Econlib

The Library

Other Sites

 Front Page arrow Titles (by Subject) arrow Wednesday. March. 16th. 1763 - Glasgow Edition of the Works and Correspondence Vol. 5 Lectures On Jurisprudence

Return to Title Page for Glasgow Edition of the Works and Correspondence Vol. 5 Lectures On Jurisprudence

Search this Title:

Wednesday. March. 16th. 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.


Wednesday. March. 16th. 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 5th.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 5th 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 1st, the issuing coin or even bullion or wrought silver of a standard inferior to sterling, which by the law is punishd as felony.27 2d, 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. Thej exportation of bullion was allowed for the 1st 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 encourage therefore the turning of bullion into coin, the private persons were not at any expense of the mintage, the whole of which was born by the government;33 so that now the priviledge of coinage, so far from bringing any profit to the king, costs him about | 14,000£ per annum. The effect of this is that uncoined silver is always as high in its value as coined silver, which is without doubt absurd as it should have the addition of the expense of coinage. The pound troy of coined silver is valued at 3£. 2sh., so that the ounce of it is worth 5sh. 2d. The price of the ounce of uncoind silver can never be under this. For if one was refused so much from any one for it he can send it to the Mint where he will get that value for it, as the mintage costs him nothing.—So that the ounce of bullion can never be below 5sh. 2d., and is in fact commonly above it. For the bullion is in many respects more convenient than the coin as it serves the purposes of it in most cases, and besides is more acceptable abroad, or can be wrought into plate at Rome. So that one who is possessed of new coin finds his advantage in melting it down, as he will get somewhat more for it. So that this constitution increases the mintage indeed, but does not increase the coin, as it gives such a profit in melting new coin before it be pulledk down below | the nominall value that for these twenty years or more past one has hardly seen a new shilling which has made its way down to Scotland, as they are thrown into the melting pot as soon as they come from the Mint. This is also, 3dly, accounted felony.34 But no one has been ever punishd for it, as any one but a fool can contrive to do it in so short a time as to prevent any discovery.— 4th, all attempts to increase the kings coin are accounted felony, as the seeking to find out the philosophers stone.35 This does not however seem to be so reasonable as that the debasing it should.— — 5th, is felony, any attempt against the kings councilor, the [the] raising a riot or attacking any of the kings servants,36 {embezling the kings arms.}

The state of affairs under King John and Henry the third gave occasion to the statutes of premunire.37 The Pope at that time frequently sent over legates into Britain who, without the consent of the king, brought over his bulls imposing heavy contributions on the clergy and even on the laiety. These receivd complaints against the kings judgments | in ecclesiasticall matters, and by these bulls they carried a vast deal of money out of the kingdom, and by this means subjected it so much to the Popes authority that it was little more than a fief of the Holy See. This, long before Protestantism was thought of, made it necessary to curb his power in some respects. It was therefore made criminall to bring over the bulls of the Pope, or for any legate to enter the kin<g>dom without the kings leave, to appeal from the kings courts to the court of Rome, for the dean and cannons or chapter to refuse to admit or ordain a bishop nominated by the king. These statutes were said premunire regnum, to fortify the kingdom (against the Popes encroachments). We say now instead of that one falls under the penalties appointed by the statutes premunire regnum, that he falls under a premunire. The penalty of these, which are chiefly intended to secure the kings authority in ecclesiasticall matters, was outlawry, that is, forfeiture of goods and the want of the kings protection, by which one nor his children or heirs can not suel | any law in anym court, which is not the case in most crimes. The punishment of outlawry is the hig<h>est of any excepting those of treason and felony since those for heresy, witchcraft, etc. were taken away. Other misdemeanours against the king go under the name of misprisions, from the old French mespris (for mepris, the letter s being retaind by the English who seem to be fond of it, tho thrown out by the French who have a sort of dislike at it), neglect or contempt. Misprision is of two sorts, misprision of treason, and misprision not of treason.—Misprision of treason again is either positive or negative.38 Negative misprision of treason, or contempt of the kings authority, is when one does not reveal any attempts against the kings life or his consort, or any of the other sorts of treason, which comes to his knowledge.39 — But if one receives and encourages them or any way seems to consent to it he is considered not merely as an accessory, which is the case in felony, but is punishd as being guilty of treason. Thus if one should fall into company who were talking of the right of the Stuart family and | should join them, and meet then a 2d time for the same purpose, he would be considere<d> as guilty of treason. But if one do not any <?way> signify his approbation of such proceedings but merely neglect to give information, he is liable not to the penalties of treason but of misprision. The approbation of a felony on the other hand does not make one guilty of it. This misprision of treason is liable to an arbitrary punishment of fine and imprisonment.—Positive misprision of treason is the counterfeiting coin not current in the country.40 The counterfeiting of foreign coin which is current in the country by the kings proclamation is treason no less than the counterfeiting the kings own coin. But to counterfeit those which are not current by the proclamation is not treason but misprision. Misprision not of treason is of severall sorts.41 1st, contempt of the kings palaces or courts. One who raises any disturbances or riots within the palace, or strikes another, is liable to the penalties of misprision, and those guilty of the latter offence lose their right hand.42 Any disturbance of the execution of justice by | interrupting the execution of justice by giving the judge bad language of any sort, these are all liable to very high penalties.—Not long ago a doctor of laws, a man of considerable rank, for an offence of this sort was obliged to walk with a paper testifying his offence fixed upon him from Temple Bar to Blank in MS.n . And a whole court of admiralty, having given a very scurrilous paper containing a complaint against Chief Justice Willis for having tried a cause which was depending before them foro a court martial, were summoned before the court for scandalum magnatum, and obliged to beg pardon in the face of the whole court.43 — And all such offences are subject to fine and imprisonment, and are obliged to be attoned for by begging pardon in a publick and opprobrious manner. This is the case in France in all crimes, where besides the publick punishment they ask pardon of the party offended and of God in the church before the whole congregation, doing penance for it. But in England this is required of people of character in this case only.

| 2d, is a contempt of the kings prerogativep in disobeying his lawfull commands; refusing to serve him, as he has a right to demand their service; or preferring a foreign court in any way, as by receiving a pension from them without the kings consent, as sovereigns are always jealous of such connections with others.44 The same is the case when one goes out of the kingdom contrary to the kings orders; for in common cases any one has a title to go out of the kingdom without asking leave excepting peers or Members of Parliament; but the king may impose his commands on any one ne exeat regno; or not returning when called by a particular order under the kings privy seal or when called by a generall proclamation.

3d, is a contempt of the kings personall government,45 as the saying that he had broke his coronation <?oath>, that he was a coward or a scoundrell, etc. But tresspasses of this sort have never been punished for some time past as the government is now more than ever democraticall, unless when any personall reflections have been thrown out | against some individuall in the administration. And if it was to be tried it is probable the Act would be repealed altogether, as every one would in this nation dispute his liberty of censuring the administration. And the English nation think they have a right to information in politicall affairs by books and pamphlets on these subjects, which would in this case be cut off.

4th, is contempt of the kings title, as preferring the Pretender, drinking his health, and such like; not taking the oath of allegiance which has beenq in use of a long time, and that of supremacy and abjuration introduced after the Revolution and Reformation when lawfully tendered.46 — The punishment of these is fine and imprisonment, incapacity of all offices, and some others, but not those of felony or outlawry.

[23 ]Edward III.

[i]Illegible word deleted

[24 ]Blank in MS. Probably Laurence Echard, History of England, 3 vol., 1707–18.

[25 ]Sic. No doubt ‘mildness’ was intended.

[26 ]Hawkins, I.18.

[27 ]7 Anne, c. 25 (1708).

[28 ]Exportation of coin, although still prohibited, had not been a felony since 1573: Hale, I.654–6; Hawkins, I.18.6.

[29 ]15 Charles II, c. 7 (1663).

[30 ]Blank in MS. Marked at Goldsmiths’ Hall, 6 and 7 William III, c. 17 (1695), and certified by the Mayor’s Court of the City of London, 7 and 8 William III, c. 19 (1696).

[31 ]Blank in MS. Thomas Mun, England’s Treasure by Forraign Trade, published by John Mun in 1664.

[j]‘importat’ deleted

[32 ]In fact by Charles II: Hawkins, I.18.6.

[33 ]18 and 19 Charles II, c. 5 (1666).

[k]Reading doubtful

[34 ]Forbidden, although not declared a felony, by 6 and 7 William III, c. 17 (1695).

[35 ]5 Henry IV, c. 4 (1404), but repealed by 1 William and Mary, c. 30 (1689).

[36 ]3 Henry VII, c. 14 (1487) and 9 Anne, c. 16 (1710).

[37 ]Hawkins, I.19.

[l]Reading doubtful

[m]‘other’ deleted

[38 ]Ibid., I.20.

[39 ]1 and 2 Philip and Mary, c. 10 (1554).

[40 ]14 Elizabeth, c. 3 (1572). Cf. p. 430, note 37, below.

[41 ]Hawkins, I.21.

[42 ]33 Henry VIII, c. 12 (1541) (if the king is resident at the time).

[n]Blank in MS.

[o]Reading doubtful

[43 ]A naval court martial had attempted to impeach Willis, Chief Justice of the Common Pleas, in 1746; cf. Gentleman’s Magazine, XVI (1746), 462 ff., 598, 604; Horace Walpole, Letters (ed. Toynbee, 1903), II.251.

[p]Replaces ‘authority’

[44 ]Hawkins, I.22.

[45 ]Sic. Probably a mishearing of ‘person or government’. Hawkins, I.23; and cf. LJ(B) 85–6, below.

[q]The last four words replace ‘supremacy introduced at’

[46 ]Hawkins, I.24.