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| Monday Febry. 21st. 1762o - Adam Smith, Glasgow Edition of the Works and Correspondence Vol. 5 Lectures On Jurisprudence [1762]

Edition used:

Lectures On Jurisprudence, ed. R.. L. Meek, D. D. Raphael and P. G. Stein, vol. V of the Glasgow Edition of the Works and Correspondence of Adam Smith (Indianapolis: Liberty Fund, 1982).

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

About Liberty Fund:

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| Monday Febry. 21st. 1762o

In the beginning of these lectures I divided justice into 3 parts: 1st, that which respects a man, merely as a man; 2d, that which regards a man as a member of a family; and 3dly, 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 3d 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 1st 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 consistsp of 3 parts. The first is the legislative, or the power of making laws. The 2d 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 isq 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—1st, 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 2dly, 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 longr 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 governments 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 willt 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 findu 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 wordv , 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, andw these become in this manner dependent on him. The patriarchs we see were all a sort of independent princes who had their dependents and followersx 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 judgesy 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. 1st, 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 arez 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 1st, 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 2dly, from marriage settlements: these also are unknown in the early periods of society; or 3dly, 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 areb 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 | woulde 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 1st 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 privatef 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 senatoriallh 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 wask the case at Rome, and after it had been laid aside it was resumed again. Tacitus says also, De minoribus rebus, principesl 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.

[o]Sic

[p]The last six words replace ‘government consists’

[q]‘called’ deleted

[41 ]Civil Government, ch. XII: ‘Of the Legislative, Executive, and Federative Power of the Commonwealth.’

[42 ]XI.6.

[r]Replaces ‘far’

[43 ]P.–F.–X. de Charlevoix, Histoire et description générale de la Nouvelle–France, avec le Journal historique d’un voyage . . . dans l’Amérique septentrionnale (1744), III.271 ff.

[44 ]J. F. Lafitau, Mœurs des sauvages amériquains, comparées aux mœurs des premiers temps (1724), I.490 ff.

[s]Replaces ‘supreme authority’

[t]Illegible word deleted

[u]‘of the’ deleted

[v]Illegible word

[w]‘as’ deleted

[x]‘who’ deleted

[y]Illegible word deleted

[z]Reading doubtful

[a]Reading doubtful

[45 ]i.91–2 above.

[b]Reading doubtful

[46 ]8 above.

[47 ]Sarpedon and Glaucus were commanders of the Lycian contingent before Troy (Iliad, ii.876); Idomeneus commanded the Cretans (Iliad, ii.645); Diomedes and Sthenelus commanded the Argives (Iliad, ii.564 ff.); Menestheus commanded the Athenians (Iliad, ii.552); the Boeotians had five chiefs (Iliad, ii.494).

[48 ]ii.116 ff. above.

[c]The words ‘Cape of Good Hope’, followed by the letters ‘Hot’ which have been deleted, appear on v.11 at about this point, with no indication as to the part of the text to which they are intended to refer

[49 ]5 above.

[d]‘What would make’ deleted

[e]‘consist’ deleted

[50 ]Tacitus, Germania, vii: ‘They pick their kings for noble birth, their military commanders for bravery. The kings do not enjoy unlimited or arbitrary power, and the commanders rely on example rather than on authority, on their men’s admiration for their conspicuous activity and for fighting ahead of their troops.’ Read sumunt for sumant; infinita out for infinitas et.

[51 ]Genesis 34.

[52 ]The Boule.

[f]Replaces ‘civill’

[g]‘But’ deleted

[h]Reading doubtful

[i]Reading doubtful

[53 ]Presumably a reference to the duoviri perduellionis appointed by Tullus Hostilius to deal with cases of treason: Livy, I.26.

[j]Illegible word deleted

[54 ]Germania, xii: consilium simul et auctoritas adsunt (‘contributing advice together with authority’).

[k]‘soon’ deleted

[l]Replaces ‘reges’

[55 ]Germania, xi: ‘Minor matters the chiefs discuss, major matters everyone; but in those matters where the decision lies with the people the chiefs consider them first.’