The happiest society, Kames concludes, is one where the law and culture, or what he and the rest of the eighteenth century called “manners,” match. “The law of a country is in perfection,” Kames wrote, “when it corresponds to the manners of a people, their circumstances, their government. And as these are seldom stationary, the law ought to accompany them in their changes.”
And what are those changes? This was the second new twist Kames gave to his subject, one that was even more momentous and far-reaching. Kames attempted nothing less than to organize the history of the human community into four distinct stages, based on his extensive reading in comparative law, history, and geography, in order to show how each of these stages forces changes in the way people think, act, and govern their lives.
“Hunting and fishing,” he explains in Historical Law Tracts, “were the original occupations of man.” The life of the hunter and fisher, like those of the Bushmen of southern Africa and Eskimos in Kames’s own day, encourages him to avoid other human beings, except members of his own family, as competitors in the daily hunt for game. Then, somewhat later, men learned to follow the animal herds and discovered how to domesticate them for their own purposes. This is the second stage, the pastoral-nomadic stage. “The shepherd life promotes larger societies” of clans and tribes, “if that may be called a society which hath scarce any other than a local connection.”
Instead, the “true spirit of society, which consists of mutual benefits and in making the industry of individuals profitable to others as well as to themselves,” must wait for the third stage of the human community, that of agriculture. Cultivating the fields is by necessity a communal enterprise: “this circumstance,” the need for cooperation to bring in the annual harvest, “connects individuals in an intimate society of mutual support.” New occupations arise—plowman, carpenter, blacksmith, stonemason—and new relationships: between craftsman and farmer, between landlord and tenant, between master and slave. New forms of cooperation, in one sense, but also new sources of conflict and the clash of competing interests.
In the first two stages of human society, Kames argued, that of hunter-gatherers and pastoral-nomads, there is no need for law or government, “except that which is exercised by the heads of families over children and domestics.” It was the agricultural community that first needed additional help. Why? Because “the intimate union among a multitude of individuals, occasioned by agriculture,” bred a complexity of rights and obligations no one had encountered before, and which earlier custom could not control. The law takes over, enforced by sanctions and punishment. These in turn require law enforcers, “men of weight and probity” to judge and acquit. “In short,” Kames concluded, “it may be laid down as an universal maxim, that in every society the advances of government toward perfection are strictly proportioned to the advance of the society toward intimacy of union.”
That “intimacy” has only gotten started at the agricultural stage, however. A further stage lies beyond, as activity shifts from the village and farm to the seaport and market town. A new society springs up, born of the buying and selling of goods and services, “commercial society.” It brings even more benefits, and more cooperation, but also more complexity. It requires new laws—contract and maritime law, laws governing the sale and distribution of commodities—but also generates new attitudes and manners.
Commerce tends to wear off those prejudices which maintain distinction and animosity between nations. It softens and polishes the manners of men. It unites them, by one of the strongest of all ties, the desire of supplying their mutual wants. It disposes them to peace, by establishing in every state an order of citizens bound by their interest to be the guardians of public tranquility. As soon as the commercial spirit gains . . . an ascendant in any society, we discover a new genius in its policy, its alliances, its wars, and its negotiations.
This was not Lord Kames speaking, or even Adam Smith. It was Smith’s friend William Robertson, cleric and historian, and later Principal of the University of Edinburgh. Robertson’s great contribution to the Enlightenment was to take Kames’s four-stage theory and apply it to the history of Europe since the fall of Rome. By doing so, he created the modern study of history, turning Kames’s evolutionary model into a way of organizing the history of Western civilization.
The year was 1769, and the book was The History of the Reign of Emperor Charles V. Robertson demonstrated how the Dark Ages marked the return of a pastoral-nomadic society to Europe, with barbarian tribes such as the Vandals and Franks, and how the revival of agriculture, the third stage of civil society, brought with it the seeds of medieval feudalism. Then, starting in the Low Countries and Italy, merchants revived trade in its ancient home, the Mediterranean, and the fourth stage, commercial society, was born in its European guise. “In proportion as commerce made its way into the different countries of Europe,” Robertson concluded, “they successively . . . adopted those manners, which occupy and distinguish polished nations.” Politeness, as Lord Shaftesbury and Francis Hutcheson had understood it, now had a firm historical basis.
At each stage of civil society, Kames, Smith, and Robertson said, the way people earn their living shapes the character of their laws, their government, and their culture. Who we are depends on whether we are hunters and gatherers, or shepherds and nomads, or farmers and peasants, or merchants and manufacturers—the latter being the makers of “commercial society,” or, to use a more familiar term, capitalism. Almost one hundred years before Karl Marx, Kames and the Scots had discovered the underlying cause of historical change: changes in the “means of production.”
Kames had done two other remarkable things. First he had developed a flexible, sliding scale by which to characterize and compare different societies, in the past or the present, based on their position in the four-stage process. Modern England and France clearly fit the modern commercial stage, as did ancient Athens and Renaissance Italy. Medieval England, on the other hand, belonged to the agrarian stage, as did eighteenth-century Russia. The ancient Hebrews and the Indians of the American Plains fit the pastoral-nomadic—along with the Highland clans of Kames’s own Scotland.
But none could be said to be forever fixed or static. This was the point: Human communities are in a state of constant evolution, as they slowly, sometimes inperceptibly, make their way from one stage to the next, higher stage. Kames’s followers borrowed a French term for this process of social evolution. They called it “civilization,” meaning a transformation of society from primitive barbarism to a civilized “polite” state.
The four-stage theory of civilization defined human history as a continuous vista of secular progress. Understanding the character of those different stages, and identifying the crucial moving parts in each, would become the task of the Scottish historical imagination for the next hundred years.
But Kames had also solved the question Francis Hutcheson had by implication posed, but never quite answered: Why, if everyone has the same desire to be free and happy, as Hutcheson had claimed, are there so many societies in which people are neither?
Now Lord Kames gives us the answer. Because, under certain primitive material conditions, when resources are scarce or in uncertain supply, the rights of the individual have to give way to the imperatives of the group. The Bushman hunter divides his kill with the rest of his little clan, whether he wishes to or not, because otherwise the group might starve. During the Dark Ages, peasants were bound to the land to produce food, because no one knew when the next attack by marauding Vikings or Saracens might disrupt the harvest and plunge the community into famine.
Under these harsh conditions, society cannot afford to trust individual choice or inclination. Men are guided instead by custom, and the personal authority of those they do trust—“the elders of the tribe” or a warrior nobility. The laws are strict, the punishments harsh.
Then, as material conditions improve, as they inevitably will when human beings devise new ways to increase their stock of
property, the institutions governing the community also improve. In short, material progress—from the relative scarcity of the hunter-gatherer Bushmen to the relative prosperity of mercantile London and Edinburgh—brings other kinds of progress in its wake. The affluence and mutually beneficial union of commercial society “softens and polishes the manners of men,” as Robertson put it. Individual conscience is prepared to do the work that laws, and fearful punishments and taboos, used to do. As a modern social scientist would say, the rules of socialization are internalized. We no longer need awe-inspiring authority figures—kings and nobles, popes and priests—to tell us what to do, or what is right and wrong. “The moral sense,” Kames explained, “is openly recognized, and cheerfully submitted to.” Hutcheson’s community of free and active human beings becomes possible, and the old collective traditions and constraints give way to individual liberty.
Even in Scotland. On the heels of the Jacobite revolt of 1745,8 Kames published his Essay Upon Several Subjects Concerning British Antiquities. In it Kames demonstrated that the politics of traditional Scotland was not about loyalty and devotion to the king, as Jacobites claimed, but about royal land grants, which enabled the king to reward his closest followers and secure control over the people. This was the origin of feudalism. “No Constitution,” he wrote, “gives [the sovereign] such an immediate hold of the persons and property of his subjects.” Scotland’s traditional laws were not bulwarks of political freedom, as Andrew Fletcher and the rest had used to argue. They were in fact an invitation to despotism.
Then came the sweep of historical change. “After the arts of peace began to be cultivated” at the close of the Middle Ages, “manufacturers and trade began to revive in Europe, and riches to encrease,” and the feudal system “behoved to turn extreme burdensome. It first tottered, and then fell of its own weight, as wanting a solid foundation.” Feudalism loses out to trade and commerce, because it runs counter to “love of independence and property, the most steady and industrious of all human appetites.” Commercial society supplies that “love of independence” in abundance. It encourages men to overturn custom and tradition, and establish a new kind of law, based on a free circulation of goods and services.
Already, in 1747, Kames recognized what Adam Smith and later economists would confirm. More than any other stage of society, the commercial stage represents the greatest change from the past. This progress comes at a price: the overturning of almost everything that came before, in laws, in forms of government, even in manners and morals. Capitalism’s innate capacity for creative destruction would fascinate Kames’s followers, including Adam Smith, who would witness its awesome power in the Lowlands and Highlands of their own day.
III
The four-stage theory, which Kames revised and refined in his Sketches on the History of Man when he was nearly eighty, would live on after him. It served as the model for William Robertson and others of the “Scottish historical school,” and for the great masterpiece of Enlightenment history, Edward Gibbon’s The Decline and Fall of the Roman Empire. It defined the fields of comparative anthropology and sociology for two hundred years, and inspired a historical genre, “the story of civilization,” that would last down to Arnold Toynbee’s A Study of History and William McNeill’s The Rise of the West. And at its core was Kames’s notion that changing forms of property drove the evolution of civil society. “Without private property,” he wrote in the Sketches, “there would be no industry, and without industry, men would remain savages forever.”
Today, of course, we have grown suspicious of attempts to classify entire societies as “savage” or “civilized.” The multiculturalist teaches us to see them as misleading stereotypes, which denigrate certain non-Western peoples, especially peoples of color, in order to exalt our own Western values. We try to dismiss the four-stage theory as “ethnocentric” or even racist.
It is true that the four-stage theory would help to underpin racial theory in the nineteenth century. But at the time it served a powerful and useful purpose. It enabled people to think of history as a progressive enterprise, with change as a normal, even desirable, feature of society, rather than an undesirable one. It also cut across issues of race. Enlightened Scots had no difficulty in thinking of China or Persia as “civilized ” or even “commercial” societies, just as they understood primitiveness and savagery to be prominent aspects of their own white European past—or, in the case of the Highlands, in their own backyard. It immunized the Scottish historical imagination against attempts to make race determine culture. Nurture, not nature, explained human behavior and institutions. Kames himself dismissed the idea that Africans and blacks were inherently inferior to whites. Who can say, he wondered, what kind of society they might produce, if they had the occasion to exercise their powers of freedom, as European whites had?
Kames and Robertson may have been willing to make “value judgments” about other societies and peoples, but they did it without concerning themselves with skin color. The fundamental issue for them was not race but human liberty, much as it was for Francis Hutcheson. And the proof of it came in the Joseph Knight case.
Joseph Knight was an African-born slave sold in Jamaica, whose master took him to Scotland in 1769. Three years later Knight learned about the celebrated decision by the English Chief Justice Lord Mansfield9 that slavery was contrary to the laws of England. Knight assumed this included the rest of Britain. Knight went to his master and demanded wages for the work he had been doing for free. His master refused. When Knight tried to run away, the master had him arrested.
When the case came before the Sheriff of Perth, however, he ruled that there was no slavery in Scotland, and that the slave laws of Jamaica had no validity in his jurisdiction. He let Knight go. Knight’s master appealed, and in 1777 the case arrived at the Court of Session in Edinburgh. It was momentous enough that it was granted a full hearing in front of the full panel of judges, including Lord Kames. History was about to be made, and not just for Scot-land.
Knight’s advocate told the judges, “The law of Jamaica in this case, will not be supported by the Court: because it is repugnant to the first principles of morality and justice.” James Boswell had helped him to prepare his brief for Knight’s freedom, with the advice of another tireless opponent of slavery, Samuel Johnson. Their argument was simple: “No man is by nature the property of another.” To become the legitimate chattel of another person, he must renounce that original natural freedom. If there is no proof he has done this (and Knight’s own actions clearly proved the opposite), then he must be set free.
Kames, who was now over eighty, vigorously assented. “We sit here to enforce right,” he told his colleagues, “not to enforce wrong.” The majority of the court agreed with Kames. They wrote, “The dominion assumed over the negro, under the law of Jamaica, being unjust, could not be supported in this country to any extent.” They pronounced slavery to be against the law in Scotland, and set Knight free. James Boswell was jubilant. He pointed out to friends that although Lord Mansfield had made a similar ruling five years earlier, the Scottish decision was more significant, because it established a broader principle. It went “to the general question, whether a perpetual obligation of service to one master in any mode should be sanctioned by the laws of a free country.” It was a vindication of the historical point Kames had been making for years, that what might have been suitable or necessary for ancient or primitive societies may not be now. Progress was possible, in law as well as in everything else.
But it was also a vindication of the Scottish approach to the law. Kames and his fellow judges had decided the case not on precedent but on “the dictate of reason,” in order to assert a basic principle of equity and justice. It was a victory for the notion that man’s claim to liberty is universal. What Francis Hutcheson had first asserted in his Glasgow classroom had now been confirmed by Kames and the judges of the Court of Session.
The Knight case shows Lord Kames at his best. In other respects,
he is a hard man to like. If Francis Hutcheson represents the soft, humane side of the Scottish Enlightenment and the Scottish character, Kames represents its hard, cold-eyed edge. His sardonic view of the primacy of self-interest and the “thirst for opulence” anticipates what comes later in the works of David Hume, and dismays champions of Hutcheson’s moral altruism.
So does Kames’s enthusiastic support for capital punishment. Unlike some of his colleagues on the Court of Justiciary, he saw no conflict between a civilized legal system and hanging men for stealing sheep. “The objects of the penal laws,” he argued, “are to be found among that abandoned and most abject class of men, who are the disgrace of the species.” No other punishment will deter those individuals, he decided, who have “no feelings at all of honour, justice, and humanity.”
This is not the sort of sentiment to endear him to the modern liberal, and it must be said that Kames handed out death sentences with a kind of relish that shocked even his fellow judges. Once in a single session he convicted and sentenced two prisoners to be hanged. That evening Kames was in particularly good spirits, boasting to his guests that “he had killed two birds that day.” Another time he pronounced the death sentence on an old acquaintance, who had been an opponent at chess. “And that’s checkmate, Thomas!” Kames quipped as they led the man away.
Courtesy and social niceties, key ingredients of Hutcheson’s notion of politeness, meant nothing to Kames. He did not mind being vulgar. He liked to call people “brutes” or even “bitches” (in Scots it can apply to men as well as women). “Davie, how are ye, ye brute?” was a standard greeting if he met a friend on the street. Some took it in good humour, others were horrified. He ignored all questions of social rank. If he could not get an intellectual guest such as Boswell or Thomas Reid to accompany him on one of his interminable walks on his estate, he would get his estate foreman or gardener, or even one of his farm laborers, to go with him, arguing about law and social customs at the top of his lungs as they swung along across the fields, with Kames occasionally stooping to examine, or even taste, the new experimental fertilizer he had ordered laid down the week before.
How the Scots Invented the Modern World Page 12