Adam Smith On Constitutional Liberty

“A Note on Constitutional Liberty”

G. Kennedy

From an early draft of Kennedy: “Adam Smith: a moral philosopher and his political economy”, 2^nd edition, 2011, Palgrave Macmillan in Great Thinkers in Economics, Series editor. A. P. Thirwall. pp 49-51.

“Constitutional liberty”

“Parliament, elected on a highly restricted franchise, by its control of the army’s finances, could prevent, or at least inhibit, the army being used to undo steps taken to ensure the general liberty of the king’s subjects. Lack of money, independent of parliamentary approval, limited a potential tyrant’s recourse to the armed intimidation of his subjects (the principle over which the English civil war had been fought). For Smith, a ‘system of liberty’ was a constitutional arrangement secure from the tyranny of king, parliament, judges, officials of the state or any private person. In eighteenth-century Britain, the system of liberty was the foundation of its government, which had been confirmed by ‘many Acts of Parliament’. While this was liberty by legal fiat and not by universal franchise, it was nevertheless in advance of what happened elsewhere, up to the Constitution of the United States of America. Consequently, he asserted that in Britain, with its liberties so entrenched, ‘every one would be shocked at any attempt to alter this system’ of liberty and such attempts ‘would be attended with the greatest difficulties’ (LJ 271).

Smith deliberated on threats to constitutional liberty potentially emanating from within the State, specifically in the form of the ‘Civil List’ covering the monarch’s personal expenses in support of the ‘dignity of his office’ – a euphemism for his extravagance on his personal and public life. Fortunately, instead of spending these monies on a standing army willing to do the sovereign’s bidding, kings chose to spend them on their personal extravagance. Smith writes, in the hands of ‘designing, vigorous and ambitious princes [the Civil List spent on a standing army] might give them an influence superior to that which the dependence on a few officers about the palace can bestow’. In Smith’s view, a few army officers, entertaining, cavorting and amusing the king, were insufficient to carry through a royalist putsch. Bluntly, a Civil List, though affording the Sovereign an all-expenses-paid free ride on the ‘dignity of his office’, inevitably corrupted tentative temptations to his dabbling at returning Britain to absolutism.

Other constitutional features also acted as barriers to tyranny. The courts of justice, for instance, secured the liberty of the people, and Smith details his confidence in the judiciary in six parts. First, judges held office for life, entirely independent of the king, and were ‘free and independent’ and accountable under law for their conduct. Self-interest prevented judges from acting unfairly against defendants if by such acts they would endanger the loss of their regular, and relatively high, personal incomes from their ‘profitable offices’, which would severely damage their reputations too. Crucially, nothing a king could offer the judges tempted them to act outrageously in his favour (LJ 271–272). Second, because judges had little power to explain, alter, extend or correct the meaning of laws, they had to, with ‘great exactness’, strictly observe the literal meaning of words as intended by parliament (LJ 275). Judges did not make the laws – that was parliament’s exclusive function – they enforced them, and in England, they interpreted the ‘common law’, a venerable process reflecting the way that laws evolved from past practices that had proved their worth from ancient usage.

Third, the Habeas Corpus Act (‘you may have the body’) was a ‘great security against oppression’. Before this Act, the Privy Council (appointed by the king) could put anyone they pleased into prison and detain him without trial for the uncertain duration of the king’s pleasure. By the eighteenth century, no judge would oppose the Habeas Corpus Act on pain of ‘infamy and a high penalty’. Habeas Corpus, asserted Smith, ‘will never be allowed to be repealed, as it would destroy in a great measure the liberty of the subject’ (LJ 272–273).

Fourth, juries heard the evidence and decided on the facts. Smith gave a brief history of the jury system from Magna Carta (the constitutional settlement regularising the relationships between the king and the barons, which enshrined a person’s ‘right to legal judgement by his peers’, not the king). He concluded that ‘the liberty of the subjects was secured in England by the greater accuracy and precision of the law’ and that the ‘courts of England are by far more regular than those of other [continental] countries’ (LJ 282, 284–286, notes 90, 7).

Fifth, the House of Commons had the power to impeach the king’s ministers for acts of maladministration, which ‘secures the liberties of the subjects’, because impeached ministers can be removed from office. Sixth, the frequency of elections was ‘also a great security for the liberty of the people’ because, unless the representative serves his country or ‘at least his constituents’, he will be in ‘danger of losing his place at the next election’. The more frequent these elections, the more dependent were parliamentary representatives (LJ 273).

For these reasons, Smith asserted that Britain’s constitutional arrangements in the mid-eighteenth century ‘secure[d] the liberty of the subjects’. He believed that liberty was closest to perfection in his times (but well short of it by today’s standards). He considered England’s parliamentary elections were less corrupt than Scotland’s (which is not saying much by modern standards) (LJ 272–273).

While in modern terms these are fairly modest protections of liberty, their absence may compromise the effectiveness of markets in securing general opulence, though their absence does not prevent it. Moreover, government policies could also compromise popular opulence. Smith illustrated the essential point that the existence of constitutional liberty does not of itself secure general opulence. Governments and other institutions (a dominant religion) may also pursue policies detrimental to national opulence. The establishment of the institutions of liberty are not a conscious one-way process; they could and did relapse, falter, stall and disintegrate in some countries. Today, however, those countries with credible claims to establishing degrees of liberty since the eighteenth century have incorporated versions of, and of course additions to, Smith’s six characteristics of constitutional liberty.” 

GK Comment:

Space necessarily forced a severe truncation of this important section of my second book on the 2^nd edition, paperback, on Adam Smith.

Nevertheless, it gives an insight into Smith’s thinking on “Constitutional Liberty”, a necessary component for understanding Smith’s teachings on “natural liberty”, which is usually pushed aside by “hard Libertarians” of of Adam Smith fans. From closely studying Adam Smith’s entire corpus I am by conviction a “soft Libertarian” (and also an appointed Fellow of the Adam Smith Society, London).

To appreciate Adam Smith on Liberty (“natural and constitutional”) it is necessary to read his “Lectures On Jurisprudence” [1762-3 and “1766”], published by Oxford University Press, 1983 in the “Works and Correspondence of Adam Smith”, 6 volumes, of which “LJ” is volume 5). 

Smith lectured on “Jurisprudence” at Glasgow University from 1752-63.  Recollect that Smith switched in 1744, during his Oxford MA course under his Snell Exhibition from Glasgow at Oxford (1740-46) from his original course that led to “Ordination” into the Church of England into Oxford’s “Juris” course (Archives of Baliol College, Oxford that I examined in 2009). 

Moreover, at Glasgow as the Professor of Moral Philosophy Adam Smith began teaching Glasgow’s “Jurisprudence” course and established such a reputation in that field that he was awarded Glasgow’s higher degree of LL.D in 1764 (which duly appeared on the title pages of his two books for several years. 

He did not publish his teachings on Jurisprudence but he did advertise his intentions in 1759 to publish a such work (‘the theory of the rules by which civil governments ought to be directed”) until it became obvious he was not going to complete that editing task just before he died in 1790, for which he apologised. 

His unfinished manuscript was burnt on his instruction to his Executors shortly before he died. However, notes of his Lectures were discovered in 1895 in Oxford belonging to an Edinburgh advocate.  These were published in 1895, edited by Edwin Canaan, a leading authority on Adam Smith whose edition of the Wealth Of Nations is still in print (Random House).  Later, in 1958, John Lothian, then a Reader at Edinburgh University, discovered a document in a county house sale in Aberdeenshire for auction.  These quite clearly are another version of Smith’s “Lectures On Jurisprudence” which were written by two or more anonymous students as they were delivered by “Mr Smith”. Professor Lothian published these in 1958, along with Smith’s “Lectures on Rhetoric and Belles Lettres”.

All this is by way of establishing the credibility of the Lectures provenance.  Also, given that large sections of the Lectures also incorporate materials that appeared in the ‘Wealth of Nations”, their provenance is regarded as “safe”.

In the extract above from my book I show Smith’s teaching on the role of “Constitutional Liberty” as an integral part of his teachings relating to “Natural Liberty” (a philosophy associated with Grotius and Samuel Pufendorf and widely taught in Scottish and many European universities in the 18^th century).

Gavin Kennedy

Emeritus Professor

31 July 2013