How The Scots Invented The Modern World Part 3

These words brought Hutcheson a major step closer to resolving the fundamental questions about G.o.d and man he had encountered at Glasgow. At the prompting of Molesworth and his Dublin friends, he began to put his answers on paper.

II.

How do human beings become moral beings, who treat one another with kindness, regard, and cooperation, rather than brutality and savagery? Scottish Presbyterians knew how. It was inscribed in the The The Shorter Catechism, Shorter Catechism, which every child memorized: "The moral law is summarily comprehended in the Ten Commandments." which every child memorized: "The moral law is summarily comprehended in the Ten Commandments."

Under the influence of Carmichael and Shaftesbury and Pufendorf, Hutcheson had come to think otherwise. All human beings are born with an innate moral sense, Hutcheson believed, a fundamental understanding of the nature of right and wrong, which G.o.d gives to His creatures in His own image. " From the very frame of our nature From the very frame of our nature we are determined to perceive pleasure in the practice of virtue, and to approve of it when practiced by ourselves or others." we are determined to perceive pleasure in the practice of virtue, and to approve of it when practiced by ourselves or others."

In other words, we are born to make moral judgments, just as we are born with a mouth to eat and eyes to see. Moral reasoning ("what he did was good, what she did was bad") is a natural human faculty, but it differs from other kinds of reasoning, such as judging distances or adding up columns of numbers. It is expressed through our feelings and emotions. The most important is love, particularly love for others, which is the starting point of all morality. Love also proves man is not inherently selfish, as Thomas Hobbes had claimed. "There is no mortal," Hutcheson a.s.serted, "without some love towards others, and desire in the happiness of some other persons as well as his own." A benevolent "fellow-feeling" for other creatures and a "delight in the Good of others" becomes the basis of our sense of right and wrong. We decide that what helps and pleases a person we love is good, because it also gives us pleasure. What injures him is bad, because it causes us pain to see him unhappy. We begin to realize that the happiness of others is also our happiness.

Everyone's ultimate goal in life, Hutcheson decided, is happiness. "He is in a sure state of happiness who has a sure prospect that in all parts of his existence he shall have all things he desires." Vulgar people a.s.sume, mistakenly, that this means gratification of physical desires: food, drink, s.e.x. But for Hutcheson the highest form of happiness was making others happy. "All men of reflection, from the age of Socrates," he wrote in one of his Dublin essays, "have sufficiently proved that the truest, most constant, and lively pleasure, the happiest enjoyment of life, consists in kind affections to our fellow creatures."

It is the inner glow we feel when we make a child smile. For Hutcheson, our emotional lives reach out, instinctively, toward others, in bonds of affection and love, in ever widening circles, as our interactions with others grow and become more numerous. The basic rules of morality, including Christianity's rules, teach us how to act in the world, so that we can make as many others happy as possible.

Self-interest and altruism are no longer at odds. In our highest moral state they merge, and become "two forces compelling the same body to motion." They form "an invariable constant impulse towards one's own perfection and happiness of the highest kind" and "toward the happiness of others." Virtue is indeed its own reward. But it is the highest reward of all-a contented mind and soul.

If, three hundred years later, all this sounds ludicrously naive, we need to think again. Hutcheson was no fool. He was acutely aware of the standard objections to his view, not only from cynics like Thomas Hobbes but from his fellow Calvinists as well. He knew people could behave viciously, and hurt others. He knew human beings often ignore their consciences and the "bonds of beneficence and humanity" that bind us together in society.

But, he was a.s.serting, that is not their true nature. As G.o.d's creatures, they carry within them the image of His infinite goodness. By using their reason and listening to their heart, they will choose right over wrong, and the good of others rather than gratification for themselves. The proof of this had come, interestingly enough, in his own life. When his grandfather Alexander died, he had left his house and estate to Francis, his favorite grandchild, bypa.s.sing in his will the eldest grandson, Hans. Francis very properly turned it down, although it would have raised his standard of living substantially. When Hans learned what his brother Francis had done for his benefit, then he, too, refused, insisting their grandfather's original wishes be carried out. The brothers spent the next several months arguing back and forth, each trying to force on the other the good fortune left to them by their grandfather-as perfect an example of altruism in action as Shaftesbury or anyone else could ask.5 Human beings are not vicious by nature, was the lesson Hutcheson learned from this and a mult.i.tude of other little examples. They can do the right thing, and do right by others, and they prove it in their own lives every day. Human beings are not vicious by nature, was the lesson Hutcheson learned from this and a mult.i.tude of other little examples. They can do the right thing, and do right by others, and they prove it in their own lives every day.

Hutcheson published his first book in 1725, and dedicated it- An An Inquiry into the Original of Our Ideas of Beauty and Virtue Inquiry into the Original of Our Ideas of Beauty and Virtue-to the teacher he had never met, Shaftesbury. The book made him celebrated not only in Dublin, but in England and eventually on the Continent as well. He followed with another edition in 1726, and then two years later published an Essay on the Nature and Conduct of the Pa.s.sions and A fections. Essay on the Nature and Conduct of the Pa.s.sions and A fections. Its impact was such that when his old teacher at Glasgow, Gershom Carmichael, died, Hutcheson's name inevitably came up at the top of names to replace him. Its impact was such that when his old teacher at Glasgow, Gershom Carmichael, died, Hutcheson's name inevitably came up at the top of names to replace him.

The reaction from the Kirk establishment was overwhelmingly negative. They saw in Francis Hutcheson everything they disliked in the "new light" tradition: belief in a "natural" morality, downplaying the importance of the Ten Commandments, questioning the importance of predestination. Just that year, in 1729, they had finally forced John Simson out of his chair as Professor of Theology. They were prepared to do at least the same to prevent Hutcheson from teaching.

The younger faculty members, however, saw him as a potential leader of reform. Several English students studying at Glasgow announced that if Hutcheson was not hired, they would leave the university. Even so, it is doubtful whether Hutcheson could have taken Carmichael's place if he had not had an unexpected and powerful ally waiting in the wings.

This was Archibald Campbell, Lord Islay, later the fourth Duke of Argyll. He was a remarkable man in an age of remarkable men. His grandfather was the Earl of Argyll who had been Andrew Fletcher's friend and who had lost the battle of Sedgemoor in 1685; his father was the Argyll who bested the Earl of Mar on the field at Sheriffmuir. Islay concentrated on politics rather than war, and rose to become the most powerful man in Scotland. He had strong connections both in the Lowlands and the Highlands-in the latter he was head of the great Campbell clan-as well as at Westminster and at Court. For forty years he used those connections ruthlessly to further the interests of his Whig allies and the House of Hanover.

But he was also a man with large intellectual and scientific interests. He was good friends with Robert Simson the mathematician, and a skilled amateur chemist. He provided generous patronage to Scotland's universities, particularly the University of Glasgow, where his word was virtually law. Between 1722 and his death in 1761, Islay had his hand in no less than fifty-five university appointments, not only at Glasgow but also at Edinburgh. He completed the progressive transformation of Scotland's universities that Carstares and Dunlop had begun. He created Glasgow's chair of Practical Astronomy and its first chair in chemistry. He donated plants and materials for its bonatical gardens. Some of Scotland's most distinguished scientific names, including Robert Simson, the chemist Joseph Black, and the medical theorist William Cullen, owed their careers in one way or another to Islay. Without him, in fact, Glasgow might never have played a major part in the Scottish Enlightenment.

His most important act in that regard was his support of Francis Hutcheson. Islay recognized how useful Hutcheson could be at Glasgow, as a voice for reform and Whig ideals, and as a thorn in the side of the hidebound traditionalists. He pressured the faculty and regents at Glasgow to give way, and so Hutcheson beat his two rivals (one of them Carmichael's own son) for the post. It is a delicious irony that without the self-interested help of Islay, the most feared but also the most hated politician of his day, Hutcheson and his philosophy of moral altruism would never have enjoyed the sort of influence it did.

If the older generation of faculty resented his presence at Glasgow, Hutcheson never allowed it to become an obstacle to his teaching or writing. He carefully prepared his cla.s.s lectures so that they never served as a cause for scandal. He turned out to be a brilliant teacher- so good, in fact, that his cla.s.ses were always overbooked and he had to hire an a.s.sistant.

They were crowded for another reason. Hutcheson broke with ancient precedent and presented his cla.s.ses on moral philosophy in English, rather than Latin. He may have been the first professor in Europe to teach in the vernacular, instead of the centuries-old language of academic learning. It not only expanded the range of students who could attend his cla.s.s, but also introduced a note of informality and spontaneity into his lectures, which made their impact on hearers even greater. One of his students later described what taking a cla.s.s from Hutcheson was like: "He was a good-looking man, of engaging countenance. He delivered his lectures without notes, walking backwards and forwards in the area of his room. As his elocution was good, and his voice and manner pleasing, he raised the attention of his hearers at all times, and when the subject led him to explain and enforce the moral virtues, he displayed a fervent and persuasive eloquence which was irresistible."

Hutcheson lectured on Natural Religion, Morals, Jurisprudence, and Government five days a week, and delivered a sermon every Sunday on "the excellence of the Christian religion." Three days a week Hutcheson introduced another important innovation: discussing a.s.signed readings directly with students, usually the ancient authors on morality such as Aristotle and Cicero. By his own example, and by exerting a gentle pressure on his colleagues, Hutcheson became a driving force behind curriculum reform at Glasgow. He pushed training in the Greek language and the ancient cla.s.sics into the curriculum, as the foundation for polite learning. He helped to appoint other reform-minded colleagues to important chairs. Glasgow University soon gained a reputation for academic excellence and learning. English and Scottish observers considered its students better prepared and more intellectually engaged than those of Edinburgh-even though so many came from less than "the best families," but rather from middle-cla.s.s or even poor origins.

Hutcheson's reforms at Glasgow served as the model for academic reform at the other Scottish universities later in the century. But through it all, Hutcheson never lost sight of his main goal: "to change the face of theology in Scotland," as he put it. He wanted to turn his fellow clergymen away from the hard, inflexible dogmas of John Knox and refocus their energies on the moral questions their paris.h.i.+oners faced every day. Hutcheson wanted the Presbyterian faith to take on a more humane, comforting face. It caused controversy. "I am already," he wrote to a friend in 1742, "called New Light here. I don't value it for myself, but I see it hurts some ministers who are most intimate with me." Nonetheless, within the Kirk he managed to create a lobbying group that later become known as the Moderate Party. It included colleagues such as William Leechman, whom Hutcheson brought in as Professor of Theology, former students such as Alexander Carlyle and Matthew Stewart (whose son Dugald would become the University of Edinburgh's most famous teacher), and ministers such as William Robertson and Hugh Blair, who chose Hutcheson as their professional role models.

All of them embraced Hutcheson's main point, that the message of Christianity was above all a moral message. The pulpit was not a place to inspire fear and terror, but to uplift and inspire. Church should be the school of men's consciences and a place to cultivate a disinterested benevolence and affection for our fellowmen. It becomes, in fact, a training ground for Shaftesbury's polite culture. Unlike their French counterparts, the great minds of the Scottish Enlightenment never saw Christianity as their mortal enemy-not even Hume, the self-proclaimed skeptic. For the clerical disciples of Hutcheson, Church and Enlightenment were natural allies, in much the same way as science and the humanities were not pitted against each other, but were two halves of the same intellectual enterprise.

Yet Hutcheson's most lasting impact lay outside his immediate profession. It touched students such as Adam Smith, who arrived to study at Glasgow in 1737 and quickly fell under Hutcheson's spell. He sat in on the great man's lectures on moral philosophy from 7:30 to 8:30 in the morning three days a week, and then attended his main course on the philosophy of law and politics. There, Smith and other listeners would discover that the underlying principles of all human behavior were part of an "immense and connected" moral system governed by the dictates of natural law. That included " oeconomicks, oeconomicks, or the laws and rights of the several members of a family," as well as " or the laws and rights of the several members of a family," as well as "private rights, or the laws obtaining in natural liberty." or the laws obtaining in natural liberty."

The crucial element in each, the part that enabled everything else to move, was always the same: liberty. Human beings are born free and equal. The desire to be free survives, even in the face of the demands for cooperation with others in society. Society acknowledges it as a natural right, which it must leave intact. That right is universal; universal; in other words, it applies to all human beings everywhere, regardless of origin or status. in other words, it applies to all human beings everywhere, regardless of origin or status.

As nature has implanted in every man a desire of his own happiness, and many tender affections towards others . . . and granted to each one some understanding and active powers, with a natural impulse to exercise them for the purposes of these affections; 'tis plain each one has a natural right to exert his power, according to his own judgement and inclination, for these purposes, in all such industry, labor, or amus.e.m.e.nts, as are not hurtful to others in their persons or goods. . . .

Hutcheson took this basic principle of liberty out beyond the political realm. He not only endorsed Lockean ideas of freedom of speech and freedom of religion. He challenged other forms of oppression, which Locke and even Shaftesbury had ignored.

One was the legal subjection of women. Hutcheson defined rights as universal, and did not recognize any distinction based on gender. The other, even more important, was slavery. "Nothing," he said, "can change a rational creature into a piece of goods void of all rights." In fact, Hutcheson's lectures, published after his death under the t.i.tle A A System of Moral Philosophy, System of Moral Philosophy, were "an attack on all forms of slavery as well as denial of any right to govern solely on superior abilities or riches." They would inspire antislavery abolitionists, not only in Scotland but from London to Philadelphia. were "an attack on all forms of slavery as well as denial of any right to govern solely on superior abilities or riches." They would inspire antislavery abolitionists, not only in Scotland but from London to Philadelphia.

Francis Hutcheson had created a new political and social vision, one that went far beyond Locke or any comparable English thinker: the vision of a "free society." He is Europe's first liberal in the cla.s.sic sense: a believer in maximizing personal liberty in the social, economic, and intellectual spheres, as well as the political. But the ultimate goal of this liberty was, we should remember, happiness-which Hutcheson always defined as resulting from helping others to be happy.

Freedom's ends are not selfish ones, he believed; they are in truth governed by G.o.d, through our moral reasoning. Hutcheson never worried about the dangers of letting people do or say whatever they wanted, because in his mind a free society enjoys a firm and permanent backstop, our innate moral sense, which enables us to distinguish the vicious from the virtuous, and the decent from the obscene, just as our intellectual reason enables us to sort out truth from falsehood. "The nature of virtue," Hutcheson wrote, "is thus as immutable as the divine Wisdom and Goodness."

Hutcheson's doctrine of happiness, then, had two faces. It involved, on one side, gratification of the self through a joyous and contented life. When Thomas Jefferson added "the pursuit of happiness" to his list of inalienable rights of man in the Declaration of Independence, he was emphasizing this side of Hutcheson's legacy. On the other, it was also intensely altruistic. No man stands alone, was the message his students absorbed. Hutcheson constantly enjoins us to get out and become involved in the lives of our fellow human beings. Our willingness to do so becomes the measure of who we are. His statement on this point- "action is best, which produces the greatest happiness for the greatest number"-would also ring down through the next two centuries, underpinning the utilitarian philosophy of two later Scots, James and John Stuart Mill.

That was what Francis Hutcheson taught his contemporaries: the desire to be moral and virtuous, and treat others with kindness and compa.s.sion; the desire to be free, including political freedom; and the desire to enjoy our natural rights in society, as civil rights, are universal universal desires. And why do human beings want them? Because these are the things that lead to human "happiness." desires. And why do human beings want them? Because these are the things that lead to human "happiness."

But this raised a problem for his disciples. If those desires are really so universal, why do so many societies deny people those very things? Why, given the variety of political and social systems in history, have there been so few that have delivered on Hutcheson's vision of a free society?

When Hutcheson died in 1746, he left no answer. He had been a philosopher, not a historian. He had concentrated on describing how things ought to be, rather than explaining how they actually were. It would take another Scotsman, based in Edinburgh rather than Glasgow, to do that.

CHAPTER FOUR.

The Proper Study of Mankind II The faculties of the mind have been explored, and the affections of the heart; but there is still wanting a history of the species in its progress from the savage state to its highest civilisation and improvement.

-Lord Kames

I.

Henry Home was the son of a landed gentleman from Kames, in Berwicks.h.i.+re. His mother was the granddaughter of Dr. Robert Baillie, Princ.i.p.al of Glasgow University and an enthusiastic Covenanter in the 1640s. "I furnished to half a dozen of good fellows muskets and pikes," Baillie wrote the year the National Covenant had spread like wildfire across the south Lowlands, "and to my boy a good broad sword."

Home, who later took the t.i.tle Lord Kames,6 may have inherited his ancestor's fire and spirit, but the Kirk's legacy of pessimistic moral austerity left no discernible trace. Instead, he was raised an Episcopalian and learned early on the importance of a good income, as well as the pride and pleasure of being a gentleman farmer (especially when others do the heavy lifting). He attended no school or university, but was tutored at home. Since he showed a predilection for books and learning, it was decided that the perfect profession for this heir to a modest country fortune was the law. may have inherited his ancestor's fire and spirit, but the Kirk's legacy of pessimistic moral austerity left no discernible trace. Instead, he was raised an Episcopalian and learned early on the importance of a good income, as well as the pride and pleasure of being a gentleman farmer (especially when others do the heavy lifting). He attended no school or university, but was tutored at home. Since he showed a predilection for books and learning, it was decided that the perfect profession for this heir to a modest country fortune was the law.

In 1712, just the year after Francis Hutcheson arrived at Glasgow, sixteen-year-old Harry Home set off for Edinburgh to start his legal education in the chambers of John d.i.c.kson, a so-called writer of the Signet, or what the English would call a solicitor. This was more than just a matter of terminology; it reflected a genuine difference between the legal systems of the two countries, and even a difference in the mentality of those who took up the study and practice of the law.

Scottish law had developed very differently from its English counterpart. They sprang up at almost the same time, in the twelfth and thirteenth centuries. But as time went on, the outlook of English lawyers and judges became increasingly insular. They looked to the custom and precedent of their own past to settle virtually every dispute-hence the term common law common law, meaning common to the kingdom of England.

The Scots, on the other hand, who had learned to cast wider for their fundamental legal principles, turned to the ancient Roman civil law. They studied the medieval legal scholars, the great "civilians," who were busy reviving that Roman legacy on the Continent. This meant that by John Knox's time Scottish law looked more like that of France or Italy than Scotland's neighbor to the immediate south. In fact, many Scottish lawyers in the seventeenth century still went to France to complete their law training rather than to England, since English legal principles made little or no sense to the Scottish mind.

To an American, the two systems might look the same. To bring a case to court, a person hires a solicitor (or in Scotland, a writer), who in turn finds a barrister (in Scotland, an advocate) to plead the case for his client before the judge. There, however, the similarity ends. The relations.h.i.+p between plaintiff and defendant is more than simply adversarial. The prosecution makes no opening statement; the evidence against a defendant must speak for itself. Judge and jury (and in Kame's time, there were no juries in civil trials) carry an awesome responsibility. Unlike his English and American counterpart, the Scottish magistrate does not just ask what the evidence proves. He dares to pose the crucial question: What really happened? What really happened?

A Scottish judge's decision in a civil or criminal case looks beyond the facts to the underlying principles of fairness and equity that the case involves. His guide is not precedent but reason-hence the importance of Roman law, which later commentators even referred to as "written reason." Since the Middle Ages, in fact, Scottish legal minds had come to rely on Roman law to fill in the gaps in their own law. The judges of the Court of Session were even designated senators, as if they were the successors to the ancient Roman body.

The first professor of Scots law at the University of Edinburgh, Alexander Bayne, explained, "We consider the Roman laws which are not disconform to our own fixed Laws and Customs, to be our own Law." Later, as a distinguished judge, Lord Kames would agree. "Our law is grafted on that of Old Rome," he would write. "The Roman law is ill.u.s.trious for its equitable rules, affording great scope for acute reasoning." It taught a judge above all to think independently, and not to worry too much about what other judges had said in the past. It also taught another invaluable lesson, firmly established in Scottish jurisprudence: that no person, not even a monarch, stood above the law.

The one Scottish inst.i.tution left untouched by the Act of Union in 1707, besides its Kirk and its universities, was its legal system. Parliament House, once the home of self-government, now became the home of the law courts. When the teenaged Henry Home visited for the first time, he would have seen judges striding back and forth to court in their magnificent maroon silk robes (patterned after the red robes of the sovereign courts of France), the bustle of attorneys and bailiffs summoning clients to court, and he would have heard the cries of shopkeepers peddling their wares from their booths in the nearby streets and alleys. It became the center of his world. For the rest of his life, he never lived more than a few blocks from Parliament House.

Apprenticing with a writer of the Signet (so called from the royal signet ring used to authorize legal doc.u.ments) was a typical way to start one's training in the law. Working with d.i.c.kson immersed Home in the complicated legal issues arising from the sale and alienation of land, and establis.h.i.+ng hereditary t.i.tle. He would have spent hours mastering the arcane rules and vocabulary of Scottish feudal landholding, a mixture of Norman French, Middle English, and Scots.

First came the various kinds of tenure, such as ward, feu, blench, bur-gages, ward, feu, blench, bur-gages, and and mortification. mortification. Then the obligations owed to landlords: Then the obligations owed to landlords: bonds, bonds, contracts, tacks contracts, tacks (a type of lease), (a type of lease), wadsets wadsets (or mortgages), (or mortgages), venditions, venditions, and "bills of bottomry." He would have learned how the landholding of feudal Scotland, in both Highlands and Lowlands, had been created out of military necessity. This archaic system of land owners.h.i.+p had survived in Scotland much as it had elsewhere in eighteenth-century Europe, although the Scots had organized and systematized it better than most. But since then, new forms of property holding-buying, selling, and leasing of land and movables-had arisen, which both overlapped and challenged the old patterns. Who was more in the right, the old land-holders or the new? It was the kind of question that would occupy Home later on, and he could not have begun to address it without his earlier training in d.i.c.kson's chambers. and "bills of bottomry." He would have learned how the landholding of feudal Scotland, in both Highlands and Lowlands, had been created out of military necessity. This archaic system of land owners.h.i.+p had survived in Scotland much as it had elsewhere in eighteenth-century Europe, although the Scots had organized and systematized it better than most. But since then, new forms of property holding-buying, selling, and leasing of land and movables-had arisen, which both overlapped and challenged the old patterns. Who was more in the right, the old land-holders or the new? It was the kind of question that would occupy Home later on, and he could not have begun to address it without his earlier training in d.i.c.kson's chambers.

Home's interest in the law took a sharply different turn when he met Sir Hew Dalrymple, Lord President of the Court of Session. Dalrymple was the brother of John Dalrymple, Viscount Stair, who had died while pressing the Act of Union on a reluctant Parliament. Their father, the first Viscount Stair, was the distinguished organizer and systematizer of Scottish law, whose Inst.i.tutions Inst.i.tutions were published in 1681. The supposed "Dalrymple curse" left no mark on the elegant and convivial Sir Hew. Just the opposite. Home himself described the first time as a struggling young law clerk he met Dalrymple, and how it changed his life: were published in 1681. The supposed "Dalrymple curse" left no mark on the elegant and convivial Sir Hew. Just the opposite. Home himself described the first time as a struggling young law clerk he met Dalrymple, and how it changed his life: I was kept waiting in an outer room. I heard delightful Musick upon a harpsichord in the next room, and I meditated on the hards.h.i.+p of there being such distinctions amongst Mankind. "Why are the people in that room enjoying such happiness, and I kept in a mean, drudging way? Were I but fortunate enough to be on the other side of that Wall."

There was only one way. This was to switch from the straightforward but less lucrative profession of writer or solicitor to the more glamorous but also more compet.i.tive world of the advocate or barrister, who represented clients in court and commanded high fees for doing so. It was also from their ranks that future judges for the Court of Session and the Court of Justiciary, Scotland's highest criminal court, were chosen.

Home quickly made up his mind. He became close friends of the Dalrymple family. The son became his roommate, and the music of the family harpsichord become a familiar sound to young Harry Home. He also threw himself into the studies necessary for admission to the Faculty of Advocates.

Scottish advocates had been practicing before the bar since the thirteenth century, and had formed their own guild, the Faculty of Advocates, in the sixteenth. The rules for admission had become increasingly strict, even scholarly. The Faculty required from its members a full course of study of philosophy and law at a university for at least two years, in lieu of formal experience for seven.

The contrast with England was striking. The English barrister received no formal academic training at all. Instead, he learned his trade at the Inns of Court in London entirely in the old medieval style of hands-on apprentices.h.i.+p. Like his solicitor counterparts, the young English barrister learned to play follow-the-leader, and to obey the dictates of precedent, because there was no practical alternative.

But his Scottish counterpart was as much the product of rigorous scholarly erudition as of practical skills. Two years of overseas study, at universities in Holland or even in France, gave the Scottish bar a cosmopolitan air the English never achieved.

It also immersed the aspiring advocate even deeper in the theory of Roman and civil law. Justinian's Codex Codex sat on Home's desk side by side with Stair's sat on Home's desk side by side with Stair's Inst.i.tutions Inst.i.tutions as he prepared for his final examination. Since 1664 the Faculty had required a private and public exam on the civil law administered by senior advocates, and a public speech on a civil law text chosen by the Dean of the Faculty. Home presented his on January 17, 1723, on a subject familiar from his days studying to be a writer to the Signet: the revocation and transference of legacies. He was now a full-fledged advocate and a member of the Scottish bar. He was twenty-seven years old. as he prepared for his final examination. Since 1664 the Faculty had required a private and public exam on the civil law administered by senior advocates, and a public speech on a civil law text chosen by the Dean of the Faculty. Home presented his on January 17, 1723, on a subject familiar from his days studying to be a writer to the Signet: the revocation and transference of legacies. He was now a full-fledged advocate and a member of the Scottish bar. He was twenty-seven years old.

Harry Home proved to be a rising star. His "tall, stooping figure," as his friend Allan Ramsay described him, and his "keen, sarcastic face" became familiar sights around Parliament House and in the neighboring taverns and oyster houses. Men and women alike found him captivating. The poet William Hamilton described him this way: While crowned with radiant charms divine, Unnumbered beauties round thee s.h.i.+ne. . . .

As he admitted to James Boswell years later, "I got into pretty riotous and expensive society." When he found himself swamped with bills and over three hundred pounds in debt, he put the brakes on his social life and concentrated on the work.

His time in d.i.c.kson's office had given him a firm grasp of the intricacies of the law regarding land tenure, inheritance, and estates in Scotland. Combined with his immersion in civil jurisprudence, he now had the best of all possible intellectual backgrounds: a mind broadened by rigorous understanding of theory, but also steeped in the nuances of actual practice. He also turned out to be a brilliant advocate in court, summarizing cases without fanfare but with the full force of reasoned persuasion. He soon rose to become a senior examiner for the Faculty of Advocates, and then stepped in to act as curator of the Advocates' Library in 1737.

With the help of the library's keeper, Thomas Ruddiman, over the next half-decade Home turned it into a major repository for books not only on law but also on philosophy, history, geography, and foreign travel. It soon became one of the premier collections in Great Britain, and the seedbed of the Edinburgh Enlightenment. Its future keepers would include David Hume, who used the library to write his History of History of England, England, and Adam Ferguson, who used it for his and Adam Ferguson, who used it for his Essay on the History of Essay on the History of Civil Society. Civil Society. Anthropology, sociology, ethnography: almost all our modern social sciences got their start from the volumes a.s.sembled on the shelves at the Advocates' Library in Edinburgh. And it was Home who made it possible. Anthropology, sociology, ethnography: almost all our modern social sciences got their start from the volumes a.s.sembled on the shelves at the Advocates' Library in Edinburgh. And it was Home who made it possible.

In this, as in so much else, his tireless energy reflected a key characteristic of the Scottish enlightened mind, its pa.s.sion for organizing and systematizing knowledge. His first published book was a collection of past judicial decisions by the Court of Session, in order to help attorneys and judges to understand the future direction of Scottish law. He pored through the ma.n.u.scripts of its old president Lord Fountainhall, the same judge who had met Thomas Aikenhead in Tollbooth Prison and spoken to the Privy Council on his behalf. The Advocates' Library contained his private papers, and Home was able to sift through Fountainhall's personal account of daily business in the Privy Council. It gave him invaluable insights into the interplay between politics and the law, and how issues arising from the one impinge upon and shape the judgments made in the other.

Increasingly, Home concluded that this was a normal, not an extraordinary, state of affairs. The law, he realized, was a living thing, "being founded on experience and common life," he would write later. "Our law thus comes to be enriched with new thoughts, new discoveries, new arguments, struck out by the invention of our lawyers." It is not a lifeless chain of tradition and precedent, but a flexible instrument, a means for attaining order and justice, and it must change as society changes, and human beings with it. The law is a means to an end-and what that end is depends on human desires and needs.

But somewhere, some basic principles have to stick. Somewhere there has to be a firm base on which everything else can rest; otherwise, the law becomes the plaything of power, not its master.

One such principle was reason, our rational faculty for grasping knowledge of the world and drawing conclusions from it. Another was nature: like Hutcheson, Home looked to philosophers such as Pufendorf as a guide for seeing how all human societies reflect the same underlying laws of nature dictated by G.o.d. Yet nature's laws, too, were not fixed and immutable. "The law of nature," he concluded in 1751, "which is the law of our our nature, cannot be stationary. It must vary with the nature of man, and consequently refine gradually as human nature refines." nature, cannot be stationary. It must vary with the nature of man, and consequently refine gradually as human nature refines."

So what does remain stationary? What can we rely on as fundamentally true if everything else, including those qualities that define us as human beings, constantly s.h.i.+fts and changes? Those were the questions Home was determined to pursue.

The problem was that his research had to be squeezed into a highly successful but demanding legal career. In January 1752 he was appointed Lord Ordinary of the Court of Session, which enabled him to take the t.i.tle of Lord Kames. His day regularly began sometime between 5:00 and 6:00 A.M., when he began reading and preparing for his day at court. Shortly before noon he would go to Parliament House to hear cases with his colleagues, including James Boswell's father. When the court rose at about three o'clock in the afternoon, Kames would skip dinner in order to spend time with books and ma.n.u.scripts, including the Code of Justinian, Anglo-Saxon and Frankish law, and legal theorists ranging from the Hebraic and Islamic world to English commentators such as Sir Edward c.o.ke and Sir William Blackstone.

Any actual writing usually had to wait until he could get away to the country between court sessions. Even there it had to be sandwiched in between supervising work on the farm and entertaining guests. Ramsay remembered Kames dressing for dinner, while "his clerk read over what he had written in the morning, marking his emendations and subsequent hints" for further research.

Evenings in the city were given over to social gatherings, which both he and his wife intensely enjoyed. They would invite friends to attend a concert or the theater (although in the 1740s theatrical performances were still technically illegal in Edinburgh), then return home to enjoy supper with intimates. Kames rarely got to bed until after midnight.

From the point of view of his researches, however, these convivial at-home evenings were not lost time. Kames liked to mix food and drink, including prodigious quant.i.ties of claret, with serious discussion of philosophical and legal issues. Kames's love of good company set the style and tone of Edinburgh's intellectual life for nearly a century, while his guests included a series of young men of genius who would dominate the Scottish Enlightenment.

One of these was John Millar, who served as tutor to Kames's son, then became the University of Glasgow's first Professor of Civil Law. As a teacher and scholar, Millar would virtually invent modern political history. Another was Adam Smith, who came to Edinburgh in 1746 looking for an academic job. Because none was available, Kames arranged for him to deliver a series of public lectures on rhetoric, literature, and the subject dear to Kames's heart, civil jurisprudence. Those lectures, delivered between 1748 and 1751, would become the foundation for the Wealth of Nations. Wealth of Nations.

A third was James Boswell, the son of Kames's colleague on the Court of Session bench, Lord Auchinleck. The headstrong James quarreled frequently with his cold, reproachful father, and looked to the rough but affectionate Kames as his intermediary when things were going badly at home. After "Jamie" Boswell pa.s.sed his exam to become an advocate in late July 1762, Kames brought him along on a tour of Scotland's Border country, not far from his Berwicks.h.i.+re estate. Boswell called Kames a man of "uncommon genius" as well as a "great character." Kames was in many ways the forerunner of the more famous father figure Boswell met when he moved to London, Samuel Johnson. In fact, Boswell even planned a biography of Kames similar to the one he did for Johnson. He never finished it-sadly, since it might have made the brilliant and sardonic judge from Berwicks.h.i.+re as familiar to modern readers as the learned doctor from Lichfield.

However, the favorite among Kames's young proteges was David Hume. They were distant relations-different branches of the great Border family of Home-and neighbors. The house at Kames was only ten miles from Ninewells, where David Hume had grown up. David's father died when he was a child, so Kames again stepped in as a father figure and intermediary. He rea.s.sured David's shocked mother and relations when the headstrong boy decided to give up the study of law and pursue philosophy instead.

Hume called Kames "the best friend I ever possessed" but also "the most arrogant man in the world." He described him as "an iron mind in an iron body," but noted: "He is fond of young people, of instructing them and dictating to them; but whenever they come up and have a mind of their own, he quarrels with them." In fact, Hume and Kames quarreled constantly, especially on matters of religion. David Hume had no religion. Kames was an Episcopalian (rare in Edinburgh, but not in landed upper-cla.s.s Scottish circles) and detested unbelief. Kames even wrote his Essays on the Principles of Morality and Natural Religion Essays on the Principles of Morality and Natural Religion as a refutation of Hume-only to become the target of the same vote of censure that hard-liners in the Kirk's General a.s.sembly were bringing against Hume! as a refutation of Hume-only to become the target of the same vote of censure that hard-liners in the Kirk's General a.s.sembly were bringing against Hume!7 As it happened, the vote against Hume failed. But it drove home the point that in the larger scheme of things, mentor and protege were more alike than different. Both offended conventional opinion by pointing out that morality, like society itself, arose from human aspirations rather than divine ones-in Hume's words, from "mere human contrivances for the interest of society." Far more than Hutcheson, they worked to detach our understanding of human nature from its traditional theological moorings. Both saw human beings as the products of their environment, whether one was talking about the individual, as Hume did, or the collectivity, which was Kames's particular focus. They relativized relativized man, in the sense that they made who we are dependent to some degree on our experience in a particular time and place, rather than solely on some inborn quality or sense. man, in the sense that they made who we are dependent to some degree on our experience in a particular time and place, rather than solely on some inborn quality or sense.

This sense of context would become central to the Scottish view of history, anthropology, psychology, and economics. From this perspective, Hume would have to agree with Adam Smith: "We must every one of us acknowledge Kames for our master."

II.

Kames's stolen hours of research, reading, and debate first bore fruit in 1732, when he published his Essays Upon Several Subjects in Law. Essays Upon Several Subjects in Law. He followed this with a second collection of essays on legal history in 1747, and then He followed this with a second collection of essays on legal history in 1747, and then Essays Upon the Principles of Morality and Natural Religion Essays Upon the Principles of Morality and Natural Religion in 1751. Together with in 1751. Together with Historical Law Tracts Historical Law Tracts in 1758, they opened a new chapter not only in the study of comparative law, but also in the study of human history. in 1758, they opened a new chapter not only in the study of comparative law, but also in the study of human history.

The issue Kames raised was deceptively simple: Why do laws exist? What makes it possible for human beings not only to inst.i.tute rules and regulations for their conduct, but also to agree to abide by them?

The answer he gave was a cla.s.sic one-but now with an extra twist. Men inst.i.tute laws, he concluded, in order to protect property. This was self-evident to the heir to a Berwicks.h.i.+re estate. But it was also rooted in every discussion of natural and civil law. A sense of property marked the starting line for all social arrangements. Any child knows that there are certain toys that belong to him, and him alone, and ones that belong to you. Roman lawyers called this a sense of meum et tuum, meum et tuum, the sense that "that is yours and this is mine." We can share, and I can even pretend for a time that the tricycle I ride is really the sense that "that is yours and this is mine." We can share, and I can even pretend for a time that the tricycle I ride is really my my tricycle. But at the end of the day, when accounts are settled, things must be returned to their proper owners-otherwise there come tears and recriminations, a sure sign that a fundamental instinct for fairness, a sense of justice, has been violated. tricycle. But at the end of the day, when accounts are settled, things must be returned to their proper owners-otherwise there come tears and recriminations, a sure sign that a fundamental instinct for fairness, a sense of justice, has been violated.

"That is yours and this is mine." And let's keep it that way. In other words, I'll respect yours, if you respect mine. That is why we create society, and with it government, in the first place: so that each person can enjoy what he or she has appropriated by his or her own efforts, without fear of hin-drance. "It is . . . a principle of the law of nature," wrote Kames, "and essential to the well-being of society that men be secured in their possessions honestly acquired."

Standing by itself, this was not a very original observation. John Locke, Samuel Pufendorf, even Thomas Hobbes would have said the same thing. But Kames added two points that made his readers sit up and take notice.

The first was that while Francis Hutcheson was insisting that men form governments in order to pursue the common good, Kames's emphasis on this self-interested sense of property introduced a note of realism. Kames was quite willing to believe in the notion of an innate moral sense, and man's natural sociability. His Essays on the Principles of Essays on the Principles of Morality and Natural Religion Morality and Natural Religion endorsed much of Hutcheson's point of view. It even contains Hutchesonian phrases such as, "Nature, which has designed us for society, has connected us strongly together by a partic.i.p.ation [in] the joys and miseries of our fellow creatures." But life as an attorney had taught Kames a more realistic, if not cynical, view. Kames recognized that human beings need a more compelling reason to draw together into a binding community, and to surrender their personal freedom to others. endorsed much of Hutcheson's point of view. It even contains Hutchesonian phrases such as, "Nature, which has designed us for society, has connected us strongly together by a partic.i.p.ation [in] the joys and miseries of our fellow creatures." But life as an attorney had taught Kames a more realistic, if not cynical, view. Kames recognized that human beings need a more compelling reason to draw together into a binding community, and to surrender their personal freedom to others.

This is what our desire to protect our property, what we have worked for and set aside for ourselves, forces us to do. It forces us to take the plunge, to enter into this network of rights, duties, and obligations with other people, because without it we will never feel secure about our property. "For without property," Kames pointed out, "labour and industry [were] in vain."

If Hutcheson was arguing that the most important instinct human beings have in common is their moral sense, Kames was saying that it is their sense of property and desire to own things. "Man is disposed by nature to appropriate"-one reason human beings are perennially adverse to common owners.h.i.+p of goods. It is not enough just to have goods; they must be my my goods. Property is more than just material objects-it is a part of my sense of self. Without it, I am missing an important dimension of my personality, projected outward into the world. In fact, in eighteenth-century English, the language of Kames's works, goods. Property is more than just material objects-it is a part of my sense of self. Without it, I am missing an important dimension of my personality, projected outward into the world. In fact, in eighteenth-century English, the language of Kames's works, property property meant the same as meant the same as propriety propriety: those things that are proper proper to me, and to me alone. To Kames and his followers, including Hume and Adam Smith, to own to me, and to me alone. To Kames and his followers, including Hume and Adam Smith, to own things things is in fact to own is in fact to own myself. myself. Property makes me a whole and complete human being. Property makes me a whole and complete human being.

So it is not surprising, then, that human beings make the desire for property the guiding force in their lives, and devote so much time and energy to getting it, holding it, increasing it, or stealing it. "We thirst after opulence," Kames remarked in Historical Law Tracts. Historical Law Tracts. David Hume would put it even more vividly: all the other pa.s.sions, including self-interest itself, have relatively minor effect on our lives, compared with the desire for property. "This avidity alone of acquiring goods and possessions for ourselves and our nearest friends is insatiable, perpetual, universal, and David Hume would put it even more vividly: all the other pa.s.sions, including self-interest itself, have relatively minor effect on our lives, compared with the desire for property. "This avidity alone of acquiring goods and possessions for ourselves and our nearest friends is insatiable, perpetual, universal, and directly destructive of society directly destructive of society ." ."

Hume's point seems to contradict Kames's belief that property stands at the origin of society, but it actually restates it. We establish government precisely to put a check on other people's avidity for our personal goods. other people's avidity for our personal goods. Where property is, laws and government follow, not out of keen desire for them, but out of necessity. What we want and have, others want, too, and they will do anything to get it, if we let them. Where property is, laws and government follow, not out of keen desire for them, but out of necessity. What we want and have, others want, too, and they will do anything to get it, if we let them.

If we let them. What we might not have the time or even the inclination to do, compelling others to leave our possessions alone, the law does for us. In this way, Kames believed the law, meaning not just legal rules but their enforcement as well, served a powerful didactic purpose. It tells us our duty, toward others with regard to property and other rights, and toward ourselves. Doing injury to one person's property hurts everyone, because violating the rights of one, such as the right to property or the right to life, threatens the rights of all. In other words, the law projects a particular moral picture onto the world, which we as members of the community must share. we let them. What we might not have the time or even the inclination to do, compelling others to leave our possessions alone, the law does for us. In this way, Kames believed the law, meaning not just legal rules but their enforcement as well, served a powerful didactic purpose. It tells us our duty, toward others with regard to property and other rights, and toward ourselves. Doing injury to one person's property hurts everyone, because violating the rights of one, such as the right to property or the right to life, threatens the rights of all. In other words, the law projects a particular moral picture onto the world, which we as members of the community must share.

In its very earliest stages, as in the laws of Moses or of Hammurabi, the law simply taught men not to harm others, in their person or their possessions. Then it taught the importance of keeping promises and contracts, including the buying and selling of goods. Finally, as in the civil law code of the ancient Romans, "it extended to other matters, till it embraced every obvious duty arising in ordinary dealings between man and man."

Eventually the law's role in creating a moral order is supplemented by an internal device: the voice of conscience. "In the social state under regular discipline," Kames explained, "law ripens gradually with the human faculties, and by ripeness of discernment and delicacy of sentiment, many duties formerly neglected are found to be binding on conscience." Our innate moral sense finds a social footing, and the law is forced to catch up with the new att.i.tudes: "Such duties can no longer be neglected by courts of law."

The happiest society, Kames concludes, is one where the law and culture, or what he and the rest of the eighteenth century called "manners," match. "The law of a country is in perfection," Kames wrote, "when it corresponds to the manners of a people, their circ.u.mstances, their government. And as these are seldom stationary, the law ought to accompany them in their changes."

And what are those changes? This was the second new twist Kames gave to his subject, one that was even more momentous and far-reaching. Kames attempted nothing less than to organize the history of the human community into four distinct stages, based on his extensive reading in comparative law, history, and geography, in order to show how each of these stages forces changes in the way people think, act, and govern their lives.

"Hunting and fis.h.i.+ng," he explains in Historical Law Tracts, Historical Law Tracts, "were the original occupations of man." The life of the hunter and fisher, like those of the Bushmen of southern Africa and Eskimos in Kames's own day, encourages him to avoid other human beings, except members of his own family, as compet.i.tors in the daily hunt for game. Then, somewhat later, men learned to follow the animal herds and discovered how to domesticate them for their own purposes. This is the second stage, the pastoral-nomadic stage. "The shepherd life promotes larger societies" of clans and tribes, "if that may be called a society which hath scarce any other than a local connection." "were the original occupations of man." The life of the hunter and fisher, like those of the Bushmen of southern Africa and Eskimos in Kames's own day, encourages him to avoid other human beings, except members of his own family, as compet.i.tors in the daily hunt for game. Then, somewhat later, men learned to follow the animal herds and discovered how to domesticate them for their own purposes. This is the second stage, the pastoral-nomadic stage. "The shepherd life promotes larger societies" of clans and tribes, "if that may be called a society which hath scarce any other than a local connection."

Instead, the "true spirit of society, which consists of mutual benefits and in making the industry of individuals profitable to others as well as to themselves," must wait for the third stage of the human community, that of agriculture. Cultivating the fields is by necessity a communal enterprise: "this circ.u.mstance," the need for cooperation to bring in the annual harvest, "connects individuals in an intimate society of mutual support." New occupations arise-plowman, carpenter, blacksmith, stonemason-and new relations.h.i.+ps: between craftsman and farmer, between landlord and tenant, between master and slave. New forms of cooperation, in one sense, but also new sources of conflict and the clash of competing interests.

In the first two stages of human society, Kames argued, that of hunter-gatherers and pastoral-nomads, there is no need for law or government, "except that which is exercised by the heads of families over children and domestics." It was the agricultural community that first needed additional help. Why? Because "the intimate union among a mult.i.tude of individuals, occasioned by agriculture," bred a complexity of rights and obligations no one had encountered before, and which earlier custom could not control. The law takes over, enforced by sanctions and punishment. These in turn require law enforcers, "men of weight and probity" to judge and acquit. "In short," Kames concluded, "it may be laid down as an universal maxim, that in every society the advances of government toward perfection are strictly proportioned to the advance of the society toward intimacy of union."

That "intimacy" has only gotten started at the agricultural stage, however. A further stage lies beyond, as activity s.h.i.+fts from the village and farm to the seaport and market town. A new society springs up, born of the buying and selling of goods and services, "commercial society." It brings even more benefits, and more cooperation, but also more complexity. It requires new laws-contract and maritime law, laws governing the sale and distribution of commodities-but also generates new att.i.tudes and manners.

Commerce tends to wear off those prejudices which maintain distinction and animosity between nations. It softens and polishes the manners of men. It unites them, by one of the strongest of all ties, the desire of supplying their mutual wants. It disposes them to peace, by establis.h.i.+ng in every state an order of citizens bound by their interest to be the guardians of public tranquility. As soon as the commercial spirit gains . . . an ascendant in any society, we discover a new genius in its policy, its alliances, its wars, and its negotiations.