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| Monday. March. 21st. 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. 21st. 1763

In the last lecture I endeavoured to explain the nature of alienage in the different countries, the reasons of those institutions, and the different dissabilities they put one under. In some countries at this day and in all barbarous nations aliens <are> entirely incapable of all of those rights which are possessed by the citizens, and in many in which they are allowed to possess an estate themselves they are not allowed the right of making a will. This right, as I observed formerly at great length,64 is granted merely from the reverence and respect which we feell for the commands of the dead; it involves in it something more than what is necessary to constitute property. Piety to the dead then being the sole foundation of it, tho this may appear to be due to our friends, country–men, and relations, men are not so sensible of so great regard being due to the will or memoryh of foreigners; and therefore in many countries where foreigners are allowed to have property, if they have no children or near relations their goods are siezed by the government by what is called the jus albani, albezani, or dalbain. This is not the case in | England. The liberty of making wills is derived entirely in England from the cannon and later civill law, and being established at the time many of the laws relating to property were made, has come to be considered as an appendage of property; and is for that reason allowed to bastards which it is not in other countries. But still the aliens are incapable of inheriting or purchasing land estates. The last of these may be granted by letters of denization, but the latter only by an Act of Parliament, as the king can not, nor ever attempted to, give away to a third person the property of another. When one who is a citizen makes a bargain with another which is not allowed by law, the bargain is null and void, and the property of it returns to the proprietor. But a bargain made with an alien is neither void nor voidable; the bargain holds, but as the alien is incapable of property it is siezed by the king. This right he can give up, tho he can not take away the right of another by entituling one to inherit that which otherwise would have been his.

There is one thing more to be observed with regard to alliens, both aliens <?ennemis and aliens> amis, or65 alien enemies and alien friends.—If any number | of aliens make depradations on the country and enter it in a hostile manner, not being authorized by the sovereign they belong to, they can not be tried as traitors. They are not subject to the king or sovereign power and owe no alegiance to him; they can not therefore be dealt with by the laws against treason; they can only be tried by the martiall laws of the country as freebooters or pirates. If they had the direction of a sovereign state who had the power of making peace or war or sending a hostile army, they would then be treatd according to the laws of war. But tho those aliens who commit hostilities on the kingdom can not be tried as traitors against it, yet if an alien friend who has come under the protection of the laws enters into a conspiracy or rebellion against the sovereign of the country he lives in, or corresponds with, encourages, aids, or abbetts the enemies of the country, he is liable to the pains of high treason, which are the greatest of any, as well as a subject. He is considered as equally bound to allegiance and fidelity to the sovereign as the subjects, as he has the same protection and safety from the laws. In the same manner an alien enemy who | takes advantage of the kings proclamation and assurance of safety to those who continue within his dominions, gives any intelligence to the sovereign of his own country, enters into any conspiracy, or is guilty of any other treasonable act, is liable to the pains of treason. And in generall any one who lives under the protection of the laws is bound to the same allegiance as a subject.≡

I comei now to consider the 2d part of publick law, viz the duties of the sovereign towards his subjects and the crimes he may be guil<t>y of against them. This is a question which I can not pretend to answer with such precision as the others. The nature of this branch of public law, as well as that of the law of nations, is such that we can not pretend to such precision in it as in the private laws amongst subjects, or in the other part of publick law which comprehends the duties of subjects to their sovereigns. Both of these have been frequently canvassed, and laws have regulated and courts have fairly examind and settled precedents both with regard to the duty of subject to subject and of the subject to the sovereign. Laws and the proceedings of judges ascertain them; but there | is no court which can try the sovereigns themselves, no authority sovereign to the sovereign, and <?which has> examind and ascertaindj how far the actions of the sovereigns to the subject or of one sovereign to another are justifiable and how far their power extends. The precise limits have been little considered and are very difficult to ascertain to which the power of the sovereign extends. In England the exact boundaries of the kings power have been pretty well known since the Revolution; one can tell exactly what he can do. But then we are to consider that the king is not here the sovereign. The sovereign power [power] is lodged in the king and Parliament together, and no one can tell what they can not do. And in the same manner where the king is the sovereign no one can pretend to ascertain how far this power may go, as in France, Spain, Turky, etc. There are without doubt certain limits, but no one has yet considered them with the same candor and composure as <a> court does the private affairs of individualls. So that one who is to consider this matter must set out anew and upon his own bottom. All disputes of this sort | have been decided by force and violence. If the sovereign got the better of the subjects, then they were condemned as traitors and rebells; and if the subjects have got the better of the sovereign, he is declared to be a tyrant and oppressor not to be endured. Sometimes the decision has been right and sometimes wrong, but they can never be of such weight as the decisions of a cooll and impartial court.—The three branches of the supreme power are now fully established in the hands of the sovereign; but there are still some things which must be unlawful even for the sovereign.k The most necessary branches of thisl power were at first exercised precariously.

The first part of the supreme power which is exercised in society is the federative power. But as I already mentioned66 this is altogether precarious in the beginnings of society. The majority of the state determine with regard to peace and war, but then this binds themselves only; the others are conceived to be at full liberty to carry on the war after the others have concluded peace, or to be at peace with those the others are at war with. I observd too that those who continue the war after the body of the people have made the peace are hardly ever punished, tho those <?are> who do not | engage in the common quarrel. The reason as I said is that the motives or passions which prompt men to make peace are cool and deliberate, whereas those which prompt them to make war are hot and impetuous and hurry men to the avenging themselves on those who will not engage in the revenging the injuries or affronts they have received; and by this means it happens that the minority who desire to continue the war generally act in the same manner as the majority would were they not hindered by certain prudential reasons. This earliest branch of the supreme <power> is therefore at first exercised precariously, tho now it is altogether absolute, and one who continues the war after the nation<s> have made peace is liable to be punished not only by the country against whom the injury was committed but also by the laws of his own country; and in the same manner all communication and intercourse betwixt the subjects is stopped as soon as war is declared betwixt the two nations. The judiciall power was also | originally altogether precarious, and was in order of time much later of being established than the federative or executive power; and tho in many countries we cant discover a time when the sovereign had not the power of making peace and war, yet there are none in which we cannot disco<v>er certain remains and marks which plainly point out to us that this power also was precarious. There was a time when the judge was considered merely as a mediator in criminall cases and an arbiter voluntarily chosen in civill ones; tho’ they have at length become absolute, so that whatever they determine must be adhered to, be it right or be it wrong, and no reference can be made from their sentence. The judges at first did not require the parties to come before them and submit to their sentence. They might instead of putting themselves on their judge and their country put themselves to the judicial combat, the triall by fire ordial or by boiling water, etc., and thus evade the sentence of the judge. Nor were they bound to adhere to the sentence of the judge. They could not | indeed fight their opponents after the sentence was passed, but they might then fight their judge if they did not like his sentence,67 and their quarrell was then turned upon him. All that was done by the sentence was to put it in their power to agree to the decision if it seemed equitable. For they had it still in their power to draw back and falsify the sentence of the judge in the same way as they had before done the claim of the opponents. The judge at this time decided all affronts or contempts done to his authority by force of arms. They asked the dissobedient persons why they did not obey their orders and then challenged and fought them. This sufficiently shews that the judicial power was then very precarious, and that mankind thought themselves bound neither to submit to the authority of the judge in appearing before him nor in adhering to his sentence; but now their authority is so established that no one complains, whatever injustice he may think he suffers, as they are absolute and without appeal. All resistance is unlawfull, and tho perhaps it is naturall enough to make resistance yet it is altogether prohibited,m in the same progress as that by which it is now unlawfull either to | continue in war or to continue correspondence after war with the enemy, after the publick have agreed to the discontinuance of war or peace.

The legislative power also comes in time to be absolute.—There is at first in the ruder periods of society no legislative power, nor for some considerable time. Tho one was ready to stand by the sentence of an arbiter chosen perhaps out of the whole body of the people, as the heads ofn families, yet they would be altogether unwilling they should lay down laws for their conduct. He has no notion of any one having this power over him. No more than a member of a club will submit himself to the rules they may lay down, no more would a savage when he agrees to be a member of a society [would] thinko that he was bound to obey all their regulations.—The thing which has given occasion to the establishment of laws has always been the generall or partiall institution of judges. When any nation has retaind its liberty, and property has been established amongst them, judges must soon be appointed to determine the many disputes which must occurr concerning it. A judge will to such an early nation appear very terrible. A judge is now rather a comfortable than a terrible | sight as he is the source of our liberty, our independence, and our security. Savages do not feel the want of judges; and tho they must be liable to many inconveniencies on that account, yet one who has been accustomed to trust to the strength of his own arm and his own manly prowess is confident and bold to trust to it in future occasions. But for him to think that whenever he is guilty of any trespass, as he knows he has often been, there is one who has the power to call him to trial, and if the fact is proved against him to condemn him to any punishment he thinks proper, appears top be altogether terrible and unsufferable. Savages of all things hate a judge set over their heads. Of this the story of Varus recorded by Tacitus68 is a striking instance. By all we can learn of him he appears to have been a most amiable man and of very gentle manners, so that we now can hardly conceive how it should have happened that he should have incenced the Germans to such a height. That which incensed them more than all the tyranny, extorsion, and oppression of the Romans was the regular courts of justice which Varus established every | where in the country, who tried and punished all offences with the same rigour and severity as had been customary at the Roman courts. This it was which provoked the Germans and in revenge of which they massacred the whole Roman army. The courts of justice when established appear to a rude people to have an authority altogether insufferable; and at the sameq time when property is considerably advanced judges can not be wanted. The judge is necessary and yet is of all things the most terrible. What shall be done in this case? The only way is to establish laws and rules which may asertain his conduct; {This was the case at Athens, Sparta, and other placesr where the people demanded laws to regulate the conduct of the judge} for when it is known in what manner he is to proceed the terror will be in a great measure removed. Laws are in this manner posterior to the establishment of judges. At the first establishment of judges there are no laws; every one trusts to the naturall feeling of justice he has in his own breast and expects to find in others. Were laws to be established in the beginnings of society prior to the judges, they would then be a restraint upon liberty, but when established after them they extent69 and secure <?it>, | as they do not ascertain or restrain the actions of private persons so much as the power and conduct of the judge over the people. In this manner the legislative power is established, which in time, as well as the others, grows up to be absolute; but notwithstanding that the subjects are bound to obedienc<e> to all these powers there are some cases in which they may break thro them[e].

[64 ]i.149 ff. above.

[h]Numbers written above the words ‘will’ and ‘memory’ indicate that their order was intended to be reversed

[65 ]Reading of last two words doubtful. Cf. LJ(B) 90, below.

[i]‘2d’ is interlined above ‘come’

[j]Illegible word or words deleted

[k]‘to’ deleted

[l]‘federative’ deleted

[66 ]iv.13–14, 19–20 above.

[67 ]Montesquieu, XXVIII.27.

[m]Illegible word deleted

[n]‘the’ deleted

[o]Replaces ‘that he’

[p]‘him’ deleted

[68 ]Not by Tacitus but by Florus, Epitome Rerum Romanarum, II.30.31 ff. Montesquieu, XIX.2, also wrongly cites Tacitus in this regard.

[q]‘point’ deleted

[r]Reading doubtful

[69 ]Sic. Presumably ‘extend’ was intended.