“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 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.”
In the same chair Hutcheson had taught that society is founded on an original contract. Adam Smith discards the theory for various 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 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 it is a sin against God not to do it. But you never hear him mention a contract as the foundation of his obedience.”
Smith was as fond as his master Aristotle of testing fine-spun theories by the coarse wear of daily life. He loved to march an army of common-folk through the cobwebs of political philosophy. A second objection was that, although a government may be entrusted to certain persons on certain conditions, the contract cannot bind their posterity. “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.”
In a remarkable book on English Government (1803), John Millar expresses his indebtedness to the “ingenious and profound author of the Wealth of Nations.” “I am happy,” he says, “to acknowledge the obligations I feel myself under to this illustrious philosopher by having at an early period of life had the benefit of hearing his lectures on the History of Civil Society, and of enjoying his unreserved conversation on the same subject.”[15] And this indeed was the spacious topic which occupied most of the course on public jurisprudence. Nations of hunters and fishers, he began, had properly no government at all. They lived according to the laws of nature. Then he came to the patriarchs of the Old Testament and of the Homeric age, and compared the growth of republican government in Greece, Rome, and modern Italy. How liberty was lost is the next theme. The students were reminded of Cæsar and Cromwell, of the contrast between Western and Oriental despotisms, of the improvements in law which have often been introduced by military conquerors. They were then led to see by the history of the fall of the Roman Empire how “military monarchy came to share that fated dissolution that awaits every state and constitution.” After describing the fall of the Roman Empire, Smith gave an account of the origin of the modern governments of Europe.
Smith had Burke’s “salutary prejudice.” Despite a private partiality for republican institutions, he saw, like Montesquieu, in our constitution “a happy mixture of all the different forms of government properly restrained, and a perfect security to liberty and property.” The Commons in a great measure manage all public affairs, as no money-bill can take its rise except in that House. The judges are quite independent of the king. The Habeas Corpus Act and the methods of election are further securities of liberty. Lastly, “the law of England, always the friend of liberty, deserves praise in no instance more than in the careful provision of impartial juries.”
The first division of Justice concludes with an excellent description of the struggle between the English nation and King James II., who “on account of his encroachments on the body politic was with all justice and equity in the world opposed and rejected.”
In the second division of Justice, called Domestic Law, he examined the legal relations that had subsisted at different times and in different countries between husband and wife, parent and child, master and servant, guardian and ward. The treatment is concise without being dry. Philosophy corrects curiosity; humanity peeps through law, and humour spices humanity. We come upon his favourite proposition that “love, which was formerly a ridiculous passion,” has become “grave and respectable,” the proof being that love now influences all public entertainments, whereas no ancient tragedy turned upon it. He counters Montesquieu’s statement that at Bantam, in the East Indies, there are ten women born for one man, by a broad doctrine: If the laws of nature are the same everywhere, the laws of gravity and attraction the same; why not the laws of generation? He reminds his class that slavery is still “almost universal”; for a small part of Western Europe is “the only portion of the globe that is free from it.” Upon the evils of slavery he spoke as strongly as he wrote before in the Theory of Moral Sentiments or afterwards in the Wealth of Nations (Book I. chap. viii.). It is almost needless, he says, to prove that slavery is a bad institution. “A free man keeps as his own whatever is above his rent, and therefore has a motive to industry. Our colonies would be much better cultivated by free men.” That slavery is a disadvantage appears, he adds, from the state of colliers and salters in Scotland. These poor wretches indeed, whom he must have seen daily in Kirkcaldy (where Pennant noticed them with indignation thirty years afterwards), had some privileges which slaves had not. Their property after maintenance was their own, and they could only be sold with their work. They were allowed to marry and to choose their religion, and their wages were half a crown a day, as compared with the sixpence or eightpence earned by the ordinary day-labourers in the neighbourhood. Nevertheless “colliers often leave our coal-works” and run away to Newcastle, preferring liberty on tenpence or a shilling a day to slavery on half a crown.
The third division (nearly fifty pages in all), on Private Law, summarises the Roman law of property, and compares the usages of Scotland and England. Smith had evidently consulted many law reports and statutes as well as some of the standard authorities in both kingdoms, such as Lord Kames’s Law Tracts, Dalrymple’s Feudal Property, Bacon’s New Abridgment of the Law, and Hawkins’s Pleas of the Crown. Smith was wonderfully free from legal obsessions. He condemned the excessive punishments of his time, and explained that they were founded not upon regard to public utility, but upon the spectator’s resentment against the offender and his sympathy with the injured party. The English laws of real property he regarded as unnatural and mischievous. He had mastered the theory of entail without being fascinated by it. “Upon the whole, nothing can be more absurd than perpetual entails. Piety to the dead can only take place when their memory is fresh in the minds of men; a power to dispose of estates for ever is manifestly absurd. The earth and the fulness of it belongs to every generation, and the preceding one can have no right to bind it up from posterity; such extension of property is quite unnatural.”
A similar but less pithy condemnation appears in the Wealth of Nations, and was one of the passages which led Cobden to declare shortly before his death that if he were a young man he would take Adam Smith in hand, and preach free trade in land as he had formerly preached free trade in corn.