Scottish advocates had been practicing before the bar since the thirteenth century, and had formed their own guild, the Faculty of Advocates, in the sixteenth. The rules for admission had become increasingly strict, even scholarly. The Faculty required from its members a full course of study of philosophy and law at a university for at least two years, in lieu of formal experience for seven.
The contrast with England was striking. The English barrister received no formal academic training at all. Instead, he learned his trade at the Inns of Court in London entirely in the old medieval style of hands-on apprenticeship. Like his solicitor counterparts, the young English barrister learned to play follow-the-leader, and to obey the dictates of precedent, because there was no practical alternative.
But his Scottish counterpart was as much the product of rigorous scholarly erudition as of practical skills. Two years of overseas study, at universities in Holland or even in France, gave the Scottish bar a cosmopolitan air the English never achieved.
It also immersed the aspiring advocate even deeper in the theory of Roman and civil law. Justinian’s Codex sat on Home’s desk side by side with Stair’s Institutions as he prepared for his final examination. Since 1664 the Faculty had required a private and public exam on the civil law administered by senior advocates, and a public speech on a civil law text chosen by the Dean of the Faculty. Home presented his on January 17, 1723, on a subject familiar from his days studying to be a writer to the Signet: the revocation and transference of legacies. He was now a full-fledged advocate and a member of the Scottish bar. He was twenty-seven years old.
Harry Home proved to be a rising star. His “tall, stooping figure,” as his friend Allan Ramsay described him, and his “keen, sarcastic face” became familiar sights around Parliament House and in the neighboring taverns and oyster houses. Men and women alike found him captivating. The poet William Hamilton described him this way:
While crowned with radiant charms divine,
Unnumbered beauties round thee shine. . . .
As he admitted to James Boswell years later, “I got into pretty riotous and expensive society.” When he found himself swamped with bills and over three hundred pounds in debt, he put the brakes on his social life and concentrated on the work.
His time in Dickson’s office had given him a firm grasp of the intricacies of the law regarding land tenure, inheritance, and estates in Scotland. Combined with his immersion in civil jurisprudence, he now had the best of all possible intellectual backgrounds: a mind broadened by rigorous understanding of theory, but also steeped in the nuances of actual practice. He also turned out to be a brilliant advocate in court, summarizing cases without fanfare but with the full force of reasoned persuasion. He soon rose to become a senior examiner for the Faculty of Advocates, and then stepped in to act as curator of the Advocates’ Library in 1737.
With the help of the library’s keeper, Thomas Ruddiman, over the next half-decade Home turned it into a major repository for books not only on law but also on philosophy, history, geography, and foreign travel. It soon became one of the premier collections in Great Britain, and the seedbed of the Edinburgh Enlightenment. Its future keepers would include David Hume, who used the library to write his History of England, and Adam Ferguson, who used it for his Essay on the History of Civil Society. Anthropology, sociology, ethnography: almost all our modern social sciences got their start from the volumes assembled on the shelves at the Advocates’ Library in Edinburgh. And it was Home who made it possible.
In this, as in so much else, his tireless energy reflected a key characteristic of the Scottish enlightened mind, its passion for organizing and systematizing knowledge. His first published book was a collection of past judicial decisions by the Court of Session, in order to help attorneys and judges to understand the future direction of Scottish law. He pored through the manuscripts of its old president Lord Fountainhall, the same judge who had met Thomas Aikenhead in Tollbooth Prison and spoken to the Privy Council on his behalf. The Advocates’ Library contained his private papers, and Home was able to sift through Fountainhall’s personal account of daily business in the Privy Council. It gave him invaluable insights into the interplay between politics and the law, and how issues arising from the one impinge upon and shape the judgments made in the other.
Increasingly, Home concluded that this was a normal, not an extraordinary, state of affairs. The law, he realized, was a living thing, “being founded on experience and common life,” he would write later. “Our law thus comes to be enriched with new thoughts, new discoveries, new arguments, struck out by the invention of our lawyers.” It is not a lifeless chain of tradition and precedent, but a flexible instrument, a means for attaining order and justice, and it must change as society changes, and human beings with it. The law is a means to an end—and what that end is depends on human desires and needs.
But somewhere, some basic principles have to stick. Somewhere there has to be a firm base on which everything else can rest; otherwise, the law becomes the plaything of power, not its master.
One such principle was reason, our rational faculty for grasping knowledge of the world and drawing conclusions from it. Another was nature: like Hutcheson, Home looked to philosophers such as Pufendorf as a guide for seeing how all human societies reflect the same underlying laws of nature dictated by God. Yet nature’s laws, too, were not fixed and immutable. “The law of nature,” he concluded in 1751, “which is the law of our nature, cannot be stationary. It must vary with the nature of man, and consequently refine gradually as human nature refines.”
So what does remain stationary? What can we rely on as fundamentally true if everything else, including those qualities that define us as human beings, constantly shifts and changes? Those were the questions Home was determined to pursue.
The problem was that his research had to be squeezed into a highly successful but demanding legal career. In January 1752 he was appointed Lord Ordinary of the Court of Session, which enabled him to take the title of Lord Kames. His day regularly began sometime between 5:00 and 6:00 A.M., when he began reading and preparing for his day at court. Shortly before noon he would go to Parliament House to hear cases with his colleagues, including James Boswell’s father. When the court rose at about three o’clock in the afternoon, Kames would skip dinner in order to spend time with books and manuscripts, including the Code of Justinian, Anglo-Saxon and Frankish law, and legal theorists ranging from the Hebraic and Islamic world to English commentators such as Sir Edward Coke and Sir William Blackstone.
Any actual writing usually had to wait until he could get away to the country between court sessions. Even there it had to be sandwiched in between supervising work on the farm and entertaining guests. Ramsay remembered Kames dressing for dinner, while “his clerk read over what he had written in the morning, marking his emendations and subsequent hints” for further research.
Evenings in the city were given over to social gatherings, which both he and his wife intensely enjoyed. They would invite friends to attend a concert or the theater (although in the 1740s theatrical performances were still technically illegal in Edinburgh), then return home to enjoy supper with intimates. Kames rarely got to bed until after midnight.
From the point of view of his researches, however, these convivial at-home evenings were not lost time. Kames liked to mix food and drink, including prodigious quantities of claret, with serious discussion of philosophical and legal issues. Kames’s love of good company set the style and tone of Edinburgh’s intellectual life for nearly a century, while his guests included a series of young men of genius who would dominate the Scottish Enlightenment.
One of these was John Millar, who served as tutor to Kames’s son, then became the University of Glasgow’s first Professor of Civil Law. As a teacher and scholar, Millar would virtually invent modern political history. Another was Adam Smith, who came to Edinburgh in 1746 looking for an academic job. Because none was available, Kames arranged for him to deli
ver a series of public lectures on rhetoric, literature, and the subject dear to Kames’s heart, civil jurisprudence. Those lectures, delivered between 1748 and 1751, would become the foundation for the Wealth of Nations.
A third was James Boswell, the son of Kames’s colleague on the Court of Session bench, Lord Auchinleck. The headstrong James quarreled frequently with his cold, reproachful father, and looked to the rough but affectionate Kames as his intermediary when things were going badly at home. After “Jamie” Boswell passed his exam to become an advocate in late July 1762, Kames brought him along on a tour of Scotland’s Border country, not far from his Berwickshire estate. Boswell called Kames a man of “uncommon genius” as well as a “great character.” Kames was in many ways the forerunner of the more famous father figure Boswell met when he moved to London, Samuel Johnson. In fact, Boswell even planned a biography of Kames similar to the one he did for Johnson. He never finished it—sadly, since it might have made the brilliant and sardonic judge from Berwickshire as familiar to modern readers as the learned doctor from Lichfield.
However, the favorite among Kames’s young protégés was David Hume. They were distant relations—different branches of the great Border family of Home—and neighbors. The house at Kames was only ten miles from Ninewells, where David Hume had grown up. David’s father died when he was a child, so Kames again stepped in as a father figure and intermediary. He reassured David’s shocked mother and relations when the headstrong boy decided to give up the study of law and pursue philosophy instead.
Hume called Kames “the best friend I ever possessed” but also “the most arrogant man in the world.” He described him as “an iron mind in an iron body,” but noted: “He is fond of young people, of instructing them and dictating to them; but whenever they come up and have a mind of their own, he quarrels with them.” In fact, Hume and Kames quarreled constantly, especially on matters of religion. David Hume had no religion. Kames was an Episcopalian (rare in Edinburgh, but not in landed upper-class Scottish circles) and detested unbelief. Kames even wrote his Essays on the Principles of Morality and Natural Religion as a refutation of Hume—only to become the target of the same vote of censure that hard-liners in the Kirk’s General Assembly were bringing against Hume!7
As it happened, the vote against Hume failed. But it drove home the point that in the larger scheme of things, mentor and protégé were more alike than different. Both offended conventional opinion by pointing out that morality, like society itself, arose from human aspirations rather than divine ones—in Hume’s words, from “mere human contrivances for the interest of society.” Far more than Hutcheson, they worked to detach our understanding of human nature from its traditional theological moorings. Both saw human beings as the products of their environment, whether one was talking about the individual, as Hume did, or the collectivity, which was Kames’s particular focus. They relativized man, in the sense that they made who we are dependent to some degree on our experience in a particular time and place, rather than solely on some inborn quality or sense.
This sense of context would become central to the Scottish view of history, anthropology, psychology, and economics. From this perspective, Hume would have to agree with Adam Smith: “We must every one of us acknowledge Kames for our master.”
II
Kames’s stolen hours of research, reading, and debate first bore fruit in 1732, when he published his Essays Upon Several Subjects in Law. He followed this with a second collection of essays on legal history in 1747, and then Essays Upon the Principles of Morality and Natural Religion in 1751. Together with Historical Law Tracts in 1758, they opened a new chapter not only in the study of comparative law, but also in the study of human history.
The issue Kames raised was deceptively simple: Why do laws exist? What makes it possible for human beings not only to institute rules and regulations for their conduct, but also to agree to abide by them?
The answer he gave was a classic one—but now with an extra twist. Men institute laws, he concluded, in order to protect property. This was self-evident to the heir to a Berwickshire estate. But it was also rooted in every discussion of natural and civil law. A sense of property marked the starting line for all social arrangements. Any child knows that there are certain toys that belong to him, and him alone, and ones that belong to you. Roman lawyers called this a sense of meum et tuum, the sense that “that is yours and this is mine.” We can share, and I can even pretend for a time that the tricycle I ride is really my tricycle. But at the end of the day, when accounts are settled, things must be returned to their proper owners—otherwise there come tears and recriminations, a sure sign that a fundamental instinct for fairness, a sense of justice, has been violated.
“That is yours and this is mine.” And let’s keep it that way. In other words, I’ll respect yours, if you respect mine. That is why we create society, and with it government, in the first place: so that each person can enjoy what he or she has appropriated by his or her own efforts, without fear of hin-drance. “It is . . . a principle of the law of nature,” wrote Kames, “and essential to the well-being of society that men be secured in their possessions honestly acquired.”
Standing by itself, this was not a very original observation. John Locke, Samuel Pufendorf, even Thomas Hobbes would have said the same thing. But Kames added two points that made his readers sit up and take notice.
The first was that while Francis Hutcheson was insisting that men form governments in order to pursue the common good, Kames’s emphasis on this self-interested sense of property introduced a note of realism. Kames was quite willing to believe in the notion of an innate moral sense, and man’s natural sociability. His Essays on the Principles of Morality and Natural Religion endorsed much of Hutcheson’s point of view. It even contains Hutchesonian phrases such as, “Nature, which has designed us for society, has connected us strongly together by a participation [in] the joys and miseries of our fellow creatures.” But life as an attorney had taught Kames a more realistic, if not cynical, view. Kames recognized that human beings need a more compelling reason to draw together into a binding community, and to surrender their personal freedom to others.
This is what our desire to protect our property, what we have worked for and set aside for ourselves, forces us to do. It forces us to take the plunge, to enter into this network of rights, duties, and obligations with other people, because without it we will never feel secure about our property. “For without property,” Kames pointed out, “labour and industry [were] in vain.”
If Hutcheson was arguing that the most important instinct human beings have in common is their moral sense, Kames was saying that it is their sense of property and desire to own things. “Man is disposed by nature to appropriate”—one reason human beings are perennially adverse to common ownership of goods. It is not enough just to have goods; they must be my goods. Property is more than just material objects—it is a part of my sense of self. Without it, I am missing an important dimension of my personality, projected outward into the world. In fact, in eighteenth-century English, the language of Kames’s works, property meant the same as propriety: those things that are proper to me, and to me alone. To Kames and his followers, including Hume and Adam Smith, to own things is in fact to own myself. Property makes me a whole and complete human being.
So it is not surprising, then, that human beings make the desire for property the guiding force in their lives, and devote so much time and energy to getting it, holding it, increasing it, or stealing it. “We thirst after opulence,” Kames remarked in Historical Law Tracts. David Hume would put it even more vividly: all the other passions, including self-interest itself, have relatively minor effect on our lives, compared with the desire for property. “This avidity alone of acquiring goods and possessions for ourselves and our nearest friends is insatiable, perpetual, universal, and directly destructive of society .”
Hume’s point seems to contradict Kames’s belief that property stands at the origin
of society, but it actually restates it. We establish government precisely to put a check on other people’s avidity for our personal goods. Where property is, laws and government follow, not out of keen desire for them, but out of necessity. What we want and have, others want, too, and they will do anything to get it, if we let them.
If we let them. What we might not have the time or even the inclination to do, compelling others to leave our possessions alone, the law does for us. In this way, Kames believed the law, meaning not just legal rules but their enforcement as well, served a powerful didactic purpose. It tells us our duty, toward others with regard to property and other rights, and toward ourselves. Doing injury to one person’s property hurts everyone, because violating the rights of one, such as the right to property or the right to life, threatens the rights of all. In other words, the law projects a particular moral picture onto the world, which we as members of the community must share.
In its very earliest stages, as in the laws of Moses or of Hammurabi, the law simply taught men not to harm others, in their person or their possessions. Then it taught the importance of keeping promises and contracts, including the buying and selling of goods. Finally, as in the civil law code of the ancient Romans, “it extended to other matters, till it embraced every obvious duty arising in ordinary dealings between man and man.”
Eventually the law’s role in creating a moral order is supplemented by an internal device: the voice of conscience. “In the social state under regular discipline,” Kames explained, “law ripens gradually with the human faculties, and by ripeness of discernment and delicacy of sentiment, many duties formerly neglected are found to be binding on conscience.” Our innate moral sense finds a social footing, and the law is forced to catch up with the new attitudes: “Such duties can no longer be neglected by courts of law.”
How the Scots Invented the Modern World Page 11