JURIS PRUDENCE or Notes from the Lectures on Juftice, Tolice, Revenue, and Arms delivered in the University of Glasgow by £mitf) Profefsor of Moral Philosophy.
MDCCLXVI.
JURISPRUDENCE INTRODUCTION [J i. Of Works on Natural Jurisprudence^ 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 anything 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 complete work on this subject l. 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 lawful in every case where the state receives an injury which would be redressed by an equitable civil magistrate 2. This naturally 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 1 Moral Sentiments, ad fin. - Lib. ii. cap. i. § 2.
2 JURISPRUDENCE his treatise, which are upon this subject, are a complete system of jurisprudence.
The next writer of note after Grotius was Mr. Hobbes. He had conceived an utter abhorrence of the ecclesiastics, and the bigotry 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 I 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 entered 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 founda tion and essence of virtue.
The divines thought themselves obliged to oppose this pernicious doctrine concerning virtue, and attacked it by endeavouring to show that a state of nature was not a state of war, but that society might subsist, though not in so harmonious a manner, without civil institutions. They endeavoured to show 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 fulfilling of contracts. With this design Puffendorf wrote his large treatise. The sole intention of the first part of it is to confute Hobbes, though 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 wras 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 INTRODUCTION works published, 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.
[} 2. Of the Division of the Subject.']
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 expenses of government, some fund must be raised. Hence the origin of revenue. The subject of consideration under this head will be the proper means of levying revenue, 1 Neither the works of Hein- rich, Freiherr von Cocceii, nor those of his son Samuel are wholly comprised in five folio volumes. The volumes referred to are probably Henrici de Cocceii sacrae regiae maiestati borussicae quondam a consiliis secretioribus Grothis illitsfrahis, Wratislaviae, folio, published with observations by Samuel Freiherr von Cocceii long after his father's death, and Satnuelis L. B. de Cocceii summi regni borussici cancellarii ministri status intiini...Introdiictio ad Henrici L. B. de Cocceii Grotinm illustratum, Halae, 1748, i vol. folio. These and no other folio works of either author appear in the 1776 catalogue of the Edinburgh Advocates' Library, and all except vol. iv of Grotius ilhtstratus are in Bonar, Catalogue of Adam Smith's Library. Dis sertations X and XI in the Introdiictio deal with ' some Ger man systems,' and the very lengthy Dissertation XII 'treats of laws.'
4 JURISPRUDENCE which must come from the people by taxes, duties, &c. In general, whatever revenue can be raised most insen sibly from the people ought to be preferred; and in the sequel it is proposed to be shown, how far the laws of Britain and of other European nations are calculated for this purpose.
As the best police cannot give secur^ unless the govern ment can defend themselves from foreign injuries and attacks, the fourth thing appointed by law is for this purpose; and under this head will be shown the different species of arms with their advantages and disadvantages, the constitution of standing armies, militias, &c.
After these will be considered the laws of nations, under which are comprehended the demands which one inde pendent society may have upon another, the privileges of aliens, and proper grounds for making war.
PART I: OF JUSTICE [INTRODUCTION] THE end of justice is to secure from injury. A man may be injured in several respects: First, as a man.
Secondly, as a member of a family.
Thirdly, 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 disobedience, or a subject by oppression, &c.
A man may be injured: First, in his body by wounding, maiming, murdering, or by infringing his liberty.
Secondly, 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 6 PART I I JUSTICE 6 PART I I JUSTICE we endeavour to persuade 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 horninum naturalia.
Thirdly, 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 posscssore. 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 per formance of which can be demanded only from one person. If I buy a horse and have him delivered to me, though the former owner sell him to another, I can claim him a quo cumque 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 privileges.
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 burdens upon the property of another. Thus I may have a liberty of passing through a field belonging to another which lies between me and the high- INTRODUCTION 7 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 burdens on the property of another are called servitudes. These rights were originally personal, but the trouble and expense of numerous law suits in order to get possession of them, when the adjacent property which was burdened with them passed through a number of hands, induced legislators to make them real and claimable a quocunique 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 liberty to claim them as such.
Exclusive privileges are such as that of a bookseller 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, though 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 some time, he has an exclusive privilege 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 privilege of hindering any person to take possession of the inheritance left him while he is deliberating whether or not it will be for his interest to take possession of it and pay off the debts with which it is burdened \ Personal rights are of three kinds, as they arise from contract, quasi contract, or delinquency.
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.
1 The reference is to Roman or Scotch law, not English.
8 PART I: JUSTICE Quasi contract is the right which one has to a compensa tion for necessary trouble and expense about another man's affairs. If a person finds a watch in the highway he has a claim to a reward, and to the defraying of his expenses in finding out the owner. If a man lend1 me a sum of money, he has a right not only to the sum, but to interest also.
Delinquency is founded upon damage done to any person, whether through 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, nobody 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. Others 2 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, though that of the civil law seems upon the whole preferable.
1 Sell. ' involuntarily/ i. e. if ditction to Moral Philosophy, 1747, keep it till I discover the 2 E.g. Hutcheson, Introduction owner. See Hutcheson, Intro- to Moral Philosophy.
[DIVISION I.] OF PUBLIC JURISPRUDENCE [$ i. Of the Original Principles of Government.']
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 superior abilities. In a warlike society he is a man of superior strength, and in a polished one of superior mental capacity. Age and a long possession of power have also a tendency to strengthen authority. Age is naturally in our imagination connected with wisdom and experience, and a continu ance in power bestows a kind of right to the exercise of it. But superior wealth still more than any of these qualities contributes to confer authority. This proceeds not from any dependence that the poor have upon the rich, for in general the poor are independent, and support themselves by their labour, yet, though 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 Sentiments1, where it is shown that it arises from our sympathy with our superiors being greater than that with our equals or inferiors: we admire their 1 The Theory of Moral Senti- 146) in one octavo volume of 551 ments by Adam Smith, Professor pages. This edition contains of Moral Philosophy in the Univer- much less matter than the sixth sity of Glasgow, was published (1790), which would occupy con- early in 1759 (see John Rae, Life siderably more than 800 similar of Adam Smith, 1895, PP- I4I~ pages.
10 PART I: JUSTICE happy situation, enter into it with pleasure, and endeavour to promote it l.
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 its wealth, has more authority than any other. An upstart is always disagreeable, we envy his superiority over us and think ourselves [as] well entitled to wealth as he 2. 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. Superior age, superior abilities of body and of mind, ancient family and superior 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 powerful; and though 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 disobey, and to wish government overturned, but I am sensible that other men are of a different opinion from me, and would not assist me 1 Moral Sentiments, 1759, pt. i. joy.' Moral Sentiments, 1759, p. 86. sect. 4. ch. ii. ' Of the origin of ' Upstart greatness is everywhere ambition, and of the distinction less respected than ancient great- of ranks.' ness.' W. of N, bk. v. ch. i. pt. 2, 2 ' An upstart, though of the vol. ii. p. 296.
greatest merit, is generally dis- s The four things reappear in agreeable, and a sentiment of W. of N. bk. v. ch. i. pt. 2, vol. ii.
envy commonly prevents us from pp. 294-6, and are there more fully heartily sympathizing with his treated.
PUBLIC JURISPRUDENCE II in the enterprise. I therefore submit to its 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 democracy that of utility. In Britain, which is a mixed government, the factions formed some time ago, under the names of Whig and Tory, were influenced by these principles, the former submitted to government on account of its 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 rebel against its 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 l.
It has been a common doctrine in this country that contract is the foundation of allegiance to the civil magis trate 2. 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 Britain, yet government takes place where it was never thought of, which is even the case with the greater part of people in this country3. Ask a common 1 Hume, 'Of the Parties of 1755, vol. ii. pp. 225 sqq.
Great Britain,' ad init, Essays, 3 'These connexions are always 1741, pp. 119, 120. conceived to be equally indepen- 2 Adam Smith's master, Hut- dent of our consent, in Persia and cheson, taught the doctrine. See China; in France and Spain; his Introduction to Moral Philo- and even in Holland and England sophy, 1747, p. 285, and hisposthu- wherever the doctrines above mous System of Moral Philosophy, mentioned have not been care- 12 PART I: JUSTICE 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.
Secondly, when certain powers of government were at first entrusted to certain persons upon certain conditions, it is true that the obedience of those 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 subsistence. They cannot, therefore, be said to give any consent to a contract, though 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 ship l he has contracted to obey the master 2. 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.
fully inculcated,' Hume, 'Of the guage or manners, and lives from Original Contract,' Essays, 1748, day to day by the small wages p. 293. he acquires? We may as well 1 MS. reads 'shop.' assert that a man by remaining 2 ' Can we seriously say that a in a vessel freely consents to the poor peasant or artisan has a free dominion of the master; though he choice to leave his own country was carried on board while asleep.' when he knows no foreign Ian- Hume, Essays, 1748, p. 299.
PUBLIC JURISPRUDENCE 13 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 its own subjects and punishes them for such practices l, 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 retain ing a prejudice in favour of their mother country, and they are never so much depended upon as free-born subjects 2. So much is the English law influenced by this principle that no alien can hold a place under the government, even though he should be naturalized by act of parliament 3. 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 con tract, in which no more but fulfilment 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 govern ment, but the principles of authority and utility formerly explained.
1 Viz. emigration coupled with 2 ' Yet is his allegiance, though renunciation of allegiance. Hume more voluntary, much less ex- notices that colonists peopling pected or depended on than an uninhabited region are still that of a natural born subject.' claimed by their sovereign. Essays, Hume, Essays, 1748, p. 300. 1748, p. 300. 3 See below, p. 65, note i.
14 PART I: JUSTICE [§ 2. Of the Nature of Government and its Progress in the first Ages of Society.,] We shall now endeavour to explain the nature of government, its 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, aris- tocratical, 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 affairs 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 repub lican.
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 1. The society consists of a few independent families 1 ' In the first state of man, viz. good neighbourhood.' William that of hunting and fishing, there Douglass, Summary, historical obviously is no place for govern- and political, of the first planting, ment.' Lord Kames, Historical progressive improvements, and pre- Law Tracts, 1758, vol. i. p. 78 note. sent state of the British Settlements 'Strictly speaking they [the ab- in North America, 1760, vol. i. p.
original Americans] seem to have 160. See W. of N. bk. v. ch. i.
no government, no laws, and are pt. 2, vol. ii. p. 274. only cemented by friendship and PUBLIC JURISPRUDENCE 15 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 resent ment of the injured him who has committed the crime1. But this is no regular government, for though there may be some among them who are much respected, and have great influence in their determinations, yet he never can do anything 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 W7hich introduced an inequality of fortune, was that which first gave rise to regular government 2. 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 poor3. In this age of shepherds, if one man possessed 500 oxen, and another had none at all, unless there were some govern ment to secure them to him, he would not be allowed to possess them. This inequality of fortune, making a dis tinction 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 1 Lafitau, Mceurs des sauvages perty.' Locke, Civil Government, ame'riquains comparers aux mceurs § 94. In W. of N. a qualification is des premiers temps, 1724, 4to, torn. introduced: ' Civil government, i. p. 490 sqq. so far as it is instituted for the 2 W. of N. bk. v. ch. i. pt. 2, security of property, is in reality vol. ii. p. 297. instituted for the defence of the 3 ' Government has no other rich against the poor ' (bk. v. ch. end but the preservation of pro- i. pt. 2, vol. ii. p. 298).
l6 PART I: JUSTICE came to have great influence over the rest; and ac cordingly 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 shep herds it is quite otherways. They have no possible means of spending their property, having no domestic luxury, but by giving it in presents to the poor, and by this means they attain such influence over them as to make them, in a manner, their slaves1.