Anglifying American Conservatism

When it seemed that conservatism was finally settling into some defined boundaries under the presidency of Donald Trump, however fitfully—into Trump alt-populists, Never Trump former neocons, establishmentarian veterans of the two Bush administrations, expert/reform conservatives, social communitarians, big L libertarians, and a residue of libertarian-conservative fusionists—here comes Anglo-American Toryism as the proper resolution.

The driving force is the political theorist Yoram Hazony, who heads the Jerusalem-based Herzl Institute. His work has been prominently featured in the Wall Street Journal, Mosaic, and American Affairs (with Ofir Haivry), among other publications.

In his article “Is Classical Liberalism Conservative?” (Wall Street Journal, October 13, 2017), Hazony finds “two camps” on the Right that have “an unbridgeable ideological chasm” opening between them. One is identified with Charles Krauthammer, William Kristol, and Robert Kagan, who idealize an over-rationalized universalistic democratic spirit headed by a U.S. “benevolent global hegemony.” One starts to think he must mean neoconservatives. But soon these writers are joined by John Locke, Ludwig von Mises, F.A. Hayek, Milton Friedman, Robert Nozick, and Ayn Rand—and all nine are labeled rationalistic “classical liberals.”

Against this group Hazony arrays Sir John Fortescue, John Selden, the Baron de Montesquieu, Edmund Burke, Joseph Story, and Alexander Hamilton, under the rubric of “Anglo-American conservatism.” These supported individual liberty, balanced executive-legislative relations, bicameral legislatures, jury trials, due process, the bill of rights, and “Protestant institutions such as the independent national state, biblical religion and the family.” Rights were accepted but empirically based upon historical trial and error rather than universalistic political ideals.

The threat of communism unified these two strands under William F. Buckley and Frank Meyer’s fusionist conservatism; but when the Berlin Wall fell, so did the coalition. The classical liberal strand then came to support “a new world order” spear-headed by the United States that tried to bring democracy to the world. This plan was undermined by China, Russia, and radical Islam, while the banking crisis and the disintegration of the family undermined capitalism, until it came a cropper with Brexit and the election of Donald Trump, “paving the way for a return to empiricist conservatism” as supported by Hazony.

Neoconservatives, reformist experts, Bush moderates, Friedman libertarians, Hayekian spontaneous evolutionists, and Randian objectivists have all reached the same conclusion in reacting to the Journal article. Many whom he calls classical liberals would reject the label. His more detailed piece in the Summer 2017 edition of American Affairs, coauthored with Haivry and entitled “What Is Conservatism?”, more fully develops the intellectual case for Anglo-American conservatism. This second piece is sure to anger them even more.

To Hazony and fellow political theorist Haivry, the Anglo-conservative and classical liberal factions are led by Fortescue and Locke, respectively.

The jurist Fortescue (c. 1394–1479) was chief justice of Britain’s high court and ended as exiled chancellor, since, having been on the losing side of the War of the Roses, he was forced to write his classic 1616 In Praise of the Laws of England  in France. Fortescue held there that the English constitution limited the powers of the monarch under the traditional laws of England

in the same way that the powers of the Jewish king in the Mosaic constitution in Deuteronomy are limited by the traditional laws of the Israelite nation. This is in contrast with the Holy Roman Empire of Fortescue’s day, which was supposedly governed by Roman law, and therefore by the maxim that ‘what pleases the prince has the force of law,’ and in contrast with the kings of France, who governed absolutely.

Fortescue laid out “what later tradition would call the separation of powers and the system of checks and balances.” He linked “the character of a nation’s laws and their protection of private property to economic   prosperity, arguing that limited government bolsters such prosperity, while an absolute government leads the people to destitution and ruin.” His work, adds Hazony and Haivry, “even as a firm pre-Reformation Catholic breathes the spirit of English nationalism—the belief that through long centuries of experience, and thanks to a powerful ongoing identification with Hebrew Scripture, the English had succeeded in creating a form of government more conducive to human freedom and flourishing than any other known to man.”

From there they hasten through two centuries to the “greatest conservative,” Selden, and his 1628 Petition of Right, rushing past the post-Reformation civil war fought between royal Calvinist traditionalists and legislative Puritan and Presbyterian reformers, to get to the “restoration of a Protestant monarch” by a Parliament “united around Seldenian principles” in the Glorious Revolution of 1688, which reaffirmed the “traditional English constitution” protecting England’s “religion, rights and liberties.”

The fly in the ointment of this conservative restoration was the rationalist “radical” liberal, John Locke (1632-1704). Locke, they write, was known as an empiricist “but his reputation in this regard is based largely on his Essay Concerning Human Understanding (1689), which is an influential exercise in empirical psychology.” Locke’s Second Treatise of Government, rather than being empirical “begins with a series of axioms that are without any evident connection to what can be known from the historical and empirical study of the state.”

Locke’s assumptions of “perfect freedom” and “perfect equality” in the Second Treatise are said to be merely rationalistic and ideological, and to contradict experience. This liberal idealism advanced significantly in post-1688 England and later “finds rather dramatic expression” in the Americans’ Declaration of Independence, “famous for resorting, in its preamble, to the Lockean doctrine of universal rights as self-evident.” While contested by Hamilton, the election to the presidency of the Declaration’s author made Lockean liberalism “increasingly dominant in America.”

They address the Constitution’s “deviation from English tradition in the matter of a national religion” by discussing the views of Joseph Story, which they characterize as “appropriately balanced.”

On the one hand, Story “confirmed ‘the right of private judgment in matters of religion, and of the freedom of public worship according to the dictates of one’s conscience’ as an integral part of the nation’s constitutional heritage.” On the other, he “asserted the traditional Anglo-American conservative view that ‘the right of a society or government to interfere in matters of religion will hardly be contested by any persons, who believe that piety, religion, and morality are intimately connected with the well-being of the state, and indispensable to the administration of civil justice.’ ”

The Haivry/Hazony principles of Anglo-American conservatism are summarized as:

1) Historical Empiricism: The authority of government derives from constitutional traditions known, through the long historical experience of a given nation, to offer stability, well-being, and freedom.

2) Nationalism: The diversity of national experiences means that different nations will have different constitutional and religious traditions.

3) Religion: The state upholds and honors the Biblical God and religious practices common to the nation.

4) Limited Executive Power: The powers of the king (or President) are limited by the laws of the nation, which he neither determines nor adjudicates.

5) Individual Freedoms: The security of the individual’s life and property is mandated by God as the basis for a society that is both peaceful and prosperous, and is to be protected against arbitrary actions of the state.

They write that while they believe in limited government and individual liberties, they “also see clearly” that “the only forces that give the state its internal coherence and stability, holding limited government in place while staving off authoritarianism, are our nationalist and religious traditions.” And, they add, “These nationalist and religious principles are not liberal. They are prior to liberalism, in conflict with liberalism, and presently being destroyed by liberalism.”

Yes, they are prior; but one cannot fail to note that they are prior to Fortescue too. In this English-oriented discussion Magna Carta is missing—but one can see why. Emphasizing it would not have allowed the simple liberal/conservative dichotomy that is at the center of the two articles.

Locke is critical here. He is certainly rationalist but is also empirical, as Hazony and Haivry somewhat concede, but in addition to both, Locke also accepted revelation—indeed wrote that an evident one should be accepted over reason. It was this belief that led Leo Strauss, in Natural Right and History (1953), to exclude that part of Locke’s thinking as irrational and only deal with Locke’s rational “partial” natural law. Hazony and Haivry do the same thing but for the opposite reason.

Their view is clearly too dominated by a view of the Anglo experience as simply Protestantism when it was in fact divided even into civil war in England. The Mosaic piece by Hazony likewise assumes a single national religion in early America in spite of Puritan, Baptist, Quaker, Anglican, Presbyterian and even Catholic colonies.

It is critical to the American experience that its colonists had left behind an England that was still defined by the Magna Carta—with memorials to it across the states but, according to Daniel Hannan, without a single such in England before its 800th anniversary (except one by the American Legion). Lord Baltimore petitioned to have Magna Carta printed in his Maryland charter but was denied by English authorities. William Penn was actually successful many years later.

Nor can it be denied that Locke was preeminent in the minds of the great majority of America’s Founding Fathers—the only academic argument being whether he was the only or a major inspiration.

Hazony’s typology just will not fit. Consider those five principles. Historical empiricism heads the list but is the essence of Hayek’s views, as one example—yet Hayek is considered ideological, categorized that way on the strength of a single 1939 quote. In fact, Hayek wrote an essay in 1964 called “Kinds of Rationalism” to distinguish his (and Locke’s) non-ideological rationalism from that of Rene Descartes and Jean-Jacques Rousseau.

Numbers 2 and 5 would have been obvious to Locke and to most, if not all, of the others. Number 3 would probably be rejected by all, including the religious Buckley—especially Story’s words to the effect that “the right of a society or government to interfere in matters of religion will hardly be contested by any persons.” Even number 4 equating the executive power of king and President can only seem strange to Americans since the Queen has comparatively none.

Clearly the religious question is critical for these authors. There are libertarians, leftists, and others who absolutely reject religion in public life, to be sure; but most Americans are at the very least leery of the state’s “upholding” religion leading to the state dominating religion, as it did in Europe. Hazony and Haivry do make a contribution by separating rationalistic from more empirical thinking, but then they do violence to that distinction by over-rationalizing Locke and Hayek, especially. As for the rest, there are good reasons to separate the various “classical liberal” factions that do not rest easily within two categories, a simplification that they themselves point to near the end of their article.

If there is to be some commonality for conservatism, it would require a true synthesis of differences and probably could not include everyone who goes by that designation. Philosophical fusionism was in fact revived historically by Hayek, which stimulated Buckley and Meyer to develop a synthesis of freedom and tradition into a modern American conservatism that was successful for a generation. As Buckley himself observed in the declining George W. Bush days, that synthesis had “attenuated” and would need to be re-fused for a coherent future conservatism—although perhaps only for this side of the pond.

Reader Discussion

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on November 17, 2017 at 15:28:14 pm

I think Hazony and Haivry have only a tenuous grasp of Anglo-American political history but their division of two strains of thought into the rationalists and the empiricists is useful after 1600.

Prior to Bosworth Field in 1485, England was a second rate power with weak kings and a strong secular and religious aristocracy. The Tudors reversed all that and imposed a strong central government by first subjugating the secular aristocracy and then subjugating the church. All this had been accomplished by the death of Henry VIII in 1547 and in place of the barons and bishops the Tudors empowered "new men" like Thomas Cromwell and Thomas Cranmer who enthusiastically supported both the king and, more importantly, the Reformation. Between 1547-1603 the English were digesting consequences of the new political settlement imposed by Henry VII and Henry VIII.

During the reign of Elizabeth I, her church attempted to meld empiricist Catholic forms and ceremonies with rationalist Calvinist theology and her government attempted to meld the theory of an absolute monarch with the emerging bourgeois republicanism of the new men the Tudors relied upon to run the kingdom.

Following the "rationalist" and "empiricist" model, the two most important figures to emerge from the the reign of Elizabeth I were Sir Francis Bacon and Sir Edward Coke. Bacon was a humanist and rationalist along the lines of Erasmus. Bacon wanted to replace the English common law with a civil code. Coke was a sui generis nationalist and an empiricist who restated the common law in his own terms in his Reports and Institutes and established the intellectual foundations for modern Anglo-American law. Coke's restatement of the common law coupled with the religious republicanism implicit in the Lutheran Augsburg Confession and Calvin's Institutes established the intellectual foundation of Anglo-American legalistic constitutional democratic-republicanism.

The tensions between these two strains of religious and political thought came to a head in the 1620s and culminated in the Petition of Right in 1628. At this point, English and American political history diverges. The Calvinist Independent faction of Coke and Selden's Puritan Parliamentarians obtained the charter for the Massachusetts Bay Colony and established a constitutional democratic republic in New England that functioned as a free state dedicated to preserving the "ancient rights and liberties of Englishmen" (which included ordered liberty of conscience and majority rule) with only notional allegiance to the king of England. That continued until 1692 when the American colonies were again brought under the control of the Whig governments now in power in Great Britain. That lasted only until 1774 when the New England provinces rebelled.

In England, the Petition of Right Parliament ushered in the 11 year period of Charles I's personal rule that precipitated the Pym's Long Parliament, which was a coalition of "rationalist" Presbyterians and "empiricist" Independents, and the English civil wars. The Independent faction was the radically republican faction that created the New Model Army and had the allegiance of the sectarian Leveller faction. It won civil wars but it was a minority faction that simply could not hold on to its gains. However, in the 1630s the Independent settlers of the New England colonies were front running the political positions that the New Model Army Council and the Levellers adopted in England between 1646-50.

The post-revolutionaly English rationalists, Hobbes, Harrington, Sydney and later Locke, took the short step from Presbyterian Grandee to Whig and ultimately won in 1688. They strongly influenced the politics of the gentlemen of trade and the professions who were the governing elite in all of the American colonies. But the "empiricist" republicans never went away in America; they became the popular majority in American politics. Our rationalist Whig "conservatives" call them the Trumpen-proletariat but they might just as well be called Independents, sectaries or Levellers - they are all the same political animal.

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on November 18, 2017 at 19:01:34 pm

I am well-read in American political and legal history but not well-educated in English political history, political philosophy (other than Locke, Smith, Burke and J.S. Mill) or the history of English law (other than Coke and Blackstone.) Perhaps my utter deficiency in English political history is why I find Devine's article unduly conclusory, especially confusing and, thus, unconvincing. (Indeed, it sounds awfully much like mere preening.) The comment from "EK" seems of the same quality (if it is not even more preening.) Both compare poorly with the rather clear expositions of "Anglo-American conservatism" by Haivry and Hazony in their articles in the Wall Street Journal and in the American Affairs Journal. While I think H&H over-simplify Hayek and perhaps (as Devine suggests and EK alleges) they are wrong because they "have only a tenuous grasp of Anglo-American political history" ( I'll have to check Fortescu and Selden for myself,) but at least H&H explain their thesis and defend their opinion, especially of Locke's mythical "man-in-nature" abstraction and the havoc it has wrought.

Clarity is indispensable to winning an intellectual argument. Coke, Blackstone, Burke, Hamilton, Madison, Marshall and Story knew that.

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timothy l. harker
on November 24, 2017 at 03:09:12 am

I am disappointed by the groundless claim that Locke was preeminent in the minds of the American founders. I would be pleased to challenge whatever "evidence" that supports this pervasive scholarly error.

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John Schmeeckle
on November 24, 2017 at 18:41:50 pm

Yes, the Locke error is ubiquitous; I think it started with FDR and continued post-New Deal as Leftist scholars attempted to politicize the Founding and the Founders for ideological reasons so they would fit a secular, anti-Christian, Enlightenment framework and better accommodate myths about Jefferson, class-based democratic politics and their (unwarranted) contempt for Hamilton as an elitist. It seems that the recent rise of identity/race politics has jettisoned their heroes Jefferson and Jackson, while elevating Hamilton (haha the Left's belated admission of error and for historicist reasons.) Perhaps Locke will also finally get his due. Every idol has its feet of clay, it seems.

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on November 25, 2017 at 01:44:03 am

My understanding is that the context of the Federalist Papers -- the underlying legal and political assumptions shaped by the college education and legal training of the time -- is generally ignored. In my opinion, James Wilson's law lectures are an excellent source for bringing back to life this intellectual landscape. Wilson's law lectures are online, with editorial commentary, here: http://oll.libertyfund.org/titles/wilson-collected-works-of-james-wilson-vol-1
Wilson, in his lecture on evidence, lambasted the starting point of Lockean epistemology as "absurd and without foundation." In another lecture, naming Edmund Burke but arguably with Locke in mind, Wilson condemned the view that political society intercepts the connection between men and their natural rights as "tyranny."

Young Hamilton and Madison can be thought of as junior partners of Wilson, Robert Morris and Benjamin Franklin, and of course George Washington and John Jay were part of the team. Their shared program included creating the physical and financial infrastructure necessary to foster industrialization, but of course Madison eventually jumped ship after Franklin died.

Regarding the Lockean interpretation of the Declaration of Independence, my understanding is that it became entrenched during the Cold War, but it was around for a lot longer. In the 1820s, a young man named Richard Henry Lee went around claiming that Jefferson copied from Locke the ideas that he put into the Declaration, and scholars have since confused young Lee with his grandfather, the 1776 congressional delegate who introduced the independence resolution that was incorporated as the Declaration's penultimate sentence.

In 1904 a professor named Friedenwald wrote a book on the Declaration claiming that Locke's Second Treatise was "engraved on Jefferson's mind," and a decade later Carl Becker wrote a book (still in print, I believe) claiming that Jefferson copied Locke when writing the Declaration.

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John Schmeeckle
on November 25, 2017 at 10:18:10 am

Thank you for that commentary. Was aware of Wilson's objection but not of Friedenwald's book and his potential link to Thomas Jefferson. I think Jefferson is the keystone of the Locke "error." Historians and politicians, seeking to match the TJ of clay to his bronze and marble rhetoric, used the Enlightenment, Locke and the Declaration.

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on November 27, 2017 at 14:27:03 pm

Actually, I'd like to suggest that scholars routinely misrepresent Jefferson's views, although Jefferson's views were more amenable to misrepresentation than those of most of the other Founders.

Jefferson shared the commonplace acceptance of the anti-Lockean "moral sense," and Jefferson's view on the importance of virtue is once again consistent with the Founders in general but out of step with Locke.

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John Schmeeckle
on November 27, 2017 at 15:49:47 pm

Then perhaps I'll have to reorient my speculation re contemporary "Jefferson politics" as a clue to what is called the "Locke error" in our contemporary understanding of the Founders.

The late Pauline Maier in "American Scripture" says that the "Whig" principles were ''conveniently stated" in the Second Treatise but were also stated by many other 17th and 18th century writers and that such "Lockean ideas on government and revolution (were) accepted everywhere in America" by the late 18th century. Likewise Maier says that Jefferson said that RH Lee said that he (Jefferson) copied the Declaration from Locke's treatises. But Maier does not draw the conclusion that Jefferson plagiarized Locke. Indeed, her book attributes the wording and concepts of the Declaration not to Locke but rather to principal, specific sources and to general political ideas commonly accepted at the time (John Adams said as much.) Nor does Maier tie Jefferson's thinking to Locke. Nor does she attribute indirectly to Locke any wording or concept in the Declaration that justifies the natural right of revolution (such as self-preservation.) And she does not claim that the Declaration expresses Locke's theory of the the contractual origins of government.

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on November 27, 2017 at 16:10:59 pm

Can you offer more precise references regarding Locke on the Liberty Fund link?

I've heard of James Wilson and I started reading Part II on the law but was very unimpressed. He praised Lord Calvert, presumably he meant Cecil Calvert, 2nd Lord Baltimore, but his statements were simply historically wrong. He goes on and on about Blackstone's Commentaries but Blackstone did not publish his Commentaries until 1765-69 and, like Thomas Paine's Common Sense, Blackstone's Commentaries must be viewed as being of marginal or no relevance to the thoughts of those who fomented the Revolution of 1775. Surely, as Jefferson says, Sir Edward Coke was much more important than Blackstone's Tory slant on Coke's Institutes and Reports. Jefferson commented on this in a letter to Madison in 1826.

If you want to get the ur-source of modern Anglo-American political theory, you must begin with the 3rd Parliament of James I in 1621 and work forward to the Petition of Right Parliament of 1628 and then the Long Parliament of 1640-60 paying particular attention the events that precipitated Pride's Purge in December 1648.

The bottom line is that the Hobbes, Locke, Burke and Hamilton line political theory theorizing that Liberty&Law holds so dear represents only elaborations on the axioms of those Presbyterian Grandees who were purged by the Independents and sectaries in 1648 but who ultimately won the English Revolution in 1688. The thing is that the American colonies were settled chiefly by the Independent faction of the Long Parliament who loathed the Presbyterian Grandees.

I have no trouble identifying Wilson as a direct descendent of Presbyterian Grandees such as Denzil Holles.

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on November 27, 2017 at 18:59:32 pm

To EK: I am surprised by your association of James Wilson with Presbyterian grandees; I think it would take some heavy lifting to demonstrate such a point. Furthermore, I'll suggest that the "ur-source" (to use your term) of the political theory of the American Revolution was Cicero's De legibus (the starting point for the western natural law tradition, with Aristotle as a precursor who never associated happiness with habitual benevolence), and with Cicero's Tusculan Disputations as the ur-source for "happiness" as defined by the American founders in the May 1776 independence resolution. De legibus introduced the idea of the "safety and happiness" of the people as the purpose of government, a concept that was repeated over and over and over by the American Founders--a concept that reappears in Hutcheson, Burlamaqui and Vattel (but not Locke).

Here's a source for Wilson: “Tyranny, at some times, is uniform in her principles. The feudal system was introduced by a specious and successful maxim, the exact counterpart of that, which has been advanced by Mr. Burke” who argued, as Wilson summarized, that “the connexion between man and his natural rights is intercepted by the institution of civil society.” (Wilson 2007, 2:1057)

For Wilson's lengthy and pointed denunciation of the starting point of Locke’s epistemology as “unsupported, absurd and unphilosophical” and “subversive of all truth and knowledge,” while favoring Thomas Reid’s “common sense” philosophy," see Wilson 2007, 1: 603-614.

Regarding Wilson and Blackstone, please keep in mind that Wilson wrote up his law lectures around 1790, well after the Declaration of Independence, as Blackstone was gaining a foothold in the education of the next generation of American lawyers. Whether or not you are impressed by Wilson, the fact remains that he was a leading jurist among the Founders, and his views were well-respected at the time -- the type of stuff that originialists should pore over, or so it seems to me.

To timothy, regarding Pauline Maier:
The Whig ideas on government of course came before Locke. The right to revolution, for example, goes back to Magna Carta and before that to Cicero, who advocated tyrannicide.

Maier's statement that Jefferson stated that Richard Henry Lee stated that Jefferson copied the Declaration from Locke perpetuated a scholarly error -- Jefferson was actually stating that Richard Henry Lee's GRANDSON, also named Richard Henry Lee and the prideful author of the elder Lee's biography (in other words, a young man with a chip on his shoulder) -- said that Jefferson copied, etc. (I am preparing a discussion of this point for publication.)

Maier tried to discreetly avoid the scholarly debates of her time regarding the ideology of the Declaration of Independence, but she made her own position clear in note 79 on pages 270-71, endorsing Ronald Hamowy's mistaken "conjectural" Lockean discussion of the meaning of "pursuit of happiness" in his error-prone rebuttal of Garry Wills' error-prone book, "Inventing America." The actual May 1776 congressional definition of happiness as "internal peace, virtue and good order" demolishes Hamowy's Lockean conjecture. I wrote about this actual definition of happiness here: http://startingpointsjournal.com/may-resolution-declaration-of-independence/

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John Schmeeckle
on November 28, 2017 at 09:24:54 am

Two problems with this whole argument: 1) The “conservatism” of Edmund Burke accurately synonymous with so-called modern conservatism is not an ideology like liberalism with its litmus test of “issues.” Conservatism is a philosophical disposition, influenced by events in real time and historical fashions n; Burke’s “bending sapling” as opposed to the rigid tree trunk of an ideology. 2). Hegel lives in the way today’s social or political scientists use Marxist like groups and categories to pidgion hole people into different ideological classifications . It’s illusory. Most of us are not accurately in the black or white camps of libertarians or neoconservative or traditionalists or even Fudionists. We live in the world not of black and white categories but of many shades of grey.

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Dr. Ron F. Docksai
on November 28, 2017 at 10:27:49 am

One can go too far back when looking for a starting point and Aristotle and the Roman republicans are too far back. The danger is one ends up mistaking the rationalizations of an ancient ruling class for reason and ignoring the important lessons of experience. The important lesson from experience here is that conservative Whig republicanism has ever and always tended towards exactly the kind narrow oligarchy we currently enjoy where the pursuit of happiness is nothing more than the pursuit of rent seeking and class advantage.

The collision of Calvin's rationalist restatement of Christian theology and Coke's traditionalist restatement of the laws of England between 1579-1634 is certainly where modern Anglo-American political theory began. Presbyterians versus Independents, Grandees versus Levellers, Whigs versus republican commonwealth men, Democrats versus Republicans and Capitalists versus Communists all involve the same recurring themes arising from the tension between private property and the public good.

The Jefferson to Madison letter I referenced is dated February 17, 1826. In January, Madison had written Jefferson about hiring professors for the University of Virginia's law school.

If Jefferson copied anything in drafting the DoI, it was the Dutch Act of Abjuration of 1581. He seemed to have used it as a form for pleading his case.

Thank you for the references to Wilson on Locke.

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on November 29, 2017 at 10:19:39 am

Replying to EK's earlier commentary:

We clearly have our differences of opinion. For example, my understanding is that Jefferson modeled the Declaration of Independence, not on the 1581 Dutch Act of Abjuration, but on a bill of equity such as he might have submitted to a Virginia court. See Peter Charles Hoffer, "The Law's Conscience: Equitable Constitutionalism in America," pp. 71 and following.

You misrepresent my argument when you say that "Aristotle and the Roman republicans are too far back" as a starting point for understanding American revolutionary argumentation. I will restate my point: CICERO and nobody else is the starting point. Cicero built on Aristotle's concept of virtue as human "perfection" (or mature development), which unfortunately LACKS Cicero's fundamental principle of benevolence as an essential feature of the preeminent cardinal virtue of justice, and the prerequisite for happiness. This approach was followed in early modern times by Cumberland, Leibniz, Shaftesbury, Hutcheson, Burlamaqui and Vattel (but not Locke), and was ubiquitous in early American culture, if we can trust Tocqueville as a witness. This approach was also fundamental to the Ciceronian "safety and happiness" formulation articulated by Hutcheson, Burlamaqui and Vattel and reiterated over and over by American revolutionary leaders.

I discuss much of this in "Cicero, Natural Law, and the Declaration of Independence" at https://www.academia.edu/6508461/Cicero_Natural_Law_and_the_Declaration_of_Independence

As Chief Justice John Marshall pointed out in Marbury v. Madison, the concept of happiness (understood in the Ciceronian terms embraced by Congress in the May 1776 independence resolution to which Marshall alluded) is fundamental to the discussion of American revolutionary political theory. See "Prelude to the Declaration of Independence: The Congressional Resolution of May 10 and 15, 1776" at https://www.academia.edu/1479704/Safety_and_Happiness_The_American_Revolutionary_Standard_for_Governmental_Legitimacy

As always, you and everyone are welcome to disagree and question my approach and my conclusions. In my opinion, your point about seventeenth-century Presbyterian grandees only makes sense if we limit our discussion of American colonial leaders to the slave-lords of Virginia's Tidewater and South Carolina's coastal swamps. A very different cultural ethos prevailed among the elites in Philadelphia and Boston, and in the minds of men like Benjamin Franklin, John Adams, James Wilson, John Witherspoon, etc., etc.

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John Schmeeckle
on November 30, 2017 at 11:03:50 am

And I believe that the unalienable rights in the Preamble of the DoI were generally understood to be nothing more and nothing less than the "ancient rights and liberties of Englishmen" mentioned in the 1603 charters of the Virginia and London Companies. Drafting such charters and patents were part of Sir Edward Coke's job description when he was James I's attorney general after Elizabeth I's death and until1606. Between 1621-34 Coke made it clear that these rights and liberties arose out of the experience of the governed from time out of mind, and not from acts of Parliament or the good will of the king.

Your argument assumes that government by philosopher kings or a philosopher legislatures is a realistic possibility. It is not. What one king or legislature grants ex officio the next can just as easily be taken away ex officio. The disgraceful performance of the Supreme Court over the last 200 years is proof enough of that.

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on December 01, 2017 at 11:51:03 am

EK, you wrote: "I believe that the unalienable rights in the Preamble of the DoI were generally understood to be nothing more and nothing less than the “ancient rights and liberties of Englishmen” mentioned in the 1603 charters of the Virginia and London Companies."

Your statement of belief simply ignores the plain meaning of the term "unalienable rights," which was introducted into eighteenth-century political discourse by Francis Hutcheson, in his "Inquiry into the Original of our Ideas of Beauty and Virtue" (in the 1730s required reading at Harvard College)(Fiering 1981, 199) and repeated in his "Short Introduction to Moral Philosophy" (used as a textbook at the College of Philadelphia) (Robbins 1954, 215-16). Hutcheson was “probably the most influential and respected moral philosopher in America in the eighteenth century.” (Fiering 1981, 199) In 1761, Hutcheson was publicly endorsed as "an approved writer on ethics" in the semi-official Massachusetts Election Sermon (delivered by Rev. Benjamin Stevens), which also embraced Hutcheson's Ciceronian phrase "safety and happiness" as the purpose of government. Francis Alison, the professor of moral philosophy at the College of Philadelphia, was a former student of Hutcheson who closely followed Hutcheson’s thought. (Sloan 1971, 88) Alison's students included "a surprisingly large number of active, well-known patriots,” including three signers of the Declaration of Independence, who "learned their patriotic principles from Hutcheson and Alison.” (Norton 1976, 1548, 1566, 1567) Another signer of the Declaration of Independence, Rev. John Witherspoon of the College of New Jersey, relied heavily on Hutcheson's views in his own lectures on moral philosophy. (Witherspoon 1982, 27, 29, 35-37)(Sloan 1971, 122-25)

"Unalienable rights," as Hutcheson used the phrase that he himself coined, are the rights of conscience, corresponding to our fundamental duties of piety and benevolence -- the two commandments of Jesus Christ, which were adumbrated in Cicero. Burlamaqui (who was also endorsed as an "approved writer" in the 1761 Massachusetts Election Sermon) made the same point, although his English translation used the phrase "rights that cannot be renounced" as those rights that correspond to fundamental duties.

John Adams famously wrote to Jefferson (June 28, 1813) that the Founders were unanimous in supporting the "general principles of English liberty" (and here your reference to Coke and the 1628 Bill of Right fits in, together with Magna Carta, etc.) AND the "general principles of Christianity" [piety and benevolence] which Adams conflated with Ciceronian natural law. As Sir Edward Coke wrote in the preface of the fourth volume of his Reports on the Laws of England, "piety and devotion toward God" was "the fountaine of all happiness, the true Summum Bonum." Adams, in his letter to Jefferson, was subtly reminding Jefferson that it was ADAMS (not Jefferson) who defined safety (life, liberty, and property: the general principles of English liberty) and happiness (including virtue, which Adams clearly associated with the general principles of Christianity) in the May 1776 independence resolution to which John Marshall (who had been appointed Chief Justice by President John Adams) alluded in Marbury v. Madison.

You write, "Your argument assumes that government by philosopher kings or a philosopher legislatures is a realistic possibility. It is not."

First of all, please keep in mind that my intention is to clarify the views of the American Founders, apart from what I think of those views. Second, your negation of the founders' thought of "government by philosopher legislatures" brings to mind the following quotations.

On Oct. 17, 1774 William Bradford wrote to James Madison: "The Congress sits in the Carpenter’s Hall in one room of which the City Library is kept & of which the Librarian tells me the Gentlemen make great & constant use. By which we may conjecture that their measures will be wisely plan’d since they debate on them LIKE PHILOSOPHERS; for by what I was told Vattel, Barlemaqui Locke & Montesquieu seem to be the standards to which they refer either when settling the rights of the Colonies or when a dispute arises on the Justice or propriety of a measure." (emphasis added)

Please note that Vattel is first on the list. In December 1775 Benjamin Franklin wrote that Vattel's "The Law of Nations" was "continually in the hands of the members of our congress, now sitting."

John Adams wrote in 1763: “I study law as I do divinity and physick; and all of them as I do husbandry and mechanic arts, or the motions and revolutions of the heavenly bodies; or as I do magistracy and legislation, viz. as means and instruments of human happiness.” Thomas Jefferson described his approach to guiding his law students in 1810: “In advising the course of their reading, I endeavor to keep their attention fixed on the main objects of all science, the freedom and happiness of man. So that coming to bear a share in the councils and government of their country, they will keep ever in view the sole objects of all legitimate government.” Law, for the American founders, was based on universal moral principles, derived from human nature and directed toward promoting human happiness.

Robert A. Ferguson refers to the period from “1765 to 1840” as an era in which “the lawyer’s deliberate combination of intellectual breadth, artistic insight, and political commitment has been unique in American history.” The versatility of lawyers in this era stemmed directly from the broad principles of their legal training, which reinforced the classical education common to the period. Thomas Jefferson regarded classical and mathematical studies “not only as indispensable to a law student from a utilitarian standpoint, but also as a source of intellectual pleasure.” William Livingston of New York directed his law students to study “not merely law but also geography, history, divinity, and rhetoric” in order to “‘make a compleate Lawyer’ and to ‘contribute their part to the perfecting a Scholar.’” James Kent, as a law professor at Columbia College in 1794, “urged every American lawyer to master the Greek and Latin classics as well as moral philosophy, history, logic, and mathematics, and his emphasis was on the ability that flowed from general knowledge.” Foremost in the legal emphasis on the classics was Cicero, himself a lawyer, who “placed particular onus upon the legal profession because it was so closely connected to ‘the gift of eloquence.’ Virtue, politics, and literary expression merged in the classical image of man finding fulfillment in citizenship.”

Complete citations for the last two paragraphs are available on pages 67-68 of my 2008 master's thesis, "Happiness, Natural Law, and the Declaration of Independence," online at http://gradworks.umi.com/14/56/1456018.html

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John Schmeeckle
on December 01, 2017 at 17:57:11 pm

I see we are mining two different traditions. I am mining the English Common Law and you are mining philosophers.

According to Coke, the lex terrae (law of the land) defines the unalienable rights of the governed. Coke's thesis was the law of the land in England had existed from time out of mine. It was unwritten and it was "discovered" by judges in the course of hearing cases between individual litigants. The judges then reported the pleadings and justified decision they rendered. Correctly understood, Coke is saying that judges don't create the law of the land they discover it by hearing and deciding cases brought by individuals.

After Coke was dismissed from the King's Bench in 1616, Coke consistently argued to the king's face that both the king and Parliament were subject to the law of the land. All this came to a head in context of the "Five Knights' Case" and the subsequent the Petition of Right Parliament of 1628 when Coke, then a Member of Parliament said:

"I know that [the king's] prerogative is part of the Law, but 'Sovereign Power' is no parliamentary word. In my opinion it weakens Magna Carta, and all the statutes, for they are absolute, without any 'Sovereign Power'; and we now add it, we shall weaken the foundation of the law, and then the building must needs fall. Take we heed what we must yield unto: Magna Carta [i.e.; the law of the land] is such a fellow he will have no 'Sovereign.'"

Law, Liberty and Parliament: Selected Essays on the Writings of Sir Edward Coke, Liberty Fund (2004), pp. 21-2 citing "Parliamentary History II" (London 1807) col. 357.

I take this to be the equivalent of saying that the rights and liberties secured by the common law of England are unalienable by any action of either of the king or of a legislature.

In 1647, the magistrates in the Massachusetts Bay Colony appropriated funds for two copies each of Coke's First and Second Institutes and Coke's Reports I and II "to the end that we may have the better light for making & proceedings about the laws." Both John and Samuel Adams and James Otis relied upon Coke in arguing that according to their charter the New England colonies were a separate realm with its own legislature from England and that their union with Britain was personal in the person of the king and not political. [This was literally true from 1630-91 under the Charter of 1628. But the old charter was surrendered in 1692 and the Adams's and Otis's position in 1774 was on much shakier ground under the Charter of 1691 ].

From 1615 onward, Coke consistently used the lex terrae clause the Magna Carta to deny that either the king or parliament could abridge the due process and equal protection rights and liberties of Englishmen by the exercise of royal prerogative or by statute. I don't think that because Francis Hutcheson may have been the first to used the term "unalienable" to describe these rights and liberties in 1725 that the word itself adds anything to our understanding of what those rights and liberties were in the American colonies between 1630-1789.

John Adams's 1763 comment suggest to me only that he'd read Marlowe's Faust (c. 1590) before he graduated from Harvard.

It is Coke's opinions about the law of the land as they relate to due process and equal protection that are most relevant to the "ancient rights and liberties of Englishmen." In this regard, the first 92 paragraphs of the Massachusetts Body of Liberties of 1641 are interesting. The Liberties reflect the settlers' understanding of what their ancient rights and liberties were. It should be further understood that well prior to 1641, the settlers had already established that they could not be taxed without representation, that the vote of the majority of their Deputies duly and freely elected to the Great and General Court was necessary to bind them to any laws might be adopted and that the right to vote should be reasonably broad.

Link to the Liberties: https://history.hanover.edu/texts/masslib.html#ms

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on December 01, 2017 at 18:36:07 pm

The Declaration of Independence rooted its statement about unalienable rights, not in the ancient rights of Englishmen, but in "the law of nature and nature's God," which means that, if we take that statement at face value, your exposition of the ancient rights of Englishmen is not immediately relevant to the Declaration of Independence. But of course, as both St. Germain and Coke himself stated, the laws of England are rooted in the law of nature.

The Congressional Resolution of May 10 and 15, 1776, in establishing de facto independence, looked toward the common law by citing "reason and good conscience" as its authorities for totally suppressing royal government. This resolution's observation that the King had placed the colonists outside his protection immediately evokes Coke's discussion of the "original contract" between king and subject as an element of natural law (in his report on Calvin's Case), as well as evoking the 1649 verdict against King Charles I. The May 1776 resolution's reference to British military force being brought to bear against the colonies once again evokes the verdict against King Charles, as well as following Vattel's prescription for declaring independence.

However, the Declaration of Independence, by focusing beyond England toward a larger audience, invoked natural law, instead of the common law and time-honored English constitutional arrangements. Your exposition of the rights and liberties secured by the common law (rooted of course in natural law) is consistent with the Declaration of Independence's enunciation of the unalienable rights to life and liberty, but the unalienable right to the pursuit of happiness is a bird of a different feather--although Adams did paraphrase Fortescue when he associated happiness with virtue in his April 1776 "Thoughts on Government."

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John Schmeeckle
on March 30, 2018 at 09:27:23 am

[…] — Source […]

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