Moral Science at the Founding: Ruling Passions
Daniel N. Robinson
Philosophy Faculty, Oxford University
(Invited lecture, Amherst College, 31 October 2003)
"Who is there to mourn for Logan?" In Spring 1774, two members of the Shawnee tribe murdered a Virginia settler. Col. Cresap, already famous for his violence against native Americans, assembled a cadre and proceeded down the Kanhaway River. They hid along the litora and, seeing a canoe filled with women and children and one man, proceeded to murder every one of them. As it happens, they were the sole surviving members of the family of the Mingo Chief, Logan. The following Fall, Chief Logan exempted himself from a peace negotiated between the Virginia militia and the local tribes. In the message explaining his absence, Chief Logan spoke as follows:
"I appeal to any white man to say, if ever he entered Logan's cabin hungry, and he gave him not meat; if ever he came cold and naked, and he clothed him not. During the course of the last long and bloody war, Logan remained idle in his cabin, an advocate for peace. Such was my love for the whites, that my countrymen pointed as they passed, and said, 'Logan is the friend of white men.' I had even thought to have lived with you, but for the injuries of one man. Col. Cresap, the last spring, in cold blood, and unprovoked, murdered all the relations of Logan, not sparing even my women and children. There runs not a drop of my blood in the veins of any living creature. This called on me for revenge. I have sought it: I have killed many: I have fully glutted my vengeance. For my country, I rejoice at the beams of peace. But do not harbour a thought that mine is the joy of fear. Logan never felt fear. He will not turn on his heel to save his life. Who is there to mourn for Logan? -- Not one."
This account is related by Thomas Jefferson in his Notes on the State of Virginia , in which he replies to such naturalists as Buffon who find all specimens in the New World inferior to their European varieties. Jefferson expresses a doubt as to, "...whether the bulk and faculties of animals depend on the side of the Atlantic on which their food happens to grow." But his inclusion of the speech of Logan has a deeper purpose. It is intended to reveal what may also be found in no less than a Ciceronian oration: An authentic sentiment expressive of a virtue on which the survival of whole nations must depend. In this same place, Jefferson goes on to praise the emerging literature and fine arts of the New World, equating their genius with what rises to the same level in all the significant affairs of life. Thus,
"As in philosophy and war, so in government, in oratory, in painting, in the plastic art, we might shew that America, though but a child of yesterday, has already given hopeful proofs of genius, as well of the nobler kinds, which arouse the best feelings of man, which call him into action, which substantiate his freedom, and conduct him to happiness..."
More will be said of Jefferson in a moment. I begin with the Speech of Logan, however, and Jefferson's use of it, to point to the epoch's full and realistic appreciation of the power of the passions in the creation of history and in the management of its possibilities. Seventy years later, in The Idea of a University, Newman would identify the mission of higher education as that of giving principle to the popular enthusiasms . The epoch denominated "enlightenment" was not less passionate than other ages, for all the doting on reason and rationality. Indeed, one requires no Freudian algorithm to discover in the rationalism of the age this realistic awareness of the passionate sources of action, the firm grounding of all significant initiatives in sentiment and sympathy. The task was not to stifle but to cultivate the passions; to rule them in ways that would lift them from the prosaic impulses of the moment to abiding satisfaction in the service of principle. This was the age in which one was measured by one's sensibilities , as these gave evidence of one's acute awareness of moral right and wrong. Consider the universal appeal of Richardson's Pamela and Clarissa , the latter especially underscoring the vulnerability of goodness itself but its final defeat of evil: Its stubborn heroic resolution to preserve itself, to preserve its very sense of itself.
I return to Jefferson, finding him this time reflecting on his early education at William and Mary and the debt he owed to his major teacher:
"Dr. Small was...to me as a father. To his enlightened and affectionate guidance of my studies while at college, I am indebted for everything...He procured for me the patronage of Mr. Wythe, and both of them, the attention of Governor Fauquier...(A)t their frequent dinners with the governor...I have heard more good sense, more rational and philosophical conversation than all my life besides". 1
Dr. Small was a Scotsman. He has this in common with others I will consider this evening, for the influence of the Scottish Englightenment on the American Founding was diffuse, disproportionate, and acknowledged. Dr. Small's influence on young Jefferson speaks to his own special powers and to the receptivity of his student, but the effect recorded by Jefferson was a common one on students in the colonial colleges. Faculties then were chosen to achieve ends consistent with what the age took to be essential, tested by history, tested by logic and, to some extent, tested by "revelation" as now understood in this Age of Reason.
It was not uncommon for those who led such institutions also to tutor whole classes of students. Surely the most famous of these teacher-presidents was the redoubtable John Witherspoon (1723-1794), brought from Scotland to the college at New Jersey and under whom Princeton would soon become a national treasure. Later a signer of the Declaration of Independence, Witherspoon not only presided over Princeton but personally instructed one future President of the United States, nine cabinet officers, twenty-one senators, thirty-nine members of the House of Representatives, a dozen State governors, fifty-five members of the 1787 Constitutional Convention and three Justices of the U.S. Supreme Court. A graduate of Edinburgh University, Witherspoon had already made a name for himself in the Church of Scotland as a leader of the so-called "Popular Party" of conservative evangelicals. Thus, long before he would come to take so significant a part in the American cause, he understood the need to protect religion from government, though not from the reach of common sense. As a teacher and educational reformer, he broadened and deepened the traditional curriculum, introduced new and daring philosophical ideas, enlarged and diversified the library holdings, and acquired fine apparatus for scientific studies. Witherspoon made Princeton.
But he did much more than this: The day was July 4, the year 1776, the venue what came to called "Independence Hall", Philadelphia. On the table was the Declaration of Independence , adopted two days earlier but placed now in a chamber chilled and hushed by forebodings. Rising to the occasion, Witherspoon proclaimed,
" There is a tide in the affairs of men, a nick of time. We perceive it now before us. To hesitate is to content to our own slavery. That noble instrument upon your table, which ensures immortality to its author, should be subscribed this very morning by every pen in this house. He that will not respond to its accents and strain every nerve to carry into effect its provisions is unworthy the name freeman. For my own part, of property I have some, of reputation more. That reputation is staked, that property pledged, on the issue of this context; and although these gray hairs must soon descend into the sepulchre, I would infinitely rather that they descend thither by the hand of the executioner than desert at this crisis the sacred cause of my country". 2
Note Witherspoon's reference to the obligation to "strain every nerve". Such phrases dominate the psychological explications of the period. It is by way of the nerves that one is excited to action, falls into harmony with the laws of the heavens and the sentiments of one's fellows, becomes sympathetic to their plight and their pleasure. Witherspoon and Small were both native Scots, both participants in and products of the Scottish Enlightenment. The century beginning in the 1730s would find Scotland hosting the most and influential systems of philosophical thought, the world's leading schools of medicine and law, the major architectural and artisitic developments of the age, and, perhaps most significantly, a veritable army of educators to the New World, to France and, yes, even to a reluctant England. Attention to this part of the American story is repaid in the currency of understanding. And attention begins, it goes without saying, with religion.
The core of Scottish education was a "humanistic Calvinism", widely adopted early in the American colonies and later, but in substantially modified form, in the States of the Union. It was an amalgam of severe and humble Protestant confessions. Early, the works of Luther were, of course, canonical. His treatise "On Secular Authority" (1523) had drawn the sharpest distinction between "the two kingdoms", the political and the spiritual, a distinction appreciatively cited three centuries later by Madison as leading one to know, "what is due to Caesar and what is due to God" (Letter to Schaeffer, Dec. 3, 1821). But to refer to "humanistic Calvinism" in this context is to speak not of Luther and his well known hostility to academics, but chiefly of Calvin and his Institutes of the Christian Religion (1540). Little needs to be added to George Bancroft's observation that Calvinism made America, its influences traced in every New England village. 3 It is sufficient to note those broad features of Calvin's teaching that would create a veritable American ethos . First - and this in fact is in Book I of the Institutes - there is impatience with idle speculation on the nature of God. The task facing the religious conscience is to know just so much of God as it is "to our advantage to know of Him". The bare and undeniable fact from which all inquiry proceeds is human existence itself. Clearly, the principal task, then, is that of conforming this existence to laws and precepts able to promote lives worth living. The world as directly visible and knowable is, as Calvin put it, "the theater of God's glory". The study of that world, and of life lived within it, are inextricably bound to theology itself. The laws and precepts, at least the ones that would ground our fidelity to the rest, are written on the heart. This is the common inheritance of all humanity such that, whatever one's faith or lack of it, whatever one's race or ethnicity, there are fundamental principles intuitively known, forming the very foundations of whatever else might be acquired by learning ( Institutes, Bk. 2, ch. 2, Sec. 15). The summons to study is clear but qualified:
"...men who have either quaffed or even tasted the liberal arts penetrate with their aid far more deeply into the secrets of the divine wisdom. Yet ignorance of them prevents no one from seeing more than enough of God's workmanship in his creation to lead him to break forth in admiration of the Artificer...We ought not to rack our brains about God; but rather we should contemplate him in his works" (1.5.2, 9).
There is, on this Calvinist account, not merely a limit to what can be learned by study and by science, but a temptation in these very modes of inquiry toward an impertinent and grandiose arrogance. What Calvinism teaches is that a shipwrecked humanity should be happy to get hold of something solid, availing itself of those natural guides and cues that might lead one to safe moorings, all the while aware that the full voyage had been charted by the Creator from the beginning of time. Here was a message delivered from a hundred pulpits and then broadcast to the faithful as they founded , directed, staffed or attended the major colleges and universities of the New World. A measure of the diffuseness of its influence is given by a single datum: At the time of the American Civil War (1861), of the 207 colleges and universities, forty-nine had been founded by Presbyterians. 4
The Scottish Enlightenment had absorbed this influence, but transformed it in ways that served secular and civic purposes. The political theology of Calvin, concentrated and evangelized by the likes of Jonathan Edwards, eased for some and encumbered for others the transition from Puritanism to cosmopolitanism. However, it finally offered too little to those who would found a nation. By the middle of the eighteenth century, higher education and native talent had equipped the better minds of colonial America with a remarkably general competence in ancient and modern philosophy and history, classical literature - read in the original "dead" languages - and the fundamental scientific methods and principles developed a century earlier in the Age of Newton. There was no turning back. Rather, the best of these achievements were to be merged with a general philosophical perspective equally compatible with the old-time religion and the freshest of discoveries. Scottish "Common Sense" philosophy provided this perspective and conferred authority and deep respect on its putative father, Thomas Reid. Reid's An Inquiry into the Human Mind was published in 1764. By then Reid had moved from Aberdeen to Glasgow to take the chair in Moral Philosophy recently vacated by Adam Smith. His was perhaps the most inventive and assimilating intelligence of that extraordinary cadre that included Adam Smith, David Hume, Francis Hutcheson, Dugald Stewart, William Cullen, Joseph Black , Robert Adam, - the list extends to the dozens. A mere intimation of Reid's standing is found in an 1820 letter from John Adams to Thomas Jefferson:
"Montezillo February 21 st 1820
Dear Sir,
Was you ever acquainted with Dugald Stuart?...I have a prejudice against what they call Metaphysicks because they pretend to fathom deeper than the human line extends. I know not very well what e'er the to metaphusica of Aristotle means, but I can form some idea of Investigations into the human mind, and I think Dugald in his Elements of the Philosophy of the human mind has searched deeper and reasoned more correctly than Aristotle, Des Cartes, Locke, Berkeley, Hume, Condillac and even Reid" 1 4 4
Jefferson did, indeed, know Dugald Stewart, Reid's student and closest friend. They had been together during Jefferson's time in Paris, and Jefferson regarded him as one of the two greatest metaphysicians of the age. In a brief time, it is not possible to do justice to Reid's and Stewart's influence. Reid was by far the most successful of Hume's contemporary critics, bringing philosophical and scientific rigor to bear on the central tenets of Hume's skeptical philosophy. Against Hume's claim that so basic a concept as that of causality was but a habit of mind based on the "constant conjunction" of events in experience, Reid argued compellingly that such conjuctions would never rise to the level of a causal concept in any creature not possessing active powers . It is in virtue of one's direct awareness of one's own volitional power to bring about desired effects that one is able to form a conception of the causal order in the outer world.
It was against Locke's and Hume's representational theory of knowledge - a theory that inserted a worrisome filter between the real world and the percipient's knowledge of it - that Reid opposed a theory of direct realism, availing himself of his own mastery of optics and projective geometry to show the weaknesses in the representational scheme. And it was Reid's reliance on the Newtonian and Baconian requirements of systematic observation and the shunning of premature and merely speculative hypotheses that led him to develop the strongest counters to that materialistic psychology advanced by David Hartley and promoted by Joseph Priestley. In all, Reid's philosophy, by way of scientific acumen and philosophical power, underscored and defended those intuitive and rational resources by which actual persons negotiate the meandering currents of actual life.
Though there were differences in their philosophies, Reid and Stewart proved to be a formidable tandem, Stewart even more successfully extricating moral science from theology. The first volume of his Elements of the Philosophy of the Human Mind was published in 1792. Within twenty years, it and succeeding volumes would replace Locke's famous Essay Concerning the Human Understanding at most of the more prestigious institutions in America. (By 1837 Locke's Essay no longer appears in the Harvard curriculum - this at a time when what appeared in Harvard's curriculum might matter to those serious about higher education).
Accepting without reservation that a providential God is the source of all the regularities and affordances at work in the cosmos, Reid and Stewart proceeded to replace the whole Calvinist epistemology and moral system with a sober, fact-based descriptive Psychology, accessible in principle to empirical modes of assessment. In addition, if more subtly, both recognized that the most general concepts have meanings grounded in and borne by language . If the words used to comprehend and explain reality are tied to systematic and disciplined observations of the particulars of reality, the resulting account will be useful and true, within the ambit of human powers that are always fallible. But as words take flight, seeking the rarified atmosphere of speculative metaphysics, the room for confusion and self-deception expands. Theories, said Reid, are "the creatures of men", which nature seldom mimics.
It was with this steadfast orientation that Reid assessed the work of his celebrated contemporaries. Both Hume and Adam Smith were defenders of a moral philosophy based on the sentiments. Reid was alert to the implications and summarized them thus:
"...it is obvious that according to this System there is no fixed Standard of Virtue at all[;] it depends not upon our Actions but upon...Passions which in different men is different...Nor does it solely depend upon our own Passions but also upon the Sympathetick passions of others. [W]hich may be different in different Persons or in the Same Person at different Times. Nor is there any Standard according to which either the Emotions of the Actor or the Sympathy of the Spectator is to be measured...It is evident that the ultimate Measure & Standard of Right and Wrong in human Conduct according to this System of Sympathy, is not any fixed Judgment grounded upon Truth or upon the dictates of a well informed Conscience but the variable opinions and passions of Men".
Beyond the moral shiftlessness sanctioned by Sentimentalist theories of this sort, Reid recognized in all of them an abandonment of the proper mode of philosophizing. Hume, Smith, Shaftesbury - all the Sentimentalists - were guilty of substituting theory for observation and speculation for the more reliable facts of human history. The result will always be the same: A species of learned nonsense. Adam Smith's theory of sympathy is for Reid illustrative:
"The Sourse of Sympathy he makes to be our placing our selves in the Situation of the person with whom we Sympathize, & thence forming an Idea of his Sensations and even feeling...This account of the cause of Sympathy does not appear to me agreeable to the Nature of that feeling. When I [imagine] my self in the condition of the Suffering person...I can imagine all this without Suffering any thing at all. For as I can imagine my self to be in France without being one foot nearer to it than when I have no such Imagination...To imagine pain and to feel pain are things totally distinct nor does the first imply any degree of the last". 5
The moral science grounded in this "common sense" philosophy has been called intuitionistic , but this is a protean term that tends either to clarify or to libel, depending on how it is understood and deployed. Reid's definition of a principle of common sense includes the stipulation that one is under an obligation to it in the ordinary conduct of life. It is not akin to opinion and is not subject to such challenges as must be met by mere belief. When Reid argued that one enters the world guided by the principles of credulity and veracity, he was claiming no more than the necessary conditions for there to be any degree of learning and any form of social intercourse. Infants who were skeptics by nature would be uneducable. Creatures naturally disposed to deceive would soon be unable to engage in cooperative and shared modes of life.
There are still other principles of common sense filling out the necessary preconditions for a social life, a moral life, a civic life. It is a principle of common sense that the thoughts one has are one's own; that one believes it is possible to bring about those events toward which one's intentional actions are directed; that one is the source of just such actions; that creatures behaving in just these ways have the same kind of aims and dispositions. Distinguished in his mathematical preparation and originality, Reid was informed of what the ancient mathematicians meant by "common notions" - those starting-points for there to be any systematic and coherent body of argument whatever. So, too, the principles of common sense are the necessary starting point for the acquisition and assessment of knowledge. Hume's skeptical challenges never extended to his own sensations, and this for the simple reason that he could not be "Humean" about them. Reid's "lowly caterpillar" who crawls across a thousand leaves till it settles on the one that is right for the caterpillar's diet exemplifies the "fit" between a creature's endowments and dispositions and the sublunary life it was designed to live.
As to the connection between Reidian "common sense" philosophy and the title of one of Tom Paine's best sellers, perhaps a few words are in order. The title "Common Sense" was suggested to Paine by Benjamin Rush. Rush was graduated from the College of New Jersey at age fifteen and, after an apprenticeship in Philadelphia, proceeded to Edinburgh for medical training. There he absorbed the best of the Scottish Enlightenment, formed a close friendship with Reid's cousin, John Gregory, and, among other achievements, urged the reluctant Witherspoon to accept the presidency of the New Jersey college. Rush would come to be the father of American Psychiatry (his 1812 Medical Inquiries and Observations upon the Diseases of the Mind was the first psychiatric textbook written in America), the founder of Dickenson College, a signer of the Declaration and a major figure in the Abolitionist movement. Given his intimate association with member's of Reid's Wise Club and the "common sense" precepts they developed, it is not surprising that Paine's incendiary pamphlet would strike Rush as having just such precepts as a defense. Indeed, Paine's passages regarding titles - which, "like a magician's wand, circumscribe human felicity..." - might be read as an implication of Reid's argument for seeking to maintain a coherent relationship between "artificial" and "natural" language.
Rush's opposition to slavery was fortified by his Edinburgh associations but the institution itself was long repugnant to many luminaries at home. Again, the moral science that gave principle to such sentiments was itself largely of Scottish origin. One of the most influential works was Francis Hutcheson's A System of Moral Philosophy (1755), which gave full expression to Grotius and Puffendorf as Natural Law theorists and which rendered logically and morally incoherent an institution of slavery within any context otherwise supportive of human rights. Less well known now than Hutcheson's works but perhaps at least as influential in the second half of the eighteenth century was David Fordyce's The Elements of Moral Philosophy . It was published posthumously in 1754. Fordyce (1711-1751), was another remarkable Aberdonian. He died at sea several years before the publication of his moral treatise and therefore did not live to take satisfaction in the importance that would be attached to it in the Colonies. It became an immediate fixture in the Harvard curriculum and soon a preferred text throughout colonial higher education. In Book II, Chapter IV of that work the author calmly traces the relationship between master and servant to that "natural course of human affairs" which episodically finds opulence and poverty creating class distinctions. But reciprocity is the rule of reason in such affairs: Persons of privilege require the labor of those who, owing to poverty, need such work. As for those who supply the labor, Fordyce insists that,
"By the voluntary Servitude to which he subjects himself, he forfeits no Rights but such as are necessarily included in that Servitude... The offspring of such Servants have a Right to that Liberty which neither they, nor their Parents, have forfeited" (emphasis in original) . 7 Clearly, slavery as such is understood as the corruption of the natural relationship, the woeful vice of it made greater by its hereditary extension. Later in the work Fordyce, considering the terms of civil society and political authority, offers a judgment that could not help but give principle to colonial enthusiasms:
"As the People are the Fountain of Power and Authority, the original Seat of Majesty, the Authors of Laws, and the Creators of Officers to execute them; if they shall find the Power they have conferred abused by their Trustees, their Majesty violated by Tyranny, or by Usurpation, their Authority prostituted to support Violence, or screen Corruption, the Laws grown pernicious through Accidents unforeseen...then it is their Right, and what is their Right is their Duty, to resume that delegated Power, and call their Trustees to an Account". 8
One additional Scot calls for special attention here: James Wilson, who emigrated to the Colonies in 1765, studied law under John Dickenson of Philadelphia and soon entered into the revolutionary political climate of the time. His pamphlet of 1774 gave him international celebrity. Titled, " Considerations on the Nature and Extent of the Legislative Authority of the British Parliament" , the work included the uncompromising claim that "all men are by nature equal and free". Though his life would prove to be a checkered one, Wilson was second only to James Madison himself in exercising control and rallying consensus in the Constitutional Convention of 1787. It is probably the case that his speech of October 6, 1787, urging the ratification of the Constitution, was more widely read and perhaps even more successful in its aims than The Federalist papers. 9 Two years later, George Washington appointed him to the fist U.S. Supreme Court where he served as Associate Justice.
In his capacity of Supreme Court justice, Wilson sheds light on the moral grounding of the jurisprudence of the new nation. It is useful to consider one of the major cases settled by the Court in Wilson's time, and the grounds which Wilson himself took to be dispositive. It is a well known case in U.S. Constitutional history, for it addressed the significant question of the immunity of individual states to actions brought against them by citizens. Chisolm v. Georgia , was settled in 1793. 10 In this action, the State of Georgia claimed sovereignty, and thus immunity to actions brought against it in a Federal court. Wilson quickly understood the gravamen of the State's claim, noting that, stretched to the limit of its tether, the claim could be reduced to a question, " no less radical than...'do the people of the United States form a NATION?" Wilson's analysis of the issues is sharp but truncated, erudite and somewhat digressive, but relentless in the logic of constitutionalism itself. Time and purpose do not permit an examination of the case itself, but it is instructive to review the larger perspective Wilson would bring to any cause rising to the level of adjudication. Here are his own words, set forth in his opinion in Chisolm:
"I am, first, to examine this question by the principles of general jurisprudence. What I shall say upon this head, I introduce by the observation of an original and profound writer, who, in the philosophy of mind, and all the sciences attendant on this prime one, has formed an area not less remarkable, and far more illustrious, than that formed by the justly celebrated Bacon, in another science, not prosecuted with less ability, but less dignified as to its object; I mean the philosophy of matter. Dr. Reid, in his excellent enquiry into the human mind, on the principles of common sense, speaking of the sceptical and illiberal philosophy...(prevailing) in many parts of Europe before he wrote, makes the following judicious remark: 'The language of philosophers, with regard to the original faculties of the mind, is so adapted to the prevailing system, that it cannot fit any other; like a coat that fits the man for whom it was made, and shews him to advantage, which yet will fit very awkward upon one of a different make, although as handsome and well proportioned. It is hardly possible to make any innovation in our philosophy concerning the mind and its operations, without using new words and phrases, or giving a different meaning to those that are received'." 11
Here Wilson records yet again the painstaking attention of the entire generation of Founders to the meaning of words, the very life made possible and coherent by the use of words; the power of words to excite, to control, to encourage, to deflate. As he dissects the argument advanced by the State of Georgia, Wilson pauses to make the utterly "Reidian" distinction between natural and artificial terms, the former referring to entities having real existence, the latter to abstract entities of uncertain ontology. 12 Thus, " To the Constitution of the United States the term SOVEREIGN, is totally unknown..."
Continuing,
"States and Governments were made for man; and, at the same time, how true it is, that his creatures and servants have first deceived, next vilised, and, at last oppressed their master and maker...A State; useful and valuable as the contrivance is, is the inferior contrivance of man; and from his native dignity derives all its acquired importance.
As to the actual nature of the State, Wilson's definition might well serve as a dictionary entry:
"By a State I mean, a complete body of free persons united together for their common benefit, to enjoy peaceably what is their own, and to do justice to others. It is an artificial person. It has its affairs and its interests: It has its rules: It has its rights: And it has its obligations...In all our contemplations, however, concerning this feigned and artificial person, we should never forget, that, in truth and nature, those, who think and speak, and act, are men".
One begins now to follow the arc of the argument. Georgia is an artificial person, but it exists in virtue of the actual persons constituting the State. If one citizen of Georgia can bring an action against another, then presumably one citizen of Georgia might bring an action against two citizens - or all citizens; that is, an action against Georgia . Next, Wilson addresses the more basic question of the grounds on which any citizen would resolve to settle disputes in such a way and concludes,
"The only reason, I believe, why a free man is bound by human laws, is, that he binds himself. Upon the same principles, upon which he becomes bound by the laws, he becomes amenable to the Courts of Justice, which are formed and authorised by those laws. If one free man, an original sovereign, may do all this; why may not an aggregate of free men, a collection of original sovereigns, do this likewise? If the dignity of each singly is undiminished; the dignity of all jointly must be unimpaired [***89] ."
Thus understood, the State is an artificial party to agreements but bound in just the way the collective of actual persons is, for the State is just such a collective. And, in the event the State dishonestly violates the terms of an agreement, it scarcely has as a defense the arrogant claim that, in such matters, it is sovereign !
Reaching the heart of the matter, Wilson goes on to sketch the medieval sources of regal prerogatives, this history having no place within the New World. He summarizes Blackstone's rather inventive argument for the superiority of the Crown to any jurisdiction beyond itself, an argument agreeable to what Wilson's calls "systematic despotism". Then, with an acute and prescient comprehension, Wilson identifies two radically different conceptions of the rule of law. Blackstone is defender of one of these; that which decades later would be called the command theory of law and serve as the linchpin of Legal Positivism. Against this, Wilson cites,
"...another principle, very different in its nature and operations [forming] in my judgment, the basis of sound and genuine jurisprudence; laws derived from the pure source of equality and justice must be founded on the CONSENT of those, whose obedience they require . The Sovereign, when traced to his source, must be found in the man" (emphasis added) .
The achievements of the rule of law depend on the nature of those fit for its rule, and that nature expresses itself in its passions and sympathies; in that to which it will consent and that to which it will oppose every nerve in the body. Traced to his source, the sovereign is found in the man , and the sovereignty of law arises as a proxy of his nature.
The moral science of the Founders was not reducible to a fundamentalist treatise or a little Red Book. Balanced, often fitfully, between an empiricism too spare to render experience itself intelligible, and an intuitionism that might sink to the level of the 'vis dormativa', the Founders' moral canons were realistic, 'naturalistic', usefully anti-theoretical. Jefferson, of course, never met a scientific theory he didn't like, but in this he was treated patiently and respectfully by those with whom he had common cause. Recall the famous visit Hamilton paid to Jefferson, asking him to identify the subjects in the portraits adorning the walls. These were portraits of Newton, Locke and Bacon, who were, in Jefferson's words, "my trinity of the three greatest men the world had ever produced". To this Hamilton paused, and then said "the greatest man that ever lived was Julius Caesar". 15
That the two should be so far apart on a matter of this sort is less a challenge to the concept of a moral science then yet another example of how science itself was understood, especially under illumination by the Scottish sources. Before 1740, the leaders of thought in America were, as noted, committed to versions of Calvinism and a moral universe derived from scripture and made to fit canonical teaching. Then there is a wave - a succession of waves - of thought requiring of any moral teaching that it be reasonable, informed by observation, standing in complementary relationship with scientific method and findings. The "sentimentalist" schools of Shaftesbury, Hutcheson, Adam Smith, and David Hume had their adherents, but even these major figures proved to be too speculative, too tied to the armchair and removed from the toss and tumble of a restless age. Reid rejected any fundamental tension between reason and sense, reason and sentiment. The human faculties all "come from the same shop", as he said, and function in such a manner as to give that "two-legged creature, who eats at nature's dainties and takes alternate labor and repose at the crystal fountain" a means by which to know the world, to know his place within it, and to fashion a form of life compatible with a just rule of law.
Nearly all agreed that the concept of a moral science was basic to the political project. Once the view is adopted that political entities are made by human beings and in response to their needs and rational desires, the central questions become located in the human sciences, chiefly the sciences of mental life and of action. A science of action - contrasted with a science of reflexes and reactions - is by its very nature a moral science. Behavior rises to the level of action when plausible accounts of the action require recourse to matters of volition, choice, desire, and the principles to which these are beholden. The foundation, then, of political science is moral science. And the foundation of moral science is human nature itself, regarded by the Founders as a "natural kind", essential in its defining features, impelled by universal impulses to fulfillment.
Setting aside the complex machinery of governance, the systems of checks and balances, the sometimes vulgar bids for power, the Founders created a set of institutions judged to be right for that unique being not only fit for the rule of law, but fit for self-rule. There was no serious challenge to that essentialist psychology that found within human nature at large a set of stable dispositions and aspirations, intuitive powers of discernment at the moral level, educable powers of rationality and comprehension.
Well, all that was then, and this is now. Every productive age worries about posterity, often with a selfish but pardonable concern for the fate of its greatest achievements. The wisest of the Founders, I submit, was John Adams, and it is no surprise that he would worry most. I close with his concerns:
"...according to the few lights that remain to us, We may say that the Eighteenth Century, notwithstanding all its Errors and Vices, has been, of all that are past, the most honourable to human Nature. Knowledge and Virtue were increased and diffused. Arts, Sciences useful to Men, ameliorating their conditions, were improved more than in any former equal Period. But what are We to say now? Is the Nineteenth Century to be a Contrast to the Eighteenth? Is it to Extinguish all the Lights of its Predecessor?" 14
But what are we to say now ...
Notes on the State of Virginia Thomas Jefferson (1781-1782). Merrill D. Peterson, ed. (1984) Library of America, Literary Classics of the United States, New York; pp. 189-191
For an excellent study of this entire theme, see Andrew Burstein, Sentimental Democracy (1999) New York: Hill and Wang.
1 Thomas Jefferson, "Autobiography", in The Writings of Thomas Jefferson (20 vols.). A. A. Lopscomb and E. E. Bergh, eds. (1904-1905) Washington, D.C. Vol. 1, pp. 3-4.
2 Quoted in C. A. Briggs, American Presbyterianism . (1885) New York: Charles Scriber's & Sons; p. 351
3 George Bancroft, History of the United States, vol. 2, pp. 138-139; William Jackman, History of the American Nation , vol. 2, p. 394
4 An insightful discussion of this history is Douglas Sloan, The Scottish Enlightenment and the American College Ideal. (1971): New York, Columbia Univ. Teachers College.
The Adams-Jefferson Letters. Lester Cappon, ed. (1959) Chapel Hill: University of North Carolina Press; pp. 560-561.
5 MS.2131/3/1/28 Remarks on Smith's Theory page, Birkwood Collection, Aberdeen
7 David Fordyce, The Elements of Moral Philosophy (1754). David Kennedy, ed. (2003) Indianapolis: Liberty Fund; p. 89.
8 Ibid, p. 106
9 The full text of the Ratification Speech is available in HTLM format, on the website of the Constitution Society , located via "James Wilson ratification speech".
10 Chisolm v. Georgia, 2 Dallas 419
11 Ibid. Numbers in bold refer to the pagination in the original.
12 Reid's distinction between natural and artificial language is developed in Sec. II, Ch. 4 of An Inquiry into the Human Mind on the Principles of Common Sense (1764). Derek Brookes, ed. (1997) University Park, Pa.: Penn. State Univ. Press.
15 The Spur of Fame, op. cit. p. 2
14 Adams to Jefferson, Nov. 13, 1815; op.cit.