended to the nearest relations, and the obligation they were under to do for one another was supposed to be binding only by their inclination; and all kindnesses betwixt | them were reckon’d as acts of benevolence and not as what they were bound in justice to perform. If a son is taken by pirates, or any other set of men, as the barbarous nations on the coast of the Mediterranean sea, who will either in all probability put him to death or reduce him to slavery, we do not look on the father as bound to ransom according to the rules of justice, but only as a great sign of inhumanity and hardheartedness. This was extended at first much farther, and a parent was considered as at liberty either to maintain and educate his children or to leave them at the mercy of the weather and the wild beasts. When therefore he was at the trouble and expense of maintaining a person whom he might without injustice have neglected, that person would appear to be under the greatest obligations to him; which, joind with the other causes before mention’d, produced in early times a great and sovereign authority in the father of the family. The practise of exposing children we see was practised in most early nations.90 The Roman law indeed prohibited <?it> pretty early, and these prohibitions were afterwards repeated; but they do not appear to have | been in any considerable degree effectuall. For we find that long after the first of them the exposing of children was extremely common, in so much that a pillar in the city was, from the children which were often laid down at it, denominated columna lactaria;91 and indeed it does not appear to have been ever thoroughly and effectually prohibited till the establishment of Christianity in the Roman Empire. We see also that it was allowed by law at Athens and many other of the Grecian states, particularly Lacedaemon. The missionaries tell us that <it> is practised very frequently in China,92 and indeed it is so in most countries where polygamy takes place. The women are there, too, remarkably prolifick. They had a notion, it seems, that it was much more humane to put them to death by drowning them than to allow them to lie exposed to the greatest dangers. There were therefore women who made a practise of going about from house to house every morning and receiving the children, which they carried and thro^s into the river, in the same manner as we would send a parcell | of puppies or kittons to be drowned. The fathers make a great merit of their conduct on this occasion. They converted to Christianity two of these women, and took their promise that they should bring them to be baptised before they drowned them. And in this they glory as having saved a vast number of souls. It seems these pious fathers did not consider that it was contrary to the principples of the Christian religion to put a child to death either before or after it was baptised. The power of the father over his children was at first, in Rome, altogether absolute. His authority extended to three different heads: 1^st, he had the power of life and death over his children; 2^dly, that of selling him; and 3^dly, that every thing which was acquired by him was to belong to the father, he being considered as incapable of property. But these powers seem to have been pretty soon mitigated, in the same manner as that which the husband had over his wife. The laws of Romulus gave the father an unlimited power over his children, but this was soon abridged. Numa made a | law by which the fathers were forbidden to sell their sons after their marriage.93 And although the 12 Tables revived the law of Romulus without any restriction, and expressly gave the father the power of selling his sons three times, yet it is probable this extended only to those which were unmarried, for^t when a man takes a wife from another family he becomes bound to her for his labour and work. She has a claim upon him as well as his fathers family. She and the children claim his attention, so that it would be very hard that the son should be seperated from her and sold to be the slave of another man. The authority of the father over the life of the son, which seems at first sight so excessive, appears to have been very soon brought to a moderate and proper pitch. In the same manner as when one marries a woman her relations are apt to take concern in the treatment she receives, and not allow him to exercise more rigour than was just in the punishment of her offences, so there were persons who would keep the exercise of the fathers authority over the children within due limits and not allow of greater severity | than was proper. The other relations, the uncles, etc., would often look on the son somewhat in the same light as a father and be anxious for his being justly dealt with. An uncle might have a nephew whom he designed to institute his heir. The fathers authority was by this means far from being an arbitrary one, as we are apt to conceive it, but was in effect no more than the power of preventing the magistrate in the punishment of those crimes which were punishable by law, and this he did not by his own private authority but with and by the consent of the other relations. We see that as early as the time of Valerius Corvus94 the publick took concern in the conduct of the fathers to their children. He was called before the praetors for sending him out to the country to work with the slaves and not giving him proper education, as the story is told in Ciceros Offices. When therefore the publick took cognizance of so small an offence against the parentall duty, it is not probable it would pass by the arbitrary punishment of crimes which were not liable to a publick^u | correction. The son too was supposed to be incapable of having any property; whatever he had from his father was supposed to be recallible at pleasure, and whatever he got from others came to him. In this too the power of the fathers seems to have been pretty soon restricted. It is probable that in the early times it was extended to those sons only who were not married. When a man takes a wife he has her and his family to maintain. The children indeed are not under his patria potestas but under that of their grandfather, but the wife and they were to be supported by him. We see that the father even in the early times of the Commonwealth was not allowed to dissinherit his children but on certain accompts. For the 12 Tables declared pater familias uti legassit de re sua tutelave suae rei ita jus esto;95 yet there were many cases in which the passing over or exheredating the children rendered the testament invalid. And when the father could not deprive the son of his inheritance, they would not probably allow him to make him destitute in his life | time. We see also that as early as the time of Marcianus96 an order was made by which the praetor was empowered to compell those parents who did not permit their children to marry, when they had a suitable offer, not only to allow them, but also to grant them a portion agreable to their rank. To what purpose would this have served, if the parent had had the power to recall it whenever he inclined. It is well known that Julius Caeser gave them the peculium castrense, and the emperors some time after the pecu. quasi castrense; and some time after they were allowed also to have the property of all that came to them from strangers or by their mother, reserving only the usufruct to the father. Upon the whole the power of the fathers, tho very considerable, does not appear to have been so unbounded as we are apt to imagine.

The power of the fathers amongst our barbarous ancestors which over–| threw the Roman Empire in the west of Europe was at first also very great, but was gradually mitigated and reduced to the present form.—One of the great differences betwixt the state of the fathers in Rome and in this country, and all other Christian ones, is that the father is bound to provide for and aliment his children. The exposing of a child is in this country accounted^v the same^w with the murdering of one, which is punished in the same way as any other murther. The children are in like manner bound to maintain their parents if they should happen to become destitute and unable to maintain themselves. The power of the father over them is also greatly abriged; it extends now no father than the parentalis castigatio, or a moderate correction. This they have over their younger children who live in the family; but if they have taken up a separate family of their own he has no power at all over them, tho they are without doubt allways bound | to give them all due respect and filiall piety. The only thing in which the father differs from other relations is that he is a preferable one to all others. If his son during his minority falls heir to any relation or has a fortune left him, the father becomes his guardian and manager without being appointed, and that without being bound to give security or caution for the faithfull performance of his office, as all others are. The naturall affection he bears his children is conceived to be a strong enough tie upon him without any other.

Tuesday. February 15^th. 1763.

The rights which arise^x from the relations which may subsist in a family are as I observed before of 3 sorts: they belong either to a person as being husband or wife; 2^dly, as father or son; and lastly, as master or servants. I have already considered the two former, and come now to consider the third relation which subsists in a family, viz that of master and servant.

| The same reasons which established the authority of the father of the family over the other members of it hold in a great measure with respect to the servants. The head of the family is the person on whom the others are all naturally in a great measure dependent for their support and defence. The government in most early periods of society, when it is in a very weakly condition, is necessitated to establish jurisdictions in the different parts of the country; they can find no other method which will be sufficient to keep the subjects in due subjection and in any^y tollerable order. The same thing will incline them to commit great authority over the other members^z of the family into the hands of the head of it, and to strengthen his power over them, as they can discover no other method of bringing them under the authority of any sort of government. This gives the head of the family always a very great power over the other members of it in all early times. | The other members however have some^a connections which may probably mitigate this authority considerably. When one takes a wife, she is generally connected with a father or a brother or some other near relation of equall power and authority in the state; she has these to complain to if she be hardly used by her husband; and they will take care that he inflicts no punishment upon her greater than her deserts. The husband therefore, when he sat in judgement on his wife, took her relations into council with him, and the punishment which was inflicted was agreeed on by the joint consent of the whole. The children were in like manner guarded against the too great severity of the father by the interposition of the other relations who thought themselves concerned for their safety and honour. But the servants had no such persons who would or could have any influence with their masters to mitigate their punishment. They had either no relations near them, or none who were of power and consequence any way equall to that of their master. No | restraint therefore was ever put to the authority of the masters over^b their servants, who became therefore slaves^c under the absolute and arbitrary power of their master.— Their condition was therefore very grievous in many different ways.

1^st, with regard to their lives, they were at the mercy of the master, who might do with them as he pleased. His authority was not like that of a father over his children, which^d only executed by the private will of the father the sentence which the laws of the country would have given, but was altogether arbitrary; he might put a slave to death on the smallest transgression, or the slightest neglect of his commands, and no fault was to be found with him. 2^dly, as his life, so was his liberty at the sole disposall of his master; and indeed properly speaking he had no liberty at all, as his master might employ him at the most severe and insupportable work without his having any resource. But as the master had the sole right to his work and labour, so had he the power of disposing of it and transferring him to another master perhaps still more severe than himself. He underwent | in this manner the most severe and grievous tasks imaginable, without having the prospect or even the possibility of being freed from it but by the great good will or the caprice of his master.— — —

3^dly, he was incapable of^e having any property. The fruit of all his labours, which were exacted in the most rigorous manner, went to his master. He was allowed nothing more than was barely necessary for his maintenance, as a horse or other work animall. And if by the most parsimonious life he had saved anything from this scrimp allowance, this could be called in by the master at pleasure. Not only the fruits of his labour, but whatever came any how to him, was immediately the property of his master. He might indeed make any lucrative agreement, as the stipulating for himself a summ of money to be paid against such a day, but this money did not belong to himself but to his master; whatever money was left him in a legacy all was^f claimed by his master. He could enter into no contract without either the express or the tacit consent of his | master. If he should engage to perform certain services or pay any money to one, these could not [bind] be^g binding as illegible word^h would accrue to his master from hence. By the consent of his master however he could enter into any contract, which by that means became binding on his master; or if he had not expressed his consent, but had before acted in such a way as that his consent would be presumed. Thus if a master set up his slave in a shop, all contracts of sale or others which regarded the management of the business were binding on the master to the amount of the peculium he had entrusted him with.97 The condition of the slaves was therefore in all these respects most miserable. Their masters had no restraint put on their cruelty, and the hardest usage was commonly practised on them; their lives were taken away on the slightest occasion. We are told that Augustus once manumitted all the slaves of V Blank in MS.98 Pollio with whom he supped. A slave bringing in a dish happened to break it. The slave fell at Augustus feet and requested him, not to get his pardon of his master, for | death he thought was inevitable, but that he would request his master that after he was crucified, which was the common punishment inflicted on slaves, he should not hack his body into pieces and throw it to feed the fish in his ponds, which was it seems his common way of treating them. Augustus was so shocked at the story that he ordered him to manumitt not only that slave but all the others he had about his house; which though it was not perhaps a punishment adequate to the crime, yet would be a very considerable fine. A man who would entertain Augustus at that time would have at least 800099 or 1000 slaves, and if we estimate these at the ordinary price of a slave in the American colonies or on the coast of Africa[n], that is, about 50 or 40£ each, this would amount to a fine of £40000 or 50000.— They were used in every shape with the greatest severity. They had nothing which could bind them to have any affection for their master, and the most severe discipline was necessary to keep them to their work.

| ⁱ By this we may see what a miserable life the slaves must have led; their life and their property intirely at the mercy of another, and their liberty, if they could be said to have any, at his disposall also. But besides these hardships which are commonly taken notice of by writers, they laboured under severall others which are not so generally attended to. They were, in the 1^st place, reckoned incapable of marriage. We are told that the male and female slaves lived together in contubernium, which is generally supposed to denote the same thing with regard to the slaves as matrimonium with regard to the free persons. But <it> is very plain that there must have been a great difference. For no union betwixt them could have been of a long continuance from the very nature of their condition.—First of all, that which creates the obligation to fidelity in the wife was altogether wanting^j when a male and female slave cohabited together. When a man takes a wife she comes to be altogether under his protection; she owes her safety and maintenance {especially in the lower ranks} intirely to her husband, and from this dependance it is that she is thought to be bound to be faithfull and | constant to him. But a female slave who cohabits with the male one has no such obligation; she is not maintaind by his labour, nor defended by him, nor any way supported; all this, as far as she enjoys it, she has from her master, who will take care of every thing which may enable her to perform her work the better. As therefore she has no particular obligation to him, so she was not conceivd to be bound to fidelity to him. For this reason we see that the corrupting a female slave who lived in contubernio with a male one was not looked on as any way reprehensible or injurious. It was no injury to the master, nor was it any to the slave as he had no claim to her fidelity. The female slaves will therefore always live in a state of prostitution, which we see is the case in the West Indian colonies; and this alone may shew how destructive it is to population, as a state of prostitution is always detrimentall to population. Many other things render their cohabitation precarious. The duration of it does not depend on themselves but on their master. If he thinks that they do not labour so well together, he may send <them> to different parts of his farm, or he | may sell either of them at his pleasure. Or if he thinks he has not the profit he might have by the slaves the female would bear him, he may take her from her present mate and give her to another. The slave is in this manner deprived of all the comforts and can have but very little of the parentall affections of a parent. Tho he be satisfied that they were begotten by him, he knows too that they were not supported nor maintained by him, nor any way protected, which as I said before1 is that which alone constitutes the parentall and filial affections. The slaves at Rome were likewise under an other hardship which is not known by our legall slaves at this time. They are indeed otherwise in much the same condition. The slaves were then not only altogether dependent on others for their lives and property and deprived of their liberty and cut out of the consolations of marriage, for we may justly say they had no wives, but had as we may say no god. Slaves were admitted to no religious society and were reckond profane.^k I observed before2 that superstitious fears and terrors increase | always with the precariousness and uncertainty of the^l manner of life people are engaged in, and that without any regard to their religion. Gamesters,^m who are generally a most profligate, irreligious, and profane set of men and almost entirely devoid ofⁿ religion, are generally most remarkably superstitious; they have a great opinion of a run of luck, etc. Jesters,^o who are generally not the most religious, are more superstitious than any other set of men whatever; the continuall uncertainty they are in necessarily occasions this. Slaves were of all others the most dependent and uncertain of their subsistence. Their lives, their liberty, and property were intirely at the mercy of the caprice and whim of another.— It was therefore very hard that they who stood most in need of some consolation in this way should be intirely debarred from all religious societies, {which might at least sooth their superstitious dreads}. The gods then were alltogether locall or tutelary; they did not conceive any god that was equally favourable to the prayers of all. Each city had its peculiar deities. Minerva presided over Athens; Rome was under the protection of Mars and Jupiter who dwelt | in the Capitoll. These were supposed to favour only their particular people. What had Jupiter who dwelt in the Capitoll to do with a slave who came from Syria or Cappadocia. Besides, the deities then could never be addressed empty handed; who ever had any request to ask of them must introduce it with a present. This also intirely debarred the slaves from religious offices as they had nothing of their own to offer; all they possessed was their masters.— Their masters prayed for their thriving and multiplying in the same manner as for their cattle. Blank in MS.^pteneris sic aequies alumnis.3 The only slaves who were supposed to be under the protection of any god were those which belonged to the priests and ministered in the temples; these were esteemed to be under the countenance and favour of the god whom they thus served. This it was which made all religions which taught the being of one supreme and universall god, who presided over all, be so greedily receivd by this order of men. Even the Jewish religion, which is of all others least adapted to make conquests, was | greedily receivd by them. This religion is not at all calculated for conquest, but by those very reasons is admirably adapted for defence. The proselytes, as they are not of the seed of Abraham, can never be, nor their posterity, entitled to the same promises as the seed of Abraham, of whom they say the Messiah is to be born. They have many other hindrances, as the restrictions from eating certain foods which men generally do it,4 as strangled,5 pork, etc.; these inconveniences make it that we never here now of any converts to Judaism, but at the same time there are very few who desert the Jewish faith. Notwithstanding of these obstructions, as the proselytes of the gate and of the temple, etc. were admitted to some part of the religious worship, and the religion was that of one supreme god common to slaves and freemen, the progress it made at Rome was very rapid. Tacitus6 and Blank in MS.^q tells us that a great part hominum servilis et libertinae conditionis were greatly addicted to the Jewish religion. When the Christian religion was spread abroad, which put all men on an equality without any of these foolish restrictions with regard to meats, the progress | it made amongst these folks was most astonishing. The case was the same with respect to all those who taught the being of one supreme god, as that of Zoroaster and of Mahomet. As the slaves were in this manner in such a subjected condition, we find they were treated with the greatest harshness and their labour exacted with the utmost rigour. And this without being reckoned contradictory to good moralls.—The slave who was used for the porter w[h]as chained in his cell near the gate, as we would chain a great dog.^r Catullus7 mentions in some of his elegies how happy he was when he heard the rattling of the chains of the porter of his mistresses house. If the slave was a runnaway, but his work requird that he should go about, he had a great log of wood chain’d to him. The slaves who wrought in the country were kept all night in cells underground, but a few in each that they might not break loose, and when they were carried to work they were coupled two and two together, and in that manner they wrought. Nothing was more common then^s to turn out the old or diseased slaves to die, as we would a dying | horse. Cato, who was a man of the most severe virtue and the strictest observer of the morall rules then in fashion, used frequently to do this and confessed it without any shame; and this he would not have done if it had been contrary to the practise of the times.8 In the same man<n>er as it is common near a great city to have a place where they put dying cattle, so there was an island in the Tiber into which they^t used to turn the slaves who were about to dye, and we are told it was white all over with their bones.

We are apt to imagine that slavery is entirely abolished at this time, without considering that this is the case in only a small part of Europe; not remembering that all over Moscovy and all the eastern parts of Europe, and the whole of Asia, that is, from Bohemia to the Indian Ocean, all over Africa, and the greatest part of America, it is still in use. It is indeed allmost impossible that it should ever be totally or generally abolished. In a republican government it will scarcely ever happen that it should be abolished. The persons who make all the laws | in that country are persons who have slaves themselves. These will never make any laws mitigating their usage; whatever laws are made with regard to slaves are^u intended to strengthen the authority of the masters and reduce the slaves to a more absolute subjection. The profit of the masters was increased when they got greater power over their slaves. The authority of the masters over the slaves is therefore unbounded in all republican governments. And as the service which is exacted of them is so great, and their masters so rigorous, they require the strictest discipline to keep them in order. In all countries where slavery takes place <?we see> that the number of free men is very inconsiderable in comparison of that of the slaves. A Roman of a middling fortune would have 500 or 600 slaves in the house about him, and in the country some thousands under the direction of 5 or 6 freemen who exercised the most tyrannicall authority over them, in the same manner as the negroe slaves are in the sugar colonies. The greatest rigour is necessary to make them be in safety. | They were therefore used with the utmost severity. It was a customary thing for the master to give the slaves a whipping every evening, as they do in the West Indies in the morning. Seneca complains (in his De Beneficiis),9 when declaiming on the vices of the times, that he was waked at midnight by the cries of the slaves, whom the master chastised then instead of in the evening; it is not the thing, but the bad hours, of which he complains. The state was in continuall hazard from their insurrections; the servile war was chiefly owing to them, and requred the skill of the ablest generalls to quell it. This made still greater severity necessary. The freedom of the free was the cause of the great oppression of the slaves. No country ever gave greater freedom to the freemen than Rome; so that a free man could not be put to death for any crime whereas a slave could for the smallest. The slaves who were in the house or on the road with their master, whether they had fled or not, where he was murthered were frequently all put to death.10Blank in MS.11 tells us that a man^v being murtherd in his house, all his | slaves to the number of 400 were carrying to execution; on which the mob rose. The Senate was called, and one of the severer^w senators who adhered to the old principles stood up and told them that there could be no safety for any one if this example was not made, that the slaves might see that the greatest attention was to be paid to their master, etc. In the same manner Carthage, Tyre, Lacedemon, etc. were all in danger from their slaves. In a monarchicall government there is some greater probability of the hardships being taken off. The king can not be injured by this; the subjects are his slaves whatever happen; on the contrary it may tend to strengthen his authority by weakening that of his nobles. He is as it were somewhat more of an impartiall judge, and by this means his compassion may move him to slacken the rigour of the authority of the masters. We see accordingly that no absolute monarchy was ever in danger from the <?slaves>, | neither the Mogulls country, Persia modern or ancient, nor Turky, etc. ever were.

Wednesday February 16^th. 1763

We may observe here that the state of slavery is a much more tollerable one in a [a] poor and barbarous people than in a rich and polished one. There are severall things which naturally tend to produce this effect. 1^st, in a wealthy and opulent country where slavery is tollerated their number is always very great, and far greater than that of the freemen. Their wealth enables them to maintain immense numbers. A wealthy noble man would have 1000 or perhaps severall 1000^s. We are told that Trebellius,12 a man who was reckoned one of the most sober and least expensive at that time, that some times he had 200 and some times but 10 slaves, according as his work required. From whence we may see, by the manner in which it is told, that 10 slaves was as few or fewer than any one who pretended to the character of a gentleman would keep at that time. The slaves in this manner were generally at least ten times as numerous as the free men. They were | consequently a very formidable body, and would keep the state in continuall terror. In a poor country on the other hand the wealth of the inhabitants can not put it in their power to maintain a great many slaves; there will be few that can come the length of 10 or 12; many will have but 2 or 3, and the far greatest part none at all. The number of slaves therefore in this country would be less or very little greater than that of the freemen, and consequently would not put them in any terror. In rich countries therefore, as they will be in continuall fear of their slaves, so will they treat them with the greatest severity and take every method to keep them under. We see accordingly that at Rome, where the riches was immense and the people in continual dread of their slaves, of which there were a prodigious number, far greater than that of the free men, the slaves were treated with the utmost severity, and were put to death on the smallest transgression. Amongst the old Germans and others, as Tacitus13 tells, they were used with the greatest humanity. He says a man would kill his | slave their in no other way than he did his enemy, that is, he would kill him in a fit of passion, but not thro caprice or for any small transgression. We see in the same manner the slaves in the American colonies on the continent are treated with great humanity and used in a very gentle manner. Their masters are not at all rich, and consequently can not afford to keep any great number and are in no terror concerning <?them>. In the West Indian sugar islands, where they are strictly used, their numbers are very great. The sugar trade as every one knows is much more profitable than the cultivation of corn, in which the planters of North America are chiefly employed, and who as they have thereby but very moderate fortunes keep but few slaves. But the sugar trade being the most profitable of any, and many persons often raising themselves immense fortunes in a very short time, they can well afford to keep a multitude of slaves; their numbers therefore far exceed the number of freemen. This keeps them in continuall dread of them, and the greatest rigour and severity is consequently exercised upon them. They are put to death in prodigious numbers on the least appearance of insurrection. | Any one who appears to make the least disturbance is immediately hanged up; and this not in the common way with a rope, but with an iron collar such as they use for the dogs,^x in which they will hang 6 or 7 days till they die of hunger. Besides the dread the freemen are in of the slaves in a rich country, there are other things which will make them be treated with much greater severity. In a poor country there can be no great difference betwixt the master and the slave in any respect. They will eat at the same table, work together, and be cloathed in the same manner, and will be alike in every other particular. In a rich country the disproportion betwixt them will be prodigious in all these respects. This dis<pro>portion will make the rich men much more sevr14 to their slaves than the poorer ones. A man of great fortune, a nobleman, is much farther removed from the condition of his servant than a farmer. The farmer generally works along with his servant; they eat together, and^y are little different. The disproportion betwixt them, the condition of the nobleman and his servant, is so great that he will hardly look on him as being of the same kind; he thinks he has little title | even to the ordinary enjoyments of life, and feels but little for his misfortunes. The farmer on the other hand considers his servant as almost on an equall with himself, and is therefore the more capable of feeling with him. Those persons most excite our compassion and are most apt to affect our sympathy who most resemble ourselves, and the greater the difference the less we are affected by them. {The same will be the case with slaves.} The old Romans during their simple and rude state treated their slaves in a very different manner from what they did when more advanced in riches and refinement. In those early times, which are generally accounted the virtuous as well as the simple times of Rome, there was no great number of slaves, and those which there were^z <?were> treated with the greatest humanity.15 Their number was not sufficient to make them jealous of them, and they16 was also much less disproportion in their manner of life. They wrought, they eat^a altogether[ther]; so far were they from looking on them as creatures of little value and below their regard that they put the greatest confidence in them; they looked on them as faithfull friends, in whom they would find sincer<e> affection. {The slaves were treated much in the same way as the children of the family.} So far re|moved were they from the^b cruelty of their posterity, who would feed their fish with the bodies of their slaves. The Germans had very little distinction from their slaves; idem Cattus,17 idem victus; they had the same dress and the same manner of living, and they were accordingly very humane to them. In the same manner a North–American planter, as he is often at the same work and engaged in the same labour, [he] looks on his slave as his friend and partner, and treats him with the greatest kindness; when the rich and proud West Indian who is far above the employment of the slave in every point gives him the hardest usage. It is not the barbarity of the North Americans but merely their poverty which makes them thus familiar, and of consequence as I have shew<n> humane. The more society is improved the greater is the misery of a slavish condition; they are treated much better in the rude periods of mankind than in the more improved. Opulence and refinement tend greatly to increase their misery. The more arbitrary the government is in like manner the slaves are in the better condition, and the freer the people the more miserable are the slaves; in a democracy they are more miserable than in any other. | The greater <the> freedom of the free, the more intollerable is the slavery of the slaves. Opulence and freedom, the two greatest blessings men can possess, tend greatly to the misery of this body of men, which in most countries where slavery is allowed makes by far the greatest part. A humane man would wish therefore if slavery has to be generally established that these greatest blessing<s>, being incompatible with the happiness of the greatest part of mankind, were never to take place.

It is evident that the state of slavery must be very unhappy to the slave himself. This I need hardly prove, tho some writers have called it in question. But it will not be difficult to shew that it is so to the masters. That is, that the cultivation of land by slaves is not so advantageous as by free tenents; that the advantage gained by the labours [slaves] of the slaves, if we deduce their originall cost and the expence of their maintenanc<e>, will not be as great as that which is gaind from free tenents. In the antient governments where slaves were the sole cultivators of the land the method was to assign them a piece of ground to cultivate, all the produce of which belong’d to their master, except what he allowed to them for their maintenance. | We find that this part which was over that which was necessary for the maintenance of the cultivators in the fruitfull countries of Greece and Italy was about ⅙ part of the produce, whereas in Scotland and England where the rents are high the tenant pays ⅓ part for the rent. The cultivation of the lands of Greece and Italy must evidently from thence have been very bad, when they produced only ⅙ part more than was necessary to maintain the cultivators, altho the soil be exceedingly fruitfull and the climate very favourable; whereas the barren and cold countries of Scot. and Eng. afford 2ce as much to the landlord and must^c consequently the land produces about Blank in MS.^d much as it did before. The reason of the loss in cultivating land in this manner other than by free tenants will be very evident. The slave or villain who cultivated the land cultivated it entirely for his master; whatever it produced over and above his maintenance belonged to the landlord; he had therefore no inducement to be at any great expense or trouble in manuring or tilling the land; if he made it produce what was sufficient for his own maintenance this was all that he was | anxious about. The overseeer perhaps by a hearty drubbing or other hard usage might make him exert himself a little farther, so as to produce from the farm a small portion for the landlord; but this would not be very great, and accordingly we see that a farm which yielded^e ⅙ part of the produce to the master was reckoned to [to] be tollerably well cultivated. On the other hand as the free tenant pays a stated rent to the master, whatever he makes the farm produce above that rent is intirely his own property, and the master can not exact as he could from the ancient villains or slaves exact, any part they have saved above the rent,^f what they had saved out of the part allowed for their maintenance. This gives them much greater spirit and alacrity for their work; they will then be at expense to manure and improve their land, and will soon bring it to that degree of cultivation as to be able to pay ⅓ part to their masters and nevertheless have a much better as well as a more certain livelyhood out of the remaining two thirds; and whatever they produce above that, which is supposed to be about ⅓ of the produce, is altogether their own. Such a manner of cultivation is therefore far | preferable to that by slaves, not only to the servants^g but even to the master.— Notwithstanding of these superior [of] advantages it is not likely that slavery should be ever abolished, and it was owing to some peculiar circumstances that it has been abolished in the small corner of the world in which it now is. In a democraticall government it is hardly [hardly] possible that it ever should, as the legislators are here^h persons who are each masters of slaves; they therefore will never incline to part with so valuable a part of their property; and tho as I have here shewn their real interest would lead them to set free their slaves and cultivate their lands by free servants or tenents, yet the love of domination and authority and the pleasure men take in having every <thing> done by their express orders, rather than to condescend to bargain and treat with those whom they look upon as their inferiors and are inclined to use in a haughty way; this love of domination and tyrannizing, I say, will make it impossible for the slaves in a free country ever to recover their liberty.— In a monarchicall and absolute government their condition will possibly be a good deal better; the monarch | here being the sole judge and ruler, and not being affected by the easing the condition of the slaves, may probably incline to mitigate their condition; and this we see has been done in all arbitrary governments in a considerable degree. The condition of the slaves under the absolute government of the emperors was much more tollerable than under the free one of the Republick. But although the authority of the sovereign may go a considerable way in the mitigating of the condition of slaves, yet it never has <and> can never proceed so far as to abolish slavery altogether. In all countries where slavery takes place[s] the greatest part of the riches of the subjects consists in slaves. If he is possessed of a land estate the whole management of it is carried on by the slaves; without them there can be nothing done; they work and till the ground, and practise every thing else that is necessary to the cultivation of the land or the support of their master. A man of a considerable estate would have some thousands of slaves upon it, and the meaner sort in proportion, but allmost every one if the country be tollerably wealthy will haveⁱ some slaves; and in them the greatest part | of their wealth will consist. In the same manner we see at this time the great stock of a West India planter consists in the slaves he has in his plantation. To abolish slavery therefore would be to deprive the far greater part of the subjects, and the nobles in particular, of the chief and most valuable part of their substance. This they would never submit to, and a generall insurrection would ensue. For no single man ever had or possibly could have power sufficient to enable him to strip his subjects in that manner. If he set a slave at liberty this was robbing his master of the whole value of him. This therefore could never take place. This institution therefore of slavery, which has taken place in the beginning of every society, has hardly any possibility of being abolished. The government in the first stages of society is as I said18 very weak, and can not interpose much in the affairs of individualls. Government is far advanced before the legislative power can appoint judges at pleasure, as is now the case in Britain where the king can ap|point any one a judge he pleases who is a lawyer by profession, and for the lower judiciall offices any one he pleases. This could not be done in an early society. The people would not submit themselves in that manner. The government therefore would find it necessary to take advantage of the superiority and authority of certain persons who were respected in the country and put the judicial power into their hands. Jurisdictions were in this manner established, and the same cause made it necessary to strengthen the hands of all private masters of families. Slavery therefore has been universall in the beginnings of society, and the love of dominion and authority over others will probably make it perpetuall. The circumstances which have made slavery be abolished in the corner of Europe in which it now is are peculiar to it, and which happening to concurr at the same time have brought about that change.^j

The government of Europe was at that time feudall. The power of the great lords consisted in their vassalls and their | villains. The whole of the land at this time was (as was before mentioned) cultivated by villains or slaves in the same manner as by the slaves in the ancient governments of Rome and Greece. There were two thing<s> which brought about their freedom. In the first place, the church and the clergy were at that time a very powerfull set of men in all the countries of the west of Europe. The clergy have allways more weigh<t> and authority over the lower and more laborious part of mankind than over the rich and the powerfull. There authority^k therefore was at this time chiefly over these villains or slaves. They saw then or thought they <?did> that it would tend greatly to aggrandize the power of <the> church, that these people over whom they had the greatest influence were set at liberty and rendered independent of their masters. They therefore promoted greatly the emancipation of the villains, and discouraged as much as lay in their power the authority of the great men over them.— The kings interest tended also to promote the same thing. The power of the nobles, which often was dangerous to their authority, consisted in the dependance of their | vassals, and theirs again of their vassalls or villains. The slaves when numerous and in a rich and free country, as they become an object of dread and terror to the body of the people are never trusted with arms, as they are there^l the naturall enemies of the governing part; but in a poor country and one under arbitrary government, especially in rude times, they are no object of terror to the government or great people; they^m accordingly made the chief body of the soldier<s>ⁿ in these times, and in them the power of their superiors consisted. The kings interest also led him on this account to lessen the authority of the nobles and their vassalls over their villains. The kings courts on this account were very favourable to all claims of the villains, and on every occasion endeavoured to lessen the authority of the landlord over them. They gave particular favour to the speciall villains, as they were called. These were such as having got some substanc<e> by some means or other, agreed to hold a piece of land of the lord of the manor and pay him in the manner that | the others did, during the pleasure of their master. The words that were used in this bargain were that they should hold according to the custom of the manor. The court took advantage of this expression for the benefit of the dependents and interpreted them thus: that as the lords did not commonly or customarily turn them out unless for some great offence, so they made their agreement to be that they were to continue in possession for ever, unless on any such transgressions or offences as were punishable by law. In this manner they became from being speciall villains to be copy–holders.^o The landholders were^p in this manner restricted in their authority over their villains by two of the most powerfull members of the state. The clergy, a body at that time very powerfull, thought it their interest to encourage the villains, and the authority of the king, the head of the state, coincided with theirs. They in this manner agreeing rendered the authority of the masters of the villains but very inconsiderable, if compared to what it had | been some time before. They saw too perhaps that their lands were but very ill cultivated when under the management of these villains. They therefore thought it would be more for their own advantage to emancipate their villains and enter into an agreement with them with regard to the cultivation of their lands. In this manner slavery came to be abolished; for at this time the villains were the only sort of slaves.^q Our ancestors were then a rough, manly people who had no sort of domestic luxury or effeminacy; their whole slaves were then employed in the cultivation of the land. When therefore^r villainage was abollished slavery was so also. The great power of the clergy thus concurring with that of the king set the slaves at liberty. But it was absolutely necessary both that the authority of the king and of the clergy should be great. Where ever any one of these was wanting, slavery still continues. In Scotland, England, | the authority of the king and of the church have been both very great; slavery has of consequence been abolished; the <?same> has been the case in France, Spain, etc. But in the elective kingdom of Poland, the elective empire of Germany, and the kingdom of Bohemia, which was elective till the House of Austria got possession of it, slavery still continues;^s they have the adscripti glebae solo advincti,19 as they call them, on the same footing as the old villains in this country. For in all these countries the authority of the king could never be very considerable; for all elective kings as I shall shew more fully afterwards have much less power than those who are hereditary. On the other hand tho zars of Moscovy have very great power, yet slavery is still in use, as the authority of the Greek church tho very considerable has never been nearly so great as that of the Romish church was in the other countries of Europe; as we see from the accounts of that country even before the time of Peter the Great.

The villains being thus emancipated had no stock wherewith they could undertake the | cultivation of a farm.— Tenents holding by steel–bow, or mettierés^t as they are called in France, were the first species of free tenents who followed on the abolition of villainage. The landlord agreed to furnish them with every thing necessary for their work, as they had nothing of their own. He gave them oxen, which they were to restore at the end of their lease, which was generally at the end of the year, ad arbitrium boni viri, equall in number and value to those they had received; he gave them all other necessaries; with these they cultivated the land, and had for their labour a part of the produce. The agreement was that they should divide the produce at years end; the farmer took one sheaf and the landlord another and in this manner they divided equally the whole produce. ’Twas in this manner the tenents by steel bow were the first which followed on the villains. This manner, tho as I shall hereafter shew the worst of any by free tenents, was yet greatly preferable to that by slaves. Whatever the slave by culture made the farm produce above what was necessary for his maintenance belonged to the master, | and if he had from his part saved a little his master could recall it at pleasure. He had by this means no temptation to any extraordinary exertion of labour. But the farmer by steel–bow was equally profited by a great produce as the landlord; he had so many sheaves more, as well as the landlord, than when the crop was indifferent. His interest therefore^u as well as that of the landlord <?>. But still it was a great discouragement that when he had bestowed an extraordinary expense or labour on the farm the landlord, who had done nothing more than he did in any other year, should carry off the half of the profits. All such defalcations from the produce of industry must greatly retard any efforts of the farmer. Tythes are for this reason, as shall also be more fully explaind, very detrimentall to the industry of the farmer, as the parson without any labour of his takes the 10^th part of all the farm produced by the additionall industry of the farmer.— When these farmers by steel bow had by hard labour and great parsimony got together | in 10 or 20 years as much as would enable them to stock a farm, they would then^v make an offer to their master that they should stock the farm themselves and maintain this stock, and instead of his having the uncertain produce of the harvest, which might vary with the season, he should have a yearly gratuity, on condition that he should not be removed at pleasure but should hold his farm for a term of years. This proposall would not only be agreable to the farmer but also to the landlord. He would be very willing to change the half of the product of the farm, which might vary with <the> season, into a certain some20 proportionable to that which he got one year with another. And from this it is that the half of the product was generally reckond to be the proportion of the rent. This way of farming would tend much more to promote industry than the former. The farmer here is certain that all which he can raise from the farm above the stated rent will be his own, and therefore has a great inducement to exert his activity upon it. This stated rent where | land is high rated is about ⅓ of the produce, and this as I said21 is greatly more than what was paid out of a farm when cultivated by slaves; and the part which the farmer has is also much greater.

There is one instance, and that one which we are best acquainted with, which shows very plainly the dissadvantage of the culture or work of any sort being carried on by slaves when compared with that carried on by free and hired^w men. That is the colliers and salters, which are the only vestiges of slavery which remain amongst us. Tho these are in far better condition than the servi or villani formerly, yet the labour carried on by them is very expensive.— They are far more easy in many points than those antient slaves. In the first place, their lives are under the protection of the laws of the land, as well as those of other subjects. A master of a coal or salt work can not kill his slave at pleasure as the Romans could, and is as liable for such a murder as for any other.— Their property is also safe, for they do not, as the old slaves, work | intirely for their master, deducing only what is necessary for their support, but are paid for the work they do in the same manner as other labourers; and whatever they acquire in this manner is intirely their own and can not be siezed by their master. They can be sold, it is true, but then it is only in a certain manner. When the work is sold all the colliers or salters which belong to it are sold allong with it. They in this respect resemble the villani or adscripti glebae in Germany, which always go along with the land they cultivate but can not be sold seperate. The colliers in the same manner are adscripti^x operi; they are sold allong with the work, but can not be sold or given away singly.22 They have also the liberty of marriage, for as they are not seperated from one another the<y> may marry and live together as other labourers. They have also the free exercise of religion, which the nature of it makes free to all. But we are not to imagine the temper of the Christian religion is necessarily contrary to slavery. The masters | in our colonies are Christians, and yet slavery is allowed amongst them. The Constan<t>inopolitan emperors were very jealous^y Chrristians, and yet never thought of abolishing slavery. There are also many Christian countries where slavery is tollerated at this time.— The colliers in this manner have a great many of the priviledges of free men; their lives are under the protection of the laws as others; their property is also insured to them; and their liberty is not alltogether taken away. They have the benefit of marriage and the exercise of religion. So that they are no way restricted^z more than other men, excepting that they are bound to exercise a certain business and in a certain place. And this has been the case with many other persons who thought themselves free. Many nations in the East Indies who account themselves altogether free are bound to exercise the trade or profession of their father. The old Aegyptians, who never thought themselves in any respect slaves, were after the time of Sesostris23 obliged in like manner to adhere to <the> exercise of their forefathers business. Yet altho | they differ in so small a degree from free men, their labour is much higher. The price of the work done by day labourers in time of peace when workmen are not scarce is very moderate in this country; I mean of such labours whose art24 requires no art but mere labour. Those which require even some degree of art are but very low. A weaver, e.g., will ask from 8^d to 9^d per day; and others which require no art, that is, such as are acquired without great instruction by a short practise, as that of a plowman, ditcher, etc., which every strong man who lives in the country acquires without serving an apprenticeship, these earn from 8^d to 5^d per day. 6^d is the mean rate. A collier on the other hand, whose work is mere labour such as any man who can handle the pick will learn by a very short practise, earn<s> at the rate of 2^sh, 2^sh6^d, or 3^sh per day. This immoderate price of labour in these works would soon fall if the masters of them would set their colliers and salters at liberty, and open the work to all free men, who are now deterred from ever entering into one as it is a rule that one who works a year and day in the coal | pit becomes a slave as the rest and may be claimed by the owner, unless he has bargain’d not to take advantage of this. But this the masters of coal works will never agree to. The love of domination and authority over others, which I am afraid is naturall to mankind, a certain desire of having others below one, and the pleasure it gives one to have some persons^a whom he can order to do his work rather than be obliged to persuade others to bargain with him, will for ever hinder this from taking place. This work indeed, being somewhat more dissagreable and more hazardous than others of the same sort, they might perhaps require wages somewhat higher, but this would not come above 8^d or 9^d; so that a collier has now about 4 times the wages he would have were the work open to all men. But notwithstanding of this high wages we see the colliers frequently run off from the works in this country to those about Newcastle, where they will not earn above 13^d or 14^d a day as the work is open; but we never saw any come from Newcastle here.— — —

| There are severall other inconveniencies arising from the institution of slavery, which I shall take notice of in treating of police.25 I shall only observe one or two remarkable ones. 1^st, that it is very detrimentall to population. As it is for the labour of the slaves that the masters desire to have them, so it is chiefly male slaves which they procure as they are most able to sustain a great degree of hard labour. The women are not of such strength, and are therefore not much coveted. They are never desired for propagating, for as it is always much cheaper to bye an ox or a horse out of a poor country where maintenance is cheap than to rear them in a rich one, so is it much cheaper to bye a slave from a poor country than to rear them at home. We see accordingly that there were very few vernae, as they called them, in Rome;26 the far greater part were brought from Syria, Scythia, Cappadocia, or other poor countries. We are told that at the isle of Delos, which lay in the course betwixt Rome and these different countries, there have been sold in one day on account of | the Romans above 10000 slaves at market time;27 and we may see from thence what a prodigious annual import of them there must have been at that time. There is also a prodigious number, tho not so great as the former, annually carried from the coast of Africa to the severall European colonies in America and the West Indian islands. Of these there is but a very small part women. Demosthenes28 in one of his orations, giving a catalogue of the fortune his father left him, tells us he left him fifty male slaves and 2 female ones, so that here the proportion is as 1:25. Nor is there many more in the West India sugar islands. It must necessarily happen from the nature of things that these women will live in a state of prostitution, a state of all others the least proper for propagation; so that there is no great probability that there will be many children born of them. But if it should happen that there were some born, as must necessarily happen sometimes, there is no great prospect of their being reared up to maturity.— A child is a very delicate plant, one that requires a great deal | of care and attendance, and attention in the rearing.— It is generally reckond that the half of mankind die before 5 years of age. But this is the case only with the meaner and poorer sort, whose children are neglected and exposed to many hardships from the inclemencies of the weather and other dangers. The better sort, who can afford attendance and attention to their children, seldom lose near so many. Few women of midd<l>ing^b rank who have born 8 children have lost 4 by the time they are 5 years old, and frequently none of them at all. It is therefore neglect alone that is the cause of this great mortality. And what children are so likely to be neglected as those of slaves, who are themselves despised and neglected by all. Tho therefore some children be born, few of these will be reared. It is found that by all thes<e> concurrent reasons the stock of slaves in the West Indies would be exhausted alltogether in 5 or 6 years, so that in each year they must import about ⅕ or ⅙ of the whole;29 a proportion | which we find in no other state of men.

I shall only observe farther on this head that slavery remarkably diminishes the number of freemen. That it must diminish the number of freemen is altogether evident, as a great part of the free will become slaves. But it does this in a most astonishing proportion and such as one can hardly conceive.

A man according to the ordinary computation may make a shift to support himself and perhaps a wife and family on 10 pounds a year. When therefore we look on a man of an overgrown or large estate, we are apt to conceive of him at first sight as a monster who destroys what might afford subsistence for a vast number of the human species. And in this light our forefathers did consider them, and took all methods to prevent their arising.— A man who has an estate of £10,000 per ann. has what might afford a subsistence to 1,000 men and their families; but this, supposing him to be a mean man who gives | nothing away and has no generosity, he consumes on himself and 4 or 5 servants.30 We look on this man as a pest to society, as a monster, a great fish who devours up all the lesser ones; for it is all one whether one destroys the persons themselves or that which ought to afford them their maintenance. A man who consumes 10,000 pounds appears to destroy what ought to give maintenance to 1000 men. He therefore appears to be the most destructive member of society we can possibly conceive.— But if we observe^c this man we will find that he is no way prejudiciall to society but rather of advantage to it. In the 1^st place, he eats no more than what any other man does; he has not a larger stomach than any ordinary plowman;31 all the odds is that his is better chosen and culld out from the heap. As to his cloaths, he may indeed seem to consume more of these. He has indeed a great many suits and is at a great expense for cloaths, but then he does not consume these all at once. In reality he does not consume so much as an ordinary plowman. His cloaths are of greater | variety, it is true, but then he wears them very little; he is hardly ever out of his chair unless it be to take a walk in a fine day. He never exposes them to be spoiled by the weather or rubbed^d and torn by hard labour. After he has done with them they are fit for many different purposes; whereas the plowman who has his cloaths continually exposed to all sorts of destruction wears considerably more; his cloaths when he has done with them are fit for nothing but to be thrown on the dung hill to manure the land. This man therefore, as he consumes hardly any more, nay perhaps not so much as another, all the odds is that what he consumes is culled with nicety and care. And as the flower when the finest part is taken from it is almost as good as before, so what this man leaves is not much less fit for the maintenance of men than it was before. Let us suppose that he has this rent paid in kind (for there can be no odds in that), and that one man pays him 1000 measures of wheat, another as many of barley, another as many oxen, as many sheep, | another as many measures of wine, and anothe<r> of oil. Now of all of these he consumes but a very small part. That part is indeed chosen with great nicety and care; the rest he gives away to those who^e cull out this part for him. This part which he consumes is wrought up by labour so as to be worth immensely more than what it was before, or what the part which would support a man was naturally worth. This part here is changed from 10£ value to be worth 10000, so that it is wrought up to 1000 times its value. In the same manner those who receive the rest of his goods will perhaps spend 5 or 600£, so that there what is consumed by them is wrought up to above 100 times its value. Others again below these consume what costs them 200 or three hundred pound; others again 50 or 60, and so down to those who consume but about 10£ or less in the year. The produce of his estate is by this means wrought up to be worth altogether 1000 times its originall value. It will not however support more men than before; the rich man has not that effect. But he gives occasion to a greatly^f of work and manufacturing, such as is necessary | to raise so much in its value. It would therefore be of no advantage to the state in the present state of things to prevent the growth of such large fortunes. For tho an agrarian law would render all on an equality, which has indeed something very agreable in it, yet a people who are all on an equality will necessar<il>y be very poor and unable to defend themselves in any pressing occasion. They have nothing saved^g which can give them relief in time of need. But when goods are manufactured, a very small quantity of them will procure an immense one of the unmanufactured produce of an other country. Half a ships loading of cambricks or broad cloath will procure in Russia as much unmanufactured flax as will load a whole fleet. The higher the manufacture is carried the greater will be the quantity it will procure. A man can carry as much of the finer Brussels lace in his pocket as will get him at Riga or Petersburgh as much flax or hemp as will load a ship. A poor country of the sort above mentiond will be entirely ruined by a famine; they have nothing within themselves and have no way of procuring | from others. If they be obliged even in time of plenty to send an army out of their own country they have great difficulty in procuring them subsistence. But in a country where manufactures are carried on a small part of this manufactured produce will bring a great quantity of unmanufactured, which may supply their present necessities or employ their industry so as to procure more in futurity. So that in the present state of things a man of a great fortune is rather of advantage than dissadvantage to the state, providing that there is a graduall descent of fortunes betwixt these great ones and others of the least and lowest fortune. For it will be shewn hereafter32 that one who leaps over the heads of all his country men is of real detriment to the community. This i<s> not the case in England, where we have fortunes gradually descending from £40,000 to 2 or 300.— — — — —

But altho in this present condition it would be very unnecessary and even detrimentall to crush all such overgrown fortunes, yet in the ancient times the case was very different. The wisest men were always of opinion that these overgrown fortunes were very detrimentall to the interest of the community. They looked on these wealthy men | as the objects of their dread and aversion, as so many monsters who consumed what should have supported a great number of free citizens. Their fears we will find were well grounded. A man, e.g., who possessed an estate of £10,000 per annum then actually destroyed not only the maintenance of 1000033 but of 6,000 free citizens. For we are to consider that the lands were then intirely cultivated by slaves; there was no such thing as free tenents. A man who was possessed of 10,000 occupied then not only the ground which produced to the value of £30000, as he would in the present state of affairs, but what yielded to the value of 60000. Five sixths of this was consumed by the slaves who cultivated it, so that here the greatest part of the produce was bestow’d on the slaves. The remaining part also was not as at present distributed amongst free citizens [(as at present)] who wrought to the rich man and raised up what he consumed to the value of what he laid out, but on his own slaves or those of other rich men. The rich men then set up their slaves in all the different trades they had occasion for; one was a mason, another a carpenter, another a shop–keeper, another a brewer or a baker, etc. These were always employed to | do his work; and if it happened that a rich man had occasion for a workman in a trade which was exercised by none of his own slaves, he would rather oblige another rich man who was his friend by employing his slave than employ a poor citizen, as we see Cicero employd Cyrus,34 the slave of his rich friend, as his architect. So that the whole produce of the estates of the rich was consumed by the master and his slaves. We see from this the reason of what otherwise, as it is intirely different from the customs of our times, appears to us allmost unintelligible. We are told by Aristotle^h 35 and Cicero36 that the two sources of all seditions at Athens and at Rome were the demands of the people for an agrarian law or an abolition of debts. This was no doubt a demand of the taking away so much of ones property and giving it to those to whom it did not belong. We never hear of any such demands as these at this time. What is the reason of this? Are the people of our country at this time more honestly inclined than they were formerly? We can not pretend that they are. But | their circumstances are very different. The poor now never owe any thing as no one will trust them. But at Rome every poor citizen was deep in debt, and the case was the same at Athens. The poor people now who have neither a land estate nor any fortune in money can gain a livelyhood by working as a servant to a farmer in the country, or byⁱ working to any tradesman whose business they understand. But at Rome the whole business was engrossed by the slaves, and the poor citizens who had neither an estate in land nor a fortune in money were in a very miserable condition; there was no business to which they could apply themselves with any hopes of success. The only means of support they had was either from the generall largesses which were made to them, or by the money they got for their votes at elections. But as the candidates would have been ruined by the purchasing the votes of the whole people at every election, they fell | upon an expedient to prevent this. They lent them a considerable summ, a good deal more than what they gave for a vote, at a very high interest, ordinarily about 12 p cent and often higher, even up to 30 or 40 p cent. This soon ran up to a very great amount such as they had no hopes of being able to pay. The creditors were in this manner sure of their votes without any new largess, as they had already a debt upon them which they could not pay, and no other could out bid them, as to gain their vote he must pay off their debt, and as this had by interest come to a great amount there was no one who would be able to pay it off. By this means the poorer citizens were deprived of their only means of subsistence. It is a rule generally observed that no one can be obliged to sell his goods when he is not willing. Bun37 in time of necessity the people will break thro all laws. In a famine it often happens that they will break open granaries38 and force | the owners to sell at what they think a reasonable price. In the same manner it is generally observed as a rule of justice that the property of any thing can not be wrested^j out of the proprietors hands, nor can debts be taken away against the creditors inclination. But when the Roman people found the whole property taken from them by a few citizens, and the whole of the money in the empire ingrossed also, and themselves in this manner reduced to the greatest poverty, it need not be wondered at that they desired laws which prevent these inconveniencies.— We may see from this that slavery amongst its inconveniencies has this bad consequence, that^k it renders rich and wealthy men of large properties of great and real detriment, which otherwise are rather of service as they promote trade and commerce.

I shall now observe the different methods in which slaves might^l be acquired in those countries where it has been in use.— | The 1^st, captives taken in war. These are considered as belonging entirely to the captor in all countries where slavery takes place. When the conqueror has got his enemy into his power there is then no one to protect him; his life and all he has he owes to the mercy of his conqueror if he inclines to spare him. He is reckoned to belong intirely to the conqueror, in recompence for his delivery, and as there was no one to protect him. This seems to have been the originall introduction of slaves, and was universally received amongs<t> all the early nations, and continues still in many countries. We are told by Tacitus that in the two battles of Blank in MS.39 betwixt the armies of Galba and Vittellius, and the latter an<d> Vespasian, there were no prisoners made on either side; for as they were their country men they could not become slaves, and for this reason no quarter was given.40 —As the captives had no person who could protect or defend them, so their children were in as helpless a condition. They therefore became slaves | as well as their fathers, which makes 2^d method of acquiring slaves, which comprehends all those who are born of slaves.— 3^d method is when criminalls are adjudged to slavery. Slavery is a punishment often inflicted on criminalls in those countries as any other, and those who are condemned to it are either given over to the person injured or else they were considered as belonging to the publick. 4^th is that by which insolvent debtors were adjudged^m or given over to their creditors. These 4, as well as the 5^th., are all admitted in every country where slavery takes place at this day, in Turky, Persie, and in Russia, they make all the prisoners they take in their wars with the Turks slaves in the same manner as the Romans did their prisoners, tho they do not of those whom they take from their fellow Christians. They admit also of all the others. 5^th method is that by which a free citizen becomes a slave by selling himself to a master. | But as the person and all that he hath becomes his masters from the moment the bargain begins, such bargains would be altogether ilusory and the slave would receive no benefit from the illegible wordⁿ . But the case where this generally happens is where an insolvent debtor does not incline that he should become the slave of his creditor, but chooses rather to belong to some other person. This person on paying his debts gets him for his slave.— These are all the methods.— I shall only observe farther with regard to slavery, in confirmation of what I asserted, that it was the weakness of government that gave rise to it; that this was entirely the case with regard to the West Indian and at

End of Volume Three of MS.

| Monday Febry. 21^st. 1762^o

In the beginning of these lectures I divided justice into 3 parts: 1^st, that which respects a man, merely as a man; 2^d, that which regards a man as a member of a family; and 3^dly, those rights which belong to a man as a member of community or society of men. I have already considered the two first of these divisions, and come now to the 3^d division.

In order to consider more distinctly those rights which belong to a man as a member of a society or community or state, it will be necessary to consider the severall forms of government which are in use in different societies and the manner in which they have arose. The forms of government, tho they may be infinitely varied, may be reduced to 3 generall classes, or distinct forms. The 1^st is that wherein the power of making laws and regulations, of trying causes or appointing judges, and of making peace or war, are all vested in one person. This is called a monarchicall government. | The sovereign power in a state consists^p of 3 parts. The first is the legislative, or the power of making laws. The 2^d is the judicial, which is also evident from the word; it is that of trying causes and passing judgement or of settling other judges. The third, which is^q the power of making peace or war, is called by Mr. Locke41 the foederal power and by Baron Montesquieu42 the executive power, and I shall call it barely the power of making peace or war. These in a monarchicall government are all possessed by the monarch; he can make what laws he inclines, pass judgement by himself or others as he thinks proper, and make peace or war at his own good pleasure.— — The other forms of government may be all considered as republican; in which the severall powers above mentioned belonging to government are not committed to one single person but to a greater number.— This may be of two sorts—either—1^st, an aristocracy. In this form of government | the sovereign power in all its parts is not in the hands of a single person but is possessed by a certain rank or order of men distinct from the body of the people, by the nobles or men of rank. These, in the same manner as the prince in a monarchicall government, may make laws, judge causes, and <make> peace and war at their own pleasure. Or 2^dly, a republican government may be a democracy, in which these severall parts are not confined to any particular person or any rank of nobility in the state, but is exercised by the whole body of the people conjunctly. All these forms of government may be varied in many different ways, but all the different forms of government may be reduced to one or other of these.— But before I enter on these particularly, it will be proper to explain the origins of government, what I take to be the originall form of it, and how the severall governments which now subsist have sprung from it, and how this original government arose and at what period | of society.— In the age of hunters there can be very little government of any sort, but what there is will be of the democraticall kind. A nation of this sort consists of a number of independent families, no otherwise connected than as they live together in the same town or village and speak the same language. With regard to the judicial power, this in these nations as far as it extends is possessed by the community as one body. The affairs of private families, as long^r as they concern only the members of one family, are left to the determination of the members of that family. Disputes betwixt others can in this state but rarely occur, but if they do, and are of such a nature as would be apt to disturb the community, the whole community then interferes to make up the difference; which is ordinarily all the length they go, never daring to inflict what is properly called punishment. The design of their intermeddling is to preserve the public quiet and the safety of the individualls; they therefore endeavour to bring about a reconcile| ment betwixt the parties at variance. This is the case amongst the savage nations of America, as we are informed by Father Charlevoix43 and Monsieur Laffitau44 who give us the most distinct account of the manners of those nations. They tell us also that if one has committed any very heinous crime against another, they will sometimes put him to death; but this is not in a judicial way, but thro’ the resentment or indignation the crime has raised in each individuall. In such cases the whole body of the people lie in wait for him and kill him by an assassination in the same manner as they would an enemy. A very common method in these cases is to invite him to a feast and have some 3 or 4 persons appointed before hand who dispatch him. The power of making peace and war in such nations belongs to the whole people. A treaty of peace amongst them is no more than an agreement to cease hostilities against each other, and to | make such an agreement compleat it is necessary that the consent of every individuall in the society should be obtaind, every one thinking he has a title to continue hostilities till he has obtained sufficient satisfaction. And in the same manner an injury done to any individuall is sufficient to make him commence hostilities against the injurious person, which will commonly bring on a generall quarrell. The legislative power can hardly subsist in such a state; there could be occasion but for very few regulations, and no individuall would think himself bound to submit to such regulations as were made by others, even where the whole community was concerned.— The whole of the government^s in this state, as far as there is any, is democraticall. There may indeed be some persons in this state who have a superior weight and influence with the rest of the members; but this does not derogate from the democraticall form, as such persons will^t only have this influence by their superior wisdom, valour, or | such like qualifications, and over those only who incline of themselves to be directed by him. In the same manner as in every club or assembly where the whole members are on an equall footing there is generally some person whose counsil is more followed than any others, and who has generally a considerable influence in all debates, and is as it were the king of the company.

The age of shepherds is that where government properly first commences. And it is at this time too that men become in any considerable degree dependent on others. The appropriation of flocks and herds renders subsistence by hunting very uncertain and pr<e>carious. Those animalls which are most adapted for the use of man, as oxen, sheep, horses, camels, etc. which are also the most numerous, are no longer common but are the property of certain individualls. The distinctions of rich and poor then arise. Those who have not any possessions in flocks and herds can find^u no way of maintaining themselves but by procuring it from the rich. The rich | therefore, as they maintain and support those of the poorer sort out of the large possessions which they have in herds and flocks, require their service and dependance. And in this manner every wealthy man comes to have a considerable number of the poorer sort depending and attending upon him. And in this period of society the inequality of fortune makes a greater odds in the power and influence of the rich over the poor than in any other. For when luxury and effeminacy have once got a footing in a country, one may expend in different manners a very large fortune without creating one single dependent; his taylor, his illegible word^v , his cook, etc. have each a share of it, but as they all give him their work in recompense for what he bestows on them, and that not out of necessity, they do not look upon themselves as any <?way> dependent on him. They may reckon that they are obliged to him, but not one of them would go so far as to fight for him. But | in the early periods, when arts and manufactures are not known and there is hardly any luxury amongst mankind, the rich man has no way of spending the produce of his estate but by giving it away to others, and^w these become in this manner dependent on him. The patriarchs we see were all a sort of independent princes who had their dependents and followers^x attending them, being maintain’d by the produce of the flocks and herds which were committed to their care. Over these they would naturally have considerable power, and would be the only judges^y amongst the people about them. — —

{The authority of the rich men would in this manner soon come to be very great; let us therefore consider its progress.} In this way of life there are many more opportunities of dispute betwixt the different persons of a tribe or nation than amongst a nation of hunters. Property is then introduced, and many disputes on that head must inevitably occur. Let us suppose then a nation of shepherds living together in a village or town. {We will find that the form of government which would take place here will also be democraticall. Let us therefore consider the severall parts of the supreme power, and we will find they are all in the hands of the body of the people. 1^st, with regard to the judiciall power,} the way they would most readily think of, and which the severall individualls would most readily agree to, of accomodating any such differences as might arise would be to refer them to the assembly of the whole | people. There would no doubt as I said above be many more disputes in this stage of society than in that of hunters, but not near so great a number as there afterwards are^z in the farther advances of society. For the great sources of debate, and which give ground to the far greater part of lawsui[sui]ts,^a were not known in the earlier periods of society. The most of those which now employ the courts arise either 1^st, from some question concerning the meaning of the will of a deceased person; this they at that time had not, for as I observed before45 no testaments were allowed or thought of in the first periods of society; or 2^dly, from marriage settlements: these also are unknown in the early periods of society; or 3^dly, from voluntary contracts, which do not sustain action nor are they supported by the community at this time. The business therefore would not be very great; nor would the inhabitants be so much engaged as not to have leisure to attend these meetings.— But as in every society there is some persons who take the lead and are^b of influence over the others, so there would without question be some persons of eminence who would have some influence over the[m] | deliberations of the others. The rich men who have large possessions in flocks and herds would as I observed46 have many dependents who would follow their council and direction, and in this manner they would have the greatest influence over the people.— As these persons would be the most eminent among the old people, so would their sons be amongst the younger one<s>, as their fathers eminence would convey respect to their character, and as they would be thus respected in their fathers life time they would naturally fill his place after his death. If there were two sons the authority would be divided amongst them, as well as the estate. And tho nothing can be more in convenient than a government thus split when the king or monarch comes to be of considerable authority, yet it is not attended with the same in convenience in these periods. We see that at the time of the Trojan wars there were severall nations who were led on by different chiefs. Sarpedon and Glaucus led on the Cretans, Diomedes and Idomeneus the Beotians, Menestheus and 5 others the people of Attica.47 It generally happened indeed that some one | was more respected than the others, as we see these Grecian leaders were in the same order as those of each country here are mentioned. The authority therefore of these chief men in this state would soon become hereditary, and when in the farther advances of society they would find thes<e> inconveniences attending on these divided, the right of primogeniture and the other regulations of succession would be brought in <in> the manner I mentioned when treating on that subject.48 But this was not an infringement of the democraticall form of government, as these persons had not any authority more than was acquired by their private influence. The community would also have it in their power to punish in some manner any heinous offences.^c They may perhaps sometimes assassinate any of these, in the manner I mentioned before49 with regard to the North Americans, and they would have it also in their power to punish them by turning from out of the society. The members of any club have it in their power to turn out any member, and so also have the members of such a community. This, tho it would be no great grievance on | the first commencement of a society when the members had formed no connections or friendships with each other, would be a very great one when they had lived together some time and perhaps been born and educated in the society. When they were turned out they would have no friends, no acquaintances else where; commerce does not then take place, so that they would have no opportunity of communication with others. They would be banished from all their friends and connections. So that this would be one of the most severe punishments that could be inflicted.^d

With regard to the executive power, or that of making peace and war, this also as far as it would extend would be in the same hands as the former. Wars betwixt nations of this sort are generally undertaken on a sudden, and decided by one or two set skirmishes. The whole people would rush out when they were attack’d, or make an incursion on their neighbours in a body. Their leaders would not be any regular commanders; their army | would^e be rather an unruly band than a disciplined body. Those who appeard most valiant an<d> courageous would lead on the others. Tacitus tells us of the Germans, Reges ex nobilitate duces ex virtute sumant. Nec regibus infinitas et libera potestas, et duces exemplo potius quam imperio si prompti, si conspicui; si ante aciem agant, admiratione praesunt, etc., etc.50 The power of these leaders continues no longer than they were in the war, and indeed was then little more than that of leading to battle. The tribes or nations at this time of society are but very small, and their wars for that reason can not be of any long duration. We may see of what importance a few members were reckoned, when we are told that the men of Schechem were so desirous of receiving Isaac and a few attendants that the whole people consented to undergo a very painfull operation.51 The legislative is never met with amongst people in this state of society. Laws and regulations are the product of more refind manners and improved government, and are never found | till it is considerably advanced.

When mankind have made some farther advances, the determination of causes becomes an affair of more difficulty and labour. Arts and manufactures are then cultivated, and the people are by this means less able <to> spare their time and attendance at the tryalls. Besides this the causes of dispute also multiply. Testaments come to be in use, contracts of marriage, etc. gradually come in, so that on the one hand the business is increased and on the other hand the people has less time to spare. So that one of two things must happen: either the causes or disputes must lie undetermined, or some persons must be appointed who shall judge in these matters. The 1^st of this alternative can never be allowed, as confusion and quarrels must inevitably follow on it. The latter therefore is always taken. A certain number of men are chosen by the body of the people, whose business it is to attend on the causes and settle all disputes. The chief and leading men of the nation will necessarily make a part of this council. Their authority will still | continue, and they will become a sort of head or president in the court. His authority in this station will grow very fast; much faster than in proportion to the advances made by the society. For in all thes<e> early countries the custom is altogether contrary to that now in use. The rich now make presents to the poor, but in <the> beginnings of society the rich rec<e>ive presents from their dependents. They will never enter on the consideration of a cause without a gratuity. No one can have access to the Mogul unless he have a present in his hand, and so in all other rude and barbarous nations. A Tartar prince can not be spoke to without you open his ears by a gift. As this will soon increase their riches, so the number of their dependents and their power must increase proportionably, and their influence on the council will also be increased. This number is originally pretty large in all countries. They dont think it safe to trust themselves and their property in the hands of a few persons, but think they are much safer when they are under the management of a considerable body. | The sovereign court of Athens52 consisted of 500 persons. The affairs and debates relating to peace and war are originally very simple and soon determined, but when the affairs of the state multiply, and any extraordinary provision is to be made, this is a matter of too tedious a nature to be determined by the whole people, who can not detach themselves so long from their private affairs as these matters would require. It here again becomes absolutely necessary for the safety of the state either to give the management of these affairs [either] to the same court as that to which the determination of private^f causes was before committed, or to appoint a new one. This latter they never think of. The power therefore of providing for the safety of the state and all necessary conveniencies for it generally accompanies the former.^g The senatoriall^h power at Rome extended to these things; they had the care of the revenue, of the walls of the city, etc. They seem to have been a council taken to assist the king in his judiciall and executive capacity. The judiciall capacity was indeed | seperated at Rome from the kingly power as early as the time of Tullus, under whom we hear of duumviriⁱ rerum capitalium, etc.53 Tacitus tells of the kings council,^j concilium simull et autoritas, adsunt.54 The people however still retain’d in most countries the power of appeal to themselves in all matters of moment. This was^k the case at Rome, and after it had been laid aside it was resumed again. Tacitus says also, De minoribus rebus, principes^l consultant, de majoribus omnes. Ita tamen ut ea quoque quorum penes plebem arbitrium est, apud principes pertractentur,55 {and this also must add greatly to the power of the rulers.} The executive and judiciall powers are in this manner in the hands of the people, who trust them in some measure to a court of a few persons. The legislative power makes but a very small figure during all this time. Its progress we shall next consider

Gap of three lines in MS.

| Tuesday. February 22^d. 1763

In the foregoing lecture I endeavoured to explain to you the origin and something of the progress of government. How it arose, not as some writers56 imagine from any consent or agreement of a^m number of persons to submit themselves to such or such regulations, but from the natural progress which men make in society.— I shewed that in the age of hunters there was nothing which could deserve the name of government. There was in this case no occasion for any laws or regulations, property not extending at this time beyond possession. The little of order which was preserved amongst men in this state was by the interposition of the whole community to accommodate such differences as threatend to disturb the peace of the state. But this was not as judges, but merely to bring about an accommodation and agreement betwixt the parties at variance. The executive power or that of making peace and war was also equally in the hands of the whole people, and each individuall had the same powerⁿ as an other. They do not conceive that they have power to force any of the particular persons to engage in war at their pleasure. If two or three families | did not incline to go out to war and commit hostilities against their neighbours, the others were not conceived to have any right to compel them. And in the same way if after the community has made peace with their neighbours a few families should still continue to commit hostilities and make incursions with their scalping parties on their neighbours, the community does not pretend to have any authority to punish them or compel them to submit to the generall agreement. But there is here one difference. Men are generally much more hot and eager when they engage in war than when they make peace. They are for this reason more enraged against those who do not join in the common wars of the country than those who continue hostilities after the generall peace or make incursions without the consent of the others. For this reason it frequently happens that the body of the nation will lye in wait for one who thus denies to join in the common cause, and assassinate him. Tho the other is without doubt more dangerous to the state | and will often bring on the ruin of the whole, yet <he> is not so apt to raise their resentment. But when any one is put to death for that injury to the community, it is not as by the authority the people have over the individualls but in the same way as they would put an enemy to death, thro resentment.— I should also <?say> that the age of shepherds is that where government first commences. Property makes it absolutely necessary. When once it has been agreed that a cow or a sheep shall belong to a certain person not only when actually in his possession but where ever it may have strayed, it is absolutely necessary that the hand of government should be continually held up and the community assert^o their power to preserve the property of the individualls. The chase can no longer be depended on for the support of any one. All the animalls fit for the support of man are in a great measure appropriated. Certain individualls become very rich in flocks and herds, possessed of many cattle and sheep, while others have not one single animall. One will have a stock sufficient to maintain himself and 50 or 60 besides | himself, when others have not any thing whereon to subsist themselves. In the age^p of the hunters a few temporary exertions of the authority of the community will be sufficient for the few occasions of dispute which can occur. Property, the grand fund of all dispute, is not then known. The individualls may sometimes quarrel where there is no interest of either in question, as school boys will, and perhaps kill one another; but this will but rarely happen, and when it does may be made up with the friends of the injured person, as I showed before,57 by the interposition of the community. But here when in the manner above mentioned some have^q great wealth and others nothing, it is necessary that the arm of authority should be continually stretched forth, and permanent laws or regulations made which may ascertain58 the property of the rich from the inroads of the poor, who would otherwise continually make incroachments upon it, and settle in what the infringement of this property consists and in what cases they will be liable to punishment.59 Laws and government may^r be considered in this | and indeed in every case as a combination of the rich to oppress the poor, and preserve to themselves the inequality of the goods which would otherwise be soon destroyed by the attacks of the poor, who if not hindered by the government would soon reduce the others to an equality with themselves by open violence. The government and laws hinder the poor from ever acquiring the wealth by violence which they would otherwise exert on the rich; they tell them they must either continue poor or acquire wealth in the same manner as they have done.— Settled laws therefore, or agreements concerning property, will soon be made after the commencement of the age of shepherds. The whole of the administration of these rules and settling of all disputes will as I mentioned in the last lecture60 naturally be left to the generall assembly of the whole people. This alone seems^s has authority and weight sufficient, or figures enough in the eyes of the men, to claim the determi|nation of any disputes in this respect; therefore the government is entirely democraticall. The community has also here a great opportunity of authority and influence over the individualls; as every club or society has a title to say to the severall members of it, Either submit to the regulations we make or get you about your business, so the community may say to the individualls who are members of it, Either make your behaviour agreable to our laws and rules or depart from amongst us. This will be a very grievous punishment after the society has been some time formed and the members born and bred up in it, as they will then have no other acquaintances or know where to retire to. This authority they may very readily exercise but will not for some considerable time venture any farther.— The executive power or that of making peace and war will also be intirely in the hands of the body of the people. They will have the regulation both of the preparations for the defence of the state | and the determination in what cases war shall be made, etc. But altho the power of the government with regard to the private affairs of individualls under disputes betwixt them was for some time considerably restricted, yet with regard to all public matters their authority was soon after the settlement of shepherds in all countries pretty absolute. The affairs of private persons do not much concern the state; they concern it so far as that it is their interest to prevent disputes from running very high, but then this does not strike immediately at the community. But all those which concern the state directly and immediately will be taken under their^t consideration with much more exactness, and their authority would be more exerted in preventing every thing that tended to the detriment of the community than in the former case. They therefore are much more severe in the prevention of them. I observed before61 that it was not those crimes which | appear the most heinous to individualls which were first liable to what is properly called punishment after compensation had begun to be laid aside, but those which immediately struck at the wellfare of the community. These are two in number, viz treachery and cowardice. Treasonable practises or joining with the enemy must undoubtedly appear very heinous, as it tends immediately to the ruin of the state and is accordingly punished most severely. Cowardice in a common soldier is still liable to punishment, but is not considered as treachery as the running away of one man can have little effect on the fate of the battle. But in a party of hunters or shepherds consisting often of twelve men only, the desertion of one may be the ruin of the whole body and has all the effects of treachery. This therefore is punished as treachery by all early nations. The Germans punished these crimes with death in the manner mentioned by Tacitus chap. 12.62 They punished no other crimes however but theft and robbery, which were punished | by a pecuniary fine. The Tartars in like manner punish no other crimes but these two, and theft and murther; the latter by a pecuniary fine or composition and the other by death. A severe punishment was absolutely necessary as their way of life exposes them much to it. Tho perhaps if the man was able to give it a compensation would be receivd, but then poor persons are those who most commonly commit this crime. There are many things in the modern governments which shew that the government was at some time or other in a very weakly condition with regard to the triall of private causes.— In this country when one comes before the court he is asked how he inclines to be tried; to this he can give now but one answer, viz By God and my country. But formerly he might have given many others. He might have referred it to the judiciall combat and demanded that it should be determined by the strength of | his arm. This plainly was avoiding a submission of his cause to his country, and a demand that it should be determind by the method any one trusts^u to in the first ages before government is established. They however have gained here a considerable point. They say to them when they are offered this, which was called the judiciall combat, which they said was trusting their cause to God, that they must not^v disturb the country by gathering their dependants together and fighting in a body, but decide by their own private arm. Thus the great end they had in view is considerably answered. That which would otherwise have provd a sort of a rebellion is decided by a single duel. The trial by boiling water and the ordial trial in like manner are all signs of the weak authority of the court, which could not oblige those who came before it to stand to its judgement. They however answered one great end as they put a speedy end to the dispute. We would be apt to imagine that in the triall by boiling water every one would | be brought in guilty. The way was that the person accused should put his hand into a kettle of boiling water and take something from the bottom of it.^w {The hand was then wrapt up and sealed, and three^x days afterwards it was unloosed and if no scar appeard the person was acquitted.} But the skins of persons who are much abroad or much amongst water, as our ancestors were, the skin becomes hard and callous so that boiling water will not hurt them.63 {A man opened a red hot oyster.} So that very few were brought in guilty. And the same happend in that where they held a piece^y of hot iron in their hand, or in the ordial trial. All these were no more than committing the issue of the cause to chance, as it were to a throw of the dice, rather than to the judgement of the country.— They were however very long kept, which shews the weakness of the government with respect to these matters. The judicial combat extended not only to criminall causes when the one party had beat or hurt or affronted an other, but even to civill ones. A dispute concerning the right of an estate was often decided by it. This has now worn into desuetude in England. There was however one demanded as late as Queen Elizabeths time64 with regard to a crim. cause, and one in King Chas. I^st time65 to decide | a criminall one; but they were prevented. There is however no express statute or Act of Parliament or even a rule of court (similar to our acts of sederunt) against it. It has gone into disuse gradually in the same way as villainage. They are both laid aside but no one can tell at what precise time.— But tho the government was late of exercising the greatest authority in private causes, yet in those which immediately concerned the community the authority of the generall assembly of the people became soon very powerfull. And as all matters relating to peace and war, the providing provisions for an army, etc., were of great importance, these were all determined by this generall assembly, and that without any great liberty of dissenting in the hands of any individualls, who were obliged to conform to the determination of the body of the people.— I showed you also66 in what manner a chieftan naturally arose in this state of society. In all these assemblys, whether | for judging in private causes or publick ones and in the executive part, <?some one> would take the lead by his superior power and influence or other means in which he would excell others^z in this mobbish assembly. When^a it was for the reasons explained yesterday67 found necessary to establish a court for the determination of causes, to ease the people of that burthen, this man would naturally be a member of it and continue in it to have his superior influence. The same would be the case when a court was established to take off the hands of the people the less important parts of the executive power, that is, to give a sort of senatorial power to the court, who determined every thing necessary to the safety of the city and the peace and war with their neighbours for some certain length. They had the power of levying armies, providing subsistence for them, taking care of the walls of the city if it had any, receiving ambassadors, and holding all sorts of deliberations whatever. In these courts the leading man would soon become a kind of president; | he would first give his opinion on every question or ask that of others, and those whom he thus preferred before the rest would be looked on as some way of greater importance and weight than the others. This is the very method Tacitus68 mentions was in use in the assemblies of the Germans. I mentioned also69 how the authority of this chieftan was naturally^b hereditary {and went at first to his children in common who made a sort of joint chieftains, and how this was afterwards altered to be either the eldest sons property or the eldest relations.} In all barbarous nations no one can have an audience of the chief man without a present. This is the custom amongst the Mogulls, the Tartars, and all the nations of Africa and America. And our Saxon kings, and even some of the first of the Norman race, never performed any of the common offices of humanity without they had receivd a present before hand. In this time the great all received presents from the poorer sort as a token of their submission to them, intirely contrary to the modern practise where to receive a present is a sign of dependance and inferiority, as it brings the receiver under an obligation to | the donor. But in the early times the<y> did not conceive any obligation to arise from the receiving a favour; they considered it merely as an acknowledgement of authority and submission. This made a considerable part of the revenues of the kings in all early governments. The chief man or president, receiving these gratuities as an addition to his stock, already great and which he cultivated in the same way as the others, would soon become very powerfull, and have extraordinary influence in all the courts. They would appear to be his councils; {His authority would naturally increase very greatly from the naturall disposition of men. One whom we have been accustomed to obey comes in some things [comes] to expect our submission, and we are in the same manner disposed to pay him respect and deference.} and a state of this sort to a careless observer would appear to be monarchicall. {But the king, as they would call him, has properly no power but only weight and authority.} But tho all matters of less importance would be referred to the courts and their president, as the trialls of private causes and the preparations and deliberations for war, yet these in the last resort would be^c brought befor<e> the general assembly. The condemning of a criminall, etc., as is the case in | Tartary and was so in old Germany, <and> is so at the Cape of Good Hope, the finall declaration of war,^d or concluding a definitive treaty of peace, would be referred to the whole body.

The body of the people in this manner transferrs^e to the courts a part of the judicial and^f executive power, or what we may call the senatoriall power. The judicial power gradually rises from being at first merely an interposition as a friend without any legall authority, which however will be of considerable effect if this third person have a great influence with both parties, to be, 2^dly, a power resembling that of an arbiter to decide the causes referred to them and inflict some gentle penalty. They then venture on some thing as a punishment for atrocious crimes, as expelling the person from the society, and lastly it comes to be that of a free judiciall authority with which the magistrates are vested, the arise of which from the compositions has been already explained. | With regard to laws and the legislative power, there is properly nothing of that sort in this period[s]. There must indeed be some sort of law as soon as property in flocks commences, but this would be but very short and <?have> few distinctions in it, so that every man would understand it without any written or regular law. It would be no other than what the necessity of the state required. Written and formall laws are a very great refinement of government, and such as we never meet with but in the latest^g periods of it. It is a sign of great authority in the government to be able to make regulations which shall bind <them>selves, their posterity, and even persons who are unwilling. This then is the state of government from the age of hunters thro all the time of shepherds, and even when something of agriculture is practised, that is, till the appropriation of lands.— I shall only observe farther on this head some things relating to the state of those countries where this is the state of the government, particularly | with regard to two great nations who have been merely shepherds as far back as we can trace them and still are so without the least of agriculture. These are all the nations north of Mount Caucasus thro all Asia, that is, all the whole body of Tartars, and 2^dly, of the Arabians.

In the age of hunters it is impossible for a very great number to live together. As game is their only support they would soon exhaust all that was within their reach. Thirty or forty families would be the most that could live together, that is, about 140 or 150 persons. These might live by the chase in the country about them. They would also naturally form themselves into these villages, agreeing to live near together for their mutuall security. In the same manner tho they could not conveniently enlarge their village, yet severall sets or tribes of this sort would agree to settle their villages as near as they could conveniently, | that they might be at hand to give on<e> another assistance and protection against the common enemy. In the same manner as there would be some men in each village who would preside in the affairs of it, so there would be some one who would have a superior influence over the other chiefs and become in this manner a chief of chiefs, or king of kings. As the affairs of each family would be determined by the members of it, of a village by the members of it, so would the affairs of the community^h or association of villages by the members of the whole directed by their president, and the chief president receivingⁱ the lead in all these would appear a sort of sovereign. This is the case in Africa, Asia, and America; every nation consists of an association of different tribes or villages. In the age of shepherds these societies or villages may be somewhat larger than in that of hunters. But still they can not be very large, as the country about would soon be eat up by their | flocks and herds. So that the ground for 4 or 5 miles about will not be able to maintain the flocks of above 1000 people, and we never find that the villages amount to a greater number in any country of shepherds.^j These may in like manner combine together under their different heads to support one another against the attacks of others. We see that the Grecian nations were in this man<n>er led on by Agamemnon.— There is however one great difference betwixt men in the one state and in the other. The hunters can not form any very great schemes, nor can their expeditions be very formidable. It is impossible that 200 hunters could live together for a fortnight. They could not find subsistence by the chase when in so large a body, nor have they provisions to carry with them. <N>or if they had by some means or other provided as much as would support them could they transport it, as they have no carriages. The party must therefore carry its provisions or subsist by hunting during the time of their expedition, so that it will be impossible for any considerable number to make any expedition. | A scalping party seldom consists of above ten or twelve. So that there can be no great danger from such a nation. And the great astonishment our colonies in Am. are in on account of these expeditions^k proceeds intirely from their unacquaintedness with arms, for tho they might plague them and hurt some of the back settlements they could never injure the body of the people.70 The case is the same with respect to shepherds as long as we suppose them stationary; but if we suppose them moving from one place to another, 4 or 5 miles every day, we can set no bounds to the number which might enter into such an expedition. If then one clan of Tartars (for instance) should, setting out on an expedition, defeat another, they would necessarily become possessed of every thing which before belonged to the vanquished; for in this state when they make any expedition of this sort wives, children, and flocks and every thing is carried along with them, so that when they are vanquished they will lose their all. The far greater part therefore will follow these | and join themselves to the victor, tho some perhaps might still adhere to the vanquishd chief. If this combined army should be in the same manner successfull against a 2^d, a 3^d, and [and] a 4^th tribe, they would soon become very powerfull, and might in time subdue all the nations of their country about them and become in this means immensely powerfull. So that tho a country possessed by shepherds is never extremely populous yet immense armies may be collected together which would be an even^l match for any of its neighbours. This has happend 2^ce or 3^ce with regard to Tartary. Tamerlane, having conquered all Tartary, invaded and over ran all Asia with above 1,000,000 of men, a body alltogether invincible. And Cengis Kan with still greater numbers, having conquered all the barbarous nations about the source of the Indus, over ran all the neighbouring countries. The Arabs were in the same way united under Mahomet, whose successors Blank in MS.71 and Omer over ran the neighbouring countries, who could not resist their immense power.

| Wednesday. Febry. 23^d. 1763

In the last lecture I endeavoured to explain to you more fully that form of government which naturally arises amongst mankind as they advance in society, and in what manner it gradually proceeded.

With regard to the internall police of such a state, there can be nothing more simple and easily comprehended. We have at the head of it the chief, or chieftan, who has in all matters an influence superior to that of any other person. This chief is distinguished from the rest by two things: 1^st, by his superior wealth; and 2^dly, by his family descent, being generally the son or very near relation of the late chief. Superiority of wealth gives one in this age a greater influence and authority than the same disproportion does at any other time. One who possessed flocks and herds which could by their produce support a hundred men had no other way of disposing of it than by supporting a hundred men out of it. Manufacturing of the produce of the | earth was not then introduced. They were consumed in the same rough state as nature brought them. Or perhaps when arts were a little improved they might consume a part of their estate, yet this could not extend near so far as at present.— The descent from the great families who had been in possession of this chief dignity in the state is likewise another source of authority. In the age of hunters there can be no hereditary nobility or respect to families. Families can then be noways respectable; one who has distinguished himself by his exploits in war and signalized himself as a leader will have considerable respect and honour. This will in some measure descend to the son by his connection with his father. But if he be noways remarkable or distinguished as a leader, his son will not be esteemed a whit the more because he was come of such or such a great man, as military glory and famous atchievements are the only thing which | can give one weight in a country of this sort. But in the age of shepherds descent gives one more respect and authority than perhaps in any other stage of society whatever. In this stage, as property is introduced, one can be eminent not only for his superior abilities and renowned exploits but also on account of his wealth and the estate he has derived from his forefathers. This continues the respect paid to the father down to the son and so on, for ever perhaps.^m We see many instances of the vast respect paid to descent amongst the Tartars and Arabs. Every one of these can trace themselves, at least they pretend to do so, as far back as Abraham. The Tartarian history72 which was published some time ago in English, being translated from the French into which it was translated from the Swedish of Blank in MS.ⁿ , who being taken prisoner when attending Charles 12^th of Sweden in his expeditions was carried into Siberia <and> met with and translated it into Arabic with very sensible notes, may furnish us with a very good example of this. The whole of that work, which was wrote by Blank in MS.^o , a very great conqueror as well as a consi|derable writer, is taken up with genealogies. It is just such an account as we should expect to meet with in the history of one of the clans in the remoter parts of this country. It gives us an account of the descent of the great men of the family, rectifying the mistakes which had formerly been made in these matters, and the severall exploits they committed in a very brief manner. This prince, who was a descendent of the famous Cengis Kan himself, being taken prisoner when very young by the Persians was educated and very well instructed in the sciences by Blank in MS.^p , the Sultan of Persia, and making his escape to his countrymen was received with the greatest joy; and the nearest relation who in his absence had taken the government of the hurd upon him resigned it with the greatest readyness, than which there can be no greater token of respect to families. We see that the Jews, who were originally a tribe of Arabs, paid the greatest respect to genealogies and were at great pains to preserve them. There is one thing | which will tend greatly to increase the respect for families in this stage of society more perhaps than in any other, <?which> is that they will be all of very great antiquity. A family which [which] had been once raised to dignity and wealth could hardly ever be deprived of it, unless the nation was conquered, in which case all would be lost. But if this does not happen there is hardly any way in which he could reduce his fortune; he knows easily how many dependents his flocks and herds will maintain without incroaching on the stock. He has no way of expending it on luxuries as afterwards. Perhaps a man might lay out on himself at this time as much as would maintain 30 men, so that one who could have maintaind 100 will only maintain 70; but he could not as now spend a fortune which would maintain 1000 on himself in luxuries and curiosities. They might^q then give one sort of rough produce for a smaller quantity of another, but not 1000 lib of unmanufacturd | naturall productions for a few ounces of stuff nicely tricked up, as one now does of beef, bread, etc. So that it was not possible for one to spend a great estate, as one may very easily do in the present state of affairs. There lustre therefore continues uniform and in most cases encreases, so that the old families must be very respectable; and for this reason long descents are much counted^r here, more so than in any other state of society, as in other cases the upstart families, that is, those who have been but lately raised to dignity, are^s often of as great influence, but these will be but seldom met with. We see that there is in man a great propensity to continue his regard towards those which are nearly connected with him whom we have formerly respected. The sons and particularly the eldest son commonly attract this regard, as they seem most naturally to come in the place of the father; and accordingly in most nations have been continu’d in their fathers dignity. In most elective kingdoms, which as I shall hereafter | shew73 you was the case of all kingdoms at first, we find the son generally preferred to any other. There are some states indeed where this has been expressly forbidden, as at Venice where there is a law forbidding the son of the deceased doge to be chosen in his room. But this sufficiently shews that there is such a naturall inclination amongst men, otherwise no such law would have been found necessary.— Besides this chieftan who presides in the assembly, the whole power of the government is lodged in the body of the people. They have the whole of the judicial and executive power committed to them.— There is one great difference betwixt these people and those in any other state of society, that is, in their way of making war and peace. These nations generally have no fixt habitations. The Tartars live in a sort of waggons, or rather houses set upon wheels; their country is altogether plain and void of wood or stones to interrupt them; not a tree nor hill over the whole country, so that they have nothing to interrupt them in their progress. A people in this state have no attachment to their particular spot where <they> | have taken up their habitation. Their whole property is then easily carried about with them. But when the society have made some farther steps in improvement, the amor patriae, the love of the soil, naturally arises. Those who have property in land will never think of deserting it as they can not possibly transport it with them. In the same way others, tho they have not land property, have nevertheless valuable property in goods and furniture, which it is very troublesome to transport even from house to house; and to remove from one part of the country to another would require the equipage of a regiment. Though Scotland be no rich country nor well cultivated, yet the inhabitants will never think of leaving it to seek new seats. The Tartars on the other hand [the Tartars] have all their property in what is properly to be called moveables,^t that is, in herds and flocks. These they can transport without much inconvenience, and their families ar<e> transported in waggons covered | with a sort of felt which they use in those countries. They therefore will be very little attacched to any particular spot; where ever they find pasture for their cattle, there they will fix their habitation for the time. A people of this sort will frequently leave their country to seek for new seats where they may have better pasture, and remove in whole bodies or great colonies. Thus the Helvetii (as we are told by Caesar74 ) who inhabited the country now possessed by the Swiss, and were the most warlike nation of Gaul, thought it hard that they who were the best warriors and most warlike nation of the country should have the worst territories; they therefore left their country and would probably have over run all Gaul had they not been stopped by Caesars army. In the same manner the Cimbri and Teutones at different times made attacks on Greece, Italy, and Gaul; they were indeed repulsed in them all, but | made frequent attempts of this sort. The severall nations in Germany have all been in this state, though they are now removed out of it. I shall however refer the account of th<e> revolutions brought about by them, and the settling of the severall kingdoms and states which has arose from this, for another lecture.75 {In the same manner the Lombards, who came originally from about the Palus Maeotis,76 settled first in a body on the north of the Danube where they had a territory assigned them by the Romans. However when they had exhausted that fine country they passed over to the south side of the river. There again they had a territory assigned them. But some time after on Blank in MS.^u being discontented sent inviting them into Italy^v and sent presents of the fruits of the country, which soon induced them to quit their country;77 and they accordingly poss<ess>ed themselves of it for 400 or 500 years.} They were in the very same state as the modern Tartars, only that they had a little agriculture. I mentioned in yesterdays lecture78 how formidable a nation of this sort may be when united under one leader, and that they may often produce great revolutions, and instanced the two great nations of shepherds, viz the Tartars and the Arabs. Now [of] this the Tartars will happen far more frequen<t>ly among^w than among the Arabs. The former have no obstacles of any sort in their country, no mountains or rough ground, no barriers of woods; they have indeed some of the largest rivers in the world, but these a Tartar party, as they are all excellent horsemen, will | swim over tho half a mile broad. {Nor have the<y> any stone to raise fortifications, nor even wood, insomuch that they are obliged to burn cow dung during their long and severe winter.} The lord of a hurd therefore who has been victorious over another has nothing to obstruct his progress to attack another; one battle decides the dispute, as they are all ruind by the first defeat which deprived them of their property all at once.^x We see accordingly that the Tartars have been severall times united under one head; Cengis Kan and Tamerlane, from being the lords or leaders of very small clans, rose thro many hardships and defeats in their youth to be sovereigns of all Tartary, and over ran even the most part of the neighbouring nations. Tamerlane extended his empire from the Indus to Smyrna, over all Persia, Indostan, and Asia Minor, part of China, and carried an army even into Siberia. The country again inhabited by the Arabs is full of mountains, rocks, and fastnesses which rend<er> it allmost innacessible to an enemy. The severall tribes are allmost intirely separated from each other; and it will cost severall | battles and a great deal of bloodshed to conquer any one; so that the greatest perseverance will be necessary to^y conquer any great number of hurds and turn them out of their fastnesses. We see accordingly that they were never united under one head but by Mahomet, and then indeed they over ran the adjacent countries with a fury as irresistable as that of the Tartars under their leaders. Besides these incursions in quest of new territories they often make others merely in quest of spoil, and return again to their own country, which they never think of doing when they make a generall move. They will often send out a party to over run and plunder which will return again in a few years. The expedition of the Vandalls into Italy under Attila79 seems to have been of this sort. After they had staid in it for about twenty years and plundered the whole country, they returned to their country loaded with | booty. A polished nation never undertakes any such expeditions. It never makes war but with a design to enlarge or protect its territory; but these people make war either with design to leave their own habitations in search of better, or to carry off booty. As the Tartars have been always a nation of shepherds, which they will always be from the nature of their country, which is dry and high raised above the sea, with few rivers tho some very large ones, and the weather and the air is too cold for the produce of any grain, and as they are for the reasons already mentioned easily united under one head, so we find that more of the great revolutions in the world have arose from them than any other nation in the world. If we look back into the first periods of profane history of which we have any distinct account, we find Cyrus with his Persians over running Media; this nation appears undoubtedly to have been a Tartar nation; they were all horsemen, as the Tartars are, and <in> every shape resembled them. The Medes too, who possessed those countries before them, appear | to have been Tartars originally, from the account given of them by Herodotus80 and Justin.81 That fore mentioned author,82 talking of the invasion of Greece by the Thessalians and Scythians, says that nothing hindered them from over running and conquering the whole of Europe and Asia but their want of union. Had they been united, no human force, says he, could have withstood them. After Cyrus time Cyaxaris,83 who again raised up an empire in Persia, seems to have been a Tartar prince. The Parthians, who afterwards over ran that country, were without doubt a Tartarian nation; and made a noble stand against the Roman arms. After this time Cengis Kan, whose conquest we have already mentioned, arose amongst the same nation; an<d> 2 or 300 years after, Tamerlane of the same country made still greater revolutions. But previous to these the Huns made very great commotions in the affairs of the world. We are told they were originally a nation inhabiting to the east84 of the Chinese Wall, who being expelled by the Chinese traversed | the country till they came to the Palus Maeotis and the Euxine Sea. This they thought was the bound of the world and therefore made no attempts to settle^z beyond it. But 200 or 300 years after, discovering that there was still land to the west of these lakes or seas, they soon agreed, as people in this state are very fickle, to leave the country they possessed and pass over. This they accordingly did, and drove out the Ostrogoths, who in their turn drove out the Wisigoths; for a people of this sort, as they will leave their country on account of seeking a better, so they will when defeat<ed> by the enemy, in case they be not intirely ruin’d as it often happens that they are. The Wisigoths in their turn, under the different leaders Theodoric and Aleric, over ran all Italy and Gaul^a and continued there till they were repelled by Charlemagne.—

If we should suppose that a nation of this sort was settled in country naturally defended against invasions, | capable of maintaining themselves against their enemies, in such a country a regular form of government would soon take place. But this can never be the case in Tartary, as the country is unfit by its dryness and cold for agriculture, and has no fastnesses nor materialls for constructing them; nor can it be in Arabia, where agriculture is debarred by the ruggedness and steepness of the country, which is a combination of hills without any intermediate valleys, or if there are any they are all filled with sand. But we see that this happened in other more fertile and secure countries pretty early. The first inhabitants of Greece, as we find by the accounts of the historians, were much of the same sort with the Tartars. Thus renowned warriors of antiquity, as Hercules, Theseus, etc. are celebrated for just such actions and expeditions as make up the history of a Tartar chief. We see also that they resembled them in this also that they made frequent | demigrations.^b The Heraclidae, who were the followers or clan of Hercules, settled first of all in the great island of Euboea, and from there^c went out and settled at Mycenae Blank in MS.85 and Sparta. These severall countries, being continually exposed to the inroads of their neighbours, did not soon alter their way of life. We see that at the Trojan war the expedition was not undertaken with a view to conquest but in revenge of goods that were carried off; and that when the city was taken each returned to his home with his share of the spoil. All the disputes mentioned to have happened by him86 were concerning some women, or oxen, cattle, or sheep or goats. Attica was the country which first began to be civilized and put into a regular form of government. The sea surrounded on two sides of the triangle and a ridge of high mountains on the third. It had therefore little to fear from enemies by land; | the sea was the only means by which they could easily be attacked. They therefore at first built none of their villages near the sea. As the country was so much securer than the others, people flocked into it from all hands, tho it was rather the poorest of all the Grecian countries. But the rovers from the sea might still invade them in the night. The only method they had to secure themselves was to have some place of strength to drive their cattle and other goods into, upon an invasion.^d This was the advice given by Theseus; he advised them to live together in one place that they might be at hand to assist one another and might have a place to protect their cattle in. The city of Athens was therefore built and fortified under the acropolis or citadell. When this was done he abolished the jurisdiction<s> which were enjoyed by the leaders of the severall villages, as these mostly resided in the great city; and by this means in <?creased> | his own power as well as diminished that of his people and became a sort of monarchy, or as it was afterwards called a tyranny. But in a small country the revenue of the chief man can not so far exceed that of the other great men as to render his power of great duration. Many rivalls in wealth and authority would start up against <him>. Theseus himself was even turned out of the kingly power by Menestheus.87 This Demophoon recovered,^e and it continu’d in the hands of the family for some time, but this was afterwards exchanged for the government by archons. These were at first for 10 years,^f but were also 2^g in number which lessened their power, and afterwards 5;^h they were at length chosen anually.88 These continued for some considerable time, but were at last abolished and the magistracy laid open to those who were of power enough to obtain them. This was the case in all the states of Greece; they became in this manner from monarchys or nearly so to what we would | call democracys, as the legislative power altogether, and the other two in the last resort, were in the determination of the generall assembly, but were called by them aristocraceyes with great propriety, ὑπο των ἀριστων, as there were always men of power and authority who influenced the people as they inclined.

Thursday February 24^th 1763.

In the last lecture I endeavoured to shew in what manner those governmentsⁱ which <?were> originally Tartarian ones or under chiefs in the same manner as the Tartars, came from thence to settle in towns and become republican {in many parts of Greece, and the same was the case in Italy, Gaul, etc.} We may easily conceive that a people of this sort, settled in a country where they lived in pretty great ease and security and in a soil capable of yielding them good returns for cultivation, would not only improve the earth but also make considerable advances in the severall arts and sciences and manufactures, providing they had an opportunity of exporting their sumptuous produce and fruits of their labour. | Both these circumstances are absolutely necessary to bring about this improvement in the arts of life amongst a people in this state. The soil must be improveable, otherwise there can be nothing from whence they might draw that which they should work up and improve. That must be the foundation of their labour and industry. It is no less necessary that they should have an easy method of transporting their sumptuous produce into foreign countries and neighbouring states. When they have an opportunity of this, then they will exert their utmost industry in their severall businesses; but if their be no such opportunity of commerce, and consequently no opportunity of increasing their wealth by industry in any considerable degree, there is little likelyhood that they should ever cultivate arts to any great degree, or produce more sumptuous produce than will be consumed within the country itself; and this will never be wrought up to such perfection as when there are greater spurs to industry. Tartary and Araby labour | under both these difficulties. For in the first place their soil is very poor and such as will hardly admit of culture of any sort, the one on account of its dryness and hardness, the other on account of its steep and uneven surface. So that in them there is no room for cu<l>ture; the soil itself debarrs them. Neither have they any opportunity of commerce, if it should happen that they should make any advances in arts and sciences. They are deprivd in most places of the benefit of water carriage, more than any other nation in the world; and in some places where they would have an opportunity of it, the land carriage which would be necessary before it, debarrs them no less than the other. In these countries therefore little or no advances can be expected, nor have any yet been made. But in Greece all the necessary circumstances^j for the improvement of the arts concurred. The severall parts were seperated from each other by mountains and other barriers, no less than Arabia, but is^k far more | adapted to culture. They would therefore have many inducements to cultivate the arts and make improvements in society. The lands would be divided and well improved and the country would acquire considerable wealth. And as a nation in this way would be vastly more wealthy than their neighbours, having more of what Homer calls κοιμηλια,89 that is, good<s> stored up, they would be very apt to be attacked and plundered by their neighbouring nations, who would often set out on piraticall expeditions from their country. We find that at the time of the Trojan war such expeditions were very frequently undertaken, nor were pirates then looked on as any way disshonourable. We see that in the Odyssey, Ulysses, who very seldom gives a true account of himself, is often asked whether he was a merchant or a pirate.90 The account he generally gives of himself was that he was a pirate. We see too that this was a much more honourable character than that of a merchant, which was allways looked on with | great contempt by them. A pirate is a military man who acquires his livelyhood by warlike exploits, whereas a merchant is a peaceable one who has no ocasion for military skill and would not be much esteemed in a nation consisting of warriors chiefly.^l {The severall clans, as we may call them, would plunder on one another in the same way as the clans did in this country and in every country where they are established; and if the people without the consent of the chief should make any incursions they would always be protected by him.} They would naturally therefore take some precautions against these robbers and pirates, both by land and sea, for they might in the night time be attacked by a set of pirates from the sea as well as land robbers. We see that none of their hamlets were built near the sea; but as this would not secure them against others, they would be necessitated to have some fortifications to secure themselves, their cattle, and other goods. This would be much more easily accomplished by the fortifying of one large place, in which they might reside altogether, than by fortifying each particular hamlet. This was accordingly done and all the principall persons removed into it. This we find was the case in all the states of Greece, in each of which we | find some great city. The neighbouring country was but thinly inhabited; the houses in it were but poor; they had no country houses of any consequence, but only sheds and hovels for their cattle. The rich people who had much substance, or inclined to live somewhat more comfortably or elegantly than others, would all shelter themselves in this city. And hither too they would drive in their cattle in time of danger, as we are informed by Thucidides91 was done in the beginnings of the Peloponesian^m war, and in many others; and indeed we have the best account which is to be had of the ancient state of Greece from the beginning of his work, and from Homer. I shewed you also in the last lecture92 in what manner those governments which were at first under the chieftans and governed in the manner of a clan, became in time to be a republican govt in all the states which were originally in that form. The great men of the country would as I have already mentioned leave | the villages in which they had presided to live in the city. The authority of the chief would not be at all agreable to them if it came to be any way excessive, nor would they be so much below him as to be greatly under his power. The revenue which would be derived from a small kingdom would not be sufficient to give the king or lord of it very great superiority over the nobles or other great men. Three or four of them combini<n>g would be able to wrest the authority and management of the state out of his hands. Kings nowadays still maintain their authority altho they have their nobles living at court about them, but it is becaus<e> their revenue is far superior to that of the nobles, and because the nobility have easier access to all posts of honour and profit than they could have if they were more laidⁿ open, as then upstarts of parts might interfere with them. We see that the government of all citys is republican, managed by a town councill. | In the same manner the nobles,^o the chief men of the state, would endeavour to reduce the state into their power. They therefore in most countries began to reduce the power of the state into their own hands from those of the chief. This was done by degrees at Athens, and the government laid open to the people by slow degrees. {And in about 200 years after the Trojan war, when all Greece was under single leaders or a few chieftans, the states were all become aristocracies.} There^p does not seem to have been any law at first obliging^q the people to choose their magistrates from the nobles, but this however they always did, as they would be most inclined to favour those who had supported and protected them and whom they had in some measure been accustomed to obey. The governments in this manner became aristocraticall, from that of the kingly sort. But in fact there seems to have been a considerable degree of the democraticall form under what were generally reckoned monarchies. For we see that the people had the sole power of making laws, and even the last determi|nation of all affairs with regard to peace or war. {And they had the power of choosing all magistrates, insomuch that the authors say that Theseus, by calling the people to live in a city together, laid the foundations of the democracy.93 } The king, as he was called, was no more than a leading man who had superior influence in their deliberations. The nobles coming in his place had in the same manner the lead in all affairs, and were accordingly chosen into all the magistracies. This was what the ancients called an aristocracy, tho from the priviledges above mentioned which were possessed by the people we should be apt to term them democracies. They gave the name of democracies to those governments where the people had the same access to the magistraci<e>s and offices of state as the nobles. But of these we have none at this time in Europe. They were succh as Genoa, Milan, Venice, etc. were formerly. The people of all these countries voluntarily resigned the power into the hands of the nobles[s], and they alone have since had the administration of affairs. We find nothing similar to this94 in any of the ancient republicks. | The institution of slavery seems to have been the cause of this difference. In the modern republicks every person is free, and the poorer sort are all employed in some necessary occupation. They would therefore find it a very great inconvenience to be obliged to assemble together and debate concerning publick affairs or tryalls of causes. Their loss would be much greater than could possibly be made up to them by any means [could be made up], as they could have but little prospect of advancing to offices. But in the ancient states the mechanick arts were exercised only by the slaves. The freemen were mostly rich, or if they were not rich they were at least idle–men, as they could have no business to apply themselves to. They therefore would find no inconvenience in being called to the publick affairs. Besides this, the vast difference betwixt a freeman of the lowest rank and a slave was so great that it made that amongst the freemen them|selves not perceptible; whereas nowadays the difference betwixt the freemen is not much less than^r betwixt the free and the slaves formerly. Liberalitas, ἐλευθερια, species liberalis, signify no more than the behaviour and appearance of a gentleman. For the distinction betwixt free and slaves made the same as betwixt the vulgare and the people of fashion or gentlemen. These therefore being few in number, and having no other employment, would easily attend on all trialls or courts, and might have besides som<e> probability of rising.—But in the modern commonwealths this was a burden on the common people, without any hopes of rewards. They therefore have all given it up. The Venetians resigned this power to the councill of 1000 chosen for that purpose out of the best families, who have still retaind it. The same has happened at Genoa, and in the United Provinces, where the whole people had at first equall access to the magistracies, but finding it altogether troublesome | resign’d it to the town council, who still continue to be possessed of it, and have the power of choosing their own members on a vacancy.—The aristocraticall government in the manner above mentioned took place after the government by a chief and the people under his direction was abolished. The nobles became jealous of his power[d] and at length deprivd him of it. Tho it happend sometimes that previous to this change the chief oppressed the nobles and people, as at Rome, Corinth, and other places; but in all of them the authority was at length taken out of his hands.—We see that this was the case in Gaul, where the people at Caesars time were under the aristocraticall form of government, and in Spain, where the government was that sort of an aristocracy in which the nobles only have access to the magistracies. Of all the countries which have undergone this change in the form of government,^s Rome is that of which we have the distinctest account, and of the graduall advance of the | democracy which followed hear as well as at Athens. The nobles at first in both had the sole government committed to them, as they only had the power of being chosen into the magistracies; at least they only^t were ever chosen. The A<t>henian magistracies were also confind at first to the highest class. But as the power of the nobles declined very fast when either commerce or luxury were introduced, the people strug<g>led for liberty, which was beginning even in the time of the decemviri, as an express law made some time before was introduced into the 12 Tables making the patricians alone capable of being elected.95 The constitution of the Comitia Centuriata had in effect before given the two first classes the sole power in all debates (as is well known), and these Tables made the aristocracy still more firm by many laws. One I mentioned already concerning libells96 was peculiarly adapted to the aristocraticall form of government. But the power of the nobles and their influence over the people soon decreased on the introduction of wea<l>th and luxury. And it probably would be still <?> | in that case in the Roman state than it would now. One who spends 10000£ on himself and domestick luxury does not indeed form any dependents, nor would he have 3 men that would follow him in case he should rebell, <?but he> would nevertheless have the votes in the election of those he favourd with his custom. But in Rome, where all the luxury was supported by slaves who had no weight in the state, the luxury of the nobility destroyed all their power. They therefore made many demands of a share in the power of the government. They at length obtaind tribunes97 who were to support their interest in all cases. These for their own sakes as well as that of the people strove to have the magistracies98 communicated with them. This they at last obtained; but for severall years afterward there was not one plebeian magistrate chosen, as the patricians, tho divided amongst themselves, all combind against the plebeians, and the plebeians, being accustomed to obey them and look upon them as their superiors, were more inclind to vote for them than to give their vote to enstall^u their equalls over their heads. The tribunes however still persevered, | and at last attained to their wish by procuring a law,99 to which the people readily consented, that the half of all magistrates, 2 consuls, 6 military tribunes, 8^v praetors, etc. should be chosen from the people; from which time they were anually elected in that manner. The Athenians1 were allowed by Solon to choose magistrates out of the three higher classes, and afterwards by Aristides out of any class. The Greeks2 as I said seem to have been in much the same state as the Greeks a little after the Trojan war, and the Spaniards as they were before the time of the Persian expedition.— — —

Monday Febry. 28. 1763.

In some of my last lectures I have explain’d how <government> arises and what progress it makes in the state of hunters and shepherds. I showed how that at first there was properly no government at all, that this arose first amongst a nation of shepherds, and that these in certain circumstances would | naturally unite themselves and form a city, which at first was under the government of a chief, but afterwards became in the ordinary and naturall progress of things [became] an aristocracy and afterwards a democracy. I shall now shew in what manner and from what causes these states necessarily come to an end. They at first, as I shewed you already, and as was the case at Athens, Sparta, and^w all the other states of Greece, consisted of a large city which, as Athens, would contain perhaps 100,000 persons with a very small territory arround it. This was the originall form of all these republicks.—Now here one of two things must happen: either, 1^st, the state must always continue in this state of a large city in the midst of a small republick; or 2^dly, it must extend its territory and conquer some of the adjacent states, for it is already so small that it can hardly be dim<in>ished without the totall ruin of the state. I shall first consider what will be the fate of one of the first sort, which we may call a defen|sive republick, of which the severall states of Greece will serve for examples; and 2^dly, what will be the fate of a conquering republick, of which Rome will serve us for an example, and Carthage also; for as I shall shew by and by Carthage would have shared the same fate as Rome had it not [have] been overrun by the latter.

We are therefore to consider, 1^st, what will be the fate of a defensive^x state which continues to maintain its small territory. In the first place, it must necessarily happen that as a state of this sort advances in arts and improvements in society, [that] its power and strength must be greatly dimin[s]ished. As the arts and improvements and consequently the easieness of procuring livelyhood increase, it is true, the city will become more populous, that is, its number of inhabitants will increase, but the soldiers will be greatly less. The number of people will be greater, but the number of fighting people will be very small, so that the improvement of arts and manufactures which, as I shew more fully hereafter than I have hitherto done, must necess|arily happen in every state of this sort, will greatly weaken its strength; tho not^y equally in every state, for the reasons I shall explain by and by.—In a nation of shepherds every one without distinction goes to war. This was the case amongst the Children of Israel, and is so at present amongs<t> the Arabians and Tartars. Amongst the Calmucks and some other nations the women fight as well as the men. They are, as being weaker, not so good soldiers, but they have their horse, their bows and arrows as well as the men. In a state which is a little more refined than this the men only go to war, but then the whole of the men, whether they be shepherds or a nation in the form of a small agrarian state, where the greatest and richest men, those who are at the head of affairs, have not above 10 or 11 acres, as was the case with Regulus, Cincinnatus, and others at the time of their greatest glory. Such persons can all go out to war as easily as the shepherds. In this state the campaigns were only sum|mer ones. The<y> continued but three or four months in the middle of the summer, after the spring and before the harvest work. They could easily be absent in the intermediate time, as the corn grows and the crop comes on, if the season favours, as well as if they were at home. A shepherds flock feeds tho he is not with it. Nothing therefore detains them. This was the case with the Peloponesians at the time of the Pelop. war, and had been so some time before at Athens, as Lysias3 mentions in the oration where he exorts them to imitate the brave actions of their forefathers, who, when all those fit for service had gone to Megaera and the old men and boys had been left with the women, as was customary, to defend the walls, they, when the enemy was spoiling the country, rallied out and gain’d a great victory. But this advice we dont see that they followed. So that a state of this sort could send out all those of the military age, which are generally counted to be 1 in 4, or 25 in 100. Of the 100, 50 or the half | are women; of the other 50 men, the half is reckoned to be below 16 or above 45 or 55, the longest term of the military age.—But in a state where arts, manufactures, and handicrafts are brought to perfection this is not the case. They can not dispense with the labourers in this manner without the total loss of business and the destruction of the state. Every hour a smith or a weaver is absent from his loom or the anvill^z his work is at a stop, which is not the case with the flocks of a shepherd or the fields of the husbandman. Trade, commerce, can not go on, and they therefore will not go out to the wars.—As one in 4 can go out in the former case, so not above 1 in 100 in those who are polished and cultivate the arts. This is the computation commonly made with regard to Britain and Holland and others, but <it> is probably too large. For here as before 50 are women, 25 above and below the military age, so that there must be one out of 25 go to the war, and this does not appear to have been the case even in this war,4 which has exhausted the country more | than any one since the time of Edw^d. 1^st. This is the computation with regard to the most parts of Germany, and Baron Blank in MS.5 , Minister to the King of Prussia, affirms that not above 1 in two hundred can go without detriment to the country. That country is not so much improved in arts as Britain, and consequen<t>ly could better spare. But as the other is too large, so this is I believe too small with regard to our country. From this we see that at first a small state, as Athens, might be very well able to defend itself. It contained perhaps 100,000 inhabitants or more; of these 25 or 30000 would be of the military age, so that it could furnish an army of considerable strength even at this day amongst more powerfull states, as they did at Marathon, Cheronea, etc., 10,000 or 20000. But when the whole people comes to be employed in peacefull and laborious arts, 1 out of 100 only can go, that is, about 1000, which would be no more than a poor city guard and could do nothing against an enemy; nor even 4 or 5000. | So that the very duration of the state and the improvements naturally going on at that time, every one applying himself to some usefull art, and commerce, the attendant on all these, necessarily undo the strength and cause the power to vanish of such a state till it be swallowed up by some neighbouring state.—Britain, tho highly advanced in arts and commerce, can nevertheless furnish great armies. The British Isles are computed to contain^a about 15,000000, so that if one out of 100 goes to war this will make an army of 150000, which is about the number of <the> standing army raised in this country during the war, altho there were near 500000 in battle ray;^b and I suspect also that this computation is two low, as those of other countries of Europe are too high, for this is the same as it was in Charles 2^d time, since which the country is greatly improved and consequently the number of men, tho not in the same proportion as I shall shew hereafter.—Thus it must happen that the improvement of arts and commerce must make a^c great declension in the force and power of the republick in all cases. But this does not hold equally | of all. There is a difference betwixt those countries where slavery takes place and those where it does not, in favours of the former, and this is perhaps the only advantage which attends the institution of slavery.^d In all countries where slavery takes place, they are the only persons (as I shewed already)6 who carry on arts and trades of all sorts. The masters indeed had the direction of it, but were no more than overseers, as they never wrought themselves. And we see that those lawgivers, as Solon, who encouraged trade and commerce, and obliged every one to cause <his> son <to> be as we say [be] bound apprentice to some trade, were anxious that they should not work themselves. They considered, and I believe with justice, that every sort of constant labour hurt the shape^e and rendered him less fit for military exercises, which made the chief view of all lawgivers at that time. (We can know a taylor by his gate.) At Sparta there were no trades at all, and at Athens no free man was engaged in any. The freemen therefore could still go out to battle and leave the superintendence of their slaves to the old men and the women. Thus at the battle of Chironea7 | they had 9000 or ten thousand men, tho they had long before made great progress in arts and sciences. But in the Italian republicks, as soon as arts, etc. were improvd, there was an intire decradation and loss of courage in the whole state. This we may ascribe as the cause of th<e> quick decay of Florence, Milan, etc. This naturally must happen, for no state can impose any very great and intollerable hardships, as the military service would be, in a refined state. Formerly it was not reckoned any hardship to serve in the field. The men of the best fashion served in battle. Those who are now knights were dragoons, and the other gentlemen or esquires were foot soldiers; and these, though of better fashion often than most of us here, thought it no hardship to serve 3 or 4 months in the year on their own expenses. The case we see was the same at Rome. Men of fashion then lived at the same ease and with no greater luxury in the field than at home, where they were generally employed in hunting. They fared as well, slept as soft abroad as at home, and had no particular business at home to engage them. Whereas nowadays, or whenever luxuyr^f comes in after commerce and arts, nothing but the most | urgent necessity, something which threat<en>ed the state with immediate ruin, could now induce men to leave their business and engage in war as a common soldier. The only people who could go out to war in this state would be the very lowest and worthlesest of the people. And these too could never be trusted, nor would they engage in any services with spirit, unless formed into what we call a standing army and brought under military discipline. Gentlemen will fight out of regard to their honour and love to their country; but it is fear only and respect of the officers which causes the lower sort, the common soldiers, to fight. Thus then when arts were improved, those who in the early times of the state had alone been trusted would not now go out, and those who before had never engaged in battle were the only persons who made up the armies, as the proletarii or lowest class did in the later periods of Rome. The armies are diminished in number but still more in force. This effect commerce and arts had on all the states of Greece. We see Demosthenes8 urging them to go out | to battle themselves, instead of their mercenaries which their army then consisted of; nor of these were there any considerable number. Whenever therefore arts and commerce engage the citizens, either as artizans or as master trades men, the strength and force of the city must be very much diminished.

2^dly, there is an other improvement which greatly diminishes the strength and security of such a state; I mean the improvement of the military art. The taking of cities was at fir<s>t a prodigious operation which employed a very long time, and was never accomplished but by illegible word^g stratagem or blockade, as was the case at the Trojan war. A small town with a strong wall could hold out very well against its enemies. They had no way to take it with any probability but by a blockade, and it would be very difficult to^h get any sufficient number of men to engage in such a tedious operation. Thus Athens held out for 2 years even after it had lost its navall force.9 But when the method of attack, as now in use, by warlike engines came to be | use<d>, and the ordering of zig–zag approaches was known, the taking of a city was not near so uncertain. A skifful engineer can guess within 1 week or two what time a place will surrender; and if the army be somewhat more numerous and the attack properly carri’d on, the taking of it is certain. The besiegers in this case have the advantage. From the time of the expulsion of the chieftans to the Peloponesian war, that is, during the glory of Gre<e>ce, no city was taken without a blockade; Athens, Plaetea, and Syracuse were all attacked but in this manner, nor had they any other idea of a siege. But when battering rams, balistas, catapultas, and the regular methods of approach, and all the other branches of the military art were brought to some considerable perfection by Philip, who was a very great engineer, improvd by Alexand<er>, and still more by Demetrius Poliorcites,10 who took many cities in much shorter <time> | than was ever done before, every state of this kind held its liberty by a precarious tenure. A siege of 8ⁱ weeks, or two or 3 months, was a certain means of bringing it into subjection; tho these were not probably of such effect as our cannon (as Blank in MS.^j contends<)> yet they facilitated the attacks very much, so that a place which would stand out now 5 or 6 weeks would then hold out perhaps 10 or 12. All states of this sort would therefore naturally come to ruin, its power being diminished by the introduction of arts and commerce, and its territory,^k and even its very being, being held on a very slender tack after the military art was brought to tollerable perfection, as it had nothing to hope for when once defeated in the field.

We come now to consider what is like to be the fate of a conquering state, such as that of Rome, or Carthage, which, tho the catastrophe was prevented by the more speedy ruin brought on it by the Romans, yet before this [it] had extended its conquests over all the coast of Africa, over all Spain, etc. These also must hold | by a very precarious tenure; not indeed that they are in danger from externall enemies,^l but as their liberty is in danger by its own subjects. For when arts and^m luxury have in the naturall progress of things been introduced into the state, and considerable improvements have been made in these, the rich and the better sort of people will no longer ingage in the service. The lower ranks make up the armies. Before the time of Marius11 the whole of the Roman armies was composed of the better sort, of people of fashion and honour. But he accep[e]ted of freed men and all others of the lower class, and put them into the form of what is called a standing army under a sort of discipline; and of these all the armies at Rome from this time, as they had done at Carthage, consisted. They were composed of freed men, or liberti, of run–a–way slaves, deserters, or the lowest of the mob. An army of this sort, serving under a commander for severall years, and being engaged inⁿ [in] war for severall years, would become very much dependent upon him. They would owe to him their rank in | the army, and all indeed that they were worth in the world. If this generall then should be affronted at home, or any <?way> discontented, <he> would naturally ask redress from his army, who, as they would in this case be men of no principle, would as readily agree to assist him in all his undertakings; and if he succeed the government is at an end, as he can bring the whole under his power. From the first establishment of this custom, this allways happened whenever the case above mentioned occurred. Sylla took offence at the haughty and imperious conduct of Marius, at the head of his army of the sort above mentiond, and expelled him; but^o Cinna12 and others of his followers afterward^p raised commotions in his favours, and at last he, after being successfull against Mithridates, returnd with great glory. Sylla being affronted at the treatment he had met with, he applied to his army, returned home, and after 10 or 12 battles became perpetuall Dictator, and then overthrew the government. | But out of an innate magnanimity, which he possessed perhaps more than any other man, along with all his other qualities, he resigned his authority, and the republican form continued 30 or 40 years after, till the same thing happened under Caesar. Pompey was in the same condition as Marius; he had been successfull in the Sertorian war in Spain, against the pirates, and against the servile warriors, and against Mithridates and Tigranes, and came home with glory and admiration and was without question the head man in the state; of which authority he would not probably have made the same use as Caesar. He, being a bankrupt above 10,000000, got himself at the head of an army, with which in the 9 years he commanded it he conquered both the Gauls.13 This gave him the highest reputation; the Gauls were to the Romans what the French are to us, the oldest and most formidable enemy. This eclipsed the glory of Pompey, and raised his jealousy so [so] that he would not allow the people to | grant his demand of being elected consull in his absence. This affronted Caesar; he had recourse to his army who willingly joind him, and by repeated victories he became Dictator for ever. The remains of the same victorious army afterwards set Antony and Augustus, and at last Augustus alone, on the throne. And the same will be the case in all conquering republicks where ever a mercenary army at the disposall of the generall is in use.

Tuesday March 1^st.

In my last lecture I endeavoured to shew you how the republican governments naturally came to lose their strength and be ruind and that, 1^st, with regard to the defensive ones. Here improvement in arts and cultivation unfit the people from going to war, so that the streng<th> is greatly diminished and it falls a sacrifice to some of its neighbours. This was the case of most of the republicks of Greece. Athens in its later time could not send out the 5^th part of what it formerly did. Besides this the improvement of arts also weakens the security | as, as far as we yet know, the besiegers are more capable of taking the advantage than the besieged. The art of attack can be, as far as yet has been thought of, carried higher than that of defense. Thebes we see fell a sacrifice to Alexander on this account,14 tho it was still but little advanced in the arts and could send out the greatest part of its men to war. Thus all defensive states at length fall a sacrifice to their neighbours.—I mentioned also what must naturally be the fate of a conquering republick. Of this sort we have an example in Rome. Athens too would have fournished us with an other example, had it not been for one particular constitution in which it differed from Rome. This was that the Athenians were very chary and scrupulous in admitting any one into the freedom of their city, and even when they admitted some great men and kings it was only to some of the priviledges of a citizen, as that of being free from imposts and customs at the port of Athens. Whereas the Romans were continually adding new members to the city, taking 1000^s and 10000^s by the slump from other countries. The reason of this was that the | citizenship of Athens was attended with some profit and made a small livelyhood to him, and for that reason was a defalcation from the fortunes of the rest of the citizens, who would therefore never consent to the admission of new members, whereas at Rome the citizenship was not attended with any emoluments, and therefore they were not so chary of admitting others to the same rights. Athens accordingly never increased in its power so as to be able greatly to extend its conquests. But Rome increased vastly in power and opulence, which at last brought the common wealth to ruin. When the armies are fighting abroad the conquering state enjoys great peace and tranquillity at home. This length of peace and quiet gives great room for the cultivation of the arts, and opulence which follows on it. Commerce too will naturally introduce itself, tho’ not, as now, particularly studied and a theory laid down. The industry of the individualls will necessarily occasion it. The wealth which this introduces, joined to that which is brought in by the conquest of other nations, naturally occasions the same diminution of strength as in a defensive republick. The better sort no longer engage in the service, and the army becomes a me<r>cenary one | and of the lowest people. These when the generall becomes dissatisfied naturally follow him as the person to whom they have been most indebted. The armies become more under the power of the generalls than of the people. This we see has been dreaded in all republicks. In the republick of Great Britain, as it was called, the Parliament soon grew jealous of their generall and leader Cromwell; they thought he ruled with too high a hand, and took measures to reduce him; they ordered him to disband his army, etc. He then applied to his army, not openly as those generalls Marius, Sulla, and Caesar, as he was a man of a much less generous temper, but in an indirect, canting way; they gave him their aid, reduced the Parliament into order, and established him protector, or monarch rather, of the republick. Of all the republicks we know, Rome alone made any extensive conquests, and became thus in danger from its armies under the victorious leaders. But the same thing was feared and must have happend at Carthage had the project of Hanniball succeded, and he made himself master of Italy. His brother was at the head of a great army in Spain, who had conquered that country | when servine^q under him, and had he joined to this another victorious army from Italy, and had the party of Hanno,15 as they probably would, got him to be affronted in the Senate, these two armies would probably have enslaved their country. The scanty allowances he had plainly show how jealous they were of him, nor does it appear that they ever intended his project should succeed. Aristocraticall lords are of all others most jealous of those who are any way distinguished in the state; and perhaps they would choose rather to be conquered by a for[e]eign enemy than by one of their own body. They have no ill will at the one as they hav<e> at the other; they would be grievd to see their equall raised above them. The same jealousy the Athenians had against their generall Alcibiades. Thucidides16 indeed justifies him from having had any bad design; and so far indeed we may say of all these generalls that they had not the subversion of the government in their view at first. But the temptation when offered is such as few men would be able to resist.

We can’t pretend to determine what will be the form of government | in a defensive republick which has been over–run by its neighbours. This depends on the caprice of the conquerors, who may do as they please. It will commonly be of the same sort with that of the conquerors. Thus Athens established a democraticall government in the countries it subdued; Sparta again an^r aristocracy, as that of 30 tyrants at Athens, as that which most suited their customs, and we see too that those^s <?who> the one sort favoured^t of government were of the Athenian party and e contra. The Romans more politickally (as I shall shew hereafter<)>17 reduced their conquests into the form of a province.—But there is only one form of government which can take place in a republick subdued by one of its own members. The action of subduing ones country, and (the army) the instrument by which it was performed, necessarily determine it to be a military monarchy. The army which conquered the country continues to be kept up as necessary to keep the people in awe. The Roman monarchs who succeded the Repub. were distinguished by [by] the name of imperatores, which was originally a title conferred by the army on successfull generalls. The government of Rome after this was entirely a government of soldiers. The army made the emperors, the army supported him in his authority and executed his orders. The private affairs | of individualls continued to be decided in the same manner and in the same courts as before. The emperor had no interest he could obtain by altering those forms, and on the other hand the people would more readily submit to his authority when they were allowed to continue. But the whole of the executive and the far greater part of the legislative power he took into his own hands. The Senate, the praetors, and all the other magistrates became to have no authority of their own but were intirely his creatures. War and peace, taxes, tributes, etc. he determind without comptroll by the power of his army; but right and wrong were as equitably determin’d as they ever had before. In the same way we see that Cromwell by an army of about 10,000 men kept the whole country in awe and disposed of every thing as he pleased, more arbitrarily than they had ever been before, but left the course of justice betwixt man and man as before, and indeed made severall improvements. Both these here mentioned were military governments, but very different from those of Turky and the east. A system of laws had been introduced beforehand. This it was not his interest to alter. He therefore left the | disputes concerning private property to be decided by the old rules, and even made severall improvements. He 1^st changed^u feudall holdings into sockage lands,18 took away the Navigation Act;19 and we see accordingly that the first thing done after the Restoration of Ch. 2^d was to make a statute20 in the 12^th or 1^st year confirming many of the regulations made by Cromwell. A new government always makes good laws, as it is their inte<r>est that the state should in its private affairs be under salutary regulations. Julius Caesar21 we are told had the same project of amending, not of altering, the laws. And justice <in> private affairs was never better administered than under the emperors, and the worst of the empe<r>ors, Nero and Domitian.22 Tho their cruelty made them often act with great barbarity, their interest lead them to improve the laws and keep up very strict discipline. The oppressions of the governors of provinces had never before been so thoroughly prevented during the republican form. Thus a military government admitts of regulations, admitts of laws, and tho the proceedings are very violent and arbitrary with regard to the election of emperors and in the punishment | of all offenders against his dignity, who were punished without any triall, or by what was worse than none, a sham trial which was a mockery of justice. But in every other thing it was his interest that justice should be well administered. And this was the case in the Roman Empire from the time of Julius Caesar to that of the ruin of the Empire. But this government, as all others, seems to have a certain and fixed end which concludes it.—For the improvement of arts necessarily takes place here; this, tho it has many great advantages, renders the people unwilling to go to war. We see that foreign mercenaries have been in use in all such rich and opulent states; the Dutch never go to war but by an army of foreign mercenaries, whose officers are all foreigners also, for their no one can be spared from his work. This was the case of the Roman Empire. The provinces were all rich and had a considerable degree of commerce, the city was rich and luxurious, and the whole people unwilling to go to war. Besides, the publick revenues would have been greatly diminished, as it, in all commercial nations, is levied by tax or excise on different manufactures. | It was then no longer the interest of the government to press its subjects to go to war. It becomes much more convenient to recruit their armys from the barbarous nations about it, both because they will accept of less pay, being poorer and not accustomed to high living as the subjects of the Empire are, and 2^dly, as it is not detrimentall to industry. This therefore becomes the policy of all governments in this state. The Romans recruited there armies from Britain, Scythia, and all the northern parts of Europe. This was at first no more than recruiting, having^v got liberty for that purpose from the chief (as the Dutch had in Scotland).23 But they found it afterwards still more easy to make a slump bargain with the chief to lead out a certain number of men, which he should maintain for a certain summ paid by them, and the command of them is given to him, as he will be better able to raise a considerable number and to lead them out to battle. Whenever this chief becomes offended with the government, in the same manner as the great generalls of the Republick took possession of the command of the state and turnd it into a monarchy, so will he turn his forces against them and take possession for himself of whatever province he happens to be in. And in this manner it was that all | the Roman provinces were taken possession of by the generalls who commanded in them at different times. In this manner it was that Clovis got possession of Gaul, and the Saxons of Britain. The generallity of writers mistake the account of this story.—The case was, as we are informed by the best writers, that Aeseius,24 being pressed very hard in Gaul by the Germans and northern Scythian nations, told the Britains that they must provide for their own defence against the Scots and Picts, two nations who as we see from the poems of Ossian were much in the same state as the Americans, tho they dont appear to have had the custom of roasting men alive. The Roman army had before defended themselves by means of the wall they had built and in which they had always kept a garrison; but the army being withdrawn, the Britains or rather Roman colony, not inclining to leave the cultivation of their lands in which they had made a considerable progress, could not easily protect themselves. They generally tell us that Aeseius gave them their liberty. But this is not probable: for 1^st, no government would ever give liberty to a province they could possibly maintain; nor in the | 2^d place, would they have taken it as any favour, as they had been a province for about 4 or 500 years, under the protection of the Roman army. They would not therefore think it any favour to be desired to provide for their own defence, that the government could give them no farther assistance, any more than a county in England or the colonies in America would to be deserted by Britain and left to defend themselves against the savages. This was what Aeseius did; he told them they must be at the trouble to defend themselves, as the army was necessary in Gaul, a province of more importance.25 They not inclining to leave there work agree’d to bring over the Saxons, who came at first over^w under Hengist and Ho Blank in MS.26 . They soon expelled the Scots and Picts (who had before made many incursions and depradations), being a much more formidable nation, but finding that they had the whole country under their power sent over for others, who soon subdued the Britains and established the Saxon Heptarchy under the different chiefs. And in the same manner all the other provinces were usurped by those who had | formerly been their defenders. The others indeed who lay more contiguous to the heart of the Roman Empire were often attacked by them; but the Saxons were never disturbed. This however was the first settlement of the severall provinces. Such was the fate of the western empire. The eastern Empire fell^x by the incersions of the Turks and Arabs.

In this manner the great security, and opulence, and progress of arts and commerce which takes place in a military government of some standing makes it both difficult and prejudicial to the state for the people to go to war themselves.27 They begin therefore first to recruit amongst the barbarians, and afterwards to make a bargain with the chiefs. This was the policy of the Roman emperors from the time of Caracalla and still more from that of Dioclesian, Arcadius, and Honorius. From this time all the great men were chieftans of some barbarous nation. The patricians, which were formerly the men of old noble families, were no longer of that sort. The patricius | was no other than the emperors Prime Minister, in which office some of these barbarous chieftans served him as well as in that^y office of generall of his forces. These often would not submit to his orders, but rebelled from his authority and set up for themselves. Stilico,28 Aeseius, and all the other great defenders or betrayers of the Empire were of this sort. Stilico we know betrayed it; and Aeseias indeed is said to have been always faithfull, but was nevertheless greatly suspected and was accordingly put to death by order of Blank in MS.29 , who was himself murthered afterwards by a defender and friend of Ae<se>ias.

Wednesday. March 2^d 1763.

In the last lecture I gave you some account of the government which takes place in a^z great and powerfull republick when it is subdued by one of its own subjects, such as that of the Roman emperors, that which would soon have been the case at Carthage, which had very large territories on the coast of Africa and Spain, had it not been interrupted by the Roman arms. It actually | took place in the great and powerfull republick of Syracuse, whose great general Dyonysius Blank in MS.30 reduced it under his own power; and happend too in the British republick under Cromwell. This form is no other than that of a military monarchy. The manner in which it is attained to and the instrument which procures it make it still necessary to exercise the authority over the people by a military force. The greatest part of the supreme power comes to be lodged in the hands of the emperor. The executive power and that of making peace and war was entirely in their hands; and the legislative power was so in effect allso, for they soon took the power of making laws from the body of the people to whom it originally belonged and gave it to the Senate. They, being intirely the creatures of the prince, were entirely directed by him, and the laws were in effect of his making. And we find that after the end of the reign of Augustus all the regulations or statutes were not what was properly called laws, that is, decrees of the whole body of the people, | but senatus consulta,31 as the senatus consultum Orphitianum, s.c. Tertul., etc. The emperor had also the power of appointing all magistrates and officers, of which they very soon deprived the people. The judiciall power came also at last in the last resort to the emperor. The people were at first the judges of all causes. The Senate had properly no judiciall authority. They had what is properly called a senatoriall power; they determind all the necessary previous steps^a to peace and war, as levying armies, imposing taxes, and providing for the safety and convenience of the state. But the emperors took also the judiciall power from the people and gave it to the Senate, who as I said being intirely his creatures put it also, as well as the legislative, into his power. And we see also that about the time of Marcus, or Honorious and Arcadius, the laws were made by the emperors themselves, that is, the edicta et rescripta principum had the same effect | as a law, and of such the Codex32 is chiefly composed. The military power was that which put all his orders in execution. These governments were indeed military, but not of the same kind with those of Turky and the east. Tho in the R. Empire the nobles and great men who were obnoxious to the government were often, as we see from Tacitus and Suetonius, massacred in great numbers, yet those who lived at a distance from the court were under a mild government, and lived more peaceably and happily than they did under the Republick, as the governors were more frequently called to an account, and the people could always appeal; and in a word the ancient form of government as to private justice was still allowed to subsist. Whereas in the others there is no regulations or laws at all to direct the administration of justice. The difference is that the monarchy in the one case was formed by those who had lived under the laws in the ancient state, and when they founded the new one it was not for their interest to abolish those | laws of whose salutary effects they themselves had been sensible. But^b the others, in the eastern countries, were all established by Tartarian or Arabian chiefs. The present Sultans, Grand Seignors, Mogulls, and Emperors of China are all of Tartarian descent. These had no knowledge of the benefit of laws; they therefore never thought of continuing the old or of establishing new ones. Their own authority was altogether absolute; the magistrates or bashaws they appointed under them naturally obtained the same power over those who were under their jurisdiction. They had not been accustomed to receive any restraint themselves, nor did they think of imposing any. The bashaws and every inferior magistrate have sovereign power in their own part of the empire. The people live^c in a most miserable condition, having their lives and property at the mercy of judges of the lowest order, not much better than a pitifull Justice of Peace or sheriff.—They can indeed be called to account by the emperor, but the people have no way of complaining. There is in this manner no laws | or settled method of administring justice. The caliphs who succeded Mahomet had indeed some better regulations with regard to the administration of justice; but they, falling on that account into peaceable industry and commerce, cared not to go out to war themselves and took the expedient ordinary in such cases: they called in the Turkamans to protect their country. This Tartar nation in the same manner, and others of their employment, in a short time overthrew the empire of the caliphs and made way for the Ottoman family into Europe. In the last the lecture before33 I took notice of the manner in which defensive republicks come to ruin, and I observed also that the institution of slavery made those where it took place fail, but not so soon as the others, and indeed intirely alters the nature of the government. There was^d not amongst all the republicks of Europe any one which was properly a democracy. In some indeed of the smaller ones the people had the power of choosing the magistrates. But there is none where the body of the people had the power of making peace and war, choosing magistrates, | levying taxes, and enacting laws in the last resort, which makes what is properly called a democracy. There were indeed some states who injoyed these rights for some time, but the people have always resigned that power into the hands of the great. The Venetians resigned their power for ever into the hands of the then magistrates, which gave occasion to the Venetian nobility. In a state where slavery takes place all the arts are exercised by slaves; the freemen are all idle and at liberty to attend the publick assemblys. Whereas where no such constitution is allowd the freemen are all engaged in some trade, from whence they can not be seperated without great loss to the state as well as the individualls. I shewed also34 that trade and commerce tend much more to enervate and weaken the military strength of the state where there are no slaves than where there are. Slavery has not been allowed in any of the modern republicks. The people therefore became unfit to be burthened with the publick business, and gave up this power into the hands of a few. Commerce and industry soon rendered | them very rich. The Italian republick had in their hands at that time the most profitable brancches of trade. They had the whole of the silk manufacture, a very profitable one, and the greatest part of the linnen trade. Their situation also gave them an opportunity of having the whole of the East Indian trade that came into Europe pass thro their hands. The Cape of Good Hope was not then discovered; the goods brought from the East Indies were conveyed up the Red Sea, from thence into the Nile, and by that means to Alexandria, where they were brought up by the Venetian and Genoese merchants chiefly, and by them dispersed thro Europe. Milan too, tho no sea port, had great commerc<e>. It was the centre of the trade betwixt the other tns, and had besides the greatest share of the silk trade, which all centered in it. The trade and manufactures in these commonwea<l>ths soon intirely ingrossed the people, who had no time to go to war, or their business would be ruin’d; these therefore, as well as the other states, had recourse to mercenary troops; tho they were never very powerfull nor^e made any conquests, | they had occasion for troops for the defense against other nations. They therefore engaged the chiefs of the German, Helvetian, or other barbarous nations near the head of Italy to defend their country, for which they paid very high subsidies. The dukes of Milan, particularlyBlank in MS.^f , paid subsidies to allmost every prince in Europe. We may allways judge of the wea<l>th of a nation when a war breaks out by observing which of them pays subsidies to its allies. The Empress Queen35 and the King of Prussia never pay subsidies; their extensive dominions make them powerfull, but their countries are not rich. France pays large subsidies to its allies; Britain allmost maintains her allies; Holland does the same when engaged in war; Spain and Portugall, tho they have not commerce, yet derive great riches from their mines and other rich products of their colonies, and accordingly pay some small subsidies. The Italian republicks in the same manner paid subsidies to some of the neighbouring chiefs who engaged to bring 10,000 or 5000 horse, which were then chiefly in request, for their protection. Every small state had some of | these in their pay. This in^g soon brought on their ruin. For as soon as these generalls were any way affronted he turned the army against them, who having nothing to defend themselves by, their only resource then acting against them, always fell under his power. In this manner Blank in MS.^h de Fero made himself master of Fero, Blank in MS.ⁱ de Blank in MS.^j of Milan,36 and after him Blank in MS.^k who was called in by his successors in his turn compelled Blank in MS.^l to give him his only daughter in marriage and settle his dukedome upon him. The family of Medici in the same manner got possession of Florence, tho not in so direct and open a manner.

I have now gone thro all the forms of government which have existed in the world, as far as we have any account, except those that are now in force in Europe. I have given you some account of the sort of government, if it may be call’d so, which takes place in the age of^m hunters; that imperfect and rude sort which takes place amongst shepherds; how these form into states under a chief, which become at last republican, being at first aristocraticall and afterwards democratical, of which there are two sorts, either where slavery | is established or where it is not; and of the military governments which arise from the conquest of a republick; and of that which takes place after the conquest of savage nations. I shall therefore proceed now to give you an account of the origin and constitution of these severall governments. These as well as the others have taken their rise from the same Tartarian species of government.

The German and other[n] northern nations which over ran the Roman provinces in Europe were in the same form of government as the Tartars still are, but somewhat more improv’d; they had the knowledge of agriculture and of property in land, which they have not. The first thing therefore which they set about after they had got possession of any kingdom, as Britain, France, etc., was to make a division of the lands. In this division of the lands the king or leader would have a very great share; the nobles or other chieftans who attended him, and had each their seperate dependents, had also their shares, less considerablyⁿ than those of the king but still very considerable. | These they would give out to others, either for military service or for a certain rent or for both. In this manner the allodiall government of Europe, distinguished from the feudall, arose out of the ruins of the Roman provinces. The feudall government arose^o about 400 years afterwards, about the 9^th century. In the allodiall government, the lords held their lands of no one, but possessed them as their own property. The burthens of wardenage, relief, etc. were not then known, and were introduced long after. Besides these the old inhabitants of the country possessed a good part of it. The Saxons indeed seem to have intirely exterminated the inhabitants of England,^p 37 or put them to the sword. They certainly did not admit them into their society, for tho their is a considerable mixture of the Saxon and Norman language in the Scots and English dialects, as those latter conquerors did not exterminate the inhabitants in the same manner, yet there is no mixture | of the Erse or Welsh in either of them. The conquerors in other countries did not proceed with the same severity. The Franks in Gaul, we see, permitted the old inhabitants to continue. We see in their laws mention made both of the Franks and the Gauls. A man who killed a Gaul, or a Roman as they called him, was to pay for his composition 100 shillings, but for a Frank 300, and generaly the composition is tripled in that manner.38 These allodiall lords, possessing great territories and having great wealth in rents of the produce itself, came to have a great number of dependents as they possessed the whole or the greatest part of the lands of the kingdom. This inequality of property would, in a country where agriculture and division of land was introduced but arts were not practisd, introduce still greater dependance^q than amongst shepherds, tho there too it is very great. For amongst the shepherds one who had got possession of flocks or herds had them maintain’d by the produce of the land, tho’ he did not | pay any thing for it. But when^r the lands were all appropriated, tho one had property in cattle it could be of no service to him unless he got liberty to pasture them from some of these great lords. Now at this time there was no arts practised by them. These people being^s rough and wil[l]d^t had no discipline amongst them; the country was infested by robbers and banditti, so that the cities soon became deserted, for unless their be a free communication betwixt the country and the town to carry out the manufactures and import provisions no town can subsist. The inhabitants were therefore dispersed, and settled themselves under the different lords.—Another accident, which happend a little before establishment of the feudall government^u and tended to ruin the commerce of allmost all the western parts of Europe, was the depredations of the Normans and Danes, a rough nation who originally inhabitted the isles and peninsulas of the Baltick Sea and set out frequently on piraticall expeditions, pillaging all the | maritime countries. They made frequent incursions, and frequently pillaged and at last conquered England; and tho our historians give us but an imperfect account of them, yet we find by our old ballads and poems that they made very frequent incursions. They also plundered all the coast of France, and at last conquered Normandy.—The lords therefore had a great number of dependents; some of these held lands of them as tenents, and others were retaind about the house and maintaind by the lord. These were^v a set of idle–gentlemen who did not work but consumed the produce of the estate. Of these, which they called H Blank in MS.^w villains, a lord would amount to 1000 or more. These two different parties in his dominions put it in the power of the lord to preserve good order amongst them. His tenents naturally hated those idle fellows who eat up the fruits of their labours at their ease, and were allways ready to give their assistance to curb the insolence of his retainers; they again were no less ready to give their assistance to bring the tenents into | proper order. The king also found it absolutely necessary to grant the power of jurisdiction to these lords; for as he had no standing army there could be no other way of bringing the subjects to obey^x rules. A debt could not be taken up, nor an offender punished, any other way. A kings officer would have been laughed at or massacred. This jurisdiction extended not only to those who were their immediate vassalls and dependents, but to all the free and independent men who held of no one (of which there were a considerable number) within certain limits. Besides the power he had of punishing and amerciating, he had also severall of those rights which we now reckon regalia. He had the power of coining money within his jurisdiction, and also of making by laws and statutes {Those which are now called manors in England were formerly allodiall lordships, which afterwards became barronnies and are now called by that name. In these there are still severall regulations with regard to succession and the holding of land alltogether peculiar to themselves.} which were of effect as far as his authority extended, both which would be very necessary at that time. The^y chief members^z of the state therefore were the king and these lords. But as there would be^a a continuall jarring of interests betwixt these two parts of the state, it was necessary to have some middle power betwixt them; | this was attempted to be made out of the other freemen of the severall counties <?by> severall regulations. Every county was divided into so many tythings, as they were called. These were supposed to contain about 10 families. Every man was obliged to enter himself as a member of some tything, and the severall members of it were accountable for the others and obliged to produce the members who had committed any offence, or if they could not do it, to pay his composition. Ten of these tythings made an hundred, and as each of the tythings were accountable for and had authority over the seve<r>all members, so had the hundred over all its members. Besides those there were also trvings, or trifings, which contained the third part of a county; but the particular office at this court is not well known.—Besides all these was a sort of supreme court in each county which was called the Wightenogema; in this the first member was the sheriff or officer sent to govern it and regulate the affairs of it by the king. Next the bishops of the | county, and the abbots, and even the abesses, for as I said the women of all barbarous nations are intrusted with a considerable share in all their deliberations. Then the great allodiall lords, of which there might be 3 or 4 in a county; and lastly the wights or wise men, the senes, senatores, or patres; these were chosen out of each trithing, hundered, or even tything, and from them the court was called the Wightenogema, or the council of the wise men. To this court were accountable not only the severall tythings but the hundreds and even the trivings. — — —

Thursday. March. 3^d. 1763 [176]

In my last lecture I begun to explain to you the nature of that government which the severall barbarous nations which over run Europe established in it after the expulsion of the Romans. This as I shewed was the allodial government properly so called. We may observe with regard to it, that it was made as nearly the same as was possible with that which they had lived under in their own country. In that state the affairs of each hamlet or small | district are decided by the severall members of it; any disputes betwixt [of] those of different small districts by the members of larger ones; and the affairs of the whole nation, or disputes betwixt members of the different large divisions, by the assembly of the whole nation and their leader or chief. The government which was established by the Saxons in Britain, the Franks in Gaul, and the Burgundians and Wisigoths in the south of France, were all of this sort.—The first court they established was that of the decennry.^b A barbarous nation are very jealous of each individual and oblige him to join with some decennry, and require that this court should be accountable for the behaviour of each of the members of it, and these passed judgement on all affairs within it. 10 of the deceneries made a hundred; which decided the affairs of those who were [members of] different the members of^c decennries, which could not be tried in either of them; and to it also lay an appeal to any one who was dissatisfied with the judgement of his decenery. The whole of these within a county, meeting together, formed the county meeting, which decided the affairs of the different hundreds or appeals from any one. From this county also their lay an appeal to the Kings Court, but this was | allowed only in two cases: the 1^st. was in case of a denial of justice, when the county court would not take the cause into consideration; and 2^dly, long and unnecessary delay of judgement, when they did not refuse absolutely to try the cause, but only delayed it afterwards, which came to the same thing. This court seems to have been the same with that of the Wittenogemot. In it the king presided; next was the alderman or earl who was judge or president of the county and of all its affairs. Then there came the bishops and abbots and abbesses (as I mentioned already);39 then the severall great allodial lords; and lastly the wi(ghts)tes or wise men. This form of government appears to be very natural and orderly. Nothing could be more naturall than that the affairs of the individualls should be decided by his neighbours. This made the decennry of 10 families or thereabouts, and that if he was not satisfied with this he should appeal to the greater assembly. And if a dispute happend betwixt the members of 2 different lesser assemblies this affair should be decided by both together; but as there was no regular assembly of that number the affar was left to the next greater one which had a right of trying causes. That from these again the county court determined all appeals. And if an injury had been done to any one by a person | of a different county, as the peace of that county only had been broke in which the action was done, the affair was given over to its determination, whether it was the county to which the offender or the injured belonged; and^d if this court delayed or refused judgement, the affair might be lodged before the Kings Court, which was the same with the Witten–ogemot.

This was the government which the Anglo Saxons meant to have established in Britain. But the power of the great lords soon destroyed the order and harmony of its severall parts.—These nations as I mentioned had no commerce of their own. Their lawless and freebooting manner of life also destroyed all the commerce and industry of the former inhabitants, who were obliged to leave the cities and seek possessions and protection in the lands of the several lords. These had no other way of consuming the product of their lands but by giving them out to persons who for that reason became their dependents. They were still but little advanced beyond the state of shepherds, and as they had property in land already established those^e who had got flocks or herds | could reap no benefit from them unless they got lands from these lords. This made the number of their dependents still greater than at any other time of society. The large territories which the Saxons gave to their great lords in this manner procured them immense numbers of dependents. These besides their military service generally paid a small rent, commonly in kind; or if it was in money, this money could be exchanged for nothing but the coarse and rough produce of the earth. This also he could consume no other way but by giving it out to his retainers and dependents. Thus one lord would have had 1000 about his house, and 5000 perhaps settled as tenents on his estate, who all were ready and engaged to follow him in arms to battle. He could therefore with ease, and no one else, keep pe[e]ace within those territories. His power was greater frequently than that of the county court itself, as the half or a third of the county was altogether under his direction. William of Blank in MS.^f , who came over with W^m the Conqueror, got the whole of the county | of Chester for his share.40 The only method by which one could obtain justice or payment of any debt which he had^g to demand from one within the limits of his power was to apply to this lord; he easily could procure him satisfaction; but the king himself could not without involving himself in a war about a matter of little consequence. These lords therefore had great jurisdictions independent of all the courts, whose order was thereby intirely destroyed. This disorder increased in the same manner as their power, and at last it came to be generally apprehended that the great lord of a county was hereditary alderman or earl of the county, as he alone could execute that office with ease and could have hindered all others. In the same manner the chief lord in every hundred, etc. came to preside in it. And all these lords became judges, possess’d of large estates which they possessed^h altogether free, without those burthens introduced by theⁱ feudall government which I shall mention immediately. As they were always at war with each other and often with the king, their whole power | depended on the service of their retainers and tenents; but the greatest part consisted in their tenents, who held their lands at first during pleasure, in which time they were called munera or presents. When therefore they had occasion to demand any extraordinary service of these tenents (either the lords or the king) they promised them the possession of their lands for a longer term of years. In this manner the munera became at first to be held for the life of the tenent, in which case they were called beneficia. Then in progress of time they were held for the life time of the tenent and of his son, and so on till they came to be altogether hereditary, in which state they were called feuda.41 But in all these different forms, the ground on which they were held was that of military service, for which reason they capitulated for themselves that if the heir by age or otherwise <?was> incapable of performing those duties he should take him into his protection, and the lands also into his hands, and give them over to another, or procure by their means another, who would perform those services which were required, viz | service in war and attendance in council. In this manner arose the emolument of wardenship. In the same manner came in the emolument of marriage, as soon as females were allowed to inherit; for then it became necessary that the lord should have it in his power to give her a husband who would perform those services in a suitable manner. And in some countries this took place even with regard to males, as the pupill was conceived to be accountable to the lord as his tutor in all cases for his marriage, and was liable to fine and amercement in case he marri’d without his consent.—3^dly, as every person who held these lands was conceived to hold them for military service, so no one even of age was allowed to take possession of the estate at first. The lord took <it> into his own hands, which was called the right or emolument of primur seisin.42 And again when a pupil came of age, which was at first at 14, as the<y> then could serve in war, afterwards when the armour became heavy at 18, and when still heavier at 21. In both these cases he had ½, one, or two years | rent, according to the custom of the place, to give to the lord as a present before he was admitted to the possession of it; for nothing, not even the common acts of justice, were ever performd without a gratuity. These make the great characteristicks of the feudall holdings.

They had besides this another more accidentall emolument, viz that of escheat, derived from the French eschouter, to fall. If the family became extinct, then it escheated or fell to the lord, and the same was the case if the tenent refused service in war or attendance in council, or if he refused that he was his vassal or any way denied his authority. For these considerations the king gave up all his demesne lands, and the great allodiall lords their estates, to be held as feuda, which before had been held as munera. A tenent who held a feu was very near as good as property. He held it for himself and his heirs for ever. The lord had the dominium directum, but he had the dominium utile which <?was> the principal and most beneficial part of property. He became then considerable more independent than he had been before, tho he was still dependent, and considerably inferior to allodial lands.—Allodium signifyed at first an estate in | land, fundus in general, when all land was free from any burthens. But after another sort of land was introduced, to wit, the feudall lands, it denoted those which were possessed in the old manner and signify’d free^j land, whereas feudum denoted those lands which were held by the feudall burthens.—In the manner here mentioned all the munera which were already become beneficia, and all these inferior possessions, came to be held in the feudall manner.

When any of the great allodial lords was in danger of being oppressed by his neighbours, he called for protection from the king against them. This he could not obtain without some consideration he should perform to him. A rude and barbarous people who do not see far are very ready to make concessions for a temporary advantage. They therefore generally agreed to hold of the king in the feudall manner, retaining all his jurisdictions and authority entired,^k being subject only to the feudall casualties. In this manner the allodial^l possessions as well as the munera and beneficia came to be feudall. This had come in before with regard to the inferior or allodiall lordships. A small one of | this sort, situated betwixt two great ones, saw no better method to obtain protection and prevent his being swallowed up than to submit himself to the feudall holding. He would not consent to become a munera^m possessor, as that made him hold precariously from having been altogether independent, he had <no> other method but to hold feudally; and this he would readily agree to, as he and his heirs were still secure of the possession, with the burthen only of those services and some other casualties, as that of talliage,43 or a contribution to pay his lords ransom when taken prisoner, a present to make a dower for his daughter, and another to help to make his son a knight. Those services secured his protection, and in this manner the inferior allodial lords came to hold of the great ones, and these again of the king; and the whole thus held of him either mediately or immediately, and the king was conceived to have the dominium directum of all the lands in the kingdom.—But till within aⁿ hundred and fifty years ago their were still some allodial lands, and the maxim nulle terre sans seigneur is but of late invention.—We will find a great confirmation of this account of the feudall government | from Spelman,44 tho he himself does not seem to have understood it and thought it arose immediately after the settlement of the Saxons and other German nations. Bouquet45 has explaind it extremely well. He observes that there was hardly any feudall land in Britain before the conquest by William the Conqueror. The terms of the modern law were all introduced at that time[s] and were intirely unknown before. The Saxon law used, to denote the allodiall lands, the words possidere, habere. Our phraseology of tenere, etc. came about that time allong with the feudall law properly so called, when every one held either mediately or immediately of the king, who had the dom. dir. of the whole, and his tenents of whatever sort, noble or ignoble, the domin. utile. We may observe here also another mistake of the generallity of the writers on this subject. They seem to think that this change of the allodiall into feudall lands was an usurpation of the nobles, as they, according to their opinion, changed a precarious into a certain possession, who took an opportunity | in the troublesome times to^o nestle^p and fix themselves in their estates. But this is altogether a mistake, and was on the other hand an augmentation of the ks power, as we find that there were many allodial lords before that time who were free from all burthens, as is shewn by Bouquet,46 which were hereditary and had many of the regalia and jurisdictions: they had: 1^st, t ; 2, ; 3, Blanks in MS.47 ; 4^th, the power of making laws; and 5^thly, that of coining money. But the strongest proof of any is that^q William the Conqueror, who was a very politick^r prince^s and <k>new^t what would aggrandize his own power, changed all at once the allodiall into the feudall government. He by an act of power obliged all the Normans and any of the Saxons whom he permitted to continue to hold of him in the feudall manner. Malcom Keanmoir, who was also a sagacius prince, changed them in Scotland in the same manner. From then the power of the king was as we evidently see greatly increased, and the government administerd in an orderly manner; the times after the conquest appear clear and enlightend compared with those of the Saxon race. And the | same may be observed in France, where during the 2 first races, viz the Merovingian and the Carlovingian races, the greatest disorder and confusion overspreads every thing till the time of Hugh Cappe;48 from thence justice and order begin to be established.

Friday. March. 4^th. 1763.—

In my last lecture I endeavoured to explain to you the manner in which the allodiall form of government came to be changed into the feudall form. This change happend in the whole of Europe about the 9, 10, and 11^st centuries. The lands were at first only munera; these were afterwards held as beneficia, and at last as feuda. The Germans, when carried out of their country by Conrad, in expeditions into Italy, complaind that there families would be ruin’d if they should not return, and Conrad,49 to induce them to serve him with the greater willingness, promised them that their lands should be possessed by their sons and afterwards by their grandsons,^u and failing them by their brothers and other relations; so that they at last became hereditary feus. This was in the end of the 11^th or beginning of the twelfth century. For as I shall | shew by and by, the progress of law and government was slower in Germany than in most other parts of Europe. If, before this time, any allodiall lord had wanted the assistance of the king or one who was more powerfull than himself, he would resign his lands to him and consent to hold them as munera or beneficia. But when lands came to hold by perpetuall tenure, they would rather take them in that manner. They^v when in any danger or in want of protection held them feudally, which transaction was done in this manner: they resigned their lands intirely into the hands of the king, who afterwards gave them [them] back with a charter in which they were bound to military service with the three talliages or Blanks in MS.^w as mentioned in the last lect.,50 to ransom the lord, etc. And in this manner all the allod. lands became feudall, and the different burthens of it were soon introduced. Sometimes for the present of a small piece of land they received from the king, they consented to hold both it and their other lands feudally. Blank in MS.51 of Scotland, by giving out his demesne lands in feu, obtaind that all the other lands | of the great lords should be held feudally of him also; and in this the same form was used. They surrendered their lands to him and receivd them back with a charter binding them to the military service and other burthens. And in these feudall casualties the whole difference betwixt the feudall and the allodiall forms consisted; in the time of a minority, the rents of the estate did not as formerly go to the relations but to the king, and so in other cases. And on the other hand the feudall lords were more immediately under the protection of the king than when they were allodiall ones. He was bound to protect them, and this it was his interest to perform, as they were his vassals from whom he might expect to reap considerable benefit. The feudall jurisdictions still containd all that the allodiall ones did.52 They had 1^st, the power of deciding all matters respecting property within their baronry, earldome, or other jurisdiction; 2^dly, of determining all disputes concerning freehold land or Blank in MS.^x and of succession; 3^dly, the power of life and death; 4^thly, that of making by laws for their own domain; and lastly, | that of coining money; and allmost all the regalia which are considered as marks of sovereignty; being only subject in some measure to a lord still greater. The aristocraticall part of the feudall constitution was a good deal weakend by this, as they became greatly more dependent on the king, and were obliged from this time to manage and coax him to obtain those favours they might want of him; and we see accordingly that the kings in all countries favoured the feudall tenures.

In my last <lecture> I explained the form of government which took place when the lands were allodiall. I shall now consider those which came in when they held in the feudall manner.—In the first place we may observe that the feudall govenment took away every thing which was popular in the allodial form; of which sort [there were] there are^y many traces. The decennries were alltogether popular, and so were the hundreds and the county courts. The^z Kings Court was also in a great measure popular, | for tho the lords and earls were there in council, yet the wites chosen from the people sat there [also] in judgement also. But as I already observed the power of the allodial great lords in a great measure <?prevented> the free operation of this manner of government; so that at last the presidents or aldermen of the county court were not chosen by it or appointed by the king as they were at first, but the great lord or baron in the county became hereditary earl or president in it.—The feudall government however put an entire conclusion to all these courts; and all the lands fell under the immediate jurisdiction of the lords or of the king, who administred judgement in them either by himse<l>f or by judges sent for that purpose. In the council of the king none were allowed to sit but those great lords who held immediately of him. These were all called to a colloquium or conference with him; the word parliamentum did not come to be used for some time after. To these colloquia none were called but those who held in capite53 of the king. These were considered as companions or | comites of the king, and his attendants, and were peers or pares, equalls of each other. Nothing of importance with regard to the state was done by the king without their advice and consent, and any thing done without it could be of no effect as their power was such that they could easily have prevented the execution of it. Without their consent and advice^a no laws or rules respecting the country could be made. These who composed the Kings Court were in this manner pares curiae regis, convivii, comites, socii regis. In the same manner those who made up the barons court were pares curiae baronis, convivii, socii, comites baronis. With these he consulted concerning all matters relating to the baronry.—They had all become his vassals voluntarily. They considered the expression that was in their charters of their being free and gratuitous deeds of the king or lord as a form, and it was in fact no more as they had promised him service in return for protection. They were all armed and <?had> a court of their own, composed of their vavassores, so that without their consent nothing | could be done. Nor could they again without that of their vavassores. No regulations with respect to the country, no determinations with respect to peace or war, could be made or could possibly have been effectuall without the advice and consent of these lords. This made the government become altogether aristocraticall; the king as chief at the head of it, the lords, and their vassalls.—All those who held by military service of the king, whether it was immediately or thro a descent by intervening mean or middle lords, of which there were sometimes 5 or 6 betwixt the lowest vassall and the sovereign, all these as long as they held by military service were considered as holding by a noble tenure and had certain priviledges common to them all. 1^st, they could not be turned out of the possession of their lands on any pretext by their superior [with] without the consent of all their peers, and far less could they be put to death. Each of these would find it to be his interest that the others should get entire justice, as the same might soon have been his own case. Nothing could be done to a lord without a fair trial and sentence pronounced against him before the pares | curiae regis. Nor could any thing be done or any proceeding undertook against the barons vassalls; they could not be turned out of their estates or deprived of their lives without a triall in curia baronis, before his peers, pares curiae baronis. Their maxim was that nothing could be done to a man without a trial before his peers. This still remains in some measure.

Besides these, which were honourable and noble tenures, there were two other classes of men, which were reckoned ignoble and contemptible.54 —The 1^st of these is the villains or slaves who ploughed and tilld the ground. These were reckoned incapable of property; they were bought and sold allong with the land estate. They were however in a much better condition than the slaves in ancient Greece or Rome. For if the master killed his villain he was liable to a fine;^b or if he beat him so as that he died within a day he was also liable to a fine; these, tho small priviledges, were very considerable and shewd great superiority of condition if compared with that of the old slaves. They had besides severall other priviledges, as | that they could be sold only along with the estate, so that they had the benefit of a marriage in which they were securd by the^c clergy, who took care that they should not be separated from their wives. It was also a rule that if the lord used him unjustly, or did not plead his cause and appear for him in court when he was accused, and it was found that he had been innocent in this case, he was free. They were slaves in many things but had priviledges superior to those of other constitutions, as monarchicall governments are allways more gentle than republican to this order.

The 2^d ignoble class was that of the burghers. These were at first slaves or villains who belonged to a certain lord or master to whom they paid a summ of money for the liberty of trading. They lived in small towns or villages for the convenience of trading, but in but very small numbers. York at the time of W^m Conqueror containd only about 300 houses, which might be about 2000 persons. Trades men naturally choose to live in towns, as they have there a market for their goods and an opportunity of bying those | which they stand in need of; whereas if they stay in the country, there must be a great loss of time in providing their tools,^d etc. and going to sell their commodities. But at this time there was little encouragement for manufactures. The lawless and disorderly state of the country rendered communication dangerous, and besides there was little demand for any of the produce of the mechanick. There were therefore but few of them in the country and very small towns. The tradesman or merchant in a country in that state would be altogether helpless. They^e were generally slaves of some lord, or if they were poor freemen they became dependents either on the king or on some great lord, according as their lands lay most contiguous and were best able to afford them protection and liberty. By this means they were very little better than villains or slaves of these great men.—The king however, being jealous of the power of the nobles, found it to be his interest to weaken their power and therefore <re>leased^f all their villains, and those more especially who were least dependant and could be most easily | freed from their authority. These burghers were such, and were therefore greatly encouraged by them, and we find accordingly that all the burghers and freeed sort of slaves who lived in the villages or towns, which any villain became who left his master and lived in one of these towns for a year without being claimd, had the liberty of marrying whom they pleased, of free trade, etc., without any toll.55 They were afterwards formed into corporations holding in capite of the king, having a jurisdiction and territory for which they paid a certain rent. At first this was taken up from every individual, but afterwards the community farmed it, which made the burthen much easier than when it was exacted without distinction by the kings officers. In this manner these small towns became free and able to protect themselves, as they had a stout^g stone wall about the town and kept a constant watch and ward, which was one part of the duty of a burgher, and were always ready for arms and battle to defend themselves against the attempts of the | lords, who frequently disturbed them and often plundered their towns.—During the time in which the burrghs were emancipating themselves and coming into a state considerably better than that of the villainage, another great change was going on. But still^h after this change the burghers were looked on as a more contemptible sort of men, insomuch that if the king or any nobleman married his ward to the son or daughter of a burgher even this was reckoned a disparagement, and they were declared to be free from their wardship.

The feudall aristocracy at the same time came to decline. Feudall property was originally, as I said, not much inferior to allodiall and was confined to a few great men; but like all others, property came to pass thro different hands. These (great lords or all who held of the king) had at first a tittle to sit in Parliament with the king, and nothing was done in it without their consent and advice as they only were capable of having influence | in the kingdom.—At the time of W^m the Conquerror, the whole land of England was, as we learn fromⁱBlank in MS.^j , possessed by about 700 [h] who held immediately of the king;56 of these probably only 3 or 400 could attend at the court, so that the assembly would not be so numerous as our present House of Commons, which consists of about 500.—But in time the lands came to be divided; parts were given off to second sons or other relations, and the number of knights who held of the king by military service became too numerous. In this case it was impossible for them all to attend at the three different times of Michaelmass, Christian–mass,57 and Easter; and the very expence of these journeys would have ruined some of them. Many persons now came to hold of the king by nights^k service. For this reason Henry 3^d and Edward the 1^st of England, and Ja’s 1^st of Scotland desired these lesser lords to choose a representative out of each | county to sit in the Great Council and give his advice and consent to the determinations of the great body of the nobles.58 These lesser lords were^l possessed <?of> about a half perhaps of the lands in the kingdom; their power therefore, tho less than that of the greater lords, was very considerable, so that their consent to all laws, taxes, or generall regulations was absolutely necessary. They were all likewise baronis comites and pares curiae regis, so that they were intitled to sit in the same court and council with the others.—The burghers being also free as to marry, to trade, they having also a walled town and paying only a small rent for the liberty of trade, came to be considered as free. This rent was generally^m farm’d by a slump rent which continued the same for ever from the lord, and this rent continued still the same after the cities were vastly increased. It was then also not levied by poll, which is always reckoned an uneasy way, but by tolls on fairs and markets, which tho attended with some dissadvantages is | nevertheless much preferable to the others. The burghers were also allowed to send deputies to the court, from the similitude of theirⁿ state to that of the others, as the idea then was that all those who held in capite of the king had a tittle to send represent<at>ives to Parliament. Tho the burghers themselves singly were not pares curiae regis, comites, etc. yet the whole corporation was. These did not indeed sit in the same court, but there consent and advice was necessary in all affairs relating to the public duties^o and particularly the levying of taxes. This had in all countries been very grievous to them, and generally was heaviest on those who could least bear^p <?it>, as those who were stronger heaved off the load from their shoulders till at last it fell on them who <?tho> they could not bear it easily were obliged to submit, and this is the case^q in all such circum. They therefore were greatly concerned^r in all these matters. The same progress happened in the rest of Europe, as in Spain with^s Philip the Handsom.

| Monday. March. 7^th. 1763—

In the last lecture I explaind to you the nature of that government which came in after the introduction of the feudall tenures. The whole business of the natiom^t came immediately and directly before either the Kings Court or that of some of his barons. The democraticall part of the constitution was now altogether abolished; all the courts^u of the people were now laid aside; and the inferior persons who formerly had a share in the sovereign court of the nation were now no longer admitted into the great court of the king. The only persons who^v were admitted as members of it were those who held immediately of him.—As in the Grecian states the government^w was at first a republican monarchy, that is, an aristocracy with a king at its head, so likewise was the government of Europe a democracy headed by a king, which however was greatly disturbed by the nobles even in the allodial government, and intirely subverted as soon as the feudall government was introduced thro all Europe excepting England. The only reason why they did not in Europe as well as in Greece intirely destroy | the kingly power was the difference of the territory the nations possessed, which was not as in Greece a small territory of the size of a large county, with one large city in the midst of it in which all the great men were collected, but a large country thro which they were scattered, so that they had no such opportunity to meet and unite their joint strength against him. All they could do was to overthrow the democraticall part of the constitution and establish an aristocraticall monarchy. This was done in every country excepting England, where the democraticall courts subsisted long after and usually did business; and at this day the county court, tho it has not been used of a long time, is nevertheless still permitted by law. They ordinarily did business in all smaller causes, the greater, of felony and treason, being taken from them by the Magna Charta {the great foundation of the aristocraticall government}, till the institution of Justices of Peace,59 who dispatch those affairs with much greater readiness and facility. The great court of the king was composed of those who held immediately of him.—The kingdom was considered as one great fief, | the business of which was to be managed by those who held of that fief; every thing concerning the property or lives of any of these was to be considered in a court of the lords, his paramonts or peers; and in the same manner the business of the barons court was to be managed by those who possessed his fief.

I showed you also how the representatives which now make up the House of Commons came first to be called. The king was very jealous of the power of his^x nobles, who frequently raised great disturbances and turned out many of the kings, John, Henry Blank in MS.60 <?and> took the power for some time out of the hands of the others.^y The king therefore took every method to lessen their power, and for this purpose as I mentioned he strengthened the hands of their villains as well as the vassals, and took every method to render them more independent, and also by supporting and strength<en>ing the burrows, which they did by allowing them to be formed into a corporation, to defend themselves by a wall and guard, | to have the trial of certain small causes within their own limits in which they had a considerable jurisdictory power. In this manner they came to be very considerable, having perhaps two or 300 men, which was then a formidable body as they were all trained to arms.—The reason that occasioned the kings calling his lords together was that their consent to all steps respecting the government was absolutely necessary, otherwise their power would have prevented the execution of it. The same reason held with regard to the burrows, as he could not raise those subsidies which he wanted to bear the expense of government without their consent. At first they were sollicited by emissaries sent by the king, who stipulated certain subsidies from them. This however was soon found to be very troublesome. They were therefore desired to send representatives to court as well as the barons, who might give their advice and consent to all the necessary regulations relating to the subsidies and other expences of the | government.—The king as well as the nobles changed the knights service which was due by those who possessed his demain lands into what they called an escuage or scutage. When any one did not incline to go to war in person, he was bound to pay a certain some of money such as would be sufficient to get one to supply his place in the army, or that of his dependents. This was generally preferred to knights service; for those men of power and influence were generally very troublesome and unruly. Whereas when they paid money, this would enable them to procure other soldiers as good as they, who also, being mercenary, would be more under discipline and command. This escuage furnished a considerable pt. of the kings revenue. The rest of it consisted entirely of 1^st, the feudall emoluments already enumerated; 2^dly., compositions, fines, and amercements for crimes; 3^dly, all bona nullius, as wafes, strays, and treasure trouffe; 4^thly, swans, royall fishes, and the great beasts of the chase.— | We are to observe that all these necessarily diminished at the same time that the expense and demands of the government encreased, so that supplie[ie]s, subsidies, auxilia, became absolutely necessary. The people we see were always most free from their severall burthens when the profits arising from them to the state were most necessary for its support. We see accordingly that those which are most favourable to liberty are those of martiall, conquering, military kings. Edward the 1^st and Henry the 4^th, the two most warlike of the English kings, granted greater immunities to the people than any others. There are severall reasons for this, as 1^st, they of all others depended most on the goodwill and favour of their people; they therefore court it greatly by all sorts of concessions which may induce them to join in their enterprizes. Peaceable kings, who have no such occasion for great services or expensive expendition<s>, [and] therefore less courted their love and favour. 2^dly, it soon became a rule with the people that they^z should grant no subsidies till their requests were first granted. No subsidies therefore | could be obtain’d without the grant of some priviledge or immunity granted to certain members or bodies in the nation. His necessity obliged him to grant these; and martiall princes are most liable to come into this condition. These two <?reasons> made martiall princes always grant great priviledges to their subjects. Philip Augustus of France gave great privileges to the people. Representatives in Parliament were first granted by Edward 1^st, and the priviledges were greatly increased under Edwd. 3^d. The House of York also, who were allways doubtful of their tittle to the crown, seem to have made it a rule never to demand any subsidie or other grant from the people without having previously granted some immunities as a bribe.

The representatives of the burrows, as I said, always sat in a separate court from the others, being consulted chiefly with regard to those matters which concernd the revenue. The representatives of the knights of the shires, as their principalls had done before, sat in the same court with the nobles. But when they multiplied greatly they became in process of time so | insignificant that it could no longer be thought proper that they should sit in the same court with the nobles; they were separated from them and joined to the burrow representatives. It however from this time became a rule that no aid or subsidy could be granted which did not proceed at first from the House of Commons; they had generally directions from their principals not to grant any subsidies till the peculiar grievances of that county, etc. were redressed; besides it is to be remembered that the Commons paid the far greater share of all subsidies; if the nobles paid 15, they 10;61 if 8, 6; and so on. The nobility had now also come to be very numerous, and there were many whose fortunes were altogether insignificant. Their number and their fortunes would not allow them to assemble all at once. The king therefore called them some times to Parliament by letter, and sometimes did not, as he thought proper. These became distinguished from the rest, being barons^a by writ. No one would now incline to go unless summoned by the king, which letters or patent came in time | to be the mark of nobility. Originally one was noble by his tenure only; who ever possessed land of the king in capite was considered as such. But those only afterwards were considered such who were selected and pitched on by the king and called by these patents to court. This came by degrees to be considered as the mark of nobility. The other by tenure is now entirely laid aside. The lordship one possessed was what^b formerly conferred the dignity of a lord upon one who possessed it. Whereas now one may be created a peer who is not possessed of the place he takes his title from, and even tho he is not possessed of any property in land at all.62

The power of the nobles however declind in the feudall governments from the same causes as everywhere else, viz, from the introduction of arts, commerce, and luxury.—Their power consisted in the number of their retainers and tenents. The number of their retainers and even of their dependents was owing to their plain and hospitable way of living. Richard Nevil,63 who was sirnamed King Blank in MS.^c from the great share he had in the commotion at that time in favours of and Blank in MS.^d | an Earl of Warwick is said to have maintaind every day at his table in his different manors about 30000 men. He seems indeed to have been by far the greatest baron who has appeared in England since the time of W^m. the Conqueror.—But when elegance in dress, building, and gardening, cookery, etc. was introduced, it was no difficult matter to spend a fortune even as great as that of Warwicks, and by this means he would lose all his retainers except a few menial servants who could give him no influence. His influence over his tenents also came to be greatly diminished. The tenents were originally (as they were in the Highlands till very lately<)> all tenents at will, who had very advantageous leases. The proprietor gave out some piece of land to some friend or relation for 100£, which produced perhaps to him 200. He again subset this to 100 for 40^shs each, when they had to the value of 4 or 5 pounds; and in generall the rent was only about half of the profit. These intirely subsisted and depended on him as well as his retainers; they called him their master, which is the term still in use in this country, and would readily attend him to battle on whom | their all depended. When luxury came in, this gave him an opportunity of spending a great deal and he therefore was at pains to extort and squeze high rents from them. This ruind his power over them. They would then tell him that they could not pay such a rent on a precarious chance of possession, but would consent to it if he would give them long possessions of them; which being convenient for both is readily agreed to; and they became still more independent when in the time of Henry 2^d these leases came to sustain action at law contra quemcumque possessorem. Thus they lost a man for 10 or 5 sh., which they spent in follies and luxury. The power of the lords in this manner went out, and as this generally happened before the power of the commons had come to any great pitch, an absolute government generally followed. This was the case in England during the Tudor family. The nobles were then destroyed. They had been massacred by Edward 4^th in his battles with Henry the 6^th.; afterwards in various insurrections and disputes for | the crown.—The same thing happen’d in Scotland, with this difference, that the declension of one family here served only to raise an other; as the fall of the Cummin,s64 made way for the Douglass,s, as they had not those arts which they had in England and which gave an [an] opportunity of spending his whole estate on himself. The Tudors accordingly were absolute. They imprisoned any one at will; which liberty destroys the freedom of the people altogether, as imprisonment will compell one to agree to any thing. The Parliaments had then no power, but were alltogether ruled by them, King Henry 8^th and Queen Elizabeth. Freedom of speech was then a crime. A member happend to oppose a bill which Henry wanted to be passed. Henry called him asside, and putting his hand on his head told him, Man, I’m informed you opposed the bill; if you do so I will take off your head. This promise, as he generally stood by all of this sort, made the man alter his design.65 And in the same manner the fall of the nobles, having left no rivall to the | kings power, established an absolute government.—In order that the innequality of property should have the effect above mentiond, there must be a graduall declension and subordinate degrees of wealth. Thirty thousand pounds may at present be spent on domestick luxury, as their are intermediate steps of 25, 20, 15, 10000, and 1000, 100£ betwixt this and the lowest class, thro all which the progress of arts, manufactures, and industry can easily pass. But when property goes on in the progression by great leaps or jumps, the arts, commerce, and luxury can not creep after them. When this inequality goes on slowly, the arts follow, so as that one who spent 50 can spend a hundred, and goes still farther and farther; the luxury then easily traces the same course as the property. The case is otherwise with^e great leaps, as nothing fills up the intervalls, so that luxury cannot keep pace. This is the case with sovereigns in most countries, as in Britain; the Civill Lis[is]t consists of about^f £300,000, 30^g times as great as the free mony of any estate, deducing taxes and public burthens, so that the luxury arts even^h employed on a illegible wordⁱ can not | affect him so much that he will not be able to form many dependents and pensioners, as well as different offices as those of excise, custom, etc. Besides which he has the disposal of about three millions for the ordinary demands of the government. He cannot possibly spend all this, but divides it amongst different officers who become his dependents and followers. For these reasons the sovereigns have become absolute, as during the Tudors in England, after Henry 4^ths in France, and also in Spain.—In other countries the arts and luxury have produced the very opposite effect, in establishing the aristocracy more firmly. After the time of Charlemagne, before the feudall government which first introduced order and regularity into Europe was introduced, the emperors of Germany had become elective; their authority therefore was much less than of a hereditary one. He is then an upstart [from]^j from others who had as good a title; his elevation is galling and uneasy to them who had been before his equalls or nearly so. They therefore are very confident against him; nor are they affeard of the^k | resentment of his children, as they will not have any power mor<e> than others. The nobility therefore opposed the emperor and at length overthrew his power. Germany is a large country, vastly larger than Britain and considerably larger than France, tho not so well peopled.—Large estates must therefore fall into the hands of single persons. In the great scramble of human society every <?one> scrambles to get as much as he can and keep what he has got. As in a mob, where 100^l pounds are throw<n> about in shillings, he will be a lucky man who should get 20^sh, but if £1000 were thrown about, the same person would be probably able to collect by his strength 100, as he had more opportunities of taking from those about him. So in Germany, as the country is larger and <?there is> more to be scrambled for, one would get much more than in Scotland or England. The greatest estates in this country are altogether frivolous when compared to those of the Count Palatine, Marquis of Brandeburgh now^m King of Prussia. These and many others are now | altogether absolute. The introduction of luxury and arts affected the inferior people, but could not affect them, as their estates are worth some hundred thousand pound per annum. They have therefore still a great number of dependents who follow them to battle, and their authority is often in their own dominions altogether absolute.

Tuesday. March. 8^th. 1763 — —

In the last lecture I observd how the nobility necessarily fell to ruin as soon as luxury and arts were introduced. Their fall everywhere gave occasion to the absolute power of the king. This was the case even in England. The Tudors are now universally allowed to have been absolute princes. The Parliament at that time, instead of apposing and checking the measures they took to gain and support their absolute power, authorized and supported them. Henry the 7^th. was altogether an absolute monarch, and Henry the 8^th. still more so; Edward the 6^th had no less power, which still if possible increased under Elizabeth. She indeed was much more mild and gentle in her conduct than her sister Mary, who was of all the English sovereigns | the most absolute. In France their fall occasioned the absolute power of the sovereign which continues to this day.—The nobility came to ruin before any system of liberty was established. The luxury which followd on the arts ruind their power, who before had the only power to resist or stop the great sway he had in the nation; when they therefore were taken away nothing remaind to appose them. We see too that this has always been the case; the power of the nobles hasⁿ allways been brought to ruin before a system of liberty has been established, and this indeed must always be the case. For the nobility are the greatest opposers and oppressors of liberty that we can imagine. They hurt the liberty of the people even more than an absolute monarch. In an absolute government, as that of the Tudors, the greatest part of the nation, who were in the remote parts of the kingdom, had nothing to fear, nor were in any great danger of being appressed by the sovereign, who | was terrible to those only who were near at hand to the seat of his court. Whereas every one is in danger from a petty lords, who had the chief power in the whole kingdom. The people therefore never can have security in person or estate till the nobility have been greatly crushed. Thus therefore the government became absolute, in France, Spain, Portugal, and in England after the fall of the great nobility.

The ruin of the feudall government which followed on arts and luxury had a very different effect in Germany; it occasioned the increase of the power and absolute authority of the great nobles or princes of the empire, and not of the emperor. Their estates were, for the reasons already explain’d, so much greater than those of the others below them that luxury could not surmount the great leap which there was necessary to get at them. They could not possible by any personall luxury consume all their revenues; they therefore contrived to have a great number of retainers and dependents, and have accordingly become absolute. | It had also for some time before been the policy of the nobles to elect those for emperors who had no, or very small, estates of their own, so that their power could not be very great nor much to be feared. But when they elected Chas. V^th, who had at that time the whole Spanish dominions, a very large estate in Germany, and large possessions in Italy also, they being put on their guard by the Elector of Saxony capitulated and treatied with him that he should act in such and such a manner, giving up a considerable part of the imperiall dignity. This had not before been necessary, but is still continued on the death of every emperor of that family in which it has still continued, and this capitulation generally deprives them of allmost any influence merely deriv’d from their character as emperor. The princes have in this manner become very absolute in their own dominions.

The absolute power of the sovereigns has continu’d ever since its establishment in France, Spain, etc. In England alone | a different government has been established from the naturall course of things.—The situation and circumstances of England have been altogether different.^o It was united at length^p with Scotland. The dominions were then entirely surrounded by the sea, which was on all hands a boundary from its neighbours. No foreign invasion was therefore much to be dreaded. We see that (excepting some troops brought over in rebellions and very impoliticly as a defence to the kingdom) there has been no foreign invasion since the time of Henry 3^d. And Blank in MS.^q himself was brought over by Blank in MS.^r to support him in his disputes with Henry.66 The Scots however frequently made incursions upon them, and had they still continued seperate it is probable the English would never have recovered their liberty. The Union however put them out of the danger of invasions. They were therefore under no necessity of keeping up a standing army; they did not see any use or necessity for it.—In other countries, as the feudall militia and that of a regular one which followd it wore out, they were under a necessity of establishing a | standing army for their defense against their neighbours. The arts and improvement of sciences puts the^s better sort in such a condition^t that^u they will not incline to serve in war. Luxury hinders some and necessary business others. So that the very meanest sort only go to the wars. The better sort of mechanicks could not get a sufficient compensation for the loss of their time. An army composed of gentlemen has occasion for very little discipline; their sence of honour and character will make them do their duty. But when the army comes to be compos’d of [of] the very meanest of people, they must be formed into a standing army and a military discipline must be established; that is, the soldiers must^v be put in such a condition as to fear their officers, who are still gentlemen, more than the enemy; in this case they will fight but not otherwise: they will follow them rather than flie from the enemy. This institution has therefore taken place in all countries where arts and luxury are established. We see in France that Henry the fourth kept up generally a standing | army of betwixt 20 and 30,000 men; this, tho small in comparison of what they now keep up, was reckoned a great force, and it was thought that if France could in time of peace maintain that number of men it would be able to give law to Europe; and we see it was in fact very powerfull. But Britain had no neighbours which it could fear, being then thought superior to all^w Europe besides. The revenues of the king being very scanty, and the demesnes lands, the chief support of the kings, being sold, he had no more money than was necessary to maintain the dignity and grandeur of a court. From all these, it was thought unnecessary as well as inconvenient and useless to establish a standing army. The States of France, the Diet of Sweden and Poland, and the Lords and Commons in England had the power of making what laws and regulations and imposing what taxes they pleased; the Tudors we see overruled all their debates, and if they had had a standing army they would have been able to have done what he pleased. But as the sovereign had no standing army he was obliged to^x call his Parliament. | This was the case in the time of the Stewart reign. Another thing <?which> also contributed to the diminution of the kings authority, and to render him still more weak, was that Elizabeth in the end of her reign, forseeing that she was to have no sucessors of her own family, was at great pains to gain the love of the nation, which she had generally done, and never inclined to lay on taxes which would she knew be complaind of; but she chose rather to sell the demesne lands, which were in her time alltogether alienated.67 James 1^st and Charles had in this manner no revenue, nor had they a standing army by which they could extort any money or have other influence with the people. They were therefore obliged to call the Parliament to obtain their consent. The Commons were now far from being insignificant, as at first, but had now great property, equall perhaps or greater than that of the nobles, and looked on themselves, as representing so powerfull a body, as on an equality with the peers themselves. They were, and I believe not without reason con|sidering the state of the kingdom, very sparing and indeed nigardly in their allowances. Nor did they ever grant even these pinched shares^y [of] with^z out taking away some part of the royall prerogatives. In this manner in Jas 1^st. time, as well as in the beginning of Charles 1^st, they took from the sovereign the liberty of taking up loans and all sorts of taxes whatsoever without consent of Parliament. They established their own liberty of speech, which had never before been secured, and obliged him to communicate with them all debates concerning peace and war, and all state affairs. Many other such incroachments were at this time made on the power of the sovereign, the necessities of his condition oblidging him to accept of what conditions they pleased to gain a small subsidy. At last an attempt to alter the form of worship in Scotland (a very impolitick step<)> raised a rebellion in this country. The Scots army marched into England. The king had no military force to resist them, nor money to procure one. He applied to Parliament but found they were of the same | sentiments as the Scots, being puritans at heart as well as they; so that they would grant him no supplies. He was therefore obliged to capitulate with them; but at last, not agreeing to their demands, they took off his head. At the Restoration a step was taken which in the hands of more vigorous princes might have established an absolute authority over the people. A revenue of 1,200,000 was settled upon the king; this, had it been employed in the support of an army, might have maintained one which would have kept in awe the whole kingdom. The King of Prussia maintains a vast army on not much larger^a funds, and Cromwell with less had just before kept the whole kingdom in subjection. But the extravagant and luxurious turn of Charles made him choose rather to employ it in the pursuit of his pleasures, so that he became as necessitous and dependent on Parliament as any of the preceding monarchs had been. James, being still more extravagant both in his expenses and all his proceedings, was turned out of his kingdom and a new family brought over. They, being altogether | strangers and upstarts in the kingdom, were obliged to court the Parliament more than ever and to submit to what conditions they pleased to impose; and many were imposed which the weakest prince of the Stewart family would not have agreed to. All this they were obliged to submit to in order to obtain a very moderate supply. The kings revenues are made up of the Civill List, the regular taxes imposed every year, and the extraordinary ones which are granted from year to year. The Civill List amounts in this reign to 800,000; in the last reign it was somewhat more; and in the preceding reign it amountd to about 700, which was somewhat greater than that in the two reigns preceding it. This summ is set appart for maintain<in>g the kings household and supporting the dignity of the crown, but might in the hands of more vigorous or ambitious princes give the king more authority than the constitution of the kingdom designed he should have. The other part which arises from the great^b taxes laid on the subjects, viz that on malt and that on land, which^c varies from 2 to four shillings | in the pound. These amount ordinarilly to something above 300,000£. They are set appart for maintain<in>g the marine and land forces, the fleet and army, for which they generally suffice in time of peace, extraordinary supplies being granted in the time of war. The 3^d. part of the revenue is the funds mortgaged to pay the debts contracted in the present reigns. The creditors requird some security for this money. For this purpose fixed taxes have been introduced, and the revenue arising from them mortgaged for their payment. With <?this> the king can not meddle. It is paid into the offices of the exchequer where it is perfectly secure. The auditor and other officers of the exchequer are accountable for <it> to Parliament and must give in their discharges to it, none of which will be received except they be from the publick creditors appointed by Parliament. This part of the revenue can therefore give him no authority but as it gives him the disposall of some very profitable places. It strengthens also his interest against that of the Stuart family as these^d | creditors would, on their introduction, be cut out of both principall and interest. It is levied indeed by his officers but never comes into his hands, but goes (as I said <)> first to the exchequer and then to the creditors. There is generally a surplus in these taxes above what is necessary to pay the creditors interest to whom it is appropriated. This goes, being unnapropriated, into what is called the unappropriated or sinking fund; this the king can never come at. It is under the immediate direction and care of the auditors and other officers of the exchequer, who, as they are officers for life with very high salaries and are generally the first men in the kingdom, will not risque for any consideration the loosing of those offices by granting the use of it for other purposes than those to which it has been alotted. The Civill List is established indeed at the beginning of every reign, but gives^e in the present management no authority, as it is all expended on the luxury and magnificence of the court and the household of the king. | The other part^f which is^g revenue, viz that raised from land, excise, and customs, is alotted^h for the fleets and the army and is granted from year to year. The mortgaged taxes are necessarily perpetuall; the Civill List for the life of the king; and the other part is occasionall,ⁱ which would therefore fall if the Parliament was not called. The funds for the support of the armies and fleets also depends on the grant of the Parliament; so that the whole of the government must be at an end if the Parliament was not regularly called. So far is the king from being able to govern the kingdom without the assistance of Parliament for 15 or 16 years, as Chas. 1^st did, that he could not without giving offence to the whole nation by a step which would shock every one, maintain the government for one year without them, as he has no power of levying supplies. In this manner a system of | liberty has been established in England before the standing army was introduced; which as it was not the case in other countries, so it has not been ever establishd in them. The standing armies in use^j in those countries put it into the power of the king to over rule the Senate, Diet, or other supreme or highest court of the nation.—The supreme power in legislation is here divided betwixt the king, Lords, and Commons. A law may begin in either House and be passed by the other. The king cant however interfere after the debate is begun and tell them that he dissaproves of such or such a debate, tho he may recommend one to their consideration before it has been consider’d. Money bills however can not begin anywhere but from the Commons. The Lords indeed have disputed this priviledge, but we see it has been possessed by the Commons for above 100 years. The Lords can only either assent to it simpliciter or refuse it simpliciter, but can not alter or add to it in any shape. The king has in all cases the power only of putting his assent or negative | to a bill, and the denying any bill that has passed both Houses, being altogether unpopular, has gone into dissuse. The king has always given his assent to every bill since W^m. 3^ds time. Charles 2^d was so sensible of it being altogether disagreable to the people that he never attempted it, tho he often used methods very low and mean, as the staling^k of a bill, etc.; the umbrage this would give, he thought, was less than that of plainly refusing it. The Civill List and the standing army are the only things which can any way endanger the liberty of the subjects. The Civill List is so considerable that in the hands of designing, vigorous, and ambitious princes it might give them an influence far superior to that which the dependance of a few officers about the palace can bestow. But customs of this sort are very difficulty changed by any prince.—The standing army might also without doubt be turned against the nation if the king had attained great influence with it. But there is one security here also. Many of the persons of chief rank and station in the army have also large estates of their own and are members of End of Volume Four of MS. | v.1 the House of Commons. They have in this manner an influence and power altogether independent of the king. It would never be their interest to join with the king in any design to inslave the nation, as no consideration he could bestow on them will be able to turn their interest to his side. So that however mercenary we should suppose them, those at least may be depended on who have a seat in the Parliament or offices depending on it.

Wednesday. March. 9^th 1763.

In yesterdays lecture I explaind to you how a system of liberty came to be established in Britain after the fall of the nobles, not indeed immediately after it but about 100 years after the race of the Tudors had become extinct and the Stewarts came to the throne. There were two great causes which contributed to bring about this change.—The 1^st and chief was the situation of the kingdom, which made a standing army be thought unnecessary. The want of this made it impossible for the king to establish laws or levy taxes without the assistance of the Parliament. The kingdom had indeed been ruled by Chas 1^st for 16 years by proclamations and edicts; these under Henry the eights time also had very nearly tho not | altogether the authority of an Act of Parliament, and were sufficient to keep the people in awe. Dissobedience to them would have been highly punishable, but this was not then the case. The other cause which had a considerable effect also was that the ancient and ordinary revenues of the crown had been more dissipated^l in Britain than in any other country. The remains of the ancient demesnes lands had been intirely alienated by Elizabeth, who, seeing she was to have no issue, becoming careless in what condition her successor should receive the government, engratiated herself with <the> people by decreasing the expences of the govt., particularly in the end of her reign in the war against Spain, by the money procured by the sale of these lands, as is particularly explaind by Ld Bolingbroke.68 In this manner a greater defalcation of the revenues of the crown had been tried here than any where else. As the king also had no standing armies he could of himself raise no taxes or subsidies, and was altogether dependent on Parliament. The House of Commons had also the ascendency over the House of Lords as^m at this time. The number of voices | in that House was much greater; they consist of about 500 members, whereas the Lords are not much above 200; and of these 500 there are perhaps 200 possessed of as great property or greater than the Lords. But besides this personall influence, they had a still greater one as being the representatives of the whole body <of> the people both in the burrows and the country, and in this light as it were the weight of the whole people. The nation in generall also trusts them much more than the nobles. The nobles, it may be feared, will have respect to the aggrandizing of their families and fortunes as it is from them that they derive their influence. The Commons on the other hand must have a respect to the voice of the people and the good will of their constituents, which they must endeavour to maintain as their authority depends on it; they therefore have the compounded weightⁿ of their own weight and that of the people also.^o They have also a considerable influence from the old custom that all money bills should take their rise from them; and money bills now | make the greatest and most important part of any. The members of the House of Commons are also much more accustomed to debate and deliberation than the Lords, so that on the whole the far greater part of the bills take their origin from them, and generally pass of course before the Lords. The Lords would now have hardly any business were it not for the Scots appeals, at which there are ordinarily not above 4 or 5 present,^p unless it were on deliberations on the concluding of a peace or other such important transaction. In all other cases the Commons have by far the greatest and most considerable share. The Commons also endeavoured to establish a custom which would have put all bills on the same footing with money bills, and given the Lords no more power than that which the king has, viz that of assenting to or refusing a bill without altering it. This they attempted by what they called a tack, that is, a clause join’d to a money bill in which some thing of a different nature was included, and saying that this was a money bill they^q demanded that the Lords should have only the power of refusing etc. it as a money bill. But this they never would agree to, as every law would have | been put into the form of a money bill.

Liberty thus established has been since confirmed by many Acts of Parliament and clauses of Acts. The system of government now supposes a system of liberty as a foundation. Every one would be shocked at any attempt to alter this system, and such a change would be attended with the greatest difficulties. The chief danger is from the Civill List and the standing army (as above).69 One security for liberty is that all judges hold their office[r]s for life and are intirely independent of the king. Every one therefore is tried by a free and independent judge, who are als<o> accountable^r for their conduct. Nothing therefore will influ<en>ce them to act unfairly to the subject, and endang<er> the loss of a profitable office and their reputation also; nothing the king could bestow would be an equivalent. The judge and jury have no dependance on the crown.—The sheriffs indeed in many counties of England as well as in Scotland are appointed by the king, but this office is also for life, and is not attended with great dignity and no profit,^s so that many pay a fine of 500£ to be excused from it. | The disposall of it can give no influence to the king, nor can he greatly over rule them, or^t act contrary to law and justice. One who levied any tax which was not authorised by Parliament may be tried of robbery, and that too in the way of appeal, which the king can not pardon, tho he can those on indictment or information. So that no one will readily be influenced by the king, his protection or orders not being able to screen one from justice. Another article which secures the liberty of the subjects is the power which the Commons have of impeaching the kings ministers of mal–administration, and that tho it had not visibly encroached on liberty. This power still remains, tho it has not been exercised since the time of William 3^d. This priviledge as well as many others favourable to liberty we owe to that tyrannical prince, Henry 8^th. The ordinary method which they took to get free of any of his ministers of whom he had become jealous was to get him impeached by his servile House of Commons, and from this time they have still retaind it. The king can not pardon an | appeal, that is, a prosecution at the instance of a private person; he has that power only with regard to indictments, that is, when the grand jury finds the bill to be true, or what we call the relevancie, and afterwards delegates the particular case to the committee or lesser jury. These he can pardon as well as ordinary informations, but not appeals; nor for the same reason can he pardon impeachments, as they are at the interest of another body.—The fear of disgrace and loss of reputation, as well as this of capitall punishment, from which they can not appeal or be pardoned, serves to intimidate the ministers from attempting any <?> against the commonwealth, and secures the liberty of the subjects and establishes those great rights which they have now obtained. The Habeas Corpus Act70 is also a great security against oppression, as by it any one can procure triall at Westminster within 40 days who can afford to transport himself thither. Before this Act the Privy Councill could put any one they pleased into prison and detain him at pleasure without bringing him^u to triall. Now no one can be imprisoned anywhere but in the county gaol or the nearest to it where the crime is said to have been committed; he cant be sent out of Britain to Jersey, | Guernsey, or the plantations, that is, alway<s> within the extent of the Hab. Corp. Act.—This sufficiently secures the liberty of the people; for tho many could not afford the expense, yet it is not such who will be in greatest danger from the king. The rich and powerfull are most obnoxious to his displeasure; tis rich and not poor folk who are sent to the Bastile in France. No judge can oppose the Habeas Corpus Act; infamy and a high penalty are the punishment which attend it. No influence of the king could ever induce them to make any such attemt. And so strict is this Act that in the time of rebellions or other exigencies of the state, when it is necessary to imprison^v without such speedy triall, it is commonly taken off for 6 months. But it will never be allowed to be reppealed, as that would destroy in a great measure the liberty of the subject.

The frequency of the elections is also a great security for the liberty of the people, as the representative must be carefull to serve his country, at least his constituents, otherwise he will be in danger of | losing his place at the next elections. In an absolute government favours are bestowed and all publick offices conferred on the favourites of the king. But in a country like this publick favours are generally bestowed on the active, bustling, important men; such are most bold to demand any favour for their constituents, and are in this manner naturally more distinguished than the others; and it is not a bad way that power should be conferred on those who have naturally the greatest influence. The more frequent these elections are, the more dependent are the representatives. It was for this reason that the Parliaments were changed after the war <of> 1715 from trienniall to septenniall ones,71 as it makes them less dependent on their constituents and diminishes the democraticall part of the government. The voice of the people for the same reason is of less importance towards the beginning of a Parliament than towards the end, as they are then nearer the time of their next election. The minister therefore generally contrives to get any important business, as the making of a peace | and such like, done in the beginning of Parliament, as if it were near the end an opposite party might raise a faction which would be very troublesome.—The method of elections is also an other security peculiar to England. The elections of members for the burrows were formerly on the same footing in England as they are in Scotland; they were in the hands of the aldermen and common councill men. But before Ch. 18^w times there were some burrows where the elections were in the whole body of the people, and in the Parliament of 1642, who were very democraticall, it was orderd that all elections should be in the hands either of the freemen of the burrow or of every inhabitant of it, every one as they say who has a boiling pot. This manner is altogether democraticall. It is impossible <?but> that the person chosen should be one whose character is agreable, at least in the town where he is chosen member. But in Scotland they are altogether oligarchicall, so that one who is most obnoxious and disagreable to the body of the town may be chosen | if he has interest enough with the magistrates, which money will procure; but no bribe will settle a mob who has once taken up a prejudice against one, so that he must have at least a tollerable character in the town. It is the same way with the county elections. No one has a vote here who does not hold of the king, and has a considerable yearly rent above £600.72 But in England every one who possesses land to the value of 40^sh, whether it hold of the king, of a subject, or be only a lease for a life or for lives, if he can swear he makes 20 sh of yearly profit from it.73 The numbers are here much greater and 3 or 4000 will be much more formidable to him than 30 or 40.74 Our government is therefore much more aristocraticall than that of England, and we see that when we had a seperate Parliament it really was so. The House of Commons also has the sole judgement in all controverted elections, and is on^x them very nice and delicate, as their interest leads them to preserve them as free as can be had.^y These laws and established customs render it very difficult | and allmost impossible to introduce absolute power of the king without meeting with the strongest opposition imaginable. This of the length of the Parliaments, and the great extent of the Civill List which may bribe both the electors and the elected, is the only things which appear to be dangerous to liberty, and this too will not probably go far; it may indeed influence them so far as to obtain the passing of bad laws <?but> would not be sufficient to obtain any law to be passed which should evidently take away the liberty of the people. They must evidently perceive that the money they get to pass such a law will be the last they will ever receive, if they put it in the kings power to raise^z a summ of money. They will therefore never agree to pass a law which should supersede the necessity of calling a Parliament.

Another thing which tends to secure liberty is the form of the courts of justice. The kingdom^a <?>. Formerly the kings courts were in the same form as the justiciary courts in Scotland before the year 1745. The judge in them or president | was the bailey of the lords courts, who was not only in this manner justiciary but also factor or stuart to the baron. He both collected the rents of the estate and judged of all matters within it. The justiciary under the king were in like manner also the collectors of [of] the revenue due to the king. This connection was very naturall. The sheriff or county officer was the person to whom all fines, amercements, and compositions for crimes were payable, and these made a very considerable part of the revenue along with the feudall emoluments. No property could be given from one to another either by volunt. transf. or succession without a fine to the king and such like, and as the sheriff was the collector of all those fines, it was naturall^b to constitute him judge in them also. {The sheriffs used to keep accounts of this which they called sentence money which was given up to the king.} The Chief^c Justiciary was the same at this time with the chief officer of the exchequer or receiver of the revenues. His power soon came by this means to be near equall to that of the kings himself from this two fold office, and he became an | object of jealousy to the king. The Parliament and the exchequer seem at this time to have had the same members, only when they considered any matters relating to the revenue they met in the exchequer chamber, the table of which was covered with a chequered cloth, from which it got the nam[am]e of scaccarium, exchequer.75 The chief officer or Justiciary in this manner came not only to be the judge of causes but also the collector of the revenues, as he who gathered in the rents was appointed also to determine causes in his court. This bailey was generally some writer or such like who had but a very imperfect notion of law.^d The Magnus Justiciarius in this manner became very powerfull, and so much on a level with the king that Edward the 1^st, who could not brook a rivall, took away his power. This court had a little^e time before three severall powers, that of judgement in criminall causes, of common pleas, and | fiscall causes. But the Court of Common Pleas was seperated by John, as it was found inconvenien<t> to have the court which tried those causes removed about with the Kings Court, as it often introduced discontinuances. Edward however took away this office entirely and divided this court into four, that of the Common Pleas; 2^d, that of Kings Bench; and 3^dly, that of the Exchequer; and the Court of Chancery, which was at first only an office of briefs.76

Thursday. March. 10. 1763.

I had observed an other thing which greatly confirms the liberty of the subjects in England.—This was the little power of the judges in explaining, altering, or extending or correcting the meaning of the laws, and the great exactness with which they must be observed according to the literall meaning of the words, of which history affords us^f many instances. The judiciall power in the kingdom was at first given in the very same way as it was in the courts of the barons and lords, by the steward or bailiey of the baronnie who collected the rents and all fines for the deciding of controversies, and all other funds of the barons dues, and at the same time was judge in all these causes.^g So the Magnus Justiciarius in the kingdom had also the fiscall power and collected and managed | the kings revenues. He was here called Magnus Justiciarius or Chief Justiciary, and in France the Mayer de Palais. This officer, having those two offices joined, came to be in time, in France at least, a greater man than the king himself. We see, as it happend in [in] France, after this office had continued for some generations in one family the authority they must have from the judiciary and fiscall power together would in that length of time be more felt and give them greater influence in the different parts of the kingdom, over the whole of which their power extended, than the king himself. We see accordingly that the Mayers de Palais during the two first races of the kings of France usurped the kingdom. This was first done by Charles Martel, and afterwards from his descendents by Hugh Capee. Edward the 1^st, one of the most prudent of our kings, who seems to have known what he did as well as any one, dreading least the Great Justiciary should serve him in the same way as the Mayer de Palais had done the French kings, abolished his authority all together.77 Before this time there had been one defalcation made on the power of the Justiciary | in the time of King John. They at first had^h the justiciary, common pleas, and fiscall causes in them,ⁱ but as the Justiciary attended the king in his progresses thro the kingdom to execute justice, and his court followed that of the kings, it was found necessary to seperate one of these powers from him, which was given to the Court of Common Pleas. The three powers which they possessed, or rather the three sorts of causes which they tried, are, 1, the power of judging in all civill causes betwixt man and man, principally in cases of land property, as contracts do not in an early society sustain an action; 2^dly, he tried all criminall causes; 3^dly, he acted in a fiscall capacity, in which case the[y] prosecutions are betwixt the sovereign and the subjects, and all demands for money, either as rent or debts of any sort betwixt them, are decided either from the king against the subjects or from the subjects against <the> king. All these three different parts of the judiciall power were united in the Great Justiciary.

We may observe that the form of process in criminall causes is always very different from that in civil. The process of criminall causes is always very short. The jury bring in their verdict, being all enclosed together. A triall of life and death needs but one hearing; the crime is alledged, and the witnesses brought on both sides, and sentence is passed at once; | nor is there any appeal from this sentence.—But for the value of 40^sh in England one may be sued first before a Justice of Peace,78 and there may demand abatements, delays, etc. and may put of<f> the sentence for 3 or 4 months, and if he is not satisfied he may carry it from thence to the sheriffs court; from thence to the Court of Common Pleas; from that again by a writ of error to the Court of Kings Bench; and from that again to Parliament;^j and may in this manner delay the sentence for a very long time. We should naturally think that the triall should be longer in a case of life and death, and greater time allowed for the examination of the cause, as the life of a man is a thing to him invaluable,^k than for the pityfull sum of 40^sh. But we see the contrary has always been the case, and the reason is plain from what I have already observed79 to be the foundation of punishment. The whole of criminal law is founded on the fellow feeling we have with the resentment of the injured person. Revenge, as we^l commonly say, is a hasty passion: it wont wait for a delay of its gratification but demands it immediately, and the^m prosecution dictated by our fellow feelings partakes of the rapidity of the passion they were excited by. But there | does not appear to be any thing so urgent in a demand for 40 shs. The rumour of a crime excites the indignation of a whole corner of a country, and we are sensible that immediate satisfaction ought to be given him; his passion demands such gratification. But a debt does not appear to have any title to be so eagerly prosecuted. The one demands a short trial; the other may reasonably be allowed or admit of delays from time to time. The prosecution of civil <?causes> is therefore always dilatory, and is in danger of becoming more and more so by the arts and evasions of the prosecuted. It is necessary that in civil cases there should be some time set to go thro with a prosecution; that is, that delays and interruptions should operate a discontinuance. It would be very hard that if after the court was summoned the parties should not appear or be any ways delayed, [that] the prosecutor should be still able at any time to take up his suit where he left it. Any such delay, when the suit is not carriedⁿ on in one uninterrupted illegible word^o operates a discontinuance, and when he renews^p his suit the whole must be gone over again from the beginning, and all his former expences are lost. Now, when the Justiciary Court followed the Kings Court, discontinuances were | unnavoidable, as the parties could never attend the king in his progresses. It was however no grievance in criminall causes that the court was removed, as they are always decided by one hearing. This inconvenience was very soon perceived to require a remedy; it was therefore provided by the Magna Charta in King Johns time that communia placita (that is, common civill disputes) non sequuntur curiam domini regis sed in aliquo certo loco habentur,80 and after that time they were always tried at Westminster and might be brought to it from any part of the kingdom. The criminall and fiscall powers however still continu’d joined; but Edward 1^st, desirous to humble the power of which he was so jealous, [he] therefore divided the power of this officer betwixt three severall courts who had each a different set of officers.—These were the Court of Common Pleas, the Court of Exchequer, and the Court of Kings Bench.^q Before the first of these is tried all civill causes betwixt subject and subject, <?and before the second> those betwixt the king and the subject for the nonpayment of any debts. Criminall causes of all sorts were brought before the Court of Kings Bench; and it was also made superior to the Court of Common Pleas, | as any cause may be transferred to it by a writ of error, or what we call here an appeal. It was called the Court of Kings Bench because the king used to sit in it in person, some say till the time of Henry 5, and we certainly know he did till the time of Henry 3^d, on what was called in banco regis; but now he can not sit in any court in person but must judge all caus[s]es by his officers.—The Chancery was at first no court at all, but merely an office of brieves and records; the business of the Chancellor was to record all writs and transactions that had been passed.

When Edward had thus broke the judicial power, the persons whom he appointed as judges were generally of the meanest sort of no fortune or rank, who had been bread to the knowledge of the law, and very frequently these were clergy men. I observed before81 that at first all jurisdiction was executed precariously. Criminall causes were determined by judges merely as mediators to make up the quarrell, and civill ones either by mediators or arbitars chosen voluntarily, and in every case not with the strong hand as it is when government is more establishd, | but with great hesitation, caution, and tenderness. When therefore this power was in the hands of mean persons, the Blank in MS.^r of the Common Pleas, the Blank in MS.^s of the Kings Bench, and the auditor of the Court of the Exche[ck]quer, being all low men who depended on the will of the king, they would be very unwilling and afraid in any shape to go beyond the meaning of the law or any ways to alter it;82 and therefore in all cases brieves and writts were drawn out according to which they decided justice, and exact records of all proceedings were kept in the officina brevium. When therefore one wanted to raise suit in any of the courts of justice, the method was that the person went to the Court of Chancery and related his case to one of the clerks of the [the] Chancery who looked over all the writts and brieves to see if he could find one which should comprehend his case; for unless it agreed exactly it could be of no value. If he found one that agreed he drew one out for you, changing the names and circumstances of it but altering nothing of the form. But if there was no brief or writ in Chancery which agreed with the case, one could not go to any | of the courts nor obtain any redress. The Chancery was at that time on the same footing in England as it is at this time here, merely an officina brevium. But there is this difference, that the Court of Session, being of late institution and formed in great part on the cannon and civil law, one may apply to it immediately, except it be in some things of mere form as serving heirs,^t tho that also was the case here formerly.—The brief being granted was sent to the sheriff of the county wherein the person charged lived, with a writ beginning precipimus desiring him to send up to the court such a person to answer to s[h]uch a charge which had been broug<h>t against him. And this is the form at this time with very little alteration. The mean<n>ess of the judges renders them suspected both by the king and the people by the irregularity and injustice of their proceedings. And we find that they have been often tried and fined for bribery and corruption. Edward himself levi’d at one time by fines for bribery about £100,000 of the money then current,83 which is equall to above £300000 of the present coin and in value would be then as much as 1000000, and above two or three years revenue at that time, so | that the bribery must have been very excessive. They were therefore orderd to judge by the strict law, and were to be tried in their proceedings by their own records, which were kept all along with great exactness, and no alteration, explanations, or amendments of any sort would be admitted, and any attempt of this sort would be punishable. This is the case to this day in many causes, and indeed is so in all where it is not taken away by the statutes of amendment, and in these a wrong spelt word or any such innacuracy destroys the whole, as these jeophels84 or amendments are not allowed, particularly with regard to^u processes of outlawry. In jury courts amendments are allowed of innacuracy even after the verdict is pronounced; but in appeals (or private criminall prosecutions) of all sorts, and many other, no amendment or explanation is allowed, and this it is which causes appeals to be so little used. There^v is no remedy to be got from the courts unless the brieves or writs in Chancery comprehend the case, and here the words of the brief are to be adhered to exactly, or if there be any particular statute with respect to any^w cause, the words of the statute are in like manner to be observ’d exactly. The exactness of the records | makes any departure very easily perceivable. The judges therefore being at first mean men, as the peers and higher clergy were alone accounted honourable at that time, has given occasion to the smallness of their powers.—Another thing which tended to support the liberty of the people and render the proceedings in the courts very exact, was the rivalship which arose betwixt them. The Court of Kings Bench, being superior to the Court of Com. Pleas and having causes frequently transferred to them from that court, came to take upon it to judge in civill causes as well as in criminall ones, not only after a writ of error had been issued out but even immediately before they had passed thro the Common Pleas. This they did by a fiction of a tresspass,85 that the person conceald himself and would not appear at the court when he had been cited; a writ representing this, called a writ of latitat, is issued^x out and sent to the sheriff, desiring him to find him out. A plea concerning land could not be put on this footing, but all those disputes which arose from contracts, from | trouver and reversion, etc., could. Now all civill causes may be brought immediately before it. Sin<c>e a reformation was made not very long ago in the method of their proceedings, a great^y part of causes go to it immediately. There could be no method of turning criminall into civill causes, nor could they make any evasion of the law in that head. The Kings Bch. Court therefore incroached on the Court of Common Pleas, but that court made no incroachment upon it.

The Exchequer however which at firs<t> tried causes only betwixt the king and the subjects for money due, brought in also causes betwixt the subjects to this court. When one was sued for a debt due to the crown, he told them that because such an one owed him so much money he could not pay, but that if he could get payment from him he would clear the whole; on which a writ of quominus et precipimus, in as much as such an <?one> owes, etc., we order. In this manner they introduced civil causes into their court; and as every one is some way or other debtor to the king, he can easily by means of that debt introduce his own cause into the Court of Exchequer.—The profits of these courts | depended chiefly on dues from the severall causes they tried, what we call in this country sentence money; from them also the clark and notaries derived their fees. As the whole profits of the courts thus depended on the numbers of civill causes which came before them, they would all naturally endeavour to invite every one to lay his cause before their court, by the precision, accuracy, and expedition (where agreable) of their proceedings, which emulation made a still greater care and exactness of the judges. The Chancellor was at this time only an officinarius brevium. He had also appointed him the triall of some^z causes of lesser moment, which were called the petty bag in distinction to the others which were put into the hamper. And in these smaller causes his [his] authority first began, tho it was^a at this time subject to the Kings Bench. But in Edward the 1^st and Edward 2^d,^b and more so in the time of Edward the 3^d, it was found that commerce and frequent intercourse of trade made many cases occurr to which no record or statute then in use could [not] extend,^c which proved very detrimental and could not go long without a r[r]emedy. | The Chancellor was therefore desired that if the wrong complained of agreed not with any single brief but was comprehended under any two or more, he should cause the clerk to make out a new brief in that form. By this means the Chancellor had a right of judging whether any cause had a remedy provided for it. This was at first no more than forming a new brief to the courts of justice. In this manner he was as it were the judge of the point of law, and the courts had only the matter of fact to examine. Many causes would however occurr in which there was no fact disputed, in which case there could be no use or necessity to carry it before the courts; the cause had been already decided and this would be to no purpose. In these cases the Chancellor could give a sufficient remedy. And in this manner it was that the equitable Court^d of Chancery began. {But it not only considered of those which had only a point of law to be determined, but others also, especially those in which the common courts had provided no remedy.} It is not, as we are apt to apprehend it, a court to which appeals, as we call or Blank in MS.^e or writs of error, can transferr a cause from the other courts, complaining of an unjust and unsatisfying sentence, for it receives | none such, nor has it any connection with them. But when one wants to have his cause tried by the Court of Chancery, he relates his story to the court, representing at the same time that the courts of common law can grant him no redress.

The Chancellor as was mentioned soon began to consider those cases which the common law did not comprehend. The first thing he did in this way was to order specifick performance of contracts. These were not sustaind by the common law; all they did was to give the pursuar damages but did not think of forcing specifick performance. This however a man was bound in honour to perform, and the Court of Chancery, which was considered as a court of concience with the Chancellor at the head who was generally a clergy man skilled in the cannon law, began to give action on this head. Anoth<er> thing was all cases of trust and fraud. In the same manner as the common law gave no validity to contracts, neither did it oblige one to perform the trust committed to him. This | was remedied by the Court of Chancery. This included also the transference of property^f by sale, which came about that time to be carried on by lease and release; and other such methods already mentioned. 3^dGap of about four lines in MS. 4^thly, the Chancellor gave validity to all wills and testaments, and all sort of successions and^g legacies. This also gave them the power of obliging the clergy. It had been customary to leave great estates to the clergy in different parts of the kingdom. And as they were by this means likely to swallow up a great part of the lands of the kingdom, a statute was made forbidding any lands to be left in mort–main, that is, to corporations. But as the clergy had still the directions of the conciences of dying persons, they prevailed on them to leave their^h lands to certain persons for the use of the church. The common law gave the church no satisfaction in case the person did not perform his trust; but this also was sustaind by the | Chancellor. These are the chief funds of all disputes, as I already mentioned. Most of them arise either from contracts; or from wills and disputed sucessions from them, for sucession ab intestato is generally altogether clear; or lastly from contracts of marriage, which is partly a contract which operates during life and parttly of a settlement to take place after death. All theseⁱ came to^j be tried by the Chancellor. And in this manner he who had at first no court at all came to take a great deal of the business from the other courts.

Friday. March. 11^th. 1763 —

In the last lecture I showed you how the liberty of the subjects was secured in England by the great accuracy and precision of the law and decisions given upon it, as well as the causes which brought this about, as well as how it came to pass that the judges in England have less strength in explaining or correcting the law than any where else—the judges at common law I mean, for the Chancellor is certainly as arbitrary a judge as most. But neither is he very dangerous | to the liberty of the subject, as he can not try any causes besides those which have no remedy at common law. Nor can he in any case act directly contrary to any method of proceeding laid down by the courts of common law. And from this court as from all others appeals may be carried before the House of Lords.

The first cause of the great strictness of the law is the ordinary method of proceeding in the courts, which^k must be commenced by taking out a writ in Chancery, according to which they must form the suit and pronounce sentence without any deviation from the exact words of the brief; or if the action be founded on any particular statute, the words of the statute must be adhered to exactly. Nor can they alter or falsify any thing in the proceeding or the sentence different from the brief, as the records which^l are kept very exactly mus<t> bear it^m openly. Another thing which curbs the power of the judge is that all causes must be try’d with regard to the fact by a jury. The matter of fact is left intirely to their determination.—Jurys are an old institution | which formerly were in use over the greater part of the countries in Europe, tho they have now been laid aside in all countries, Britain excepted. Their origin was as follows. In the beginnings of the allodial and feudall governments, trialls were carried on in those irregular courts of the barons and suchlike, of which I haveⁿ given you some account,86 before persons intirely ignorant of the law and such as could give but little attention to the minutiae of a fair trial by witnesses. In this case it became customary to bring 12 compurgatores, that is, the person prosecuted came into court with twelve others; and if he swore he was innocent and these 12 swore also that they believed him to be so, he was acquitted. This remains in some measure on what is called the action, which is a particular statute by which you can referr it to the persons oath, and if he wages his law, that is, swears he does not owe the money, and has 6 persons swearing that they believe he does not, then he is discharged. The temptation here has made this action <to> be never made use of unless where one is certain the debt will | be acknowledged, to prevent unnecessary trouble. The imperfection of this method is said to have given occasion to the practise of the judiciall combat.87 The nobles would be very highly displeased to be ousted^o of their rights by^p the oaths of mean persons, and at that time perjury was the most common of all crimes, and demanded therefore that they should be allowed to take the old method of referring it to what was called the judicium dei, or single combat. The 1^st person who remedied these inconveniencies was Henry 2^d, who of all our kings excepting Edwd. 1^s. had the greatest legislative capacity. He ordered that instead of the 12 compurgatores, or juratores, who were chosen by the person himself, and might be of his dependents or vassalls whom at that time he could easily influence to swear as he pleased, instead of these the sheriff should appoint 12 juratores who should be made acquainted with the cause, and having considered it should give in their opinion or verdict, to which the judge should adhere, and pronoun<c>e his sentence accordingly from the law. In criminal causes they | examin’d into the fact, whether or not it be^q as the libell alledges, and whether all the circumstances be clearly proven by the evidence; and in the same manner in civill, for they are used in both, they consider whether the facts be proved or not to be on one side or t’other.

Nothing can be more carefull and exact than the English law in ascertaining the impartiality of the jurers. They must be taken from the county where the persons live, from the neghbourhood of the land if it be a dispute of property, and so in other cases. The persons may then challenge any of the jurers either peremptorily or pro causa^r (for that is the distinction). He may challenge peremptorily, that is, capriciously, from any whim or fancy of his without assigning any reason, 35 of the 40 jurers which attend on every court, twelve of which make a jury.88 He may reject the 1^st, 2^d, and third jury offered by the judge without assigning any cause <?at> all to one; or after this he can challenge a whole jury for some cause, assigning that either in the whole number by the array as they stand in the pannel, | which signifies a piece of the wainscott, a board or pane,^s or per capita out of the array any one for which he can assign a sufficient cause. And pretty^t slender cause is generally allowed. If he be the brother, particular friend, or tenent, or dependent, or any way connected with either of the parties so that he might be reasonably suspected of partiality <?>; and it will be sufficient cause for challenging the whole pannel if the sheriff be in like manner suspected of having formed a partiality^u thro any connection with either of the parties. Per favorem, again, he may challenge the whole array when he has a cause for so doing, but not such as will peremptorily throw them off, which he referrs to the consideration of the judge.—And the same is allowed of every particular jurer. This with many restrictions and the new moddel which is put on it by the law is still the way in England, and seems to be a great security of the liberty of the subject. One is tried here89 by a judge who holds his office for life and is therefore independent and not under the influence of the | king, a man of great integrity and knowledge who has been bred to the law, is often one of the first men in the kingdom, who is also tied down to the strict observance of the law; and the point of fact also determined by a jury of the peers of the person to be tried, who are chosen from your neighbourhood, according to the nature of the suit, all of whom to 13 you have the power of challenging.

The chief defect is that this jury must be unanimous in their opinion, unless they would choose to be greatly harrassed and at last treated with ignominy. And in this our Scots juries, tho they do not appear to be so well contrived in other points, appear to be superior as they are not required to be unanimous. It is very hard that they should thus be obliged to declare themselves of one opinion. The best men and of the greatest integrity may differ, and each think himself altogether certain that the matter is so; this must arise from the variety of human tempers and the different lights in which men see things; and yet in this case they must agree or submit | to great indignities, as being first harrassed till they declare they will not agree, and in that case are turned out of the county. As this is the case, it must be that some of them takes a false oath, and as he must go over to the opinion of the other party. In criminall cases indeed there can be no great doubt as the favourable side is always to be taken, and this is generally looked on as a rule of quasi justice, and tho the party that desires to acquit the criminall be the fewest, yet the others, when they see that there are men of integrity who think him innocent, they will readily agree to think him so. But in civill causes there can be no favourable side; no one can tell which [which] side of the jury should yield. This must often happen, and yet one side must yield unless they incline to be disgrac’d. Nothing therefore can be more dissagreable than the office of a jury man in England. The better sort therefore always avoid it, and the jurys are generally composed there, and in Ireland where the case is the same, of freeholders who possess perhaps about 40^sh or 50^sh per annum, and are generally of no great reputation or such as can enter into the minute | consideration of the evidence. So that the English, by adhering to the old custom of the unanimity of the 12 compurgatores, in which case it was very properly required, and endeavouring to give liberty to the subject, have overthrown their chief design. But altho this disagreable part had been removd, yet the multiplicity of juries is so great, as nothing can be decided without one, <?as> would render it altogether insufferable to the better sort if they alone were to be admitted. But in Scotland they are on a very different footing. The number which is required to a jury is 15. Nor is unanimity required of these; it was some time ago, but has within thes<e> 150^v years gone into desuetude, but at what time I cannot pretend to say. The service therefore is not at all so disagreable, as one may still stand to his own opinion altho all the rest contradict it. And as juries are not here required in civill causes, they return so seldom that the better sort can, as is realy the case, be solely employed without any great hardship. Nothing however appears at first sight, or on reading an account of it, more admirably contrived for preserving liberty and | freedom than this form of the English juries. And we see that the people became soon so enamoured of it that it became a matter^w which makes an article of the Magna Charta.90 Nemo liber, etc. Nec in eum ibimus, nec in eum mittimus nisi per legale judicium parium suorum. And this rule is still observed in all courts excepting the Chancery. The reason of their not being used in them was that when the office of Chancellor was at first erected he was not granted the power of calling a jury, since if he possessed that power he would easily form a court, which it was not intended that he should. But when it was found necessary to give him a judiciall power this was done without any regard to a jury. Justice of Peace courts also have no jury in most cases. These are the only two exceptions to the above rule in the Magna Charta. The Court of Session in Scotland never use a jury. The reason seems to be that being 15 in number they considered themselves as a jury. In criminall cases also our juries | seem also to be on as good a footing, altho there is not such great liberty granted the accused person in challenging the jury, etc.

Tho the king be considered as the fountain of justice, and had originally the power of erecting courts by his own authority as he did the 4 great courts of Westminster, yet this is now taken away. Henry the 8 in like manner erected by his own patent three courts which had never been before. These were, 1^st, the High Commission which tried all ecclesiasticall matters; 2^dly, the Court of Star Chamber which tried criminall causes; and 3^dly, the Court of Wardship which had the management of all the wards which fell to the king. The two first of these were abolished in Charles 1^sts time on account of the irregularity and injustice of their proceeding.91 The other was taken away in Charles 2^ds time,92 for when he exchanged that emolument for 1,200000 per annum the court necessarily fell to nothing. He can not now however create any court without the consent of the | Parliament; nor can he judge by himself in any cause but must allow^x the common course of justice to be followed.

There seems to be no country in which the courts are more under regulation and the authority of the judge more restricted. The form of proceedings as well as the accuracy of the courts depends greatly on their standing. Now the courts of England are by far more regular than those of other countries, as well as more ancient. The courts of England are much more ancient than those of France or Scotland. The Parliament of Paris93 was instituted by Francis the 1^st who was cotemporary with Henry the 8, and the Court of Session by James the 5^th about the same time. As the authority of government is then strong and they have at first no precedents,^y we see that the courts at their first institution have allways taken great liberties. They are neither tied down by the brieves nor encumbered with a jury. These courts were also instituted after the civil law came to be known and to be a fashionable study; | the new courts would disdain to follow the precedents of those courts on whose ruin they had been erected, but would rather follow the rules of the civill law. The Court of Session would pay little regard to the proceedings of the old Court of Justiciary, het Parliat. of Paris to those of the bailies, and the Star Chamber to those of the other courts. The law of England is free from all such illegible word^z and is therefore of a peculiar nature and well worth the study of a speculative man. In some points, as those of contracts and real rights, it differs from all others. Our courts are altogether regulated either by the feudal or civil law.

New courts and new laws are as Blank in MS.^a says great evills. Every court is bound only by its own practise. It takes time and repeated practise to ascertain the precise meaning of a law or to have precedents enough to determine the practise of a court. Its proceedings will be altogether loose and innacurate

Gap of about three lines in MS.

| Monday. March. 14^th. 1763.

In some former lectures I have given you an account of most of the forms of government which have existed in Europe. 1^st, that of shepherds in clans, and 2^dly, that of those aristocraticall monarchys^b which arose out of these when settled in some certain spot, which have afterwards become first of all aristocracies and afterwards democracys. The Grecians were at first in the time of the Trojan war in the first or government of clans under a chief. The Germans also were long after in that state. All Europe before the conquest of the Romans, some small parts excepted, was under the republican government. Gaul was under an aristocraticall and partly under a republican government, where the aristocracies were under the hereditary nobles. So also was Spain. Italy was chiefly divided into small republican governments. I showed you also how that some republics came to have very great and extensive dominions, and that the ruin of these produced | monarchys far greater than those from out of the government of the clans.—I showed you also how after the fall of the Roman Empire the government of Europe became at first allodial and afterward feudal, and explain’d the different sorts of government that were produced by the overthrow of this government in France, England, Germany, etc. It still however subsists in full vigour in Poland, Courland, etc.—This may make a pretty generall account of the history of government in Europe. There is only one or two more, the origin of which I shall here take notice of.

In some countries who were far from being under a proper form of civil government there were, as I explaind before, considerable numbers of burrghs or towns erected; many of these took the opportunity of disorders of the government to render themselves independent. Charles the 5^th., Emperor of Germany, was possessed at the same time of <the> greatest part of all^c Italy, France, Spain, and great estates in Germany. When this empire was seperated under his successors, France | as I mentioned before fell into the hands of the sucessors of Hugh Capee. Germany was siezed [was siesed] by another familly who, assuming the title of emperors, laid claim to Italy as annexed to the empire. Otho and his three immediate successors accordingly made^d continuall incursions into Italy, but were frequently called back to settle disturbances which arose in their absence. The government of Italy was therefore very weak, and could give them but little influence over the country. This was remarkably the case in Frederick the 1^st time. The Pope and others were at great pains to raise feuds in Germany, which obliged the emperors in Germany to recall their armies before their enterprize was finishd. The distance of Italy from Germany made the authority of the Germans but very weak,^e so that the Italians, who had at this time in the 14^th century made as great advances in arts and emprovement as the rest of Europe arrived to in the 16, and were consequently more independent, <?tried> to shake off the authority of the emperors. | They possessed large populous towns, well fortified, under the government of a town council, much in the same manner as our towns in this country are; and now, being by their distance freed from the power of the German emperors, who kept no governor or tributary prince in Italy, being well provided for their own defence so that none of their neighbours were in any shape able to subdue them or curb their power, they all set up for themselves and <?gained> their own independency. In the same manner in Germany many of what are called the free towns, taking the advantage of these disturbances, being pretty independent of all others, having a territory of their own and provided for defence by living in a walled town and being constantly in arms, found themselves a match for all the princes and other powers in their neighbourhood and therefore shook off all dependence. There is however one considerable difference betwixt the Italian republicks and those free towns of | Germany such as Hamburgh, Augsburgh, etc. with respect to their manner of government. The Italians are governed intirely by a hereditary nobility. The citizens have not all an indiscriminate right of voting and determining affairs. There are as I before observed no democracys properly so called in Europe, such as were those of the old govts. The reason I have also shewn already: the people had in severalls of them these rights but as I said, finding these very troublesome they gave them up into the hands of the better sort, tho in different manners. The Venetians agreed that the Great^f Councill for the time being, with their descendants for ever, should have the government of the city. In this manner the people in all these republicks have either tacitly or expressly given up their government to the better sort, as in Milan, Genoa, Venice, etc. At the time these recovered their liberty, hereditary nobility were in high repute and fashion, and therefore flocked much to the | towns and got in many of them the chief power by their assistance and protection.—The towns of Germany on the other hand, tho they were assisted no doubt by the disturbances of the government, owed their greatness to the real power and strength which they had acquired by trade and commerce.—They freed themselves without any assistance of the nobility, and fell into the government of [a] town councils who supply themselves by co–optation; and by this means any man in Amstardam or other such towns may arrive to the highest magistraciys. In this it is that the chief and essentiall difference betwixt these republicks consists. — — —

A confederacey or union of these together make a respublica foederata.^g These are bound to defend, protect, and assist each other, and have a publick revenue. But each of these provinces can make laws, chuse magistrates, coin money, and even make war by itself provided it be done at its own expense, for they have no title | to interfere with the publick revenue. This is the case in the United Provinces and the cantons of Switzerland. But we may observe that the union is much stronger in Holland than in the others. The reason is that the latter are much more powerfull and independant, and of themselves are better able to support themselves than the others. Every canton, as that of Bern, could be able to support itself without^h the others which no province or town in Holland could do.ⁱ We see accordingly that the cantons have frequently been at variance with each other. The Protestant cantons made war on <?and> would totally have ruined the popish ones had not they of their own accord desisted, but no such disorder was ever heard of in the United Provinces. They found their strength in being united whereas the others found their strength in their separation.

These comprehend all the governments which have ever existed in Europe. For Courland, Poland, and others are under the same or more strict^j feudall government that England was in Henry 8th.

| We shall now consider a little the generall or publick laws which have prevaild in these governments. The 1^st thing to be consider[er]d with regard to a republican govt is, what it is that determines the voice of the people, as it is that which determines the laws^k of the people. It is a generall rule that in every society the minority must submit to the minority.94 But it may often happen that the minority94 who vote for the making or rejecting a law or the choosing a magistrate can not be easily and clearly determined. Thus if A, B, and C were candidates, and A had, of 100, 34, B 33, and C 33; if the majority was to carry it, A would here be chosen altho to 66 of the 100 he might be the most obnoxious of all, or perhaps in the whole. This happens often in elections in this country where that rule takes place. This is without doubt a very great grievance. It would be still more so if we should suppose a set of men who had the judicial or senatorial power directed by this rule.95 Suppose a man was to be tried for his life, and that of 100, 3596 bring him in guilty | of murther, 33 of manslaughter, and 33 of chance manly. Here altho 66 absolve him of murther he will be condemned. To prevent this it has been endeavoured to make^l all questions bipartite in these countries. As here they would put the question, guilty of murther or not. First of all 66 would acquit him of murther. Those who had been for condemning him would in the 2^d question cast the balance and cast him of manslaughter. And so in the former case of the members the first question would be, is A a fit person or not. Here A would be cast by 65,^m and the others would depend on the share of As voters who joind them. And thus they endeavour always to reduce the vote to two contradictory votes or propositions. This is the practise at Venice. It must also sometimes happen that the assembly if it consist of 100, 40, or other equall numbers will be divided. In this case there is inⁿ fact nothing determind, and in the strictest sense | they allow no casting or decisive voice, and far less one joind with the deliberative one.—If the president of an assembly have only a decisive voice he is in a worse case than any of the others and his party may often be worsted tho of equall numbers. 7 out of 14 would carry it against him and so he will be in a worse condition than the other members. But if he has this joind with a deliberative one, he has far more. No voice of this sort therefore is allowed.—The president only keeps order and regularity. If therefore the numbers be equall nothing is done. A man would not as here be acquitted, nor would he be condemned, but as neither had be<e>n carry<d> would be brought to trial, contrary to our rules. And if this happens when a law is proposed it is neither past nor cast, but brought in again in a few days, which it could not if rejected; and this is without doubt strictly just.

| The next thing I shall consider is what are the respect and duties which the subjects owe to the sovereign power of whatever nature, the monarch in a monarchy, the nobles in an aristocracy, and the body of the people in a democracy; and on the other hand what are the duties the sovereign owes to his people, and the punishments to be inflicted on the infringement of these rights.—Any attempt or injury against the sovereigns person is allways punished as a very heignous crime. If this attempt is immediately against the sovereign it is accounted high treason. This crime however is very different in a monarchy from what it is in a republick. In a monarchy any thing that either endangers the person or derogates from the dignity of the king is accounted high treason; in a republick, whatever affects the dignity of the people as a body.—The Romans for this reason distinguish treasonable crimes into two sorts. That which was properly the law with treason was called perduellio. Laesa majestas again was any contempt^o of the magistrates or others who had dignity | and is similar to what we would call a contempt of the kings authority. The crimen perduellio was very^p plain in a democraticall government. One was guilty of it whenever he showed animum hostilem erga rempublicam,97 by joining, succouring, or corresponding with the enemy; when he gave up their hostages, surrendered towns into their hands, or took away without the publick authority the life or liberty of a subject acting as a judge; levied armys without their authority; and so on. The difference chiefly consists in the respect paid to the person of the sovereign.—In a monarchy this is always looked upon as sacred and guarded by the law of treason against all attempts; and this is the case whatever the right or title of the sovereign may be. This is here any attempt to compass or bring about any injury or disgrace on the person of the sovereign, and therefore comprehen<ds> the corrupting of his wife or his sons wiv<es>, | as by that means a spurious offspring may suceed to the crown. And in generall all attempts against his life or dignity are prohibited, without any regard to the title by which he holds the crown. It is the interest of every sovereign that no such attempts should be permitted. If tyrranncide was allowed every one would be in danger. The man who permitted it might in a few days be cut off himself, as the least stretch of authority or even an ordinary exertion of power would make him appear a tyrant in the eyes of many of his subjects. It is also necessary that all who bear arms or exercise any office of that sort in the kings name should be free from all pains and penalties. The case is quite different in republicks. Tyrrannicide there is always not only permitted but commended and rewarded. One is there said to be guilty of treason quicunque injussu populi bellum gessit, exercitum conscripsit, liberum | necavit, etc.98 By this he sets himself above the authority of the people and above the laws. A murtherer tho he breaks the laws does not set himself above them, but one who by a sort of authority puts one to death plainly does. Thus the decemviri at Rome, when they infringed the priviledges of the Republick, as there was no court before which they could be called were plainly tyrants. So were Peisistratus and Nebas.99 There was no way to get free of their authority but by assassination. Tyrranicide was therefore always allowd. But now it is all over Europe prohibited. The reason is that Holland, Switzerland, etc. are no ways comparable (tho they be very^q respectable states<)> to France, England, etc. Monarchies are the prevailing government; they set the fashion and give the tone to the custom of all the others. The assassination of the greatest tyrant would now be looked upon as altogether shocking. The assassination of Oliver Cromwell would have been thought horrid and have covered the persons who executed it with | shame, whereas formerly nothing was more glorious than the assassination of a tyrant. Brutus, Timoleon, and Harmodios and Aristogeiton1 were highly celebrated for their assassinations of tyrants. The governments were mostly republican; they then gave the tone to the maners of the times and any small or single monarchy amongst them, as that of Macedon, would be obliged to comply with the generall turn. The republicks being now less numerous can not give the same tone as before, and are therefore forced to submit to the tone given by the rest. It is not any superiority of humanity or refinement of manners^r above the antients which has made tyrrannicide be abhorred amongst us, when at the same time it was rewarded amongst them, but merely the different state and circumstances of the times. — — —

Tuesday. March. 15^th. 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 2^d, 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 1^st., one who is guilty of treason^s 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 plead^t 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 1^st, by the attempt of some of the^u subjects to overturn by an internall change the present [and] form of government, or 2^dly, 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 — 1^st of all,^v attempts against the person of the sovereign to destroy or injure him. The 1^st 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 directed^w 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 2^d 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 Edw^x was the son of <?>.7 By this | all attempts are provided against which^y 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. 3^d, by the 2^d article it is high treason to levy war against the king openly^z 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 is^a constructed to come under the 1^st 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 3^d 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 5^th10 as well as the others. The wounding them even in court is not considered as treason. 4^th, 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. 5^th, 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 jealousy^c 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 5^th.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 8^th., and Edward the 6^th 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;^d 17 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 1^st 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 2^d 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 resist^e 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 the^f foolish and tyrrannicall conduct of James again roused them, so that he was turn’d out and^g 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, and^h 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 1^st, 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. 2^dly, 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

Wednesday. March. 16^th. 1763

In yesterdays lecture I gave you an account of the laws of treason in this country as established by the statute of Edward the 5^th.23 Before that time every thing which they desired greattly to discourage was subjected to the pains of treason, as the going over to the enemies country, which was intended to subsist but for three years. That statute confined them to the five species above mentioned. These are in generall very reasonably reckond | to deserve those punishments. It is altogether just that the compassing the death of the king, etc. or the corrupting his consort, etc., should be accounted treason, as these immediately tend to overturn the government and strike at its very roots. The levying war against the king or the attacking his officers in the discharge of their office are no less justly accounted so, as they would intirely overturn the foundations and prevent the execution of government. The counterfeiting the seals is also a great and atrocious injury to the government, as one by this means can falsify not only one but all or any one he pleases of the kings statutes. The 5^th species, viz that of counterfeiting the coin, does not so evidently appear to be treasonable and was accounted so merely from the jealousy of the kings.—With regard to the statute which makes many severe penalties attend the encouraging the popish religion, this (as I said) needed not be continued now. The zeal of that religion is greatly abated in many points, and tho it might be reasonable to discourage it byⁱ imposing double taxes or such like penalties, it can hardly be reasonable | to punish as treason the weakness of any one who was so silly as to prefer the Roman Catholick to the Protestant religion. And such penalties may unwillingly involve men in great troubles. The same may be said of those brought in since the Revolution. {This indeed is seldom taken notice of as the spirit of the government is now more than ever republican.} The government is too well established to be hurt by any ones controverting the right of altering the sucession or favouring the Stuart family. And no one has been prosecuted on this head. Blank in MS.24 , who published a history in three volumes thro the whole of which he took it as an established principle that the king and Parliament had not the right of altering the succession, was never considered as being guilty of treason, tho without doubt it was a very great offence against the government. The punishment inflicted on treason is the highest of all, and the only one which in this country admits by law of any torture. The criminall is to be half hanged, and then before dead to be taken down, and his heart plucked out and his bowels before he is yet dead, and his <?head> then to <be> severed from his body and fixed up in some pub|<lick> place; but the mildest25 of our manners generally mitigates this part of the punishment, allowing the criminall to be quite dead.—Besides this it is attended with forfeiture of goods and land estate, and the dower of the wife, and corruption of blood on the children, by which they are deprived not only of his estate but of every succession which would have fallen to them thro him. — —

Besides these there are many inferior offences against the king.26 As 1^st, the issuing coin or even bullion or wrought silver of a standard inferior to sterling, which by the law is punishd as felony.27 2^d, formerly it was felony to export either coin or bullion out of the kingdom. This is now confined to coin,28 the exportation of bullion being allowed,29 if it be entered at the custom house and examind before a Blank in MS.30 . This was from a mistaken notion called a diminishing the wealth of the kingdom. The wea<l>th of the kingdom has by allmost <?all> authors after Mun been considered as consisting in the gold and silver in it. In his book called Englands Blank in MS.31 by Foreign Trade, he endeavours to shew | the balance of trade is the only thing which can support England, as by this means gold and silver are brought into the kingdom, and in these allone he says the wea<l>th of the kingdom can consist[s] as they alone are not perishable. On this doctrine of his, which however foolish has been adopted by all suceeding writers, these laws have been founded. For nothing in reality is more idle than such prohibitions. The^j exportation of bullion was allowed for the 1^st time by King William32 on the importunities of the merchants, who shewed that the prohibition was very detrimentall to trade. The prohibition of the exportation of coin still continues but is of no effect, and the very want of it proceeds from an erroneous constitution in our police. It was thought that the more money there was in the kingdom the greater was the benefit. To enc

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Table of Contents

1: PART I: Of the Propriety of Action Consisting of Three Sections - Adam Smith, Glasgow Edition of the Works and Correspondence Vol. 1 The Theory of Moral Sentiments [1759]

2: PART II: Of Merit and Demerit; or, of the Objects of Reward and Punishment Consisting of Three Sections - Adam Smith, Glasgow Edition of the Works and Correspondence Vol. 1 The Theory of Moral Sentiments [1759]

3: Session II: The Theory of Moral Sentiments, Reading 1

4: Session II: The Theory of Moral Sentiments, Reading 2

5: Session III: The Theory of Moral Sentiments, Reading 1

6: a PART VI: Of the Character of Virtue Consisting of Three Sections - Adam Smith, Glasgow Edition of the Works and Correspondence Vol. 1 The Theory of Moral Sentiments [1759]

7: PART VII: Of Systems of Moral Philosophy Consisting of Four Sections - Adam Smith, Glasgow Edition of the Works and Correspondence Vol. 1 The Theory of Moral Sentiments [1759]

8: LECTURES ON JURISPRUDENCE: REPORT OF 1762–3 - Adam Smith, Glasgow Edition of the Works and Correspondence Vol. 5 Lectures On Jurisprudence [1762]

Note

REPORT OF 1762–3

| Friday Decr. 24. 1762

Of Jurisprudence.

1st OF OCCUPATION

Thursday 6 Jan. 1763.

Monday Jan. 10th. 1763

Monday January 17th. 1763.

| SERVITUDES.

Pledges

| Exclusive Priviledges.

PERSONAL RIGHTS

Friday. January 21st. 1763.

Delinquency.

Thursday Febry 3d 1763

| Monday Febry. 7th 1763

A Member of a Family.

| Tuesday February 8. 1763

Thursday. Febry. 10th. 1763.

Friday February 11th. 1763.

| Monday. Febry. 14th. 1763.

Tuesday. February 15th. 1763.

Wednesday February 16th. 1763

| Monday Febry. 21st. 1762o

| Tuesday. February 22d. 1763

| Wednesday. Febry. 23d. 1763

Thursday February 24th 1763.

Monday Febry. 28. 1763.

Tuesday March 1st.

Wednesday. March 2d 1763.

Thursday. March. 3d. 1763 [176]

Friday. March. 4th. 1763.—

| Monday. March. 7th. 1763—

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Wednesday. March. 9th 1763.

Thursday. March. 10. 1763.

Friday. March. 11th. 1763 —

| Monday. March. 14th. 1763.

Tuesday. March. 15th. 1763

Wednesday. March. 16th. 1763

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Thursday. March. 3^d. 1763 [176]

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