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Thursday. March. 10. 1763. - Adam Smith, Glasgow Edition of the Works and Correspondence Vol. 5 Lectures On Jurisprudence [1762]

Edition used:

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

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

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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 usf 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 1st, 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 hadh 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; 2dly, he tried all criminall causes; 3dly, 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 40sh 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 40sh. 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 wel commonly say, is a hasty passion: it wont wait for a delay of its gratification but demands it immediately, and them 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 wordo operates a discontinuance, and when he renewsp 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 1st, 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 3d, 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 tou 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. Therev 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 anyw 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 issuedx 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 greaty 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 somez 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 wasa at this time subject to the Kings Bench. But in Edward the 1st and Edward 2d,b and more so in the time of Edward the 3d, 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 Courtd 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 propertyf by sale, which came about that time to be carried on by lease and release; and other such methods already mentioned. 3dGap of about four lines in MS. 4thly, the Chancellor gave validity to all wills and testaments, and all sort of successions andg 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 theirh 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 toj 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.

[f]‘with’ deleted

[g]Reading doubtful

[77 ]Gilbert, op. cit., 10–11; Hume, History, II.122.

[h]‘both’ deleted

[i]Reading doubtful

[78 ]Not the Justices of the Peace but the sheriff had a jurisdiction limited to 40 shillings: Gilbert, op. cit., 6.

[j]‘I think he said so’ is interlined at this point, above a line drawn over the words ‘that again to Parliament’

[k]Reading doubtful

[79 ]ii.89–90 above.

[l]‘generall’ deleted

[m]‘satisfaction’ deleted

[n]Reading doubtful

[o]Illegible word

[p]Reading doubtful

[80 ]‘Common pleas shall not follow the King’s Court but be held in one fixed place’ (art. 17).

[q]An oblique stroke in the MS. at this point is followed by an ampersand and what appears to be an abbreviation for ‘Chancery’. These words have apparently been struck out, and the words ‘in after’ [reading doubtful] are interlined above them.

[81 ]ii.95 above.

[r]Blank in MS.

[s]Blank in MS.

[82 ]There is some confusion here, since the passage seems to refer to judicial officers like the justices of the Common Pleas and the King’s Bench and the barons of the Exchequer whose adjudicating function could be said to be limited by original writs. The auditor of the Court of Exchequer (unlike the treasurer) had no judicial functions.

[t]Reading doubtful

[83 ]The fines were 100,000 marks: Hume, History, II.68.

[84 ]Statutes of Jeophail (from jeo faille, I am in error) begin with 14 Edward III, st. 1, c. 6 (1340). They allow amendments of pleadings.

[u]‘statutes’ deleted

[v]Illegible word deleted

[w]‘thing’ deleted

[85 ]By this process, called the Bill of Middlesex, the defendant was summoned with the allegation that he had committed a (fictitious) trespass in that county. If he failed to answer, the writ of latitat was issued, alleging that he was concealing himself.

[x]Reading of last two words doubtful

[y]The last two words replace ‘most’

[z]Replaces ‘all’

[a]‘afterwards’ deleted

[b]Reading doubtful

[c]‘to’ deleted

[d]The words ‘and in many cases’ are interlined above ‘equitable Court’ and deleted

[e]Blank in MS.

[f]Illegible word deleted

[g]Reading doubtful

[h]Reading doubtful

[i]‘to’ deleted

[j]‘be’ deleted