His most important act in that regard was his support of Francis Hutcheson. Islay recognized how useful Hutcheson could be at Glasgow, as a voice for reform and Whig ideals, and as a thorn in the side of the hidebound traditionalists. He pressured the faculty and regents at Glasgow to give way, and so Hutcheson beat his two rivals (one of them Carmichael’s own son) for the post. It is a delicious irony that without the self-interested help of Islay, the most feared but also the most hated politician of his day, Hutcheson and his philosophy of moral altruism would never have enjoyed the sort of influence it did.
If the older generation of faculty resented his presence at Glasgow, Hutcheson never allowed it to become an obstacle to his teaching or writing. He carefully prepared his class lectures so that they never served as a cause for scandal. He turned out to be a brilliant teacher— so good, in fact, that his classes were always overbooked and he had to hire an assistant.
They were crowded for another reason. Hutcheson broke with ancient precedent and presented his classes on moral philosophy in English, rather than Latin. He may have been the first professor in Europe to teach in the vernacular, instead of the centuries-old language of academic learning. It not only expanded the range of students who could attend his class, but also introduced a note of informality and spontaneity into his lectures, which made their impact on hearers even greater. One of his students later described what taking a class from Hutcheson was like:
“He was a good-looking man, of engaging countenance. He delivered his lectures without notes, walking backwards and forwards in the area of his room. As his elocution was good, and his voice and manner pleasing, he raised the attention of his hearers at all times, and when the subject led him to explain and enforce the moral virtues, he displayed a fervent and persuasive eloquence which was irresistible.”
Hutcheson lectured on Natural Religion, Morals, Jurisprudence, and Government five days a week, and delivered a sermon every Sunday on “the excellence of the Christian religion.” Three days a week Hutcheson introduced another important innovation: discussing assigned readings directly with students, usually the ancient authors on morality such as Aristotle and Cicero. By his own example, and by exerting a gentle pressure on his colleagues, Hutcheson became a driving force behind curriculum reform at Glasgow. He pushed training in the Greek language and the ancient classics into the curriculum, as the foundation for polite learning. He helped to appoint other reform-minded colleagues to important chairs. Glasgow University soon gained a reputation for academic excellence and learning. English and Scottish observers considered its students better prepared and more intellectually engaged than those of Edinburgh—even though so many came from less than “the best families,” but rather from middle-class or even poor origins.
Hutcheson’s reforms at Glasgow served as the model for academic reform at the other Scottish universities later in the century. But through it all, Hutcheson never lost sight of his main goal: “to change the face of theology in Scotland,” as he put it. He wanted to turn his fellow clergymen away from the hard, inflexible dogmas of John Knox and refocus their energies on the moral questions their parishioners faced every day. Hutcheson wanted the Presbyterian faith to take on a more humane, comforting face. It caused controversy. “I am already,” he wrote to a friend in 1742, “called New Light here. I don’t value it for myself, but I see it hurts some ministers who are most intimate with me.” Nonetheless, within the Kirk he managed to create a lobbying group that later become known as the Moderate Party. It included colleagues such as William Leechman, whom Hutcheson brought in as Professor of Theology, former students such as Alexander Carlyle and Matthew Stewart (whose son Dugald would become the University of Edinburgh’s most famous teacher), and ministers such as William Robertson and Hugh Blair, who chose Hutcheson as their professional role models.
All of them embraced Hutcheson’s main point, that the message of Christianity was above all a moral message. The pulpit was not a place to inspire fear and terror, but to uplift and inspire. Church should be the school of men’s consciences and a place to cultivate a disinterested benevolence and affection for our fellowmen. It becomes, in fact, a training ground for Shaftesbury’s polite culture. Unlike their French counterparts, the great minds of the Scottish Enlightenment never saw Christianity as their mortal enemy—not even Hume, the self-proclaimed skeptic. For the clerical disciples of Hutcheson, Church and Enlightenment were natural allies, in much the same way as science and the humanities were not pitted against each other, but were two halves of the same intellectual enterprise.
Yet Hutcheson’s most lasting impact lay outside his immediate profession. It touched students such as Adam Smith, who arrived to study at Glasgow in 1737 and quickly fell under Hutcheson’s spell. He sat in on the great man’s lectures on moral philosophy from 7:30 to 8:30 in the morning three days a week, and then attended his main course on the philosophy of law and politics. There, Smith and other listeners would discover that the underlying principles of all human behavior were part of an “immense and connected” moral system governed by the dictates of natural law. That included “ oeconomicks, or the laws and rights of the several members of a family,” as well as “private rights, or the laws obtaining in natural liberty.”
The crucial element in each, the part that enabled everything else to move, was always the same: liberty. Human beings are born free and equal. The desire to be free survives, even in the face of the demands for cooperation with others in society. Society acknowledges it as a natural right, which it must leave intact. That right is universal; in other words, it applies to all human beings everywhere, regardless of origin or status.
As nature has implanted in every man a desire of his own happiness, and many tender affections towards others . . . and granted to each one some understanding and active powers, with a natural impulse to exercise them for the purposes of these affections; ’tis plain each one has a natural right to exert his power, according to his own judgement and inclination, for these purposes, in all such industry, labor, or amusements, as are not hurtful to others in their persons or goods. . . .
Hutcheson took this basic principle of liberty out beyond the political realm. He not only endorsed Lockean ideas of freedom of speech and freedom of religion. He challenged other forms of oppression, which Locke and even Shaftesbury had ignored.
One was the legal subjection of women. Hutcheson defined rights as universal, and did not recognize any distinction based on gender. The other, even more important, was slavery. “Nothing,” he said, “can change a rational creature into a piece of goods void of all rights.” In fact, Hutcheson’s lectures, published after his death under the title A System of Moral Philosophy, were “an attack on all forms of slavery as well as denial of any right to govern solely on superior abilities or riches.” They would inspire antislavery abolitionists, not only in Scotland but from London to Philadelphia.
Francis Hutcheson had created a new political and social vision, one that went far beyond Locke or any comparable English thinker: the vision of a “free society.” He is Europe’s first liberal in the classic sense: a believer in maximizing personal liberty in the social, economic, and intellectual spheres, as well as the political. But the ultimate goal of this liberty was, we should remember, happiness—which Hutcheson always defined as resulting from helping others to be happy.
Freedom’s ends are not selfish ones, he believed; they are in truth governed by God, through our moral reasoning. Hutcheson never worried about the dangers of letting people do or say whatever they wanted, because in his mind a free society enjoys a firm and permanent backstop, our innate moral sense, which enables us to distinguish the vicious from the virtuous, and the decent from the obscene, just as our intellectual reason enables us to sort out truth from falsehood. “The nature of virtue,” Hutcheson wrote, “is thus as immutable as the divine Wisdom and Goodness.”
Hutcheson’s doctrine of happiness, then, had two faces. It involved, on one side, gra
tification of the self through a joyous and contented life. When Thomas Jefferson added “the pursuit of happiness” to his list of inalienable rights of man in the Declaration of Independence, he was emphasizing this side of Hutcheson’s legacy. On the other, it was also intensely altruistic. No man stands alone, was the message his students absorbed. Hutcheson constantly enjoins us to get out and become involved in the lives of our fellow human beings. Our willingness to do so becomes the measure of who we are. His statement on this point— “action is best, which produces the greatest happiness for the greatest number”—would also ring down through the next two centuries, underpinning the utilitarian philosophy of two later Scots, James and John Stuart Mill.
That was what Francis Hutcheson taught his contemporaries: the desire to be moral and virtuous, and treat others with kindness and compassion; the desire to be free, including political freedom; and the desire to enjoy our natural rights in society, as civil rights, are universal desires. And why do human beings want them? Because these are the things that lead to human “happiness.”
But this raised a problem for his disciples. If those desires are really so universal, why do so many societies deny people those very things? Why, given the variety of political and social systems in history, have there been so few that have delivered on Hutcheson’s vision of a free society?
When Hutcheson died in 1746, he left no answer. He had been a philosopher, not a historian. He had concentrated on describing how things ought to be, rather than explaining how they actually were. It would take another Scotsman, based in Edinburgh rather than Glasgow, to do that.
CHAPTER FOUR
The Proper Study of Mankind II
The faculties of the mind have been explored, and the affections of the heart; but there is still wanting a history of the species in its progress from the savage state to its highest civilisation and improvement.
—Lord Kames
I
Henry Home was the son of a landed gentleman from Kames, in Berwickshire. His mother was the granddaughter of Dr. Robert Baillie, Principal of Glasgow University and an enthusiastic Covenanter in the 1640s. “I furnished to half a dozen of good fellows muskets and pikes,” Baillie wrote the year the National Covenant had spread like wildfire across the south Lowlands, “and to my boy a good broad sword.”
Home, who later took the title Lord Kames,6 may have inherited his ancestor’s fire and spirit, but the Kirk’s legacy of pessimistic moral austerity left no discernible trace. Instead, he was raised an Episcopalian and learned early on the importance of a good income, as well as the pride and pleasure of being a gentleman farmer (especially when others do the heavy lifting). He attended no school or university, but was tutored at home. Since he showed a predilection for books and learning, it was decided that the perfect profession for this heir to a modest country fortune was the law.
In 1712, just the year after Francis Hutcheson arrived at Glasgow, sixteen-year-old Harry Home set off for Edinburgh to start his legal education in the chambers of John Dickson, a so-called writer of the Signet, or what the English would call a solicitor. This was more than just a matter of terminology; it reflected a genuine difference between the legal systems of the two countries, and even a difference in the mentality of those who took up the study and practice of the law.
Scottish law had developed very differently from its English counterpart. They sprang up at almost the same time, in the twelfth and thirteenth centuries. But as time went on, the outlook of English lawyers and judges became increasingly insular. They looked to the custom and precedent of their own past to settle virtually every dispute—hence the term common law, meaning common to the kingdom of England.
The Scots, on the other hand, who had learned to cast wider for their fundamental legal principles, turned to the ancient Roman civil law. They studied the medieval legal scholars, the great “civilians,” who were busy reviving that Roman legacy on the Continent. This meant that by John Knox’s time Scottish law looked more like that of France or Italy than Scotland’s neighbor to the immediate south. In fact, many Scottish lawyers in the seventeenth century still went to France to complete their law training rather than to England, since English legal principles made little or no sense to the Scottish mind.
To an American, the two systems might look the same. To bring a case to court, a person hires a solicitor (or in Scotland, a writer), who in turn finds a barrister (in Scotland, an advocate) to plead the case for his client before the judge. There, however, the similarity ends. The relationship between plaintiff and defendant is more than simply adversarial. The prosecution makes no opening statement; the evidence against a defendant must speak for itself. Judge and jury (and in Kame’s time, there were no juries in civil trials) carry an awesome responsibility. Unlike his English and American counterpart, the Scottish magistrate does not just ask what the evidence proves. He dares to pose the crucial question: What really happened?
A Scottish judge’s decision in a civil or criminal case looks beyond the facts to the underlying principles of fairness and equity that the case involves. His guide is not precedent but reason—hence the importance of Roman law, which later commentators even referred to as “written reason.” Since the Middle Ages, in fact, Scottish legal minds had come to rely on Roman law to fill in the gaps in their own law. The judges of the Court of Session were even designated senators, as if they were the successors to the ancient Roman body.
The first professor of Scots law at the University of Edinburgh, Alexander Bayne, explained, “We consider the Roman laws which are not disconform to our own fixed Laws and Customs, to be our own Law.” Later, as a distinguished judge, Lord Kames would agree. “Our law is grafted on that of Old Rome,” he would write. “The Roman law is illustrious for its equitable rules, affording great scope for acute reasoning.” It taught a judge above all to think independently, and not to worry too much about what other judges had said in the past. It also taught another invaluable lesson, firmly established in Scottish jurisprudence: that no person, not even a monarch, stood above the law.
The one Scottish institution left untouched by the Act of Union in 1707, besides its Kirk and its universities, was its legal system. Parliament House, once the home of self-government, now became the home of the law courts. When the teenaged Henry Home visited for the first time, he would have seen judges striding back and forth to court in their magnificent maroon silk robes (patterned after the red robes of the sovereign courts of France), the bustle of attorneys and bailiffs summoning clients to court, and he would have heard the cries of shopkeepers peddling their wares from their booths in the nearby streets and alleys. It became the center of his world. For the rest of his life, he never lived more than a few blocks from Parliament House.
Apprenticing with a writer of the Signet (so called from the royal signet ring used to authorize legal documents) was a typical way to start one’s training in the law. Working with Dickson immersed Home in the complicated legal issues arising from the sale and alienation of land, and establishing hereditary title. He would have spent hours mastering the arcane rules and vocabulary of Scottish feudal landholding, a mixture of Norman French, Middle English, and Scots.
First came the various kinds of tenure, such as ward, feu, blench, bur-gages, and mortification. Then the obligations owed to landlords: bonds, contracts, tacks (a type of lease), wadsets (or mortgages), venditions, and “bills of bottomry.” He would have learned how the landholding of feudal Scotland, in both Highlands and Lowlands, had been created out of military necessity. This archaic system of land ownership had survived in Scotland much as it had elsewhere in eighteenth-century Europe, although the Scots had organized and systematized it better than most. But since then, new forms of property holding—buying, selling, and leasing of land and movables—had arisen, which both overlapped and challenged the old patterns. Who was more in the right, the old land-holders or the new? It was the kind of question that would occupy Home later on, and he could not have
begun to address it without his earlier training in Dickson’s chambers.
Home’s interest in the law took a sharply different turn when he met Sir Hew Dalrymple, Lord President of the Court of Session. Dalrymple was the brother of John Dalrymple, Viscount Stair, who had died while pressing the Act of Union on a reluctant Parliament. Their father, the first Viscount Stair, was the distinguished organizer and systematizer of Scottish law, whose Institutions were published in 1681. The supposed “Dalrymple curse” left no mark on the elegant and convivial Sir Hew. Just the opposite. Home himself described the first time as a struggling young law clerk he met Dalrymple, and how it changed his life:
I was kept waiting in an outer room. I heard delightful Musick upon a harpsichord in the next room, and I meditated on the hardship of there being such distinctions amongst Mankind. “Why are the people in that room enjoying such happiness, and I kept in a mean, drudging way? Were I but fortunate enough to be on the other side of that Wall.”
There was only one way. This was to switch from the straightforward but less lucrative profession of writer or solicitor to the more glamorous but also more competitive world of the advocate or barrister, who represented clients in court and commanded high fees for doing so. It was also from their ranks that future judges for the Court of Session and the Court of Justiciary, Scotland’s highest criminal court, were chosen.
Home quickly made up his mind. He became close friends of the Dalrymple family. The son became his roommate, and the music of the family harpsichord become a familiar sound to young Harry Home. He also threw himself into the studies necessary for admission to the Faculty of Advocates.
How the Scots Invented the Modern World Page 10