David Hume's Political Theory: Law, Commerce and the Constitution of Government 9781442684263

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D AV ID H U M E’ S P O LIT ICA L TH EO RY

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NEIL McARTHUR

David Hume’s Political Theory Law, Commerce, and the Constitution of Government

U N I V E R S I T Y O F T O R O N TO P R E S S Toronto Buffalo London

www.utppublishing.com © University of Toronto Press Incorporated 2007 Toronto Buffalo London Printed in Canada ISBN 978-0-8020-9335-6 (cloth)

Printed on acid-free paper

Library and Archives Canada Cataloguing in Publication McArthur, Neil, 1972– David Hume’s political theory : law, commerce, and the constitution of government / Neil McArthur. Includes bibliographical references and index. ISBN 978-0-8020-9335-6 1. Hume, David, 1711–1776 – Contributions in political science. 2. Political science. I. Title. JC176.H9M33 2007

320c.01

C2007-902355-X

This book has been published with the help of a grant from the Canadian Federation for the Humanities and Social Sciences, through the Aid to Scholarly Publications Programme, using funds provided by the Social Sciences and Humanities Research Council of Canada. The University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council. University of Toronto Press acknowledges the financial support for its publishing activities of the Government of Canada through the Book Publishing Industry Development Program (BPIDP).

For Kate Round thy dark limbs, On the Canadian wilds I fold

and Julian Sweet joy I call thee; Thou dost smile.

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Contents

Acknowledgments Abbreviations

xi

Introduction

3

ix

1 Hume’s Indissoluble Chain

16

2 Barbarous Government and the Perils of Discretion 3 General Laws and Civilized Government 4 Luxury and the Ancient States 5 The Case of Britain

82

102

6 Hume’s Precautionary Conservatism Conclusion Notes

145

Bibliography Index

137

187

175

116

57

37

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Acknowledgments

My introduction to Hume came as the result of a youthful infatuation with Nietzsche. During the inaugural year of McGill University’s telephone registration system, I accidentally entered 363 (eighteenth-century philosophy) instead of 366 (nineteenth-century). When, midway through the semester, I realized what had happened, I went in desperation to see the professor of 363, David Fate (!) Norton. ‘Well,’ he said, ‘the good news is, there are only two textbooks.’ He handed me Locke’s Essay concerning Human Understanding and Hume’s Treatise of Human Nature. ‘We just finished the first one,’ he said. ‘We start the second on Tuesday.’ I passed the course, although it was some time before I returned to Hume. However, what I learned from Professor Norton, through both his teaching and his writing, has served me well ever since. Atop the University of Southern California’s Mudd Hall of Philosophy, the names of history’s great philosophers are carved in stone, a chronological list that wraps around the crown of the building. Legend has it that during its construction, the hall’s benefactor, Colonel Seeley Mudd, observed the mason begin to carve the ‘H’ for Hume’s name, and flew into a rage. He insisted that the name of that godless infidel would never appear on his building. That ‘H’ became, somewhat imperfectly, the ‘K’ in Kant. Colonel Mudd would not be pleased to know that several generations later, there are few better places to study Hume. S.A. Lloyd, Gideon Yaffe, Edwin McCann, and John Dreher all provided me with indispensable advice and support during my time in Los Angeles and have continued to do so since. David German and Marina Tomazinis made a very large city seem much smaller and friendlier than it otherwise would have.

x Acknowledgments

This book was completed during a year I spent as a postdoctoral fellow at the University of Western Ontario. I would like to acknowledge the generosity of the Social Sciences and Humanities Research Council for providing that fellowship. During my time at Western, Thomas Lennon, Lorne Falkenstein, Dennis Klimchuk, and Anthony Skelton offered useful criticisms and interesting conversation. Portions of the manuscript have been presented at annual meetings of the Hume Society, where Naohito Mori, Mark Hanvelt, Ryu Susato, James Harris, and Thomas Hoffman have all helped me develop my ideas. Early versions of chapters two and three appeared in the journals History of European Ideas and Hume Studies. Material from chapter five is taken from an article that appeared in The Journal of Scottish Philosophy. I would like to thank the editors and anonymous readers of those journals for valuable comments. Finally I would like to thank my family. My wife Kathryn Ready, a formidable scholar of the eighteenth century, has helped me better understand the period and broadened my outlook on it. She has also read my work and given me informed and helpful suggestions, and she has, on too many occasions to count, offered me encouragement when it was needed most. My parents Wenda and Doug, and my sister Kera, provided support of all kinds and over many years. For all his virtues, Julian (truth be told) was mostly just a distraction. Winnipeg, Manitoba December 2006

Abbreviations

Abbreviations of works by Hume as referenced in the text DNR EHU

EPM

Essays History

Dialogues concerning Natural Religion, ed. Norman Kemp Smith (London: Thomas Nelson and Sons, 1947). An Enquiry concerning Human Understanding. All quotations from this work are taken from the following edition: An Enquiry concerning Human Understanding, ed. Tom L. Beauchamp (Oxford: Oxford University Press, 1999). All references will be cited as ‘EHU’ followed by the section and paragraph number, followed by the page reference to the following edition: Enquiries concerning Human Understanding and concerning the Principles of Morals, ed. L.A. Selby-Bigge and P.H. Nidditch (Oxford: Clarendon Press, 1975). An Enquiry concerning the Principles of Morals. All quotations from this work are taken from the following edition: An Enquiry concerning the Principles of Morals, ed. Tom L. Beauchamp (Oxford: Oxford University Press, 1997). All references will be cited as ‘EPM’ followed by the section, part (where applicable), and paragraph number, followed by the page reference to the following edition: Enquiries concerning Human Understanding and concerning the Principles of Morals, ed. L.A. Selby-Bigge and P.H. Nidditch (Oxford: Clarendon Press, 1975). Essays: Moral, Political and Literary, ed. Eugene F. Miller (Indianapolis: Liberty Fund, 1985). The History of England, ed. William B. Todd, 6 vols. (Indianapolis: Liberty Fund, 1982).

xii

Abbreviations

Letters NHR

T

The Letters of David Hume, ed. J.Y.T. Greig, 2 vols. (Oxford: Oxford University Press, 1932). Natural History of Religion, in Dialogues Concerning Natural Religion and the Natural History of Religion, ed. J.C.A. Gaskin (Oxford: Oxford University Press, 1993). A Treatise of Human Nature. All references to Hume’s Treatise will be taken from the following edition: A Treatise of Human Nature, ed. D.F. and M. Norton (Oxford: Oxford University Press, 2000); references will be cited as ‘T’ followed by the book, part, section, and paragraph numbers, followed by the page reference to the following edition: A Treatise of Human Nature, ed. L.A. Selby-Bigge, revised by P.H. Nidditch (Oxford: Oxford University Press, 1978).

D AV ID H U M E’ S P O LIT ICA L TH EO RY

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Introduction

Dr Johnson got into one of his fits of railing at the Scots ... With all the advantages possessed by other nations, they had not any of those conveniencies and embellishments which are the fruit of industry, till they came in contact with a civilized people. ‘We have taught you, (said he,) and we’ll do the same in time to all barbarous nations, – to the Cherokees, – and at last to the Ouran-Outangs;’ laughing with ... much glee.’ James Boswell, The Journal of a Tour to the Hebrides

This is a book about David Hume’s political theory. It asserts both this theory’s philosophical originality and its historical importance. Among all the early advocates for liberal, commercial society, Hume is arguably the most compelling. Unlike his predecessor Bernard Mandeville, he is not content to offer a picture of a society that is no more than a ‘grumbling hive’ of avaricious self-promoters. Instead, Hume holds up a positive vision of a society that is open, humane, cultured, sociable, and peaceful – in a word, civilized. Then, he argues that a particular form of government – one that is based on a system of equitable laws and a stable constitution and that promotes commercial development – is the best way to create such a society. He thus helped save capitalism both from its enemies, which included Christian and ‘civic humanist’ writers, as well as from its friends such as Mandeville, whose philosophy, at least as it was interpreted at the time, made the morality of citizens entirely irrelevant. And he played an important role in promoting a form of government that is recognizably liberal and modern. Hume’s impact, though great, has been misunderstood. When philosophers and historians think about Hume as a political

4 David Hume’s Political Theory

thinker, two images prevail. First of all, perhaps most prominently, there is Hume the sceptic, whose suspicion of all things metaphysical leads naturally to a political Toryism that is concerned above all to preserve the status quo. ‘The translation of Hume’s heretical scepticism into politics,’ writes Leslie Stephen in his venerable survey of eighteenth-century thought, ‘is a cynical conservativism ... He inclines to the side of authority as the most favourable to that stagnation which is the natural ideal of a sceptic.’1 This is the Hume who earned the condemnation of contemporary radicals such as Catherine Macaulay and Thomas Jefferson, and whose supposedly ‘Tory’ History of England provoked Thomas Maccaulay, almost a hundred years later, into writing a Whig reply. But then, alongside this ‘cynical’ figure there stands, in rather startling contrast, another Hume. This is the Hume who figures prominently in treatments of the Scottish Enlightenment. He is an upbeat observer of social progress who looks forward to a steady transformation of society for the better. It is this Hume whom Peter Gay describes as ‘deeply engaged with the world around him’ and ‘hopeful of diffusing enlightenment,’ and whom Roy Porter calls ‘fully optimistic about the direction of social change.’2 These two images, both of which can appeal to a certain amount of prima facie evidence, have never been fully reconciled. Hume himself insisted that he was above sectarian political disputes. ‘I have the impudence to pretend that I am of no party,’ he boasted, ‘and have no bias.’3 Nevertheless, neither his contemporaries nor modern scholars have taken him at his word. So far, the interpretation of Hume as a political conservative has mostly held the field. We can trace this reading back as far as the immediate reception of the Treatise, Hume’s first published work. ‘Here, as you can see,’ said the Bibliothèque raisonnée on the appearance of Book 3 of the Treatise, ‘is the system of Hobbes dressed up in a new taste.’4 Over a century later, the liberal reformer John Stuart Mill made a point of deploring Hume’s ‘Toryism.’ Early in the twentieth century, Bertrand Russell, an unabashed radical, commented that while he agreed with Hume’s epistemology (interest in which he played an important role in reviving), he disagreed totally with his politics.5 The renewed interest in Hume among philosophers within the last century has owed much to his epistemological scepticism, and modern commentators have seized on the supposed connection, suggested by Stephen, between his political ideas and his sceptical epistemology.

Introduction 5

Marjorie Grene says: ‘Hume’s Tory leaning developed not inconsistently with and perhaps even as a positive outcome of his general philosophical views.’6 David Miller says that Hume’s philosophical position ‘leads to a sceptical kind of conservatism which is concerned to exclude certain types of argument for radical change rather than to defend any set of political arrangements.’7 According to these interpreters, Humean epistemology, by forcing us to justify any attempts at reform according to the data of human experience rather than to timeless principles, establishes a standard of evidence that reformists cannot meet. As one of Hume’s ‘conservative’ intepreters, Donald Livingston, puts it: ‘any change in the present order can only be made if it is justified. But justification requires standards.’8 But (on this reading) Hume teaches us that we cannot use any timeless standard as a principle of justification for social change because we are ‘alienated from ultimate reality.’9 Thus, Livingston concludes that if we reject society’s current property regime in favour of an abstract principle of distributive justice, we are without any rules (except arbitrary ones) for applying the abstract principle [of distributive justice] to the world. Virtually any arrangement may appear to be included or excluded from the principle. So the whole class of theories of distributive justice from Aristotle to Rawls which seek to determine the content of some such principle as ‘From each according to his x, to each according to his y’ is formally excluded from the post-Pyrrhonian reform in philosophy.10

Whatever its merits as political philosophy, the ascription of such conservatism to Hume faces obstacles. First of all, it is a striking, if not decisive, fact that there is only a single passage in Hume’s entire body of work where he himself connects his metaphysical scepticism to social and political questions. In book one of the Treatise, the narrator says that his sceptical conclusions about metaphysics teach him the focus on what he calls ‘useful philosophy.’ Useful philosophy inquires into topics of practical importance. It seeks ‘to be acquainted with the principles of moral good and evil, the nature and foundation of government, and the cause of those several passions and inclinations, which actuate and govern me.’11 He does not, however, suggest, here or anywhere else, that his epistemological scepticism can be applied to politics; it only serves to clear our minds of pointless inquiries so we can turn our attention to ‘the nature and foundation of government.’

6 David Hume’s Political Theory

More tellingly, there are numerous passages where Hume explicitly recommends certain forms of social organization, and certain types of government behaviour, over others – apparently applying just the sort of over-arching standards that ‘sceptical conservatism’ is supposed to rule out. He says, for instance, that ‘one form of government must be allowed more perfect than another’ and comments in a letter to his nephew: ‘I cannot but agree with Mr Millar, that the Republican Form of [Government] is by far the best.’12 He talks about the improvements to be found in modern governments, with monarchies having made ‘the greatest advances towards perfection.’13 He calls liberty the ‘perfection of civil society’14 and speculates that ‘the best of all governments’ would be one that had ‘both the tranquillity attending kingly power, and the moderation and liberty of popular assemblies.’15 He says that in approaching just such a balance, the English ‘have happily established the most perfect and most accurate system of liberty that was ever found compatible with government.’16 And he does not hesitate to praise those, such as Edward I, who he thinks reformed society for the better – in Edward’s case, through the ‘sudden improvement of English law.’ ‘The chief advantage,’ Hume says, ‘which the people of England reaped, and still continue to reap, from the reign of this great prince, was the correction, extension, amendment, and establishment of the laws.’17 It might be argued that such comments show only that Hume was, like many philosophers, less than perfectly consistent, or that he acknowledged a personal, pre-philosophical preference for some governments and legal systems over others. But such ad-hoc solutions do not do justice to Hume’s political thought. There is, I believe, a better way. Most interpreters of Hume’s political philosophy base their reading of him heavily on the third book of the Treatise, the most apparently Hobbesian of Hume’s works. There, as Hume promises at the outset of the book, ‘the nature and foundation of government’ is examined. He emphasizes that, except in extraordinary circumstances, we should not seek to overthrow established authority completely, since some government is almost always better than none. But this is a very limited conclusion that tells us nothing about how we should try to reform or even transform existing regimes where this can be done without causing chaos. Writers of Hume’s era asserted that there are two parts to political philosophy: as Locke puts it, ‘the one containing the original of societies and the rise and extent of political power, the other, the art of

Introduction 7

governing men in society.’18 Hume’s writings can be divided fairly neatly according to Locke’s scheme, with the Treatise devoted to this first question, his essays and historical writings dedicated (mostly) to the second. Though Hume keeps the two more or less separate, this is not to say they are in conflict. Quite the opposite – Hume’s answers to these two sets of questions inform and support each other. Commentators have generally missed this connection, some going so far as to suggest that there is no connection between the two parts of Hume’s political philosophy. Knud Haakonssen says that it is doubtful ‘whether and to what extent he carried [his theory of justice as put forward in the Treatise] into his general social philosophy in the Essays and the History of England.’19 I argue that, on the contrary, Hume’s legal and political theory may be seen as a single coherent whole, with the account of justice in the Treatise laying the foundation on which Hume will construct his account of how law functions in a ‘civilized’ society. The key to constructing a unified reading lies in unlocking Hume’s concept of civilization.20 The distinction between civilization and barbarism is a central feature of his works on politics and history. He uses the adjective ‘civilized’ over a hundred times in his writings, in addition to synonyms such as ‘refined’ and ‘cultivated’ (each used over a hundred times in turn), these usually being contrasted with one of their opposites: ‘rude’ (over a hundred times), ‘uncultivated’ (roughly fifty times), and especially ‘barbarous,’ which takes the crown with over two hundred uses. (To put such numbers in perspective with regards to his philosophy as a whole, he uses the term ‘sceptic’ less than fifty times and ‘scepticism’ less than a hundred, while the term ‘custom,’ the central mechanism in belief formation, occurs roughly two hundred times.) Hume’s use of the adjective ‘civilized’ is all the more striking in that the term ‘civilization’ and its derivatives were not, at that time, common ones in the English language (with one very specialized exception: ‘civilize’ had long had a technical usage in legal documents, to indicate the transfer of a case from a criminal to a civil proceeding). The notion of barbarousness, which was traceable back to the Greeks, had been given new currency by the exploration of North America and the encounters with their pagan inhabitants, and the notion of civilization had emerged to mark the contrast. Montaigne remarks that the inhabitants of Mexico were ‘somewhat more civilized, and more advanced in arts, than the other nations about them.’21 This Latinate term and its cognates entered French usage more easily, though they appeared occa-

8 David Hume’s Political Theory

sionally in English texts. In his General History of Virginia (1624), Captain John Smith contrasts the settled, urban natives of Mexico, whom he calls ‘a civilized people,’ with the natives of the north, whom he calls ‘meere Barbarians as wilde as beasts.’22 Despite such occasional deployments, the words would have, during Hume’s time, retained a certain foreign sound to English readers – enough so that Samuel Johnson would explicitly refuse them entry into his dictionary. Boswell reports on a conversation he had with Johnson in 1772, near the end of Hume’s life. He says: ‘On Monday, March 23, I found him [Johnson] busy, preparing a fourth edition of his folio Dictionary ... He would not admit civilization, but only civility. With great deference to him, I thought civilization, from to civilize, better in the sense opposed to barbarity, than civility.’23 For Hume, the terms ‘civilized’ and ‘barbarous’ are used in an unabashedly prescriptive sense to designate those societies we should most desire to achieve and to avoid, respectively. They are traits possessed not just by individuals but also by particular ‘ages.’ He told Horace Walpole: ‘I beg you ... to consider the great difference in point of morals between uncultivated and civilized ages.’24 He says in his essay ‘Of Refinement in the Arts’ that ‘the ages of refinement are both the happiest and most virtuous.’25 He says in the History that ‘the vices of perfidy and cruelty’ are ‘common among uncultivated nations’ and warns that ‘a civilized nation ... ought to be cautious in appealing to the practice of their ancestors, or regarding the maxims of uncultivated ages as certain rules for their present conduct.’26 He gives the example of the ‘refined GREEKS and ROMANS,’ who ‘justly ... presumed’ that the inhabitants of the ‘uncivilized ages’ that preceded them, like those of the ‘barbarous nations’ that surrounded them, were ‘as much inferior to their posterity [i.e., the Greeks and Romans themselves] in honour and humanity, as in taste and science.’27 Such nations are not just dishonourable and cruel; they are even boring. Hume says at the outset of his History that ‘the adventures of barbarous nations ... afford little or no entertainment to men born in a more cultivated age.’28 Hume traces the distinction between civilization and barbarism to the greater levels of ‘humanity’ (in other words, general benevolence) that civilized peoples display. Humanity, he says, is ‘the chief characteristic which distinguishes a civilized age from times of barbarity and ignorance.’29 This increased humanity is closely connected to the greater levels of ‘knowledge’ or learning that civilized nations invariably possess. ‘I can scarce acknowledge any other ground of distinction between one age and another, between one nation and another,’ he

Introduction 9

says, ‘than their different progress in learning and the arts.’30 Knowledge invariably heightens our feelings of benevolence. It ‘humani[zes] the temper, and soften[s] the heart.’31 In fact, there is actually a threefold connection. We must add what Hume calls ‘industry’: the desire to engage in productive work and to improve one’s lot. When people are industrious, some of them seek out knowledge, which becomes diffused and thus stimulates people’s humanity. And all three are in their turn connected to the economic state of our society. ‘Industry, knowledge, and humanity,’ he says, ‘are linked together by an indissoluble chain, and are found, from experience as well as reason, to be peculiar to the more polished, and, what are commonly denominated, the more luxurious ages.’32 Such ages produce ‘better men’ than their barbarous counterparts. ‘It must be acknowledged,’ he says in the History, ‘in spite of those who declaim so violently against refinement in the arts, or what they are pleased to call luxury, that, as much as an industrious tradesman is both a better man and a better citizen than one of those idle retainers, who formerly depended on the great families; so much is the life of a modern nobleman more laudable than that of an ancient baron.’33 For Hume, ‘luxury,’ or the desire for material comfort and sensual satisfaction, which had long been demonized by both Christian and republican authors, lies at the root of the civilizing process. It is luxury that stimulates commerce, and commerce is the key to a nation’s development towards greater refinement and civilization.34 The question, then, of how a nation or people becomes ‘civilized’ turns on the question of why commerce takes root in certain types of societies and not in others. The answer is going to involve, crucially, the nature of a country’s government. Hume thinks commercial development depends not just on the luxuriousness of citizens but also on the right sort of laws, and on the right sort of government to implement and enforce them. A barbarous government, he says, ‘debases the people, and for ever prevents all improvements.’35 It is a crucial part of Hume’s theory that a civilized government is not just one that happens to be in the hands of civilized, enlightened rulers, who realize the value of commerce and understand what is necessary to support it. Rather, such a government must be ‘modelled’ or constituted in the right way. By the ‘modelling’ of government Hume means the distribution of power, written or unwritten, explicit or de facto, among the various public institutions and offices. A government can be modelled by a single founding act, by an accumulation of precedents and written laws, or

10

David Hume’s Political Theory

by a more delicate balance of conventions and other unwritten factors. Hume thinks that the different models of government can be reduced to a single key variable: what sort of laws does a given constitution generate? And he thinks the answer to this question may be given systematically: certain constitutions will invariably lead to the creation of certain sorts of laws. A civilized government will, he contends, be regulated by a system of what he calls ‘general laws.’36 The tight connection between the constitution of a government and its system of laws has the welcome implication that, as Hume puts it in the title of one of his essays, ‘politics may be reduced to a science.’ ‘So great is the force of laws,’ he says in this essay, ‘and of particular forms of government, and so little dependence have they on the humours and tempers of men, that consequences almost as general and certain may sometimes be deduced from them, as any which the mathematical sciences afford us.’37 This was intended as a reply to a dictum offered by Pope in his Essay on Man: ‘For forms of government let fools contest; / whate’er is best administered is best.’38 ‘Were it once admitted,’ Hume says, that all governments are alike, and that the only difference consists in the character and conduct of the governors, most political disputes would be at an end, and all Zeal for one constitution above another, must be esteemed mere bigotry and folly. But, though a friend to moderation, I cannot forbear condemning this sentiment, and should be sorry to think, that human affairs admit of no greater stability, than what they receive from the casual humours and characters of particular men.39

For Hume, the form of government is all. The ‘casual humours and characters’ of rulers only matter in barbarous governments – indeed, it is the dependence on the character of the magistrates that makes a government barbarous. A civilized government is one that, due to the nature of its laws, can be governed by even the most nakedly self-interested magistrates. With this doctrine, Hume enters a debate that has its roots in the political theory of the Greeks and Romans, on the importance of virtue in politics. He says in his essay ‘On the Independency of Parliament’ that in contriving any system of government, and fixing the several checks and controuls of the constitution, every man ought to be supposed a knave,

Introduction 11 and to have no other end, in all his actions, than his private interest. By this interest we must govern him, and, by means of it, make him notwithstanding his insatiable avarice and ambition, co-operate to public good.40

Hume’s advocacy of this principle puts him directly at odds with the ‘republican’ tradition that held, as J.G.A. Pocock puts it in his classic study (speaking of Pope’s mentor Bolingbroke): ‘politics must be reduced to ethics if it was not to reduce itself to corruption.’41 But Hume presents his doctrine not as a challenge to this tradition but rather as a reinterpretation of one of its oldest slogans: that a free people must be ruled by a government of laws, not men. For him, it is precisely the legal system’s independence of the rulers’ ethics that constitutes a government of laws. Hume does not claim to have invented the ‘just political maxim’ that ‘every man must be supposed a knave.’ And, indeed, it can be found in several earlier writers, most notoriously in Hobbes and Mandeville. But Hume’s treatment of the issue was more circumspect than theirs – he admitted the maxim, though ‘true in politics,’ was ‘false in fact’ – and it appealed to more moderate readers who were repelled by the harshness of the Hobbesian and Mandevillian systems. But Hume was not just trying to soften the impact of a harsh doctrine. His own use of the maxim is original and important. Unlike Hobbes and Mandeville, who seemed to rule out the possibility of private as well as public morality, Hume is unwilling to relinquish the language of virtue. Rather than accept a world full of self-interested ‘knaves,’ he argues instead that the right sort of constitutional machinery can ultimately make people more virtuous – by making them more civilized. While we can never depend on the virtue of a people, we can nevertheless promote it. If the form of government is so crucial to a civilized society, it obviously becomes an important question how a civilized government comes to exist. It can happen at a stroke, with a single wise legislator. Hume thinks such a person will be deserving of praise indeed. In fact, he thinks no one deserves more. ‘Of all men, that distinguish themselves by memorable achievements,’ he says, ‘the first place of honour seems due to LEGISLATORS and founders of states, who transmit a system of laws and institutions to secure the peace, happiness, and liberty of future generations.’42 But few states are blessed with such enlightened legislators at the outset. Instead, the emergence of such rulers itself depends on broader processes of social development. ‘Laws, order, police, discipline;’ Hume says, ‘these can never be carried to any

12

David Hume’s Political Theory

degree of perfection, before human reason has refined itself by exercise, and by an application to the more vulgar arts, at least, of commerce and manufacture. Can we expect, that a government will be well modelled by a people, who know not how to make a spinning-wheel, or to employ a loom to advantage?’43 Most of the time, societies will civilize themselves gradually, through a boot-strapping process. Chance or external influence will cause a society to begin to develop commercially. This development will stimulate the sort of refinement that eventually affects the legislators, who begin to improve the laws in such a way as to stimulate commerce still further. A particularly wise ruler such as Edward I may reform the society quite dramatically. Eventually, if circumstances cooperate, this virtuous circle leaves the nation thoroughly transformed. A happier and more moral populace, and a stable and equitable government, are the result. Crucially, a government may become civilized while still preserving its basic distribution of power. It was one of Hume’s great innovations to argue that a government of laws need not be a republic. The equation of the two, which was taken for granted at least by many Whig writers, goes back as far as Herodotus, who contrasts the republican Greek polis, which operated according to the rule of law, with the despotic monarchy of the Persians, where life and property depended on the caprice of the ruler.44 Hume thinks that, in a refined age, a monarchy may become not just a possible, but even an ideal, form of civilized government. A republican might think that Hume has simply slipped into incoherence here. How can he at once say that the form of government is all and that it does not in fact matter? In fact, Hume’s theory is elegantly nuanced rather than contradictory. He notices what others failed to, that the distribution of power at the top is only one aspect of the form of government. More important is how the constitution permits power to be exercised, and in particular how it delegates power to the intermediate authorities who actually implement the laws. We shall see that it is these ‘lesser magistrates’ that Hume makes the focus of special scrutiny. As I have already said, this scrutiny leads him to tie the form of government to its legal system. Hume’s legal theory has been largely neglected by scholars. Those who have discussed it have done so mostly within the context of his discussion of justice in the Treatise. But Hume talks extensively of the relative merits of different types of legal systems in both the Essays and the History. His comments are scattered and rarely assembled into anything resembling a sustained argument

Introduction

13

or exposition. Nevertheless, they are consistent and can be gathered together into something that we may unabashedly call his legal theory. This theory forms an integral part of his larger political theory. It is one of the aims of this study to establish both that Hume does have a theory of law and of law-making and that it forms an important part of his philosophy as a whole. I will also show that this theory is distinct from the tradition of ‘common law conventionalism’ with which Hume has normally been associated.45 We shall see that while Hume shares with common law theorists a cautious gradualism when it comes to legal reform, he nevertheless offers a set of general principles that he thinks an optimally civilized legal system must implement, regardless of its own particular traditions and precedents. My overall interpretation of Hume, as a reformer with a positive vision of what the good society should look like, is not new. Its essential features are presented in John B. Stewart’s book Opinion and Reform in Hume’s Political Philosophy. I have indicated my more specific debts to Stewart in the footnotes. My book may indeed be seen as a defence of the ‘liberal’ reading of Hume that Stewart pioneered. However, the focus of his book is different from mine. Stewart is, as his title suggests, concerned to explore how Hume hoped to reform people’s opinions about morality; he does not explore in detail the distinction between barbarous and civilized governments or how we get from one to another. Stewart also leaves many of Hume’s apparently conservative statements unexplained. I believe I can show how these statements can be interpreted as a consistent part of his overall philosophy. It should also be noted that my reading of Hume is consistent with an older and widely influential interpretation of his political philosophy. In his book Hume’s Philosophical Politics, Duncan Forbes argues that Hume seeks to replace the ‘vulgar Whiggism’ of his predecessors with a new ‘scientific Whiggism’ that tries to replace the factional prejudices that have influenced the study of society with a new, more impartial methodology.46 My account of Hume supports this. But again, my focus is different from Forbes’s. Though his discussion is admirably wideranging, the specifics of general laws and the civilized society are left unanalysed. Forbes’s general approach is developed further by Frederick Whelan, whose study anticipates mine in its contention that Hume’s political science combines ‘affinities to liberal theory’ with its ‘conservative practical bearing’ – a combination I explore in more detail in chapter

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David Hume’s Political Theory

six.47 Whelan challenges the reading of Hume as a sceptical conservative, pointing out that on the contrary, ‘Hume has well-developed doctrines that belie charges of an uncritical and complacent acquiescence in the status quo.’48 However, Whelan’s study is almost entirely devoted to foundational questions – of just how Hume’s ‘science of human nature’ can be applied to the realm of morality and politics. He acknowledges the importance of the rule of law for Hume but does not provide an analysis of how it operates in different societies or what makes some types of legal system more optimal than others. I hope, then, that this book can help readers achieve a clearer understanding of Hume’s political theory, which I believe is both original and important. I also hope that it can renew interest in Hume by positioning him more accurately in relation to the political philosophy of his era and the history of political thought in general. It should not surprise us that it is the third book of the Treatise, along with his essay on the original contract, that have attracted the attention of modern political philosophers. It is these writings that look most like political philosophy as we are used to it. They are tightly argued and are devoted to the sort of conceptual questions easily recognizable to students raised on a diet of Hobbes and Locke, supplemented with servings of Rawls and Nozick. And a strong similarity to the two giants of early British philosophy is just what we would expect when we consider the strong influence of both men, especially Locke, on Hume’s epistemological thinking. When we look at the entire body of Hume’s political and legal writings, however, he suddenly appears as part of a very different tradition – one in which he plays a much more central role. This is the tradition concerned with concrete questions about the machinery and functioning of government rather than abstract ones about its nature and foundation. The writings in this tradition look much more like what is now called political science; they aspire to the empirical study of existing regimes, past and present, in an attempt to draw general theoretical conclusions about what makes such regimes thrive or collapse and what best promotes the happiness of those who live under them.49 This puts Hume in the company of predecessors such as Machiavelli and Harrington (both of whom he discusses at various points in his political writings, an honour not accorded either Locke or Hobbes), contemporaries such as Montesqieu, Turgot, and Condorcet, and successors such as James Madison and the Abbé Sièyes, to name only some of the most proximate. We should also include his friends and fellow ‘philosophical historians’ Edward Gibbon and Adam Smith (both of whose great

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works Hume was reading literally on his deathbed and rose from it to praise). If we regard this tradition as a crucial part of the era’s intellectual life, as we certainly should, Hume becomes fully integrated into the phenomenon we call the Enlightenment. He can be seen as contributing in important ways to the projects for human improvement that provoked Isaiah Berlin to describe the era as ‘the best and most hopeful episode in the history of mankind.’50 Yet Hume is not just an exemplar of larger trends. He also stands out – for his attention to the law, and more specifically to the machinery of how legal systems operate and how their development interacts with that of the society as a whole. Rather than resting his theory on generalizations about the supposedly inevitable stages of social development, as some of his contemporaries did, he probes the specific mechanisms of change.51 And he moves beyond modish but vague tributes to ‘the rule of law’ to analyse in what exactly the rule of law consists, and he pays exquisite attention to the way in which the local theatres of law can become the key sites of oppression or liberty. All of this should make him a subject of urgent interest for students of Enlightenment political theory. My reading of Hume also makes it possible to see him as contributing to one of the great Enlightenment debates, the one that in 1749 provoked the Academy of Dijon to ask: has the progress of the sciences and arts tended to purify morals? Rousseau famously took the opportunity of the Academy’s prize question to argue that, on the contrary, it tends to corrupt them. The storm Rousseau provoked came after Hume had formulated his own views, and he in any case never took much notice of Rousseau’s answer. Hume would later express admiration for Rousseau’s novel Julie but dismissed his philosophical writings as ‘extravagant.’52 But Hume clearly has the question of progress and morality very much in mind throughout his political writing, and his answer remains, in a debate often more dominated by polemic than philosophy, one of the most nuanced and interesting of the entire period. The plan of this book is as follows. I begin by laying out Hume’s vision of a civilized society. I then explore the legal and constitutional machinery he thinks such a society requires. I examine what he takes to be the most damaging evidence against his view and his reasons for dismissing this evidence. I then look in more detail at Hume’s account of British history and how he thinks this account confirms his theory. Finally, I take up the question of what sort of conservative, if any, Hume really is, and what his legacy may be for political philosophy.

1 Hume’s Indissoluble Chain

In my introduction I cited Hume’s contention that a particular moral quality, humanity, is ‘the chief characteristic which distinguishes a civilized age from times of barbarity and ignorance,’ and that it is linked by an ‘indissoluble chain’ to knowledge and industry.1 We may question how he can privilege these particular traits, given his seemingly sceptical and emotivist account of morality. If Hume thinks morality is merely a matter of sentiment – the best traits of character being those we affectively approve of on observing them in action – how can he tells us that we should approve of some rather than others? As Hume lays out his moral theory in Book Three of the Treatise, it is limited in its scope. He presents it in such a way as to answer two questions: where do the dictates of morality originate and how do they bind us? He does not explicitly address the question of what actions or traits of character are best, or what is the good life for humans. His chief purpose is to show that our moral beliefs can be explained and justified without making reference to divine command, a cosmic order, or any other factor beyond humanity itself. ‘I wish from my Heart,’ Hume told Hutcheson, somewhat disingenuously, ‘I coud avoid concluding, that since Morality, according to your Opinion as well as mine, is determin’d merely by Sentiment, it regards only human Nature & human Life.’2 In those places where Hume does discuss the specifics of right and wrong, his comments are presented as observations on what people commonly believe. It has been suggested that Hume’s moral theory is merely descriptive, rather than normative. So J.L. Mackie argues, for instance, in his influential book on Hume’s ethics.3 It is unquestionably true that Hume was mainly concerned in Book Three of the Treatise to

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provide a description of our moral beliefs, with the aim of showing that these beliefs are best explained according to what he considers the basic principles of the human mind. He told Hutcheson after its publication: ‘There are different ways of examining the Mind as well as the Body. One may consider it either as an Anatomist or as a Painter; either to discover its most secret Springs & Principles or to describe the Grace & Beauty of its Actions.’4 His role, he implies here, is as an anatomist and no more.5 Given the evidence I have presented, however, we cannot take Hume’s moral theory to end here. I have cited a passage, for instance, where he asserts that the inhabitants of luxurious, civilized societies are ‘better men’ than those of less refined societies and that their lives are ‘more laudable.’ He also says that what he calls ‘delicacy of taste’ ‘enlarges the sphere both of our happiness and misery, and makes us sensible to pains as well as pleasures, which escape the rest of mankind.’ As these quotes indicate, Hume thinks there are certain forms of life that will make us better and happier and that if we do not agree on the desirability of such forms of life, it is only due to the blinding effects of such factors as prejudice and superstition. In fact, however, there is (he thinks) already a broad consensus that his trio of civilized virtues are the ones best suited to promote general human happiness.6 1. Humanity I will begin by discussing the core virtue of ‘humanity’ or general benevolence. Hume is not particularly concerned to argue for its merits. He thinks he can take it as agreed that ‘whatever proceeds from a tender sympathy with others’ are most to be praised. ‘It will suffice to remark,’ Hume says, (what will readily, I believe, be allowed) that no qualities are more entitled to the general good-will and approbation of mankind than beneficence and humanity, friendship and gratitude, natural affection and public spirit, or whatever proceeds from a tender sympathy with others, and a generous concern for our kind and species.7

He suggests that it may be considered ‘a superfluous task to prove that the benevolent or softer affections are ESTIMABLE.’ He says that ‘wherever they appear, [they] engage the approbation and good-will of mankind. The epithets, sociable, good-natured, humane, merciful, grateful,

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friendly, generous, beneficent, or their equivalents, are known in all languages, and universally express the highest merit, which human nature is capable of attaining.’8 Hume thinks these ‘social virtues’ all spring from a single source: the sentiment of benevolence. ‘In whatever light we take this subject,’ he says, ‘the merit, ascribed to the social virtues, appears still uniform, and arises chiefly from that regard, which the natural sentiment of benevolence engages us to pay to the interests of mankind and society.’9 We should note that Hume uses the term ‘humanity’ in two senses. It has a narrow meaning, to describe one among the many social virtues, roughly akin to ‘generousness.’ But it also has a broader meaning, the one it has in describing the foundation of civilized society: as the sentiment of ‘general benevolence,’ or concern for the welfare even of people distant from us, by whom we are not directly affected.10 He thinks that in fact the word virtue was invented to describe the sentiment of humanity.11 Hume thinks our sociable affections are rooted in human nature. We are naturally linked to others through the mechanism of sympathy. Whatever ‘passions we may be actuated by;’ he says, ‘pride, ambition, avarice, curiosity, revenge or lust; the soul or animating principle of them all is sympathy.’12 Sympathy is a term familiar from the work Hume’s predecessors, such as Shaftesbury and Hutcheson. But Hume uses it to mean something quite precise. As he defines it, sympathy is an involuntary, physiological reaction to the joys and sufferings of others, one that actually allows us to experience their reactions as if they were our own. He says sympathy ‘takes us so far out of ourselves, as to give us the same pleasure or uneasiness in the characters of others, as if they had a tendency to our own advantage or loss.’13 When we observe another, he says, our two minds become like two strings side by side on a musical instrument. When one is plucked, the other begins to vibrate as well. We do not just imagine the other person’s suffering. We feel it.14 Shaftesbury leaves the meaning of our capacity to connect with others unanalysed. Hutcheson attributes it to the operation of some mysterious extra sense. But Hume insists on bringing this phenomenon within the purview of science by tracing it to a more basic one: the tendency of our perceptions to communicate among themselves. Because of the ‘great resemblance among all human creatures’ – which Hume assumes that people have all inevitably noticed, and are aware of – when we observe another person who, by her behaviour, is clearly experiencing

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some form of emotion or feeling, we immediately experience an idea (that is, a memory) of having felt the same way in the past. This idea strikes us so forcefully that we come to feel the emotion itself. The effects of sympathy are far-reaching. All our ‘opinions,’ including our conception of self-interest, are intimately bound up with our perceptions of others, and theirs of us. ‘We can form no wish,’ he says, ‘which has not a reference to society.’ Our passions would not ‘have any force, were we to abstract entirely from the thoughts and sentiments of others.’15 This is because ‘the minds of men are mirrors to one another.’16 ‘Men always consider the sentiments of others in their judgments of themselves,’ Hume says.17 In interacting with others, our natural sentiments become amplified. ‘Hatred, resentment, esteem, love, courage, mirth and melancholy,’ he says, ‘all these passions I feel more from communication than from my own natural temper and disposition.’18 Sympathy makes our happiness closely related to the opinions of others. Without its enlivening power, our passions would be left weak and empty. Describing our dependence on others, Hume allows himself a rare moment of poetic rapture: Let all the powers and elements of nature conspire to serve and obey one man; Let the sun rise and set at his command. The sea and rivers roll as he pleases, and the earth furnish spontaneously whatever may be useful or agreeable to him: He will still be miserable, till you give him some one person at least, with whom he may share his happiness, and whose esteem and friendship he may enjoy.19

We have already seen that, for Hume, there is wide agreement on the moral praiseworthiness of those emotions that promote sociable or benevolent behaviour. And sympathy clearly lies at the root of sociability. However, Hume does not believe that morality simply requires a surrender to the power of sympathy. There are two reasons why this is so. First of all, we cannot be counted on to be guided by our sympathetic connection with others. Second, even if we all could allow ourselves to be motivated entirely by the sentiments sympathy provokes, these sentiments are by no means identical with our altruistic ones, and sympathy is by its very nature inadequate to the task of regulating the behaviour of large groups of people over long periods of time in any sort of reliable way. I will explain these problems in turn, beginning with the unreliability of our sociable emotions. Hume does not deceive himself into thinking

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that human nature lends itself to complete reduction. His picture of human nature resembles that of the ancients in that it portrays this nature as a turbulent theatre of conflicting motives and desires. People are, in Sidgwick’s memorable phrase, ‘polities of impulse.’ Our motives are irreducibly heterogeneous by nature. Despite the power of sympathy, self-interest retains a powerful influence. Indeed, the two combine intimately in emotions such as pride, which makes us want to stand tall in the esteem of others. There is a sense in which sympathy can be thought in fact to be parasitic on a kind of self-interested hedonism. We wish well for others because the observation of their suffering causes us pain, and we enjoy their pleasures vicariously. On top of this, we are ever subject to passions such as anger and covetousness that can obliterate any moral sentiment or sympathetic feeling. A reasonably complex society, capable of protecting property in any sort of stable or predictable way, depends on the emergence of the ‘artificial’ virtues, of which justice is foremost, and which coordinate our behaviour for (ideally) the benefit of all. However, in order to ensure that these virtues can in fact achieve this end, they must be embedded in a legal system and enforced by a government. Thus, as we shall see in the next section, the emergence of law and government can ultimately be traced back, not to our nobler emotions, on which we cannot rely, but to the interest we all have in a stable and reliable system of rules that protect our property and our persons. It is not just the weakness of our natural sympathy, compared with our other impulses, that makes it inadequate to the task performed by the artificial virtues. Even were we able to make sympathy the dominant element in our nature, it is on its own no more than a basic instinctive reaction. As such, it is partial and unreliable and therefore does not necessarily provide for us the objectivity that Hume thinks either morality or politics requires. Sympathy can cause sociable emotions that are general and extensive, but it can also provoke ones that are partial and limited. It is in fact the very nature of sympathy to do so: we feel the joys and sorrows of others more acutely when we perceive a connection or specific resemblance between them and ourselves. Sympathy is thus not to be confused with the kind of innate general benevolence to which Shaftesbury and Hutcheson seem to appeal. ‘There is no such passion in the human mind,’ Hume says, ‘as the love of mankind, merely as such.’20 We are naturally animated by our perception of more immediate resemblances. ‘The sentiments of others have little influence when far removed from us,’ he says,

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and require the relation of contiguity to make them communicate themselves entirely. The relations of blood, being a species of causation, may sometimes contribute to the same effect; as also acquaintance, which operates in the same manner with education and custom, as we shall see more fully afterwards. All these relations, when united together, convey the impression or consciousness of our own person to the idea of the sentiments or passions of others, and makes us conceive them in the strongest and most lively manner.21

Hume thinks that in order to overcome such natural bias, we must learn to govern our sympathetic reactions so they accord with those that would be produced by the cool reflection of a competent and detached observer – a perspective represented by what Hume calls the general point of view. In order, Hume says, to ‘arrive at a more stable judgment of things, we fix on some steady and general points of view; and always, in our thoughts, place ourselves in them, whatever may be our present situation.’22 It is due to both of these factors – the weakness of our natural sympathy in competition with other motivating forces, and its inherent tendency to yield biased judgements – that the second link in Hume’s chain, knowledge, enters the picture. 2. Knowledge True humanity requires not just that we feel sympathy for others but also that we be governed by a general point of view. While the sentiment of humanity, then, is something we all agree is laudable, we have trouble allowing ourselves to make it our chief motivation, or applying it accurately. But knowledge broadens the operation of sympathy and hones our skills of moral observation. ‘It is certain,’ Hume says, that a serious attention to the sciences and liberal arts softens and humanizes the temper, and cherishes those fine emotions, in which true virtue and honour consists. It rarely, very rarely happens, that a man of taste and learning is not, at least, an honest man, whatever frailties may attend him. The bent of his mind to speculative studies must mortify in him the passions of interest and ambition, and must, at the same time, give him a greater sensibility of all the decencies and duties of life. He feels more fully a moral distinction in characters and manners; nor is his sense of this kind diminished, but, on the contrary, it is much encreased, by speculation.23

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It is not enough, however, simply to ‘cherish’ our ‘fine emotions.’ Even with the best intentions, we may go wrong in attempting to take a general view of things. One of the ways we guide ourselves according to a general point of view is through the formation of general rules. Though this process is an inevitable and beneficial one, it is not without its dangers. Hume observes the effects of prejudice, which is a rule of inference ‘derived from general rules, which we rashly form to ourselves.’ He gives examples of such prejudices. ‘An Irishman cannot have wit,’ he says, and a Frenchman cannot have solidity; for which reason, though the conversation of the former in any instance be visibly very agreeable, and of the latter very judicious, we have entertained such a prejudice against them, that they must be dunces or fops in spite of sense and reason. Human nature is very subject to errors of this kind.’24

Knowledge overcomes the effects of prejudice and allows us to evaluate received opinion. This explains why Hume says that virtue is ‘nothing but a more enlarged and more cultivated reason’: Whatever we may imagine concerning the usual truth and sincerity of men, who live in a rude and barbarous state, there is much more falsehood, and even perjury among them, than among civilized nations: Virtue, which is nothing but a more enlarged and more cultivated reason, never flourishes to any degree, nor is founded on steady principles of honour, except where a good education becomes general; and where men are taught the pernicious consequences of vice, treachery, and immorality.25

Education is, along with custom, the principal source of the variations we see between societies. He says in the first Enquiry: ‘Are the manners of men different in different ages and countries? We learn thence the great force of custom and education, which mould the human mind from its infancy, and form it into a fixed and established character.’26 But it is important to note the qualifier in the above quotation – virtue requires a good education. Hume emphasizes that the wrong sort of education can have decidedly pernicious effects. A good education teaches us to think critically, and ‘compare the popular principles of different nations and ages,’ in the interest of achieving a truly general point of view. Where education is simply the imparting of received opinions to be accepted without

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question, it becomes the process by which society instills its prejudices. He laments that immediately following the Norman conquest, ‘the learning of that age was better fitted to corrupt than improve the understanding.’27 Similarly, in the Dialogues, Philo (very confusingly) uses the term ‘education’ to describe a process that impedes rather than stimulates the spread of knowledge. He says that during what he calls ‘ignorant ages ... education had ... a mighty influence over the minds of men, and was almost equal in force to [the] suggestions of the senses and common understanding ... But at present, when the influence of education is much diminished ... men, from a more open commerce of the world, have learned to compare the popular principles of different nations and ages.’28 Knowledge also increases our humanity by heightening our sociable urges, which in turn broaden our experience and thus the operation of our sympathetic instincts. Hume says that once people have been ‘enriched with science,’ it is impossible that they ‘should be contented to remain in solitude, or live with their fellow-citizens in that distant manner, which is peculiar to ignorant and barbarous nations.’ For the man possessed of delicacy of taste, ‘a polite and judicious conversation affords him the highest entertainment.’29 But Hume does not think any idle topic will serve for such entertainment. It is above all the pleasures of science and the arts that cause them to ‘flock into cities’ and make them ‘love to receive and communicate knowledge.’30 In a civilized age, sociability and learning will become intertwined, and scholars will communicate freely with an enlightened public. He says: ’Tis with great Pleasure I observe, That Men of Letters, in this Age, have lost, in a great Measure, that Shyness and Bashfulness of Temper, which kept them at a Distance from Mankind; and, at the same Time, That Men of the World are proud of borrowing from Books their most agreeable Topics of Conversation.31

Sociability is in itself an important force in stimulating people’s desire to act virtuously. For Hume, the company of others is ‘naturally so rejoicing, as presenting the liveliest of all objects, viz, a rational and thinking Being like ourselves.’32 But we seek not just the company of others but also their praise. He says that the social passions never afford such transporting pleasures, or make so glorious an appearance in the eyes both of GOD and man, as when, shak-

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David Hume’s Political Theory ing off every earthly mixture, they associate themselves with the sentiments of virtue, and prompt us to laudable and worthy actions. As harmonious colours mutually give and receive a lustre by their friendly union; so do these ennobling sentiments of the human mind.33

A society that fosters people’s sociability has the same effect as one that fosters learning. It broadens their moral perspective and undermines their prejudicial judgments. The price of living in what he calls ‘that distant manner, which is peculiar to ignorant and barbarous nations’ is that we become the slaves of the views and customs of our particular society. By contrast, in a society where men and women gather together ‘in an easy and sociable manner ... [their] tempers ... as well as their behaviour, refine apace. So that, beside the improvements which they receive from knowledge and the liberal arts, it is impossible but they must feel an encrease of humanity, from the very habit of conversing together, and contributing to each other’s pleasure and entertainment.’34 3. Industry Even if we all agree that humanity is to be promoted and that knowledge has the effect of promoting it, we still have not solved the motivation problem. I have already said that, for Hume, people are complex and are motivated by a variety of factors, including partial sympathy and narrow self-interest. However, he thinks the final link in his chain, industry, has a special motivating force that can affect our desire to promote knowledge and humanity.35 Industry is something even the most self-interested actor will seek to promote, because the desire for ‘action’ is a crucial part of her own happiness. To understand why this is so, we must step back and examine in more detail Hume’s account of happiness. Though he begins this account with a purportedly neutral desciption of ‘the most received opinions,’ we shall see that he quickly endorses these opinions as accurate. First, let us examine his definition in more detail. ‘Human happiness,’ Hume says, ‘according to the most received notions, seems to consist in three ingredients; action, pleasure, and indolence: And though these ingredients ought to be mixed in different proportions, according to the particular disposition of the person; yet no one ingredient can be entirely wanting, without destroying, in some measure, the relish of the whole composition.’36

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The second ingredient, pleasure, will not surprise a reader acquainted with Hume’s account of motivation in the Treatise, which seems to make hedonic satisfaction something close to a necessary condition for action. ‘The chief spring or actuating principle of the human mind,’ he says there, ‘is pleasure or pain; and when these sensations are remov’d, both from our thought and feeling, we are, in a great measure, incapable of passion or action, of desire or volition.’37 Indeed, what may puzzle such a reader is that anything besides pleasure could be included on a list of the things we chiefly desire, since Hume seems to think it is a prerequisite for most of our other passions. ‘It is easy to observe,’ he says, ‘that the passions, both direct and indirect, are founded on pain and pleasure ... Upon the removal of pain and pleasure, there immediately follows a removal of love and hatred, pride and humility, desire and aversion, and of most of our reflective or secondary impressions.’38 He even seems at certain points to equate pleasure with good, and pain with evil.39 How, then, can it factor as only one element in our happiness? The term ‘pleasure,’ as used by Hume, is systematically ambiguous. It has a technical use for him, as more or less analytically equivalent to ‘good’ – that is, as anything the prospect of which acts as ‘the chief spring’ of our passions. (What some people would call evil, actions that gratify us by doing harm to others, Hume calls ‘malice’ – ‘the unprovoked desire of producing evil to another, in order to reap a pleasure from the comparison.’40 He thus reserves the term evil for things that give us displeasure.) We might call this pleasure-1. He is little concerned with the phenomenology of pleasure in this sense. It is enough to say that whatever satisfaction our desires aim at must count as pleasure. In the Essays, ‘pleasure’ is used in a more colloquial sense. He contrasts ‘our pleasures’ to ‘our serious occupations’41 and speaks of ‘ease, contentment, repose, and pleasure.’42 In ‘The Epicurean’ he personifies Pleasure as ‘the supreme love [that is, love object] of GODS and men,’ a goddess who is attended on by ‘sportive CUPIDS.’ To one who accepts her invitation, she offers ‘delicious fruits,’ ‘fragrant oils,’ and ‘sparkling nectar in golden goblets.’43 Pleasure in this sense, call it pleasure-2, is defined by its largely passive and sensuous nature – hence the contrast with ‘action’ in the above passage. Pleasure-2 yields a kind of pleasure1 – it is among our goods, and undeniably motivates us – but it far from exhausts the content of pleasure-1. Hume provides a criterion for privileging one type of pleasure-1 over another that explains special status given to action. He uses the term ‘constancy’ or ‘durability’ to describe those pleasures that are, in a cer-

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tain sense, inexhaustible. ‘What is casual and inconstant,’ he says, ‘gives but little joy.’44 For Hume inconstancy causes ‘uneasiness.’ And uneasiness is the very definition of mental pain. He refers to ‘discontent, impatience, fear, and other uneasy passions’45 and uses the term ‘uneasiness’ as an antonym to pleasure. ‘Pride,’ he says, ‘by its peculiar qualities, produces a separate pleasure, and ... humility a separate uneasiness.’46 Sensual gratification is different from active pursuits in that, with the former, we can become sated with its object, which Hume suggests makes it less desirable overall. ‘Though the tempers of men be very different,’ he says, ‘yet we may safely pronounce in general, that a life of pleasure [in my sense, pleasure-2] cannot support itself so long as one of business, but is much more subject to satiety and disgust. The amusements, which are the most durable, have all a mixture of application and attention in them; such as gaming and hunting. And in general, business and action fill up all the great vacancies in human life.’47 Pleasure-2 does not supplant action as an ingredient in our overall happiness, but our desire for pleasure-2 ranks below our desire for action. It is less constant and therefore does not have the same motivating force. ‘There is no craving or demand of the human mind more constant and insatiable than that for exercise and employment,’ he says, ‘and this desire seems the foundation of most of our passions and pursuits.’48 For Hume, the special status given to action seems to have a physiological basis. He defines it as ‘that quick march of the spirits, which takes a man from himself’ and says it is this that ‘chiefly gives satisfaction.’49 ‘The blood flows with a new tide,’ he says. ‘The heart is elevated: And the whole man acquires a vigour, which he cannot command in his solitary and calm moments.’50 Active pursuits, then, will recommend themselves to us over other kinds of behaviour for the durable and inexhaustible pleasure they bring. Sensual pursuits are not to be condemned, but they are bound to leave us dissatisfied. By the same token, the third ingredient to happiness, ‘repose,’ has a purely instrumental value – it is useful in preparing us for further activity. ‘Indolence or repose,’ he says, ‘seems not of itself to contribute much to our enjoyment; but, like sleep, is requisite as an indulgence to the weakness of human nature, which cannot support an uninterrupted course of business or pleasure. [Action] does in the end exhaust the mind, and requires some intervals of repose, which, though agreeable for a moment, yet, if prolonged, beget a languor and lethargy, that destroys all enjoyment.’51 If our ideal life does not allow for suffi-

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cient repose, it will be flawed. However, our necessary desire for repose carries with it the danger of becoming its extreme – ‘languor and lethargy.’ ‘No matter what the passion is,’ Hume says, ‘Let it be disagreeable, afflicting, melancholy, disordered; it is still better than that insipid languor, which arises from perfect tranquillity and repose.’52 People may certainly become trapped in a life of languor, but they cannot be as happy as if they roused themselves to action. I shall argue below that one of the main reasons people slip into such lethargy is because the state prevents their more productive activities from receiving their proper reward. Hume uses the term ‘industry’ to describe the power or propensity to action – in other words, the virtue to which it is linked. ‘Industry is a power,’ says Philo, ‘and the most valuable of any.’53 Indeed, Hume offers his strongest and most eloquent praise of industry when speaking through his various ‘characters.’ This obviously presents a problem in using them as evidence for his own views. But given their consistency both with one another and with his statements elsewhere, they may be cited, with due caution, as an expansion of Hume’s views as already established, if not as evidence for his actually holding those views. ‘Shall that labour and attention,’ his Stoic asks, ‘requisite to the attainment of thy end, ever seem burdensome and intolerable? Know, that this labour itself is the chief ingredient of the felicity to which thou aspirest, and that every enjoyment soon becomes insipid and distasteful, when not acquired by fatigue and industry.’54 ‘Proceed to learn the just value of every pursuit,’ he continues, ‘long study is not requisite: Compare, though but for once, the mind to the body, virtue to fortune, and glory to pleasure. You will then perceive the advantages of industry.’55 But it is Philo who offers the most impassioned – indeed virtually utopian – tribute to the virtue of industry: In order to cure most of the ills of human life, I require not that man should have the wings of the eagle, the swiftness of the stag, the force of the ox, the arms of the lion, the scales of the crocodile or rhinoceros; much less do I demand the sagacity of an angel or cherubim. I am contented to take an increase in one single power or faculty of his soul. Let him be endowed with a greater propensity to industry and labour; a more vigorous spring and activity of mind; a more constant bent to business and application. Let the whole species possess naturally an equal diligence with that which many individuals are able to attain by habit and reflec-

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David Hume’s Political Theory tion; and the most beneficial consequences, without any alloy of ill, is the immediate and necessary result of this endowment. Almost all the moral, as well as natural evils of human life, arise from idleness; and were our species, by the original constitution of their frame, exempt from this vice or infirmity, the perfect cultivation of land, the improvement of arts and manufactures, the exact execution of every office and duty, immediately follow; and men at once may fully reach that state of society, which is so imperfectly attained by the best regulated government.56

Hume’s account of industry allows us to understand better why he thinks we desire knowledge. Knowledge is the result of industry in the intellectual sphere and thus brings with it the special pleasure that comes with action. ‘The pleasure of study consists chiefly in the action of the mind,’ he says, ‘and the exercise of the genius and understanding in the discovery or comprehension of any truth.’57 To ‘exert our genius,’ he says, ‘of all other exercises of the mind is the most pleasant and agreeable.’58 The quest for knowledge activates the mind in a special way. We are naturally outward-oriented, seeking new experiences and new discoveries. ‘The mind,’ Hume says, ‘[is] insufficient, of itself, to its own entertainment ... it naturally seeks after foreign objects, which may produce a lively sensation, and agitate the spirits.’59 ‘’Tis almost impossible,’ he says, ‘for the mind of man to rest, like those of beasts, in that narrow circle of objects, which are the subject of daily conversation and action.’60 Knowledge by its nature involves the pursuit of novel ideas, and Hume thinks novelty is a powerful mechanism in stimulating our passions. ‘Such is the nature of novelty,’ he says, ‘that, where any thing pleases, it becomes doubly agreeable, if new.’61 It is particularly effective in motivating us, since it draws us to an object we might not otherwise notice. ‘Novelty naturally rouzes the mind,’ Hume says, ‘and attracts our attention; and the movements, which it causes, are always converted into any passion, belonging to the object, and join their force to it.’62 But the pursuit of knowledge is preferable to other noveltyseeking mental activities such as mere daydreaming – the pursuits of ‘fancy’ as Hume calls them – for the greater liveliness, force, and constancy of the ideas that knowledge brings. Lively ideas are naturally pleasurable. ‘Every lively idea is agreeable,’ he says.63 Hume thinks that the liveliest ideas are those in which we believe. ‘Belief’ for Hume is a ‘manner of forming an idea’ that ‘bestows on [it] an additional force and vivacity.’64 This vivacity will enhance both its constancy and its

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pleasurability. ‘It has been prov’d at large,’ Hume says in the Treatise, ‘that the influence of belief is at once to inliven and infix any idea in the imagination, and prevent all kind of hesitation and uncertainty about it. Both these circumstances are advantageous ... As the vivacity of the idea gives pleasure, so its certainty prevents uneasiness, by fixing one particular idea in the mind, and keeping it from wavering in the choice of its objects.’65 Hume says the more data we acquire confirming our belief in an idea, the more pleasurable it becomes. ‘These agreeing images unite together,’ he says, describing an accumulation of experience supporting an idea, ‘and render the idea more strong and lively, not only than a mere fiction of the imagination, but also than any idea, which is supported by a lesser number of experiments. Each new experiment is as a new stroke of the pencil, which bestows an additional vivacity on the colours without either multiplying or enlarging the figure.’66 The ideal mental activities are therefore ones that combine enlivening factors such as ‘interest, relation, greatness and novelty’ with the liveliness that comes with stable and well-founded belief. But for Hume, we take the greatest satisfaction of all from mental pursuits that also have the greatest possible utility. ‘Tho’ the exercise of genius,’ Hume says in the Treatise, ‘be the principal source of that satisfaction we receive from the sciences, yet I doubt, if it be alone sufficient to give us any considerable enjoyment. The truth we discover must also be of some importance. ’Tis easy to multiply algebraical problems to infinity, nor is there any end in the discovery of the proportions of conic sections; tho’ few mathematicians take any pleasure in these researches, but turn their thoughts to what is more useful and important.’67 There is a lack of clarity in this passage that must be dispelled. It seems to set up an opposition between the ‘satisfaction’ we get from an idea and the ‘enjoyment’ of it. It may be read as saying that we get only satisfaction from the mere exercise of our intellect, while we get enjoyment from our perception of the idea’s importance. How could this higher form of pleasure be explained if the exercise of genius were supposed of itself to constitute the pleasure? There is no such opposition, however, as a proximate passage makes clear. ‘If the importance of the truth be requisite to compleat the pleasure,’ Hume says, ‘’tis not on account of any considerable addition, which of itself it brings to our enjoyment, but only because ’tis, in some measure, requisite to fix our attention.’68 Utility is, in other words, linked to constancy: we can only maintain a stable interest in those ideas we know to be useful. Useless

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ideas, like false ones, will prove unstable objects of our mental attention and hence will prove a cause of uneasiness in the long run. Because industry and knowledge are deeply rooted in human nature, Hume can appeal to something like Mill’s notion of ‘competent acquaintance’ for their justification. Though we may occasionally fall prey to languor and incuriosity, we have only to experience the special pleasures associated with industry and the pursuit of knowledge to see that they are ones we should pursue and promote if we want to increase as much as possible our own happiness, as well as that of others. I have already said that knowledge and industry can only be promoted effectively when we live in the right sort of society. And while Hume says such societies are those that are more ‘polished’ or ‘refined,’ his account does not end in such circularity. There is an independent variable that accounts for the progress of learning and industry – what he calls ‘luxury.’ 4. Luxury and Commercial Society When Hume says that his trio of highest goods, ‘industry, knowledge, and humanity,’ are ‘peculiar to the more polished, and, what are commonly denominated, the more luxurious ages,’ he means to be provocative.69 The term ‘luxury’ was, during his era, often used to point to everything that was corrupt and blameworthy in society. The anti-materialistic moralism that produced Chaucer’s lament, ‘O foule lusts of luxurie,’ was still very much alive. Christopher Berry writes that luxury was ‘a stock ingredient in the moral vocabulary of the pre-modern period,’ and that during the eighteenth century, attempts by Mandeville and others to ‘de-moralise’ luxury had ‘produced, in reaction, a re-vindication of the traditional moralist – whether humanist or Christian – view.’70 Despite the widespread condemnation, it remained during Hume’s day a matter of some dispute precisely how luxury should be defined. ‘Luxury,’ says Hume, ‘is a word of an uncertain signification ... In general, it means great refinement in the gratification of the senses.’71 This does not go far in banishing the uncertainty, since it leaves to be explained what counts as ‘great refinement.’ But Hume’s definition does make clear that luxury is, most basically, linked to consumption. Hume, keeping with accepted use during his day, gives the term a grammatical flexibility it has to some extent since lost. It can be a thing consumed: Hume talks about the enjoyment a person gets from ‘the most expensive luxury.’72 It can describe an environment or state of

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being – which is to say a comfortable or excessive one, such as when he refers to ‘the encreasing luxury of the nation’ or the ‘ease, opulence, and luxury’ of the Persians and Egyptians.73 He also uses it to refer to a taste or disposition for luxurious goods, as when he talks about the things ‘which men’s luxury now makes them covet.’74 This last is the most important meaning for Hume’s purpose; it is in this sense he inquires whether luxury may be innocent or blameable. Following this last use of the term, we may offer a definition that is of some use despite its apparent tautologousness: luxury is the desire for, and pursuit of, luxuries. Luxuries are, whatever else they may be, consumables that go beyond what is required for survival, where our basic needs have already been met (though this need not necessarily imply that they include all such consumables). As Hume’s friend Adam Ferguson puts it, luxury is ‘all that assemblage which is rather intended to please the fancy, than to obviate real wants, and which is rather ornamental than useful.’75 Aquinas attempts to re-term luxuries ‘superflua.’ His use of the word did not catch on, though it continued to be used occasionally as a synonym during Hume’s day: James Steuart says that economic development requires ‘that the people have a taste for labour, and the rich for superfluity.’76 But the term is revealing. Luxury is intimately linked to commerce and trade. While one may certainly generate luxuries for oneself in small quantities, the more important form of luxuries are those either imported from elsewhere or produced for sale. ‘Luxury,’ says Montesquieu, ‘is founded on nothing except the commodities given to us by the work of others.’77 (As far back as the era of the ancient Greeks, luxuries were associated with the east, and Hume makes occasional reference to ‘Asiatic luxury.’)78 Therefore the desire for luxuries is bound up with a desire for greater commerce. The debate over luxury is in its essence a debate about the moral value of commerce. Hume by no means wants to suggest luxury is always a good thing. He says that the term luxury ‘may be taken in a good as well as in a bad sense ... and any degree of it may be innocent or blameable, according to the age, or country, or condition of the person. The bounds between the virtue and the vice cannot here be exactly fixed, more than in other moral subjects.’79 In fact, however, Hume is fairly clear on what criteria we should use to draw the line between virtuous and vicious luxury. For Hume the pursuit of luxuries is only blameable to the extent that individuals allow it to crowd out other worthwhile activities. ‘These indulgences are only vices,’ he says, ‘when they are pursued at the expence of some virtue, as liberality or charity; in like manner as they

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are follies, when for them a man ruins his fortune, and reduces himself to want and beggary.’80 When Hume speaks of luxury as something that ‘incapacitate[s] us for business and action,’ it is to this extent blameworthy. Virtuous luxury is that which actually stimulates our industry, by making us strive to earn the wealth necessary to pay for our consumption.81 Luxury has a uniquely powerful motivating force because our selfinterested passions are invariably stronger than our disinterested ones. ‘Avarice,’ Hume says, ‘or the desire of gain, is an universal passion, which operates at all times, in all places, and upon all persons.’82 ‘No affection of the human mind has both a sufficient force,’ he says in the Treatise, ‘and a proper direction to counter-ballance the love of gain.’83 This is why he calls it a ‘just political maxim’ that ‘every man ought to be supposed a knave, and to have no other end, in all his actions, than private interest. By this interest we must govern him, and, by means of it, make him, notwithstanding his insatiable avarice and ambition, cooperate to public good.’84 It is, Hume says, by ‘private interest’ that we are to ‘govern [man], and, by means of it, make him ... co-operate to public good.’85 Though, as we have seen, self-interest is just one of many passions and impulses that motivate us, its nature makes it especially suited to the government of society. ‘It is the nature of passion gradually to decay,’ Hume says, ‘while the sense of interest maintains a permanent influence and authority.’86 As we shall see, the strength of our self-interested passions explains how government is first founded: we adhere to the ‘artificial virtue’ of justice because we see that it is in our on-going self-interest to have a system of conventions that determine what is considered just and unjust; we also agree, from similarly self-interested motives, to live under a legal system which enforces just behaviour, should our own internalization of this virtue fail. But it equally explains why, according to Hume, ‘it is more easy to account for the rise and progress of commerce in any kingdom, than for that of learning; and a state, which should apply itself to the encouragement of the one, would be more assured of success, than one which should cultivate the other.’87 For Hume, commerce is the vehicle that allows us to harness the universal passion of avarice and transform it into the beneficial force called industry. ‘Commerce encreases industry,’ Hume says, ‘by conveying it readily from one member of the state to another.’88 He thinks we need only raise before people the prospect of fulfilling their avaricious desires, and their industriousness energies will be released.89

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Commerce ‘rouses men from their indolence,’ Hume says.90 ‘Where people have no access to the benefits of commerce,’ he says, ‘they have no temptation ... to encrease their skill and industry; since they cannot exchange that superfluity for any commodities, which may serve either to their pleasure or vanity. A habit of indolence naturally prevails.’ On the other hand: ‘When a nation abounds in manufactures and mechanic arts, the proprietors of land, as well as the farmers, study agriculture as a science, and redouble their industry and attention. The superfluity, which arises from their labour, is not lost; but is exchanged with manufactures for those commodities, which men’s luxury now makes them covet. By this means, land furnishes a great deal more of the necessaries of life, than what suffices for those who cultivate it.’91 Hume thinks that industry, once aroused, will stimulate the desire for, and spread of, knowledge. Once ‘men become acquainted with the pleasures of luxury and the profits of commerce,’ it will follow that ‘their delicacy and industry, being once awakened, carry them on to farther improvements, in every branch of domestic as well as foreign trade.’92 This ‘delicacy and industry’ will promote the spread of knowledge and what he calls ‘the creative spirit.’ Hume thinks the ‘creative spirit’ that fosters knowledge exists symbiotically with the ‘improving spirit’ – that is, the desire to innovate in the sphere of material production, what Hume calls the ‘mechanical arts.’ ‘There is a very great connection among all the arts, which contribute to pleasure; and the same delicacy of taste, which enables us to make improvements in one, will not allow the others to remain altogether rude and barbarous.’93 Neither the mechanical nor the liberal arts can, Hume says, be carried to perfection, without being accompanied, in some degree, with the other. The same age, which produces great philosophers and politicians, renowned generals and poets, usually abounds with skilful weavers, and ship-carpenters. We cannot reasonably expect, that a piece of woollen cloth will be wrought to perfection in a nation, which is ignorant of astronomy, or where ethics are neglected. The spirit of the age affects all the arts; and the minds of men, being once roused from their lethargy, and put into a fermentation, turn themselves on all sides, and carry improvements into every art and science.94

There is a virtuous circle formed by knowledge and the more mundane forms of industry. ‘This industry is much promoted by the knowledge inseparable from ages of art and refinement; as, on the other hand, this

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knowledge enables the public to make the best advantage of the industry of its subjects.’95 Commerce also promotes learning by broadening people’s experiences, thereby weakening the grip of parochial authority and encouraging them to judge for themselves. ‘Where a number of neighbouring states have a great intercourse of arts and commerce,’ he says, their mutual jealousy keeps them from receiving too lightly the law from each other, in matters of taste and of reasoning, and makes them examine every work of art with the greatest care and accuracy. The contagion of popular opinion spreads not so easily from one place to another. It readily receives a check in some state or other, where it concurs not with the prevailing prejudices. And nothing but nature and reason, or, at least, what bears them a strong resemblance, can force its way through all obstacles, and unite the most rival nations into an esteem and admiration of it.96

We will naturally be happiest when we can live in a society where what Hume calls ‘science and the arts’ are encouraged and where we can live in close contact and conversation with others in their pursuit. ‘In times when industry and the arts flourish,’ he says, ‘men are kept in perpetual occupation, and enjoy, as their reward, the occupation itself, as well as those pleasures which are the fruit of their labour. The mind acquires new vigour; enlarges its powers and faculties; and by an assiduity in honest industry, both satisfies its natural appetites, and prevents the growth of unnatural ones, which commonly spring up, when nourished by ease and idleness.’97 Commerce increases social interaction, which as we have seen broadens our feelings of sympathy to include others distant from ourselves. ‘The more [the] refined arts advance,’ Hume says, the more sociable men become: nor is it possible, that, when enriched with science, and possessed of a fund of conversation, they should be contented to remain in solitude, or live with their fellow-citizens in that distant manner, which is peculiar to ignorant and barbarous nations. They flock into cities; love to receive and communicate knowledge; to show their wit or their breeding; their taste in conversation or living, in clothes or furniture. Curiosity allures the wise; vanity the foolish; and pleasure both. Particular clubs and societies are every where formed: Both sexes meet in an easy and sociable manner; and the tempers of men, as well as their behaviour, refine apace. So that, beside the improvements which

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they receive from knowledge and the liberal arts, it is impossible but they must feel an encrease of humanity, from the very habit of conversing together, and contributing to each other’s pleasure and entertainment.98

As people seek both greater novelty and greater profit, their intercourse will naturally extend beyond their own countrymen, to the citizens of other nations. Commerce thus, Hume says, binds together ‘the most distant nations in [a close] chain.’99 Such a chain, which complements the one linking industry, knowledge, and humanity, stimulates these three further. ‘Where an open communication is preserved among nations,’ he says, ‘it is impossible but the domestic industry of every one must receive an encrease from the improvements of the others.’100 Commercial society will, in addition, help create a middle class. ‘Where luxury nourishes commerce and industry,’ Hume says, the peasants, by a proper cultivation of the land, become rich and independent; while the tradesmen and merchants acquire a share of the property, and draw authority and consideration to that middling rank of men, who are the best and firmest basis of public liberty.101

The middle class is by its nature a sociable, humanistic class. Hume says the ‘middle station is ... justly recommended, as affording the fullest Security for Virtue; and ... it gives Opportunity for the most ample Exercise of it, and furnishes Employment for every good Quality, which we can possibly be possest of.’102 Its rise therefore brings refinement quickly in its train. We shall see that Hume thinks the rise of Britain’s middle class played a crucial role in raising that nation from its barbarous state. 5. The Role of Government Hume thinks that cultural and political development are intimately connected and mutually dependent. Civilized government goes together with civilized society. A wise ruler cannot emerge before ‘refinements have taken place’ in the society at large and ‘science [becomes] known in the world.’103 At the same time, the policy of a monarch who is ‘ignorant and uninstructed ... for ever prevents all improvements.’104 The presence of a barbarous government is sufficient ‘to prevent, for ever, all industry, curiosity, and science.’105 This intimate connection, however, is not an identification. A civi-

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lized government is not simply that which produces, or results from, a civilized society. When discussing forms of government, Hume uses the terms ‘barbarous’ and ‘civilized’ consistently and somewhat narrowly to describe governments that possess certain specific characteristics. It is striking that these characteristics are explicitly divorced from the ability or character of the rulers. While a nation requires wise and refined leadership to achieve its civilized status, Hume thinks it is a crucial feature of civilized government that, once established, it depends entirely on its institutional structure and not on the talents or intentions of any individual or group. To understand Hume’s distinction between these two kinds of government, it is useful to abstract away from his discussion of more general issues of cultural development and to lay temporarily aside the causal question of what social and economic conditions are necessary to produce a civilized government. I propose to explain Hume’s concepts of barbarous and civilized government just in terms of the institutional characteristics possessed by each. Hume’s choice of adjectives is not, of course, accidental. The complex causal questions of how a civilized government comes about, and what is its relation to civilized society, are large and important ones. They will occupy us later on. The crucial feature dividing civilized and barbarous governments is their relation to law. In his essay ‘Of Civil Liberty’ Hume says: ‘It may now be affirmed of civilized monarchies, what was formerly said in praise of republics alone, that they are a government of Laws, not of Men.’106 ‘Barbarous government[s]’ are thus ‘governments of men’ – he also calls them governments ‘of will.’107 Scholars of Hume’s political theory have noted the importance of the rule of law in defining ‘civilized government.’108 However, they have not made clear what Hume thinks precisely defines a ‘government of laws.’ I submit that such a government must (for Hume) possess a series of distinct characteristics, which I lay out in detail in the following chapters. He thinks specific governments may meet these criteria to varying degrees through time (with regression also possible). His use of the term ‘civilized government’ nevertheless implies that it exists as a distinct, and achievable, ideal. To understand this ideal, we must first step back to examine how and why government is founded, and what is its nature in its early, barbarous state.

2 Barbarous Government and the Perils of Discretion

1. The End of Government In the Treatise Hume shows how we arrive at the basic social conditions governing society. People observe ‘that the principal disturbance in society arises from those goods, which we call external’ (i.e., those which we have acquired ‘by our industry and good fortune’), and ‘from their looseness and easy transition from one person to another.’ 1 As a result, a set of conventions emerges to govern this transition. ‘The convention for the distinction of property,’ Hume says, ‘and for the stability of possession, is of all circumstances the most necessary to the establishment of human society.’2 ‘It is well known,’ says Hume in one of his essays, ‘that men’s happiness consists not so much in an abundance of [the commodities and enjoyments of life], as in the peace and security with which they possess them; and those blessings can only be derived from good government.’3 People first realize that the most effective way to protect property, and to ‘cut off all occasions of discord and contention,’ is through law.4 As people see that the only way to ensure the enforcement of justice is through a magistrate, this in turn gives rise to government. Certain people are chosen to stand above the rest and enforce the laws. Thus we choose ‘the persons whom we call civil magistrates, kings and their ministers, our governors and rulers,’ people who ‘being indifferent persons to the greatest part of the state, have no interest, or but a remote one, in any act of injustice; and, being satisfied with their present condition, and with their part in society, have an immediate interest in every execution of justice, which is so necessary to the upholding of society.’5 They are thus empowered to enforce the conven-

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tions for the protection of property that people have developed for their collective benefit. Thanks to these people, ‘men acquire a security against each other’s weakness and passion, as well as against their own, and, under the shelter of their governors, begin to taste at ease the sweets of society and mutual assistance.’6 The basic rules governing property, which Hume calls the laws of nature, often become codified and augmented by additional civil laws, but the purpose and justification of the laws, to coordinate people’s behaviour to the benefit of all by protecting their rights to property, remains. So while the laws are ‘artifices’ – they are not rooted in physical (non-human) nature or in a higher cosmic order – they are useful and indeed necessary to society. Consequently, the creation and administration of the laws constitutes the first and fundamental aim of government. Once property is protected, ‘there remains little or nothing to be done towards settling a perfect harmony and concord.’7 I will call this conclusion, that government exists to ensure that there are laws sufficient to protect people’s property and personal safety, the ‘End of Government Doctrine.’ It appears throughout Hume’s writings. In his History of England he says that ‘the equal distribution of justice, and free enjoyment of property [are] the great objects for which political society was at first founded by men.’8 ‘Man,’ he says in one of his essays, is engaged to establish political society, in order to administer justice; without which there can be no peace among them, nor safety, nor mutual intercourse. We are, therefore, to look upon all the vast apparatus of our government, as having ultimately no other object or purpose but the distribution of justice.9

It must be noted that while Hume clearly states that ‘the principal object of government is to constrain men to observe the laws of nature,’ it does not follow that the protection of property need be the exclusive end of government.10 He says government can extend ‘its beneficial influence’ beyond ‘the execution and decision of justice.’ Because ‘magistrates find an immediate interest in the interest of any considerable part of their subjects,’ he thinks they will be motivated to take on ambitious programs of public works, wherever they think such programs will be in the interest of such a ‘considerable part’ of the nation: They need consult nobody but themselves to form any scheme for the promoting of that interest ... Thus, bridges are built, harbors opened, ram-

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parts raised, canals formed, fleets equipped, and armies disciplined, every where, by the care of government, which, though composed of men subject to all human infirmities, becomes, by one of the finest and most subtile inventions imaginable, a composition which is in some measure exempted from all these infirmities.11

As commentators such as David Miller have pointed out, however, Hume does take the End of Government Doctrine to exclude most arguments for radical change or social revolution.12 Unless, Hume says, a government is so tyrannical as to subvert property rights, and therefore defeat the reason for its existence, ‘nothing can be more pernicious and criminal’ than ‘to resist supreme power.’13 ‘The common rule requires submission,’ he says, ‘and ’tis only in cases of grievous tyranny and oppression, that the exception can take place.’14 What the supporter of this doctrine fears most is anarchy – a situation where no laws are enforced and property is left entirely unprotected. And any act of rebellion threatens to lead to such a state of affairs – by weakening rather than replacing the central authority, or by creating all-out civil war. It is therefore only worth risking where a ruler is so incompetent that she leaves property and person undefended, or so tyrannical that she assaults them herself, thereby nullifying the very reason for her existence. This thesis – that society is founded on the interest everyone has in following a set of common rules – was of course, at the time Hume wrote, already familiar from Hobbes. Hume distinguishes himself from Hobbes by arguing that the promise to perform our duty, far from providing the basis for an imagined ‘social contract,’ is itself a convention the emergence of which can be explained with reference to our selfinterest. Social rules for Hume are the result of an ongoing agreement, and our obligation to obey them is rooted in our continued awareness of their benefit to us and not on some prior promise to do so. Nevertheless, Hume’s debt to Hobbes, in deriving our obedience to authority from our perception of our own self-interest, cannot be denied. Hume seems, in the Treatise of Human Nature, to be Hobbesian in one further, important respect: like Hobbes, he appears to be largely indifferent to specifics of the laws, so long as they accomplish their basic goal of protecting property. To be sure, Hume provides a small number of basic rules to guide the regulation of property, of which he says, ‘I find four most considerable, viz. Occupation, Prescription, Accession, and Succession.’15 But the Treatise offers no more specific normative cri-

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teria that such rules should meet, other than that they should (as he thinks his four basic rules do) appeal to our imagination. Based on this silence, a reader might conclude that Hume is conventionalist in a stronger sense: that is, in that he thinks any established legal regime is as good as another, so long as it offers basic protection for property.16 As I have said, I do not think such a reading is correct. I have already said that in the Treatise Hume is concerned with ‘the original of societies and the rise and extent of political power.’ In addressing this question, he provides us with a kind of threshold test. If a particular legal system can provide basic protection of property, it is legitimate and the government that enforces it deserves our allegiance. However, as he makes clear in his other writings, a legitimate system is not necessarily an optimal one. Hume’s writings on history and politics, unlike the more purely theoretical Treatise and second Enquiry, explore the ways in which different systems of law have actually developed and functioned in different societies. These writings show that, while most established legal systems provide basic protections to the people subject to them, there can be significant differences in the nature and scope of these protections. Different systems may protect property by and large but differ in the reliability or equity with which justice is enforced. Also, some systems may protect citizens from each other, but not from the magistrates themselves. And legal systems may possess different levels of stability through time, meaning that, though property may be protected at a given moment, we may not feel confident it will continue to be so in the future. Hume thinks that these differences will have a significant impact on a society’s development and on the happiness of those living in it. Because of this, we can distinguish between those states with laws that are minimally effective, and those that are optimally effective, in accomplishing their fundamental task. And we can derive a set of normative standards that define those legal systems that best secure the life and property of those living under them. 2. The Barbarous Monarch Hume offers another account of the emergence of government in his essay ‘Of the Rise and Progress of the Arts and Sciences.’ This second account, while following the same general lines as the one found in the Treatise, is much darker in tone. He describes the emergence of a ruler he calls a ‘barbarous monarch.’ ‘In the first ages of the world,’ he says,

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when men are as yet barbarous and ignorant, they seek no farther security against mutual violence and injustice, than the choice of some rulers, few or many, in whom they place an implicit confidence, without providing any security, by laws or political institutions, against the violence and injustice of these rulers.17

As it will become clear, Hume thinks the absence of such security is a problem. Yet according to the Treatise, it should not be. There he suggests that we should have no need for protection from the ‘violence and injustice’ of our rulers. He says that because the ‘observance of justice’ becomes ‘the immediate interest’ of the magistrates, ‘and its violation their more remote, these persons, then, [i.e., the magistrates] are ... induced to observe those rules in their own conduct.’18 In order to make sense of this apparent conflict, it is necessary to follow Hume’s argument in ‘The Rise and Progress’ to its next steps. He explains that as the primitive society grows larger and more complex, the sovereign finds it necessary to ‘delegate his authority to inferior magistrates, who preserve peace and order in their respective districts.’19 Because the monarch is (at this stage) not a ‘legislator,’ he leaves the magistrates to make what Hume calls ‘summary decisions of causes.’20 ‘As experience and education have not yet refined the judgments of men to any considerable degree,’ he says, ‘the prince, who is himself unrestrained, never dreams of restraining his ministers, but delegates his full authority to every one, whom he sets over any portion of the people.’21 This delegation of the monarch’s ‘full authority’ entails that the people have no more security from the ‘violence and injustice’ of these magistrates than they do from the sovereign himself. And it is this that the people really need to fear. Hume does not claim that the impartial observance of justice is inevitably in the immediate interest of these lesser magistrates, as (according to the Treatise) it is supposed to be in the interest of the sovereign. On the contrary, he suggests that violence and injustice at their hands is not only possible, but inevitable, where they are left without restraint. He uses imperial Russia as an example of a barbarous monarchy ‘where the judges are not restrained by any methods, forms or laws.’ He says: Arbitrary power, in all cases, is somewhat oppressive and debasing; but it is altogether ruinous and intolerable, when contracted into a small compass; and becomes still worse, when the person, who possesses it, knows

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David Hume’s Political Theory that the time of his authority is limited and uncertain. Habet subjectos tanquam suos; viles, ut alienos. He governs the subjects with full authority, as if they were his own; and with negligence or tyranny, as belonging to another. A people, governed after such a manner, are slaves in the full and proper sense of the word; and it is impossible they can ever aspire to any refinements of taste or reason. They dare not so much as pretend to enjoy the necessaries of life in plenty or security.22

In discussing barbarous monarchies, Hume focuses consistently on the unbounded authority given to the public officials charged with enforcing justice. For him, this delegation of authority is clearly an important characteristic in defining such a monarchy. ‘It is easy to see,’ Hume says, speaking of the reign of Edward II, ‘that a constitution, which depended so much on the personal character of the prince, must necessarily, in many of its parts, be a government of will, not of laws.’23 He is more worried about the parts than the whole. He says: ‘An absolute prince, who is barbarous, renders all his ministers and magistrates as absolute as himself.’24 ‘Such a form of government,’ he says of monarchy, ‘ere [i.e., before it becomes] civilized, knows no other secret or policy, than that of entrusting unlimited powers to every governor or magistrate, and subdividing the people into so many classes and orders of slavery.’25 The results of this barbarous policy are invariably dire. Hume says that ‘a scene of oppression and slavery ... always results from barbarous monarchies, where the people alone are restrained by the authority of the magistrates, and the magistrates are not restrained by any law or statute.’26 Thus, it is not the absolute nature of a monarch’s power that defines his barbarousness. It is the manner in which he delegates power downwards. Hume is certainly no friend to royal tyranny. Throughout his writings, and in particular throughout his History of England, he is alert to the dangers presented by the various forms of royal prerogative, and other unrestrained exercises of central power.27 But he seems to believe that, except in those cases of particularly grievous tyranny, a single person, or small group of people, will generally not have the time or the means to persecute any large number of their subjects, such as to leave property ‘sensibly insecure.’ He says of England during the Tudor period: The utmost that can be said in favour of the government of that age (and perhaps it may be said with truth) is, that the power of the prince, though really unlimited, was exercised after the European manner, and entered

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not into every part of the administration; that the instances of a high exerted prerogative were not so frequent as to render property sensibly insecure, or reduce the people to a total servitude.28

As I have said, in calling for government not to rely on the goodness of its ‘administration,’ Hume is principally concerned about what he calls the ‘inferior magistrates, who preserve peace and order in their respective district.’29 He worries most about the judges of the law courts. These are the officials who hold the greatest power at the local level, and their powers are of such a nature as to present a genuine and widespread threat to the security of person and property. They are by no means the only lesser officials who are potential dangers, however. Hume also mentions tax collectors, military generals, and ‘governors of provinces’ as being among those public officials whose power can become an instrument of oppression.30 Hume thinks it is the differing levels of magisterial discretion allowed in different states that affects their material and social development. He tells us that it is the ‘barbarous policy’ of ‘delegat[ing] full power to all inferior magistrates’ that ‘debases the people, and for ever prevents all improvements.’31 He says that it is neither ‘consistent’ nor ‘rational’ to suppose that a state can become a ‘nursery of arts and sciences’ so long as the monarch governs his people ‘by the arbitrary will of their fellowsubjects.’32 Adam Smith would later call the threat from such discretionary power ‘vexation.’ In her analysis of Smith’s use of the term, Emma Rothschild provides a useful definition. She says: ‘Vexation is the sort of oppression which flourishes in the circumstances of an uncertain jurisprudence, in which men use the power of their offices to pursue their personal grievances. It is the oppression in which one’s oppressor knows one’s name, and one’s weaknesses, and where one lives.’33 Hume uses just this sort of language to describe the threat from unrestrained lesser magistrates. ‘Arbitrary power, in all cases, is somewhat oppressive and debasing;’ he says, ‘but it is altogether ruinous and intolerable, when contracted into a small compass.’34 Rothschild shows how France became, during Hume’s era, an object lesson in the dangers of vexation – its intricate and iniquitous tax system providing a particularly clear illustration of the threat. It is an example Hume does not fail to notice. ‘The greatest abuses,’ he says, ‘which arise in FRANCE ... proceed not from the number or weight of the taxes ... but from the expensive, unequal, arbitrary, and intricate method of levying them, by which the industry of the poor, especially of the peasants and farmers, is, in a great measure, discouraged.’35

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Hume does not think, however, that England is by any means free of the danger. Speaking of the prospect of a new consumption tax, he says: ‘what vexation and ruin of the poor!’36 Hume’s comment that people living under barbarous regimes are ‘slaves in the full and proper sense of the word’ may leave us to wonder if he thinks such regimes are legitimate at all. Let us recall what Hume says in the Treatise about the right of resistance. There he says that ‘in the case of enormous tyranny and oppression, it is lawful to take arms even against supreme power; and that, as government is a mere human invention, for mutual advantage and security, it no longer imposes any obligation, either natural or moral, when once it ceases to have that tendency.’37 If the test of legitimacy is the absence of ‘enormous tyranny and oppression,’ a barbarous government, which always creates ‘a scene of oppression and slavery,’ does not seem to pass. Does Hume think we are therefore justified in rebelling against it? He cannot believe that we are. He thinks that over the course of history, nearly all governments have qualified as barbarous. He notes that republics have been rare and have been confined to small states. And he thinks civilized monarchy is by and large a modern invention.38 If we read Hume’s description of barbarous government as providing legitimate grounds for resistance, we would attribute to him a radicalism that is supported by no other passages in his writings. When Hume describes barbarous regimes as scenes of ‘oppression and slavery,’ he must be indulging in rhetorical exaggeration. His purpose in ‘Progress’ is to show that barbarous government is fatal to cultural development. He says that the ‘barbarous policy’ of ‘delegat[ing] full power to all inferior magistrates ... debases the people, and for ever prevents all improvements.’39 It therefore serves his polemical purpose to portray barbarous monarchies in the harshest possible terms. But such governments nevertheless seem to serve the most basic purpose for which government is founded. Hume’s explanation for why people established the barbarous monarch in the first place, to give themselves ‘security against mutual violence and injustice,’ clearly echoes the passage in the Treatise where he says people establish government to give them ‘security against each other’s weakness and passion, as well as against their own.’40 And he never suggests that the unbounded power of the magistrates, however dire the threat it presents, leaves the people without protection from one another. Justice is still enforced, after a fashion – through the ‘summary decisions of causes.’ Barbarous regimes are therefore not anarchies.

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We can, I believe, make the best sense of Hume’s texts if we conclude that there are two levels of security that a government can provide. First of all, it can give the people ‘security against mutual violence and injustice’ – its most basic task, as defined by men in the ‘first ages of the world.’ A government that could not guarantee its people such security would not be legitimate at all. Second, it can offer them ‘security, by laws or political institutions, against the violence and injustice of [the] rulers.’ As James Madison puts it in The Federalist: ‘In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.’41 Without the second level of protection, it seems, civil society can exist, but the people ‘dare not so much as pretend to enjoy the necessaries of life in plenty or security.’ Given Hume’s view that ‘men’s happiness consists not so much in an abundance of [the commodities and enjoyments of life], as in the peace and security with which they possess them,’ blessings which he says ‘can only be derived from good government,’ a government that provides no security against the magistrates themselves is clearly not the best possible.42 It is this second level of security that marks a civilized government (though, as we shall see, Hume allows that, under certain conditions, the people may be left without security from the monarch herself, without being rendered slaves). But a barbarous government is not, as I have said, an anarchy, and therefore it does not give us grounds to ‘resist supreme power.’ Hume’s insistence that the people living under a barbarous monarchy are ‘slaves, in the full and proper sense of the word’ should thus be taken as a polemical rather than analytic claim – albeit one he repeats several times in his writings. His considered view seems to be that such subjects are actually slaves in a lesser, secondary sense of the word. Elsewhere in his writings he distinguishes two forms of slavery: ‘public’ or ‘civil slavery,’ on the one hand, versus ‘real’ or ‘domestic slavery’ on the other.43 ‘Real slavery’ renders the people ‘incapable of all property.’44 A barbarous government would reach a state of real slavery if its oppression or incompetence were so great as to leave property entirely without protection. In such a case, as the End of Government Doctrine suggests, the bounds of allegiance would be dissolved, and rebellion would be justified. But while civil slavery is less than civilized, it does not sink to this level and therefore does not justify outright resistance – though of course we should seek reform by whatever means possible.

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3. General Laws The solution to the threat of magisterial discretion is to ‘fix the sentences of judges’ so that their decisions are equitable and in accordance with the laws of nature. ‘Among all civilized nations,’ Hume says in the second Enquiry, ‘it has been the constant endeavour to remove every thing arbitrary and partial from the decision of property, and to fix the sentence of judges by such general views and considerations, as may be equal to every member of the society.’45 Hume thinks there is a specific means of doing this – he emphasizes at several points in his writings that a barbarous state is distinguished from a civilized one by the absence or presence of ‘general laws.’ (I have added emphasis to all the following passages.) He says of a monarch who is ‘ignorant and uninstructed’: ‘not having knowledge sufficient to make him sensible of the necessity of balancing his government upon general laws, he delegates his full power to all inferior magistrates.’46 In a republic, ‘the necessity of restraining the magistrates, in order to preserve liberty, must at last appear, and give rise to general laws and statutes.’47 Similarly, in a civilized monarchy, ‘every minister or magistrate, however eminent, must submit to the general laws, which govern the whole society, and must exert the authority delegated to him after the manner, which is prescribed.’48 It thus becomes of crucial importance what Hume means by ‘general laws,’ as well as how he thinks they are established by a civilized government and imposed on its magistrates.49 In the context of physics and the study of nature, Hume uses the term ‘general laws’ somewhat disparagingly to refer to the objects of our misguided search for causal principles we can know with certainty.50 (He thinks in actual fact we can do no better than identify those general rules formed by our imagination as a result of custom and habit.) In the context of human society, however, he uses the concept very differently. In this context, such laws are not just knowable but, if society is to progress, essential – and indeed Hume says that, for instance, the English government depends on them for its very survival.51 The concept of general laws might at first seem a trivial one, since for Hume the notion of generality is built into the concept of law itself. ‘All the laws of nature, which regulate property,’ Hume says, ‘as well as all civil laws, are general.’ He explains in what sense this is so. They ‘regard alone some essential circumstances of the case, without taking into consideration the characters, situations, and connexions of the person concerned, or any particular consequences which may result from

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the determination of these laws, in any particular case which offers.’52 Given this, we might take his expression ‘general laws’ merely as a (somewhat redundant) reminder of the fact that laws are distinguished from mere ‘acts of justice’ by their form – a law is only a law if it applies to some defined class of cases, rather than to a single situation. Hume thinks all ‘natural laws’ (that is, for him, the fundamental rules of justice that precede and lie at the basis of those rules established by governments) are general as a result of the way they evolved. If these basic laws that established civil society had not been general in their form, they could never have earned obedience because people would have had no motive to follow them. They thus would quickly have been abandoned. ‘Property must be stable,’ Hume says, ‘and must be fix’d by general rules.’53 People develop such general rules because they quickly realize that even when they suffer from adhering to them, they can only gain in the long term by what Hume calls their ‘steady prosecution.’ ‘Taking any single act,’ Hume says, ‘my justice may be pernicious in every respect; and ’tis only upon the supposition, that others are to imitate my example, that I can be induc’d to embrace that virtue; since nothing but this combination can render justice advantageous, or afford me any motives to conform my self to its rules.’54 Conventions thus arise establishing ‘rigid inflexible rules ... when men have perceived the disorders that result from following their natural and variable principles.’55 Hume thinks civil laws exist – at least ideally – to fulfil the same purpose as the laws of nature, in situations too complex for these natural laws to provide definitive guidance. ‘When natural reason ... points out no fixed view of public utility,’ he says, ‘by which a controversy of property can be decided, positive laws are often framed to supply its place, and direct the procedure of all courts of judicature.’56 Hume says that such civil laws in fact go further than this: they ‘extend, restrain, modify and alter the rules of natural justice, according to the particular convenience of each community.’57 Nevertheless, the task of framing such laws should not, in principle, be a difficult one, if we understand the basic purpose of law itself. ‘The more simple ideas of order and equity,’ Hume says in his History of England, ‘are sufficient to guide a legislator in every thing that regards the internal administration of justice.’58 Yet Hume says elsewhere: To balance a large state or society, whether monarchical or republican, on general laws, is a work of so great difficulty, that no human genius, how-

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He goes on to say that it is almost an ‘impossibility, that this undertaking should be begun and carried on in any monarchy’ (though he excepts modern, ‘civilized’ ones).60 This is a dramatic statement, since, for Hume, monarchies represent the vast majority of governments through human history. There is an apparent conflict here: since it is clearly the case that nearly all states (except the most primitive) have civil laws of some sort, how can all civil laws be general, if states ‘balanced’ on general laws are so rare, and this balancing is so difficult? Hume explains why this balancing act is such a challenge: All general laws are attended with inconveniencies, when applied to particular cases; and it requires great penetration and experience, both [i] to perceive that these inconveniencies are fewer than what result from full discretionary powers in every magistrate; and also [ii] to discern what general laws are, upon the whole, attended with fewest inconveniencies.61

I believe the section of this passage I have marked [i] reveals the solution to the puzzle. Hume says that general laws are more ‘convenient’ – that is, have greater utility (see page 63 below for a full explanation of his notion of convenience) – than ‘full discretionary powers’ of the magistrates. As I interpret this, ‘balancing’ a state on general laws involves not just writing laws that in principle apply impartially to a defined class of cases; it also requires ensuring that these laws are applied universally and uniformly, rather than at the discretion of judges. So while all states that are peaceful and orderly will have some kind of legal system, they will differ to the extent that they limit such discretionary power. Hume’s use of the expression ‘general laws’ is thus ambiguous. All laws are general in their form, in the sense I have specified: they apply to a defined class of cases rather than a single situation. Otherwise they are mere ‘acts of justice.’ However, there is another sense in which laws can have varying degrees of generality: they can be more or less general – which is to say, more or less universal and uniform – in their execution. Laws that are general in their execution ensure that in the enforcement

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of justice, magisterial discretion is restricted. As I shall argue, such laws are general both because they dictate uniform treatment in all similar cases – rather than allowing magistrates to tailor their decisions to the specific circumstances of individual cases – and because they apply to everyone equally, including the magistrates themselves. 4. The Perils of Discretion It may not be clear why such rigid general laws are necessary at all. In the Treatise, Hume argues that ‘civil magistrates’ are able to act impartially as judges because they, ‘being indifferent persons to the greatest part of the state, have no interest, or but a remote one, in any act of injustice; and, being satisfied with their present condition, and with their part in society, have an immediate interest in every execution of justice, which is so necessary to the upholding of society.’62 Why is this satisfaction not protection enough? Let us recall the nature of the threat presented by the magistrates in a barbarous monarchy. The problem, according to Hume, is that the sovereign grants ‘full discretionary powers [to] every magistrate,’ rather than establishing ‘general laws.’63 Judges are left to make ‘summary decisions of causes.’64 Hume’s contrast between discretionary power and general laws echoes his treatment of the need for conventions of justice in section 3.2.6 of the Treatise, which immediately precedes his discussion of the foundation of government. In this section, Hume argues that ‘general and universal rules’ are necessary to regulate property. He says that a person’s motives – ‘let [them],’ he says, ‘be what they will’ – are ‘a very improper foundation for ... the laws of justice.’65 The very principles of human nature lead people to make iniquitous judgments, so long as they allow these judgments to be guided by their own discretion. ‘If we consider the ordinary course of human actions,’ he says, we shall find that the mind restrains not itself by any general and universal rules, but acts on most occasions as it is determined by its present motives and inclination. As each action is a particular individual event, it must proceed from particular principles, and from our immediate situation within ourselves, and with respect to the rest of the universe. If on some occasions we extend our motives beyond those very circumstances which gave rise to them, and form something like general rules for our conduct, it is easy to observe that these rules are not perfectly inflexible, but allow of many exceptions.66

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Hume applies this insight to judgments concerning property. As an example, he imagines himself contemplating the sort of situation a judge would face every day: ‘two persons who dispute for an estate; of whom one is rich, a fool, and a bachelor; the other poor, a man of sense, and has a numerous family: the first is my enemy; the second my friend.’ Even, he says, were my natural motives determined entirely by public interest, ‘I must be induced to do my utmost to procure the estate to the latter,’ regardless of ‘any consideration of the right and property of the persons.’ He concludes: ‘Were men, therefore, to take the liberty of acting with regard to the laws of society, as they do in every other affair, they would conduct themselves, on most occasions, by particular judgments, and would take into consideration the characters and circumstances of the persons, as well as the general nature of the question.’67 Such considerations are the basis for his conclusion, stated earlier in the Treatise: ‘It follows, therefore, that the general rule, that possession must be stable, is not applied by particular judgments, but by other general rules, which must extend to the whole society, and be inflexible either by spite or favour.’68 It is easy to see the implication for civil magistrates. No matter how well intentioned the judge, no matter how thoroughly her natural motives conform to public interest, any attempt to decide cases on a discretionary basis must lead to injustice, since it is of her very nature to consider ‘the characters and circumstances of the person.’ In his other works, Hume gives us even stronger reasons for believing that, as he says in the second Enquiry, ‘Public utility requires, that property should be regulated by general inflexible rules.’ There he provides what we would now call (roughly speaking) a ‘rule-utilitarian’ justification of this view: Though such rules are adopted as best serve the same end of public utility, it is impossible for them to prevent all particular hardships, or make beneficial consequences result from every individual case. It is sufficient, if the whole plan or scheme necessary to the support of civil society, and if the balance of good, in the main, do thereby preponderate much above that of evil. Even the general laws of the universe, though planned by infinite wisdom, cannot exclude all evil or inconvenience, in every particular operation.69

Hume in fact goes further. He argues that even if judges were completely disinterested in exercising their discretion, and could overcome

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the weaknesses of human nature, their decisions would still have the effect of undermining public utility if they were made without adhering to rigid rules. We may identify three reasons why. First of all, there is the problem of coordination: he thinks the laws only achieve their benefit when everyone is forced to follow them in a uniform way. ‘Were every single instance of justice,’ he says, like that of benevolence, useful to society; this would be a more simple state of the case, and seldom liable to great controversy. But as single instances of justice are often pernicious in their first and immediate tendency, and as the advantage to society results only from the observance of the general rule, and from the concurrence and combination of several persons in the same equitable conduct; the case here becomes more intricate and involved.70

Second, there is the problem of calculation. Hume thinks that were magistrates to try to make what we would now call ‘act utilitarian’ judgments, calculating on each occasion what decision would best promote the public good, they would inevitably err, at least some of the time, in their calculations. ‘The various circumstances of society; the various consequences of any practice; the various interests which may be proposed; these, on many occasions, are doubtful, and subject to great discussion and inquiry ... And a very accurate reason or judgment is often requisite, to give the true determination, amidst such intricate doubts arising from obscure or opposite utilities.’71 Third, Hume thinks that the good of society requires not just that justice be done but that (as the old cliché has it) it be seen to be done. ‘For besides,’ he says, that nothing could be more dangerous than to accustom the bench, even in the smallest instance, to regard private friendship or enmity; it is certain, that men, where they imagine, that there was no other reason for the preference of their adversary but personal favour, are apt to entertain the strongest ill-will against the magistrates and judges.72

Only a uniform execution of a pre-established set of laws will prevent people from harbouring such resentments – which, by corroding people’s feelings of loyalty towards the laws and the government, undermines the society as a whole. This is why, speaking of laws in the Essays, Hume uses precisely the same adjectives – ‘general and inflexible’ – as

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he does in the Treatise, speaking of the rules for property, except that in the Essays he makes the contrast with magisterial discretion explicit. He says the British government ‘is obliged, for its own preservation, to maintain a watchful jealousy over the magistrates, to remove all discretionary powers, and to secure every one’s life and fortune by general and inflexible laws.’73 We should therefore see Hume’s account (in Treatise 3.2.7) of the magistrates’ indifferent position as implicitly qualified by the argument of the preceding section. The magistrates can act from a position of impartiality just so long as ‘general, inflexible laws’ exist to restrict their discretion. In his political essays, Hume shifts the emphasis of the argument to the dangers presented where such laws are absent. This shift in emphasis becomes important because the essays deal more concretely with actual existing societies, and Hume tells us there that, in the real world, the process of establishing these laws is a long and difficult one.74 Hume allows one exception to the restrictions placed on the authority of magistrates: he is willing to exempt the monarch himself. ‘In a civilized monarchy,’ he says, ‘the prince alone is unrestrained in the exercise of his authority, and possesses alone a power, which is not bounded by any thing but custom, example, and the sense of his own interest.’ This is a striking allowance. He justifies it by claiming that in such a government, the sovereign ‘is so far removed from [the people], and is so much exempt from private jealousies or interests, that [their dependence on him] is scarcely felt.’75 This is in line with what Hume says of the magistrates in the Treatise, that they, ‘being indifferent persons to the greatest part of the state, have no interest, or but a remote one, in any act of injustice; and, being satisfied with their present condition, and with their part in society, have an immediate interest in every execution of justice, which is so necessary to the upholding of society.’76 But it is not immediately clear how this argument singles out the sovereign alone. We might think that among the lesser magistrates, there must be some who are ‘satisfied with their present condition’ and indifferent to the ‘greatest part of the state.’ We could think for instance of the governors of foreign provinces, who do not know their subjects well enough to play favourites. And indeed in this very section of the Treatise Hume says without apparent concern that ‘if it be necessary, [the rulers] may also interest others more immediately in the execution of justice, and create a number of officers, civil and military, to assist them in their government.’

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Surely, we might think, it is the case that unfettered power is either benign (as the Treatise suggests) or pernicious (as Hume says in his essays) – and whichever it is, it is so for all magistrates, the sovereign included. According to most republican theorists, there is a basic opposition between two kinds of government: those that possess some form of checks and balances and those that do not. On this view, if the sovereign’s power is restricted by nothing except ‘custom, example, and the sense of his own interest,’ such a sovereign becomes a tyrant. (This is the view of those writers Hume refers to as ‘passionate admirers of the ancients, and zealous partizans of civil liberty’ who ‘brand all submission to the government of a single person with the harsh denomination of slavery.’)77 Hume is certainly not ignorant of the dangers of royal tyranny. Throughout his History of England, he does not fail to note the damage done by the various forms of royal prerogative and other unrestrained exercises of central power.78 On what grounds can he now try to single out the sovereign alone as being immune to what I have called the perils of discretion? And, worse yet, how can he single out the civilized sovereign alone? Hume justifies this exception by claiming that in a civilized government, the sovereign ‘is so far removed from [the people], and is so much exempt from private jealousies or interests, that [their dependence on him] is scarcely felt.’79 ‘Nor is danger much apprehended in such a government,’ he says, ‘from the violence of the sovereign; more than we commonly dread harm from thunder, or earthquakes, or any accident the most unusual and extraordinary.’80 But he surely cannot be suggesting there is some uniquely great distance between such monarchs and their subjects, one that distinguishes their position from that of the world’s many tyrants. Though Hume fails to spell out clearly what uniquely distinguishes monarchs, I believe he has the following distinction in mind. Hume thinks we may divide the two functions of a governor, as he does when comparing God to an earthly ruler. There he contrasts the Deity ‘considered as a legislator’ with His actions in his ‘magisterial capacity.’81 Hume applies this distinction to terrestrial government as well. He says: ‘Among a people, who lived in so simple a manner as the AngloSaxons, the judicial power is always of greater importance than the legislative.’82 I submit that in a civilized government, by contrast, the legislative power is both separate from and superior to the magisterial or judicial power. Hume makes a complaint about Parliament, for instance, that indicates that he is worried about the failure to separate

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these two powers. He says that during the reign of Richard II, ‘the house of lords seem not at that time to have known or acknowledged the principle, that they themselves were bound, in their judicial capacity, to follow the rules, which they, in conjunction with the king and commons, had established in their legislative.’83 In a civilized monarchy, where the king holds the entire legislative power, this means that there is an essential difference between the monarch and the lesser magistrates: in such a government the monarch acts solely as a legislator, whereas the magistrates act as judges. Left to rule on particular, concrete cases, the mind of even a distant and disinterested sovereign will be, as would be that of any judge, guided by its ‘particular judgments’ rather than general rules. And of course any monarch left to exercise magisterial power will rarely be disinterested. But the perils of discretion do not carry over into the exercise of his legislative capacity. Historically, cases of royal oppression arise precisely when the monarch uses instruments such as the Court of Star Chamber to act as a magistrate, passing judgment in particular cases. It is, Hume suggests, ‘a high exerted prerogative’ that ‘render[s] property sensibly insecure.’84 Hume says that the Star Chamber possessed an unlimited discretionary authority of fining, imprisoning, and inflicting corporal punishment, and whose jurisdiction extended to all sorts of offences, contempts, and disorders, that lay not within reach of the common law. The members of this court consisted of the privy council and the judges; men, who all of them enjoyed their offices during pleasure: And when the prince himself was present, he was the sole judge, and all the others could only interpose with their advice. There needed but this one court in any government, to put an end to all regular, legal, and exact plans of liberty.85

Describing the point at which Parliament stripped Charles I of the power to use the Court of Star Chamber and other instruments of royal prerogative, Hume says: ‘the parliament justly thought, that the king was too eminent a magistrate to be trusted with discretionary power, which he might so easily turn to the destruction of liberty.’86 We can make sense of Hume’s texts if we attribute to him the view that, because the power of rendering judgment is an inherently corrupting one, it is only by dividing the legislative and magisterial function, and confining himself to the former, that a civilized monarch ensures the impartial administration of justice.87 The civilized monarch never

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lowers himself to intervene in mundane matters. In a civilized government, the ruler recognizes that his task is to craft laws, not to execute them. He occupies himself with formulating and implementing general laws, and in doing so he distances himself sufficiently from specific cases that he is able to act equitably. So long as he confines himself to this function, then, the danger of oppression is remote. When Hume says a civilized monarch ‘is so far removed’ from the people as to be ‘exempt from private jealousies or interests,’ he is not speaking of mere physical distance, or difference in station. Rather, he is saying that such a ruler is, as it were, functionally removed – the distance is created by the nature of his office itself, which does not allow him to take any part in particular disputes. It is in this sense that a civilized monarchy is a ‘government of laws.’ In saying so, Hume means not merely, as his readers often assume, that it is a government subject to the rule of law. He is also telling us that such a monarchy governs entirely by means of law-making. So long as the monarch acts as a law-giver, his distance from his subjects is sufficient to ensure partiality; so long as the laws he decrees are also sufficient to restrain his magistrates, this partiality will be reflected in their judgments as well. This is why Hume says that a barbarous monarch lacks ‘so much wisdom as to become a legislator, and govern his people by law, not by the arbitrary will of their fellow-subjects.’88 In a passage describing the reign of Henry II, for which Hume provides the marginal description ‘King’s equitable administration,’ he says that Henry ‘was employed for several years in the administration of justice [and] in the execution of the laws,’ and concludes: ‘The provisions, which he made, show such largeness of thought as qualified him for being a legislator; and they were commonly calculated as well for the future as the present happiness of his kingdom.’89 Hume’s descriptions of barbarous monarchy support the interpretation that a barbarous monarch owes his uncivilized status to his unwillingness, or inability, to act as a law-maker. It is, Hume concludes, ‘the extensive despotism of a barbarous monarchy, by entering into the detail of the government, as well as into the principal points of administration,’ that ‘for ever prevents all ... improvements [in the society’s laws, methods, and institutions].’90 Hume laments the impossibility ‘before science were known in the world’ that ‘a monarch could possess so much wisdom as to become a legislator, and govern his people by law, not by the arbitrary will of their fellow-subjects.’91 ‘It is not ... to be supposed,’ he says, ‘that a barbarous monarch, unrestrained and unin-

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structed, will ever become a legislator.’92 This interpretation is also confirmed by many concrete examples Hume provides of royal tyranny, which can be explained as instances of the king stepping from the legislative to the magisterial role. For instance, he condemns ‘the barbarous policy of Edward’ in ordering the Scottish rebel William Wallace ‘to be carried in chains to London; to be tried as a rebel and traitor, though he had never made submissions or sworn fealty to England; and to be executed on Tower-hill.’93 He also has sharp words for the discretionary magisterial power that the monarchy assumed or (in the case of Star Chamber) expanded during the Tudor period.94 The absence of such discretionary instruments in the continental governments seems to ground Hume’s hope that such governments are on their way to becoming civilized monarchies. ‘I much question,’ he says, ‘whether any of the absolute monarchies in Europe contain, at present, so illegal and despotic a tribunal.’95 We can now see the essentials of what defines general laws and what distinguishes a civilized monarch from a barbarous one. Hume provides more details about the nature of both general laws and civilized monarchy, however. In order to understand fully his political theory, we must examine these texts in detail.

3 General Laws and Civilized Government

1. General Laws: The Criteria If we study Hume’s reflections on the problem of law and government in his essays, his accounts of these exceptional monarchs, and (most fruitful of all) his analysis of the shortcomings of England’s laws through its history, we can extract from these texts a set of fairly specific criteria that characterize systems of general laws. I propose that, ideally for Hume, general laws have the following characteristics: 1. They apply to everyone, including the magistrates themselves. 2. They are rigid in their execution – dictating uniform treatment of offences and ensuring officials carry out their duties in the prescribed fashion. 3. They are clear and determinate in their application. 4. They are known to the public in advance. 1. Apply to everyone This first criterion entails both that public officials have no immunity from punishment and that specific groups in society are not singled out for special treatment. The lack of immunity for public officials is frequently acknowledged as basic to the rule of law. In A.V. Dicey’s famous formulation, ‘Every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen.’1 Hume says that in what he calls a ‘government of laws,’ ‘every minister or magistrate,

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however eminent, must submit to the general laws, which govern the whole society.’2 As we have already seen, he allows one exception here: the monarch himself, so long as this monarch is a ‘legislator.’ The laws must also be general in the sense that they do not, in their very formulation, pick out specific groups or individuals for special treatment (positive or negative). In modern terms, they contain no indexicals. Hume says that one of the advantages of conquest is that, for the new ruler, ‘all his subjects are to him the same,’ and as a result ‘he does not ... make any distinction between them in his general laws.’3 Describing the realm of Edward I, when the commons began to assert themselves in law-making, Hume says they ‘were still much below the rank of legislators,’ and their petitions to the king ‘were only the rudiments of laws.’ One of the chief problems was that, due to the lack of refinement among the political classes, ‘no man was displeased, that the sovereign, at the desire of any class of men, should issue an order, which appeared only to concern that class.’4 A true legislator, or a true legislative body, does not formulate these sorts of laws. The most egregious example of such laws are the bills of attainder that the British Parliament routinely passed against individuals at the king’s instigation, and which Hume says made that body ‘the surest and most expeditious instrument of his tyranny.’5 2. Rigid in their execution General laws must be, as Hume puts it, ‘rigid’ or ‘inflexible.’ He says that ‘the best civil constitution’ is one ‘where every man is restrained by the most rigid laws.’6 He says that the government of England ‘is obliged, for its own preservation, to maintain a watchful jealousy over the magistrates, to remove all discretionary powers, and to secure every one’s life and fortune by general and inflexible laws.’7 In the case of law courts, this involves ‘fixing the sentence of judges’ so as to dictate uniform treatment in all relevantly similar cases. ‘Among all civilized nations,’ Hume says, ‘it has been the constant endeavour to remove every thing arbitrary and partial from the decision of property, and to fix the sentence of judges by such general views and considerations, as may be equal to every member of the society.’8 Hume says that the people were grateful for the ‘rigour’ with which Henry I ‘executed justice,’ being ‘more attentive to present advantages, than jealous of general laws.’9 (The jealousy seems to have come from the fact that his punishments were harsh.) Rigid execution not only

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ensures the people as a whole continue to have an interest in loyalty to authority, because they can see their property protected in a reliable way; it also keeps at bay the constant threat of aristocratic disorder, which will invariably undermine the entire system. ‘In all extensive governments,’ Hume says, ‘where the execution of the laws is feeble, [dominant] power naturally falls into the hands of the principal nobility.’10 The fear of such aristocratic usurpation of authority quickly makes people realize that rigidity confers greater benefits than it does harms. Hume says that during Norman times ‘the lesser barons, finding that the annihilation of royal authority left them exposed without protection to the insults and injuries of more potent neighbours, naturally adhered to the crown, and promoted the execution of general and equal laws.’11 Hume’s description of Edward I, who ‘made the crown be regarded by all the gentry and commonalty of the kingdom, as the fountain of justice, and the general asylum against oppression,’ is a kind of rhapsody on the benefits of rigidity: He purposed, by an exact distribution of justice, and a rigid execution of the laws, to give at once protection to the inferior orders of the state, and to diminish the arbitrary power of the great, on which their dangerous authority was chiefly founded ... He took care to inspect the conduct of all his magistrates and judges, to displace such as were either negligent or corrupt, to provide them with sufficient force for the execution of justice, to extirpate all bands and confederacies of robbers, and to repress those more silent robberies, which were committed either by the power of the nobles, or under the countenance of public authority. By this rigid administration, the face of the kingdom was soon changed; and order and justice took place of violence and oppression.12

Rigidity goes beyond the sentences of judges. Hume says that in a civilized monarchy ‘every minister or magistrate’ must ‘exert the authority delegated to him after the manner, which is prescribed.’13 He seems to think this includes specific regulations, what he calls ‘stated forms and methods,’ that govern the conduct of officials in performing the public’s business and that limit the scope for abuse of office. ‘In the smallest court or office,’ he says, ‘the stated forms and methods, by which business must be conducted, are found to be a considerable check on the natural depravity of mankind.’14 The general laws, then, will include these stated forms and methods – rules written specifically for public officials governing the conduct of their offices.

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3. Clear and determinate in their application Another important characteristic of general laws is that they should be written with sufficient clarity as to leave judges with as little scope as possible to decide whether or not they apply to a given case, or how they should be interpreted. Hume says that in Anglo-Saxon times, ‘the nation was less governed by laws, than by customs, which admitted a great latitude of interpretation’ – implying that, ideally, laws admit of no such thing.15 He says that under James I ‘the imperfect and unformed laws left, in every thing, a latitude of interpretation.’16 He complains that during the reign of Edward VI, the lack of clarity in the law against heresy allowed ample scope for magisterial discretion. ‘There remained no precise standard,’ he says, ‘by which that crime could be defined or determined: a circumstance, which might either be advantageous or hurtful to public security, according to the disposition of the judges.’17 As we have already seen, any circumstance the advantage of which depends on the ‘disposition of the judges’ is not truly an advantageous one at all. We should, then, seek ‘precision’ in the standards we use to define offences in order to make these standards clear to all and give judges less scope to interpret them. (Hume complains elsewhere of ‘the intricacies of the feudal law.’)18 Yet laws may, in seeking precision, lose it by being overly concise. Hume thinks an excessive concision in the laws again risks giving magistrates too much power in deciding how to apply them. In praising Magna Carta – which he says contained a set of provisions that ‘involve all the chief outlines of a legal government, and provide for the equal distribution of justice, and free enjoyment of property; the great objects for which political society was at first founded by men’ – Hume warns that these provisions appeared at first ‘too concise, and too bare of circumstances, to maintain the execution of its articles, in opposition to the chicanery of lawyers, supported by the violence of power.’19 General laws, therefore, must be precise enough to be perspicuous to judges, without being so concise as to under-determine their application. Law-makers must attempt to give their laws the greatest possible degree of simplicity, so that they are comprehensible and apply to a wide variety of cases, while at the same time giving them the greatest possible degree of determinacy, to avoid giving magistrates too much scope in applying them.

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4. Public There is a final condition Hume thinks general laws should meet, a condition familiar to today’s readers: that of publicity. Hume says it is one of the advantages of free governments that they normally ‘must act by general and equal laws, that are previously known to all the members [of government] and to all their subjects.’20 One justification for this is obvious. Since, as Hume says, ‘all human laws are founded on rewards and punishments,’ they must be publicized if they are to have any deterrent effect.21 Punishing someone for violating a secret law is mere revenge. However, Hume seems to have in mind a further advantage: publicity has the effect of limiting the power of magistrates to interpret laws how they wish. Public knowledge of the laws, normally achieved through the establishment of a written law code, is an obvious means of restricting judicial abuse, a fact that has long been recognized. As the historian H.H. Scullard points out, Rome’s ‘twelve tables’ were the result of plebian agitations to limit the discretionary power of the magistrates.22 Hume, a keen student of ancient history, does not fail to notice their significance. ‘The ROMAN Consuls,’ he says, for some time, decided all causes, without being confined by any positive statutes, till the people, bearing this yoke with impatience, created the decemvirs, who promulgated the twelve tables; a body of laws, which, though, perhaps, they were not equal in bulk to one ENGLISH act of parliament, were almost the only written rules, which regulated property and punishment, for some ages, in that famous republic. They were, however, sufficient, together with the forms of a free government, to secure the lives and properties of the citizens, to exempt one man from the dominion of another; and to protect every one against the violence or tyranny of his fellow-citizens.23

While Hume does not specifically attribute the effectiveness of these laws to the fact that they were ‘promulgated’ though writing, this passage seems to suggest that this played a crucial role. 2. Convenience and Legal Reform We must now address the second problem Hume identifies in balancing the state on general laws, which I labelled [ii] in chapter two: of dis-

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cerning ‘what general laws are, upon the whole, attended with fewest inconveniencies.’ Though I have said Hume suggests certain criteria that an optimal system of laws will meet, he does not believe, as some natural law theorists have asserted, that civil laws must meet some prior standard in order to be legitimately called ‘laws.’ Whatever acts result from the established legislative processes are the laws, as Hume makes clear when he scorns Edward III’s assertion, after Parliament granted the king supply conditional on a series of concessions, ‘that that statute had been enacted contrary to law; as if a free legislative body could ever do any thing illegal.’24 And Hume’s criteria (as I have laid them out) do not themselves determine the content of the best laws. They are compatible with a wide variety of specific laws. There are therefore clearly going to be many laws that have been duly enacted by a legitimate legislature and that are, in their form at least, adequately general, but that cannot be considered good laws. Hume mentions in his correspondence that ‘in some cities of ancient Gaul, there was a fixt legal standard establish’d for corpulency, & ... the Senate kept a measure, beyond which, if any Belly presum’d to encrease, the Proprietor of that Belly was oblig’d to pay a fine to the Public, proportionable to its rotundity.’25 As this law incorporates a ‘fixed standard’ that taxes the owner of ‘any Belly’ over a certain size, this law does not seem to violate the basic notion of generality – it ‘regard[s] alone some essential circumstances of the case, without taking into consideration the characters, situations, and connexions of the person concerned.’ Yet – even if it is executed in a way that is uniform, universal, rigid, and public – this cannot be a good law. So if our task is not just to craft formally general laws, but also to identify those ‘attended with fewest inconveniencies,’ the question becomes: What does Hume mean by inconveniencies? Hume tells us in more than one place that ‘public utility is the general object of all courts of judicature.’26 As Knud Haakonssen points out, Hume conceives of utility as so-called ‘means-utility’ – as Hume puts it: ‘Usefulness is only a tendency to a certain end.’27 Hume suggests that a law may be useful in one of two ways: it may be necessary, or convenient. ‘In order to establish laws for the regulation of property,’ he says, we ... must search for those rules, which are, on the whole, most useful and beneficial ... Examine the writers on the laws of nature; and you will always find, that, whatever principles they set out with, they are sure to

General Laws and Civilized Government 63 terminate here at last, and to assign, as the ultimate reason for every rule which they establish, the convenience and necessities of mankind.28

‘Convenience’ is a form of utility: it designates those things that are useful without being absolutely necessary. ‘Inconveniencies,’ then, refers to negative utility. An ‘incovenient’ law is one that is not useful – and, as the use of the law is to coordinate our behaviour in the service of the interests of all, it must thus be one that is not optimally effective at accomplishing this task. Hume never lays out an ideal system of general laws. As we have seen, he does not think ‘any human genius’ is capable of doing so. ‘The judgments of many must unite in this work,’ he says. ‘Experience must guide their labour: Time must bring it to perfection: And the feeling of inconveniencies must correct the mistakes, which they inevitably fall into, in their first trials and experiments.’29 The best evidence for whether a law passes the convenience test will thus be historical. We judge a law by its effect – whether or not it is ‘convenient’ to the community – and we can be most certain about the effects of those laws we have actually seen in operation. Hume says that ‘frequent trials and diligent observation can alone direct [the laws’] improvements.’30 Describing Henry I’s cautious approach to legal reform, he says: ‘All advances towards reason and good sense are slow and gradual.’31 With Magna Carta, he says, ‘time gradually ascertained the sense of all the ambiguous expressions.’32 It is interesting to note that, in the above paragraph, Hume says that the laws’ inconveniencies are ‘felt.’ This suggests a parallel to moral and aesthetic response – a suggestion that is confirmed by another passage. He says that the ability ‘to discern what general laws are, upon the whole, attended with fewest inconveniencies ... is a matter of so great difficulty that men may have made some advances, even in the sublime arts of poetry and eloquence, where a rapidity of genius and imagination assists their progress, before they have arrived at any great refinement in their municipal laws.’ ‘Refinement’ is Hume’s term, synonymous with ‘delicacy,’ for the ability to recognize proper standards in matters such as aesthetics – for, in other words, the possession of correct taste – or for those works of art that will be approved by refined judges. We should notice what Hume thinks is the test of whether an aesthetic judgment is a refined one. ‘We shall be able to ascertain its influ-

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ence [i.e., that of taste] not so much from the operation of each particular beauty,’ Hume says, ‘as from the durable admiration, which attends those works, that have survived all the caprices of mode and fashion, all the mistakes of ignorance and envy.’33 What Hume is describing here by the expression ‘durable admiration’ is not a blind deference to tradition, but rather an ongoing critical process, whereby we subject our feeling of admiration for a particular work to the judgments of ourselves and other competent critics from a variety of perspectives, till wide agreement is achieved. We are seeking a standing and durable consensus in the feelings of thoughtful, educated people. The same process apparently applies to the law – we are looking for laws that will, above all, prove durable. Hume says of Edward I, whom he calls ‘a friend to law and justice’: ‘The numerous statutes, passed in his reign ... truly deserve the name of establishments, because they were more constant, standing and durable laws than any made since.’34 Good laws, it seems, like great works of art, are those that survive through time, with succeeding generations continuing to experience a ‘feeling of convenience’ in contemplating their application. This reliance on historical evidence gives us a strong reason to defer to established custom. However, it need not be an absolutely decisive one. Long experience provides the data that allow us to test the effects of a law. But the mere survival of a law through time does not, as it does for many common law theorists of Hume’s day, prove that its effects are good ones. As I have said, this is at all points a critical process, and one in which innovation is never ruled out. We still require what Hume calls ‘the debates of civilians’ and ‘the reflections of politicians’ to judge good from bad.35 History and experience are just as likely – indeed, at earlier stages in society, more likely – to point to inadequacies in existing law as to felicities.36 And gifted rulers may innovate just as gifted artists may. Hume praises Edward I for the ‘correction, extension, amendments, and establishment of the laws.’37 In earlier stages of Britain’s development, it was left to rare and exceptional individuals such as Alfred the Great or Edward I to offer corrections and amendments to existing laws. However, Hume thinks Britain has become more refined over the centuries, and we may infer that legal innovation becomes easier as society progresses. ‘Laws, order, police, discipline,’ he says, ‘these can never be carried to any degree of perfection, before human reason has refined itself by exercise, and by an application to the more vulgar arts, at least, of commerce and manufacture.’38 This obviously implies that as human reason does

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refine itself in this way, the laws may begin to approach a higher degree of perfection. It is also a mistake to think, as some common law theorists insist, that one’s own history must be the only source of law. Other societies are just as likely to invent worthwhile laws, and where they do, we should not be shy of importing them. Hume comments on the ‘foreign improvements’ in laws (among other things) that the Norman kings ‘transplanted into England.’39 And he says of twelfth-century Britain: ‘perhaps there was no event, which tended farther to the improvement of the age, than one, which has not been much remarked, the accidental finding of a copy of Justinian’s Pandects, about the year 1130, in the town of Amalfi in Italy.’40 There is a tension in Hume’s writing between the ideal of a fully general and convenient set of laws and the reality of society’s slow evolution through trial and error. He makes several comments that suggest a legislator should have the ideal of a complete and permanent system of such laws before her. He says that ‘the object of municipal laws is to fix all the questions with regard to justice.’41 He also says that legislators should aim to ‘regulate the administration of public affairs to the latest posterity.’42 Yet not only does he say that ‘time must bring [the process] to perfection,’ he in fact suggests that such perfection may not actually be achievable. He says: In general, it may safely be affirmed, that jurisprudence is, in this respect, different from all the sciences; and that in many of its nicer questions, there cannot properly be said to be truth or falsehood on either side. If one pleader bring the case under any former law or precedent, by a refined analogy or comparison; the opposite pleader is not at a loss to find an opposite analogy or comparison: And the preference given by the judge is often founded more on taste and imagination than on any solid argument. Public utility is the general object of all courts of judicature; and this utility too requires a stable rule in all controversies: But where several rules, nearly equal and indifferent, present themselves, it is a very slight turn of thought, which fixes the decision in favour of either party.43

The suggestion that jurisprudence can never become a true science implies that it can never achieve a complete system of maximally convenient general laws that completely determine the behaviour of the magistrates. ‘No government, at that time, appeared in the world,’ he says of Tudor England, ‘nor is perhaps to be found in the records of any

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history, which subsisted without the mixture of some arbitrary authority, committed to some magistrate; and it might reasonably, beforehand, appear doubtful, whether human society could ever reach that state of perfection, as to support itself with no other controul than the general and rigid maxims of law and equity.’44 To some degree, we will always require judges to use their discretion in deciding which laws to apply to particular cases. The best we can hope for, it seems, is that our laws will be as clear and determinate as possible, and that our judges will recognize their responsibilities and their limitations, and act in good faith to follow the general and rigid intentions of these laws. This need not, however, lead us to despair, or merely to resign ourselves to the laws as they stand at the time and place at which we find ourselves. As Hume says in laying out an ideal model for government: ‘in all cases, it must be advantageous to know what is most perfect in the kind, that we may be able to bring any real constitution or form of government as near it as possible, by such gentle alterations and innovations as may not give too great disturbance to society.’45 In the same way, his criteria for general laws can serve as just such an ideal regarding the specifics of legislation. A civilized government will be a government that implements a system of general laws. But Hume does not merely make an analytic identification between this form of government and these sorts of laws. Rather, his argument is a causal one: a government, once civilized, will implement general laws. I will now examine how this process works and what it is about a government that determines whether it is civilized or barbarous. 3. Civilized Government Civilized government comes in two forms: republics and civilized monarchies. Hume thinks that republics necessarily establish general laws that limit the powers of their rulers. He defines a republican government as one ‘where the authority is distributed among several assemblies or senates.’ In such a government, there exist ‘checks and controuls’ that create a ‘balance or counterpoise’ between different branches of state power. He says: ‘a republican and free government would be an obvious absurdity, if the particular checks and controuls, provided by the constitution, had really no influence.’46 This need not rule out the existence of a monarch; it is required only that his author-

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ity be limited by some kind of balance of power. Hume says: ‘It is possible so to constitute a free government, as that a single person, call him doge, prince, or king, shall possess a large share of power, and shall form a proper balance or counterpoise to the other parts of the legislature.’47 Hume thinks that, in a republic, the ‘checks and controuls’ placed on the central authority will, over time, necessarily be extended to the lesser magistrates as well. ‘It may happen,’ he says, ‘that a republic, in its infant state, may be supported by as few laws as a barbarous monarchy, and may entrust as unlimited an authority to its magistrates or judges. But ... it is impossible, but, in time, the necessity of restraining the magistrates, in order to preserve liberty, must at last appear, and give rise to general laws and statutes.’48 If a republic does not restrain its magistrates, it loses its liberty, and thereby ceases to be a republic. Hume never explicitly explains why a republic cannot survive without such restrictions on its magistrates – though one passage points towards at least a partial explanation. He thinks that the legislative power simply cannot operate unless legislators are free to propose laws, without fear of prosecution by the magistrates. ‘No political maxim can, at first sight,’ he says, ‘appear more undisputable, than that he [the member who proposes a particular motion] must, at least, be secured from all inferior jurisdiction; and that nothing less than the same supreme legislative assembly, in their subsequent meetings, could make him accountable for those motions and harangues, to which they had before given their approbation.’49 He says Athens provides a counter-example to this maxim, but it is the exception that proves the rule – Athenian democracy failed because of just these sorts of imbalances of power. Thus, Hume thinks that a republican government must have a specific and regulated jurisdictional division of powers in order to safeguard its legislators. Whatever the full explanation, the term ‘civilized republic,’ which Hume never uses, would effectively be a redundancy for him, at least if we exclude those republics that are doomed and fleeting. ‘Though a republic should be barbarous,’ he says, ‘it necessarily, by an infallible operation, gives rise to LAW ... A republic without laws can never have any duration.’50 A civilized monarchy is distinct from a republic that happens to give ‘a single person ... a large share of power.’ In such a government, rather, the ‘doge, prince, or king’ possesses all the power. But as we have seen, this monarch acts as a legislator, implementing general laws and avoiding any intervention in particular cases.

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Hume’s civilized monarch is undeniably a curious creature. He is, we have seen, largely above the laws, though he is without prerogative powers. But he is above all free of restraint from the sorts of intermediate powers that Montesquieu and others thought liberty required. We shall see that Hume takes an extremely dim view of the higher nobility, which Montesquieu thought were the great bulwark against despotism. Hume thinks, on the contrary, that they are a perennial source of instability and lawlessness. 4. The Autonomy of Law in the Civilized Society There is a further sense in which a civilized government is a government of laws not men. For a state to be truly civilized, according to Hume, the government, and its laws, must be self-supporting and selfperpetuating. This means that a civilized monarchy is not simply a state ruled by a wise and equitable monarch. On the contrary, its legal system must not depend for its execution on the abilities or intentions of the sovereign. Hume says in his History: ‘The kingdom of Scotland had not yet attained that state, which distinguishes a civilized monarchy, and which enables the government, by the force of its laws and institutions alone, without any extraordinary capacity in the sovereign, to maintain itself in order and tranquillity.’51 He says elsewhere that the peaceful accession of William I’s son Richard was ‘a sure proof, that the Normans were already somewhat advanced in civility, and that their government could now rest secure on its laws and civil institutions, and was not wholly sustained by the abilities of the Sovereign.’52 A barbarous nation, dependent on the ‘abilities of the Sovereign,’ perpetually faces a dual threat, of despotism and anarchy. Where general laws are absent and the monarchy is weak, the higher aristocrats – as Hume calls them, in one of his favourite phrases, the ‘haughty barons’ – who are possessed of armies of retainers, can ignore the law at will, and make themselves rivals to the crown. ‘There is,’ says Hume, another power still more important than either the judicial or legislative; to wit, the power of injuring or serving by immediate force and violence, for which it is difficult to obtain redress in courts of justice. In all extensive governments, where the execution of the laws is feeble, this power naturally falls into the hands of the principal nobility.53

The threat from these aristocrats in turn creates a countervailing one:

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the monarch can maintain order only by asserting herself to the point of tyranny. Hume says that, at the time of Henry II, because the country had ‘no regular idea of a constitution,’ the sovereigns, in some instances, approached [very near] to despotism, though in others they seemed scarcely to possess any authority. If a prince, much dreaded and revered like Henry, obtained but the appearance of general consent to an ordinance, which was equitable and just, it became immediately an established law, and all his subjects acquiesced in it. If the prince was hated or despised ... the fullest and most authentic assembly had no authority. Thus all was confusion and disorder.’54

He says that this ‘strange mixture of regal tyranny ... and of aristocratical liberty or rather licentiousness ... is observable in all the ancient feudal governments; and both of them proved equally hurtful to the people.’55 Given that there are these two distinct forms of government, we might wonder how a nation goes from one to the other. Hume’s texts suggest that the development from barbarous to civilized government takes place in two parts. First, a monarch of sufficient abilities must appear to become a ‘legislator’ – that is, to formulate and implement general laws, and thereby suppress this ‘aristocratical licentiousness.’ In the English case, we see this process happening (not surprisingly) by fits and starts, according to the talents of particular kings. Hume says of Edward I: ‘He considered the great barons both as the immediate rivals of the crown, and oppressors of the people; and he purposed, by an exact distribution of justice, and a rigid execution of the laws, to give at once protection to the inferior orders of the state, and to diminish the arbitrary power of the great, on which their dangerous authority was chiefly founded.’56 Only once general laws have been imposed on the society and acquired a hold on people’s imagination – and the reasons they acquire this hold are not mysterious, given their evident tendency towards public utility – do they become self-sustaining. Hume says of England between the accession of Edward I and the death of Richard III: It required the authority almost absolute of the sovereigns, which took place in the subsequent period, to pull down those disorderly and licentious tyrants [i.e., the aristocracy], who were equally averse from peace and from freedom, and to establish that regular execution of the laws,

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Hume associates this notion of ‘regular liberty’ or a ‘regular plan of liberty’ with the self-sufficiency of the laws. Speaking of the Tudor era, Hume says: ‘After the power of alienations, as well as the encrease of commerce had thrown the balance of property into the hands of the commons, the situation of affairs and the dispositions of men became susceptible of a more regular plan of liberty; and the laws were not supported singly by the authority of the sovereign.’58 Hume suggests that England’s gradual progression, with a series of strong monarchs gradually building up the structure of the laws before this structure ultimately becomes self-sufficient, is only to be expected. He says that ‘any true or regular liberty ... must grow to perfection during several ages of settled and established government.’59 The English case is nevertheless anomalous in certain important respects. Hume thinks the self-sufficiency of the laws in England only came about when the government became a mixed one, with liberty finally assured by the emergence of the commons as a genuine political force. He says that while it ‘is ridiculous to consider the English constitution before [the Stuart] period as a regular plan of liberty,’60 finally, during Charles I’s hapless reign, ‘the incapacity of Buckingham encouraged the free spirit of the commons to establish in England a regular system of liberty.’61 England’s complex development illustrates another point about civilized government: the two-stage progression towards it that I have outlined need not be (and will probably rarely be) steady or unidirectional, nor will the achievement of it necessarily happen at a single stroke across an entire state. For instance, a republic may be civilized at its core yet leave barbarous governors in charge of its provinces.62 And a state that has begun its progress may find itself regressing.63 But while it would thus not be inaccurate to speak of barbarous and civilized tendencies within a state, this should not lead us to deny what I believe Hume’s texts show, that for him civilized government is nevertheless a distinct and achievable ideal, not just a relative description. We might think of an analogy to democracy. While there are clearly states in the world today that are only imperfectly democratic, or democratic only in certain of their parts, we can nevertheless imagine a set of criteria that, if met, would lead us to declare a state to be a democracy in the fullest sense of the term, and we could still hold up the ideal of such a state before those who have not yet achieved it.

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5. Succession For the laws to be truly self-sufficient, they must possess one further characteristic: they must contain provisions to govern the succession of officers – especially, of course, the monarch himself. In the passage I quoted above, Hume says the fact that ‘on the death of William, his son, Richard, though a minor, inherited his dominions’ was ‘a sure proof, that the Normans were already somewhat advanced in civility.’64 Hume thinks that a failure to solve the problem of succession accounts for much of the turmoil incident to barbarous monarchies. He says, in his survey of Anglo-Saxon government: It is easy to imagine, that an independant people, so little restrained by law, and cultivated by science, would not be very strict in maintaining a regular succession of their princes. Though they paid great regard to the royal family, and ascribed to it an undisputed superiority, they either had no rule, or none that was steadily observed, in filling the vacant throne; and present convenience, in that emergency, was more attended to than general principles ... Possession, however obtained, was extremely apt to secure their obedience, and the idea of any right, which was once excluded, was but feeble and imperfect. This is so much the case in all barbarous monarchies, and occurs so often in the history of the Anglo-Saxons, that we cannot consistently entertain any other notion of their government.65

Hume praises the sixth-century Saxon king Hermenric, who ‘performed nothing memorable during a reign of thirty-two years; except associating with him his son, Ethelbert, in the government, that he might secure the succession in his family, and prevent such revolutions as are incident to a turbulent and barbarous monarchy.’66 In a republic, because there is no natural principle of the imagination to govern the succession of officers, it must be determined by what Bacon, in a speech Hume quotes, calls a ‘law precedent’: It is evident ... that all other commonwealths, monarchies only excepted, do subsist by a law precedent. For where authority is divided amongst many officers, and they not perpetual, but annual or temporary, and not to receive their authority but by election, and certain persons to have voices only in that election, and the like; these are busy and curious frames, which of necessity do presuppose a law precedent, written or unwritten, to guide and direct them.67

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It is easy to see why a phrase like ‘busy and curious frames’ would have resonated with Hume. Such ‘frames’ give men’s imaginations nothing familiar to seize upon, the way they can with primogeniture. We need, then, something explicit and established. Without such a precedent, no republic could long survive without descending into civil war, set off by clashes over the legitimacy of officers. It is possible that a monarchy may also require such a formal ‘law precedent’ governing the succession, in particular where the rule of primogeniture is not followed. Hume does not think a stable monarchy requires any particular type of succession – he says simply that it ‘should be fixed one way or other.’68 However, primogeniture has such a particular hold on our imaginations that, in those states where the eldest son does not automatically succeed, an established precedent will often be necessary to ensure a stable transition. This is particularly true in the case of an elective monarchy, where Hume emphasizes that each succession can easily lead to civil war.69 6. The Church Hume thinks that a fully civilized society will have a single national church, under the control of the civil authorities. ‘There must,’ he says in his ‘Digression concerning the Ecclesiastical State,’ in volume three of the History of England, ‘be an ecclesiastical order, and a public establishment of religion in every civilized community.’70 This prevents the church from existing as a parallel authority to the state, with the capacity to undermine its edicts. ‘The great power of the church, in ancient times,’ he says, ‘weakened the authority of the crown, and interrupted the course of the laws.’71 He says that Christianity has proved especially pernicious in this regard. The early state persecutions of Christian sects allowed the priesthood to ‘engross all the authority’ and recognize no guidance from the secular arm, a principle of government that has survived into modern times.72 ‘The union of the civil and ecclesiastical power serves extremely, in every civilized government, to the maintenance of peace and order;’ he concludes, ‘and prevents those mutual incroachments, which, as there can be no ultimate judge between them, are often attended with the most dangerous consequences.’73 Ultimately, there must be a single ‘supreme magistrate, who unites these powers’ and who erects ‘sufficient barriers against so dangerous and insidious a rival’ as the religious leadership can become.74 In a monarchy, this supreme magistrate will clearly be the prince.

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A single established church also cools the passions of the preachers. Admire as he does the virtue of industry, Hume thinks it can be distinctly vicious when possessed by independent religious leaders. Independent preachers will use people’s love of novelty to come up with steadily more radical doctrines in order to draw followers to them. ‘Every tenet will be adopted that best suits the disorderly affections of the human frame.’ The preachers will inspire rivalry with other sects, and social disorder will inevitably follow. The only remedy is ‘to bribe the indolence [of the preachers], by assigning stated salaries to their profession, and rendering it superfluous for them to be farther active, than merely to prevent their flock from straying in quest of new pastures.’75 Hume thinks that, in a civilized society, many forms of religious belief are merely hold-overs from earlier barbarous ages and likely expects them merely to wither away as the process of refinement advances. ‘It forms a strong presumption against all supernatural and miraculous relations,’ he says in the first Enquiry, ‘that they are observed chiefly to abound among ignorant and barbarous nations; or if a civilized people has ever given admission to any of them, that people will be found to have received them from ignorant and barbarous ancestors, who transmitted them with that inviolable sanction and authority, which always attend received opinions.’76 The religion that remains will have as one of its chief tasks to instil people with a sense of civic duty and respect for the laws.77 7. Civilization and Empire Hume was pacific in international affairs, and near the end of his life he advocated reconciliation with the American rebels. He famously remarked: ‘I am an American in my Principles.’78 This position showed courage. Many of his closest friends were also among the most vehement advocates for a hard line against the colonists. Wedderburn, who as solicitor general embarrassed Benjamin Franklin before the Privy Council, had, as a young lawyer, courageously defended Hume before the Scottish Kirk. But Hume does not automatically condemn all forms of imperialism. In the History of England, he discusses the Roman invasion of Spain. He calls the Romans ‘those civilized conquerors,’ and says it was only Spain’s ‘final conquest under Augustus’ that repressed those ‘disorders’ that forced ‘every man ... to live in castles and walled towns for his security.’79 He takes a similarly sanguine view of the Norman con-

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quest. Though he does not ignore the violence with which William exercised power,80 he concludes: With regard to the manners of the Anglo-Saxons we can say little, but that they were in general a rude, uncultivated people, ignorant of letters, unskilled in the mechanical arts, untamed to submission under law and government, addicted to intemperance, riot, and disorder ... The conquest put the people in a situation of receiving slowly, from abroad, the rudiments of science and cultivation, and of correcting their rough and licentious manners.81

Hume’s most dramatic endorsement of such ‘civilizing’ imperialism comes with his description of James I’s subjugation of Ireland, which he calls that king’s ‘master-piece.’82 In his description of this process, Hume draws a distinction between ‘the vain and criminal glory of conquests’ and the harsh but benevolent rule of a civilized empire. He invokes exactly the sort of criteria we should expect him to, given what I have said about his theory of civilized government. He calls James ‘the legislator of Ireland’ and makes it clear that the previous Irish government had been thoroughly barbarous.83 We should notice in the above passages that Hume explicitly states that both the Spanish and Anglo-Saxon governments had failed to prevent ‘disorder.’ According to the End of Government Doctrine, life under such a government is close to intolerable. Any external source of order is bound to be welcome. Here then is the basis for what we might call Hume’s civilizing imperialism: where a society lacks basic institutions to guarantee the equitable and reliable protection of property, people may actually benefit from conquest. A conquest does not bring the same risk of civil war that a rebellion does. The conquest will either succeed, establishing a new regime, or it will fail, leaving the old one in place. It is therefore less likely to lead to complete chaos. ‘After the subjection of Ireland by Elizabeth,’ he says, the more difficult task still remained; to civilize the inhabitants, to reconcile them to laws and industry, and to render their subjection durable and useful to the crown of England. James proceeded in this work by a steady, regular, and well-concerted plan; and in the space of nine years, according to Sir John Davis, he made greater advances towards the reformation of that kingdom, than had been made in the 440 years, which had elapsed since the conquest was first attempted.84

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Hume describes the process of civilizing Ireland as (not surprisingly) that of imposing a system of equitable, general laws, of the sort he prescribes in his political essays. According to his description of this ‘civilizing’ process, James completed the work of his predecessors, who realized it was ‘necessary to abolish the Irish customs, which supplied the place of laws, and which were calculated to keep that people for ever in a state of barbarism and disorder.’85 The Stuart king finished the task of abolishing such pseudo-legal customs and ‘substituting English law in their place.’86 Hume tells us that, ‘having taken all the natives under his protection, and declared them free citizens, [he] proceeded to govern them by a regular administration, military as well as civil.’87 The new legal system fulfilled the criteria of rigour and universality that the rule of law demands. ‘Circuits were established,’ he says, justice administered, oppression banished, and crimes and disorders of every kind severely punished. As the Irish had been universally engaged in the rebellion against Elizabeth, a resignation of all the rights, which had been formerly granted them to separate jurisdictions, was rigorously exacted; and no authority, but that of the king and the law, was permitted throughout the kingdom.88

As if it were not enough to demand the ‘resignation of all the rights’ the Irish held by tradition, James followed up his legal upheavals with an enforced revolution in their economy and indeed their very way of life. ‘The Irish were removed from the hills and fastnesses, and settled in the open country: Husbandry and the arts were taught them: A fixed habitation secured: Plunder and robbery punished: And, by these means, Ulster, from being the most wild and disorderly province of all Ireland, soon became the best cultivated and most civilized.’89 In his historical writings, Hume normally prides himself on being a neutral observer of the events he describes. Yet, strikingly, he chooses this as one of the few occasions where he makes his own opinion unambiguously known. His verdict is as follows: Such were the arts, by which James introduced humanity and justice among the people, who had ever been buried in the most profound barbarism. Noble cares! much superior to the vain and criminal glory of conquests; but requiring ages of perseverance and attention to perfect what had been so happily begun.90

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Hume never goes so far as to advocate a project of ongoing conquests by civilized nations of their barbarous neighbours. It would surely have been apparent to him that this could only risk inter-state rivalries and wider conflicts and give free reign to brutal generals and provincial governors. It is only in his capacity as a philosophical historian that he can look back on such civilizing missions as faits accomplis and demonstrate their benefits. His sympathy for the American colonists is very likely due to the fact that he considered America already to be well advanced in the civilizing process. Their success stems from the nature of their founding. He says that the American colonies were ‘established on the noblest footing that has been known in any age or nation.’ They provided an outlet for those who were without opportunity in the homeland, allowing their industry and their spirit of liberty to thrive: Peopled gradually from England by the necessitous and indigent, who, at home, encreased neither wealth nor populousness, the colonies, which were planted along that tract, have promoted the navigation, encouraged the industry, and even perhaps multiplied the inhabitants of their mothercountry. The spirit of independency, which was reviving in England, here shone forth in its full lustre, and received new accession from the aspiring character of those, who, being discontented with the established church and monarchy, had sought for freedom amidst those savage desarts.91

The visit that Benjamin Franklin paid to Hume while in Edinburgh probably confirmed his view of the Americans as a nation of virtuous, law-abiding, and industrious farmers and traders – this was just the image Franklin was aggressively trying to promote. 8. Hume’s Perfect Commonwealth I have already pointed out that not only does Hume think some forms of government are better than others, he thinks one is best of all. Hume’s perfect commonwealth is what he calls a ‘well-tempered democracy.’92 The nation is to be divided into a hundred counties, which are in turn divided into a hundred parishes. Hume’s democracy possesses a wide franchise, with all men of any property or means meeting in parish churches to choose representatives for the parish. He says it is based on the Dutch model, though he considers himself to have improved upon this model in having restricted the power of the

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aristocrats. It also bears a striking similarity to the Presbyterian church. Hume’s government is bicameral (there is no monarch). The representatives from each county gather together to choose a senator. Bishops do not sit, and hereditary peers are abolished. He thinks his system could be accommodated fairly easily to the British government of his day, though he regrets that even following such a reformation, Britain’s limited monarchy would still depend ‘on the abilities and behaviour of the sovereign.’93 It would thus still not be fully civilized. Hume enters into almost mind-numbing detail in planning his ideal state. Its various rules and institutions confirm what we already have learned about civilized government. For instance, it possesses a somewhat ominously named ‘council of religion and learning’ charged with inspecting ‘the universities and clergy.’94 Perhaps its greatest innovation is to embody what Hume believes is a feasible large-state republicanism. Republican authors had traditionally assumed such a form of government could only be realized in a small territory. Hume insists that his intricate system of internal divisions can counteract the natural turbulence of democracy.95 He turns what had been seen as the central problem with large republics – that people must depend on representatives rather than participating directly in decision making – into a virtue by offering representative democracy as a means of controlling the passions and irrationalities of large public assemblies. 9. Civilized Government and the Growth of Commerce We now return to one of the central questions regarding civilized government: why is such a government uniquely suited to stimulating the growth of commerce? Most basically, it encourages economic activity through its stable and enduring guarantee of the ‘security of possession,’ which Hume thinks is the best means ‘for rendering the kingdom prosperous and flourishing.’96 As we have seen, general laws provide this security in the optimal fashion. When possession is secured by general laws, we can, as citizens, be sure that this security will outlive any given monarch or assembly of legislators and that it will extend so far as to protect us against the magistrates themselves. We can thus give free reign to our industry, confident that we will be able to enjoy the rewards. The primary duty of the civilized state, then, is to provide security to commerce but otherwise to stay out of its way. This is not to make Hume a proponent of so-called laissez-faire economics. He is not. We

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have already seen that he thinks magistrates are free to take on ambitious public projects when they perceive these to be in the interest of society. And he takes for granted that there will be taxes – he is sanguine about this, suggesting that under the right circumstances they can be born with ‘chearfulness.’97 But they must be levied in the right way. Like laws, they must be in some sense general – which is to say, they should be regular and predictable, and be spread equitably among the population, with the rich paying their share. ‘The most pernicious of all taxes are the arbitrary,’ Hume says. ‘They are commonly converted, by their management, into punishments on industry; and also, by their unavoidable inequality, are more grievous, than by the real burden which they impose. It is surprising, therefore, to see them have place among any civilized people.’98 Hume thinks the government is at its most pernicious, in terms of its effects on commerce, when it tried to intervene directly in the economy. When it comes to commercial regulation, the government does best that does little. During the time of Henry VII, he says, ‘one great cause of the low state of industry during this period, was the restraints put upon it.’99 He denigrates attempts to enforce a ‘just price,’ belief in which was a centrepiece of medieval economic theory. ‘The encrease of prices is a necessary consequence of scarcity;’ he says, ‘and laws, instead of preventing it, only aggravate the evil, by cramping and restraining commerce.’100 During the reign of Henry, he says: It was prohibited to export horses; as if that exportation did not encourage the breed, and render them more plentiful in the kingdom. In order to promote archery no bows were to be sold at a higher price than six shillings and four-pence, reducing money to the denomination of our time. The only effect of this regulation must be either that the people would be supplied with bad bows or none at all. Prices were also affixed to woollen cloth, to caps and hats: And the wages of labourers were regulated by law. It is evident, that these matters ought always to be left free, and be entrusted to the common course of business and commerce.101

He catalogues other ‘absurd limitations’ on commerce, such as the apprenticeship system and ‘the erecting of corporations,’ both later to be targets of his friend Adam Smith. Hume thinks that the Tudor age provides a kind of abject lesson in how not to conduct a commerce policy. All the Tudor princes used their power and confidence to intervene in the economy, invariably for the worse. ‘The arbitrary proceedings of the

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queen,’ he says of Elizabeth, ‘joined to many monopolies granted by this princess, as well as by her father, checked the growth of commerce.’102 Though James annulled Elizabeth’s many patents for monopolies, he tolerated the ‘exclusive companies’ – ‘another species of monopoly, by which almost all foreign trade, except that to France, was brought into the hands of a few rapacious engrossers, and all prospect of future improvement in commerce was for ever sacrificed to a little temporary advantage of the sovereign.’103 He describes the nation during this era as ‘enslaved ... to those exclusive companies, which confined so much every branch of commerce and industry.’104 It is fortunate that the influx of wealth from the new world was more than enough to counterbalance such misguided policies. Hume has an especial distaste for England’s long history of mistreatment of the Jews, which was rooted in the condemnation of ‘usury.’ Speaking of early Norman times, Hume says: ‘The prejudices of the age had made the lending of money on interest pass by the invidious name of usury: yet the necessity of the practice had still continued it, and the greater part of that kind of dealing fell every where into the hands of the Jews.’105 Hume is impressed that ‘the industry and frugality of this people [that is, the Jews] had put them in possession of all the ready money, which the idleness and profusion, common to the English with other European nations, enabled them to lend at exorbitant and unequal interest,’ and he laments ‘the grievous oppressions, to which, from the prevalent bigotry and rapine of the age, they were continually exposed.’106 These oppressions are literally unimaginable – he says it is difficult for the ideas of his readers to ‘come up to the extortions which in fact we find to have been practised upon them.’107 Hume thinks that one of the most persistent and pernicious malign influences on government policy is the mercantilist theory that various leaders have allowed to guide their policies. On the mercantilist theory, commerce becomes what we may call a mitigated good. It benefits a nation overall only under specific conditions – those in which the balance of trade is favourable – and within certain limits. There are limits because one nation can theoretically reach the point where it controls all the available resources, leaving its trading partner with none. At some point a successful nation will begin to hold so much of the world’s money supply that its foreign markets dry up. This is not, on the mercantilist theory, to be considered a disastrous prospect for the triumphant nation, since the nation’s people are in any case supposed to be materially self-sufficient. Their needs are met by domestic pro-

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duction. Where one nation controls the money supply, the sum total of this money supply simply marks the naturally ordained upward limit on its economic growth. Production of luxuries can presumably now stop altogether. This ideal case was not of much interest to the mercantilist writers, however. They concentrated much more on the downside risk: that a nation would find itself without supplies of money. In his essay ‘Of the Balance of Trade’ Hume calls the errors of the mercantilist theory ‘gross and palpable.’ He says that the fear nations have ‘that all their gold and silver may be leaving them’ to be ‘a groundless apprehension.’ ‘I should as soon dread, that all our springs and rivers should be exhausted,’ he says, ‘as that money should abandon a kingdom where there are people and industry.’108 Hume offers a thought-experiment to prove ‘the impossibility of this event.’ Suppose, he says, ‘four-fifths of the money in Great Britain to be annihilated in one night.’ The consequence, he says, is that the price of labour and domestic commodities would ‘sink in proportion,’ instantly increasing the demand for them in foreign markets. As exports drop in value, foreigners quickly buy up the available supply, bringing a new influx of money. As they do so, prices inexorably begin to rise. ‘In how little time, therefore,’ he concludes, ‘must this bring back the money which we had lost, and raise us to the level of all the neighbouring nations?’109 As foreigners bought the country’s exports, the money supply rises, and with it, prices. The converse case applies equally: were Britain magically to obtain an instant influx of money, prices would rise, till the country’s people bought commodities on the cheap, draining the nation’s money. The theory behind this hypothesis has been called Hume’s quantity theory of money. On this theory, prices are set within a particular country by the ‘proportion between commodities and money.’ ‘Encrease the commodities,’ he says, ‘they become cheaper; encrease the money, they rise in their value.’110 As Istvan Hont sums up this position: ‘In a twocountry model ... under ceteris paribus assumptions (i.e., that people and their industry remain the same), a sudden disturbance in the quantity of money in the economy would create a price movement whose impact on the country’s trade position, if it continued with its exportimport trade, would in time cancel out the results of this aberration.’111 Prices, then, tend towards an equilibrium point but do not have to be maintained at some arbitrary ‘true’ level. Even where property is more or less secure, industry can be depressed by the lack of esteem given to commercial pursuits. Commerce, Hume says,

General Laws and Civilized Government 81 is apt to decay in absolute governments, not because it is there less secure, but because it is less honourable. A subordination of ranks is absolutely necessary to the support of monarchy. Birth, titles, and place, must be honoured above industry and riches. And while these notions prevail, all the considerable traders will be tempted to throw up their commerce, in order to purchase some of those employments, to which privileges and honours are annexed.112

He says of Athelstan: He passed a remarkable law, which was calculated for the encouragement of commerce, and which it required some liberality of mind, in that age, to have devised: That a merchant, who made three long sea-voyages on his own account, should be admitted to the rank of a thane or gentleman.113

The ability of the commercial classes to make incremental gains in status played an important role in pulling England out of its feudal stagnation. During the era of Edward I, Hume says, the commercial classes were able to raise themselves up to an equivalent status to the landed gentry, and the two fused into a single ‘third estate.’114 Given the importance of maintaining the dignity of commercial pursuits, and the malign influence that mistaken economic theory can have, it is no surprise that Hume focuses considerable energy refuting those who condemned commerce and ‘luxury’ during his own day. He thinks that the most influential condemnation comes from those he calls ‘severe moralists.’ I would now like to examine their theory and Hume’s attempt to refute it.

4 Luxury and the Ancient States

I have said that in identifying the civilizing process with increased levels of ‘luxury,’ Hume meant to be provocative. Luxury had few friends during the eighteenth century. Some of luxury’s most prominent opponents were Christian writers, and Hume certainly was aware of the Christian condemnation. Writing of England after the fall of Rome, he talks about the monks who ‘inveighed bitterly against the vices and pretended luxury of the age.’1 He finds this ironic since the Britons were, during this era, a people so rude, who had not, without the assistance of the Romans, art of masonry sufficient to raise a stone rampart for their own defence: Yet the Monkish historians, who treat of those events, complain of the luxury of the Britons during this period, and ascribe to that vice, not to their cowardice or improvident counsels, all their subsequent calamities.2

But he has a different opponent primarily in mind. ‘What has chiefly induced severe moralists to declaim against refinement in the arts,’ he says, is the example of ancient ROME, which, joining, to its poverty and rusticity, virtue and public spirit, rose to such a surprizing height of grandeur and liberty; but having learned from its conquered provinces the ASIATIC luxury, fell into every kind of corruption; whence arose sedition and civil wars, attended at last with the total loss of liberty. All the LATIN classics, whom we peruse in our infancy, are full of these sentiments, and universally ascribe the ruin of their state to the arts and riches imported from the East.3

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In The Fable of the Bees Bernard Mandeville offers a summary of what he sees as the prevailing grounds on which luxury was condemned during his time. He mentions the Christian anti-luxurists, but then adds: What is laid to the Charge of Luxury besides, is, that ... where there are reigning Vices, offices of the greatest Trust are bought and sold; the Ministers that should serve the Public, both great and small, corrupted, and the Countries every Moment in danger of being betray’d to the highest Bidders: And lastly, that it effeminates and enervates the People, by which the Nations become an easy Prey to the first Invaders.4

I believe this passage accurately captures the views of the ‘severe moralists’ to which Hume refers. ‘Luxury, or a refinement on the pleasures and conveniencies of life,’ he says, had long been supposed the source of every corruption in government, and the immediate cause of faction, sedition, civil wars, and the total loss of liberty. It was, therefore, universally regarded as a vice, and was an object of declamation to all satyrists, and severe moralists. Those, who prove, or attempt to prove, that such refinements rather tend to the encrease of industry, civility, and arts, regulate anew our moral as well as political sentiments, and represent, as laudable or innocent, what had formerly been regarded as pernicious and blameable.5

I will refer to Hume’s opponents here as ‘civic moralists’ (to mark them off from those of the Christian variety). Civic moralists believed, based on their study of ancient history, that luxury leads to corruption of the body politic and effeminacy among the fighting classes. Citizens become corrupt and effeminate when they begin to covet material wealth – in other words, luxury – rather than honour. The desire for luxury over honour presents two dangers. First, legislators and magistrates use their offices to serve the self-interested pursuit of material wealth rather than the glory that is the reward of disinterested exercise of public spirit. As a result, they can be bribed to support particular people or groups rather than the state as a whole. Call this the corruption argument: luxury weakens the state by corrupting the governors and leading them to act against the public interest. Second, when citizens become attached to their luxurious lifestyles, they lose their capacity to endure the hardships of military life. Distracted by more immediate and less perilous satisfactions, they no longer covet martial glory and instead measure

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success in purely material terms. They avoid militia service, or else once in battle suffer from the cowardice that comes with an excessive attachment to earthly goods. The state’s neighbours quickly perceive this weakness and use the opportunity to invade. Call this the effeminacy argument: luxury weakens the state by draining people of their martial spirit. The way to avoid both corruption and effeminacy is to prevent commerce, since commerce is the source of luxury. Citizens should desire only what can be produced from native soil. Though it drew on the supposed lessons of Greek history, civic moralism originated with the historians of ancient Rome. The civic moralist account of history has it roughly that Sparta and Rome became the most powerful republics ever known due to citizenries which put aside all thought of luxurious consumption and dedicated themselves to public virtue. The Roman republic began its slow descent towards tyranny when its conquests in the east (during the wars of the third and second centuries B.C.) introduced citizens to the luxuries of Greece and ‘Asia’ (the near east), which corrupted them and allowed powerful factions to dominate public life. According to post-Augustan writers, the empire’s ever-growing luxury continued to weaken its citizens and left them with neither the taste nor the talent for fighting, till at last it fell prey to the barbarian invaders from the north. I have chosen to use the term ‘civic moralism’ rather than ‘civic republicanism’ to describe Hume’s opponent. The most important distinguishing characteristic of what I am calling civic moralism is its exclusive focus on the virtue of citizens as the determining factor in a state’s survival and its explicit indifference to constitutional questions and to specific forms of government. To cite Pope (again), the civic moralist position holds that only fools care about the form of government; ‘whate’er is best administered is best.’6 Civic moralism was something closer to a rhetorical trope than an actual political philosophy. It could be appealed to by people with a wide variety of political views. Many civic moralists were not republicans at all.7 We might summarize the civic moralist position as this: Rome and the other ancient states demonstrate, through the circumstances of their fall, that it is the virtue of a state’s inhabitants rather than the nature of its law and government that determines its survival. Rome’s dual fall supposedly illustrated the costs of both corruption (which destroyed the republic) and effeminacy (which ultimately caused the collapse of the empire). Hume is especially interested in the civic moralists because he thinks the very evidence they provide to support their view in fact

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offers clear support for his own. ‘It would be easy to prove,’ he says, ‘that these writers mistook the cause of the disorders in the ROMAN state, and ascribed to luxury and the arts, what really proceeded from an ill modelled government, and the unlimited extent of conquests.’8 Though the history of Rome is clearly at the centre of this debate, I will also examine Hume’s treatment of Sparta and Athens, both of which he thinks provide lessons relevant to the issues at hand. The contrast between Athens’s ultimate weakness and Sparta’s supposed strength was taken to prove that the most martial and least ‘effeminate’ republic will prove the strongest. 1. Sources Hume was a keen student of ancient literature, and his main source for the civic moralist position was the Roman authors themselves. Among the ‘Latin classics’ Hume perused in his youth was Sallust’s account of the Catilinean Conspiracy. Sallust recounts that Catiline was incited to his revolt by the corruption of a society plagued by two disastrous vices – love of luxury and love of money. After Sylla’s conquest of Asia, ‘riches came to be held in honour ... virtue began to lose its luster, poverty to be considered a disgrace ... Therefore as the result of riches, luxury and greed, united with insolence, took possession of our young manhood. They pillaged, squandered; set little value on their own, coveted the goods of others; they disregarded modesty, chastity, everything human and divine; in short, they were utterly thoughtless and reckless.’9 Hume says of Sallust wryly: ‘This author abounds in praises of the old rigid ROMAN virtue, though himself the most egregious instance of modern luxury and corruption.’10 Hume’s footnotes make it clear that Livy was another prime source for his knowledge of Roman history. Livy opens his history of Rome’s golden age by saying that ‘no state was ever greater, none more righteous or richer in good examples, none ever was where avarice and luxury came into the social order so late, or where humble means and thrift were so highly esteemed and so long held in honour,’11 and Hume quotes his lament that in his own day Rome could no longer afford to field a large army, ‘so strictly has our growth been limited to the only things for which we strive, – wealth and luxury.’12 Hume was also a reader of Juvenal, whom he calls ‘the last of the ROMAN writers, that possessed any degree of genius.’13 Juvenal says in his Satires: ‘We are now suffering the calamities of long peace. Luxury, more deadly than

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any foe, has laid her hand upon us, and avenges a conquered world. Since the day when Roman poverty perished, no deed of crime of lust has been wanting to us.’14 Civic moralist themes were revived during the Renaissance by Guiccardini and Machiavelli, both of whom Hume read. He calls the latter’s Discourses on Livy ‘a work ... of great judgment and genius.’15 He makes clear, however, that he thought Machiavelli erred in ignoring the role commerce plays in accounting for the strengths of the modern republics. ‘There is not a word of trade in all Machiavel,’ he says, ‘which is strange, considering that Florence rose only by trade.’16 And he thought less of Guiccardini, whose work he says ‘support[s] with difficulty our attention’ – though he cites it repeatedly and praises his character of Alexander VI.17 We cannot know precisely who Hume thinks are the ‘severe moralists’ of his own time. John Dennis is certainly one possibility.18 We have already seen that Hume engages directly with Alexander Pope over the importance of ‘forms of government.’ But Pope was part of the circle that surrounded Bolingbroke, the circle that produced The Craftsman. Hume may well have identified Bolingbroke as one of his ‘severe moralists.’19 Another possibility is the Scottish writer Andrew Fletcher, whose works were almost certainly in his library.20 In any case, we know of one clear statement of the view Hume is rejecting, of which he certainly would have been aware: his own. Hume’s ‘An Historical Essay on Chivalry and Modern Honour,’ written while Hume was in his teens or twenties (and before he published the Treatise), attributes the fall of Rome to the ‘Softness of the Inhabitants,’ which was the result of the ‘Riches & Plenty of it.’ The effect on both Romans and barbarians was the same: ‘these polite & luxurious arts made them more easily conquer’d.’ He says: ‘’Tis impossible for a polite Nation, by slow Degrees, & by an ill constituted Government alone to become altogether barbarous.’21 Hume’s assertion, a decade later, that ‘the disorders in the ROMAN state ... really proceeded from an ill modelled government’ thus reads as (among other things) a hidden, but direct, self-refutation.22 2. Liberty and Public Spirit Hume is, as I have already said, no Mandeville. He does not denigrate all talk of virtue or public spirit. On the contrary, he in fact makes assertions about liberty and public spirit to which no civic moralist could

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object. We have already seen that he calls liberty ‘the perfection of civil society,’ and says: Here, then, is a sufficient inducement to maintain, with the utmost ZEAL, in every free state, those forms and institutions, by which liberty is secured, the public good consulted, and the avarice or ambition of particular men restrained and punished. Nothing does more honour to human nature, than to see it susceptible of so noble a passion; as nothing can be a greater indication of meanness of heart in any man, than to see him destitute of it. A man who loves only himself, without regard to friendship and desert, merits the severest blame; and a man, who is only susceptible of friendship, without public spirit, or a regard to the community, is deficient in the most material part of virtue.23

Hume thinks it is always welcome when people are motivated by the ‘nobler’ passion of public interest. He describes a patriot as someone who puts the good of all ahead of his or her own – someone who is characterized by what he calls ‘generous humanity.’24 We can never rely on such sentiments, however. ‘Though the object of our civil duties be the enforcing of our natural,’ he says, ‘yet the first motive of the invention, as well as performance of both, is nothing but self-interest.’25 Hume faults the civic moralists for depending on people to be virtuous, rather than trying to make them so. For Hume, the state should be built on invariable characteristics – his hope is then to exploit these to make people more virtuous in the long run. ‘Sovereigns must take mankind as they find them,’ he says, ‘and cannot pretend to introduce any violent change in their principles and ways of thinking.’26 And, because the civic moralists’ ideal state would depend on the ‘virtue’ of citizens rather than their more natural, self-interested desires, it is just such a ‘violent change’ that would be required. ‘Could we convert a city into a kind of fortified camp,’ he says, thinking of Sparta, and infuse into each breast so martial a genius, and such a passion for public good, as to make every one willing to undergo the greatest hardships for the sake of the public; these affections might now, as in ancient times, prove alone a sufficient spur to industry, and support the community. It would then be advantageous, as in camps, to banish all arts and luxury ... But as these principles are too disinterested and too difficult to support, it is requisite to govern men by other passions, and animate them with a spirit of avarice and industry, art and luxury.27

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Hume was certainly not immune to the rhetoric of the classical moralists and their stirring calls to preserve the liberty of the people. We have already seen that Hume calls liberty ‘the perfection of civil society.’ He contrasts the ‘monkish virtues’ of Christianity with ‘activity, spirit, courage, magnanimity, love of liberty, and all the virtues which aggrandize a people’ – a catalogue that could come from the Discourses on Livy.28 And indeed, these are all virtues that, in the Essays, Hume attributes to the ancient Greeks and Romans.29 He says that the austere republican Marcus Portius Cato possessed a character ‘we should be ambitious of in ourselves,’ and he lauds those moderns who emulate such ancient heroes. In his description of Viscount Falkland, a man he praises for his ‘fine genius’ and ‘generous disposition,’ Hume says: ‘Called into public life, he ... displayed that masculine eloquence, and undaunted love of liberty, which, from his intimate acquaintance with the sublime spirits of antiquity, he had greedily imbibed.’30 Hume’s use of the term ‘liberty,’ however, is decidedly constitutionalist: it is the liberty guaranteed by the rule of law. And when he invokes the language of citizenship and patriotism, it is in the interest of redefining these terms to fit his own constitutionalism. To a constitutionalist, the good citizen is someone who obeys the laws and does what her ruler commands, emerging from the private sphere only to object when these commands are grossly unjust, and to participate in government when asked. As Bentham puts it: ‘Under a government of Laws, what is the motto of a good citizen? To obey punctually; to censure [unjust laws] freely.’31 Hume repeatedly equates good citizenship with obedience. In The Natural History of Religion, he discusses how Catiline ceased to be ‘a good citizen, and obedient to the laws of his country.’32 In his account of Charles I’s reign, Hume praises ‘the new splendor and glory of the Dutch commonwealth, where liberty so happily supported industry.’33 Contrasting the tolerant spirit of the Netherlands with England’s increasingly repressive atmosphere, he says: ‘The Dutch began to be more intent on commerce than on orthodoxy; and thought, that the knowledge of useful arts and obedience to the laws formed a good citizen.’34 ‘The most inviolable attachment to the laws of our country,’ Hume says, ‘is every where acknowledged a capital virtue; and where the people are not so happy, as to have any legislature but a single person, the strictest loyalty is, in that case, the truest patriotism.’35 This comment clearly implies that where there is a legislature, participation in it will also constitute part of true patriotism. But for most people, especially given that governments are in fact monarchies, the duties of patriotism will be exhausted by the banal virtue of obedience.

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Hume’s advocacy of civil obedience should not be taken as abrogating the need for free and open debate in matters of public policy. He takes pains to point out that the liberty the English have ‘of communicating whatever we please to the public, and of openly censuring every measure, entered into by the king or his ministers’ is an integral part of England’s mixed government, a form of government he repeatedly praises.36 The people must always keep a watchful eye on the magistrates, to ensure against the ever-present threat of ‘encroachments and violence’ and to sound the alarm if such injustice occurs.37 In extreme cases, the people must go further: ‘when the execution of justice would be attended with very pernicious consequences, that virtue [i.e., obedience] must be suspended, and give place to public utility, in such extraordinary and such pressing emergencies.’38 However, Hume’s advice to those who would try to draft a sure rule to tell us what qualifies as such an emergency is that, ‘as obedience is our duty in the common course of things,’ we would be ‘better employed in inculcating the general doctrine, than in displaying the particular exceptions, which we are, perhaps, but too much inclined, of ourselves, to embrace and to extend.’39 3. Sparta and the Effeminacy Argument Sparta had long been held up as a kind of utopia to lovers of austerity and martial virtue.40 Surprisingly, Hume readily concedes both Sparta’s military achievements and its austerity – and thus its value as a potential counter-example to his own views. ‘The republic of SPARTA,’ he says, ‘was certainly more powerful than any state now in the world, consisting of an equal number of people; and this was owing entirely to the want of commerce and luxury.’41 But Hume deals with the Spartan counter-example by arguing that it is entirely anamolous. Spartan austerity was due, not to the virtue of its citizens, but to the laws of its constitution – normally attributed to Lycurgus – which banished trade and made the city into a military collective. By imposing these harsh conditions, Hume suggests, these laws forcibly distorted human nature in a way that later societies would find difficult to replicate even if they wanted to do so. ‘Ancient policy was violent,’ he says, ‘and contrary to the more natural and usual course of things. It is well known with what peculiar laws SPARTA was governed, and what a prodigy that republic is justly esteemed by every one, who has considered human nature as it has displayed itself in other nations, and other ages. Were the testimony of history less positive and circumstantial, such a government would

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appear a mere philosophical whim or fiction, and impossible ever to be reduced to practice.’42 Further, while Hume concedes these ‘peculiar laws’ succeeded in distorting the people’s natural desire for ease and comfort, he thinks the republic’s military strength had nothing to do with the superior virility supposedly promoted by such austerity. The correct explanation has to do rather with the more mundane principles of supply and demand. The citizens’ self-abnegating lifestyles depressed overall consumer demand sufficiently to allow Sparta to depend on what was effectively a slave economy, freeing the free citizens for military service. He says: ‘The HELOTES were the labourers: The SPARTANS were the soldiers or gentlemen. It is evident, that the labour of the HELOTES could not have maintained so great a number of SPARTANS, had these latter lived in ease and delicacy, and given employment to a great variety of trades and manufactures.’43 What Spartan austerity actually explains is how a small agricultural economy could support a relatively large fighting force. Sparta was thus a perfect storm of peculiar laws, demographics, and luck. Any attempt to imitate Sparta would require a set of peculiar laws that might or might not succeed in curbing people’s natural appetite for comfort. ‘The less natural any set of principles are,’ Hume warns, ‘which support a particular society, the more difficulty will a legislator meet with in raising and cultivating them.’44 It would further require a relatively small population of fighting citizens and a relatively large population of slaves or other labourers to support them. Not only were the policies of Sparta anomalous in their success, they were also unnecessary and suboptimal means of attaining their goal, of increasing the military might of a state. ‘Though the want of trade and manufactures, among a free and very martial people, may sometimes have no other effect than to render the public more powerful,’ Hume says, ‘it is certain, that, in the common course of human affairs, it will have a quite contrary tendency.’45 In other words, the poverty of citizens normally weakens the state, just as their wealth normally strengthens it. ‘According to the most natural course of things,’ he says, ‘industry and arts and trade encrease the power of the sovereign as well as the happiness of the subjects.’46 To illustrate why this is so, Hume constructs a kind of case study of a (more typical) country where ‘manufactures and mechanic arts are not cultivated,’ and where the economy is therefore entirely agricultural, but where no slave-army of helots serves the needs of soldiers. Overall

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output is so low that available labour must be expended just producing necessities; luxury goods can be neither made at home nor imported from abroad. Such a country finds itself in a kind of proverty trap that depresses the overall productive capacity of the economy. Since luxury goods are not available as a reward for surplus production, people ‘have no temptation ... to encrease their skill and industry.’ The result is that ‘a habit of indolence prevails.’47 Given this persistent economic stagnation, economic output remains insufficient to support the military. The army remains both small, because agricultural production remains labour-intensive and thus leaves no idle hands for fighting, and hungry, because no surplus is created to feed those soldiers there are. The army either seeks out pointless foreign conquest simply to support itself, or else ‘disband[s] for want of subsistence’ – leaving the nation undefended.48 The attempt to duplicate Sparta’s military might by emulating its austerity therefore proves self-defeating. Now look at the contrary case, ‘where a nation abounds in manufactures and mechanic arts.’ The availability of luxury goods (that is, those produced by ‘manufacture,’ or in other words non-agricultural industry) stimulates the desire for them among agricultural workers, which leads them to ‘redouble their industry and attention.’ An agricultural surplus is thus created which ‘in times of peace and tranquillity ... goes to the maintenance of manufacturers [i.e., non-agricultural labourers], and the improvers of liberal arts.’49 Because output per worker in the agricultural sector is increasing, the industrial labour force – the workers employed producing ‘manufactures’ – can be expanded at its expense. In time of war, these industrial workers can safely be drafted into the military without shrinking the supply of ‘necessaries’ – conceived as mostly agricultural goods. Normally, Hume thinks an actual draft will not be the mechanism the state uses. Rather, it will impose a tax, which shrinks consumption of non-necessary, manufactured goods. Industrial workers therefore join the army voluntarily for lack of other employment. ‘Thus,’ Hume concludes, ‘the greatness of the sovereign and the happiness of the state are, in great measure, united with regard to trade and manufactures ... Trade and industry are really nothing but a stock of labour, which, in times of peace and tranquillity, is employed for the ease and satisfaction of individuals; but in the exigencies of state, may, in part, be turned to public advantage.’50 The increased supply of necessities created by increased agricultural productivity, which is itself the result of the ‘luxurious’ desire for the products of trade and industry, proves sufficiently

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inelastic that it outlasts the disappearance of the surplus goods that originally stimulated it. The former producers of these luxury goods can continue to live off this surplus of necessities even though they are now serving in the military rather than in the luxury-producing sectors. Hume’s response to the effeminacy argument may be summarized as this: the citizens’ martial virtue or lack thereof (in other words their ‘effeminacy’) is not a key or even a relevant variable, either in the normal course of affairs or even in the exceptional Spartan case. In the Spartan case, the key factor was the legal limitations placed on consumption, which (due to their rather surprising success) allowed demand to be met by a limited slave population, leaving the entire body of free citizens as surplus hands available for military service. During the more normal course of affairs, the key factor is the creation of a surplus adequate to supply the military in time of need. Such a surplus can only be created as the result of the people’s ‘luxury.’ This means the real threat to the state is in fact the austerity that the civic moralists call virtue, which leaves no surplus production to supply the military, nor surplus labourers to serve in it. Hume agrees with the civic moralists, then, that the state should be defended by a citizen militia, mobilized only during times of war. He says that ‘without a militia, it is in vain to think that any free government will ever have security or stability.’51 He says that during the time of James I, ‘the public was entirely free from the danger and expence of a standing army.’52 Outlining the effects of American colonization and the riches that came with it, he says: ‘In most nations, the kings, finding arms to be dropped by the barons, who could no longer endure their former rude manner of life, established standing armies, and subdued the liberties of their kingdoms.’53 Indeed, Hume was a member of the Poker Club, which was formed in Scotland by his friends John Home and Adam Ferguson, among others, to advocate for the establishment of a Scottish militia. In his ‘Idea of a Perfect Commonwealth,’ he makes one suggestion to improve on the Swiss model of the citizen militia, which he wants to adopt: ‘that an army of 20,000 men be annually drawn out by rotation, paid and encamped during six weeks in summer; that the duty of a camp may not be altogether unknown.’54 The crux of his dispute with the civic moralists is on the effects of society on the citizens who must serve.55 The civic moralists would insist that Hume’s civilized militia, softened by their luxurious pursuits, would lack the necessary courage. Hume is aware that the issue of courage is a central one if he is to rede-

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fine our understanding of virtue. He told Hutcheson: ‘Virtus signify’d chiefly Courage among the Romans.’56 And he concedes that courage is indeed characteristic of barbarous societies, of which he certainly would consider Sparta to be one. ‘It is indeed observable,’ he says, ‘that, among all uncultivated nations, who have not, as yet, had full experience of the advantages attending beneficence, justice, and the social virtues, courage is the predominant excellence; what is most celebrated by poets, recommended by parents and instructors, and admired by the public in general.’57 He describes Henry VI’s wife Queen Margaret as ‘endowed with the courage, of that barbarous age, in which she lived.’58 Hume denies, however, that this quality alone suffices to make barbarous societies more formidable militarily. Civilized societies have their own proper virtue, honour, and the sense of duty that goes with it that more than counterbalances barbarian courage. ‘Among the generality of men, educated in regular, civilized societies,’ he says, ‘the sentiments of shame, duty, honour, have considerable authority, and serve to counterbalance and direct the motives, derived from private advantage.’59 Hume says that courage is ‘precarious’ in barbarous societies, as it depends on anger and the turbulent passions. Honour is a more steady and reliable principle, one which is cultivated by both industry and knowledge. ‘Nor need we fear,’ Hume says, that men, by losing their ferocity, will lose their martial spirit, or become less undaunted and vigorous in defence of their country or their liberty. The arts have no such effect in enervating either the mind or body. On the contrary, industry, their inseparable attendant, adds new force to both. And if anger, which is said to be the whetstone of courage, loses somewhat of its asperity, by politeness and refinement; a sense of honour, which is a stronger, more constant, and more governable principle, acquires fresh vigour by that elevation of genius which arises from knowledge and a good education. Add to this, that courage can neither have any duration, nor be of any use, when not accompanied with discipline and martial skill, which are seldom found among a barbarous people.60

The courage that comes from honour is, for Hume, more steady because it is linked to our attachment to the rules and institutions governing society and to our desire to be part of that society. He thinks people have a natural sentiment of ‘approbation and blame’ which is fostered in childhood and which ties us to these rules and institutions.61 We seek the praise of those around us, and we know that the way to

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earn this praise is to cultivate our reputation: There is nothing which touches us more nearly than our reputation, and nothing on which our reputation more depends than our conduct with relation to the property of others. For this reason, every one who has any regard to his character, or who intends to live on good terms with mankind, must fix an inviolable law to himself, never, by any temptation, to be induced to violate those principles which are essential to a man of probity and honour.62

Barbarous courage, by contrast, is narrowly self-serving and actually impedes our sociable sentiments. ‘The SCYTHIANS,’ he says, ‘according to HERODOTUS, after scalping their enemies, dressed the skin like leather, and used it as a towel; and whoever had the most of those towels was most esteemed among them. So much had martial bravery, in that nation, as well as in many others, destroyed the sentiments of humanity: a virtue surely much more useful and engaging.’63 Hume thinks on balance, then, it is modern, commercial nations that will have the edge when it comes to military strength: It is observable, that, as the old ROMANS, by applying themselves solely to war, were almost the only uncivilized people that ever possessed military discipline; so the modern ITALIANS are the only civilized people, among EUROPEANS, that ever wanted courage and a martial spirit. Those who would ascribe this effeminacy of the ITALIANS to their luxury, or politeness, or application to the arts, need but consider the FRENCH and ENGLISH, whose bravery is as uncontestable, as their love for the arts, and their assiduity in commerce.64

Hume does not discuss Sparta’s decline. The republic’s army, weakened by years of fighting internal revolts, was ultimately crushed by Antipater, one of Alexander’s generals. Its power revived somewhat before Rome began to assume control of the Greek peninsula, but like the rest of the Hellenic world it was eventually incorporated into the Roman orbit. 4. Athens In 1767, shortly after publishing his work An Essay on Civil Society, Hume’s friend Adam Ferguson wrote him: ‘I know that you are an

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admirer of the Athenians as well as Mrs. Montagu, and if I were to plead the cause of Sparta against her I must appeal elsewhere.’65 It is no surprise that Ferguson did not consider Hume a champion of Sparta. However, his suggestion that Hume was an admirer of Athens requires some explanation. Like most of his contemporaries, Hume expressed disdain for the Athenian political system. Athenian democracy, which he says was ‘the most extensive democracy, that we read of in history,’66 was ‘such a tumultuous government as we can scarcely form a notion of in the present age of the world. The whole collective body of the people voted in every law, without any limitation of property, without any distinction of rank, without controul from any magistracy or senate; and consequently without regard to order, justice, or prudence.’67 Ferguson provides us with the key to one possible solution by mentioning, as Hume’s anti-Spartan ally, Elizabeth Montagu. Montagu, known as ‘the modern Aspasia,’ was the leading figure in London’s ‘blue-stocking’ set. (Aspasia was a powerful Athenian courtesan, mistress of Pericles, who entertained many of Athens’s most prominent citizens.) She modelled her salons on the Athenian symposia. In her poem ‘The Bas Bleu; or, Conversation,’ Hannah More calls Aspasia’s parties ‘the first Bas-bleu ... where Socrates unbending sat, / With Alcibiades in chat; / And Pericles vouchsafed to mix / Taste, wit, and mirth, with politics.’68 Montagu and the blue stockings were not, however, defenders of Athenian-style democracy. They were in fact notably conservative (Edmund Burke, Samuel Johnson, and James Beattie were all members of the circle). Indeed, only the most radical of Hume’s contemporaries idealized Athens for its politics rather than its culture.69 Many people considered Athenian freedom to have actually been a threat to the city’s enlightened culture, with the execution of Socrates providing the key evidence. While Hume does not discuss the ancient symposia in any detail, it is reasonable to surmise that his view is close to Montagu’s – that they are to be admired for providing a model for free interaction and debate among equals, in an informal social setting. He calls the Athenians ‘remarkable for ingenuity, politeness and gaiety.’70 Hume thinks the nature of the Athenian government directly accounts for its fall. He says it is ‘easy to point out those defects in the original constitution’ that ended in its ‘ruin.’71 This constitution, traditionally attributed to the law-giver Solon, ‘excluded no freeman from votes or elections.’72 Though Solon had originally placed a property qualification on certain public offices, by giving total power to the people, there was no mechanism to sustain such restrictions, and the

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assembly quickly repealed them.73 The city was thus unable to develop what Hume calls a ‘well-tempered Aristocrac[y]’ to balance the democratic power,74 with the ultimate result that ‘property was rendered very precarious.’75 The people acted as the supreme court even in criminal cases and used the power to prosecute wealthy citizens. Hume says it was ‘a maxim of the ATHENIAN people, that, whenever they wanted money, they put to death some of the rich citizens as well as strangers, for the sake of the forfeiture.’76 Hume does not directly trace the path leading from Athens’s ‘turbulent, factious, tyrannical Democracy’ to its ruin, taking the chain of causation as obvious.77 A modern reader can certainly be forgiven for wishing he had completed his account. One possibility is the following. Hume thinks the protection of property is the most basic task of government, and once it fails in even this, he thinks people will cease to feel any sense of obedience. They will welcome anyone who can restore order, either a native tyrant or foreign invader. In the centuries after its golden age, Athens suffered from a series of both tyrants and invaders, till finally, like the rest of the Greek world, it fell under the sway of Rome. It is interesting to note, however, that Hume calls Athens one of the ‘most commercial nations’ in history, a fact which in his mind may have explained how it rose to power in the first place.78 He further suggests that the city’s free government may be the reason commerce ‘fixed its seat’ there.79 These comments allow us to add a significant nuance to Hume’s otherwise conventional account of Athens. The freedom the city gave its citizens appears now not as an unmitigated evil but rather as a mixed blessing. Without it the state could never have acquired the wealth that allowed it to reached the heights it did. But because this freedom was without any checks, the city-state was destined to fail. 5. Rome and Corruption As we have seen, Hume thinks his civic moralist opponents take Rome, at least in its republican incarnation, as proof of the corruption argument. When he makes his claim that ‘severe moralists ... mistook the cause of the disorders in the ROMAN state, and ascribed to luxury and the arts, what really proceeded from an ill modelled government, and the unlimited extent of conquests,’ he continues: ‘Refinement on the pleasures and conveniencies of life has no natural tendency to beget venality and corruption.’80

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It is interesting to note Hume’s observation that these moralists blame not just luxury but also ‘the arts.’ Of course he too thinks luxury and the arts are intimately linked, but in his opinion, this is one of the things that makes luxury so desirable. For Hume, the social and intellectual life of Rome, during the late republican and early imperial period, provides the ideal of a sociable republic of letters. ‘Almost all improvements of the human mind,’ he says, ‘had reached nearly to their state of perfection about the age of Augustus.’ He praises ‘those days of ingenuous and candid liberty’ when writers ‘address[ed] their compositions only to friends and equals, and ... render[ed] their dedications monuments of regard and affection, not of servility and flattery.’ In the preface to his 1757 collection Four Dissertations, which he dedicates to his friend John Home, he writes: [An] instance of true liberty, of which ancient times can alone afford us an example, is the liberty of thought, which engaged men of letters, however different in their abstract opinions, to maintain a mutual friendship and regard; and never to quarrel about principles, while they agreed in inclinations and manners. Science was the subject of disputation, never of animosity. Cicero, an academic, addressed his philosophical treatises, sometimes to Brutus, a Stoic; sometimes to Atticus, an epicurean.81

Because Hume thinks this is just the sort of society we should strive to re-create, it is of crucial importance to show there was no ‘natural tendency’ that led from this society’s refinement to its destruction. According to Hume, the story of Rome is this. It was originally ruled by absolute monarchs (the Tarquins). However, the tyrants were expelled and a legislature was established ‘by the authority of SERVIUS TULLIUS.’ This legislature, the ‘comitia centuriata ... rendered the government, for some time, very aristocratical. But the people, having numbers and force on their side, and being elated with frequent conquests and victories in their foreign wars, always prevailed when pushed to extremity, and first extorted from the senate the magistracy of the tribunes, and next the legislative power of the comitia tributa.’82 The government evolved by a series of sharp steps from a monarchy, to an aristocracy, to a mixed constitution. This third stage, which Hume dates precisely, was close to an ideal balance of democracy and aristocracy – though it proved a tenuous one. He says that ‘the most illustrious period of the ROMAN history, considered in a political view, is that between the beginning of the first and

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end of the last PUNIC war; the due balance between the nobility and the people being then fixed by the contests of the tribunes, and not being yet lost by the extent of conquests.’83 The legislative power was at this time divided between the comitia centuriata and the comitia tributa. By a complex process of weighted voting, ‘the interest of the Aristocracy was predominant in the first legislature; that of the Democracy in the second: The one could always destroy what the other had established: Nay, the one, by a sudden and unforeseen motion, might take the start of the other, and totally annihilate its rival, by a vote, which, from the nature of the constitution, had the full authority of a law. But no such contest is observed in the history of ROME: No instance of a quarrel between these two legislatures; though many between the parties that governed in each.’84 There is so far nothing in this account the civic moralist need disagree with. This account of Rome provides a perfect study of how a powerful republic can be created through martial virtue and altruistic governance. But Hume departs sharply from the civic moralist account in his explanation of how this felicitous, but highly precarious, balance of power was preserved. Because the lower house could at any time overwhelm the upper, he thinks the only thing that prevented Rome descending into Athenian-style mob rule was the power the nobles continued to exercise ‘by intrigue, by influence, by money, by combination, and by the respect paid to their character.’85 For many civic moralists, a prime source of the luxury that corrupts legislators comes from the wealth of the aristocracy and the monarchy, who use it to influence decisions in their own favour and ultimately put power in their own hands, at the expense of the overall public interest. On the contrary, Hume says: ‘POLYBIUS justly esteems the pecuniary influence of the senate and censors to be one of the regular and constitutional weights, which preserved the balance of the ROMAN government.’86 In other words, Hume thinks one of the very processes that should have corrupted and weakened Rome and destroyed its government was exactly what allowed it to survive and prosper. He does not hesitate to draw the lesson for Britain when he addresses the influence the crown obtains by distributing public offices to members of the commons. ‘We may,’ he says, ‘therefore, give to this influence what name we please; we may call it by the invidious appellations of corruption and dependence; but some degree and some kind of it are inseparable from the very nature of the constitution, and necessary to the preservation of our mixed government.’87 Rome’s decline had nothing to do

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with the lack of virtue among its citizens or their love of luxury. Like Athens, Rome owed its ‘ruin’ not to the corruptions of particular men but to ‘defects in the original constitution.’88 So what were these? Hume thinks the Roman republic was destroyed when its delicate constitutional balance was upset in the direction of democracy. The cause was Rome’s appetite for foreign adventures. Because the people of conquered territories became full imperial citizens, their sheer numbers overwhelmed the city’s native aristocracy, such that the tenuous brake this latter class exercised over the democratic process was lost. ‘When the people,’ he says, by success and conquest, had become very numerous, and had spread themselves to a great distance from the capital, the city-tribes, though the most contemptible, carried almost every vote ... They became every day more licentious, and the CAMPUS MARTIUS was a perpetual scene of tumult and sedition: Armed slaves were introduced among these rascally citizens; so that the whole government fell into anarchy ... Such are the effects of democracy without a representative.89

Martial virtue, therefore, can be as dangerous as corruption can be beneficial. A large citizen army, motivated by the desire for military glory, naturally seeks out battle, and as its existence depresses the state’s productive capacity, its imperial appetite is given added impetus by the need to support itself. Once the descent into anarchy began, Hume thinks the decline could not be stopped. Because it had become impossible for the will of the mob to be checked through the established processes of government, ‘the greatest happiness, which the ROMANS could look for, was the despotic power of the CAESARS.’90 He expresses token admiration for Brutus and the rest of ‘that noble Band, who struck the GOD-like Stroke for the Liberty of Rome’ in trying to ward off despotism and preserve the republic.91 Their actions were, however, pointless, given the inevitability of the state’s collapse. ‘The virtue and good intentions of CATO and BRUTUS are highly laudable;’ Hume says, ‘but, to what purpose did their zeal serve? Only to hasten the fatal period of the ROMAN government, and render its convulsions and dying agonies more violent and painful.’92 The fatal point had been reached. Once democracy is unbounded, law is no longer respected nor property secure. ‘All capital punishments were abolished,’ Hume says. ‘However criminal, or, what is

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more, however dangerous any citizen might be, he could not regularly be punished otherwise than by banishment: And it became necessary, in the revolutions of party, to draw the sword of private vengeance; nor was it easy, when laws were once violated, to set bounds to these sanguinary proceedings.’93 Such anarchy governs the conduct even of men as great as Brutus and Cicero. Brutus would have been compelled to put to death the rest of the triumverate for his own security, had his conspiracy succeeded, just as Cicero (a special hero of Hume’s) was forced to be similarly brutal in putting down an earlier rebellion. ‘And if,’ Hume says, ‘he [i.e., Cicero] moderated his executions, did it not proceed, either from the clemency of his temper, or the conjunctures of the times? A wretched security in a government which pretends to laws and liberty!’94 So much, then, for the Republic. But was this necessarily such a disaster? Hume says that ‘Absolute monarchy ... is the easiest death, the true Euthanasia of the BRITISH constitution,’95 and we might wonder if he thinks the same of Rome. He certainly thinks that the fall of the Republic, which took with it the great free-thinkers Cicero and Brutus (both were killed in its dying agonies), did not automatically herald the destruction of Rome’s high culture. He says that law, which is all that is required to preserve the arts and sciences once they have begun to thrive, ‘when it has once taken root, is a hardy plant, which will scarcely ever perish through the ill culture of men, or the rigour of the seasons.’96 Augustus and his successors therefore needed only to uphold the laws established during the republic’s stable period to maintain the state’s cultural life. ‘What is profitable to every mortal, and in common life,’ Hume says pointedly, ‘when once discovered, can scarcely fall into oblivion, but by the total subversion of society, and by such furious inundations of barbarous invaders, as obliterate all memory of former arts and civility.’97 Of course, it is just this ‘total subversion of society’ by outside invaders that came to pass. To explain how it happened, Hume once again looks to constitutional defects – this time in the new, imperial government. Referring to the post-Augustan emperors, Hume says that nothing can ‘be more unhappy than a despotic government of this kind; where the succession is disjointed and irregular, and must be determined, on every vacancy, by force or election.’98 A regular process of succession, whatever it may be, is the most basic guarantee of stable government in a monarchy. As Hume says in the Treatise: ‘The interest of a nation requires, that the succession to the crown shou’d be fix’d one

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way or other.’99 As Rome’s republican history left it without any tradition for fixing a monarchic succession, there was no principle that could appeal in any compelling way to people’s imaginations. The result, predictably, was chaos. Hume says that after Augustus, there never was, in one family, any long regular succession; but that their line of princes was continually broken, either by private assassinations or public rebellions. The praetorian bands, on the failure of every family, set up one emperor; the legions in the East a second; those in GERMANY, perhaps, a third: And the sword alone could decide the controversy.100

While Hume makes clear that he thinks a hereditary monarch is generally preferable to an elective one, the most important thing is that there be some stable principle of succession such that the government can be preserved through time.101 ‘The condition of the people, in that mighty monarchy,’ Hume says, still speaking of Rome, ‘was to be lamented, not because the choice of the emperor was never left to them; for that was impracticable: But because they never fell under any succession of masters, who might regularly follow each other. As to the violence and wars and bloodshed, occasioned by every new settlement; these were not blameable, because they were inevitable.’102 Contrary to the moralistic young Hume, then, who believed that ‘’Tis impossible for a polite Nation, by slow Degrees, & by an ill constituted Government alone to become altogether barbarous,’ the mature Hume now informs us that just such an ill-constituted government – two different ones, in fact – was sufficient to bring down the most polite, as well as the most powerful, nation the world had known.

5 The Case of Britain

Hume spent many years studying and writing about the history of Britain. It is by far his most detailed case study, and not surprisingly, as he tells the story, it illustrates exactly the sort of reinforcing cycle of structural economic change and cultural development that he predicts most societies will follow. Hume thinks that, while it was far from perfect, Britain had become, by his day, the model of a civilized society. We have already seen that for Hume the ideal constitution balances the principle of liberty and authority. ‘In all governments,’ he says, ‘there is a perpetual intestine struggle, open or secret, between AUTHORITY and LIBERTY; and neither of them can ever absolutely prevail in the contest.’1 He thinks that ‘the best of all governments’ would be one that had ‘both the tranquillity attending kingly power, and the moderation and liberty of popular assemblies.’2 In fact, it is the government of Hanoverian England that he thinks has come closest to this ideal. Britain, he says, has ‘happily established the most perfect and most accurate system of liberty that was ever found compatible with government.’3 It is therefore interesting for our purpose to trace how Hume thinks it developed from its earlier, barbarous state. 1. The Barbarous Ages Hume believes that in Britain the two principles of liberty and authority are each fortuitously rooted in one of the nation’s two founding political traditions – authority originating in the Norman conquest, liberty the legacy of Saxon Britain (or at least it was the Saxon legacy in the minds of many Britons). He accepts, with some caution, an account of the Germanic peoples that is rooted in Tacitus’s Germania and that was

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endorsed by Montesquieu (among others). This Tacitean picture portrays the northerners as a race enamoured of liberty. ‘OF ALL THE BARBAROUS NATIONS, known either in ancient or modern times,’ Hume says, ‘the Germans seem to have been the most distinguished both by their manners and political institutions, and to have carried to the highest pitch the virtues of valour and love of liberty.’4 This Germanic trait came to the island with the Saxon invaders. ‘The Saxons, who subdued Britain,’ he says, ‘as they enjoyed great liberty in their own country, obstinately retained that invaluable possession in their new settlement; and they imported into this island the same principles of independence, which they had inherited from their ancestors.’5 These principles of independence excluded the feudal system the Normans would later impose. ‘As the Saxons expelled or almost entirely destroyed the ancient Britons,’ Hume says, ‘they planted themselves in this island on the same footing with their ancestors in Germany, and found no occasion for the feudal institutions.’6 In contrast with those partisans of the common law who find its roots in ‘time out of mind,’ Hume thinks that English law begins, for all intents and purposes, with the Norman invasion, as William imposed a system of property and government that replaced that of the Saxons which preceded it.7 ‘William was obliged,’ he says, ‘in the new distribution of land, to copy the tenures, which were now become universal on the continent. England of a sudden became a feudal kingdom.’8 William, as conqueror, took possession of the entire land. ‘According to the principles of the feudal law,’ Hume says, ‘the king was the supreme lord of the landed property: All possessors, who enjoyed the fruits or revenue of any part of it, held those privileges, either mediately or immediately, of him; and their property was conceived to be, in some degree, conditional.’9 However, as is the case in all feudal societies, the king was obliged to share out the spoils among those who had fought with him and who continued to provide him with the military support he needed to rule. As Hume says: ‘He divided all the lands of England, with very few exceptions, beside the royal demesnes, into baronies; and he conferred these, with the reservation of stated services and payments, on the most considerable of his adventurers.’10 Hume thinks Norman feudalism transformed the nature of the society – he calls it a ‘revolution of principles’ – replacing the basic principle (which in the Treatise of Human Nature has the status of a ‘law of nature’) that people own their property and can expect to be protected by government, with a very different one, that property can only be

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held by a vassal as a ‘military benefice’ from a lord.11 As a result of this relationship of dependence, in a feudal system the barons hold ‘the civil jurisdiction within themselves.’12 They operate the courts within their domain, and they use their control of the judicial power to protect or punish their military vassals according to their whim. The rest of the population is divided between serfs, who ‘lived in a state of absolute slavery or villainage,’ and others, who ‘paid their rent in services, which were in a great measure arbitrary; and they could expect no redress of injuries, in a court of barony, from men, who thought they had a right to oppress and tyrannize over them.’13 Feudal society in this early, pure form is utterly barbarous. Hume is decidedly ambivalent about the long-term effects of the conquest, however. Despite their oppressive political system, the Normans nevertheless opened England up to foreign influence, and thus began the process of refinement that would eventually undermine the political system. ‘As the king and all the English barons were of French extraction,’ he says, ‘the manners of that people acquired the ascendant, and were regarded as the models of imitation. All foreign improvements, therefore, such as they were, in literature and politeness, in laws and arts, seem now to have been, in a good measure, transplanted into England.’14 Hume thinks another source of foreign influence came by way of church clerics, who learned ‘the Roman jurisprudence’ through their training in canon law. Though the churchmen realized the English laity were hostile to such foreign influences, they nevertheless saw to it that ‘a great part of it was secretly transferred into the practice of the courts of justice, and the imitation of their neighbours made the English gradually endeavour to raise their own law from its original state of rudeness and imperfection.’15 Here again, a seeming support of barbarism (medieval Christianity) is nevertheless also a roundabout source of civilization. Hume is aware that during the Norman period and beyond, the English continued to believe themselves possessed of a unique and ancient set of laws, which they tried to preserve. In fact, the Normans had conceded as much to grant themselves legitimacy, and English kings promised in their coronation oath, up till 1688, to uphold the laws of ‘St Edward.’16 Anti-royalists equally drew on the myth of Edward, claiming they desired only to see his laws restored. But Hume questions whether any such laws really were passed down intact through the centuries, let alone remained in practice. ‘What these laws were of Edward the Confessor, which the English, every reign during a century and a half, desire so passionately to have restored,’ he says,

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is much disputed by antiquaries, and our ignorance of them seems one of the greatest defects in the ancient English history. The collection of laws in Wilkins, which pass under the name of Edward, are plainly a posterior and an ignorant compilation. Those to be found in Ingulf are genuine; but so imperfect, and contain so few clauses favourable to the subject, that we see no great reason for their contending for them so vehemently. It is probable, that the English meant the common law, as it prevailed during the reign of Edward; which we may conjecture to have been more indulgent to liberty than the Norman institutions. The most material articles of it were afterwards comprehended in Magna Charta.17

It is worth noticing that the verb Hume uses is ‘conjecture.’ The proposition that the Saxon law was more indulgent to liberty is a matter of speculation, as is the question of whether there are any continuities between it and later law. But both questions are rendered moot by the fact that the ‘most material articles’ of the Saxon common law were ‘comprehended in Magna Charta.’ 2. The Charter, the New World, and the Rise of the Commons Hume describes the process by which the Saxon ‘indulgence to liberty’ came to be incorporated into the law of post-conquest England through the imposition of this ‘Great Charter’ on King John by the nation’s most powerful nobles. Magna Carta was the culmination of an evolution in the feudal government – and specifically, in the role of the nobles. Hume thinks the upper aristocracy came to reconceive of their role partly thanks to a tradition of aboriginal liberty – but, again, thanks also to continental influence. The Norman barons, he says, aspired to the same liberty and independance, which they saw enjoyed by their brethren on the continent, and desired to restrain those exorbitant prerogatives and arbitrary practices, which the necessities of war and the violence of conquest had at first obliged them to indulge in their monarch. That memory also of a more equal government under the Saxon princes, which remained with the English, diffused still farther the spirit of liberty, and made the barons both desirous of more independance to themselves, and willing to indulge it to the people.18

Describing how the Charter took its final form, Hume says that at first its provisions were ‘calculated for the interest of the barons.’ But these aristocrats, he says,

106 David Hume’s Political Theory were necessitated to insert in it other clauses of a more extensive and more beneficent nature: They could not expect the concurrence of the people, without comprehending, together with their own, the interests of inferior ranks of men; and all provisions, which the barons, for their own sake, were obliged to make, in order to ensure the free and equitable administration of justice, tended directly to the benefit of the whole community.19

These provisions principally concerned the protection of property and the equitable distribution of justice. They guaranteed that ‘the goods of every freeman shall be disposed of according to his will.’ Also: ‘The king’s courts of justice ... shall be open to every one; and justice shall no longer be sold, refused, or delayed by them.’ Everyone was to be guaranteed due process and a fair trial. The barons were bound to guarantee the same legal protections to their vassals that the king guaranteed to them. These provisions, Hume says, involve all the chief outlines of a legal government, and provide for the equal distribution of justice, and free enjoyment of property; the great objects for which political society was at first founded by men, which the people have a perpetual and unalienable right to recal, and which no time, nor precedent, nor statute, nor positive institution, ought to deter them from keeping ever uppermost in their thoughts and attention ... We may, now, from the tenor of this charter, conjecture what those laws were of king Edward, which the English nation, during so many generations, still desired, with such an obstinate perseverance, to have recalled and established. They were chiefly these latter articles of Magna Charta; and the barons, who, at the beginning of these commotions, demanded the revival of the Saxon laws, undoubtedly thought, that they had sufficiently satisfied the people, by procuring them this concession, which comprehended the principal objects, to which they had so long aspired.20

Again, Hume qualifies as a ‘conjecture’ the view that the beneficent articles of the Charter mirror the laws of Edward the Confessor. There is in any case nothing mysterious or especially original about them. Hume’s account of Magna Carta suggests that the portion of the common law of the Saxons that has been preserved by later generations, if anything has, is little more than a reflection of the fundamental laws of nature that he insists must govern any civil society. He says that as a result of the Charter, ‘government approached a little nearer to that end, for which it was originally instituted, the distribution of justice,

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and the equal protection of the citizens.’21 When Hume says that the useful provisions of the Charter are equivalent to ‘the chief outlines of a legal government, [providing] for the equal distribution of justice, and free enjoyment of property; the great objects for which political society was at first founded by men,’ he clearly means to echo the view he offers in Book III, Part 2 of the Treatise, ‘Of justice and injustice.’ There, Hume spells out his ‘three fundamental laws of nature’: that of the stability of possession, of its transference by consent, and of the performance of promises. It is on the strict observance of those three laws that the peace and security of human society entirely depend; nor is there any possibility of establishing a good correspondence among men, where these are neglected. Society is absolutely necessary for the well-being of men; and these are as necessary to the support of society.’22

This would explain why Hume thinks it is reasonable, even in the absence of direct evidence, to conjecture that the articles of Magna Carta in some way reflect the Saxon laws. Hume thinks these pre-conquest laws were themselves essentially an expression of the basic principles of equity that find expression in the laws of any society at the early stages of its development. This also should remind us, however, that the Charter alone is not going to be sufficient to civilize England. By its absolute tyranny, the Norman government was in one sense a step backwards in the development of civilization. By reintroducing basic property rights, the Charter brought England back to the point where it could begin to develop general laws. It did not of itself deliver such laws. Once the process was underway, however, further developments were not long in coming. The Charter was followed soon after, under Henry III, by a second charter, giving people right of access in the royal forests. And shortly thereafter came the reign of Edward I, whom as we have seen, Hume praises for ‘the correction, extension, amendment, and establishment of the laws.’23 And it was the reign of Edward I that set in motion the processes that would, according to Hume, ultimately undermine feudalism. Hume thinks feudalism had two components: its system of property ownership (all property is held as a vassalage) and the military system that goes with it, whereby a vassal owes military service to his lord. Hume calls ‘the military part of the feudal system ... the most essential circumstance of it,’ and it was this that now began to collapse.24 Tired of

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depending on the great barons to raise fighting forces in times of war – a process that shrinking estates made less effective – the crown had by this time begun to seek revenue rather than service, to raise an army of its own. Edward’s wars with France brought the beginnings of representation, as he recognized the only way to raise the necessary revenue was by a formalized process of assembling the great men of the nation. ‘When the multiplied necessities of the crown produced a greater avidity for supply,’ Hume says, ‘the king, whose prerogative entitled him to exact it, found that he had not power sufficient to enforce his edicts, and that it was necessary, before he imposed taxes, to smooth the way for his demand, and to obtain the previous consent of the boroughs, by solicitations, remonstrances, and authority.’ It was a supremely inefficient system, however, to seek out the consent of each borough individually. ‘Edward became sensible, that the most expeditious way of obtaining supply, was to assemble the deputies of all the boroughs, to lay before them the necessities of the state, to discuss the matter in their presence, and to require their consent to the demands of their sovereign.’25 It is in such workaday political pragmatism, then, rather than in the legendary mists of Saxon history (as many Whigs suggested), that Parliament originates. Hume thinks the commons separated from the Lords ‘gradually,’ as the estates of the ‘lesser barons’ were divided through the generations and what came to be called the gentry emerged as ‘a distinct order in the state.’ Hume says that after William’s conquest, the ‘exorbitant estates, conferred by the Norman on his barons and chieftains, remained not long entire and unimpaired. The landed property was gradually shared out into more hands; and those immense baronies were divided, either by provisions to younger children, by partitions among co-heirs, by sale, or by escheating to the king, who gratified a great number of his courtiers, by dealing them out among them in smaller portions.’26 This process very slowly began to erode the system of ‘birth, titles and place’ that had determined the allocation of power, and initiated the set of changes by which ‘the country gentlemen made ... no scruple of appearing as deputies from the buroughs.’27 This process happened more or less simultaneously with a second one. ‘The growth of commerce, meanwhile,’ Hume says, ‘augmented the private wealth and consideration of the burgesses’ and the commercial class became indistinguishable in wealth and status from the gentry. As a result, the two fused together as ‘the third estate.’ ‘The distinction between the members was entirely lost,’ Hume says, ‘and

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the lower house acquired thence a great accession of weight and importance in the kingdom.’28 England had to endure a long period of turbulence, however, before the new political system stabilized into a free and civilized government. With the higher barons flush with their newfound liberties, the nation oscillated between royal tyranny, where the monarch was strong, and aristocratic rebellion, where he was weak – both of which are ‘equally hurtful to the people.’29 Hume says that feudalism is a miserable state of affairs, not because power is monopolized by the king, but because it is shared unpredictably between the king and the lords of the realm. It was only when feudalism finally broke down completely that England was put truly on the path to civilization.30 The stage was set for this final collapse by the continued development of commerce, which accelerated dramatically after the discovery of the new world. Hume says in volume 5 of the History: ‘After the power of alienations, as well as the encrease of commerce had thrown the balance of property into the hands of the commons, the situation of affairs and the dispositions of men became susceptible of a more regular plan of liberty; and the laws were not supported singly by the authority of the sovereign.’31 This change is a monumental one. It marks the point at which Britain was transformed from a barbarous to a civilized country. The focus on commerce should not surprise us, of course. It has been the argument of this book that Hume thinks the advance of commerce and trade, often brought about by chance circumstances, are the essential prerequisite to the civilizing of government. In the case of England, the chance event was the ‘discovery’ and colonization of America. Hume says of the voyages of Columbus and de Gama: These great events were attended, with important consequences to all the nations of Europe, even to such as were not immediately concerned in those naval enterprizes. The enlargement of commerce and navigation encreased industry and the arts every where: The nobles dissipated their fortunes in expensive pleasures: Men of an inferior rank both acquired a share in the landed property, and created to themselves a considerable property of a new kind, in stock, commodities, art, credit, and correspondence. In some nations the privileges of the commons encreased, by this encrease of property: In most nations, the kings, finding arms to be dropped by the barons, who could no longer endure their former rude manner of life, established standing armies, and subdued the liberties of their kingdoms: But in all places, the condition of the people, from the

110 David Hume’s Political Theory depression of the petty tyrants, by whom they had formerly been oppressed, rather than governed, received great improvement, and they acquired, if not entire liberty, at least the most considerable advantages of it.32

Hume thinks, in Harringtonian fashion, that Britain was one of those nations where the power of the commons increased thanks to the rise of commerce. The wealth of the ‘third estate’ increased its power and influence in relation both to the lords and to the crown. However, it was a change in the laws, made by men who had little idea what they were doing, that ultimately ended Britain’s feudal period and decisively put it on the path to civilization. 3. The Statute of Alienations Hume says it was ‘the power of alienations, as well as the encrease of commerce’ that threw the balance into the commons. His comment here is no slip of the pen. He emphasizes the importance of ‘the power of alienations’ in two of his essays: ‘Of the Rise and Progress of the Arts and Sciences’ and ‘Of the Protestant Succession.’33 The first of these essays appeared in 1742, a decade before he began work on his History. His most extensive published comment comes in volume 4 of the History, where he says: But the most important law in its consequences, which was enacted during the reign of Henry [VII], was that by which the nobility and gentry acquired a power of breaking the ancient entails, and of alienating their estates. By means of this law, joined to the beginning luxury and refinements of the age, the great fortunes of the barons were gradually dissipated, and the property of the commons encreased in England.34

He identifies the statute in a footnote, ‘4 H. 7. cap. 24,’ and adds: ‘The practice of breaking entails by means of a fine and recovery was introduced in the reign of Edward the IVth; But it was not, properly speaking, law, till the statute of Henry the VIIth; which, by correcting some abuses that attended that practice, gave indirectly a sanction to it.’ Hume told Adam Smith that it was because of the importance of this statute that he chose to start his history with Henry’s reign. He says in a letter to Smith that the ‘Change ... in public Affairs’ brought about by the statute, ‘insensible’ to people at the time, eventually put Britain on its path to revolution.35

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The legal basis of entails has its origins in the reign of Edward I, an enlightened reformer who nevertheless failed in his judgment in this one case: The chief obstacle to the execution of justice in those times was the power of the great barons; and Edward was perfectly qualified, by his character and abilities, for keeping these tyrants in awe, and restraining their illegal practices. This salutary purpose was accordingly the great object of his attention; yet was he imprudently led into a measure which tended to encrease and confirm their dangerous authority. He passed a statute, which, by allowing them to entail their estates, made it impracticable to diminish the property of the great families, and left them every means of encrease and acquisition.36

Hume seems to have noticed Henry VII’s statute, allowing the breaking of entails, thanks to a discussion with Lord Kames. We do not know how Kames became convinced of the statute’s importance, but we can identify two possible sources. The first, which both Hume and Kames certainly read, was Harrington. Harrington’s reference to the statute is, inevitably, given the nature of the book in which it appears, no more than allusive and allegorical: Wherefore it being unlawful in Turkey that any should possess land but the Grand Seignior, the balance is fixed by the law, and that empire firm. Nor, though the kings often sell was the throne of Oceana known to shake, until the statute of alienations broke the pillars, by giving way to the nobility to sell their estates. While Lacedaemon held to the division of land made by Lycurgus, it was immovable; but, breaking that, could stand no longer.37

A somewhat more substantial discussion appears in Ephraim Chambers’s monumental, and widely popular, Cyclopaedia of 1728. This work, modestly described by its author as ‘the best book in [the] universe,’ was hugely influential during the eighteenth century.38 It was this book that Diderot and d’Alembert translated and published before conceiving of their own Encyclopédie. Chambers provides an entry on alienations that includes the following passage: ‘The statue of alienations in Henry the Seventh’s time, had a great effect on the constitution of the kingdom; as among other regulations of that reign, in tended to throw the balance of power more into the hands of the people.’39 Harrington’s and Chambers’s suggestion seems to have been largely

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ignored during the period, till Hume revived it.40 And indeed, if Hume was right about the law, it was so subtle in its operation that it remained unnoticed to many even in Hume’s day. When, during the writing of his History, Hume discussed the matter with his friend the MP Gilbert Elliot, Elliot claimed neither he nor his friends (including, presumably, fellow parliamentarians) could find any statute during Henry’s reign that ‘facilitated the Alienation of Lands, & broke the antient Entails.’ Hume conceded that ‘a man may read that Passage [4 H. VII cap. 24] fifty times, and not find any thing that seems, in the least, to point that way.’41 He said the law operated by a kind of ‘Hocus-Pocus.’ It legalized a bizarre but common contrivance in which the occupier of an entailed estate who wanted to break the entail had only to recognize, in court, a sham claim on the property by a friend, who then donated it back to him ‘free & unencumber’d.’42 Hume explained the ‘very ridiculous’ device thus: You have an entail’d Estate, I suppose, & want to break the Entail: You agree with me that I am to claim the Estate by a sham Title, prior to the first entailer: You confess in Court that my Title is good & valid: The Judges, upon this Confession of the Party, adjudge the Estate to me: Upon which I immediatly restore the Estate to you, free & unencumber'd; & by this Hocus-Pocus the Entail is broke.

Hume says that ‘it is probable’ that Henry VII foresaw, and intended, the immediate effects of the law – to increase the power of the commons at the expense of the barons – ‘because the constant scheme of his policy consisted in depressing the great, and exalting churchmen, lawyers, and men of new families, who were more dependent on him.’43 It was only the more indirect effect on monarchical authority that would have surprised him. Hume says that Henry ‘has acquired more praise, than his institutions, strictly speaking, seem of themselves to deserve, on account of any profound wisdom attending them.’44 4. The Crisis Hume’s account of the history of England might, to use the terminology of Marxism, be divided into its structural and superstructural analysis. The economic changes described above lie at the heart of Hume’s structural analysis. However, as we have seen, Hume thinks the economic structure of society constantly interacts with the superstructure

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of ideas and attitudes. In this case, the growing power of the middle classes led to an increase in the spirit of liberty, which was reflected in the behaviour of the commons. Hume says that by the time of Elizabeth, Parliament had acquired a ‘watchful spirit of liberty.’45 Nevertheless, they also retained a great ‘deference for majesty,’ and it remained the case that ‘sessions of parliament were not usually the twelfth part so long as the vacations,’ a circumstance which left the ministry ‘unlimited and unrestrained.’46 Tudor England had thus achieved a delicate balance that could presumably have continued for some time. The mistake of the Stuart kings was to assert their unlimited power and throw off even the irregular restraints placed upon them. Hume says that the Stuart kings learned the theory of absolute monarchy from the continent and tried to import it to England. By coincidence, this assertion of power came just as religious enthusiasm, which carried its own spirit of liberty, began to catch on among the populace. In recounting the turbulence of the seventeenth century, Hume thinks that the absolutist pretensions of the Stuarts and the religious fanaticism of the people only precipitated a crisis that structural change made inevitable.47 However, the unfolding of the crisis shows that it is rooted not just in the economic changes but also in the progress of civilization and the decreasing tolerance for royal and magisterial discretion. Hume gives a detailed account of the ideas that lay behind the demand by five members for writs of habeas corpus after Charles I imprisoned them and others for failing to vote him loans. He summarizes his view of early English history, when, in the face of the ‘turbulent nobility ... the only means, that could maintain public peace, was the exertion of ... prompt and discretionary powers in the crown.’48 By Charles I’s reign, however, things were very different. It was now when the spirit of liberty was universally diffused, when the principles of government were nearly reduced to a system, when the tempers of men, more civilized, seemed less to require those violent exertions of prerogative, that these five gentlemen above-mentioned, by a noble effort, ventured, in this national cause, to bring the question to a final determination. And the king was astonished to observe, that a power, exercised by his predecessors almost without interruption, was found, upon trial, to be directly opposite to the clearest laws, and supported by few undoubted precedents in courts of judicature. These had scarcely, in any instance, refused bail upon commitments by special command of the king; because

114 David Hume’s Political Theory the persons committed had seldom or never dared to demand it; at least, to insist on their demand.49

The resistance of the Commons of course ultimately led to just the sort of result Hume thinks all civilized people fear: descent into chaos followed by renewed tyranny. Cromwell’s rule represented a recession to textbook barbarism, with little new to teach us about it, but with ample data to confirm Hume’s theory about how a barbarous ruler invariably behaves. The Lord Protector ‘possessed not that mature and deliberate reflection, which could qualify him to act the part of a legislator.’50 Instead, he delegated absolute authority to his magistrates, with popular slavery the inevitable result: In order to raise this imposition, which commonly passed by the name of decimation, the protector instituted twelve major-generals; and divided the whole kingdom of England into so many military jurisdictions. These men, assisted by commissioners, had power to subject whom they pleased to decimation, to levy all the taxes imposed by the protector and his council, and to imprison any person who should be exposed to their jealousy or suspicion; nor was there any appeal from them but to the protector himself and his council. Under colour of these powers, which were sufficiently exorbitant, the major-generals exercised an authority still more arbitrary, and acted as if absolute masters of the property and person of every subject. All reasonable men now concluded, that the very masque of liberty was thrown aside, and that the nation was for ever subjected to military and despotic government, exercised not in the legal manner of European nations, but according to the maxims of eastern tyranny. Not only the supreme magistrate owed his authority to illegal force and usurpation: He had parcelled out the people into so many subdivisions of slavery, and had delegated to his inferior ministers the same unlimited authority, which he himself had so violently assumed.51

Hume never followed his story to England’s ultimate achievement of a regular and civilized system of government, which happened after the Glorious Revolution. His History stops at the ‘settlement of the crown’ on William and Mary. For a supposedly conservative historian, his verdict is rather unequivocal: The revolution forms a new epoch in the constitution; and was probably attended with consequences more advantageous to the people, than barely

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freeing them from an exceptionable administration. By deciding many important questions in favour of liberty, and still more, by that great precedent of deposing one king, and establishing a new family, it gave such an ascendant to popular principles, as has put the nature of the English constitution beyond all controversy. And it may justly be affirmed, without any danger of exaggeration, that we, in this island, have ever since enjoyed, if not the best system of government, at least the most entire system of liberty, that ever was known amongst mankind.52

Hume toyed at various points in his life with continuing the story further. But he was put off by the reaction to the published volumes of his History, which were attacked by partisans on both sides. ‘I am so sick of all those Disputes,’ he said in August 1764, not long after the appearance of the last instalments, ‘that I repent heartily my ever having committed any thing to Print.’53 Hume prided himself on his impartiality, and he hated the thought of being labelled either a Whig or a Tory. In any case, it is easy to see how he might have found events of the following century less interesting. Given the theory of civilized government I have laid out, the Glorious Revolution represents the ultimate victory of civilization over the lingering forces of barbarism. Hume never succeeded in convincing people he should be exempt from any sort of partisan or ideological label. The insistence of readers and scholars to do so did not of course end with his death. We now must consider some more recent attempts to recruit him into the ranks of those engaged in ongoing ideological battles.

6 Hume’s Precautionary Conservatism

I now wish to take up in more detail the question with which I began: What sort of conservative is Hume? As we have already seen, Hume has often been taken to be a conservative, even ‘the first conservative,’ philosopher. And he undoubtedly is a conservative of some kind. He says, for instance, in a passage I quote in full below (and try to place in context): ‘in the general distribution of power among the several members of a constitution, there can seldom be admitted any other question, than What is established?’ And he says that, except under the rarest of circumstances, ‘nothing can be more pernicious and criminal’ than ‘to resist supreme power.’1 While such statements are clearly not those of a revolutionary radical, they are nevertheless compatible with a wide variety of views. In addition, there are many ways in which a suspicion of change can be justified philosophically. As I said in my Introduction, commentators have sometimes tried to unify Hume’s political theory with his broader philosophy (in itself a noble goal) by deriving his conservatism from his scepticism. More specifically, it has often been argued that Hume’s scepticism rules out any abstract principles of right or justice against which an existing regime could be judged. It therefore implies a kind of status quo conservatism that holds any form of government to be as good as any other, so long as it is established and provides us with basic protections and stability. According to Francis Snare, for instance, Hume ‘holds there is no non-arbitrary criterion whatsoever applicable to [conflicts between alternative schemes of social choice]. All that he offers is something blatantly arbitrary, i.e., mere “association of ideas” or the work of the “imagination.”’2 Snare thinks that, according to Hume, we can give no justification for preferring one such ‘scheme’ over another ‘beyond

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what frivolous fancy can provide.’3 This is because, for a sceptic such as Hume, nothing could possibly ground such criteria in a way that he can consider defensible. Snare says: ‘Nothing in the Humean theory of justifying reasons, no appeal to public interest, no appeal to the other moral sentiments (we have) could be a reason for preferring [one particular] convention over others. Instead we are just drawn to certain conventions because they stand out, are more striking, stimulate the imagination ... There are no grounds (good or bad) which we have for opting for these particular conventions.’4 If Hume were a conservative of this sort, it would be very difficult to explain the many occasions where he asserts explicitly that certain ‘schemes of social choice’ are preferable to others. It has been the task of this book to show why Hume would think, for instance, that ‘the Republican Form of [Government] is by far the best,’ and that ‘the best civil constitution’ is one ‘where every man is restrained by the most rigid laws’ – and how such statements can be justified in relation to his philosophy as a whole.5 While it is easy to understand the temptation to apply Hume’s sceptical principles to politics, it is a striking fact about Hume’s writing that there is not a single passage where he explicitly extends his scepticism to the realm of politics. Considering that Hume wrote hundreds of pages on both epistemological and political topics, it would be truly bizarre if he based his treatment of the latter on the principles developed in the former yet never actually got around to saying so anywhere. Hume’s sceptical philosophy does have implications for his political theory, but not in the way that Snare suggests. In my Introduction to this book, I cited the climactic section of the Treatise Book I, where the narrator concludes that one of the topics to which he feels he can turn his mind, after he has cast aside ‘false philosophy,’ is ‘the nature and foundation of government.’6 This passage makes it clear that Hume’s sceptical method is intended to turn the mind away from abstruse metaphysical and religious topics, where there can be no admissible evidence to resolve disputes, and towards topics such as the nature of government, where the empirical method can guide us towards true principles. Philo says as much in the Dialogues concerning Natural Religion: ‘So long as we confine our speculations to trade, or morals, or politics, or criticism,’ he says, ‘we make appeals, every moment, to common sense and experience, which strengthen our philosophical conclusions, and remove, at least in part, the suspicion which we so justly entertain with regard to every reasoning that is very subtile and refined.’7 There are, then, two lessons to be learned from the critique of meta-

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physics. First of all, we should focus on political rather than epistemological questions, since it is in philosophizing about politics that real progress is possible. Second, we must, as political theorists, be responsible and avoid the sort of abstract, non-empirical speculation that characterizes theology and metaphysics. In his essay ‘Of the Original Contract,’ Hume criticizes the ‘philosophical or speculative system of principles’ which each of the parties has ‘reared up ... in order to protect and cover that scheme of actions, which it pursues.’8 If Hume wished to deploy his sceptical method to rule out any sort of positive political ideals, it is here we would expect him to do so. But instead he criticizes these ‘speculative systems’ on very specific grounds. Hume argues they are carelessly constructed, such that they are in some respects at odds with the facts.9 He says that Britain’s party ideologies reveal ‘evident marks of the violence and hurry’ with which they were built.10 But this is an injunction to take more care. Hume does no more in this essay than advocate for the empirical method that he repeatedly urges us to apply to political questions. Indeed, Hume makes a concession that no sceptical conservative, of the kind Snare holds him to be, could possibly make. He says that ‘both these systems of speculative principles [that is, those of the Whigs and Tories] are just; though not in the sense, intended by the parties.’11 He makes clear what he means later on in the essay, where he says that they are just when they are accommodated to one another, through an admission that neither provides the necessary or exclusive foundation for government. ‘My intention here,’ he says, ‘is not to exclude the consent of the people from being one just foundation of government where it has place. It is surely the best and most sacred of any. I only pretend, that it has very seldom had place in any degree, and never almost in its full extent. And that therefore some other foundation of government must also be admitted.’12 If it were correct to say that speculative political principles are never more than false philosophy, it is not clear how any ‘system of speculative principles’ could be just in any sense, let alone provide ‘the best and most sacred’ (even if not the only) foundation for government. (The other foundation to which Hume refers is what he in the Treatise calls ‘present possession.’ We shall see why, on my reading of Hume, the combination of these two principles makes perfect sense.)13 It is clear, then, what sort of conservative Hume is not – which is to say, one who deploys a general philosophical scepticism in order to defend the status quo. If we are to provide an accurate answer to the

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question of what sort of conservative he is, however, it will help to clarify what the term itself means. We tend now to see conservatism through the lens of Edmund Burke, whose polemic against the French Revolution is often seen as the founding work of modern conservative philosophy. Burke cast himself as a defender of the inherited traditions of a society, in opposition to those who wanted to reform it according to abstract, universal principles known through ‘reason’ – which he contended the revolutionaries were trying to do. While the Reflections is unquestionably a profound work of philosophy, if we remove it from its context and allow it to define the opposition between conservatism and its alternative, we are liable to fall into misunderstanding. Burke’s polemic is pitched at a very specific target: what is now sometimes called ‘foundationalist liberalism.’ Hume is certainly no foundationalist liberal, if we define such a person as someone whose reformist ideals are based on abstract or metaphysical principles known through reason. His own are, as we have seen, based on what he calls ‘common sense and experience.’ The problem with defining conservatism in contrast to foundationalism, however, is that we thereby reduce conservatism to something rather trivial. At most times and in most places, including our own, its supposed opponent is largely a straw man. If the only competitors to conservatism are those who advocate ‘reform projects devised by reason alone,’ with the implication being that such projects are based on abstract ideals that cannot be falsified by the evidence of experience or history, we are forced to include almost all liberals, and many socialists, among the ranks of conservatives. John Rawls, for instance, who is often cited as a prototypical foundationalist liberal, is in fact at pains to point out that his theory of justice is intended to make sense of the conflicting and competing claims of liberty and equality already deeply embedded in the Western democratic tradition. His veil of ignorance is merely a conceptual tool to help us clarify our intuitions on the subject, a tool that ultimately yields to the technique of reflective equilibrium – a technique Rawls explicitly calls ‘nonfoundationalist.’14 In order to understand Hume’s conservatism, I want to set aside the foundationalist–non-foundationalist divide and attend to a different distinction, between those I will call ‘universalists’ and ‘particularists.’ Once we have established this basic dichotomy, we can then understand a further, separate distinction: between the two forms of conservatism I identify as ‘traditionalism’ and ‘precautionary conservatism.’ Despite sharing certain principles in common, these two conservatisms

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are in fact very different, and at many points they are directly opposed. I propose to argue that Hume is not a traditionalist, as he is often taken to be. He should instead be considered a precautionary conservative, which I define in more detail below. I propose two lines of argument to defend this assertion. First, I will show that there is an absence of textual evidence to support the traditionalist reading of Hume and strong textual evidence for his adherence to precautionary conservatism. Second, I will argue that only precautionary conservatism is compatible with Hume’s views of liberty and universal rights. Traditionalism explicitly disallows such views. 1. Particularism and Universalism I intend to use the terms particularism and universalism to mark out sets of opposing principles for what constitutes the best society. Particularism holds that the best society is one that conforms to the established customs and traditions of that particular society. On this view, a vision of the good society cannot be based on supposedly universal features of human nature or society. A particularist either is sceptical that such features exist or else denies that they tell us anything about what is best. Particularism does not entail that we must uncritically accept whatever happens to be the status quo in a given society.15 For one thing, the reflexive person will easily see that tradition is often in conflict with itself. Such conflicts must constantly be examined and resolved.16 The common law, for instance – a thing dear to the heart of English particularists – is filled with centuries of contradictions between various judicial rulings, and between these and positive laws. Judges and legislators must at every moment sort through the web of precedents and statutes to decide which are best established or cohere with the ‘fabric’ (to use a favourite metaphor of common lawyers) of the law as a whole. The important thing is that in resolving such contradictions, we appeal always to the traditions and customs of the society itself. A universalist is someone who believes there are certain fundamental truths about, for instance, human nature or the relation of individual and society, that warrant universal generalizations. Such generalizations in turn allow us to formulate prescriptive principles that apply to all, or a wide variety of, societies. It is not necessary to mis-characterize universalists as ‘rationalists’ to see that this marks a genuine difference between the two views. A universalist may well be a committed empir-

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icist – which is to say, she may believe that our conclusions about politics must be based on the evidence available from history, psychology, and other legitimately scientific sources. However, she further believes that such evidence warrants universal generalizations, generalizations which can then allow us to import into a particular culture values and institutions that are not necessarily rooted in its own indigenous traditions. Let us consider an example. A petition has come before the king of Statopia to grant equal status to women before the law. What would a traditionalist advise the king to do? He might examine the society’s custom of requiring two female witnesses to contradict that of a single male witness. He might compare this with a very different, but equally well-established custom – of allowing women full rights of inheritance, including to the throne. He might then conclude that this latter custom has proven more useful to the community than the former and on this basis advise the king to extend women full legal protections. Let us contrast this with universalism. A universalist philosopher, were she consulted, might have advised the king of Statopia to grant women equal status because they inalienably possess equal rights just in virtue of being human. A universalist could offer data to show that in various times and places through history, people of all genders and races, given equal access to education, display equal intellectual and moral capacities. The universalist could then argue that this evidence is adequate to justify a belief in universal human equality, which implies that all people should be extended equal legal rights. This doctrine of universal equality implies that Statopia must extend full equality to its women. It is hardly fair to say that the universalist argument is based either on pure reason or on fantasy. However, it is accurate to say that it rejects an appeal to the customs and traditions of Statopia as an adequate justification for institutionalized inequality. These customs are not ignored – they form part of the greater body of evidence drawn from human societies – but they are granted no special status when weighed against the demands of universal justice. While the belief in the common rights of human kind is an example of a universalist principle, it is by no means necessary to believe in such universal rights in order to be a universalist. The view that women are naturally inferior is equally a universalist principle – and so, the universalist adviser, were she instead committed to this principle, would have advised against the proposed reform. In this sense, the term universalism has the potential to mislead. Universalist propositions need

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not be ones about our single, common human nature. They may equally posit all kinds of essential differences among different sorts of people. It is necessary only that these distinctions hold at different times and at different places, as specified by general principles. 2. Traditionalism and Precautionary Conservatism With this distinction in hand, let us now move on to distinguish between the two forms of conservatism I have identified, and examine how that maps on to the universalist-particularist distinction. Traditionalism and precautionary conservatism are both forms of conservative philosophy. As such, they are philosophical views about the justification for reform – they both ask: when should we pursue social change? – rather than (as with particularism and universalism) principles to determine what sort of change is legitimate. Traditionalism is, in its essence, particularist. But it is more than this: it is a demand that particularist ideals be enforced where this is possible. A traditionalist asks herself: would a change in the status quo represent a return to long-established custom and tradition? Would it, in other words, return us to a way of life that is more authentically customary than the current one? It bears the same relationship to particularism that what we might call ‘radicalism’ bears to universalism – it privileges questions of justification over ones of prudence and as a result contains within itself a demand for action where action can be justified. Of course, traditionalists are much less likely than radicals to find themselves in situations where change is demanded. However, in a revolutionary age, the traditionalist may find herself called upon to join a counter-revolutionary reaction. By contrast, a precautionary conservative is someone who, in evaluating the prospect of social change, is guided by a strong precautionary principle. In the twentieth century, the precautionary principle was used as a way of guiding decision making in the absence of complete scientific certainty.17 This makes its application to political theory a natural one – as Hume well knew, politics is notoriously resistant to any such certainty. Given this absence of certainty, a precautionary conservative, when contemplating the possibility of social change, begins by asking herself a simple question: When does the risk of disorder outweigh the likelihood that change will be beneficial or the good that it may do? Her response is, almost always. The traditionalist’s central question, of whether reform can be legiti-

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mated by the customs and traditions of a people, holds no interest to the precautionary conservative. She is entirely preoccupied with the consequences of reform and is reliably pessimistic in predicting these consequences. In our example of Statopia, a precautionary conservative might well accept the universalist doctrine of equal rights, but she would likely advise the king that any change in the legal system could create confusion, resentment, and even rebellion. Thus, things should remain as they are – though we would be perfectly justified in calling the society’s legal institutions unjust. In many cases, the precautionary conservative will prove more cautious about social change than will the traditionalist. The difference between the two becomes apparent, and important, when we imagine ourselves faced with a successful revolutionary regime. A traditionalist will insist that if, as in the case of the Bolsheviks or the Jacobins, the new regime departs radically from the traditions of the people, we should look to a restoration of the old regime by whatever means possible. A precautionary conservative would insist that, on the contrary, once the new regime is itself established and has achieved a measure of stability, it should be accepted. It is only when the tyranny of an established government becomes so intolerable as to threaten the very purpose of civil society that the right to resistance comes into force. While all traditionalists are particularists, then, precautionary conservatives may be either particularists or universalists. This form of conservatism is a view about when we should implement our ideals; it says nothing about the content of those ideals themselves. There is nothing incoherent in adhering to both universalism and precautionary conservatism. Such a position is quite a common one among modern liberals when it comes, for instance, to international affairs. They often express support for universal human rights and wish that people living under repressive regimes could be liberated, yet ruefully admit that to encourage rebellion would be to risk causing chaos. It is indeed precisely the rejection of such precautionary considerations that is such a striking feature of the so-called ‘neoconservative’ movement in U.S. foreign policy.18 Though traditionalists have been known to brand all universalists as revolutionaries, it is a distortion of universalism to say that it contains within it a demand that its dictates be enacted at all costs. As I have said, there are certainly universalists who believe this – I have suggested they may be called radicals – but such people form only a subset of universalism, just as traditionalists form only a subset of particularism.

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At the risk of complicating matters further, it may be observed that precautionary conservatism, traditionalism, and radicalism represent extremes of what can in fact be considered a spectrum of views on social change, with various forms of gradualism lying in between. Happily we do not have to provide a full description of this spectrum here. Instead, with this new set of distinctions in hand we should return our attention to Hume to examine why he is in fact best characterized as a precautionary conservative. 3. Hume and Reform I have said that for a precautionary conservative, our actions are determined by prudential concerns about the consequences of change, which often demand that we ignore our own principles about what is ideal or even legitimate. I believe that only this form of conservatism allows us to make sense of Hume’s various statements on the question of political reform. Hume’s essay ‘Of the Original Contract’ contains one of his most explicitly conservative statements, one often cited by commentators. ‘Some innovations must necessarily have place in every human institution,’ he says, and it is happy where the enlightened genius of the age give these a direction to the side of reason, liberty, and justice: but violent innovations no individual is entitled to make: they are even dangerous to be attempted by the legislature: more ill than good is ever to be expected from them.19

While these are certainly not the words of a revolutionary, neither do they on their own entail a thoroughgoing scepticism about the value of political ideals. On the contrary, someone might accept Hume’s cautionary words while still believing there exist a set of evaluative criteria to distinguish good and bad constitutions. Such a person would not normally advocate attempts to replace a bad (but legitimate) regime with a good one. She could, however, develop her criteria in her capacity as a social scientist; and she might hope to make them available were there ever a risk-free opportunity to found a new regime from scratch. She might also hope they would serve as a guide to reformers who occupy positions of power and who wanted to use existing political structures to change society for the better. We might consider this issue on an analogy to parenthood. Most peo-

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ple would agree that, except in cases of serious abuse, children should remain with their natural parents, or with any family with whom they have established a stable and enduring relationship and which is able to meet their basic needs. Children form a bond with their long-time guardians that is rarely worth severing. This need not prevent us from studying the question of what makes a good or a bad parent or what are the most effective forms of parenting. We may even be able to construct an ideal of what the best parents would look like. Such study may be of great interest to parents who wanted to improve their own practices and could prove very useful, for instance, in evaluating two competing claims to adopt a child from an orphanage. In his ‘Idea of a Perfect Commonwealth,’ Hume suggests this is precisely how he conceives of the matter. ‘It is not with forms of government,’ he says, ‘as with other artificial contrivances; where an old engine may be rejected, if we can discover another more accurate and commodious, or where trials may safely be made, even though the success be doubtful. An established government has an infinite advantage, by that very circumstance of its being established.’ But he then adds: As one form of government must be allowed more perfect than another, independent of the manners and humours of particular men; why may we not enquire what is the most perfect of all, though the common botched and inaccurate governments seem to serve the purposes of society, and though it be not so easy to establish a new system of government, as to build a vessel upon a new construction? The subject is surely the most worthy curiosity of any the wit of man can possibly devise. And who knows, if this controversy were fixed by the universal consent of the wise and learned, but, in some future age, an opportunity might be afforded of reducing the theory to practice, either by a dissolution of some old government, or by the combination of men to form a new one, in some distant part of the world?20

It is a central feature of precautionary conservatism that it makes it possible to distinguish between the validity of political ideals and the wisdom of actually implementing them – between, we might say, justification and prudence. A precautionary conservative will often reject reform or rebellion on the grounds that it is imprudent, even when such rebellion can be justified by her own philosophical principles. In a chapter in the Social Contract on ‘How to Check the Usurpations of Government,’ for instance, Rousseau distinguishes between ‘maxims of

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policy’ and ‘rules of right.’ ‘It is true,’ he says, ‘that such changes [i.e., in government] are always dangerous, and that one should never touch an established government unless it becomes incompatible with the public good; but this circumspection is a maxim of policy and not a rule of right.’21 He put it more succinctly in his book on Poland: ‘Never shake the machine too brusquely.’22 Hume explicitly makes this same distinction between philosophical legitimacy and prudence in the History, discussing the upheavals under James II: And every friend to liberty must allow, that the nation, whose constitution was thus broken in the shock of faction, had a right, by every prudent expedient, to recover that security, of which it was so unhappily bereaved. While so great a faction adhered to the crown, it is apparent, that resistance, however justifiable, could never be prudent; and all wise men saw no expedient but peaceably to submit to the present grievances.23

Hume thus draws a sharp distinction between justification and prudence, with prudence being the salient variable that should determine our actions. This is precisely what he should do, if he is in fact a precautionary conservative. Further evidence is provided by the passage I cited above, about the ‘original contract.’ As we have seen, Hume says that ‘the consent of the people’ is not only ‘one just foundation of government’ but ‘surely the best and most sacred of any.’ However, he wants to emphasize that this principle ‘very seldom had place in any degree, and never almost in its full extent.’ Instead, we must accommodate it to ‘some other foundation of government’ – to wit, ‘present possession.’ We are motivated, Hume says in the Treatise, to accept ‘present possession’ as grounds for public authority, where we do not accept it on its own as a grounds for private property, because of the interest we have in ‘the preservation of peace, and the avoiding of all changes, which, however they may be easily produced in private affairs, are unavoidably attended with bloodshed and confusion where the public is interested.’24 I believe this passage should be read as Hume once again trying to balance, in precautionary fashion, universal ideals (the consent of the people) with prudential considerations (present possession). In his History of England, Hume makes another distinction that would resonate with a precautionary conservative, though it would make no sense to a traditionalist: between the basic structure of a government and the way its power is exercised. ‘In the particular exertions of power,’ he says,

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the question ought never to be forgotten, What is best? But in the general distribution of power among the several members of a constitution, there can seldom be admitted any other question, than What is established? Few examples occur of princes, who have willingly resigned their power: None of those who have, without struggle and reluctance, allowed it to be extorted from them. If any other rule than established practice be followed, factions and dissentions must multiply without end: And though many constitutions, and none more than the British, have been improved even by violent innovations, the praise, bestowed on those patriots, to whom the nation has been indebted for its privileges, ought to be given with some reserve, and surely without the least rancour against those who adhered to the ancient constitution.25

It is perfectly coherent for a precautionary conservative to hold such a double standard. In its ‘particular exertions of power,’ we can safely give primacy to our standards for what is best, since we are seeking only to advise or influence an established regime in its specific actions. However, when disputes arise about basic constitutional issues, or between different branches of government, there is, as Hume points out, a real danger of civil war or social chaos. Thus, our ideals must be set aside in favour of prudential considerations – and so the question of ‘what is established’ comes to the fore. But to a traditionalist, this double standard makes no sense; nor indeed does the very distinction between ‘what is established’ and ‘what is best.’ If Hume were a traditionalist, he would equate these two. For the traditionalist, what is best just is what is established (or what was so before some revolutionary usurpation), whether we are talking about ‘particular exertions of power’ or more basic constitutional issues. The precautionary conservative reading also explains (as traditionalism cannot) Hume’s belief, expressed in this passage, that even ‘violent innovations’ can be praised retrospectively. Because projects to reform ‘the general distribution of power’ always risk leading to chaos, which is the worst possible state, the risks nearly always make the gamble one not worth taking. But when we consider events that have already happened, this worry does not apply. We can deploy in our reflections our ideals for what we consider the best society. Hence we may ‘praise’ Britain’s anti-royal ‘patriots’ – albeit with ‘some reserve,’ given that their opponents were only adhering to good precautionary conservative principles. A traditionalist, however, can offer such patriots no praise at all. Hume’s clearest statement of his attitude towards political reform

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provides further evidence of his adherence to precautionary conservatism rather than traditionalism. In ‘Of the Original Contract’ he says: Did one generation of men go off the stage at once, and another succeed, as is the case with silk-worms and butterflies, the new race, if they had sense enough to choose their government, which surely is never the case with men, might voluntarily, and by general consent, establish their own form of civil polity, without any regard to the laws or precedents, which prevailed among their ancestors.26

Though this statement is a counterfactual one, it is one a traditionalist could not possibly, even counterfactually, bring herself to make. To say people in this impossible country might choose a government ‘without any regard to the laws or precedents of their ancestors’ is hardly to pay the respect to custom and tradition that is demanded by traditionalism. In line with the precautionary conservative interpretation, Hume goes on to say that his objection to such innovation is a pragmatic one: But as human society is in perpetual flux, one man every hour going out of the world, another coming into it, it is necessary, in order to preserve stability in government, that the new brood should conform themselves to the established constitution, and nearly follow the path which their fathers, treading in the footsteps of theirs, had marked out to them. Some innovations must necessarily have place in every human institution, and it is happy where the enlightened genius of the age give these a direction to the side of reason, liberty, and justice: but violent innovations no individual is entitled to make: they are even dangerous to be attempted by the legislature: more ill than good is ever to be expected from them.27

Hume does not think there are any firm rules to determine when prudential considerations should be set aside. ‘It is certainly impossible,’ he says, ‘for the laws, or even for philosophy, to establish any particular rules by which we may know when resistance is lawful, and decide all controversies which may arise on that subject.’28 This should not surprise us. Precautionary conservatism is, as I have said, a way of thinking about risk rather than a way of calculating it. It is specifically designed for situations where such calculations cannot be made. It might be objected here that there is one area in which Hume seems quite willing to set aside precautionary considerations in favour of quite radical reforms: which is to say, in matters of religion. It is true

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that he is keen to challenge many of the prevailing religious views of his time. But he is also careful to explain why: it is due to the political disruption they cause. His analysis of England’s civil war repeatedly emphasizes the central role of religion in reducing the state to chaos. Religion, he says, ‘was the least susceptible of composition or moderation between the contending parties.’29 Religious division proved sufficient to reduce a hitherto fairly civilized people to utter barbarism: No people could undergo a change more sudden and entire in their manners than did the English nation during this period. From tranquillity, concord, submission, sobriety, they passed in an instant to a state of faction, fanaticism, rebellion, and almost frenzy. The violence of the English parties exceeded any thing, which we can now imagine: Had they continued but a little longer, there was just reason to dread all the horrors of the ancient massacres and proscriptions ... No social intercourse was maintained between the parties; no marriages or alliances contracted ... The manners of the two factions were as opposite as those of the most distant nations.30

Except where the state imposes a single religious establishment, Hume thinks religious factionalism presents a clear and present danger to social stability. ‘Factions,’ he says, ‘subvert government, render laws impotent, and beget the fiercest animosities among men of the same nation, who ought to give mutual assistance and protection to each other.’31 And he says that religious factions are ‘in modern times ... more furious and enraged than the most cruel factions that ever arose from interest and ambition.’32 Hume thinks that Christianity’s separation of ecclesiastical and civil powers makes it an inherently unstable force. He says that the principle of priestly government that gives all power to the ecclesiasts and none to the magistrate engenders ‘a spirit of persecution, which has ever since been the poison of human society, and the source of the most inveterate factions in every government.33 I discussed above the passages where Hume argues for ‘ecclesiastical establishments,’ which, though they might seem costly and unnecessary, ultimately prove ‘advantageous to the political interests of society.’34 Such a scheme would, it is true, undoubtedly require considerable disruption to implement. However, as we have seen, precautionary conservatism does not automatically rule out reform, even of a radical kind; it simply demands that the risks of action be evidently less than the risks of inaction. Hume clearly

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thinks this is the case in the realm of religion – religious faction and fanaticism will always pose a serious and present risk to public order unless religious institutions can be reformed to make them more amenable to peace and stability. Hume’s attempts to reform people’s actual beliefs have the same purpose. He thinks that it is not just the division of church and secular power that makes Christianity ‘the scene of religious wars and divisions.’ It is also the speculative nature of its theological principles: As philosophy was widely spread over the world, at the time when Christianity arose, the teachers of the new sect were obliged to form a system of speculative opinions; to divide, with some accuracy, their articles of faith; and to explain, comment, confute, and defend with all the subtilty of argument and science. Hence naturally arose keenness in dispute, when the Christian religion came to be split into new divisions and heresies: And this keenness assisted the priests in their policy, of begetting a mutual hatred and antipathy among their deluded followers. Sects of philosophy, in the ancient world, were more zealous than parties of religion; but in modern times, parties of religion are more furious and enraged than the most cruel factions that ever arose from interest and ambition.35

Hume wants to move people towards a more quietistic faith, one that accepts abstract theological questions as irresolvable and therefore not worth fighting over. His attacks on religion, aimed as they are at eliminating people’s dangerous speculative tendencies, can therefore be seen as part of his larger precautionary conservative project.36 4. Hume’s Universalism I suggested above that precautionary conservatism is, unlike traditionalism, compatible with universalism. It has been the main argument of this book to show that Hume thinks there are standards for evaluating different societies that transcend the specific customs and traditions of that society – the very definition of a political universalist. Among the evidence I have marshalled, perhaps the most dramatic is his praise of those English kings and queens who, in conquering and asserting their control over the ‘barbarous’ territory of Ireland, realized that it was ‘necessary to abolish the Irish customs, which supplied the place of laws, and which were calculated to keep that people for ever in a state of barbarism and disorder.’37 There is, it seems to me, no possible par-

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ticularist or traditionalist doctrine that can endorse the forcible and whole-scale abolition of a nation’s customs; there is therefore no particularist or traditionalist reading of Hume that can make sense of such statements. Precautionary conservatism has given us a conceptual tool to make sense both of Hume’s universalism as well as of his further view, that the universal standards he endorses do not license us to attempt to reform existing societies radically in order to bring these societies into line with these standards. The key to Hume’s universalism, as I have explained it, lies in his notion of liberty. Liberty of the right sort – that is, liberty under the law – is a universal good, which all people are justified in desiring. The ‘civilizing’ of Ireland, for instance, was justified because it brought the people liberty under the law. It is worth examining Hume’s doctrine of liberty in more detail, both because of its importance for my reading of his work and because one of the most powerful challenges to universalist readings of Hume, that of Donald Livingston, is based on a particularist interpretation of his concept of liberty. Livingston readily acknowledges Hume’s commitment to liberty as an ideal. ‘No whig panegyrist,’ he says, ‘ever surpassed Hume (except in excess) in praise either of liberty or of the British constitution.’38 Livingston also provides a subtle and detailed analysis of Hume’s use of the term liberty in various contexts. He points out that Hume uses the word in three main senses. He uses it to refer to the free exercise of the will, in his discussion of the philosophical problem of free will and determinism. He also uses it to refer to that form of government which divides power among its various branches. But what Livingston calls the primary and most important use of the term is to refer to a person’s freedom to ‘determine his own thought and decisions uncoerced by the arbitrary will of another.’39 Such freedom implies the existence of a government to protect people from one another, but equally the existence of constraints on the arbitrary will of the governors themselves. As Livingston observes, this amounts in practice to the traditional notion of ‘the rule of law,’ where what Hume calls ‘general and equal laws’ are applied impartially and according to established procedures. According to Livingston, Hume breaks with Whig writers, who employ a similar definition of the rule of law, by ‘the historical, dialectical, and evolutionary context in which he places the concept.’40 To use the terms introduced above, Livingston thinks Hume provides a particularist definition of liberty, whereas Whig writers provide universalist ones. As Livingston puts it (in an essay co-written with Stuart D. Warner):

132 David Hume’s Political Theory For Hume, there is no timeless object called liberty that can be discovered by autonomous reason. Rather, liberty refers to a complex set of conventions or practices that have been hammered out over time ... He presents his understanding of liberty through a narrative of the evolution of the experience of liberty.41

Livingston is right to identify the rule of law as central to Hume’s primary definition of liberty. And his analysis of Hume’s conception of liberty is an enormously valuable one. He demonstrates that Hume regards liberty in modern society as the product of a long, slow process of evolution in its institutions. He is also right to point out that what Hume calls ‘true liberty’ is achieved only in stages, and through a slow process of trial and error. Hume says that ‘any true or regular liberty ... requires such improvement in knowledge and morals, as can only be the result of reflection and experience, and must grow to perfection during several ages of settled and established government.’42 Livingston is mistaken, however, in his belief that Hume’s primary definition of liberty, as freedom from coercion under the protection of the rule of law, is a particularist one. Livingston argues that this evolutionary account of liberty puts Hume at odds with what he calls ‘speculative’ theories of liberty. Such theories construct abstract principles of liberty which they then apply ‘as stern measuring rods to any actual society.’43 However, it is possible to read Hume’s texts very differently, as proposing a definition of liberty that is undeniably universalist and (in Livingston’s sense) ‘speculative,’ of just the sort Livingston thinks his philosophy rules out. This definition can be made perfectly consistent with his comments about a society’s slow evolution towards ‘true liberty.’ I believe that, for Hume, there are three degrees of liberty: what we might call total liberty (what he calls ‘natural liberty’), imperfect private liberty, and perfect private liberty (what he calls ‘true’ or ‘regular liberty’). People in a state of nature possess total liberty – complete freedom without restraint of any kind. Hume calls it ‘native liberty.’44 Private liberty is the liberty that comes from personal security and what Hume calls ‘the free enjoyment of property’ – it is the negative liberty to pursue one’s ends without being subject to violence or coercion. Such liberty requires institutions to guarantee it. Hume says that authority is ‘requisite to the support of liberty itself, by maintaining the laws, which can alone regulate and protect it.’45 As I read Hume, people on entering society give up their total liberty but not their private liberty. In fact, they enter society precisely to pre-

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serve their private liberty through the rules of justice. Hume says that government justifies its existence by its ability to execute justice.46 As I interpret this doctrine, this makes people’s allegiance to it conditional on its ability to ‘regulate and protect’ their private liberty. And since (as Hume reminds us) it is absurd to have a right without a remedy, the right carries with it the right to resist any ruler who fails completely in his basic task by causing people to lose their private liberty entirely.47 The right to private liberty is therefore natural, universal, and inalienable – we are born with it, we all possess it, and we do not and cannot give it up. Society may grant us private liberty perfectly or imperfectly because the institutions of justice may be more or less equitable, and the ruler himself may be more or less tyrannical. Hume says that people owe allegiance to an established government so long as this government delivers to them a ‘tolerable degree’ of liberty – in other words, so long as they possess at least imperfect private liberty. As he puts it in the History, discussing Charles I, irregular acts of power may be exercised ‘casually, and at intervals ... and yet liberty still subsist, in some tolerable degree.’48 Most people will in fact possess only imperfect private liberty – they will be subject to such casual and intermittent encroachments on their freedom. Such imperfect liberty is sufficient to compel their allegiance to government. It is only when such irregular power is ‘exerted without interruption’ and begins to ‘supply the place of laws’ that it becomes ‘necessary to find some speedy remedy.’49 People living under a tolerable, but imperfect, regime will naturally hope for an evolution towards more perfect private liberty, which is achieved when the rulers institute equitable laws and themselves respect these laws – they will hope for it, that is, so long as such an evolution is possible without causing social upheaval. It is such perfect private liberty that Hume calls ‘true and regular liberty’ and which he says is the result of society’s gradual progress towards civilization. I believe this universalist reading of Hume’s concept of liberty sets liberty up as a universal standard that may indeed serve as a ‘stern measuring rod’ for governments in all times and at all places, than does Livingston’s particularist interpretation. First of all is the passage in the History, which I have already cited, where Hume describes the adoption of Magna Carta. He says that the provisions of the Charter, extending legal protection to everyone in the kingdom, involve all the chief outlines of a legal government, and provide for the equal distribution of justice, and free enjoyment of property; the great

134 David Hume’s Political Theory objects for which political society was at first founded by men, which the people have a perpetual and unalienable right to recal, and which no time, nor precedent, nor statute, nor positive institution, ought to deter them from keeping ever uppermost in their thoughts and attention.50

Livingston concedes that the passage in the History where Hume discusses Magna Carta is the ‘one place where Hume, speaking in his own voice, affirms what appears to be a doctrine of natural rights.’ But he insists this appearance is illusory. He says: ‘the “rights” secured by Magna Carta are firmly restrained by the feudal social and political order, and they are “granted” by the king.’51 This is certainly true de facto, but it is far from clear these facts have the significance he wants to attribute to them. It is accurate to say that the Charter’s rights had to be granted by the king to have any effect, since he was in control of the legal system that would enact them. Any defender of natural rights would concede as much. But this does not entail that this grant lies at their foundation or is the source of their legitimacy. Hume seems to say just the opposite – that people’s awareness of their rights is not to be deterred by the acts of positive institutions, be it the courts (‘precedent’) or the legislative power (‘statute’). And he elsewhere denies explicitly that our fundamental rights are ‘granted’ by a ruler. He says that James II lost any claim to the allegiance of his subjects precisely because he acknowledged only those rights he had himself granted. ‘Though by a stretch of candour we should admit of his sincerity in [his] professions [that he did not intend to subvert the laws or reinstate Catholicism],’ Hume says, ‘the people were equally justifiable in their resistance of him. So lofty was the idea, which he had entertained of his legal authority, that it left his subjects little or no right to liberty, but what was dependent on his sovereign will and pleasure.’52 Contrary to Livingston’s assertion, the passage on the Great Charter is not the only place Hume seems to refer to a doctrine of natural rights. There are numerous other references to ‘the common rights of mankind.’53 And he more than once refers to the right of resistance as inalienable and universal.54 Livingston insists that, for Hume, inalienable rights must, like all rights, be ‘internal’ to civil society. ‘To speak of inalienable rights,’ he says, ‘is, presumably, to say that the spirited participants of civil society are determined to maintain that way of life (a way of life that experience and reflection shows to be useful and agreeable) and that there are conventions capable of sustaining such a life.’55 On Livingston’s view, inalienable rights are contingent – they depend on the members of a particular society affirming and working to

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preserve them. But Hume makes clear that our inalienable rights, beginning with our basic right to the use of our property and the corresponding right to resist any government that cannot guarantee it, are common to all humans, regardless of the nature of their society. They are internal to society in the sense that if we find ourselves ‘without the tye of laws or civil jurisdiction,’ such as in a shipwreck, our obligations to one another are dissolved.56 But they are not therefore internal to some particular society or ‘way of life,’ nor are they dependent on any set of conventions beyond the most basic ones that establish any society. They are, as it were, synthetic a priori truths – they state the conditions required for any form of society whatsoever. As such, they are universal. In a more recent work, Livingston offers an entirely different explanation of Hume’s belief in our basic right to resistance. No longer is this right possessed by spirited Nietzschean individuals fighting for their place in society. Instead, the right of resistance is a right possessed by social groups – ‘the people as incorporated into great social orders and ways of life’ – rather than by individuals. It is supposedly exercised to preserve ‘the established prescriptive social orders in which individuals are incorporated.’57 Livingston points out, correctly, that, discussing the right to resistance in the Treatise, Hume refers to parts of a mixed constitution defending themselves against other parts. But Hume never suggests this right is limited to such cases. In fact, he explicitly says the right of self-preservation is held both by individuals and by communities. ‘The right of self-preservation is unalienable in every individual,’ he says, ‘much more in every community.’58 And elsewhere he speaks of the ‘right of resistance in the subject,’ singular.59 Hume even provides an example of a case where a single individual is justified in asserting his right to resistance. He tells us how Strafford, at his trial for treason against the crown, is accused of using ‘some such expression, as that Of being absolved from rules of government.’ Strafford was at that time entirely isolated, representing no larger group and certainly nothing so grand as a social order or way of life. Yet Hume says: ‘in such desperate extremities as those into which the king and kingdom were then fallen, a maxim of that nature, allowing it to be delivered by Strafford, may be defended, upon principles the most favourable to law and liberty.’60 It has been the task of this book to explain the standards Hume uses for judging certain governments to be better or worse than others, and how these standards are grounded in his philosophy as a whole. It has been

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the aim of this chapter to provide a conceptual framework that allows us to make sense of his explicitly conservative statements, given his political theory as I have laid it out. The essence of my interpretation of Hume’s political thought is not new. Sheldon Wolin may be given credit for an early reading of Hume’s political theory that I take to be in line with my precautionary conservative interpretation. According to Wolin, Hume belongs to a tradition of liberalism that, having ‘lost its status as a challenge to the established order and [having] become the order itself,’ had become ‘conservatized.’61 And I have already said that the case for Hume’s affinity for liberal reformism has been presented in great detail by John B. Stewart; I have tried to make my debt to Stewart clear throughout. However, an explicit articulation of Hume’s theory in terms of what I have called precautionary conservatism allows us to understand certain crucial elements of this theory that we might otherwise overlook. First of all, it allows us to see that his conservatism about change does not automatically imply what I have called particularism. Second, it allows us to understand the pragmatic nature of Hume’s conservatism by clarifying the distinction he draws between the justification of our actions and their prudence. We may find Hume’s theory unsatisfying in one crucial respect: he does not seem to give us a fully realized account of how we may reform existing societies within the confines of precautionary conservatism. We must apparently be content to do our part towards increasing the wealth of our society, fighting superstition and mistaken views on matters such as the moral value of commerce, and, where we have the opportunity, enlightening rulers and legislators on the best sorts of laws and forms of government. For those of us with the misfortune to have been born in a barbarous age or under a barbarous government, this may seem like cold comfort. Hume certainly never exaggerates his own optimism about social change. It is a slow, gradual task, and we must content ourselves with the possibilities available to us. The risks that always inhere in large-scale change mean that it cannot be otherwise.

Conclusion

‘The differences of moral sentiment ... are very obvious,’ Hume says in the second Enquiry, ‘which proceed from general riches or poverty, union or faction, ignorance or learning.’1 I have tried to explain why he thinks this is so and why this view plays a central role in his political philosophy as a whole. I have argued that, for Hume, differences in morals are not merely a matter of individual sentiment or judgment. Rather, the spread of humanity and good taste depends on the manners of the age and nation in which we live. We now see that these in turn depend on favourable economic and social conditions, which are linked in their turn to our nation’s political and legal system. Seen in this light, the wide range of topics Hume addresses in the Essays and the History of England need not appear so baffling, or so capricious. They may be seen as forming, as it were, an indissoluble chain linking them to questions Hume first addresses in the Treatise on the nature and foundation of government. We have seen that, for Hume, we can take concrete steps towards improving what we might call the moral health of our society. If we are citizens, we are called on to be industrious and to follow our natural desire for luxury, though he points out we must not let our industrious activities actually crowd out the practice of virtue. We should also do what we can to promote knowledge and the arts. If we are a legislator, we must establish general and equitable laws that will ensure industry is fairly rewarded. Hume is not a perfectionist. He never suggests we will achieve a perfectly moral, perfectly consensual, perfectly civilized society. But he is an optimist. He thinks modern societies have made great strides over their predecessors, and, so long as we do not allow the process of economic development to be impeded by misplaced moral concerns, there is reason to hope this process will continue.

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I have said that from the time his works were published, many people took them to be defending a distinctly ‘Tory’ point of view. At the same time, he has always been seen as an important figure in the general movement towards openness and equality we now refer to as the Enlightenment. I have offered a way of reconciling these two images: by seeing Hume as a cautious ‘dispositional’ conservative who nevertheless possesses a strong positive vision for the future of society. By understanding Hume’s views on civilized societies and moral consensus, we can place him more accurately within the context of his time and see more clearly his boldness and originality. We have seen that Hume challenges the influence of those people he calls ‘severe moralists,’ who believed that commerce was a corrupting influence on people and that widespread poverty was beneficial to society. While Hume agrees with Bernard Mandeville that avarice can promote overall well-being, he does not join Mandeville in suggesting that virtue is no more than a sham. Hume is, in his way, more revolutionary than Mandeville, for he argues not that we should ignore virtue and let commerce flourish, but that commerce will actually promote virtue, as well as material comfort. We are left with the difficult question of Hume’s influence on political philosophy. James Fieser has done philosophers and historians an invaluable service in making available a range of contemporary responses to Hume’s writings.2 Here I would only like to highlight a few lines of influence that have particular relevance to the topics covered in this book. Hume’s impact on the legal philosophy of the era is somewhat elusive, but there is reason to believe it is significant. The Italian Cesare Beccaria was unquestionably the great legal reformer of the Enlightenment. His treatise On Crimes and Punishments inspired readers across Europe – Bentham called him ‘my master, first evangelist of reason’ – and provoked rulers in Prussia, Russia, and Tuscany to change their nations’ legal practices.3 But Beccaria saw himself as part of a much broader movement for legal and political reform, of which he saw Hume as a central figure. His friend Morellet reported on the treatise’s success in Paris, mentioning that Hume ‘sends his best regards.’ Beccaria replied: D’Alembert, Diderot, Helvetius, Buffon, Hume, names which no one can hear without emotion. Their immortal works are the object of my contin-

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ual study, of my occupation by day and of my meditation in the silence of night ... My spirit was enthralled and enlightened by the profound metaphysics of Hume, by the truth and novelty of his views; I recently read with infinite pleasure the eighteen volumes of his history and I saw in him a political writer, a philosopher and a historian of the highest order.4

And, indeed, Beccaria’s criteria for how good laws should be written bear a striking resemblance to Hume’s. Beccaria’s greatest successor as a legal reformer, the Englishman Jeremy Bentham, was another close reader of Hume, who found in him inspiration for his own reformist impulses. It was in reading the third volume of Hume’s Treatise that Bentham said he ‘felt as if scales had fallen from my eyes. I then, for the first time, learnt to call the cause of the people the cause of virtue.’5 A deeper understanding of Hume’s legal thought may help scholars to understand better the extent of his influence on Bentham. Hume was one of a group of historians who were all concerned with the development of societies from states of barbarism to civilization. He was certainly an influence on Turgot and Adam Smith, both of whom were close friends. These two (as well as another close friend, Lord Kames) offered models of social progress that have an obvious affinity, if not an outright debt, to Hume. They too were centrally concerned with the rise of commerce and its impact on manners and morality. There was, however, one key difference: these other writers constructed a theory of social development that was based upon distinct stages. As Ronald L. Meek explains, the ‘four stages’ theory to which these writers subscribed ‘was that society “naturally” or “normally” progressed over time through four more or less distinct and consecutive stages, each corresponding to a different mode of subsistence, these stages being defined as hunting, pasturage, agriculture, and commerce.’6 Drawing on a wide range of materials, four-stages theorists contended that ‘to each of these modes of subsistence ... there corresponded different sets of ideas and institutions relating to law, property, and government, and also different sets of customs, manners, and morals.’7 Whatever role he may have played in inspiring this theory, Hume’s own explanation of social development seems, in retrospect, the more sophisticated one for being less rigid and more attuned to the specifics of individual societies. Perhaps the most overlooked aspect of Hume’s legacy is his impact on the debates surrounding civic republicanism. Civic republican discourse, a central feature of opposition rhetoric up to Hume’s day, was in any case destined to lose much of its currency after the revolutions of the

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eighteenth century, which popularized a new, more radical form of (genuinely democratic) republicanism.8 But when Hume wrote his political essays, civic republicanism was a dominant theme in Scotland’s political life. Hume was personally close to the ‘Moderate’ church leaders, led by William Robertson and Hugh Blair, who were supported by the Duke of Argyll and who avidly promoted civic republican ideals. (On George III’s accession a decade later, the Moderates’ association with civic republicanism helped bring them into close association with the new king, through his adviser Lord Bute, Argyll’s nephew.) Perhaps the most sophisticated advocate for civic republicanism among the Moderates was Adam Ferguson. Hume encouraged Ferguson to write his Essay on the History of Civil Society and helped find it a publisher. He was, however, bitterly disappointed by its final form, which vigorously promotes key civic republican ideas. ‘I shoud,’ Hume says of the Essay, ‘concur in any Method to prevent or retard the Publication.’9 Hume’s disappointment has always been something of a mystery to historians.10 However, by comparing the two men’s treatment of civic republican themes, we can plausibly speculate that these were among the issues that divided them. Scholars have been further puzzled by the fact that Hume spoke highly of what may have been an early draft of the Essay. But the title of this draft (if such it was), ‘A Treatise on Refinement,’ suggests that it may have focused on those positions Hume and Ferguson shared in common. Both men used the techniques of political economy to show how a ‘rude’ nation may become a modern commercial state. However, in the Essay, Ferguson warns of the moral dangers of such progress. He condemns not just luxury but ‘industry’ – one of Hume’s cardinal virtues – as the destructive pursuit of self-interest.11 Ferguson offers up the standard civic republican praise of Sparta, which he says, ‘prospered for ages, by the integrity of its manners, and by the character of its citizens.’12 Though Hume hid his disappointment from Ferguson, the younger man may have realized his friend’s reaction, and the reason for it. I have already quoted Ferguson’s comment, made shortly after the book’s publication: ‘I know that you are an admirer of the Athenians as well as Mrs. Montagu, and if I were to plead the cause of Sparta against her I must appeal elsewhere.’13 It is in any case a matter of record that Hume discussed the issues surrounding civic republicanism with Ferguson more than once during the course of their acquaintance. We know this thanks to Hume’s other close friend who pleaded the cause of Sparta to his unreceptive ear: the playwright John Home.

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Home went so far as to write a play, Agis, about the ancient republic and its struggle to restore its virtue and preserve its liberty. ‘Equal and free,’ says the hero, ‘our happy fathers knew / No interest but the interest of the State.’14 In 1776, Home travelled with Hume when the philosopher went to Bath in a fruitless attempt to alleviate his final illness, and Hume used the opportunity to tease his companion about their philosophical differences. Home’s account provides a suitable epitaph, with Hume eloquently defending his own philosophy with the good humour for which he was famous. ‘Nothing occurred worthy the writing down,’ recorded Home in the final entry of his travel journal, ‘except Mr David’s plan of managing his kingdom, in case Ferguson and I had been princes of the adjacent states. He knew very well, he said, (having often disputed the point with us,) the great opinion we had of military virtues as essential to every state; that from these sentiments rooted in us, he was certain he would be attacked and interrupted in his projects of cultivating, improving, and civilizing mankind by the arts of peace.’15 Hume was not worried – as we have already seen, he thinks a commercial republic will tend to be more powerful than a martial one. Home relates that Hume took comfort in the fact that his two more Spartan neighbours would squander their resources on their militaries and would remain ignorant of fiscal matters. They would, as a consequence, leave their states perpetually on the verge of bankruptcy. Hume, on the other hand, would manage his domestic affairs prudently. As a result, his subjects would find his ‘his finances in excellent condition’ and his warehouses and granaries constantly filled with goods. He joked that, all else failing, he could simply bribe his two neighbours to fall on one another and leave him alone.16 By emphasizing that the right sort of constitution does not depend on the virtue of the legislators, Hume lays claim to being one of the philosophical architects of the modern liberal state. As Iain Hampshire-Monk points out, this maxim was hugely important in the development of modern liberal society. ‘Constructing societies for knaves, rather than building republics in the hearts of citizens,’ says Hampshire-Monk, ‘was the essence of the modern project.’17 Similarly, David Winch defines the liberal constitutionalist tradition of political theory as based on the conviction that politics should be ‘far more a matter of legal and constitutional machinery than of men or any specifically political qualities which they may be called upon to display in public settings.’18

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Democracy arguably could not have developed in modern society without the ultimate acceptance of Hume’s idea of a constitution as producing rather than depending on virtue. Democracy was long held back by the belief that it depended on virtuous citizens and leaders. Over two decades after Hume’s death, the young Napoleon surveyed the French Revolution from the distance of Corsica and declared: ‘Liberty is a chimera; the democratic principle depends on virtue and [here] all is vice.’19 Can we credit Hume’s writings with spreading the opposite view? He was certainly taken as a touchstone by some who believed it. When the American colonists began to design their new, independent government, the issue of virtue was central to the debate. The aging Ben Franklin, in his opening address to the Constitutional Convention, cited Pope’s dictum in his somewhat equivocal endorsement of the constitutional project. ‘I agree to this Constitution with all its faults, if they are such:’ he said, ‘because I think a General Government necessary for us, and there is no Form of Government but what may be a blessing to the People if well-administered; and I believe farther that this is likely to be well administered for a Course of Years and can only end in Despotism as other forms have done before it, when the People shall become so corrupted as to need Despotic Government, being incapable of any other.’20 James Madison, who has often been considered a Humean political theorist (having used similar arguments to Hume’s to justify a system of delegated representation), says that without ‘virtue in the people, no theoretical checks, no form of government, can render us secure.’21 But it was in Hume that John Adams found just the opposite view. ‘I am not often satisfied with the opinions of Hume;’ he says, ‘but in this he seems well founded, that all projects of government, founded in the supposition or expectation of extraordinary degrees of virtue, are evidently chimerical.’22 The long shadow Hume cast into the nineteenth century is illustrated by an anecdote told by Thomas Macaulay, whose own History of England became Hume’s first true competitor after its release in the middle of the century. ‘At last,’ Macaulay wrote to his friend T.F. Ellis, ‘I have attained true glory. As I walked through Fleet Street the day before yesterday, I saw a copy of Hume at a bookseller’s window with the following label: “Only £2 2s. Hume’s History of England in eight volumes, Highly valuable as an introduction to Macaulay!”’23 How valuable is Hume to a modern reader? To a twenty-first-century audience, Hume’s faith in the progress of civilization may seem quaint,

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underestimating as it perhaps does the risk of even the most developed societies relapsing into terrible barbarity, or short-sighted, ignoring as it certainly does the disastrous effects that the development of commerce can have on the natural environment. With these caveats duly noted, I believe Hume can still be read with profit. He is a lucid and enjoyable guide both to the politics and culture of his time and to the history of Britain – even if he is not entirely reliable in either role. And he is, above all, a pioneer. Just as great figures in the history of science find their most potent insights incorporated into the works of others, often without credit, so it is with innovators in the field of politics. Hume in fact was often attacked by precisely those people who owed him the greatest debt, self-consciously ‘Whig’ historians like Macaulay being prime examples. Hume was one of the early advocates for the division of labour. I can therefore invoke his authority in leaving unresolved the question of what Hume’s legal and political theory means for us today. This question is better addressed by others more engaged with the problems of modern political philosophy. However, it cannot even be addressed before we come to an accurate understanding of what it is Hume actually thought, and it is to such an understanding that I have tried to contribute. I have attempted to clear away certain misconceptions about his views so that we can look on his writings with fresh eyes. Such a perspective may yet yield important new insights into the problems we face today.

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Notes

Introduction 1 Leslie Stephen, History of English Thought in the Eighteenth Century, 2 vols. (London: Smith, Elder, 1876), 2:185. 2 Peter Gay, The Enlightenment: An Interpretation, 2 vols. (New York: Alfred A. Knopf, 1967), 2:453; Roy Porter, The Creation of the Modern World (New York: W.W. Norton, 2000), 251. 3 Letters 1: 84. 4 Quoted in Ernest Campbell Mossner, The Life of David Hume (Oxford: Clarendon Press, 1980), 139. 5 J.S. Mill, ‘Bentham,’ in Essays on Politics and Culture, ed. G. Himmelfarb (New York: Doubleday, 1963), 80; Bertrand Russell, ‘A Reply to My Critics,’ in The Philosophy of Bertrand Russell, ed. P. Schilpp (Evanston and Chicago: Northwestern University Press, 1944), 727. 6 Marjorie Grene, ‘Hume: Sceptic and Tory?’ Journal of the History of Ideas 4 (1943): 334. Cf. Ernest Campbell Mossner, ‘Was Hume a Tory Historian?’ Journal of the History of Ideas 2 (1941): 225–36. 7 David Miller, Philosophy and Ideology in Hume’s Political Thought (Oxford: Oxford University Press, 1981), 203. 8 Donald Livingston, Hume’s Philosophy of Common Life (Chicago: University of Chicago Press, 1984), 335. 9 Livingston, Common Life, 31. 10 Livingston, Common Life, 339. 11 T 1.4.7.12: 270–1. 12 Essays, 513; Letters 2: 306; cf. Essays, 51: ‘There is no doubt, but a popular government may be imagined more perfect than absolute monarchy, or even than our present constitution.’

146 Notes to pages 6–9 13 14 15 16 17 18

19 20

21 22 23 24 25 26 27 28 29 30 31 32 33 34

Essays, 94. Essays, 41. Essays, 122. History 2: 525. History 2: 141. John Locke, Some Thoughts concerning Reading and Study for a Gentleman, in Political Essays, ed. Mark Goldie (Cambridge: Cambridge University Press, 1997), 400. Knud Haakonssen, The Science of a Legislator (Cambridge: Cambridge University Press, 1981), 37. This question is discussed in Donald Livingston, Philosophical Melancholy and Delirium (Chicago: University of Chicago Press, 1998). See, for instance, page 217 for a discussion of barbarism and civilization as Hume understands these concepts in general. However, Livingston does not provide an elaboration of what characterizes civilized government per se beyond noting the importance of the rule of law. Claudia M. Schmidt also discusses Hume’s general views on civilization and barbarism in David Hume: Reason in History (University Park: Pennsylvania State University Press, 2003), again without exploring what specifically characterizes civilized and barbarous governments or how they come about. See, for instance, 405–8. Essays, 15. The Complete Works of Captain John Smith (1580–1631), ed. Philip L. Barbour, 3 vols. (Chapel Hill: University of North Carolina Press, 1986), 2:315–16. James Boswell, Life of Johnson, ed. R.W. Chapman (London: Oxford University Press, 1980), 466. Letters 2: 111. Essays, 269. History 4: 315; History 2: 525. Essays, 278. History 1: 3. Essays, 303. Letters 2: 110. History 2: 477. Essays, 271. History 3: 76. Hume was not the first writer to make this claim. Voltaire and Montesquieu were among those who touted the virtues of ‘le doux commerce.’ ‘Commerce ... polishes and softens [adoucit] barbarian ways,’ says Montesquieu, ‘as we can see every day.’ Quoted in Albert O. Hirschman, The Passions and the Interests (Princeton: Princeton University Press, 1977), 60. The issue of Mon-

Notes to pages 9–13

35 36 37 38

39 40 41 42 43 44

45

147

tesquieu’s influence on Hume is currently unresolved among scholars. Hume knew Montesquieu’s writings and responds to them in several places. (He disputes the French writer’s environmental determinism.) But The Spirit of the Laws appeared in 1748, after many of Hume’s important essays had already been published, and there is good reason to believe Hume developed his ideas independently. In any case, Hume’s theory, as laid out in this book, has, I believe, a uniquely systematic and sophisticated form. Essays, 117. Essays, 276. Essays, 16. Alexander Pope, An Essay on Man, Epistle III, lines 303–4, in The Poems of Alexander Pope, ed. John Butt (New Haven: Yale University Press, 1963), 534. It is interesting to note that Pope, like Hume, liked to think that he was above party, taking a certain pride that, in his words, ‘Tories call me Whig, and Whigs a Tory’ (‘The First Satire of the Second Book of Horace Imitated,’ line 68, in Poems, ed. Butt, 615.) Essays, 14–15. Essays, 42. J.G.A. Pocock, The Machiavellian Moment (Princeton: Princeton University Press, 1975), 484. Essays, 54. Essays, 303. The proposition ‘was endlessly stated and almost universally believed by city-state Greeks and Romans alike, even by Plato and Aristotle, [that] the essential condition for a genuine political society, for a true polis and therefore for the good life, is “Rule by laws, not by men.” Innumerable statements of the slogan can be quoted down to Cicero in the last days of the Roman Republic.’ M.I. Finley, Politics in the Ancient World (Cambridge: Cambridge University Press, 1983), 135. Postema calls Hume’s theory of justice ‘a sophisticated generalization of Common Law conventionalism.’ Gerald J. Postema, Bentham and the Common Law Tradition (Oxford: Oxford University Press, 1986), 117; cf. 132–3. Whelan says, somewhat more tentatively, that Hume ‘has close affinities to the “long tradition of sceptical and conservative empiricism in English social thought” that is sometimes associated with the pervasive influence of common law and the comparatively high degree of continuity in traditional institutions and modes of thought in England.’ Frederick Whelan, Order and Artifice in Hume’s Political Philosophy (Princeton: Princeton University Press, 1985), 31. The quote is from J.G.A. Pocock, ‘Burke and the

148 Notes to pages 13–17

46

47 48 49

50 51

52

Ancient Constitution: A Problem in the History of Ideas,’ in Politics, Language, and Time: Essays in Political Thought and History (New York: Atheneum Press, 1971), 215. Duncan Forbes, Hume’s Philosophical Politics (Cambridge: Cambridge University Press, 1975), 142–3, 153ff. For further discussion of scientific Whiggism in the Scottish Enlightenment, see Forbes, ‘Scientific Whiggism: Adam Smith and John Millar,’ Cambridge Journal 7 (1954): 643–70. Whelan, 295. Whelan, 322. In the Dialogues on Natural Religion Philo emphasizes the empirical nature of good political philosophy in a passage I cite in chapter six below (the passage is at DNR 1.10: 134). Isaiah Berlin, The Age of Enlightenment (New York: Houghton Mifflin, 1956), 29. On the development of the four-stage theory in the eighteenth century see Ronald L. Meek, Social Science and the Ignoble Savage (Cambridge: Cambridge University Press, 1976). See for instance Letters 2: 358.

1. Hume’s Indissoluble Chain 1 Essays, 303. 2 Letters 1: 39. Hume is quite obviously being disingenuous here. He had no desire to avoid such a conclusion. It was in fact one of his chief goals to establish it. 3 J.L. Mackie, Hume’s Moral Theory (London: Routledge and Kegan Paul, 1960). 4 Letters 1: 32. 5 Hume’s distinction between anatomy and painting has been the subject of extensive discussion. See James Moore, ‘Hume and Hutcheson,’ in Hume and Hume’s Connections, ed. M.A. Stewart and John Wright (University Park: Pennsylvania State University Press, 1995); Richard Sher, ‘Professors of Virtue,’ and P.B. Wood, ‘Science and the Pursuit of Virtue,’ in Studies in the Philosophy of the Scottish Enlightenment, ed. M.A. Stewart (Oxford: Clarendon Press, 1990); M.A. Box, The Suasive Art of David Hume (Princeton: Princeton University Press, 1990); John Immerwahr, ‘Hume’s Dissertation on the Passions,’ Journal of the History of Philosophy 32 (1994): 225–40; Christine Korsgaard, Sources of Normativity (Cambridge: Cambridge University, 1996), 52–3. 6 Robert Shaver and James Fieser, among others, have argued that Hume’s

Notes to pages 17–18

7 8 9 10 11 12 13 14

149

‘descriptive’ moral theory is meant to have normative implications. See Robert Shaver, ‘Hume and the Duties of Humanity,’ Journal of the History of Philosophy 30 (1992): 545–56, and ‘Hume’s Moral Theory?’ History of Philosophy Quarterly 12 (1995): 317–31; James Fieser, ‘Is Hume a Moral Sceptic?’ Philosophy and Phenomenological Research 50 (1989): 89–106. See also David Fate Norton, David Hume: Common-Sense Moralist, Skeptical Metaphysician (Princeton: Princeton University Press, 1982). EPM 2.1.5: 177. EPM 2.1.1: 78. EPM 5.2.2.28: 215. See EPM App. 2.5 fn. 60: 298. This distinction was first noticed by Robert Shaver. See Shaver, ‘Hume and the Duties of Humanity.’ Essays, 170. (See EPM 9.1.8: 149.) T 2.2.5.15: 234–5, 363. T 3.3.1.11: 370, 579. See T 2.3.9.12: 282, 440–1. Hume’s doctrine of sympathy is the subject of extensive debate and disagreement among scholars. Questions remain over the extent to which Hume’s doctrine as laid out in the Treatise is preserved in the Enquiry, or whether the Enquiry relies on something much closer to Hutcheson’s moral sense theory. I accept the account of Rico Vitz in ‘Sympathy and Benevolence in Hume’s Moral Psychology,’ Journal of the History of Philosophy 42 (2004): 261–75; he holds the two to be consistent. And discussion continues about important aspects of the doctrine in the Treatise itself. Much of this debate centres on how successful Hume’s account is in providing a moral point of view that can lead us to consideration of all those affected by our traits of character rather than merely our friends and intimates. I do not see it as necessary to enter into either of these debates here. It is sufficient to note what I do not think is seriously disputed: that Hume is throughout his work attempting to analyse our moral sentiments in terms of a sentimental concern for as wide a circle of our fellow creatures as possible; I conclude that this sentimental concern may safely be called extensive sympathy or general benevolence. For discussion of Hume and sympathy, see for instance Kate Abramson, ‘Sympathy and the Project of Hume’s Second Enquiry,’ Archiv für Geschichte der Philosophie 83 (2001): 45– 80; R.W. Altmann, ‘Hume on Sympathy,’ Southern Journal of Philosophy 18 (1980): 123–36; Páll Árdal, Passion and Value in Hume’s Treatise (Edinburgh: Edinburgh University Press, 1966), esp. 116–18, 124; Annette Baier, Progress of Sentiments (Cambridge: Harvard University, 1991), 179–91; Charlotte Brown, ‘From Spectator to Agent,’ Hume Studies 20 (1994): 19–35; Stephen Darwall, ‘Hume and the Invention of Utilitarianism,’ in Hume and Hume’s

150 Notes to pages 18–25

15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35

36 37 38 39 40 41

Connections, ed. M.A. Stewart and John Wright (University Park: Pennsylvania State University Press, 1994), 70–1; J.L. Mackie, Hume’s Moral Theory (London: Routledge and Kegan Paul, 1980), 122ff.; Paul Mercer, Sympathy in Ethics (Oxford: Clarendon, 1972), 64–5, 69; Elizabeth Radcliffe, ‘Hume on Motivating Sentiments,’ Hume Studies 20 (1994): 37–58; Geoffrey SayreMcCord, ‘On Why Hume’s General Point of View Isn’t Ideal – and Shouldn’t Be,’ Social Philosophy and Policy 11 (1994): 202–28. For an interesting and wide-ranging discussion of Hume’s views on sympathy as they relate to the religious and historical themes in his writing, see Jennifer A. Herdt, Religion and Faction in Hume’s Moral Philosophy (Cambridge: Cambridge University Press, 1997). T 2.2.5.15: 363. T 2.2.6.21: 365. T 2.1.8.9: 303. T 2.1.11.2: 317. T 2.2.5.15: 363. T 3.2.1.12: 481. T 2.1.11.6: 318. T 3.3.1.15: 581–2. Essays, 170. T 1.3.13.7: 146. History 1: 179. EHU 8.1.11: 85. History 1: 277. DNR 1.19: 139. Essays, 4. Essays, 271. Essays, 535. T 2.2.4.4: 353. Essays, 152. Essays, 271. For a clear account of the importance of industry for Hume, an account to which my own is indebted, see Eugene Rotwein’s introduction to David Hume, Writings on Economics, ed. E. Rotwein. (Edinburgh: Nelson, 1955). Essays, 269. T 3.3.1.2: 574. T 2.3.9.1: 438. For instance: T 1.3.10.2: 118; T 2.3.9.8: 439 T 2.2.8.12: 377. Essays, 70.

Notes to pages 25–31 151 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59

60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76

Essays, 139. Essays, 141. T 2.1.6.7: 293. T 2.1.4.4: 284. T 2.1.5.1: 285. Essays, 169. Essays, 300. Essays, 269; emphasis added. T 2.2.4.4: 353. Essays, 269. Essays, 217. DNR 11.10: 209. Essays, 149. Essays, 150. DNR 11.10: 208. T 2.3.10.6: 450–1. T 2.3.10.3: 449. T 2.2.4.4: 352–3. There is debate among Aristotle scholars about the role practical, rather than mere theoretical, wisdom is supposed to play in our ultimate happiness. See, for instance, Sarah Broadie, Ethics with Aristotle (Oxford: Oxford University Press, 1991), 412–19. T 1.4.7.13: 271. Essays, 50–1. Essays, 221. T 2.2.4.4: 353. T 1.3.7.6: 97. T 2.3.10.12: 453 T 1.3.12.11: 135. T 2.3.10.4: 449–50. T 2.3.10.6: 451. Essays, 271. Christopher Berry, The Idea of Luxury (Cambridge: Cambridge University Press, 1994), 101. Essays, 268. Essays, 4. Essays, 49; Essays, 89. Essays, 261. Essays, 232. James Steuart, Works, 6 vols. (London: T. Cadell and W. Davies, 1805), 1: 203.

152 Notes to pages 31–5 77 Montesquieu, Spirit of the Laws, trans. and ed. Anne Cohler, Basia Miller, and Harold Stone (Cambridge: Cambridge University Press, 1989), 7.1: 96. 78 For instance, Essays, 275. 79 Essays, 368. 80 Essays, 268. 81 For Hume on luxury, see Berry, 142–52. My own account generally follows his. For instance, Berry writes: ‘The consequences of action/industry are the advantages it bestows. By drawing attention to these advantages Hume is at the forefront of the utilitarian strategy, broadly-conceived to dissociate luxury from a negative assessment of the ‘good society’ and view it positively, because of its effects, as an ingredient in a civilised society’ (145). However, Berry also says that ‘to lay stress upon civilisation is to attach less weight to formal constitutions’ (152). I am arguing that in fact the two are intimately connected. John Stewart discusses the benefits of commerce and luxury in Opinion and Reform in Hume’s Political Philosophy (Princeton: Princeton University Press, 1992), 257–60. 82 Essays, 113. 83 T 3.3.2.13: 316. 84 Essays, 42; original emphasis. 85 Essays, 42. 86 History 2: 411. 87 Essays, 113. 88 Essays, 301. 89 For a recent short but very useful analysis of Hume’s views on luxury as a motivator to industry, see M.G. Marshall, ‘Luxury, Economic Development, and Work Motivation: David Hume, Adam Smith, and J.R. McCulloch,’ History of Political Economy 32 (2000): 631–48. Marshall points out that ‘the whole weight of Hume’s analysis was against the utility-of-poverty doctrine’ (634). See also his ‘Scottish Political Economy and the High Wage Economy: Hume, Smith, and McCulloch,’ Scottish Journal of Political Economy 45 (1998): 309–28. 90 Essays, 264. 91 Essays, 261. 92 Essays, 261. 93 Essays, 623. 94 Essays, 270. 95 Essays, 273. 96 Essays, 120. 97 Essays, 270. 98 Essays, 271.

Notes to pages 35–9

153

99 100 101 102 103 104 105

History 1: 296. Essays, 328. Essays, 277–8. Essays, 546; emphasis original. Essays, 179. Essays, 117. Essays, 623. Cf. Essays, 179: ‘never [may the sciences raise their heads and flourish] amidst such a scene of oppression and slavery, as always results from barbarous monarchies.’ John Stewart says: ‘Although Hume distinguishes clearly between economic power and political authority, he sees economic and political progress as closely inter-related. The nature of the prevailing government has socioeconomic effects; similarly, it is almost certain that major economic changes will produce changes in government.’ Stewart, Opinion and Reform, 232. 106 Essays, 94. 107 His contrast between government of will and government of law is at History 2: 174. 108 See, for instance, Frederick G. Whelan, Order and Artifice in Hume’s Political Philosophy (Princeton: Princeton University Press, 1985), 350ff.; Donald W. Livingston, Philosophical Melancholy and Delirium (Chicago: University of Chicago Press, 1998), 181–2; David Miller, Philosophy and Ideology in Hume’s Political Thought (Oxford: Oxford University Press, 1981), 142–62. 2. Barbarous Government and the Perils of Discretion 1 2 3 4 5 6 7 8 9 10 11 12

T 3.2.2.9: 489. T 3.2.2.12: 491. Essays, 54–5. T 3.2.3.2: 502. T 3.2.7.6: 537. T 3.2.7.8: 538. T 3.2.2.12: 491. History 1: 445. Essays, 37. T 3.2.8.5: 543. T 3.2.7.8: 538–9. David Miller, Philosophy and Ideology in Hume’s Political Thought (Oxford: Oxford University Press, 1981), 203. 13 T 3.2.10.1: 553. 14 T 3.2.10.1: 553.

154 Notes to pages 39–43 15 T 3.2.3.5: 505. 16 Hume is normally interpreted as thinking that it is necessary only for a particular system of laws, as for a particular form of government, to have what Francis Snare calls ‘imaginative salience’ – the ability to appeal to people’s imaginations. Snare says this quality is ‘blatantly arbitrary.’ Francis Snare, Morals, Motivation and Convention (Cambridge: Cambridge University Press, 1990), 231. William C. Charron also says that for Hume, ‘the imagination gives one governmental arrangement the appearance of an a priori right to rule’ but that ‘this appearance of entitlement will not withstand the scrutiny of reason.’ William C. Charron, ‘Convention, Games of Strategy, and Hume’s Philosophy of Law and Government,’ American Philosophical Quarterly 17, no. 4 (October 1980), 334; emphasis original. D.D. Raphael says: ‘Hume says nothing about the possibility of querying the fairness of positive law.’ D.D. Raphael, Concepts of Justice (Oxford: Clarendon Press, 2001), 88. Other accounts of Hume’s legal theory either support this interpretation or leave it unchallenged. See, for instance, Gerald Postema, Bentham and the Common Law Tradition (Oxford: Oxford University Press, 1986); Leslie Green, ‘Authority and Convention,’ Philosophical Quarterly 35 (October 1985): 329–46; Luigi Bagolini, ‘Legal Obligation in Hume,’ Hume Studies 7 (1981): 85–93. 17 Essays, 115. 18 T 3.2.7.3: 535. 19 Essays, 178. 20 Essays, 178. 21 Essays, 178. 22 Essays, 117. 23 History 2: 174; emphasis added. 24 Essays, 623 fn. B (appears in editions C to P). 25 Essays, 124. 26 Essays, 118; Hume uses this same language in presenting a more concrete example: the oppressions of Cromwell’s major-generals. He says Cromwell ‘acted according to the maxims of Eastern tyranny’ and ‘parcelled out the people into so many subdivisions of slavery.’ History 6: 74. 27 See, for instance, History 4: 356. 28 History 4: 370. 29 Essays, 116. 30 Essays, 122 fn. 13. In speaking of the various public officials, Hume often seems to imply a modern style of government, where such people are officers of the crown. However, he is well aware that historically, duties such as justice-keeping and revenue-raising have very often been the province of

Notes to pages 43–6

31 32 33 34 35

36 37 38 39 40 41

42 43 44 45 46 47 48 49

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powerful aristocrats. Where these people retain such powers, they and their retainers present a greater threat of vexation than any office-holder whose position is dependent on the monarch. See, for instance, History 1: 485. Essays, 117. Essays, 117. Emma Rothschild, Economic Sentiments (Cambridge, MA: Harvard University Press, 2001), 27. Essays, 116. Essays, 95. In The Wealth of Nations, Adam Smith takes up this insight to launch a sustained attack on England’s archaic and ‘vexatious’ commercial jurisprudence. He refers to the ‘mortifying and vexatious visits of the taxgatherers’ and to the ‘trouble or vexation’ inflicted by ‘custom-house officers.’ Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, ed. R.H. Campbell and A.S. Skinner (Oxford: Clarendon Press, 1976), 827, 898–9. The most astute French observers agreed. In 1770 Turgot complained that as a result of changes in financial laws, ‘the destiny of citizens is abandoned to an arbitrary and fluctuating jurisprudence.’ AnneRobert-Jacques Turgot, ‘Mémoire sur les prêts d’argent,’ in Oeuvres de Turgot et documents le concernant, ed. Gustave Schelle (Paris: Alcan, 1913–23), 3: 161; quoted in Rothschild, 27. Essays, 356. T 3.2.10.16: 563 Essays, 94. Essays, 117. T 3.2.7.8: 538. The Federalist no. 51, in Alexander Hamilton, James Madison, and John Jay, The Federalist Papers, ed. Clinton Rossiter (New York: Mentor Books, 1999), 322. Essays, 54–5. Essays, 383; see Essays, 62, for an apparent contrast between public liberty and public slavery. Essays, 191. EPM Appendix 3.10: 308. Essays, 179. Essays, 117. Essays, 125. Alfons Beitzinger recognizes the role of ‘general and inflexible rules’ in Hume’s legal theory, though he does not explore this role in detail. See ‘The Place of Hume in the History of Jurisprudence,’ American Journal of Jurisprudence 20 (1975): 21–37; these rules are mentioned at 37.

156 Notes to pages 46–54 50 See EHU 11.17: 138; EHU 8.29.9: 82; EHU 7.1.21: 69. 51 Essays, 12. For other uses of the expression see (for instance) pages 41, 116, 117, 122 fn. 3, and 124–5 of the same volume; also History 1: 19; History 1: 277; History 1: 464. 52 EPM Appendix 3.6: 305. 53 T 3.2.2.22: 497. 54 T 3.2.2.22: 498. 55 T 3.2.6.10: 533. 56 EPM Appendix 3.10: 308. 57 EPM 3.2.14: 196. 58 History 3: 74. 59 Essays, 124. 60 Essays, 124. 61 Essays, 116. 62 T 3.2.7.6: 537. 63 Essays, 16. 64 Essays, 179. 65 T 3.2.6.10: 533. 66 T 3.2.6.9: 531–2. 67 T 3.2.6.9: 532. 68 T 3.2.3.3: 502. 69 EPM Appendix 1.6: 305–6. 70 EPM Appendix 1.2: 285–6. 71 EPM Appendix 1.2: 286. 72 EPM Appendix 3.10: 308. 73 Essays, 96; cf. EPM Appendix 3.6: 305. 74 See Essays, 124, a passage I discuss further in the next chapter. 75 Essays, 125. 76 T 3.2.7.6: 537. 77 Essays, 383. 78 See, for instance, History 4: 356. 79 Essays, 125. 80 Essays, 93. 81 T 2.3.2.6: 410. 82 History 1: 173. 83 History 2: 302–3. 84 History 4: 370. 85 History 4: 356. 86 History 5: 329–30. 87 For the dangers that come with the freedom to make ‘particular judgments’

Notes to pages 55–61 157

88 89 90 91 92 93 94 95

rather than ‘universal and perfectly inflexible’ laws of justice, see T 3.2.6.9: 532. Essays, 117. History 1: 359. Essays, 125. Essays, 117. Essays, 116. History 2: 135. It is in this context that he condemns the discretionary power of the Star Chamber, in the passage I quoted above (History 4: 356). History 4: 356. In a less than civilized state, the monarch may indeed need to retain certain discretionary powers merely to maintain the social order. But Hume is clear that such a state of affairs is less than ideal, and we should seek (as a society) to get beyond the need to grant such powers. See History 3: 469 fn. B; History 2: 330ff.

3. General Laws and Civilized Government 1 A.V. Dicey, Law of the Constitution, 9th ed. (London: Macmillan, 1950), 194. 2 Essays, 125. 3 Essays, 19; emphasis original. 4 History 2: 107. 5 History 3: 319. 6 Essays, 31. 7 Essays, 12. 8 EPM Appendix 3.10: 308. 9 History 1: 278. 10 History 1: 173. 11 History 1: 464. 12 History 2: 75–6. 13 Essays, 125. 14 Essays, 116. 15 History 1: 173. 16 History 5: 557. 17 History 3: 353. 18 History 1: 326. 19 History 1: 445. 20 Essays, 41. 21 T 2.3.2.5: 410.

158 Notes to pages 61–9 22 H.H. Scullard, A History of the Roman World, 753–146 B.C. (New York: Methuen, 1980), 88–9. 23 Essays, 117 24 History 2: 215. 25 Letters 1: 159. 26 EPM Appendix 3.10: 309. 27 EPM 5.2.2.: 219. See Knud Haakonssen, The Science of a Legislator: The Natural Jurisprudence of David Hume and Adam Smith (Cambridge: Cambridge University Press, 1981), 41. 28 EPM 3.2.6, 8: 194–5. 29 Essays, 124. 30 Essays, 116. 31 History 1: 359. 32 History 2: 445. 33 Essays, 233. 34 History 2: 141. 35 EPM Appendix 1.2: 286. 36 See, for instance, History 3: 79–80. 37 History 1: 141. 38 Essays, 273. 39 History 1: 371; cf. Essays, 125. 40 History 2: 520. 41 EPM Appendix 1.2: 286. 42 Essays, 24. 43 EPM Appendix 3.10: 308–9. 44 History 5: 329. 45 Essays, 513–14. 46 Essays, 99. 47 Essays, 17. 48 Essays, 117. 49 Essays, 366–7. 50 Essays, 180. 51 History 3: 24. 52 History 1: 115. 53 History 1: 173. The threat presented by the ‘turbulent barons’ is noted by Eugene F. Miller, ‘Hume on Liberty in the Successive English Constitutions,’ in Liberty in Hume’s History of England, ed. Nicholas Capaldi and Donald W. Livingston (Boston: Kluwer Academic, 1990), 75. 54 History 1: 361–2. 55 History 2: 31. Hume seems to use the term ‘feudal’ as a chronological one,

Notes to pages 69–72

56 57 58

59 60 61

62 63

64 65 66 67 68

159

to designate a particular historical era, whereas ‘barbarous’ is his analytical term to describe a form of government. He here asserts that, as an empirical matter, all feudal governments are barbarous. All barbarous governments, however, are not feudal. History 2: 75. History 2: 525. History 5: 40. The association of liberty with the regularity of law is noted in David Miller, Philosophy and Ideology in Hume’s Political Thought (Oxford: Oxford University Press, 1981), 149. This notion of regularity bears an obvious affinity to the ‘order, method and constancy’ that Hume praises in civilized monarchies (Essays, 94) – characteristics that, as Richard H. Dees notes, themselves bear an obvious affinity to Hume’s favoured epistemic principles. See ‘Hume and the Contexts of Politics,’ Journal of the History of Philosophy 30 (1992), 233 fn. 39. Perhaps the most thorough discussion of Hume’s concept of liberty is Donald Livingston, ‘Hume’s Historical Conception of Liberty,’ in Capaldi and Livingston, 105–54. I take my understanding of this concept to be consistent with Livingston’s treatment, which argues that liberty is compatible with strong central authority so long as this authority rules according to law. See also, in this same volume, Nicholas Capaldi, ‘The Preservation of Liberty,’ 195–224, and Eugene F. Miller, ‘Hume on Liberty,’ 53–104, esp. 75. History 1: 254. David Hume, ‘My Own Life,’ in Philosophical Works, ed. T.H. Green and T.H. Grose, 4 vols. (London: Longmans, Green, 1874–5), 1:5. History 5: 182. Hume thinks England’s government has ended up a sort of hybrid between a republic and a civilized monarchy. See, for instance, his essay ‘Whether the British Government inclines more to Absolute Monarchy, or to a Republic’ (Essays, 47–53.) See Essays, 18–21. We may compare Hume’s comment at History 1: 115, about the Norman government being ‘somewhat advanced in civility’ (quoted above), to an observation on the English government only a century later. Hume says that Henry IV, ‘by his valour, prudence, and address ... obtained a greater ascendancy over his haughty barons, than the law alone, not supported by these active qualities, was ever able to confer’ (History 2: 344). History 1: 115. History 1: 161. History 1: 25. History 5: 35. T 3.2.6.8: 530.

160 Notes to pages 72–7 69 It has been suggested to me that the laws governing succession, because they single out particular persons, do not meet Hume’s criteria for general laws. I think it is safe to conclude that such laws are merely sui generis in this respect, without presenting a threat to the equity of the legal system as a whole. However, Hume certainly thinks these laws can be strengthened if they are seen as applications of a more general rule, as primogeniture can be. See History 1: 486. I would like to thank Kenneth Winkler and Elizabeth Radcliffe for raising this point. 70 History 3: 134–5. 71 History 1: 286. 72 Essays, 61. 73 History 1: 311. 74 History 1: 311. 75 History 3: 136. 76 EHU 10.2.7: 119. 77 For more on the dangers of religion to social order, see page 72 below. 78 Letters 2: 302. 79 History 1: 225; Essays, 455. 80 See History 1: 225. 81 History 1: 185. 82 History 5: 47. 83 History 5: 46. 84 History 5: 47. 85 History 5: 47. 86 History 5: 48. 87 History 5: 48. 88 History 5: 48. 89 History 5: 49. 90 History 5: 49. 91 History 5: 147. 92 Essays, 526. 93 Essays, 527. 94 Essays, 519. 95 Douglass Adair has famously argued that this ‘large-state republicanism’ was a key inspiration for James Madison in writing his tenth Federalist paper. See Douglass Adair, ‘“That Politics May Be Reduced to a Science”: David Hume, James Madison and the Tenth Federalist,’ in Fame and the Founding Fathers, ed. Trevor Colbourn (New York: W.W. Norton, 1974), 93– 106. For a more recent (and in my opinion more cogent) treatment, see Mark G. Spencer, ‘Hume and Madison on Faction,’ William and Mary Quarterly 59 (2002): 869–96.

Notes to pages 77–84

161

96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111

History 2: 283. Essays, 265. Essays, 345. History 3: 79. History 2: 177. History 3: 78. History 3: 462. History 5: 20. History 5: 144. History 1: 378. History 1: 378; History 2: 68. History 2: 68. Essays, 309. Essays, 311. Essays, 290. Istvan Hont, ‘The “Rich Country–Poor Country” Debate in Scottish Classical Political Economy,’ in Wealth and Virtue: The Shaping of Political Economy in the Scottish Enlightenment, ed. Istvan Hont and Michael Ignatieff (Cambridge: Cambridge University Press, 1983), 282. 112 Essays, 93. 113 History 1: 88. 114 History 2: 109. 4. Luxury and the Ancient States 1 2 3 4

History 1: 93. History 1: 14. Essays, 275–6. Bernard Mandeville, The Fable of the Bees: Or, Private Vices, Publick Benefits, ed. F.B. Kaye, 2 vols. (Oxford: Clarendon Press, 1924), 1:108, 115. 5 EPM 2.2.16: 181. 6 Alexander Pope, An Essay on Man, Epistle III, lines 303–4, in The Poems of Alexander Pope, ed. John Butt (New Haven: Yale University Press, 1963), 534. 7 The Commonwealth and republican traditions receive pioneering treatments in Zera Fink, The Classical Republicans (Evanston: Northwestern University Press, 1945); Caroline Robbins, The Eighteenth-Century Commonwealthman (Cambridge, MA: Harvard University Press, 1961); J.G.A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton: Princeton University Press, 1975). Since then a massive literature on these topics has emerged. Particularly

162 Notes to page 85

8 9 10 11

12

relevant in this context are Istvan Hont and Michael Ignatieff, eds., Wealth and Virtue: The Shaping of Political Economy in the Scottish Enlightenment (Cambridge: Cambridge University Press, 1983); David Wootton, ed., Republicanism, Liberty, and Commercial Society, 1649–1776 (Stanford: Stanford University Press, 1994). Elizabeth Rawson makes brief mention of Hume’s views on Sparta in The Spartan Tradition in European Thought (Oxford: Oxford University Press, 1969), 350. Hume’s engagement with Harrington and other republicans receives detailed treatment in James Moore, ‘Hume and the Classical Republican Tradition,’ Canadian Journal of Political Science 10 (1977): 813–33. Moore briefly discusses Hume’s treatment of the ancient republics. His interpretations differ from mine, however. Strangely, Moore thinks Hume attributes the success of the Athenian democracy to the process by which citizens who introduce unpopular measures could be indicted. He claims Hume thinks this law protected the people from their own ‘levity and inconstancy.’ This misreads the text. Hume is not referring to this law in the passage Moore cites but to the practice by which ‘the legislature vainly attempted to bind itself for ever’ by forbidding the repeal of certain laws. And far from seeing it as the key to the state’s survival, Hume calls this practice not just futile but absurd. See Essays, 370; Moore, 833. Moore correctly identifies the problem in the Roman republic as a tooextensive democracy. However, he seems to think Hume believes a democracy can only function if all voting representatives can be offered ‘offices, honours and the like.’ Hume plainly does not think this, since he does not believe all British representatives need to be offered such perquisites. He simply thinks enough needs to be offered them that the executive power, aided not just by its office-holders but by ‘the honest and disinterested part of the house,’ can provide the constitution with a measure of balance. Should the lower house’s dependence on the executive become too great, however – as it surely would if all representatives were offered offices and honours – it becomes ‘dangerous to liberty.’ See Essays, 45; Moore, 819. Essays, 275–6. Sallust, The War with Catiline, 7.1–2, in Sallust, trans. J.C. Rolfe, Loeb Classical Library (Cambridge, MA: Harvard University Press, 1931), 19. Essays, 276. Livy, History of Rome, 1.11, in Livy, History of Rome: Books I–II, trans. B.O. Foster, Loeb Classical Library (Cambridge, MA: Harvard University Press, 1919), 7. Essays, 258 fn. 7. Hume quotes the original Latin, taken from Livy, History of Rome 7.25. The editor of the Essays quotes the English translation by B.O. Foster.

Notes to pages 85–6

163

13 Essays, 211. 14 Juvenal, Satire 6, lines 291–4, in Juvenal and Persius, trans. G.G. Ramsay, Loeb Classical Library (Cambridge, MA: Harvard University Press, 1940), 107. 15 Essays, 634. 16 J.H. Burton, Life and Correspondence of David Hume (Edinburgh: A. Millar, 1846; facsimile reprint, New York: Garland, 1983), 129. 17 EPM 5.2.18: 223. 18 See J. Martin Stafford, ‘Hume on Luxury: A Response to John Dennis?’ History of Political Thought 20 (1999): 646–8. 19 Isaac Kramnick says: ‘Roman experience taught Bolingbroke that the forerunners and causes of the loss of liberty were the decay of virtue and public spirit, luxury and extravagance in expense, and venality and corruption in private and public affairs ... His analysis of Roman decline is almost pure Machiavelli. Frugality and temperance had accounted for the original greatness of Sparta and Rome, only to be displaced later by luxury and prodigality.’ Isaac Kramnick, Bolingbroke and His Circle (Cambridge, MA: Harvard University Press, 1968), 75. This view is contrary to that of Moore, who claims that ‘there is no reason to suppose ... that Bolingbroke heeded Pope’s counsel’ regarding forms of government (818). In any case, Hume says of Bolingbroke’s posthumous works: ‘Never were seen so many Volumes, containing so little Variety & Instruction: so much Arrogance & Declamation.’ Letters 1: 101. 20 See David Fate Norton and Mary J. Norton, The David Hume Library (New Castle, DE: Oak Knoll Press, 1996). Fletcher died in 1716; The Political Works of Andrew Fletcher, Esq. were published posthumously in 1732. Fletcher was best known as the leader of the Parliamentary opposition to Scotland’s union with Britain, which finally took place in 1707. In Hume’s time, Fletcher’s nephew Lord Milton, who idolized his uncle, became Scotland’s most important political figure and Hume’s most powerful patron. Fletcher’s ‘Discourse of Government’ rails against the corruption of contemporary Europe, which he attributes to a combination of the Italian Renaissance and the Atlantic trade. Fletcher laments the industrious inventions that improved navigation sufficiently to allow the discovery of the new world. ‘By this means the luxury of Asia and America was added to that of the antients;’ he says, ‘and all ages, and all countries concurred to sink Europe into an abyss of pleasures.’ Andrew Fletcher, Political Works, ed. J. Robertson (Cambridge: Cambridge University Press, 1997), 5–6. 21 E.C. Mossner, ‘David Hume’s “An Historical Essay on Chivalry and Modern Honour,”’ Modern Philology 45 (1947): 56. 22 Essays, 276.

164 Notes to pages 87–92 23 24 25 26 27 28 29 30 31

32 33 34

35 36 37 38 39 40

41 42 43

44 45 46 47 48 49 50 51 52

Essays, 26–7. EPM 5.2.26: 227. T 3.2.8.5: 544. Essays, 260. Essays, 262. NHR 10.2: 163–4. Essays, 206. History 5: 416–17. Jeremy Bentham, A Fragment on Government, Preface par. 16, in A Comment on the Commentaries and a Fragment on Government, ed. J.H. Burns and H.L.A. Hart (London: The Athlone Press, 1977), 399. NHR 14.7: 182. History 5: 387. History 5: 242. He attributes to them the Humean insight that it is fruitless trying to enforce religious orthodoxy since theology is a subject ‘where it is not allowable for human nature to expect any positive truth or certainty.’ EPM ‘Dialogue’ 33: 335. Essays, 9. Essays, 12. Essays, 489. Essays, 490–1. For further discussion of this issue, see chapter 6 below. See Rawson, Spartan Tradition. While it differs in points of emphasis, I take my reading of Hume’s account of Sparta to agree in substance with that of Christopher Berry, The Idea of Luxury (Cambridge: Cambridge University Press 1994), 142–52. Essays, 257. Essays, 259. Essays, 257. The helots were peasants who were among the original Peloponnese inhabitants. After the Doric conquest, they became the property of the Lacedaemonian government. They were tied to the land and required to give half of their produce to the Spartans. Essays, 260. Essays, 260; original emphasis. Essays, 260. Essays, 261. Essays, 261. Essays, 261. Essays, 262. Essays, 525. History 5: 140.

Notes to pages 92–6

165

53 History 3: 80. 54 Essays, 520. 55 My account here agrees with Robert A. Manzer, ‘The Promise of Peace? Hume and Smith on the Effects of Commerce on Peace and War,’ Hume Studies 22 (1996): 369–82. Manzer also provides a useful examination of Smith’s very similar views. 56 Letters 1: 33. 57 EPM 7.15: 255. 58 History 2: 488. 59 History 5: 493. 60 Essays, 274. 61 T 3.3.1.11: 578. 62 T 3.2.2.27: 501. 63 EPM 7.14: 135. 64 Essays, 274–5. 65 Adam Ferguson, Correspondence, ed. Vincenzo Merolle, 2 vols. (Brookfield, VT: William Pickering, 1995), 1:76. 66 Essays, 473. 67 Essays, 368–9. 68 The Works of Hannah More, 7 vols. (London: H. Fisher, R. Fisher and P. Jackson, 1833–7), 5:315. 69 Tom Paine is the exception that proves this rule. He says in The Rights of Man: ‘Though the ancient governments present to us a miserable picture of the condition of man, there is one which above all others exempts itself from the general description. I mean the democracy of the Athenians. We see more to admire, and less to condemn, in that great, extraordinary people, than in anything which history affords.’ Thomas Paine, The Rights of Man, pt. 2, ch. 3, in Political Writings, ed. Bruce Kuklick (Cambridge: Cambridge University Press, 1989), 167. 70 Essays, 204. 71 Essays, 24. 72 Essays, 415. 73 Essays, 415. 74 Essays, 416. 75 Essays, 406. 76 Essays, 411. 77 Essays, 416. 78 Essays, 343; Essays, 92. 79 Essays, 92. 80 Essays, 275-6.

166 Notes to pages 97–103 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101

David Hume, Four Dissertations (London: A. Millar, 1757), ii. Essays, 372. Essays, 25. Essays, 372. Essays, 271–3. Essays, 46 fn. 2. Essays, 45. Essays, 24. Essays, 16. Essays, 16. Essays, 539. Essays, 30. Essays, 414–15. Essays, 415. Essays, 53. Essays, 124. Essays, 124. Essays, 485. T 3.2.10.13: 358. Essays, 478. For his preference of hereditary over elective monarch, see for instance Essays, 18. The reasons are explained above, page 72. 102 Essays, 475. 5. The Case of Britain 1 2 3 4 5 6 7

Essays, 40. Essays, 122. History 2: 525. History 1: 15. History 1: 161. History 1: 181. Eugene F. Miller provides an excellent account of Hume’s engagement with Whig constitutional theories in his History, in his article ‘Hume on Liberty in the Successive English Constitutions,’ in Liberty in Hume’s History of England, ed. Nicholas Capaldi and Donald W. Livingston (Boston: Kluwer Academic, 1990). 8 History 1: 460. 9 History 1: 461. 10 History 1: 203.

Notes to pages 104–11 167 11 12 13 14 15 16 17

18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37

History 1: 279. History 1: 149. History 1:463. History 1: 371. History 2: 521. J.G.A. Pocock, The Ancient Constitution and the Feudal Law (Cambridge: Cambridge University Press, 1987), 43. History 1: 493. Hume is, incidentally, wrong about Ingulf, purportedly an eyewitness to William’s confirmation of Edward’s laws, but whose text was actually written at a much later date. Hume is in any case more inclined to give credit for originating the lost common law to another Saxon king, Alfred – a personal favourite of his on account of this king’s shining personal qualities – though he insists the Saxon law codes, whatever their provenance, have disappeared. ‘The better to guide the magistrates in the administration of justice,’ he says, ‘Alfred framed a body of laws; which, though now lost, served long as the basis of English jurisprudence, and is generally deemed the origin of what is denominated the COMMON LAW.’ History 1: 78. For his views on Alfred’s personal qualities, see History 1: 74. History 1: 372. History 1: 444. History 1: 445–6. History 1: 487. T 3.2.6.1: 526. History 2: 141. History 2: 379. History 2:106. History 2: 101. History 2: 109. History 2: 108–9. History 2: 31. On feudalism, see page 158 fn. 55 above. History 5: 40. History 3: 80. See Essays, 113 and 505. History 3: 77. Letters 1: 167. History 2: 143. James Harrington, ‘The Commonwealth of Oceana’ and ‘A System of Politics,’ ed. J.G.A. Pocock (Cambridge: Cambridge University Press, 1992), 12.

168 Notes to pages 111–17 38 Ephraim Chambers, Cyclopaedia, 2 vols. (London: James and John Knapton, 1728), 1: ‘Advertisement.’ 39 Chambers 1:21. 40 I have been able to find only one other pertinent reference to the statute in the writings of the period: Anon., An Essay on Civil Government in Two Parts (London: printed for R. Willock, 1743), 239. 41 Letters 1: 261. 42 Letters 1: 262. 43 History 3: 77. 44 History 3: 80. It should be said that the most recent, and to date authoritative, treatment of the history of entails and alienations does not support Hume’s reading of this particular law’s importance. It suggests that the erosion of feudal entails was a much more gradual and complex process. See Joseph Biancalana, The Fee Tail and the Common Recovery in Medieval England, 1176–1502 (Cambridge: Cambridge University Press, 2001). 45 History 5: 17. 46 History 5: 17, 14–15. 47 J.G.A Pocock claims that volume 6 of the History has ‘little “philosophical” structure, meaning that it does not recount major changes in the structure of English society or the mentality of English culture.’ J.G.A. Pocock, Barbarism and Religion, 4 vols. (Cambridge: Cambridge University Press, 1999– 2005), 2:217. By ‘philosophical’ Pocock means, as he takes Hume to mean, dedicated to the discovery of general or universal principles. I do not think this is quite right. It is true the structural economic change had largely taken place. But, as I explain below, the mentality of the English people was transformed, in that they began to expect and demand what Hume calls a more regular plan of liberty. 48 History 5: 179. 49 History 5: 179. 50 History 6: 70. 51 History 6: 73–4. 52 History 6: 531. 53 Letters 1: 461. 6. Hume’s Precautionary Conservatism 1 T 3.2.10.1: 553. 2 Francis Snare, Morals, Motivation and Convention (Cambridge: Cambridge University Press, 1990), 231. 3 Snare, 244.

Notes to pages 117–26 4 5 6 7 8 9 10 11 12 13

14

15

16

17 18

19 20 21

169

Snare, 223. Letters 2: 306; Essays, 31. T 1.4.7.12: 271. DNR 1.10: 134. Essays, 465. See Essays, 470–1. Essays, 466. Essays, 454. Essays, 474. Donald Livingston has pointed specifically to Hume’s rejection of the contract theory as an example of his application of scepticism to politics. ‘All contract theories of government from Hobbes, Locke, Rousseau, Kant to Rawls,’ he says, ‘are the work of false philosophy.’ Donald W. Livingston, Hume’s Philosophy of Common Life (Chicago: University of Chicago Press, 1984), 281. John Rawls, Justice as Fairness: A Restatement (Cambridge, MA: Harvard University Press, 2001), 31. It should be noted that Rawls’s claim to be a non-foundationalist has been challenged, most famously by Michael Sandel in Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982). Burke wrote, ‘A state without the means of some change is without the means of its conservation.’ Edmund Burke, Reflections on the Revolution in France, in The Writings and Speeches of Edmund Burke, vol. 8: The French Revolution 1790–1794, ed. L.G. Mitchell (Oxford: Oxford University Press, 1989), 72. As Livingston puts it: ‘True philosophical theorizing is ... an attempt to render the inherited and conflicting customs and prejudices of common life as coherent as possible.’ Donald Livingston, ‘On Hume’s Conservatism,’ Hume Studies 21 (1995): 156. See, for instance, Kenneth R. Foster, Paolo Vecchia, and Michael H. Repacholi, ‘Science and the Precautionary Principle,’ Science 288 (2000): 979–81. For a forceful statement of this distinction, see Stefan Halper and Jonathan Clarke, America Alone: The Neo-Conservatives and the Global Order (Cambridge: Cambridge University Press, 2004). The authors emphasize that their own conservatism is based on the principle of containing risk. Essays, 474. Essays, 513. Jean Jacques Rousseau, Social Contract 3.18, in The Social Contract and Other Later Political Writings, ed. Victor Gourevitch (Cambridge: Cambridge University Press, 1997), 119; translation modified.

170 Notes to pages 126–32 22 Rouseau, Considerations on the Government of Poland, ch. 15, in Rousseau, 259; translation modified. 23 History 6: 424. 24 T 3.2.10.6: 557. 25 History 4: 345–5. 26 Essays, 474. 27 Essays, 474; emphasis added. 28 T 3.2.10.16: 563. 29 History 5: 526. 30 History 6: 121. 31 Essays, 55. 32 Essays, 63. 33 Essays, 62. 34 History 3: 136; emphasis added. 35 Essays, 62. 36 In the end, Hume concludes that Christianity’s peculiarly speculative tenets are not entirely to blame for the disruption it causes. It is human nature to dispute over religion – and therefore a stable society will always require control of the churches by the secular magistrate (Essays, 131). Whelan takes up the question discussed in this section – where does a conservative like Hume stand on religion, given that he takes most of it as superstition? – but concludes, oddly, that ‘Hume does not raise this question directly in his writings.’ Frederick G. Whelan, Order and Artifice in Hume’s Political Philosophy (Princeton: Princeton University Press, 1985), 308. Instead of Hume’s own words, he cites those of the interlocutor in the dialogue that concludes Hume’s Enquiry on the Principles of Morals, who argues that ‘good citizens and politicians’ will not condemn religious ‘prejudices’ because they are useful illusions. However, he admits that this interlocutor is ‘evidently not speaking for Hume’ (Whelan, 310 fn. 12). This is true enough, and I submit that this is because he is expressing a view that contradicts the one Hume states elsewhere as his own. 37 History 5: 47. 38 Donald Livingston, ‘Hume’s Historical Conception of Liberty,’ in Liberty in Hume’s History of England, ed. Nicholas Capaldi and Donald W. Livingston (Boston: Kluwer Academic, 1990), 113. 39 Livingston, ‘Historical Conception,’ 115. 40 Livingston, ‘Historical Conception,’ 115. 41 Stuart D. Warner and Donald W. Livingston, ‘Introduction,’ in David Hume, Political Writings (Indianapolis: Hackett, 1994), xxv.

Notes to pages 132–9 42 43 44 45

46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61

171

History 1: 254. Livingston, ‘Historical Conception,’ 105–6. See, for instance, T 3.2.9.1: 550. History 5: 356. Hume is speaking on behalf of the royalist supporters of Charles I here, but he says the basic principles of government were (at least at this point) shared by both parties in the conflict. See T 3.2.2.24: 498; Essays, 37. ‘It is a gross absurdity to suppose, in any government, a right without a remedy.’ T 3.2.10.16: 564. History 5: 181. History 5: 181. History 1: 445. Livingston, ‘On Hume’s Conservatism,’ 163 fn. 14. History 6: 520; emphasis original. History 1: 450; History 2: 319; Essays, 604. See, for instance, Essays, 362; History 1: 450. Livingston, ‘On Hume’s Conservatism,’ 164 fn. 14. EPM 3.1.8: 186. Donald W. Livingston, Philosophical Melancholy and Delirium (Chicago: University of Chicago Press, 1998), 349–50. Essays, 372. History 6: 173; emphasis added. History 5: 320. In point of fact Hume thinks Northumberland’s charge is a slander and the entire trial a sham. Sheldon Wolin, ‘Hume and Conservatism,’ American Political Science Review 48 (1954): 1015–16.

Conclusion 1 EPM ‘Dialogue’ 51: 340. 2 James Fieser, ed., Early Responses to Hume, 10 vols. (London: Thoemmes Continuum, 2000–5). 3 Elie Halevy, The Growth of Philosophic Radicalism, trans. Mary Morris (Clifton, NJ: A.M. Kelley, 1972), 21; see Marcello Maestro, Cesare Beccaria and the Origins of Penal Reform (Philadelphia: Temple University Press, 1973). 4 Quoted in Maestro, 40–2. 5 Jeremy Bentham, A Fragment on Government, ch. 1 fn. 22, in A Comment on the Commentaries and a Fragment on Government, ed. J.H. Burns and H.L.A. Hart (London: The Athlone Press, 1977), 440.

172 Notes to pages 139–42 6 Ronald L. Meek, Social Science and the Ignoble Savage (Cambridge: Cambridge University Press, 1976), 2. The four-stage theory first appears in Scottish printed sources in 1758, in books by John Dalrymple and Henry Home, Lord Kames. Meek suggests Adam Smith’s Edinburgh law lectures were the source for both men. For further discussion see also H.M. Höpfl, ‘From Savage to Scotsman,’ The Journal of British Studies 17 (1978): 19–40. 7 Meek, Social Science and the Ignoble Savage, 2. 8 Thomas Paine defined republicanism simply as ‘a government by representation – a government founded upon the principles of the Declaration of Rights.’ The Writings of Thomas Paine (1791–1804), ed. Moncure Daniel Conway, 4 vols. (New York: G.P. Putnam’s Sons, 1894), 3:131. 9 Letters 2: 12. 10 See, for instance, Fania Oz-Salzberger, ‘Introduction,’ in Adam Ferguson, An Essay on the History of Civil Society (Cambridge: Cambridge University Press, 1995), xvii. 11 Ferguson, An Essay, 242. 12 Ferguson, An Essay, 155. 13 Adam Ferguson, Correspondence, ed. Vincenzo Merolle (Brookfield, VT: William Pickering, 1995), 1:76. 14 Quoted in Elizabeth Rawson, The Spartan Tradition in European Thought (Oxford: Oxford University Press, 1969), 347. 15 John Home, A Sketch of the Character of Mr. Hume and Diary of a Journey from Morpeth to Bath, ed. David Fate Norton (Edinburgh: The Tragara Press, 1976), 24. 16 Home, A Sketch of the Character of Mr. Hume, 24–5. 17 Iain Hampshire-Monk, ‘The State and the Individual, Seventeenth-Eighteenth Centuries,’ in Janet Coleman, ed., The Individual in Political Theory and Practice (Oxford: Oxford University Press, 1996), 247. 18 David Winch, Adam Smith’s Politics (Cambridge: Cambridge University Press, 1978), 177. 19 Quoted in Stephen Englund, Napoleon: A Political Life (New York: Scribner, 2004), 44. 20 Bernard Bailyn, ed., The Debate on the Constitution, 2 vols. (New York: Viking, Library of America, 1993), 1:1–2. 21 Gordon S. Wood, The Radicalism of the American Revolution (New York: Random House, 1991), 234–5. For Madison as a Humean, see Douglass Adair, ‘“That Politics May Be Reduced to a Science”: David Hume, James Madison and the Tenth Federalist,’ in Fame and the Founding Fathers, ed. Trevor Colbourn (New York: W.W. Norton, 1974).

Notes to page 142

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22 John Adams, Works, ed. C.F. Adams, 10 vols. (Boston: Little, Brown, 1850– 6), 6:415. 23 Quoted by Margaret Oliphant, The Victorian Age of English Literature (1892), posted on Victorian Web: http://www.victorianweb.org/authors/ macaulay/oliphant.html.

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Works by David Hume Dialogues concerning Natural Religion. Edited by Norman Kemp Smith. London: Thomas Nelson and Sons, 1947. Dialogues concerning Natural Religion and the Natural History of Religion. Edited by J.C.A. Gaskin. Oxford: Oxford University Press, 1993. An Enquiry concerning Human Understanding. Edited by Tom L. Beauchamp. Oxford: Oxford University Press, 1999. An Enquiry concerning the Principles of Morals. Edited by Tom L. Beauchamp. Oxford: Oxford University Press, 1998. Essays: Moral, Political and Literary. Edited by Eugene F. Miller. Indianapolis: Liberty Fund, 1985. Four Dissertations. London: A. Millar, 1757. The History of England. Edited by William Todd. Indianapolis: Liberty Fund, 1983. Letters of David Hume. Edited by J.Y.T. Greig. Oxford: Oxford University Press, 1932. ‘My Own Life.’ In Philosophical Works, edited by T. H. Green and T.H. Grose. 4 vols. 1:1–7. London: Longmans, Green, 1874–5. New Letters of David Hume. Edited by Raymond Kilbansky and Ernest C. Mossner. Oxford: Oxford University Press, 1954. Philosophical Works. Edited by T.H. Green and T.H. Grose. 4 vols. London: Longmans, Green, 1874–5. Political Writings. Indianapolis: Hackett, 1994. A Treatise of Human Nature. Edited by L.A. Selby-Bigge. 2nd ed., revised by P.H. Nidditch. Oxford: Oxford University Press, 1978. Writings on Economics. Edited by Eugene Rotwein. Edinburgh: Nelson, 1955.

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Index

Abramson, Kate, 149n14 action, 24, 26, 32 Adair, Douglass, 160n95, 172n21 Adams, John, 142 ages: barbarous (see barbarism); civilized (see civilization) Alcibiades, 95 Alexander VI, 86 Alexander the Great, 94 Alfred (the Great), 64 alienations, 109; statute of, 110–12 Altmann, R.W., 149n14 altruism, 19 America, 73, 76, 92, 109, 142 anarchy, 39 Anglo-Saxons, 53, 60, 71, 74, 102–3, 105–8 Antipater, 94 apprenticeship system, 78 Aquinas, Thomas (Saint), 31 Árdal, Páll, 149n14 Argyll. See Campbell, Archibald aristocracy, 59, 68–9, 77, 96–9, 104–6, 108–11 Aristotle, 5, 147, 151n59 army, standing, 92, 109 arts, the, 8–9, 24, 33–4, 85, 87, 89, 96–

7, 100, 109, 137; liberal, 33, 91; mechanical 33, 90–1 Aspasia, 95 Athelstan, 81 Athens (ancient), 67, 85, 94–6, 140 Atticus, Titus Pomponius, 97 Augustus (Gaius Julius Caesar Octavianus), 73, 97, 100–1 authority, 102 avarice, 32 Bacon, Francis, 71 Bagolini, Luigi, 154n16 Baier, Annette, 149n14 barbarism, 7–9, 22, 24, 34, 73, 93–4, 102–5, 109, 114–15, 130, 136, 143 Bath (England), 141 Beattie, James, 95 Beccaria, Cesare, 138–9 Beitzinger, Alfons, 155n49 belief, 28 benevolence, 17–21. See also humanity Bentham, Jeremy, 88, 138–9 Berlin, Isaiah, 15, 148n50 Berry, Christopher, 30, 151n70, 152n81, 164n40

188 Index Biancalana, Joseph, 168 Blair, Hugh, 140 Bolingbroke, Viscount (Henry St. John), 11, 86 Bolsheviks, 123 Bonaparte, Napoleon, 142 Boswell, James, 3, 8 Box, M.A., 148n5 Broadie, Sarah, 151n59 Brown, Charlotte, 149n14 Brutus, Marcus Junius, 97, 99, 100 Buckingham. See Villiers, George Buffon. See Leclerc, Georges-Louis Burke, Edmund, 95, 119, 169n15 Bute. See Stuart, John Campbell, Archibald (3rd Duke of Argyll), 140 Capaldi, Nicholas, 159n58 Cary, Lucius (Viscount Falkland), 88 Catiline (Lucius Sergius Catilinus), 85 Cato, Marcus Portius (Cato the Younger), 88, 99 Chambers, Ephraim, 111 Charles I, 70, 88, 113, 133, 171 Charron, William C., 154n16 Chaucer, Geoffrey, 30 Christianity, 3, 9, 72–3, 88, 129–30 church. See Christianity Cicero, Marcus Tullius, 97, 100, 147 citizenship, 88 civic humanism, 3 civilization, 7–9, 22–3, 58, 93, 102, 109–10, 113, 115, 137, 140, 142 Clarke, Jonathan, 169n18 Columbus, Christopher, 109 commerce, 9, 31–5, 77–81, 88, 89, 96, 108–10, 136, 138, 140, 143 common law. See law, common

common law conventionalism, 13 Condorcet, Marquis de (Marie Jean Antoine Nicolas Caritat), 14 conservatism, political, 4–5, 13–14, 15, 116–36, 138 constancy, 25–6, 28–9 contract, original, 124, 126 conversation, 23–4 convenience, 48, 62–3, 65 corporations, 78–9. See also monopolies corruption, 54, 83, 85, 96–101 Corsica, 142 creativity, 33 Cromwell, Oliver, 114, 154 custom, 7, 22, 46, 53, 121, 128, 131 D’Alembert, Jean Le Rond, 111, 138 Dalrymple, John, 172n6 Darwall, Stephen, 149n14 Davis, Sir John, 74 Dees, Richard H., 159n58 De Gama, Vasco, 109 Dennis, John, 86 delicacy. See taste, delicacy of; refinement democracy, 67, 70, 76, 95–9, 142 determinism, 131 deterrence, 61 Dicey, A.V., 57, 157n1 Diderot, Denis, 111, 138 discretion (of magistrates), 46, 49–56, 58, 60, 66, 113–14 durability. See constancy education, 22–3 Edward I, 6, 12, 56, 58, 64, 69, 81, 107– 8, 111 Edward III, 62 Edward IV, 110

Index Edward VI, 60 Edward the Confessor, 104–6 effeminacy, 83, 89–94 Egypt, 31 Elizabeth I, 74–5, 79, 113 Elliott, Gilbert, 112 Ellis, T.F., 142 empire. See imperialism empiricism, 120–1 Englund, Stephen, 172n19 Enlightenment, the, 15, 138 entails, 110–12. See also alienations enthusiasm, religious, 113 environment (natural), 143 equality, 119, 121, 123, 138 equity, 107 Ethelbert, 71 evil, 25. See also good and evil factions, 129 Falkland, Viscount. See Cary, Lucius Ferguson, Adam, 31, 92, 94–5, 140–1 feudalism, 103, 107–10, 134, 158–9n55 Fieser, James, 138, 148–9n6 Fink, Zera, 161n7 Finley, M.I., 147n44 Fletcher, Andrew, 86 Florence, 86 Forbes, Duncan, 13, 148n46 Foster, Kenneth R., 169n17 France, 43, 94, 104, 108 Franklin, Benjamin, 73, 76, 142 freedom. See liberty free will, 131 French Revolution, 119, 142 Gay, Peter, 4, 145n2 George III, 140 gentry, the, 108, 110 Germany, 101–3

189

Gibbon, Edward, 14 Glorious Revolution, 114–15 God, 53 good and evil, 25 government, 9–10, 37–40, 44–5, 109, 117–18, 126, 137; barbarous, 35–56, 66, 69, 86; civilized, 10, 12, 13, 35–6, 46, 55, 66–81, 115; constitution of, 9–12; free (see Republicanism); of laws, 11–12, 36, 42, 55, 68, 88; forms of, 10–12, 66; mixed 89, 97–8; modelling of (see constitution of) Greece (ancient), 7–8, 10, 12, 31, 88 Green, Leslie, 154n16 Grene, Marjorie, 5, 145n6 Guiccardini, Ludovicus, 86 Haakonssen, Knud, 7, 62, 146n19, 158n27 habit, 46. See also custom Halevy, Elie, 171n3 Halper, Stefan, 169n18 Hampshire-Monk, Ian, 141, 172n17 happiness, 17, 24–5, 30, 40, 45 Harrington, James, 14, 110, 111 hedonism, 20 Helvétius, Claude Adrien, 138 Henry I, 58, 63 Henry II, 55, 69 Henry III, 107 Henry VI, 93 Henry VII, 78, 110–12 Herdt, Jennifer A., 150n14 Hermenric, 71 Herodotus, 12, 94 Hirschman, Albert O., 146n34 Hobbes, Thomas, 4, 11, 14, 39 Home, Henry. See Kames, Lord Home, John, 92, 97, 140–1 honour, 93

190 Index Hont, Istvan, 80, 161n111 Höpfl, H.M., 172n6 humanity, 8–9, 16–21, 23–24, 30, 75, 87, 94, 137 Hume: Dialogues concerning Natural Religion, 23, 117; Enquiry concerning Human Understanding, 73; Enquiry concerning the Principles of Morals, 40, 46, 50, 137; Essays: Moral, Political and Literary, 7, 10, 12, 25, 40–1, 51, 80, 88, 110, 118, 137; Four Dissertations, 97; ‘An Historical Essay on Chivalry and Modern Honour,’ 86; The History of England, 4, 7, 12, 42, 47, 53, 68, 72, 73, 109–10, 112, 115, 126, 133, 137, 139, 142; ‘Idea of a Perfect Commonwealth,’ 76–7, 92, 125; The Natural History of Religion, 88; The Treatise of Human Nature, 4, 7, 12, 14, 16, 24, 29, 32, 37, 39–40, 41, 44, 49–50, 52–3, 86, 100, 103, 107, 117–18, 126, 135 Hutcheson, Francis, 16–18, 20, 93 imagination, 40, 46, 72, 116 Immerwahr, John, 148n5 imperialism, 73–6, 99 inconvenience. See convenience indolence, 24, 26–27, 73, 92 industry, 9, 16, 24–9, 30, 32–4, 37, 73, 80, 87–91, 109, 137, 140 interest, public, 50, 86–7 Ireland, 74–6, 130 Italy, 94 Jacobins, 123 James I, 60, 74–5, 79, 92 James II, 126, 134 Jefferson, Thomas, 142 Jews, position of, 79

Johnson, Samuel, 3, 8, 95 justice, 20, 32, 37, 40, 41, 44–5, 49–50, 52, 54, 59, 60, 64–5, 69, 75, 89, 95, 106–7, 111, 116, 119, 133; distributive, 5; natural, 47 Justinian, 65 just price theory, 78 Juvenal (Decimus Iunius Iuvenalis), 85 Kames, Lord (Henry Home), 111, 139, 172n6 knowledge, 8–9, 16, 21–4, 28, 30, 32– 4, 137 Korsgaard, Christine, 148n5 Kramnick, Isaac, 163n19 Lacedaemon, 111 laissez-faire economics, 77–8 law(s), 36–40; canon, 104; civil, 46–8; common, 104, 120; general, 10, 13, 45–9, 57–67, 69, 107, 131, 137; government of (see government of laws); of nature, 38, 46–7, 62, 103, 106–107; reform of, 13, 61–6, 104; Roman, 104; rule of, 14–15, 55, 75, 131; written, 61 learning. See knowledge Leclerc, Georges-Louis (Comte de Buffon), 138 Liberalism, 13, 136, 141; foundationalist, 119 liberty, 6, 53–4, 67–8, 70, 83, 86–9, 96– 7, 99, 102, 105, 109–10, 113–15, 119– 20, 124, 126, 128, 131–3 Livingston, Donald, 5, 131–5, 145nn8, 9, 10, 146n20, 153n108, 159n58, 169nn13, 16, 170nn38, 39, 40, 171nn43, 51, 55, 57 Livy (Titus Livius), 85

Index Locke, John, 6, 14, 146n18 luxury, 9, 30–5, 81, 82–101, 110, 140 Lycurgus, 89, 111 Macaulay, Catherine, 4 Macaulay, Thomas, 142–3 Machiavelli, Nicolo, 14, 86, 88 Mackie, J.L., 16, 148n3, 150n14 Madison, James, 14, 45, 142, 160n95, 172n21 Maestro, Marcello, 171nn3, 4 magistrates: inferior, 12, 41–4, 49, 55, 59 Magna Carta, 60, 63, 105–7, 133–5 Mandeville, Bernard, 3, 11, 30, 83, 138, 161n4 Manzer, Robert A., 165n55 Margaret of Anjou (Queen of England), 93 Marshall, M.G., 152n89 Marxism, 112 Mary II, 114 Meek, Ronald L., 139, 148n51, 172nn6, 7 mercantilism, 79–81 Mercer, Paul, 150n14 middle class, 35, 108. See also gentry militias, citizen, 84, 92 Mill, John Stuart, 4, 145n5 Millar, John, 6, 148n46 Miller, David, 5, 39, 145n7, 153nn108, 12, 159n58 Miller, Eugene F., 158n53, 159n58, 166n7 monarchy, 12, 36, 97; absolute, 100, 113; barbarous, 40–5, 55–6, 67; civilized, 36, 42, 48, 52–6, 59, 66–8; elective, 72, 101; hereditary, 101; limited, 77

191

money: quantity theory of, 80–1 monopolies, 79 Montagu, Elizabeth, 95, 140 Montaigne, Michel de, 7 Montesquieu, Baron de (Charles de Secondat), 14, 31, 68, 103, 146–7n34 Moore, James, 148n5, 162n7, 163n19 moralism, civic, 83–6, 92, 98, 138 More, Hannah, 95 Morellet, André, 138 Mossner, Ernest Campbell, 145nn4, 6, 163n21 nations: barbarous (see barbarism); civilized (see civilization) natural law(s). See laws of nature neoconservatism, 123 Netherlands, 76, 88 nobility. See aristocracy Normans, 65, 68, 71, 73, 103, 108 Norton, David Fate, 149n6, 163n20 Norton, Mary J., 163n20 novelty, 28–9, 35 Nozick, Robert, 14 obedience (civil), 88–9 Oliphant, Margaret, 173n23 Oz-Salzberger, Fania, 172n10 pain, 26 Paine, Thomas, 165n69, 172n8 parenthood, 124–5 Parliament (of Britain), 53–4, 58, 62, 108 particularism, 119–22 patriotism, 88 Pericles, 95 Persia, 12, 31 Plato, 147 pleasure, 24–7, 29, 33

192 Index Pocock, J.G.A., 11, 147n45, 168n47 Poker Club, 92 Poland, 126 Polybius, 98 Pope, Alexander, 10, 11, 84, 86, 142, 147, 161 Porter, Roy, 4 Postema, Gerald, 147n45, 154n16 precautionary principle, 122 prejudice, 17, 22–4 prerogative (royal), 43, 53–4, 113 Presbyterian Church, 77 prices, 80; regulation of, 78–9 primogeniture, 72 Privy Council, 54, 73 property, 37, 40, 47, 50, 60–2, 74, 96, 99, 103–4, 106–7, 135 prudence, 126 Prussia, 138 publicity (of laws), 57, 61 Punic Wars, 98 Radcliffe, Elizabeth, 150n14, 160n69 radicalism (political), 44, 116, 122 Raphael, D.D., 154n16 rationalism, 120 Rawls, John, 5, 14, 119, 169n14 Rawson, Elizabeth, 12, 164n40, 172n14 rebellion, 74, 125 refinement, 7–8, 30, 33, 35, 63–4, 73, 96, 110 reform, political, 127–8, 136 religion, 128–30. See also Christianity Repacholi, Michael H., 169n17 repose. See indolence Republicanism, 9, 12, 36, 53, 66–7, 84, 117, 139–41; large-state, 77. See also civic moralism reputation, 94

resistance, right to, 44, 106, 116, 128, 134–5 Richard I, 68, 71 Richard II, 54 Richard III, 69 rights: natural, 133–5; universal, 120, 123, 133–5 rigidity (of laws), 57–9, 66, 69, 117 Robbins, Caroline, 161n7 Robertson, William, 140 Rome (ancient), 8, 10, 61, 73, 82, 84, 86, 88, 93–4, 96–101, 147 Rothschild, Emma, 43 Rousseau, Jean-Jacques, 15, 125–6 rules, general, 22, 47, 49–50, 54 Russell, Bertrand, 4 Russia, 41, 138 Sallust (Gaius Sallustius Crispus), 85 Sandel, Michael, 169n14 Sayre-McCord, Geoffrey, 150n14 scepticism, 4–5, 7, 116–17 Schmidt, Claudia M., 146n20 science. See knowledge Scotland, 68 Scullard, H.H., 61, 158 self-interest, principle of, 3, 10–11, 19–20, 24, 32, 87, 93 sentiment, 16, 117 Servius Tullius, 97 Shaftesbury, 3rd Earl of (Anthony Ashley Cooper), 18, 20 Shaver, Robert, 148–9n6, 149n10 Sher, Richard, 148n5 Sieyès, Emmanuel Joseph, 14 Sidgwick, Henry, 20 slavery, 42, 44–5, 104, 114; civil, 45; domestic, 45; public (see civil); real (see domestic)

Index Smith, Adam, 14, 43, 78, 110, 139, 155n35 Smith, John (Captain), 8 Snare, Francis, 116, 154n16 sociability, 19, 23–4, 34–5, 97 socialism, 119 society, civilized, 15, 17–18 Socrates, 95 Solon, 95 Spain, 73–4, 140 Sparta (ancient), 84–5, 89–95 Spencer, Mark G., 160 Stafford, J. Martin, 163 Star Chamber, Court of, 54, 56 Steuart, James, 31, 151 Stephen, Leslie, 4, 145 Stewart, John B., 13, 136, 152–3 Strafford. See Wentworth, Thomas succession, 71–2, 100–1 Stuart, John (3rd Earl of Bute), 140 superstition, 17 Switzerland, 92 sympathy, 17–21, 24 Tacitus, Publius Cornelius, 102–3 taste, 8, 137; delicacy of, 16, 23, 33, 63 taxation, 43–4, 78, 108 theology, 130 Toryism, 4, 138 trade, 80, 89–92. See also commerce tradition, 64, 128. See also custom traditionalism, 119–35 Turgot, Anne-Robert-Jacques (Baron de l’Aulne), 14, 139, 155 Turkey, 111

193

Tuscany, 138 Twelve Tables, 61 tyranny, 39, 42, 44, 53, 58, 68–9, 96–7, 107, 109, 114, 123 universalism, 119–22 utility, 29, 47, 50–1, 62–3, 69, 89 utilitarianism, 50–1 Vecchia, Paolo, 169n17 vexation, 43–4 Villiers, George (1st Duke of Buckingham), 70 virtue, 10–11, 22, 24, 31–2, 35, 86–7, 99, 137, 142; artificial, 20, 32; monkish, 88 Vitz, Rico, 149n14 Voltaire (François-Marie Arouet), 146n34 Wallace, William, 56 Walpole, Horace, 8 Wedderburn, Alexander (1st Earl of Roslyn), 73 Wentworth, Thomas (1st Earl of Strafford), 135 Whelan, Frederick, 13, 147, 153, 170n76 Whiggism, 13, 108, 131, 143 Wilkins, David, 105 William I, 68, 71, 103 William III, 114 Winch, David, 141 Winkler, Kenneth, 160n69 Wolin, Sheldon, 136