CHAPTER FOUR
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 Berwickshire. His mother was the granddaughter of Dr. Robert Baillie, Principal 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 title 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.
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 Dickson, 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, 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 relationship 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?
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 illustrious 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 institution 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 documents) was a typical way to start one’s training in the law. Working with Dickson immersed Home in the complicated legal issues arising from the sale and alienation of land, and establishing hereditary title. 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, and mortification. Then the obligations owed to landlords: bonds, contracts, tacks (a type of lease), wadsets (or mortgages), 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 ownership 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 Dickson’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 Institutions 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 hardship 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 competitive 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 apprenticeship. 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 sat on Home’s desk side by side with Stair’s Institutions 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 shine. . . .
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 Dickson’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 England, and Adam Ferguson, who used it for his Essay on the History of Civil Society. Anthropology, sociology, ethnography: almost all our modern social sciences got their start from the volumes assembled 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 passion 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 manuscripts 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 God. Yet nature’s laws, too, were not fixed and immutable. “The law of nature,” he concluded in 1751, “which is the law of our 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 shifts 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 title 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 manuscripts, 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 Coke 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 quantities 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.
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 passed 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 Berwickshire 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 Berwickshire as familiar to modern readers as the learned doctor from Lichfield.
However, the favorite among Kames’s young protégés 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 reassured 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-class Scottish circles) and detested unbelief. Kames even wrote his 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 Assembly 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 protégé 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 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. 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 in 1751. Together with 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.
The issue Kames raised was deceptively simple: Why do laws exist? What makes it possible for human beings not only to institute rules and regulations for their conduct, but also to agree to abide by them?
The answer he gave was a classic one—but now with an extra twist. Men institute laws, he concluded, in order to protect property. This was self-evident to the heir to a Berwickshire 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, 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 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 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 participation [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 ownership of goods. It is not enough just to have goods; they must be 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, property meant the same as propriety: those things that are proper to me, and to me alone. To Kames and his followers, including Hume and Adam Smith, to own things is in fact to own myself. 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. David Hume would put it even more vividly: all the other passions, 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 .”
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. 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.
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 attitudes: “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 circumstances, 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 fishing,” he explains in 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 competitors 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 circumstance,” 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 relationships: 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 multitude 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 shifts 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 attitudes 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 establishing 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.
This was not Lord Kames speaking, or even Adam Smith. It was Smith’s friend William Robertson, cleric and historian, and later Principal of the University of Edinburgh. Robertson’s great contribution to the Enlightenment was to take Kames’s four-stage theory and apply it to the history of Europe since the fall of Rome. By doing so, he created the modern study of history, turning Kames’s evolutionary model into a way of organizing the history of Western civilization.
The year was 1769, and the book was The History of the Reign of Emperor Charles V. Robertson demonstrated how the Dark Ages marked the return of a pastoral-nomadic society to Europe, with barbarian tribes such as the Vandals and Franks, and how the revival of agriculture, the third stage of civil society, brought with it the seeds of medieval feudalism. Then, starting in the Low Countries and Italy, merchants revived trade in its ancient home, the Mediterranean, and the fourth stage, commercial society, was born in its European guise. “In proportion as commerce made its way into the different countries of Europe,” Robertson concluded, “they successively . . . adopted those manners, which occupy and distinguish polished nations.” Politeness, as Lord Shaftesbury and Francis Hutcheson had understood it, now had a firm historical basis.
At each stage of civil society, Kames, Smith, and Robertson said, the way people earn their living shapes the character of their laws, their government, and their culture. Who we are depends on whether we are hunters and gatherers, or shepherds and nomads, or farmers and peasants, or merchants and manufacturers—the latter being the makers of “commercial society,” or, to use a more familiar term, capitalism. Almost one hundred years before Karl Marx, Kames and the Scots had discovered the underlying cause of historical change: changes in the “means of production.”
Kames had done two other remarkable things. First he had developed a flexible, sliding scale by which to characterize and compare different societies, in the past or the present, based on their position in the four-stage process. Modern England and France clearly fit the modern commercial stage, as did ancient Athens and Renaissance Italy. Medieval England, on the other hand, belonged to the agrarian stage, as did eighteenth-century Russia. The ancient Hebrews and the Indians of the American Plains fit the pastoral-nomadic—along with the Highland clans of Kames’s own Scotland.
But none could be said to be forever fixed or static. This was the point: Human communities are in a state of constant evolution, as they slowly, sometimes inperceptibly, make their way from one stage to the next, higher stage. Kames’s followers borrowed a French term for this process of social evolution. They called it “civilization,” meaning a transformation of society from primitive barbarism to a civilized “polite” state.
The four-stage theory of civilization defined human history as a continuous vista of secular progress. Understanding the character of those different stages, and identifying the crucial moving parts in each, would become the task of the Scottish historical imagination for the next hundred years.
But Kames had also solved the question Francis Hutcheson had by implication posed, but never quite answered: Why, if everyone has the same desire to be free and happy, as Hutcheson had claimed, are there so many societies in which people are neither?
Now Lord Kames gives us the answer. Because, under certain primitive material conditions, when resources are scarce or in uncertain supply, the rights of the individual have to give way to the imperatives of the group. The Bushman hunter divides his kill with the rest of his little clan, whether he wishes to or not, because otherwise the group might starve. During the Dark Ages, peasants were bound to the land to produce food, because no one knew when the next attack by marauding Vikings or Saracens might disrupt the harvest and plunge the community into famine.
Under these harsh conditions, society cannot afford to trust individual choice or inclination. Men are guided instead by custom, and the personal authority of those they do trust—“the elders of the tribe” or a warrior nobility. The laws are strict, the punishments harsh.
Then, as material conditions improve, as they inevitably will when human beings devise new ways to increase their stock of property, the institutions governing the community also improve. In short, material progress—from the relative scarcity of the hunter-gatherer Bushmen to the relative prosperity of mercantile London and Edinburgh—brings other kinds of progress in its wake. The affluence and mutually beneficial union of commercial society “softens and polishes the manners of men,” as Robertson put it. Individual conscience is prepared to do the work that laws, and fearful punishments and taboos, used to do. As a modern social scientist would say, the rules of socialization are internalized. We no longer need awe-inspiring authority figures—kings and nobles, popes and priests—to tell us what to do, or what is right and wrong. “The moral sense,” Kames explained, “is openly recognized, and cheerfully submitted to.” Hutcheson’s community of free and active human beings becomes possible, and the old collective traditions and constraints give way to individual liberty.
Even in Scotland. On the heels of the Jacobite revolt of 1745,8 Kames published his Essay Upon Several Subjects Concerning British Antiquities. In it Kames demonstrated that the politics of traditional Scotland was not about loyalty and devotion to the king, as Jacobites claimed, but about royal land grants, which enabled the king to reward his closest followers and secure control over the people. This was the origin of feudalism. “No Constitution,” he wrote, “gives [the sovereign] such an immediate hold of the persons and property of his subjects.” Scotland’s traditional laws were not bulwarks of political freedom, as Andrew Fletcher and the rest had used to argue. They were in fact an invitation to despotism.
Then came the sweep of historical change. “After the arts of peace began to be cultivated” at the close of the Middle Ages, “manufacturers and trade began to revive in Europe, and riches to encrease,” and the feudal system “behoved to turn extreme burdensome. It first tottered, and then fell of its own weight, as wanting a solid foundation.” Feudalism loses out to trade and commerce, because it runs counter to “love of independence and property, the most steady and industrious of all human appetites.” Commercial society supplies that “love of independence” in abundance. It encourages men to overturn custom and tradition, and establish a new kind of law, based on a free circulation of goods and services.
Already, in 1747, Kames recognized what Adam Smith and later economists would confirm. More than any other stage of society, the commercial stage represents the greatest change from the past. This progress comes at a price: the overturning of almost everything that came before, in laws, in forms of government, even in manners and morals. Capitalism’s innate capacity for creative destruction would fascinate Kames’s followers, including Adam Smith, who would witness its awesome power in the Lowlands and Highlands of their own day.
III
The four-stage theory, which Kames revised and refined in his Sketches on the History of Man when he was nearly eighty, would live on after him. It served as the model for William Robertson and others of the “Scottish historical school,” and for the great masterpiece of Enlightenment history, Edward Gibbon’s The Decline and Fall of the Roman Empire. It defined the fields of comparative anthropology and sociology for two hundred years, and inspired a historical genre, “the story of civilization,” that would last down to Arnold Toynbee’s A Study of History and William McNeill’s The Rise of the West. And at its core was Kames’s notion that changing forms of property drove the evolution of civil society. “Without private property,” he wrote in the Sketches, “there would be no industry, and without industry, men would remain savages forever.”
Today, of course, we have grown suspicious of attempts to classify entire societies as “savage” or “civilized.” The multiculturalist teaches us to see them as misleading stereotypes, which denigrate certain non-Western peoples, especially peoples of color, in order to exalt our own Western values. We try to dismiss the four-stage theory as “ethnocentric” or even racist.
It is true that the four-stage theory would help to underpin racial theory in the nineteenth century. But at the time it served a powerful and useful purpose. It enabled people to think of history as a progressive enterprise, with change as a normal, even desirable, feature of society, rather than an undesirable one. It also cut across issues of race. Enlightened Scots had no difficulty in thinking of China or Persia as “civilized ” or even “commercial” societies, just as they understood primitiveness and savagery to be prominent aspects of their own white European past—or, in the case of the Highlands, in their own backyard. It immunized the Scottish historical imagination against attempts to make race determine culture. Nurture, not nature, explained human behavior and institutions. Kames himself dismissed the idea that Africans and blacks were inherently inferior to whites. Who can say, he wondered, what kind of society they might produce, if they had the occasion to exercise their powers of freedom, as European whites had?
Kames and Robertson may have been willing to make “value judgments” about other societies and peoples, but they did it without concerning themselves with skin color. The fundamental issue for them was not race but human liberty, much as it was for Francis Hutcheson. And the proof of it came in the Joseph Knight case.
Joseph Knight was an African-born slave sold in Jamaica, whose master took him to Scotland in 1769. Three years later Knight learned about the celebrated decision by the English Chief Justice Lord Mansfield9 that slavery was contrary to the laws of England. Knight assumed this included the rest of Britain. Knight went to his master and demanded wages for the work he had been doing for free. His master refused. When Knight tried to run away, the master had him arrested.
When the case came before the Sheriff of Perth, however, he ruled that there was no slavery in Scotland, and that the slave laws of Jamaica had no validity in his jurisdiction. He let Knight go. Knight’s master appealed, and in 1777 the case arrived at the Court of Session in Edinburgh. It was momentous enough that it was granted a full hearing in front of the full panel of judges, including Lord Kames. History was about to be made, and not just for Scot-land.
Knight’s advocate told the judges, “The law of Jamaica in this case, will not be supported by the Court: because it is repugnant to the first principles of morality and justice.” James Boswell had helped him to prepare his brief for Knight’s freedom, with the advice of another tireless opponent of slavery, Samuel Johnson. Their argument was simple: “No man is by nature the property of another.” To become the legitimate chattel of another person, he must renounce that original natural freedom. If there is no proof he has done this (and Knight’s own actions clearly proved the opposite), then he must be set free.
Kames, who was now over eighty, vigorously assented. “We sit here to enforce right,” he told his colleagues, “not to enforce wrong.” The majority of the court agreed with Kames. They wrote, “The dominion assumed over the negro, under the law of Jamaica, being unjust, could not be supported in this country to any extent.” They pronounced slavery to be against the law in Scotland, and set Knight free. James Boswell was jubilant. He pointed out to friends that although Lord Mansfield had made a similar ruling five years earlier, the Scottish decision was more significant, because it established a broader principle. It went “to the general question, whether a perpetual obligation of service to one master in any mode should be sanctioned by the laws of a free country.” It was a vindication of the historical point Kames had been making for years, that what might have been suitable or necessary for ancient or primitive societies may not be now. Progress was possible, in law as well as in everything else.
But it was also a vindication of the Scottish approach to the law. Kames and his fellow judges had decided the case not on precedent but on “the dictate of reason,” in order to assert a basic principle of equity and justice. It was a victory for the notion that man’s claim to liberty is universal. What Francis Hutcheson had first asserted in his Glasgow classroom had now been confirmed by Kames and the judges of the Court of Session.
The Knight case shows Lord Kames at his best. In other respects, he is a hard man to like. If Francis Hutcheson represents the soft, humane side of the Scottish Enlightenment and the Scottish character, Kames represents its hard, cold-eyed edge. His sardonic view of the primacy of self-interest and the “thirst for opulence” anticipates what comes later in the works of David Hume, and dismays champions of Hutcheson’s moral altruism.
So does Kames’s enthusiastic support for capital punishment. Unlike some of his colleagues on the Court of Justiciary, he saw no conflict between a civilized legal system and hanging men for stealing sheep. “The objects of the penal laws,” he argued, “are to be found among that abandoned and most abject class of men, who are the disgrace of the species.” No other punishment will deter those individuals, he decided, who have “no feelings at all of honour, justice, and humanity.”
This is not the sort of sentiment to endear him to the modern liberal, and it must be said that Kames handed out death sentences with a kind of relish that shocked even his fellow judges. Once in a single session he convicted and sentenced two prisoners to be hanged. That evening Kames was in particularly good spirits, boasting to his guests that “he had killed two birds that day.” Another time he pronounced the death sentence on an old acquaintance, who had been an opponent at chess. “And that’s checkmate, Thomas!” Kames quipped as they led the man away.
Courtesy and social niceties, key ingredients of Hutcheson’s notion of politeness, meant nothing to Kames. He did not mind being vulgar. He liked to call people “brutes” or even “bitches” (in Scots it can apply to men as well as women). “Davie, how are ye, ye brute?” was a standard greeting if he met a friend on the street. Some took it in good humour, others were horrified. He ignored all questions of social rank. If he could not get an intellectual guest such as Boswell or Thomas Reid to accompany him on one of his interminable walks on his estate, he would get his estate foreman or gardener, or even one of his farm laborers, to go with him, arguing about law and social customs at the top of his lungs as they swung along across the fields, with Kames occasionally stooping to examine, or even taste, the new experimental fertilizer he had ordered laid down the week before.
In the final analysis, we find in Lord Kames and his writings the Scottish mind geared entirely toward the practical and the concrete, shorn of any sentimentality or pretense but also of any compassion. Religious feeling, too, got short shrift from Kames. Divine Providence increasingly disappeared from his analysis of man as a moral or social animal. When mortal illness finally overtook him, at age eighty-six, he greeted it stoically with his usual lack of sentimentality. His last day on the bench, he said merely good-bye to his colleagues with a jocular “Fare ye weel, ye bitches!”
James Boswell came up from London to visit him at home a month or so later, shortly before Christmas in 1782. He was shocked, and a little disappointed, to see that the approach of death had failed to lift his old mentor’s thoughts beyond the mundane and trivial. There were no last words of wisdom, insight, or even regret. Nothing.
Boswell, who was a professing Christian and a believer in an afterlife, tried to corner the old man about his views on the subject. “I believe, my Lord,” he said, “you have been lucky enough to have always an amiable view of the Deity, and no doubt of a future state.”
Kames, sitting in his armchair, said nothing. Boswell confessed he believed the doctrine of an eternity of Hell’s torment was counterproductive. “No,” Kames replied, “nobody believes it.”
Six days later he was dead.