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| Monday. March. 14th. 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.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


| Monday. March. 14th. 1763.

In some former lectures I have given you an account of most of the forms of government which have existed in Europe. 1st, that of shepherds in clans, and 2dly, that of those aristocraticall monarchysb 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 5th., Emperor of Germany, was possessed at the same time of <the> greatest part of allc 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 maded 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 1st 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 14th 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 Greatf 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 withouth 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 strictj 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 1st 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 lawsk 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 makel 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 2d 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 contempto 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 veryp 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 veryq 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 mannersr 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. — — —

[b]Replaces ‘governments’

[c]The last four words replace ‘all’

[d]Replaces an illegible word

[e]Reading doubtful

[f]Replaces ‘town’

[g]Illegible word deleted

[h]Replaces ‘against’

[i]‘and we’ deleted

[j]Reading doubtful

[k]Replaces ‘voice’

[94 ]Sic. No doubt ‘majority’ was intended.

[94 ]Sic. No doubt ‘majority’ was intended.

[95 ]Pufendorf, VII.2.18; Hutcheson, System, II.241.

[96 ]Sic. Presumably ‘34’ was intended.

[l]Reading doubtful

[m]Sic

[n]The last three words replace ‘it will’

[o]Reading doubtful

[p]‘easily’ deleted

[97 ]‘A hostile attitude towards the state’: D. 48.4.11.

[98 ]‘Whoever in defiance of the people has waged war, raised an army, killed a free man, etc.’ Cf. D. 48.4.3, and Grotius, I.3.4.2.

[99 ]According to tradition Rome was ruled by two boards of decemviri from 451 to 449 b.c., the first being moderate, the second tyrannical. Peisistratus was tyrant of Athens for three periods between 560 and 527 b.c. Nabis was tyrant of Sparta, 207–192 b.c.

[q]Reading doubtful

[1 ]Brutus was the assassin of Julius Caesar; Timoleon overthrew Dionysius II, tyrant of Syracuse, but allowed him his life; Harmodius and Aristogeiton, known as the Liberators, attempted to kill Hippias, tyrant of Athens, and his brother Hipparchus, but succeeded in killing only the latter.

[r]‘which’ deleted