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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).

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LECTURES ON JURISPRUDENCE

REPORT DATED 1766

Juris Prudence or Notes from the Lectures on Justice, Police, Revenue, and Arms delivered in the University of Glasgow

by Adam Smith Professor of Moral Philosophy.

mdcclxvi

| Juris Prudence

INTRODUCTION

Jurisprudence is that science which inquires into the general principles which ought to be the foundation of the laws of all nations. Grotius seems to have been the first who attempted to give the world any thing like a regular system of natural jurisprudence, and his treatise on the laws of war and peace, with all its imperfections, is perhaps at this day the most compleat work on this subject.1 It is a sort of casuistical book for sovereigns and states determining in what cases war may justly be made and how far it may be carried on. As states have no common sovereign and are with respect to one another in a state of nature, war is their only method of redressing injuries. He determines war to be lawfull in every case where the state receives an injury which would be redress’d | by an equitable civil magistrate.2 This naturaly led him to inquire into the constitution of states, and the principles of civil laws; into the rights of sovereigns and subjects; into the nature of crimes, contracts, property, and whatever else was the object of law, so that the two first books of his treatise, which are upon this subject, are a compleat system of jurisprudence.

The next writer of note after Grotius was Mr. Hobbes. He had conceived an utter abhorrence of the ecclesiastics; and the bigottry of his times gave him occasion to think that the subjection of the consciences of men to ecclesiastic authority was the cause of the dissensions and civil wars that happened in England during the times of Charles the 1st and of Cromwell. In opposition to them he endeavoured to establish a system of morals by which the consciences of men might be subjected to the civil power, and which represented the will of the magistrate as the only proper rule of conduct. Before the establishment of civil society mankind according to him were in a state of war; and in order to avoid the ills of a natural state, men enter’d into contract to obey one common sovereign who should determine all disputes. Obedience to his will according to him constituted civil government, | without which there could be no virtue, and consequently it too was the foundation and essence of virtue.

The divines thought themselves obliged to oppose this pernicious doctrine concerning virtue, and attacked it by endeavouring to shew that a state of nature was not a state of war but that society might subsist, tho’ not in so harmonious a manner, without civil institutions. They endeavoured to shew that man in this state has certain rights belonging to him, such as a right to his body, to the fruits of his labour, and the fullfilling of contracts. With this design Puffendorf wrote his large treatise.3 The sole intention of the first part of it is to confute Hobbes, tho’ it in reality serves no purpose to treat of the laws which would take place in a state of nature, or by what means succession to property was carried on, as there is no such state existing.

The next who wrote on this subject was the Baron de Cocceii, a Prussian. | There are five volumes in folio of his works published,4 many of which are very ingenious and distinct, especially those which treat of laws. In the last volume he gives an account of some German systems.

Besides these there are no systems of note upon this subject.

Remainder of 4 left blank in MS.

| Jurisprudence is the theory of the general principles of law and government.

The four great objects of law are Justice, Police, Revenue, and Arms.

The object of Justice is the security from injury, and it is the foundation of civil government.

The objects of Police are the cheapness of commodities, public security, and cleanliness, if the two last were not too minute for a lecture of this kind. Under this head we will consider the opulence of a state.

It is likewise necessary that the magistrate who bestows his time and labour in the business of the state should be compensated for it. For this purpose and for defraying the expences of government some fund must be raised. Hence the origine of Revenue. The subject of consideration under this head will be the proper means of levying revenue, which must come from the people by taxes, duties, etca. In general whatever revenue can be raised most insensibly from the people ought to be preferr’d, and in the sequel it is proposed to be shewn how far the laws of Brittain and of other European | nations are calculated for this purpose.

As the best police cannot give security unless the government can defend themselves from forreign injuries and attacks, the fourth thing appointed by law is for this purpose, and under this head will be shewn the different species of Arms with their advantages and dissadvantages, the constitution of standing armies, militias, etca.

After these will be considered the laws of nations, under which are comprehended the demands which one independent society may have upon another, the priviledges of aliens, and proper grounds for making war.

Part 1st. Of Justice

The end of justice is to secure from injury. A man may be injured in several respects.

1st, as a man

2^dly, as a member of a family

3^dly, as a member of a state.

As a man, he may be injured in his body, reputation, or estate.

As a member of a family, he may be injured as a father, as a son, as a husband or wife, as a master or servant, as a guardian or pupil. | For the two last are to be considered in a family relation, till such time as the pupil can take care of himself.

As a member of a state, a magistrate may be injured by dissobedience or a subject by oppression, etca.

A man may be injured 1st, in his body by wounding, maiming, murthering, or by infringing his liberty.

2^dly, in his reputation, either by falsely representing him as a proper object of resentment or punishment as by calling him a thief or robber, or by depreciating his real worth, and endeavouring to degrade him below the level of his profession. A physician’s character is injured when we endeavour to perswade the world he kills his patients instead of curing them, for by such a report he loses his business. We do not however injure a man when we do not give him all the praise that is due to his merit. We do not injure Sir Isaac Newton or Mr. Pope, when we say that Sir Isaac was no better philosopher than Descartes or that Mr. Pope was no better poet than the ordinary ones of his own time. By these expressions we do not bestow on them all the praise that they deserve, yet we do them no injury, for we do not throw them below the ordinary rank of men in their own professions. | These rights which a man has to the preservation of his body and reputation from injury are called natural. Or as the civilians express them iura hominum naturalia.

3^dly, a man may be injured in his estate. His rights to his estate are called acquired or iura adventitia and are of two kinds, real and personal.

A real right is that whose object is a real thing and which can be claimed a quocumque possessore. Such are all possessions, houses, furniture.

Personal rights are such as can be claimed by a law–suit from a particular person, but not a quocumque possessore. Such are all debts and contracts, the payment or performance of which can be demanded only from one person. If I buy a horse and have him delivered to me, tho’ the former owner sell him to another, I can claim him a quocumque possessore; but if he was not delivered to me, I can only pursue the seller.

Real rights are of four kinds, Property, Servitudes, Pledges, and Exclusive Priviledges.

Property is our possessions of every kind which if any way lost, or taken from us by stealth or violence, may be redemanded a quocumque possessore.

| Servitudes are burthens upon the property of another. Thus I may have a liberty of passing thro’ a field belonging to another which lyes between me and the high way, or if my neighbour have plenty of water in his fields and I have none in mine for my cattle, I may have a right to drive them to his. Such burthens on the property of another are called servitudes. These rights were originally personal, but the trouble and expence of numerous lawsuits in order to get possession of them, when the adjacent property which was burthened with them passed thro’ a number of hands, induced legislators to make them real, and claimable a quocumque possessore. Afterwards the property was transferred with these servitudes upon it.

Pledges, which include all pawns and mortgages, are securities for something else to which we have a right. The laws of most civilized nations have considered them as real rights, and give a [a] liberty to claim them as such.

Exclusive priviledges are such as that of a book–seller to vend a book for a certain number of years, and to hinder any other person from doing it during that period. These rights are for the most part creatures of the civil law, tho’ some few of them are natural, | as in a state of hunters even before the origin of civil government if a man has started a hare and pursued her for sometime, he has an exclusive priviledge to hunt her, by which he can hinder any other to come in upon her with a fresh pack of hounds.

An heir has also an exclusive priviledge of hindering any person to take possession of the inheritance left him while he is deliberating whither or not it will be for his interest to take possession of it and pay off the debts with which it is burthened.

Personal rights are of three kinds as they arise from Contract, Quasi Contract, or Delinquencey.

The foundation of contract is the reasonable expectation which the person who promises raises in the person to whom he binds himself; of which the satisfaction may be extorted by force.

Quasi contract is the right which one has to a compensation for necessary trouble and expence about another man’s affairs. If a person finds a watch in the high–way he has a claim to a reward and to the defraying of his expences in finding out the owner. If a man lend me a sum of money5 he has a right not only to the sum, but to interest also.

| Delinquencey is founded upon damage done to any person, whither thro’ malice or culpable negligence. A person has a right to claim these only from a certain person.

The objects of these seven rights make up the whole of a man’s estate.

The origin of natural rights is quite evident. That a person has a right to have his body free from injury, and his liberty free from infringement unless there be a proper cause, no body doubts. But acquired rights such as property require more explanation. Property and civil government very much depend on one another. The preservation of property and the inequality of possession first formed it, and the state of property must always vary with the form of government. The civilians begin with considering government and then treat of property and other rights. Others6 who have written on this subject begin with the latter and then consider family and civil government. There are several advantages peculiar to each of these methods, tho’ that of the civil law seems upon the whole preferable.

| Of Public Jurisprudence

There are two principles which induce men to enter into a civil society, which we shall call the principles of authority and utility. At the head of every small society or association of men we find a person of superiour abilities; in a warlike society he is a man of superiour strength, and in a polished one of superior mental capacity. Age and a long possession of power have also a tendencey to strengthen authority. Age is naturaly in our imagination connected with wisdom and experience; and a continuance in power bestows a kind of right to the exercise of it. But superior wealth still more than any of these qualities contributes to conferr authority. This proceeds not from any dependance that the poor have upon the rich, for in general the poor are independent, and support themselves by their labour, yet tho’ they expect no benefit from them they have a strong propensity to pay them respect. This principle is fully explained in the Theory of moral Sentiments, where it is shewn that it arises from our sympathy with our superiours being greater | than that with our equals or inferiors: we admire their happy situation, enter into it with pleasure, and endeavour to promote it.

Among the great, as superior abilities of body and mind are not so easily judged of by others, it is more convenient, as it is more common, to give the preference to riches. It is evident that an old family, that is, one which has been long distinguished, by it’s wealth has more authority than any other. An upstart is always dissagreable; we envy his superiority over us7 and think ourselves <as> well entitled to wealth as he. If I am told that a man’s grandfather was very poor and dependent on my family, I will grudge very much to see his grandson in a station above me and will not be much disposed to submit to his authority. Superiour age, superior abilities of body and of mind, ancient family, and superiour wealth seem to be the four things that give one man authority over another.

The second principle which induces men to obey the civil magistrate is utility. Every one is sensible of the necessity of this principle to preserve justice and peace in the society. | By civil institutions, the poorest may get redress of injuries from the wealthiest and most powerfull, and tho’ there may be some irregularities in particular cases, as undoubtedly there are, yet we submit to them to avoid greater evils. It is the sense of public utility, more than of private, which influences men to obedience. It may sometimes be for my interest to dissobey, and to wish government overturned. But I am sensible that other men are of a different opinion from me and would not assist me in the enterprize. I therefore submit to it’s decision for the good of the whole.

If government has been of a long standing in a country and if it be supported by proper revenues, and be at the same time in the hands of a man of great abilities, authority is then in perfection.

In all governments both these principles take place in some degree, but in a monarchy the principle of authority prevails, and in a democracey that of utility. In Brittain, which is a mixed government, the faction’s formed sometime ago under the names of Whig and Tory were influenced by these principles; the former submitted to government on account of it’s utility and the advantages which they | derived from it, while the latter pretended that it was of divine institution, and to offend against it was equally criminal as for a child to rebell against it’s parent. Men in general follow these principles according to their natural dispositions. In a man of a bold, daring, and bustling turn the principle of utility is predominant, and a peaceable, easy turn of mind usually is pleased with a tame submission to superiority.

It has been a common doctrine in this country that contract is the foundation of allegeance to the civil magistrate. But that this is not the case will appear from the following reasons.

In the first place, the doctrine of an original contract is peculiar to Great Brittain, yet government takes place where it was never thought of, which is even the case with the greater part of people in this country. Ask a common porter or day–labourer why he obeys the civil magistrate, he will tell you that it is right to do so, that he sees others do it, that he would be punished if he refused to do it, or perhaps that it is a sin against God not to do it. But you will never hear him mention a contract as the foundation of his obedience.

2^dly, when certain powers of government were | at first entrusted to certain persons upon certain conditions, it is true that the obedience of these who entrusted it might be founded on a contract, but their posterity have nothing to do with it, they are not conscious of it, and therefore cannot be bound by it. It may indeed be said that by remaining in the country you tacitly consent to the contract and are bound by it. But how can you avoid staying in it? You were not consulted whether you should be born in it or not. And how can you get out of it? Most people know no other language nor country, are poor, and obliged to stay not far from the place where they were born to labour for a subsistance. They cannot therefore be said to give any consent to a contract, tho’ they may have the strongest sense of obedience. To say that by staying in a country a man agrees to a contract of obedience to government, is just the same with carrying a man into a ship and after he is at a distance from land to tell him that by being in the shop8 he has contracted to obey the master. The foundation of a duty cannot be a principle with which mankind is entirely unacquainted. They must have some idea however confused of the principle upon which they act.

| But again, upon the supposition of an original contract, by leaving the state you expressly declare that you will no longer continue a subject of it and are freed from the obligation which you owed it, yet every state claims it’s own subjects and punishes them for such practices, which would be the highest injustice if their living in the country implies a consent to a former agreement. Again, if there be such a thing as an original contract, aliens who come into a country preferring it to others give the most express consent to it, yet a state always suspects aliens as retaining a prejudice in favour of their mother country, and they are never so much depended upon as freeborn subjects. So much is the English law influenced by this principle, that no alien can hold a place under the government, even tho’ he should be naturalized by Act of Parliament.9 Besides if such a contract were supposed, why should the state require an oath of allegiance whenever a man enters on any office, for if they supposed a previous contract, what occasion is there for renewing it. Breach of allegiance or high treason is a much greater crime and more severely punished in all nations than breach of contract, in which no more but fullfillment is required. They must therefore be on a different footing. | The less can by no means involve in it the greater contract. Contract is not therefore the principle of obedience to civil government, but the principles of authority and utility formerly explained.

We shall now endeavour to explain the nature of government, it’s different forms, what circumstances gave occasion for it, and by what it is maintained.

The forms of government however various may not improperly be reduced to these three, Monarchical, Aristocratical, and Democratical. These may be blended in a great number of ways, and we usually denominate the government from that one which prevails.

Monarchical government is where the supreme power and authority is vested in one, who can do what he pleases, make peace and war, impose taxes, and the like.

Aristocratical government is where a certain order of people in the state, either of the richest, or of certain families, have it in their power to choose magistrates, who are to have the management of the state.

Democratical government is where the management of affaires belongs to the whole body of the people together.

| These two last forms may be called republican, and then the division of government is into monarchical and republican.

To acquire proper notions of government it is necessary to consider the first form of it, and observe how the other forms arose out of it.

In a nation of hunters there is properly no government at all. The society consists of a few independent families, who live in the same village and speak the same language, and have agreed among themselves to keep together for their mutual safety. But they have no authority one over another. The whole society interests itself in any offence. If possible they make it up between the parties, if not they banish from their society, kill, or deliver up to the resentment of the injured, him who has committed the crime. But this is no regular government. For tho’ there may be some among them who are much respected, and have great influence in their determinations, yet he never can do any thing without the consent of the whole.

Thus among hunters there is no regular government; they live according to the laws of nature.

| The appropriation of herds and flocks, which introduced an inequality of fortune, was that which first gave rise to regular government. Till there be property there can be no government, the very end of which is to secure wealth, and to defend the rich from the poor. In this age of shepherds if one man possessed 500 oxen, and another had none at all, unless there were some government to secure them to him, he would not be allowed to possess them. This inequality of fortune, making a distinction between the rich and the poor, gave the former much influence over the latter, for they who had no flocks or herds must have depended on those who had them, because they could not now gain a subsistence from hunting as the rich had made the game, now become tame, their own property. They therefore who had appropriated a number of flocks and herds, necessarily came to have great influence over the rest; and accordingly we find in the Old Testament that Abraham, Lot, and the other patriarchs were like little petty princes. It is to <be> observed that this inequality of fortune in a nation of shepherds occasioned greater influence than in any period after that. Even at present, a man may spend a great estate | and yet acquire no dependents. Arts and manufactures are increased by it, but it may make very few persons dependent. In a nation of shepherds it is quite otherways. They have no possible means of spending their property, having no domestic luxury, but by giving it in presants to the poor, and by this means they attain such influence over them as to make them in a manner their slaves.

We come now to explain how one man came to have more authority than the rest and how chieftans were introduced. A nation consists of many families who have met together and agreed to live with one another. At their public meetings there will always be one of superiour influence to the rest, who will in a great measure direct and govern their resolutions, which is all the authority of a chieftan in a barbarous country. As the chieftan is the leader of the nation, his son naturaly becomes the chief of the young people, and on the death of his father succeeds to his authority. Thus chieftanship becomes hereditary. This power of chieftanship comes in the progress of society to be increased by a variety of circumstances. The number of presants which he receives encrease his fortune | and consequently his authority. For amongst barbarous nations no body goes to the chieftan, or makes any application for his interest, without something in his hand. In a civilized nation the man who gives the presant is superior to the person who receives it. But in a barbarous nation the case is directly opposite.

We shall now consider the different powers which naturaly belong to government, how they are distributed, and what is their progress in the first periods of society.

The powers of government are three, to wit, the Legislative, which makes laws for the public good. The Judicial, or that which obliges private persons to obey these laws, and punishes those who dissobey. The Executive, or as some call it, the Federal power, to which belongs the making war and peace.

All these powers in the original form of government belonged to the whole body of the people. It was indeed long before the legislative power was introduced, as it is the highest exertion of government to make laws and lay down rules | to bind not only ourselves, but also our posterity, and those who never gave any consent to the making them. As for the judicial power, when two persons quarrell’d between themselves the whole society naturaly interposed, and when they could not make up matters turned them out of the society. During this early age crimes were few, and it was long before the punishment was made equal to the crime.

Cowardice and treason were the first crimes punished. For cowardice among hunters is considered as treason, because when they went out in small numbers, if their enemy attacked them, and some of their party deserted them, the rest might suffer by it, and therefore they who deserted were punished for treason.

The priest generally inflicted the punishment as it were by the command of the gods, so weak at that time was government. The power of making peace and war in like manner belonged to the people, and all the heads of families were consulted about it.

Tho’ the judicial power which concerns individuals was long precarious, the society first interposing as friends, and then as arbitrators, | the executive power came very soon to be exerted absolutely. When any private quarrell happens concerning the property of this cow, or of that ox, society is not immediately concerned. But it is deeply interested in making peace and war. In the age of shepherds this power is absolutely exerted. In Great Brittain we can observe vestiges of the precariousness of the judicial power, but none of the executive. When a criminal was brought to trial, he was asked how he would chuse that his cause should be decided, whither by combat, the ordeal trial, or the laws of his country. The society only obliged him not to disturb them in the decision. In England the question still remains, tho’ the answer is not now arbitrary. It was very common in the ruder ages to demand a trial by dipping their hand in boiling water, by means of which almost every one was found innocent, tho’ now scarce any one would escape by this means. When people were constantly exposed to the weather boiling water could have little effect upon them, tho’ now, when we are quite covered, it must have a contrary effect. | This choice of trial shews the weakness of the judicial laws. We find that the judicial combat continued in England as late as the days of Q. Elizabeth. It has now worn out gradually and insensibly, without so much as a law or a rule of court made against it.

In the periods of hunters and fishers and in that of shepherds, as was before observed, crimes are few; small crimes passed without any notice. In these ages no contraversies arose from interpretations of testaments, settlements, contracts, which render our law–suits so numerous. For these were unknown among them. When these took place and difficult10 trades began to be practised contraversies became more frequent. But as men were generally employed in some branch of trade or another, without great detriment to themselves they could not spare time to wait upon them. All causes must be left undecided, which would be productive of every inconvenience, or they must fall upon some other method more suitable to the several members of society. The natural means they would fall upon | would be to chuse some of their number to whom all causes should be referred. The chieftan who was before this distinguishd by his superior influence, when this comes to be the case would preserve his wonted precedence and would naturaly be one of those who were chosen for this purpose. A certain number would be chosen to sit along with him, and in the first ages of society this number was always considerable. They would be afraid to trust matters of importance to a few, and accordingly we find that at Athens there were 500 judges at the same time. By this means the chieftan would still further encrease his authority, and the government would appear in some degree monarchical. But this is only in appearance, for the final decision is still in the whole body of the people, and the government is realy democratical.

The power of making peace and war, as was before observed, was at first lodged in the whole body of the people. But when society advanced, towns were fortified, magazines prepared, stocks of money got together, | generals and officers appointed, the whole body of the people could not attend to deliberations of this kind. This province would either fall to the court of justice, or there would be another sett of people appointed for this purpose, tho’ it would naturally at first fall to the court of justice. This is properly called the senatorial power, which at Rome took care of the public revenue, public buildings, and the like. But afterwards at Rome the court of justice and the senatorial one became quite distinct. The same may be said of the areopagite court at Athens.

We shall now make some observations on nations in the two first periods of society. These viz. of hunters and shepherds.

In a nation of hunters and fishers few people can live together, for in a short time any considerable number would destroy all the game in the country, and consequently would want a means of subsistance. Twenty or thirty families are the most that can live together, and these make up a village, but as they live together for their mutual defence and to assist one another, their villages are not far distant from each other. | When any controversie happens between persons of different villages, it is decided by a general assembly of both villages. As each particular village has it’s own leader, so there is one who is the leader of the whole nation. The nation consists of an alliance of the different villages, and the chieftans have great influence on their resolutions, especially among shepherds. In no age is antiquity of family more respected than in this. The principle of authority operates very strongly, and they have the liveliest sense of utility in the maintenance of law and government.

The difference of the conduct of these nations in peace and war is worth our observation.

The exploits of hunters, tho’ brave and gallant, are never very considerable. As few of them can march together, so their number seldom exceeds 200 men, and even these cannot be supported above 14 days. There is therefore very little danger from a nation of hunters. Our colonies are much affraid of them without any just grounds. | They may indeed give them some trouble by their inroads and excursions, but can never be very formidable. On the other hand a much greater number of shepherds can live together. There may be a thousand families in the same village. The Arabs and Tartars who have always been shepherds have on many occasions made the most dreadfull havoc. A Tartar chief is extremely formidable, and when one of them gets the better of another, there always happens the most dreadfull and violent revolutions. They take their whole flocks and herds into the field along with them, and whoever is overcome loses both his people and wealth. The victorious nation follows it’s flocks, and pursues it’s conquest, and if it comes into a cultivated country with such numbers of men, it is quite irresistable. It was in this manner that Mahomet ravaged all Asia.11

There is a very great difference betwixt barbarous nations and those that are a little civilized. Where the land is not divided, and the people live in hutts which they carry about with them, they can have no attachment to the soil, | as all their property consists in living goods which they can easily carry about with them. On this account barbarous nations are always disposed to quit their country. Thus we find such migrations among the Helvetii, Tuetones, and Cimbrians. The Huns, who dwelt for a long time on the north side of the Chinese Wall, drove out the Astrogoths on the other side of the Palus Maeotis, they again the Wisigoths, etca.

Having considered the original principles of government, and it’s progress in the first ages of society, having found it in general to be democratical, we come now to consider how republic<an> governments were introduced. It is to be observed in general, that the situation of a country, and the degree of improvement of which it is susceptible, not only in the cultivation of the land but in other branches of trade, is favourable to the introduction of a republican government.

There is little probability that any such government will ever be introduced into Tartary or Arabia, because the situation of their country is such that it cannot be improved. | The most part of these is hills and deserts which cannot be cultivated, and is only fit for pasturage. Besides they are generaly dry, and have not any considerable rivers. The contrary of this is the case in these countries where republican governments have been established, and particularly in Greece. Two thirds of Attica are surrounded by sea, and the other side by a ridge of high mountains. By this means they have a communication with their neighbouring countries by sea and at the same <time> are secured from the inroads of their neighbours. Most of the European countries have most part of the same advantages. They are divided by rivers and branches of the sea, and are naturaly fit for the cultivation of the soil and other arts. We shall now see how favourable this is to the reception of a republican government. We may suppose the progress of government in Attica in the infancey of the society to have been much the same with that in Tartary and the other countries we have mentioned, and we find in reality that at the time of the Trojan war it was much in the same situation, | for then there was little or no cultivation of the ground, and cattle was the principle part of their property. All the contests about property in Homer regard cattle. Here as in every other country in the same period the influence of the chieftan over his own vassals was very considerable. A people inhabiting such a country, when the division of land came to take place and the cultivation of it to be generally practised, would naturaly dispose of the surplus of their product among their neighbours, and this would be a spur to their industry. But at the same time it would be a temptation to their neighbours to make inroads upon them. They must therefore fall upon some method to secure themselves from danger, and to preserve what it formerly cost them so much trouble to procure. It would be more easy to fortify a town in a convenient place than to fortify the frontiers of the whole country, and accordingly this was the method they fell upon. They built fortified towns in the most convenient places, and whenever they were invaded took shelter in them with their flocks and moveable goods, and here they cultivated the arts and sciences. | Agreable to this we find that Theseus fortified Athens and made the people of Attica carry into it all their goods, which not only increased his power over them, but also the authority of that state above others. When people agreed in this manner to live in towns, the chieftans of the several clans would soon lose their authority, and the government would turn republican, because their revenue was small and could not make them so conspicuous and distinguished above others as to retain them in dependance. The citizens gradually increase in riches, and coming nearer the level of the chieftan, become [his] jealous of his authority. Accordingly we find that Theseus himself was turned out; after this nine regents were sett up who were at first to have authority for life but were afterwards continued only for ten years; thus Athens, and in like manner all the Greek states, came from a chieftanship to something like monarchy and from thence to aristocracey. In general, as was before observed, the revenue becomes insufficient to support the authority of a number of chieftans, but a few getting into their hands superiour wealth form an aristocracey.

| It is to be observed that there is a considerable difference between the ancient and modern aristocracies. In the modern republics of Venice, Milan, etca the government of the state is entirely in the hands of the hereditary nobility, who are possessed of all the three powers of government. Both in modern and ancient aristocracies the people had the choice of those in authority, but the difference is this, that only the nobility could be elected in modern times. The institution of slavery is the cause of this difference. When the freemen had all their work done by slaves, they had it in their power to attend on publick deliberations. But when the ground came to be cultivated by freemen, the lower sort could not have it in their power to attend, but consulting their interest they would endeavour to avoid it. Agreable to this we find that at Venice the populace desired to be free of it. In the same manner the towns in Holland voluntarily gave it up to the town council, which was in consequence of this vested with the whole power. | Nothing like this happened in the republics of Greece and Rome. In the early ages of these states, tho’ the populace had the whole power, they were called aristocracies, because they always chose their magistrates from among the nobility. They were not indeed hindered by any express law to do otherwise, but it was customary to do so, because the lower classes were maintained by the fortunes of the rich, and thereby became dependent on them, and gave their vote for him whose bounty they shared. The nobility might differ among themselves about elections, but would never propose the election of plebeians. Thus the influence of the nobility was the law, and not any express prohibition.

At Athens, Solon enacted that none of the lower of the four classes into which the people were divided should be elected. But afterwards magistrates were elected out of all classes, and the government became democratical.

At Rome, it was long before the power of being elected extended to the whole body of the people. After | decemvirs were appointed the power of the people began to encroach more and more upon the nobles, and still more when they got military tribunes elected. The cause of this was the improvement of arts and manufactures. When a man becomes capable of spending on domestic luxury what formerly supported an hundered retainers, his power and influence naturaly decrease. Besides, the great usually had every trade exercised by their own slaves, and therefore the taylors and shoemakers being no longer dependant on them would not give them their votes. The popular leaders then endeavoured to get laws passed by which they might be allowed to be elected magistrates. It was long before the generality even of the plebeians would consent to this, because they thought it dissagreable to have their equals so far above them. In process of time, however, they got it enacted that there should be in authority an equal number of patricians and plebeians. Viz. a consul chosen out of each.

We have shewn how republics arose, | and how they again became democratical; we are next to shew how this liberty was lost, and monarchy or something like it was introduced.

Considering these states in the situation above described, as possessed of their towns and a small territory in the adjacent country, they must either confine themselves within their ancient boundaries, or enlarge their territory by conquest: they must either be what may not improperly be called a defensive republic or a conquering one. The Grecian states are a good example of the former and Rome and Carthage of the latter. We are to shew how each of these lost their liberty, and first how the defensive states lost theirs.

When a country arrives at a certain degree of refinement it becomes less fit for war. When the arts arrive at a certain degree of improvement, the number of the people encreases, yet that of fighting men becomes less. In a state of shepherds the whole nation can go out to war, and even when it becomes more refined, and the division of labour takes place, and every one is possessed of a small farm, they can send out a great number. | In such an age their champaigns are always in summer, and from seedtime till harvest their young men have nothing ado but to serve in them. The whole business at home can be performed by the old men and woemen, and even these have sometimes beat the enemy in the absence of their soldiers. In a state where arts are carried on, and which consists chiefly of manufacturers, there cannot be sent out such numbers, because if a weaver or taylor be called away nothing is done in his absence. Scarce one in an hundered can be spared from Brittain and Holland. Of an hundered inhabitants fifty are woemen, and of fifty men, twenty five are unfit for war. In the last war Brittain could not spare so many, as any one almost may be convinced, if he reflect whether among his acquaintances he missed one out of twenty five. According to this principle, Athens tho’ a small state could once send out 30000 fighting men, which made a very considerable figure. But after the improvement of arts they could not send out more than 10000, which was quite inconsiderable. Brittain, notwithstanding the politeness and refinement at which it has arrived, on account of the largeness of it’s territories | can still send out a very formidable army. But a small state necessarily declines. However there is one advantage attending slavery in a small republic, which seems to be it’s only advantage, that it retards their declension. At Rome and Athens the arts were carried on by slaves, and the Lacedemonians went so far as not to allow any freeman to be brought up to mechanic employments, because they imagined that they hurt the body. Accordingly we find that at the battle of Chaeronea, when the Athenians were come to a considerable degree of politeness, they were able to send out great numbers of men, purely on this account that all trades were carried on by slaves. We may observe that in the Italian republics, where slavery did not take place, they soon lost their liberty. When in consequence of the improvement of arts a state has become opulent, it must be reckoned a great hardship to go out to war, whereas among our ancestors it was thought no inconvenience to take the field. A knight {eques} was no more than a horseman, and a footsoldier was a gentleman. They were inured to hardships at home, and therefore a champaign appeared no way dreadfull. But when opulence and luxury encreased | the rich would not take the field but on the most urgent account, and therefore it became necessary to employ mercenaries and the dregs of the people to serve in war. Such persons could never be trusted in war unless reduced to the form of a standing army, and subjected to rigid discipline, because their private interest was but little concerned and therefore without such treatment they could not be expected to be very resolute in their undertakings. Gentlemen may carry on a war without much discipline. But this a mob can never do. As the citizens in Greece thought it below them to bear arms, and entrusted the republic to mercenaries, their military force was diminished and consequently a means was provided for the fall of the government. Another cause of their declension was the improvement of the art of war, which rendered every thing precarious. In early ages it was very difficult to take a city, as it could only be done by a long blocade. The siege of Troy lasted ten years, and Athens once could withstand for two years a siege both by land and sea. In modern times the beseigers have an advantage over the beseiged and a good engineer can force almost any town to surrender in six weeks. | But it was not so once. Phillip of Macedon made great improvements in this art, which at last occasioned the dissolution of all the Greek governments and their subjection to forreign powers. Rome stood out much longer than Greece, because the number of it’s citizens was daily increasing. At Rome any person might be made a citizen, as this was of little advantage. But at Athens the right of citizenship was given to very few, as it was itself a little estate. However Rome itself, after opulence and luxury encreased, shared the fate of other republics, tho’ the event was brought about in a different manner. Till the time of Marius, the better sort of freemen went out to the field. Marius was the first that recruited <?>.12 He gathered the freed slaves into his army, and established a rigid military discipline. That army which before had consisted of gentlemen was now made up of runaway slaves and the lowest of the people. With such an army Marius conquered and kept in awe the provinces. He had the disposal of all offices and posts in this army. Every one among them owed his rise to him and was consequently dependant upon him. | Whenever such a general was affronted he would naturaly apply to his army for relief, who would easily be induced to side with their general against their own nation. This was the very expedient that Marius fell upon. By the influence of Sylla he was, in his absence, banished from Rome, and a price sett upon him. Marius applied to his army, who were determined at all events to follow him, marched to Rome when Sylla was abroad on an expedition against Mithridates, took possession of the government, and vanquished Sylla’s party. Marius died soon after, and Sylla having conquered Mithridates returned to Rome, and in his turn beat the Marian party, changed the government into a monarchy, and made himself perpetual Dictator, tho’ he afterwards had the generosity and magnanimity to resign it. About thirty or forty years afterwards the same thing happened between Caesar and Pompey. Caesar as well as Sylla got himself made perpetual Dictator, but had not enough of public spirit to resign it. His veteran troops which were settled in Italy, mindfull of the favours which he conferred upon them, after his death | gathered about Octavius his adopted son and invested him with the supreme authority. Much the same thing happened in our own country with respect to Oliver Cromwell. When the Parliament became jealous of this man, and disbanded the army, he applied to them, in a manner indeed more canting than that of the Roman generals, and got the Parliament turned out and a new one appointed more suitable to his mind, with the whole authority vested in himself.

Thus we have seen how small republics, whether conquering or defensive, came at length to a dissolution, from the improvements in mechanic arts, commerce, and the arts of war. We are next to consider what form of government succeeded the republican.

When small republics were conquered by another state, monarchy, or whatever other government pleased the conquerors, was established, tho’ they generally followed the model of their own country. The Athenians always established democracey, and the Spartans aristocracey. The Romans indeed more prudently divided their conquests into provinces which were governed pretty absolutely | by persons appointed by <the> Senate for that purpose. The case is somewhat different when a state is conquered by it’s own subjects. Both the nature of the action and the instruments by which it is performed require a military monarchy, or a monarchy supported by military force, because it is as necessary to keep them in awe as to conquer them. This was the form of government that was established in Rome during the time of the emperors; these emperors took the whole executive power into their own hands, they made peace and war as they thought proper, and even named the magistrates, either immediately themselves, or by means of a Senate of their own appointment. They did not however alter any institutions of the civil law. Right and wrong were decided as formerly. Cromwell did the same in our own country: he kept the state in awe by an insignificant army, but he allowed the judge to determine right and wrong as formerly. Nay, he made such improvements in the civil law, by taking away wardships, etca, that the first thing the Parliament of Charles II^d did was to confirm many of Cromwell’s laws. | The Roman authors tell us that justice was never better administered than under the worst of the emperors, Domitian and Nero. It is the interest of all new administrators to make few alterations in what the generality of people are much concerned and have been long accustomed to. They will more easily go into any thing else, when they are indulged in this. It was particularly the interest of the emperors to keep up the ancient system of laws, and accordingly we find that all consuls who misbehaved in their respective provinces were severely punished. It was not so under the Republic; the most scandalous crimes were committed by governours, as we learn from Cicero’s Orations.13

A military government allows the strictest administration of justice. No body indeed can have a fair trial where the emperor is immediately concerned, then he will do as he pleases. But where he is in no way interested, it is his interest to adhere to the ancient laws.

It is to be observed that there was a very great difference between the military government established at Rome and these that were established in Asia. At Rome the conquerors and conquered were the same people. The conquerors themselves | were sensible of the good effects of these laws, and were so far from being willing to abrogate them that they made improvements upon them. It is not so with the Asiatic governments, tho’ they are purely military. Turky, Persia, and the other countries were conquered by Tartars, Arabians, and other barbarous nations, who had no regular system of laws and were entirely ignorant of their good effects. They established in all public offices their own people who were entirely ignorant of all the duties of them. A Turkish bashaw or other inferior officer is decisive judge of every thing, and is as absolute in his own jurisdiction as the signior. Life and fortune are altogether precarious, when they thus depend on the caprice of the lowest magistrate. A more miserable and oppressive government cannot be imagined.

We have considered how the dissolution of small states was brought about, and what form of government succeeded them, by what means an imperial government was introduced into conquering republics, and what kind of administration this was. We come now to shew how this military monarchy came to share that fated dissolution that awaits every state and constitution whatever.

In the time of the imperial governments at Rome | they had arrived at a considerable degree of improvement both in arts and commerce. In proportion as people become acquainted with these, and their consequence domestic luxury, they become less fond of going out to war, and besides the government finds that it would hurt it’s revenue <?to send out> those employed in manufactures. If barbarous nations be in the neighbourhood, they can employ them as soldiers at an easier rate, and at the same time not hurt their own industry. Sensible of these things, the Romans recruited their armies in Germany, Brittain, and the northern barbarous countries which bordered on the Roman Empire. They had the liberty of recruiting in these countries, in the same manner that the Dutch did in Scotland before the beginning of the last war. After they had gone on for sometime in this practice, they would find for several reasons that it would be much easier to make a bargain with the chieftans of these barbarous nations whom they employed, and give him so much money to lead out a number of men to this or that expedition. Supposing then an institution of this kind. The barbarous chieftan, at the head of his own men, possessed the whole military authority of the people for whom he fought, and whenever the government in the least offended him, he could turn his arms against those who employed him, and make himself master of their country. | We find that all the western provinces were taken possession of much in this manner. After they had by their practice given such invitations to the inroads of barbarians, we find that most of the Roman provinces were infested by them. In this country the Romans built a wall and kept garrisons to secure their province from the pillagers of the north. The garrisons which secured this station were called away to the defence of Gaul which at that time was also infested. The historians tell us that the Brittains then got leave to shake off the Roman yoke, but it could be no advantage to the Romans to give any country in Brittain it’s liberty, and it was no favour done it to have no protection from Rome, which the province in reality wanted to have continued. The Romans undoubtedly meant that they should take the trouble of defending themselves, as they were for sometime to be otherwise employed. The Brittains, however, did not like the proposal but resolved to invite over a body of Saxons to their relief. Accordingly Hengist and Hursa came over with a considerable army, which was frequently recruited, entirely drove out the Romans,14 and finding themselves masters of the whole country took possession of it, and founded the Saxon Heptarchy. In this manner fell the western Empire of Europe | and military monarchy came to ruin. We find in the last hundered and fifty years of the Roman Empire this custom of recruiting in barbarous nations carried on, and many of their chieftans had greatly raised themselves. Patricius Aelias15 under Honorious and many others acquired great power. In the same manner all the Asiatic governments were dissolved. Their soldiers were hired from Tartary. Arts and manufactures were carried on; the people made more by their trades than by going to war. The East India trade which Italy and some other nations carried on by the Red Sea had rendered them very opulent. Every nation as well as Rome was willing to make a bargain with the neighbouring barbarous princes to defend them, and this proved the ruin of the government.

Having now considered all the ancient forms of government of which we have any distinct accounts, we shew next what form succeeded the fall of the Roman Empire, and give an account of the origin of the modern governments of Europe.

The government which succeeded this period was not altogether unlike the Tartar constitution formerly mentioned, tho’ the Germans and others, who upon the fall of the Roman Empire took possession of the western countries, had better notions of property | and were a little more accustomed to the division of lands. The king and the other chieftans after they had become conquerors of the country would naturaly for their own purposes take possession of a great part of it. They would distribute it among their vassalls and dependants as they thought proper, and would leave but a very inconsiderable share to the ancient inhabitants. They did not however extirpate them entirely, but still paid them some little regard. Among the Franks who took possession of Gaul, the person who killed a Frank paid only five times the fine which was payable for killing one of the old inhabitants. As these nations were almost lawless, and under no authority, depredations were continually committed up and down the country and all kinds of commerce stopped.

In consequence of this arose the allodial government, which introduced an inequality of fortune. All these chieftans held their lands allodialy without any burthen of cess, wardship, etca. One of these great lords was possessed of almost a county,^a | but as he was unable himself to reap any advantage from so much of it he found it necessary to parcell it out among vassals, who either paid a certain annuity, attended him in war, or performed some service of this nature. By this means his incomes became so great that, as there was then no domestick luxury, he could not consume them in any way but by maintaining a great number of retainers about his house. These were another species of dependants, who increased his authority and secured domestic peace. For they kept the tenants in awe, and were kept in awe by the tenants. So great was the authority of these lords, that if any one claimed a debt from any of their vassals, the king had no power to send a messenger into the lords dominions to force payment. He could only apply to the lord, and desire him to do justice. To them also lay the last result16 in judging of all manner of property under their own jurisdiction, the power of life and death, of coining money, and of making bye laws and regulations in their own territories. But besides this power of government which in a great measure was betwixt the king and the great lords, if there had been no other | the balance would not have been properly kept. But besides the allodial lords there was a great number of free people, who were allowed to consult about justice in their own spheres. Every county was divided into hundereds, and subdivided into tens. Each of these had their respective court, vizt the decemary17 court, the hundered court. Over those was placed the Wittenagemot or assembly of the whole people. Appeals were brought from the ten to the hundered, and from it to <the> county court. An appeal could be brought to the kings court in case the inferiour court denied justice by refusing to hear a cause, or if it was protracted by unreasonable delays. Appeals were also sometimes carried to the Wittenagemott, which was made up of the king, allodial lords, aldermen or earls, bishops, abbots, etca. This was the first form of government in the west of Europe, after the downfall of the Roman Empire.

We are next to shew how the allodial government was overturned, and the feudal system introduced.

As these great lords were continually making war upon one another, | in order to secure the attendance of their tenants they gave them leases of the lands which they possessed from year to year, which afterwards for the same reasons came to be held for life. When they were about to engage in any very hazardous enterprize, that, in case of the worst consequences, the families of their vassals who went along with them might not be left destitute and that they might still be more encouraged to follow them, they extended this right to the life of the son and grandson; as it was thought cruel to turn out an old possessor, the right became at last hereditary, and was called feuda. The feudal tenant was bound to certain offices, but service in war was the chief thing required, and if the heir was not able to perform it he was obliged to appoint one in his place. It was in this manner that wardships were introduced. When the heir female succeeded, the feudal baron had a right to marry her to whomever he pleased, because it was thought reasonable that he should have a vassal of his own chusing. The prima seizin was another emolument of the master. When the father died the son had no right to the estate till he publickly declared his willingness to accept of it. | And on this account the lord sometimes had the estate in his own hand and enjoyed the profits of it for sometime. The heir paid a sum to get it back, which was called relief. There was still another emolument belonging to the lord, called escheat, that is, after the estate became hereditary, if there was no heir of the family to succeed, it returned to the lord. The same thing happened if the heir fail’d of performing the services for which he had the tenure. There were besides these some small sums due to the superior on redeeming his son when taken prisoner, or on knighting him,18 and on the marriage of his daughter and some such occasions. The same causes that made allodial lords give away their lands to their vassals on leases which afterwards became hereditary, made the king give away the greater part of his lands to be held feudaly, and what a tenant possessed in feu was much the same with real property. They were indeed subject to the above mentioned emoluments, but they possessed their lands for themselves and posterity. Feudal property may in some respects be inferiour to allodial, but the difference is so inconsiderable that allodial lops^b soon became to be held feudaly. | About the tenth century all estates came to be held feudaly, and the allodial lords, that they might enjoy the kings protection, exchanged their rights for a feudal tenure.

It is to be observed that these historians who give an account of the origin of feudal laws from the usurpation of the nobility are quite mistaken. They say that the nobility wanted to have these lands which they held at pleasure of the king to be hereditary, that it might not be in his power to turn them out, and that the feudal law was introduced on account of the diminution of the kings power. But it was actualy the contrary; it was on account of the encrease of his power, and it required great influence in the king to make the lords hold their lands feudaly. The best proof of this is that William the Conqueror changed all the allodial lordships in England into feudal tenures and Malcolm Kenmure did the same in Scotland.

The introduction of the feudal system into all Europe took away every thing like popular government. | The popular courts were all removed. Neither decemary, hundered, nor county courts were allowed. All public affairs were managed by the king and the great feudal lords. No commoners, none but hereditary lords had a right to sit in Parliament. These great lords who held immediately of the king were considered as his companions, pares convivii comites. They advised concerning public affairs and nothing of importance could be done without them. The consent of the majority was to be obtained before any law could be passed, and it was necessary to have them called together. The barons or inferior lords observed the same method in their jurisdictions, and they who held [them] of them were called pares curiae baronis. It was likewise necessary that they should be consulted, as they too were in arms. The baron could neither go to war nor make a law without the consent of the majority. Nothing could be done in the kingdom without almost universal consent, and thus they fell into a kind of aristocracey with the king at the head of it.

Besides these orders of men of which we have taken notice, there were two others | which in that period were held in the utmost contempt. The first was that of the villains {villani} who plowed the ground and were adscripti glebae. The second order was the inhabitants of borroughs who were much in the same state of villainage with the former or but a little beyond it. As the boroughs were much under the influence of the lord who gave them protection, it was the kings interest to weaken as much as possible this interest and to favour their liberty. Henry II^d carried this so far that if a slave escaped to a borrough and lived there peaceably a year and day, he became free. He gave them many other priviledges, but what secured them most was the power of forming themselves into corporations upon paying a certain sum to the king. They held of him in capite, and at first every man paid his proportion to the king, but afterwards the borrough paid the sum and levied it as it seem’d proper to itself. By this means as the number of inhabitants encreased the burthen became lighter, and the borroughs became opulent and very considerable. In the reign of King John a law was made that if a lord married his ward to a burgher he only forfeited his wardship.19

| Thus we have considered the several orders of men of which the whole kingdom then consisted. We shall next show how each of them got a share in the government and what share of it was allotted to each of them. Every person who had an estate, great or small, had a right to sit in the kings court and to consult and advise with him about public matters. In the reign of William Rufus 700 sat in Parliament; in Henry III^ds time it was enacted that the smaller barons, who could not afford to attend in Parliament, should send a representative. These representatives were considered as lords and sat in the same house with them. In the same manner borroughs came to have representatives in Parliament, because they themselves were become opulent and powerfull and the king found it his interest to give them some weight so as to lessen the authority of the peers.

It became necessary to have their consent as well as that of the barons before any law was passed. These representatives of the borroughs sat in a house by themselves, and the smaller barons, being far from the level of the great lords with whom they sat and not much superior to the Commons, soon joined them. The kings revenues were then on many occasions insufficient for his demands; they consisted chieffly | 1st, of the royal demesnes, 2^dly, knights services, III^dly, feudal emoluments such as wardships, 4^thly, fines, amercements, compositions, for crimes, etc, 5^thly, all waff goods, res nullius, etc. These were the principal sources of the kings revenue. But these were by no means sufficient to supply the encreasing expences of government. The two bodies of the commoners when joined made a very considerable figure, and the greater part of the subsidies came from them. The king excused the smaller barons from a constant attendance and called them or not as he pleased. When he did call them he issued a writ summoning them, and from this was the origin of creating peers by writ or patent, which is the only way of doing it at present.

Having shewn how the House of Commons became considerable, we shall next shew how the nobilitys power decreased and the government turned arbitrary. In all the courts of Europe the power of the nobility declined from the common causes, the improvements in arts and commerce. When a man could spend his fortune in domestic luxury he was obliged to dismiss his retainers. By their antient rustic hospitality they could more easily maintain 1000 retainers than at present lodge one lord for a night. Richard Earl of Warwick, who was stiled Make–King, maintained every day forty thousand people besides tenants, but when luxury took place he was unable to do this. Thus the power of the nobility was diminished, and that too before the House of Commons had established it’s authority. | And thus the king became arbitrary. Under the House of Tudor the government was quite arbitrary, the nobility were ruined, and the borroughs lost their power.

It might be expected that the sovereign also should have lost his authority by the improvement of arts and commerce, but a little attention will convince us that the case must have been quite opposite. A man possessed of forty thousand pounds a year, while no other body can spend above a hundered, cannot be affected by the encrease of luxury. This is precisely the case of the king. He is possessed of a million while none of his subjects can spend above 30 or 40 thousand pounds, and therefore he can spend it in no other way but by maintaining a great number of people. Luxury must therefore sink the authority of the nobility whose estates are small in proportion to that of the king, and as his continues unaffected his power must become absolute. Tho’ this was the case in most nations of Europe, yet in Germany it was quite otherways. The monarchy there was elective and consequently never could have so much authority. The country is much larger than any other in Europe, and at the dissolution of the feudal government the nobility, who were possessed of considerable fortunes already, got more in proportion than the rest; thus their estates rose so high above those that were immediately below them, that it was impossible for them to spend them in luxury, | and therefore they were able to keep a considerable number of retainers. Thus in Germany the power of the nobility was preserved, while in England it was utterly destroyed and the king rendered absolute.

We have now shewn how the government of England turned absolute; we shall next consider how liberty was restored, and what security the British have for the possession of it. The Act20 of Henry VII^th allowing the nobility to dispose of their estates had already placed them entirely on a level with the Commons. Elizabeth, who always affected popularity, was continually unwilling to impose taxes on her subjects. In order to supply her exigences she sold the royal demesnes, as she knew that none of her offspring was to succeed her. Her successors therefore standing in need of frequent supplies were obliged to make application to Parliaments. The Commons were now become very considerable, as they represented the whole body of the people, and as they knew the king could not want, they never granted him any thing without in some degree infringing his priviledges. At one time they obtained freedom of speech, at another they got it enacted that their concurrence should be necessary to every law. The king on account of his urgent necessities was forced to grant whatever they asked | and thus the authority of the Parliament established itself. A peculiar advantage which Brittain enjoyed after the accession of James Ist was that as the dominions of Brittain were every way bounded by the sea, there was no need for a standing army and consequently the king had no power by which he could overawe either people or Parliament. The 12000021 P^ds a year which was settled upon the king at that time22 might have secured his independencey, had not the bad oeconomy of Charles II^d rendered him as indigent as any of his predecessors. His successor was still more dependant and was forced to quit the throne and the kingdom altogether. This brought in a new family which as the royal demesnes were entirely alienated depended wholly upon taxes, and were obliged to court the people for them. Ever since, the kings revenue tho’ much greater than it was then depends so much on the concurrence of the Parliament that it never can endanger the liberty of the nation. The revenue at present consists chiefly of three branches, to wit. 1st, the Civil List, which is entirely consumed in the maintenance of the royal family and can give the king no influence, nor hurt the liberty of the subject. II^dly, the annual land and malt taxes, which depend entirely on the Parliament. III^dly, the funds mortgaged for paying of the public debts, such as the taxes on salt, beer, malt, etc, levied by the officers of custom and excise. | These the king can by no means touch; they are paid to the Court of Exchequer, which is generally managed by people of interest and integrity who possess their offices for life and are quite independent of the king. Even they can pay nothing but to those appointed by Parliament, and must have the discharge of the public creditor. The surplus of the mortgages23 goes into what is called the sinking fund for paying the public debt <?which> secures the government in the present family, because if a revolution were to happen the public creditors, who are men of interest, would lose both principal and interest. Thus the nation is quite secure in the management of the public revenue, and in this manner a rational system of liberty has been introduced into Brittain. The Parliament consists of about 200 peers and 500 commoners. The Commons in a great measure manage all public affairs, as no money bill can take its rise except in that House. Here is a happy mixture of all the different forms of government properly restrained and a perfect security to liberty and property.

There are still some other securities to liberty. The judges appointed for the administration of justice are fixed for life, and quite independent of the king. Again, the king’s ministers are liable to impeachment by the House of Commons for maladministration and the king cannot pardon24 them. | The Habeas Corpus Act, by which the arbitrary measures of the king to detain a person in prison as long as he pleased is restrained, and by which the judge who refuses to bring a prisoner to his trial if desired within forty days is rendered incapable of any office, is another security to the liberty of the subject. The method of election, and placing the power of judging concerning all elections in the hands of the Commons, are also securities to liberty. All these established customs render it impossible for the king to attempt any thing absolute.

Besides all these, the establishment of the courts of justice is another security to liberty. We shall therefore consider the origin of these courts, the history of them, and their present state.

In England, and indeed in all Europe, after the feudal law was introduced, the kingdom was governed and justice administered in the same manner as by a baron in his jurisdiction. As a steward managed all affairs in the county belonging to the lord, so the Grand Justiciary had the management of all in the kingdom. He appointed sherriffs and other inferior officers. He was himself a great lord, and by the authority of his office, in every country but England he became as powerfull as the king. | But Edward the first saw the danger and got it prevented. All kinds of law, criminal or civil, were determined by the Justiciary or King’s Court which always attended the king; these delays and adjournments in civil suits, to which this court always attending the king must have been liable, gave occasion for separating common causes from the Kings Court, and fixing for them at Westminster a Court of Common Pleas. Criminal causes have always a more speedy determination. One would indeed think that when a person’s life is at stake, the debate should be longer than in any other case. But resentment is roused in these cases and precipitates to punish. It is a matter of no moment to the spectator how a triffling matter of cash be determined, but it is by no means so in criminal cases. When common pleas were taken away, the criminal and fiscal powers were connected and the power and authority of the Great Justiciary little diminished. Afterwards Edward Ist divided the business of the Justiciary into three different courts vizt

The Court of King’s Bench
The Court of Exchequer
The Court of Common Pleas

In the last all civil suits were tried. In the first all criminal ones, and to it lay the appeal from the Court of Common Pleas; it was called King’s Bench | because the king then frequently sat upon it, tho’ this cannot now be done, as it is improper that the king should judge of breaches of the kings peace. The Court of Exchequer judged in all affairs between the king and his subjects, the debts due by either of them to the other, and whatever regarded the revenue. The Court of Chancery was originally no court at all. The Chancellor was no more than a keeper of breives or writs according to which justice was done. What gave occasion to the keeping of these breives shall now be considered.

Edward Ist abolished the power of the Grand Justiciary. He employed mean persons to be judges, generally clergyman. As the decision depended on such persons their jurisdictions would be exercised very precariously, and accordingly we find that in both [in] criminal and civil cases they interposed with hesitation, in the former as mediators and in the latter as arbitrators, and accordingly they would be unwilling to give justice in these cases where they had no precedent from the Court of Justiciary. On this account all the breives by which the Court of Justiciary determined were kept. To keep these seems to have been originaly the office of Chancellor. If a person had a law–suit, he went to the clerk of the Court of Chancery who examined the breives | and if he found one that comprehended your case justice was done accordingly, but if one could not be found you could not have justice. Thus we find that the Chancellor was not a judge originaly. In Scotland the office of the English Chancellor is lodged in the Court of Session. In England a brief was sent from the Chancellor to the sherriff by which he was obliged to appear before the kings judges. Judges then, from the irregularity and inaccuracey of their proceedings, gave great jealousie to the king, and on this account many severe sentences went out against them. £1000025 has at one time been levied from the judges on account of corruption. They were therefore tied down strictly to the Chancery breives, and always bound by their records in such a manner that they could not be in the least amended, not so much as a word wrong spell’d rectified. This precision still remains in some cases, where not taken away by the statutes of amendment. A meer orthographical blunder, tho’ evidently so, has in many cases made the whole of no effect. The judges were therefore tied down to the precise words of the brief, or if there was a statute to the words of it. This was the origin and jurisdiction of the Court of Chancery.

During the improvement of the law of England there arose rivalships among the several courts. | We shall therefore shew how each of them began to extend it’s power and encroach <?on> the priviledges of another, and how the Court of Chancery encreased it’s influence. The Court of King’s Bench, which judged criminal causes and every breach of the king’s peace, was the first that assumed immediately, and previously to an appeal, to judge in civil causes, and to encroach on the jurisdiction of the Court of Common Pleas, by what is called a writ of error, that is, they supposed the person to be guilty of a trespass. For example, when a man owed 10£ and did not come to pay it at the time appointed, an order went out from the Kings Bench to examine and find him out, supposing that he intended to conceal himself, and they punished him for this trespass.26 At present an action on contract can come immediately before the Kings Bench. In this manner it was that this court extended it’s power, and being supreme over all, none could encroach upon it.

The Court of Exchequer brought in civil causes to be tried immediately by them, in the following manner: suppose a man owed a sum of money to the king, which it is the business of the court to take care of, and the man cannot pay unless his debtors first pay him. The court took upon them | to sue this other man by what is called the quo minus, that is, by what he is rendered less able to pay the king. As the debts of the king were many, and as the profits of the judges arose from sentence money, which was more or less according to the business of the court, they eagerly grasped at this extension of their power. All the courts endeavoured, by the speediness of their determinations and accuracey of their proceedings, to encourage prosecutors to come before them.

In what manner the Chancellor came to attain his equitable jurisdiction shall be taken notice of in the next place. After the improvement of arts and commerce, which gave occasion to many law suits unheard of before, people suffered a great deal by the imperfections of law. Edward III^d27 found that there were a great many injuries to which no brief nor court statute extended, and therefore the Parliament allowed that if a person applied to the clerk of Chancery and found there was no brief that could give him any remedy, the clerk should look for some breives of a similar nature and out of them compose a new one by which the complainer might have redress. In this manner the Chancery prescribed rules to the other courts. But as they appointed the brieffs and manner of proceeding this was putting an end to the affair, | for there was no occasion to go to any other court, and the Chancery got these affairs into its own hands. There could be no appeal brought from the Courts of Kings Bench or of Common Pleas to that of Chancery, but they applied to it for what the common law could not redress. The Chancellor in this manner obtained the power of judging in all cases of equity, and is applied to in the greater part of civil cases. The chief of which are 1st, the specific performance of contracts. By the common law if a person was bound by contract to deliver a piece of ground, and afterwards refused to do it, he was only obliged to pay damages, but not to perform it specifically. The Chancery, which was not considered as a court of conscience, enjoined the specific performance of it. 2^dly, the Chancery gave redress for all incests,28 and frauds in trust when the common law could not. As the leaving lands to the church deprived the king of the emoluments arising from them, an Act was passed against it. The clergy ordered that they should be left to certain persons who would dispose of them for the benefit of the church, and if they did not perform it, then as it was a fraud in trust | the Chancellor allowed the bishop to see it done. In like manner, when persons in the state of affairs at that time were obliged to alienate their estates to persons that had no concern in them, the Chancellor caused them to be restored. Wills, legacies, and things of this sort also fell under the equitable decision of the Chancellor.

It will be proper when we are treating of courts to enquire into the origin of juries. In the beginning of the allodial government, when the several courts had arrived at a very small degree of improvement and before they had experience to examine thoroughly into matters, when any person was brought before them on an action depending on his oath he was obliged to bring twelve compurgators to swear that the oath was just. There are remains of this at present in actions of debt, where if the person can bring in a certain number of persons to swear that his oath is just he gains the suit. It is to be observed that the imperfection of this way of trying was one of the great causes that gave origin to the judicial combat. A nobleman, or indeed any man of spirit, who was eluded of his right by a sett of perjured fellows, would rather choose to combat it in the field | and appeal to the judgement of God than leave his cause to them. Henry II^d first instituted that the sherriff and a certain number of persons who had opportunity to be best acquainted with the crime should have the whole affair laid before them, and that the person should be judged by their sentence. The law of England, always the friend of liberty, deserves praise in no instance more than in the carefull provision of impartial juries. They who are chosen must be near the place where the crime was committed, that they may have an opportunity of being acquainted with it. A great part of the jury may be laid aside by the pannel. He can lay aside 30 of their number, and he can challenge them either per capita, that is, any single juryman, or any number of them, if he suspect the sherriff of partiality. There may be many small causes for suspicion of partiality, and of the relevancey of these the court is judge. Nothing can be a greater security for life, liberty, and property than this institution. The judges are men of integrity, quite independent, holding their offices for life, but are tied down by the law. | The jurymen are your neighbours who are to judge of a fact upon which your life depends. They too can be laid aside for several reasons. The laws of England with regard to juries are only defective in one point, in which they differ from the laws of Scotland. In England the whole jury must be unanimous, which renders the office of a juryman a very dissagreable service. A case may appear to you more clear than it does to me, and may realy be different from what it appears to either of us, and yet there is a necessity for our agreement, and of consequence a necessity that one of us should swear contrary to our conscience. In criminal causes there is little danger; people are generally disposed to favour innocence and to preserve life. But in civil cases people are not so much troubled; they are not so much disposed to favour, and many of them are exceedingly doubtfull. People of fashion are not fond of meddling in a jury attended with such inconveniences, and therefore only the meaner sort of people attend the judge. A great man would not choose to be so often called and returned, and perhaps treated in such a manner as no gentleman would choose to be. | In this case the law providing for security has done too much. In this country, where unanimity is not required, the service is not so dissagreable. Tho’ a person differ from the majority, he may stand by his opinion and is not forced to comply, and the people of the highest rank are willing to be jurors. In the actions which come before the Court of Chancery no jury is required, and the Court of Session in Scotland has taken them away in civil causes.

Besides the courts that have been mentioned, there were several others erected by the kings patent. Henry VIII^th erected three, the Court of High Commission which sat upon ecclesiastics, the Court of Star Chamber which takes in any thing less than death, and the Court of Wardship which took care of the king’s interest in these emoluments. This last was taken away by Charles II^d, who accepted a sum for the whole. It is now understood that the king cannot erect a court without consent of Parliament. In no other country of Europe is the law so accurrate as in England because it has not been of so long standing. The Parliament of Paris was only erected about the time of Henry VIII^th of England. | The British Parliament consists of a great number of men, and these of great dignity. All new courts disdain to follow the rules that were formerly established. All new courts are a great evil, because their power at first is not precisely determined and therefore their decisions must be loose and inacurrate.

Thus we have considered the origin of government

1. Among a nation of savages
2. Among a nation of shepherds
3. The government of small clans with chieftans. The manner in which aristocracies arose, the fall of little republics, conquering or defensive, and lastly the different forms of government that arose in Europe after the dissolution of arbitrary government.

Last line of 75 and whole of 76 left blank in MS.

|^c We shall next consider the origin of the little republics in Europe, and consider the rights of sovereign^d and subject.

First, of the origin of these republics. In some countries the provinces which were far from the seat of government sometimes became independant, as was the case in a good part of Germany and France during the time of Charlemagne. Hugh Capet who was Chief Justiciary got the government into his hands, but took only the tittle of King o’ France. The Pope, by raising disturbances in Germany, for a long time hindered the Emperor Otho from taking possession of Italy. But when he got possession of it, on account of it’s distance he could not retain it. Every little town formed itself into a republic, with a council of it’s own chusing at it’s head. Some towns in Germany being well fortified, such as Hamburgh, assumed the same priviledges, and still in some measure retains them. The Italian towns are governed by a hereditary nobility, tho’ the ancient republics were perfectly democratical. In Venice the people freely gave up the government, as they also did in Holland, because they could not support the trouble which it gave them. The Dutch and | Swiss republics are formed into a respublica foederata, and on this depends their strength.

We shall make some remarks on the manner of voting in these republics. When there are 100 votes and three candidates, it is possible that the person who is most odious may be elected. If A, B, and C be candidates there may be 34 votes for A, and 33 for B, and as many for C. Thus tho’ there are 66 votes against A he carries it. This must be still more the case when a criminal is brought before this assembly. For 34 may think him guilty of murther, 33 of man slaughter, and 33 of chance medley, yet he must suffer for murther. To prevent this, in some of these republics they always bring the question to a simple state, is he guilty of murther or not? If there be 3 candidates, they put a previous vote, by which they exclude one of the candidates. In their Senates the president never has a deliberative vote, but only a decisive one, because they will allow no member to have two votes. When there is an equality on both sides, nothing can be done, and therefore the business is not rejected but referred to another meeting.

We shall now consider what duty is owing to the sovereign, and what is the proper punishment of dissobedience. Every attempt to overturn this power | is in every nation considered as the greatest crime and is called high treason. It is to be observed that there is a great difference between treason in monarchies and treason in republics. In the one it is an attempt on the king’s person and in the other on the liberties of the people, from whence we may see how the maxim of assassination came to be established in republics, and not in monarchies. It is the interest of monarchies that the person in authority be defended whatever his tittle or conduct be, and that no person be allowed to enquire into them. The laws of monarchy are therefore unfavourable to the assassination of tyrants. In a republic the definition of a tyrant is quite clear. He is one who deprives the people of their liberty, levies armies and taxes, and puts the citizens to death as he pleases. This man cannot be brought to a court of justice and therefore assassination is reckoned just and equitable. The present republican governments in Europe, indeed, do not encourage this maxim, because monarchies now sett the fashion, and <?other> government<s> copy their pattern. According to our present notions Oliver Cromwell’s assassination is most opprobrious, but it would have appeared otherwise when the republics of Greece and Rome sett the fashion.

Having thus taken notice of this difference between monarchical and republican governments, we shall next consider the crimes reckoned treason.

| There are three kinds of treason, or attacks upon the essence of government. 1st, perduellio, or an attempt to subvert the established government by force or rebellion. 2^dly, proditio, or the joining the enemy, delivering up to him forts, hostages, etc., or the refusing to deliver up garrisons, etc. to the government when they demand them. This is called high treason. 3^dly, laesa majestas, or an insult on the authority of the magistrate, which is not so heinous a crime as the two former. These were the kinds of treason among the Romans. Under the emperors these were blended, and a breach of the smallest, even in so triffling a manner as throwing a stone at the emperor’s statue, was punished with death. Under Honorious, a conspiracey against any of the emperors ministers was high treason.29

The crimes accounted treason by the English law are the following. 1st, killing the king, wishing^e his death, or providing arms against him with every attempt of this kind are punished capitally. The gun powder plot was never executed, yet the conspirators were put to death. Had they intended only the death of some other person they would not have been executed. 2^dly, corrupting the king’s wife or oldest daughter, because these are affronts to the king, | and may introduce a spurious offspring to the crown. If it be a younger daughter the crime is not so great. 3^dly, levying a force against the king, aiding his enemies, etc. 4^thly, attempting the life of the Chancellor or judge of^f assize when sitting in court; at another time it is only felony. Edward Ist, however, made the meer wounding of them not [not] treason.30 5^thly, counterfeiting the king’s great or privy seal, which is accounted an usurpation of the government, because by them the acts of government are carried on. 6^thly, counterfeiting of the king’s coin, tho’ this should not properly be treason, because it is no attempt on the essence of government. This crime is no more than forgery and is usually punished as such. These were the branches of treason before the Reformation. At this period Henry VIII^th declared himself head of the church, assumed the soverei

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LECTURES ON JURISPRUDENCE: REPORT DATED 1766 - Adam Smith, Glasgow Edition of the Works and Correspondence Vol. 5 Lectures On Jurisprudence [1762]

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