JMC : The State and the Church / by Ryan and Millar

6. Modern "Practical Liberty" and Common Sense

by Rev. Moorhouse F. X. Millar, S.J.

"Liberty" said Carlyle "needs new definition." Yet new definitions have not been wanting either in number or variety. His own whereby the true liberty of man is made to consist "in his finding out or being forced to find out the right path, and walk thereon,"{1} is, if not new, at least far more popular than it was in his day; but for effective application it calls for a Metternich or a Bismarek. Guizot, on the other hand, maintained that "the right to liberty, in the relations of man with man, is derived from the right to obey nothing that is not reason"{2} which certainly would sound reasonable enough if we could forget what Guizot and the nineteenth century took the word reason to mean. Mazzini with eloquent dogmatism proclaimed liberty to be "the right and duty of the human soul" and after some twenty years of agitation limited this article of political faith with the declaration that "man has no rights from nature, save only one right of liberating himself from very obstacle impeding his free fulfilment of his own duties."{3} Finally, lest the import of the word duty be here misconstrued, we have Lord Acton to tell us "By liberty I mean the assurance that every man shall be protected in doing what he believes his duty against the influence of authority and majorities, custom and opinion."{4} What wonder if through fear lest individuals be led more and more to allow themselves the benefit of every doubt legitimate or otherwise against all due or established order of things, statesmen and lawyers should revert to the philosophy of Hobbes as modernized in Austin and claim with the latter that "political or civil liberty is the liberty from legal obligation, which is left or granted by a sovereign government to any of its own subjects; and that since the power of government is incapable of legal limitation, the government is legally free to abridge their political liberty at its own pleasure or discretion."{5} But meanwhile a set of masculine thinkers "little inclined to the course of changing about with every wind, without regard to men or things" had already faced the problem of liberty squarely. Burke, the greatest among them, did but express their common stand when in a private letter to Mons. Dupont to whom the Reflections on the French Revolution were later addressed, he said "of all the loose terms in the world liberty is the most indefinite. It is not solitary, unconnected, individual, selfish liberty, as if every man was to regulate the whole of his conduct by his own will. The liberty I mean is social freedom. It is that state of things in which liberty is secured by equality of restraint. A constitution of things in which the liberty of no one man, and no body of men, and no number of men can find means to trespass on the liberty of any person, or any description of persons, in the society. This kind of liberty, is, indeed, but another name for justice; ascertained by wise laws, and secured by well-constructed institutions. I am sure that liberty, so incorporated, and in a manner identified with justice, must be infinitely dear to every one who is capable of conceiving what it is. But whenever a separation is made between liberty and justice, neither is, in my opinion safe."{6} That this was nothing more nor less than the philosophy of government that had already been embodied in our own Constitution at the time these words were written will only sound strange to those who have never studied the writings of Hamilton, Madison, or James Wilson, or who having read more recent works on our particular form of government saw no need of devoting attention to the debates in the State conventions that led to its adoption. Nor is the fact that this statement comes from Burke without its significance for the proper understanding of the genuine American concept of liberty. Because he opposed the French Revolution it has been generally assumed that he suddenly turned Tory. Yet in the same letter from which the above is taken he distinctly asserts "If this real practical liberty, with a government powerful to protect, impotent to evade it, be established, or is in a fair train of being established in the democracy, or rather collection of democracies, which seem to be chosen for the future frame of society in France, it is not my having long enjoyed a sober share of freedom, under a qualified monarchy, that shall render me incapable of admiring and praising your system of republics. I should rejoice even though England should be reckoned only as one among the happy nations, and should no longer retain her proud distinction, her monopoly of fame for a practical constitution, in which the grand secret had been found, of reconciling a government of real energy for all foreign and all domestic purposes, with the most perfect security to the liberty and safety of individuals. The government, whatever its name or form may be, that shall be found substantially and practically to unite these advantages, will most merit the applause of all discerning men."{7} Nothing, certainly, written in direct commendation of our own Constitution could be more apt and the fact that it was on such ground that Burke condemned the French Revolution shows clearly that not only could he still say with sincerity and truth as he had written nine years before: "If I know anything of myself, I have taken my part in political connections and political quarrels, for the purpose of advancing justice and the dominion of reason;"{8} it points to the further much more important fact that Burke and the leaders among the Whigs generally both in England and Scotland and in the United States and newly independent colonies attached a far more definite meaning to he words reason, justice and liberty than has been the case since the days when the French threw the world into confusion with what Carlyle very properly calls their "Gospel according to Jean Jacques." In consequence of our Revolution and the spirit it engendered the distinction between freedom from tyranny so soundly proclaimed in the Declaration of Independence and the sort of liberty solidly established, by our Constitution, was very largely lost sight of by the popular mind. This, assisted in no small degree by some of the party tactics of Jefferson and his followers, naturally enough opened the door wide to the introduction of a large measure of this evil and wholly alien influence. The result has been that those who write on this subject still persist in identifying the ethical and historical language of the Declaration of Independence with the mere metaphysical assertions of the French Declaration of the Rights of Man. Englishmen such as Sir Henry Maine,{9} David G. Ritchie{10} and Viscount Bryce{11} have not been slow to foster this apprehension but it is now high time that we dispense with any further English assistance in the interpretation of our constitutional history. The fact is that there is scarcely a point, certainly no important point in the Declaration as penned by Jefferson that had not been previously laid down in almost identical language by James Wilson in his Considerations on the Nature and Extent of the Legislative Authority of the British Parliament (1774) and in his Speech in the Convention for the Province of Pennsylvania (1775){12} and if there was a man in the colonies at the time who knew his own mind and was free from anything like French rationalistic and romantic tendencies it was assuredly Wilson. Moreover, while the French Declaration directly intended to wipe away the past in the wild hope that human nature needed only to be fed on metaphysical pseudo-scientific jargon in order to bring about a mathematically ordered society; there was not one among those who signed our Declaration or took part in the Federal convention but would have subscribed to the words in which Joseph De Maistre declared "One of the great errors of a century that professed all of them, was the belief that a political constitution could be written and created a priori, whereas reason and experience unite in establishing the fact that a constitution is a work of Providence and that what is most fundamental and most essentially constitutional in the laws of any nation cannot be written down in words."{13} But here again is there need of obviating a number of misconceptions. Owing to the hostility long felt for England a singular silence has prevailed even up to the present on the whole question of the sources whence the political ideas and principles embodied in our Constitution were actually derived. Many spoke of it as though it were in every part nothing more than the voluntary creation of man. More recently, however, public opinion has been gradually awakening to the fact that the American Constitution was in reality "a reaffirmation of principles already American by hereditary usage or long-established custom."{14} As James Russell Lowell has said the framers of our Constitution "were not seduced by the French fallacy that a new system of government could be ordered like a new suit of clothes. They would as soon have thought of ordering a new suit of flesh and skin. It is only on the roaring loom of time that the stuff is woven for such a vesture of their thought and experience as they were meditating. They recognized fully the value of tradition and habit as the great allies of permanence and stability."{15} This is of course of very great importance for anything like a practical appreciation of our Constitution. It is important to realize that the Fathers were guided by experience and that in consequence, as Sir Henry Maine put it, "The Constitution of the United States is colored throughout by political ideas of British origin."{16} But there is grave danger at present, especially in certain educational quarters of this country, lest some, with the lingering disposition of a provincial towards what was once the Mother country, should be inclined to stress the learned ignorance of Englishmen in this matter and forget the warning of Hamilton when he said "Many mistakes have arisen from fallacious comparisons between our government and theirs."{17} For one thing those who framed our Constitution did not believe in the "historic method"{18} of Sir Henry Maine and the modern English Austinians. They knew their English history and the history of English law and of the English Constitution better than any similar body of men in England in their day and what is more they understood certain vital points in that history better than some of those who are engaged in rewriting it in England now, along the lines of muddle-headed Austinian assumptions. Burke described the actual practice, if not the consciously uttered theory of every constitutional Whig, when writing to the Bishop of Chester he said "My opinion of the truth or falsehood of facts related in history is formed on the common rules of criticism: my opinion of characters, on those rules and the common principles of morality." "History is a preceptor of prudence, not of principles. The principles of true politics are those of morality enlarged; and I neither now do, nor ever will, admit any other." "The principles that guide us in public and in private, as they are not of our devising, hut moulded into the nature and essence of things, will endure with the sun and moon, -- long, very long after Whig and Tory, Stuart and Brunswick, and all such miserable bubbles and playthings of the hour, are vanished from existence and from memory."{19} Christopher J. Tiedman, well known for his little book The Unwritten Constitution of the United States, and who may be taken as representative of the many in this country that have gone over bag and baggage to the modern English way of thinking goes so far as to say that in the early days of our national life "little was thought of those 'glittering generalities,' as they were called, which made it a part of our constitutional law that man is possessed of certain inalienable rights, that cannot be denied to him by government, and which denied to government the power to do more than to prevent the infliction of injuries upon others."{20} Yet here again Burke by way of anticipation had already provided the answer. He is speaking of course of the Revolution of 1688 but his words apply equally to ours. "A man who condemns the revolution, has no longer any obnoxious persons to hang his principles on, and therefore, he and they may be made but too convenient to the executive powers of the time: -- but, for this reason, he is much more dangerous than formerly to the constitution and liberties of his country. Let me add further, that a man who praises the fact of the revolution, and abandons its principles, -- substituting the instrumental persons and establishments consequential to that event, in the place of its ends, is as bad as the former. To me, indeed, he seems to be infinitely worse, as he can have no sound moral principles of any kind, nor be a fit servant for honest government in any mode whatever. The one has lost his attachment, the last has deserted his principles and the last is by far the most culpable and the most dangerous."{22}

Whatever may be thought of those who, through, conflicting principles or the want of any, later put the Constitution to the proving test only to display the more clearly the saving elasticity and consistency of its texture, the all important question of the principles upon which it was formed has been sadly misinterpreted in the past, and at present has come to be almost wholly overlooked. Of those who framed it we are told that "they had a profound disbelief in theory, and knew 'better than to commit the folly of breaking with the past"{23} as though theory and experience were wholly incompatible. Or again how often have we not heard it repeated that these same men "cared less about political theory than about good government as if government of any kind did not necessarily imply and presuppose a corresponding theory. The modern method of tinkering with things established on the basis of mere expediency in the thought-saving belief that progress and civilization is "all of a piece with the development of an embryo or the unfolding of a flower"{24} might be all very well for the rustic in Horace who sat by the river bank waiting for the stream to flow by in the hope of crossing without wetting his feet, or it may even satisfy a certain type of Englishman who like a Roman of the fourth century can pursue his own selfish ends and watch an empire go to pieces in the superstitious conviction that what is eternal cannot be in need of human thought or private endeavor. But those who gave us our Constitution knew better. In the first place they were Whigs. As Jefferson said "Before the Revolution we were all good English Whigs, cordial in their free principles, and in their jealousies of their executive magistrate"{25} and Hamilton testified to the same fact when in the Letters from Phocion he said "The Spirit of Whigism cherishes legal liberty, holds the rights of every individual sacred, condemns or punishes no man without regular trial and conviction of some crime declared by antecedent laws; reprobates equally the punishment of the citizen by arbitrary acts of legislation, as by the lawless combination of unauthorized individuals."{26} Now the one cardinal point in Whig philosophy was that there were principles implicit in the British Constitution that were quite as essential and even more important for its proper working than any constitutional forms. Some of these, as founded in the nature of man and of things should, from the necessity manifest to reason, form the basis and articulate the structure of every legitimate government. Others following as a necessary consequence from the voluntary determination of the nation or its representative and rulers in the past gave to government its distinctive national modifications which as part of a constituted or established order admitted of all reasonable reform and improvement so long as justice were done to those whose rights and interests happened to be involved in the change. With regard to the first set of principles, namely those founded in natural law "it is" as Burke said, "the part of the speculative philosopher to mark the proper ends of government. It is the business of the politician who is the philosopher in action to find out proper means towards those ends, and to employ them with effect."{27} Though none of those present at the Federal Convention posed as speculative philosophers, with the single exception of Franklin, and while nearly all answered more or less closely Burke's definition of the politician, there were three, perhaps even more self-effacing than the rest who held the clearest title to both descriptions. These were Madison, Hamilton and Wilson; and it should be noted that just as the best most comprehensive defense and justification, of the Constitution, when proposed for ratification, came from them, so also was it they who in debate set forth the most essential proposals and suggested the measures that involved the closest and most fundamental application of principles. Moreover their respective writings show a wide and thorough acquaintance with all that had been written on government up to their day. But what, to our knowledge, has not been sufficiently remarked is the fact that with all their copious references they are found disagreeing with such authorities almost as often as they are discovered quoting them with approval. This of itself would argue that they themselves were in possession of a definite philosophy of their own. But we are not left to mere conjecture in this matter.

Though little has been said of the influence and significance of Scottish thought in the Colonies during this period the facts are such as to speak for themselves. Jefferson in his Memoir speaking of his early education at William and Mary College says: "It was my great good fortune, and what probably fixed the destinies of my life, that Dr. William Small of Scotland was then professor of Mathematics, a man profound in most of the useful branches of science, with a happy talent for communication, correct and gentlemanly manners, and an enlarged and liberal mind. He most happily for me, became soon attached to me, and made me his daily companion when not engaged in the school; and from his conversation I got my first views of the expansion of science, and of the system of things in which we are placed"{28} and Jefferson then adds that he gave regular lectures in ethics, rhetoric and belles lettres, a point in keeping with what then formed the ambition of almost every one who took up teaching in the schools and universities of Scotland.

James Wilson was a Scotchman by birth who came to this country in 1763 at the age of twenty-one after having studied at the universities of St. Andrew, Glasgow and Edinburgh. At the last of these he was a pupil of Hugh Blair's, while at Glasgow, just two years before his emigrating to the Colonies, the "Stalwart Whig"{29} and friend of Adam Smith and of Burke, John Millar,{30} began his lectures on law and on government, some of which were afterwards embodied in a once highly reputed work entitled Historical View of the English Government from the Settlement of the Saxons in Britain to the Revolution of 1688, and intended as a Whig offset to the Tory History of England by Hume. Moreover though Wilson was known as "the best read lawyer" in the Federal Convention and although the Marquis of Chastellux, when in Philadelphia, wondered at the extent of his library and the wide range of his learning, still his own works show a decided preference for the Scottish thinkers of the anti-sceptical and non-sentimental type.

Madison, on the other hand, was educated at Princeton at the time when John Witherspoon, who had come over from Scotland in 1768, was president of that college. The bearing of this on his development has been pointed out by William E. Rives in his Life and Times of Madison. "The increased attention paid to the study of the nature and constitution of the human mind, and the improvement which had been introduced into this fundamental department of knowledge by the philosophical inquiries of his own countrymen constituted a marked and most important feature of Dr. Witherspoon's reforms. Mr. Madison formed a taste for these inquiries, which entered deeply into the character and habits of his mind, and gave to his political writings in after life a profound and philosophic cast, which distinguished them eminently and favorably from the production of the ablest of his contemporaries."{31} With regard to the inquiries here referred to, the occasion for them had been furnished by the fact that throughout Scotland there had been a growing conviction among scholars of the previous generation that the teachings of Shaftesbury and Hutcheson were sensualizing and degrading the old philosophy of Aristotle and of the shoolmen. As Witherspoon himself said "As for logic, it is well known this part of education is fallen into great contempt, and it is not to be expected that such brisk and lively spirits who have always hated everything that looked scholastic like, can bear to be tied down to strict rules of argumentation." While elsewhere dealing with the new inquiries he states "Some late writers have advanced, with great apparent reason, that there are certain first principles or dictates of common sense which are either simple perceptions or seen with intuitive, evidence. These are the foundation of all reasoning, and without them to reason is a word without meaning. They can no more be proved than you can prove an axiom in mathematical science. These authors of Scotland have lately produced and supported this opinion, to resolve at once all the refinement and metaphysical objections of some infidel writers."{32}

This was the philosophy of common sense which was worked up in Scotland by Reid and Beattie in opposition to Hume and Berkley, but neither of these was its real originator. The first to propound it in developed form was the Jesuit Buffier (1661-1737) whose many works were highly appreciated during the eighteenth century, while the controversies they were intended to meet were still going on. Voltaire praised some of them loudly which, of course, of itself signifies very little beyond the fact that they thus received rather wide advertisement. On the other hand several articles in the first Encyclopedia contain whole pages literally copied from his Discours sur l'étude et la marche des sciences without any acknowledgment of their real author.{33} Sir Joshua Reynolds, the life-long friend of Edmund Burke, in his Discourses adopted and illustrated the theory of beauty which the Pére Buffier had suggested{34} while George Campbell, principal of the Marishal College, Aberdeen, was among the first in Scotland to adapt his doctrine on common sense to the philosophy of eloquence, In the well known work Philosophy of Rhetoric, the first outline of which was read in 1757 before a private literary society that included Reid and Beattie among its members, Campbell says "The first among the moderns who took notice of this principle, as one of the genuine springs of our Knowledge, was Buffier, a French philosopher of the present century, in a book entitled Traité des Premiéres Verités: one who, to an uncommon degree of acuteness in matters of abstraction, added that solidity of judgment which hath prevented in him, what had proved the wreck of many great names in philosophy, his understanding becoming the dupe of his ingenuity. This doctrine hath lately in our own country, been set in the clearest light, and supported by invincible force of argument by two very able writers in the science of man, Dr. Reid in his Inquiry into the Human Mind and Dr. Beattie in his Essay on the Immutability of Truths."{35}

Buffier's direct aim had been to counteract the idealism of Descartes and the sensism of Locke by showing that these two systems had been constructed on mere half-truths and that in order to lay the true foundation of a sound and common sense philosophy nothing more was required than an accurate restatement of what both had initially asserted on grounds made to appear contradictory but which in reality were only opposite yet essentially complementary.{36} The real significance of his doctrine and of the movement which his writings started, especially among the Scotch, was clearly indicated by Henry Hume or Lord Kaimes in Sketches of the History of Man (1774) where, besides incorporating a goodly number of Buffier's ideas into his work as if they were his own, he says "I have lately met with a very sensible and judicious treatise wrote by Father Buffier about fifty years ago, concerning first principles and the source of human judgments which, with great propriety, he prefixed to his treatise of logic. And indeed I apprehend it is a subject of such consequence, that if inquisitive men can be brought to the same unanimity in the first principles of the other sciences, as in those of mathematics and natural philosophy (and why should we despair of a general agreement in things that are self-evident?), this might be considered as a third grand era in the progress of human reason."{37} This, of course, implied the actual undoing of one of the worst consequences of the Reformation, namely, the socially disruptive and centrifugal tendencies instilled into countless minds by the Protestant doctrines of "private judgment" and "personal inspiration." Milton in his Treatise of Civil Power in Ecclesiastical Causes had expressed something of far wider import than any private opinion of his own when he declared, "I here mean by conscience or religion that full persuasion whereby we are assured, that our belief and practice, as far as we are able to apprehend and probably make appear, is according to the will of God and His Holy Spirit within us, which we ought to follow much rather than any law of man, as not only his word everywhere bids us, but the very dictate of reason (sic) tells us." As is quite plain and as subsequent forms of Protestantism have come to admit practically, the "assurance of the Holy Spirit" here is nothing more than sentiment and emotion.{38} Moreover, the moral sense of Shaftesbury, Hutcheson and Hume is only a modification of the same, minus all assumptions of the supernatural and with the additional identification of moral sentiment with the pantheistic notion of the natural law revived at the Renaissance from the writings of the Stoics{39} and from the Roman jurists. In either case, what was held to be normative of individual action necessarily excluded all ground for rational accord, seeing that sentiment is of its very nature something wholly particular to each one of us. And it was precisely because of their adoption of Hume's point of view in this matter that Bentham and Austin were led to revive Hobbes'{40} notions on society and government, notions which will be found confuted by Hamilton as early as in his eighteenth year when he wrote his second pamphlet The Farmer Refuted in defense of the American cause.{41}

Certainly was it on no such shifty ground as this that our Constitution was erected. Pelatiah Webster spoke the mind of the leaders at least among those who framed it when in his memorable document A Dissertation on the Political Union and Constitution of the Thirteen United States he laid it down as fundamental that "This union, however important, cannot be supported without a constitution founded on principles of natural truth, fitness and utility." They were not afflicted with any of our present day cosmic qualms, for they were not agnostics. They knew their own minds and had a well reasoned and reasonable belief in divine Providence, which very naturally relieved them from any sense of responsibility for the universe as a whole, as well as from any fear lest somewhere behind every certainty in their own minds it might still be playing tricks. In other words they knew that whatever the abuses of men might be, the universe itself remained reasonable and that man himself had been reasonably made. The result was there was not one of them but would have recognized as his own Burke's conviction that "There is nothing in the world really beneficial that does not lie within the reach of informed understanding and a well directed pursuit. There is nothing that God has judged good for us, that He has not given us the means to accomplish both in the natural and the moral world."{42}

How Madison and Wilson came to be of this mind in consequence of their training along the lines of the Scottish common sense philosophy we have already seen. In Hamilton's case this influence is not so fully traceable. Yet it could scarcely have been wanting in any degree much below that enjoyed by the other two. In the first place he was himself half Scotch and proud of the fact. Besides, the Rev. Hugh Knox, Hamilton's pastor and teacher at St. Croix, though originally from Ireland, was a Princeton man and a Presbyterian minister apparently very much of Dr. Witherspoon 's school of thought, seeing that in 1777 he drew up an argument in favor of the American cause entitled An Address to America by a Friend in a Foreign Government which he sent to the Continental Congress for publication.{43} Francis Barber, whose school Hamilton first attended after his arrival in New York, was another Princeton man as was also Elias Boudinot with whom he lived, and he himself came into personal contact with Dr. Witherspoon at the time when the latter's reputation for philosophical learning was already considerable throughout the colonies and when those with Princeton connections could scarcely escape being interested in the reforms he was instituting.

But even if the facts just adduced proved nothing with regard to Hamilton's acquaintance with Scottish common sense philosophy, there was another source of fairly consistent thought, knowledge of which he certainly did share with Wilson and Madison, and which by itself will fully explain the evident fact that in all his wide and varied reading of European Authorities on government, law and political science, he shows a discernment which cannot be accounted for otherwise than by his being in possession of a definite philosophy of his own. This source of thought was no other than the traditional Whig theory of government, which, as we have seen in the previous chapter, was formulated mainly on the basis of scholastic principles and set forth, as occasion demanded, against adverse theories and erroneous political views in order that the Medieval tradition of liberty embodied in English law and constitutional forms might be preserved and developed. The philosophy of common sense was without doubt eminently calculated, under the circumstances, to keep the mind true to itself in the face of Protestant prejudice and save it from confusion when confronted with the quibbles of the sceptic, the negations of the rationalist or the emotional vagaries of the disciples of Rousseau. For those who grasped it sincerely, it would naturally be conducive to the maintenance of the single eye. But in regard to the complex problem of government it had, as a system, little to suggest that was positively constructive. As the Whig doctrines, on the other hand, are nowhere found fully expounded in any one work or set of writings, if we except Burke's tracts and speeches, the question may here be asked what evidence is there that Hamilton, Wilson and Madison knew anything of the writings of Bellarmine and Suarez? With regard to all three there is this peculiar fact to be noted and accounted for. They were strangely in agreement as to all fundamental and vital points. Their reasons for disagreeing with such authorities as they do acknowledge, are almost invariably the same and are moreover in accord with scholastic principles. Nor is there any apparent sign that long continued consultations had occurred between them previous to the time of the Federal Convention when the ideas of all three were already fairly well formed. All three were great readers. While at Princeton Madison is known to have devoted much of his time to theology with the view of exploring the evidences of Christianity, and we have it on the authority of Mr. Gaillard Hunt that there was a copy of Bellarmine in the library there at the time.{44} Many years later when Jefferson was thinking of the library of the University of Virginia he wrote to Madison and asked him for a list of works on theology "knowing" as he said "that in your earlier days you bestowed attention on this subject." In his answer Madison said with reference to a second request making it clear that only theology need be included, "I send you the list I had made out (covering the first five centuries), with an addition on the same paper of such books as a hasty glance of a few catalogues and my recollection suggested. Perhaps some of them may not have occurred to you, and may suit the blank you have not filled." Now the first two names on this list are those of St. Thomas Aquinas and Duns Scotus, while Bellarmine is mentioned immediately after Luther and Calvin, against whom his works were chiefly written. If Suarez is not mentioned the omission argues nothing, since his best known works would naturally be included under the head of "the moral and metaphysical part" of Divinity which Madison of set purpose did not draw on, as Jefferson had expressed himself satisfied with his own list of works in the branch.{45} As for Wilson, we have had evidence enough of the manner in which he insists on the unusual aspect of the theory that was incorporated into the Constitution, a view which was more than borne out by the difficulties encountered in trying to get others to understand the true nature of the proposed form of government as planned in the Convention. Yet nothing in Wilson's writings would lead one to suspect that he considered any part of this theory as originating with himself. On the other hand he does say in one place, "that the foundation at least of a separate, an unbiased, and an independent law education should be laid in the United States" since "by the revolution in the United States, a very great alteration -- a very great improvement -- . . . has taken place in our system of Government."{46} And Madison in a letter to Jefferson on the subject of a textbook for the Law School was evidently of the same mind when he wrote: "It is certainly very material that the true doctrines of liberty, as exemplified in our political system, should be inculcated on those who are to sustain and administer it. It is, at the same time not easy to find standard books that will be both guides and guards for the purpose. Sidney and Locke are admirably calculated to impress on young minds the right of nations to establish their own Governments, and to inspire a love of free ones, but afford no aid in guarding our Republican charters against constructive violations. The Declaration of Independence, though rich in fundamental principles, and saying everything that could be said in the same number of words, falls nearly under a like observation. The 'Federalist' may fairly enough be regarded as the most authentic exposition of the text of the Federal Constitution, as understood by the Body which prepared and the authority which accepted it. Yet it did not forsee all the misconstructions which have occurred, nor prevent some that it did foresee."{47}

In Hamilton's case there seems to be no apparent argument for any direct acquaintance on his part with the writings of the two Jesuits beyond the fact that he was a Whig and the general one of his marked agreement with the other two, together with the striking conformity of almost all his principles on Government with those of the scholastic writers. One point, however, does make clear and that is, that whatever the source of our theory of Government, it was certainly not derived from the Votaries of Enlightment in Europe. Coming, moreover, from one who as a political thinker was second to Burke only, if not his peer, the following statements are all the more significant. He said:

"Facts, numerous and unequivocal, demonstrate that the present Era is among the most extraordinary which have occurred in the history of human affairs. Opinions, for a long time, have been gradually gaining ground, which threaten the foundations of religion, morality and society. An attack was first made upon the Christian revelation, for which natural religion was offered as the substitute. The Gospel was to be discarded as a gross imposture, but the being and attributes of God, the obligations of piety, even the doctrine of a future state of rewards and punishments, were to be retained and cherished.

"In proportion as success has appeared to attend the plan, a bolder project has been unfolded. The very existence of a Deity has been questioned and in some instances denied. The duty of piety has been ridiculed, the perishable nature of man asserted, and his hopes bounded to the short span of his earthly state. Death has been proclaimed an Eternal Sleep; 'the dogma of the immortality of the soul a cheat, invented to torment the living for the benefit of the dead.' Irreligion, no longer confined to the closets of conceited sophists, nor to the haunts of wealthy riot, has more or less displayed its hideous front among all classes.

"Wise and good men took a lead in delineating the odious character of despotism, in exhibiting the advantages of a moderate and well balanced Government, in inviting nations to contend for the enjoyment of national liberty. Fanatics in political science have since exaggerated and perverted their doctrines. Theories of Government unsuited to the nature of man, miscalculating the force of his passions, disregarding the lessons of experimental wisdom, have been projected and recommended. These have everywhere attracted Sectaries, and everywhere the fabric of Government has been in different degrees undermined.

"A league has at length been cemented between the Apostles and Disciples of irreligion and of anarchy; Religion and Government have both been stigmatized as abuses; as unwarrantable restraints upon the freedom of man; as causes of the corruption of his nature, intrinsically good;{48} as sources of an artificial and false morality which tyrannically robs him of the enjoyment for which his passions fit him, and as clogs upon his progress to the perfection for which he was destined.

"As a corollary from these premises, it is a favorite tenet of the Sects that religious opinion of any sort is unnecessary to society; that the maxims of a genuine morality and the authority of the magistracy and the laws are sufficient and ought to be the only security for civil rights and private happiness

"As another corollary it is occasionally maintained by the same sect that but a small portion of power is requisite to Government; that even this portion is only temporarily necessary, in consequence of the bad habits which have been produced by the errors of ancient systems; and that as human nature shall refine and ameliorate by the operation of a more enlightened plan, government itself will become useless and society will subsist and flourish free from shackles.

"If all the votaries of this new philosophy do not go the whole length of its frantic creed, they all go far enough to endanger the full extent of the mischiefs which are inherent in so wide and fatal a scheme every modification of which aims a mortal blow at the vitals of human happiness.

"The practical development of this pernicious system has been seen in France. It has served as an engine to subvert all her ancient institutions, civil and religious, with all the checks that served to mitigate the rigor of authority; it has hurried her headlong through a rapid succession of dreadful revolutions, which have laid waste property, made havoc among the arts, overthrown cities, desolated provinces, unpeopled regions, crimsoned her soil with blood, and deluged it in crime, poverty and wretchedness, and all this as yet for no better purpose than to erect on the ruin of former things a despotism unlimited and uncontrolled; leaving to a deluded, an abused, a plundered, a scourged, and an oppressed people, not even the shadow of liberty to console them for a long train of substantial misfortunes, of bitter suffering."{49} Talleyrand well said of Hamilton "Il a diviné l'Europe."

{1} Past and Present, Book III, ch. XIII.

{2} History of the Origin of Representative Government (1861), P. 349.

{3} Essays by Mazzini: Camelot Series, pp. 229, 308.

{4} History of Freedom and Other Essays, p. 3.

{5} Lectures on Jurisprudence, edited by B. Campbell, p. 159.

{6} Correspondence, vol. I, p. 312.

{7} Ibid., vol. III, p. 106.

{8} lbid., p. 112.

{9} Ancient Law (1887), Am. ed. ch. IV, p. 91.

{10} "Natural Rights (1895), ch. I, p. 5.

{11} "Modern Democracies, vol. I, p. 43.

{12} Works, vol. II, pp. 505-565.

{13} Essai sur le Principe Générateur des Constitutions Politiques, p. 1.

{14} C. E. Stevens, Sources of the Constitution of the United States, p. 53.

{15} Democracy.

{16} Popular Government (1886), p. 207.

{17} Speech on the Constitution June 21, 1788. Works, Federal edition, vol. II, p. 33.

{18} This consists in drawing inductive conclusions from a wide investigation of past historic facts without any reference to the bad or good, true or false in human actions or thoughts, which is about as sensible as for a sea captain to set out without chart or compass or any concern for the fixed points in the heavens and expect to reach his destination by merely watching the wake of the ship.

{19} Correspondence, vol. I, pp. 331, 332, 333.

{20} P. 79. The last part of this statement expresses Locke's idea but not that of the framers of our Constitution.

{22} Ibid., p. 335, speaking on the reform of representation, Burke also said: "Whenever I speak against theory, I mean always a weak, erroneous, fallacious, unfounded or imperfect theory: and one of the ways of discovering that it is a false theory, is by comparing it with practice." Works, vol. III, p. 357. Oxford Univ. Press edition.

{23} Democracy.

{24} Spencer, Social Statics (1892), p. 32.

{25} Works, 2d Randolph edition, vol. I, p. 65.

{26} Loc. cit., vol. IV, p. 231.

{27} Works, vol. II, p. 82.

{28} Loc. cit., p. 2.

{29} Francis W. Hirst, Adam Smith, p. 222.

{30} D. Francis Jeffrey said of him: "It may afford a clearer conception of his intellectual character, to say, that it corresponded pretty nearly with the abstract idea that the learned of England entertain of a Scottish philosopher; a personage, that is, with little or no deference to the authority of great names, and not very apt to be startled at conclusions that seem to run counter to received opinions or existing institutions; acute, sagacious and systematical; irreverent towards classical literature; rather indefatigable in argument, than patient in investigation; vigilant in observation of fact, but not so strong in their number as skillful in their application." Edinburgh Review, 1803, vol. III, p. 156.

{31} Vol. I, p. 21.

{32} J. McCosh, The Scotttsh Philosophy, pp. 185, 188.

{33} Biographie Universelle (1812), Art. Buffier.

{34} Francis Jeffrey, Alison on Taste -- see his contributions to the Edinburgh Review, in Modern British Essayists (1860).

{35} P. 60 (1859), see Oeuvres Philosophiques De Pére Buffier, edited by F. Bouillier, 1853.

{36} The influence of this on James Wilson is seen in the following words: "Frequent," says he in his lectures on Law, "and laborious have been the attempts of philosophers to investigate the manner, in which things external are perceived by the mind. Let us imitate them neither in their fruitless searches to discover what cannot be known; nor in framing hypotheses which will not bear the test of reason, or of intuition; nor in rejecting self-evident truths, which, though they cannot be proved by reasoning, are known by a species of evidence superior to any that reasoning can produce." Works, vol. I, p. 215.

{37} Vol. II, p. 240: James Wilson's attitude in this matter was that "Despotism, by an artful use of 'superiority' in politics; and scepticism by an artful use of 'ideas' in metaphysics, have endeavored -- and their endeavors have frequently been attended with too much success -- to destroy all true liberty and sound philosophy. By their baneful effects, the science of man and the science of government have been poisoned to their very fountains. But those destroyers of others have met or must meet with their own destruction." Works, vol. I, p. 245.

{38} Guizot, himself a Calvinist, accounts for the earlier Protestant notion of the "Holy Spirit" in the following manner: "The birth of faith especially if derived, without reflection, from natural belief that passes to the new state without intermediary knowledge, often takes the character of a sudden revolution equally unforeseen and obscure even to the one affected. And thus is it readily explained how the thought of a direct intervention on the part of God should be appealed to on such an occasion. But this idea, in the way in which it is commonly understood (among Protestants), is gradually giving ground before the more careful study and better knowledge of the facts." Meditations et Études Morales: Quel est le vrai sens du mot foi.

{39} Among the earliest to revive this notion was La Boetie, the friend of Montaigne, in a brief essay entitled De La Servitude Volontaire where amidst much else of a like tenor he says: "Le naturel de l'homme est bien d'estre franc, et de la vouloir estre: mais aussi sa nature est telle, que naturellement il tient le ply que la nourriture lui donne." This revived notion of the Stoics is that also of Montesquieu's second chapter of L'Esprit des Lois.

{40} Wilson evidently had both Hobbes and Hume in mind when he wrote: "A body of morality, pretending to be complete, has sometimes been built on a single pillar of the inward frame: the entire conduct of life has been accounted for, at least thc attempt has been made to account for it, from a single quality or power. Many systems of this kind have appeared, calculated merely to flatter the mind. According to some writers man is entirely selfish; according to others universal benevolence is the highest aim of his nature. One founds morality upon sympathy solely; another exclusively upon utility. But the variety of human nature is not so easily comprehended or reached. It is a complicated machine; and is unavoidably so, in order to answer the various and important purposes, for which it is formed and designed." Works, vol. I, p. 212. Thus we see that the Fathers knew of those "other thinkers" of whom Viscount Bryce boasts, who in England "were drawing from the actual experience of mankind arguments which furnished another set of foundations on which democracy might rest" (Modern Democracies, vol. I, p. 44), and they very intelligently disagreed with them for leaving the rational ideal out of all account.

{41} Loc. cit., vol. I., p. 61.

{42} Works, vol. II, p. 379.

{43} H. Jones Ford, Alexander Hamilton, p. 27.

{44} Loc. cit. It is a notable fact that these men seemed entirely free from any antagonism to the Catholic religion. Writing of toleration Wilson said: "For its reception and establishment where it has been received and established, the world has been thought to owe much to the inestimable writings of Locke. To the inestimable writings of that justly celebrated man, let the tribute of applause be plenteously paid; but while immortal honors are bestowed on the name and character of Locke, why should an ungracious silence be observed with regard to the name and character of Calvert?

{45} Works, vol. III, pp. 450, 451. For Jefferson's letter and the list see W. C. Rives' Life and Times of Madison, vol. I, pp. 643, 644.

{46} Works, vol. I, pp. 23, 24.

{47} Works, vol. III, p. 481.

{48} Wilson noted the opposite extreme from which this was in some measure a revulsion. "It has been the custom," said he, "of certain philosophers, and, I must here add, of certain divines, to represent human nature as in a state of hostility endless and uninterrupted, internal as well as external. According to these philosophers and according to these divines, he is at war with all the world as well as with himself." Works, vol. I, p. 218.

{49} Works, vol. VIII, pp. 425-428.

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