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Tuesday March. 22. - 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.


Tuesday March. 22.

In yesterdays lecture I begun to explain the rights of the subject against the sovereign; that is, what are the limits of the sovereign power, and in what cases it is proper for the subjects to make resistance.—At fir<s>t all the branches of this power weres extremely limited and held precariously; even the federative power was under a precarious tenure. The judiciall power was no less precarious, and the legislative power was at first so far from being absolute that there was hardly any such thing. The growth of the judicial power was what gave occasion to the institution of a legislative power, as that first made them think of restraining the power of judicial officers. Laws instituted at the beginning of a society would never be agreed to; they would appear to be the greatest | restraint imaginable on the liberty and security of the subjects; but afterwards they evidently appear to tend to the security of the people by restrainingt the arbitrary power of the judges, who are then become absolute or nearly so. The legislative power thus constituted must from the very nature and design of it be absolute from the moment of its institution; and the other powers in time become so also. There is now no power of resistance, whether the sentence of the judge appear to the person to be just or not; and in the same manner there is no remedy against a law which appears to be unjust unless it be repealed; private persons must obey and judges give sentence agreably to it.—Those persons who are entrusted with the severall parts of the supreme power in the constitution must be relied on without hesitation. The authority of the Parliament in some things, of the king and Parliament in others, and of the king alone in some, are incontestible, and if they act amiss there is no regular right of resisting them as sovereigns in any way. So that the limits of the sovereign power are extremely doubtfull. The limits of the kings power are in this country well enough known, but the king is far from having the sovereign power. The legislative power he shares with the Parliament, | who have now almost the whole of it. He is said indeed to be the fountain of justice; which is indeed so far true that all the ordinary judges are of his appointment; but then these judges are intirely independent of him after their constitution; nor has he in his own person any judicial power. And besides this the House of Lords, who are the supreme judges, are altogether independent on him either with respect to their appointment or their proceedings. He has indeed the whole of executive or federative power; but as the people have a power of impeaching any of his ministers who have given him bad advice, this too is somewhat limited, tho the king and his ministers have the disposall of peace and war in all ordinary cases. There is no doubt then but the power of the king may be resisted; but the question is, when is it lawfull or allowable to resist the power of the king and Parliament. They would never have any thoughts of making any laws which should tell us that, when they went beyond such and such limits, theu people were not bound to obey them but might resist. That they should do this can not be imagined. In whatever place | there is a sovereign, from the very nature of things the power must be absolute; and no power regularly established of calling the sovereign to account, as the sovereign has an undoubted title to the obedience of the subjects. The foundation of this obedience of the subjects has been often controverted. But whatever it be, there are certain limits to the power of the sovereign, which if he exceeds, the subject may with justice make resistance.

If we shall suppose with the generallity of writers on this subject (as Locke and Sidney, etc.)70 that the government owes its origin to a voluntary contract in which the people gave over the sovereign power in its different parts, the judiciall or the legislative, to another body, and so of the executive, and promised obedience and submission to this power; even on this submission, which from what has been already explaind concerning the progressv of government can hardly be supposed to have ever been the case, even here the subjects must have a right of resistance. The power of the sovereign is in this case a trust reposed in him by the people; he is the great magistrate to whom they have promised obedience as long | as he rules with a midd<l>ingw degree of equity; but when he has abused this power in a very violent manner, for it is only a violent abuse of it which can call for such violent measures, then undoubtedly he may be resisted as he is guilty of a breach of the trust reposed in him.—When he ab[s]uses his power and does not exertx it for the benefit of the people for whose advantage it was given him, but turns it to the aggrandizing and exalting of himself, then he may be turned out of his office; in the same manner as a tutor who abuses to his own interest the goods of his pupil committed to his care may be turned out and another put in his room. But indeed this does not seem to be the foundation of the powery of the sovereign and the obedience of the people; and supposing that it had originally been the foundation of the authority of the sovereign it can not now be so; and nevertheless we find that in all ordinary cases they are bound to obey the king. Besides, this doctrine of obedience as founded on contract is confined to Britain and has never been heard of in any other country, so that there it can not be the foundation of the obedience of the people; and even here it can have | influence with a very small part of the people, such as have read Locke, etc. The far greater part have no notion of it, and nevertheless they have the same notion of the obedience due to the sovereign power, which can not proceed from any notion of contract.—Again, if the first members of the society had entered into a contract with certain persons to whom they entrusted the sovereign power, their obedience would indeed have been founded on a contract in a great measure; but this can not be the case with their posterity; they have entered into no such contract.71 The contract of ones predecessors never binds one merely because it was his. The heir indeed is bound to pay the debts contracted by his predecessors to whom he has fallen heir, not because their promise is any way binding on him but because by possessing their money he would be locupletior factus aliena jactura.72 One is not bound to personall service promised by his ancestors; their promise has no influence upon him. But if the whole hire or price of his fathers service has been paid beforehand, then he will be bound for the reason above mentiond to make restitution of the value of the part not performed; | and so in all other cases. And what makes this entirely evident is that one is bound for the debts of his predecessors no more than what the estate left by them will amount to, altho it be greatly less; which overturns the old fancy of the heirs being eadem persona cum defuncto.—But to this they may answerz that tho one is not bound by the contract of his ancestors, nor here by any express deed of his own, yet he is bound by his [bound by his] own tacit promise. His staying in the country shews that he inclines to submit to the government established in it.73 Hence, say they, every one who stays in the country must submit to the government. But this is a very fallacious argument. A very ingenious gentleman74 exposed the deceit of it very clearly by the following example. If one who was carried on board of a ship when asleep was to be told that having continued afterwards on board he was bound to submit to the rules of the crew, any one would see the unreasonableness of it, as he was absolutely forced to stay on board. He had not his coming on board at his own choice, and after he | was on board it was folly to tell him he might have gone away when the ocean surrounded him on all hands. Such is the case with every subject of the state. The<y> came into the world without having the place of their birth of their own choosing, so that we may say they came asleep into the country; nor is it in the power of the greater part to leave the country without the greatest inconveniencies. So that there is here no tacit consent of the subjects. They have no idea of it, so that it can not be the foundation of their obedience.—Again, if this was the case one by leaving the country would free himself from all duty to the government; and yet we see that all nations claim the power of calling back their subjects either by proclamation or by a private mandate (as a writ of the privy seal<)>, and punish all those who do not obey as traitors; and in generall every one who is born under the government is considered as being bound to submit to it. Again, of all the cases where one is bound to submit to the government that of an alien comes the nearest to a voluntary or tacit contract.75 He comes into the country not asleep but with his eyes open, inlist<s>a himself under the protection of thisb government preferably to all others; and if the | principle of allegiance and obedience is ever founded on contract it must be in this case. Yet we see that aliens have always been suspected by the government, and have always been laid under great dissabilities of different sorts and never have any trust or employment in the state; and yet they have shewn more strong and evident signs of an inclination to submit to the government than any others; and the obligations they are under to obedience are to those of a native subject as that of one who voluntarily enlists into the fleet compared to that of a pressed man. So that upon the whole this obedien<ce> which every one thinks is due to the sovereign does not arise from any notion of a contract.

This principle or duty of allegiance seems to be founded on two principles. <The> 1st we may call the principle of authority, and the 2d the principall of common or generall interest.—With regard to the principle of authority, we see that every one naturally has a disposition to respect an established authority and superiority in others, whatever they be. The young respect the old, children respect their parents, and in generall the weak respect those who excell in power and strength. Whatever be the | foundation of government this has a great effect. One is born and bred up under the authority of the magistrates; he finds them demanding the obedience of all those about him and he finds that they always submit to their authority; he finds they are far above him in the power they possess in the state; he sees they expect his obedience and he sees also the propriety of obeying and the unreasonableness of <dis>obeying. They have a naturall superiority over him; they have more followers who are ready to support their authority over the disobedient. There is the same propriety in submitting to them as to a father, as all of those in authority are either naturally or by the will of the state who lend them their power placed far above you.— —

With regard to the other principle, every one sees that the magistrates not only support the government in generall but the security and independency of each individuall, and they see that this security can not be attained without a regular government. Every one therefor thinks it most advisable to submitt to the established government, tho perhaps he may think that it is not disposed | in the best manner possible; and this too is strengthend by the naturall modesty of mankind, who are not generally inclined to think they have a title to dispute the authority of those above them. Each of these principles takes place in some degree in every government, tho one is generally predominant. The principle of authority is that which chiefly prevails in a monarchy. Respect and deference to the monarchy, the idea they have that there is a sort of sinfullness or impiety in dissobedience, and the duty they owe to him, are what chiefly influence them. No doubt but the expediency of such obedience may also have its effect on some persons.—In a republican government, particularly in a democraticall one, <?utility> is that which chiefly, nay allmost entirely, occasions the obedience of the subject. He feels and is taught from his childhood to feel the excellen<c>y of the government he lives under; how much more desirable it is to have the affairs of the state under the direction of the whole than that it should be confined to one person; that in the one case it can hardly ever be abused and in the other it can hardly miss of being so. This recommends the government to the people, who are all bread to understand it. In such governments the principle of authority is as it were in some measure | prescribed.76 A successfull leader, obtaining the good graces of the people, will get every thing he can ask from them; they know <no> bounds in their affections. Such persons would therefore be very dangerous in the state and might overturn with ease the established government. This principle is therefore discouraged, as it is in the interest of the state that no one should be much distinguished above the others. However even here the principle of authority has some influence in procuring the obedience of the subjects. This respect is not indeed paid to persons, the naturall objects of it, but to offices.—Any one who was chosen consul at Rome had great honour and respect paid him, tho inferior to that of a hereditary sovereign. This respect which is paid to the persons in power in every country makes the wheels of the government go on more smoothly.—In an aristocracy the principle of authority is the leading one, tho there is no doubt but the other has also some effect.

In Britain the sovereign power is partly entrusted to the king, partly to the people, and partly to the nobles. As it is therefore partly monarchi|call the principle of authority takes place in a considerable degree, as also because there is some small part of the government aristocraticall. But as the government is in great part democraticall, by the influence of the House of Commons, the principle of utility is also found in it. Some persons are more directed by the one and others by the other. And to these different principles were owing the distinctions betwixt Whig and Tory. The principle of authority is that of the Tories, as that of utility is followd by the Whigs. They say that as the government was established not for the benefit of the rulers but of the people, and that therefore it is proper to resist their power whenever they abuse it in a great degree and turn it to their own advantages, and that they have no authority unless what they derive from the people. This is their principle, tho they do not explain it very distinctly, endeavouring to reconcile it to the notion of a contract. The Torys again go on the principle of authority, tho they also make still more confused work of it on the supposition of a contract. | The Tories pretend that the kingly authority is ofc divine institution, that the kings derive their authority immediately from God, and that therefore it must be an impiety to resist him; that he has as it were a patriarchall authority and is a sort of father to his people, and as it is unlawfull for children in any case to rebell against their father, so is it for subjects to rebell against their sovereigns.77 These principles affect people of different casts. The bustling, spirited, active folks, who can’t brook oppression and are constantly endeavouring to advance themselves, naturally join in with the democraticall part of the constitution and favour the principle of utility only, that is, the Whig interest. The calm, contented folks of no great spirit and abundant fortunes which they want to enjoy at their own ease, and dont want to be disturbd nor to disturb others, as naturally join with the Tories and found their obedience on the less generous principle of utility.78 But whatever be the foundation of the | obedience of the subjects, there are some things which it is unlawfull for the sovereignd to attempt and entitle the subjects to make resistance. Some certain degrees of absurdity and outrage, either in a single person or an assembly, will entirely destroy all their claim of obedience. An assembly indeed is less apt to fall into this absurdity than a single person, for tho there may be the greatest difference betwixt the behaviour of one man and another, an assembly of 4 or 500 taken out of the people will be much the same as any other 500 and will be no more liable to err. Yet even here it will sometimes happen, and from this it was that all the old aristocracies became democracies, the council of the nobles having incensed the people against them.—There can be no doubt that one by a certain degree of absurdity and outrage in his conduct may lose his authority altogether. All agree that lunacy, nonnage,e79 or ideotism entirely destroy the | authority of a prince. Now there aref degrees of absurdity and impropriety in the conduct of a sovereign which, tho they do not equall that of lunacy or ideotism, entitle the subjects to resistance in the eyes of every unprejudiced person. Who is there that in reading the Roman history does not acknowledge that the conduct of Nero, Caligula, or Domitian was such as entirely took away all authority from them? No one but must enter into the designs of the people, go along with them in all their plots and conspiracys to turn them out, is rejoiced at their success, and grieves when they fail. So that even on this principle resistance must be permitted. In the principle of utility there can be still less doubt but it is lawfull. If the good of the publick is that on which the obedience <?>, then this obedience is no longer due than it is usefull; and wherever the confusion which must arise on an overthrow of the | established govt. is less than the mischief of allowing it to continue, then resistance is proper and allowable. And that such cases may occur their can be no doubt. Absurdity and impropriety of conduct and great perverseness destroy obedience, whether it be due from authority or the sense of the common good.

[s]‘all’ deleted

[t]Replaces ‘securing’

[u]Illegible word deleted

[70 ]Locke, Civil Government; Algernon Sidney, Discourses Concerning Government (1698).

[v]Replaces ‘power’

[w]The last two words replace ‘tollerable’

[x]Reading doubtful

[y]‘of’ deleted

[71 ]Cf. Hume, ‘Of the Original Contract’, Essays, I.447.

[72 ]‘Enriched at the expense of another’.

[z]‘perhaps’ deleted

[73 ]Cf. Locke, Civil Government, § 119.

[74 ]Hume, ‘Of the Original Contract’, Essays, I.451: ‘We may as well assert, that a man, by remaining in a vessel, freely consents to the dominion of the master; though he was carried on board while asleep, and must leap into the ocean, and perish, the moment he leaves her.’

[75 ]Cf. Hume, ‘Of the Original Contract’, Essays, I.452.

[a]Reading doubtful

[b]Reading doubtful

[76 ]Sic. Presumably ‘proscribed’ was intended.

[c]‘a’ deleted

[77 ]In TMS VI.ii.2.16 (a passage written for edition 6 of 1790) Smith writes with approval of ‘the divine maxim of Plato, never to use violence to [one’s] country no more than to his parents’.

[78 ]Sic. Presumably ‘authority’ was intended. Cf. Hume, ‘Of the Parties of Great Britain’, Essays, I.133–4.

[d]Replaces ‘subject’

[e]Numbers written above the last two words indicate that their order was intended to be reversed

[79 ]i.e. non–age or minority.

[f]Illegible word or words deleted