The Online Library of Liberty

A project of Liberty Fund, Inc.

• Acknowledgment
• The Declaration of Independence
• Chapter I: The Declaration of Independence
• Chapter II: Historical Antecedents of the Declaration: the Natural Rights Philosophy
• Chapter III: Historical Antecedents of the Declaration: Theory of the British Empire
• Chapter IV: Drafting the Declaration
• The Rough Draft ( As It Probably Read When Jefferson First Submitted It to Franklin .) 1
• The Rough Draft As It Probably Read When Jefferson Made the ‘fair Copy’ Which Was Presented to Congress As the Report of the Committee of Five .
• The Declaration of Independence ( As It Reads In the Lee Copy, Which Is Probably the Same As the Report of the Committee of Five, With Parts Omitted By Congress Crossed Out and the Parts Added Interlined In Italics .)
• The Declaration of Independence ( As It Reads In the Parchment Copy .)
• Chapter V: The Literary Qualities of the Declaration
• Chapter VI: The Philosophy of the Declaration In the Ninteenth Century

CHAPTER VI

THE PHILOSOPHY OF THE DECLARATION IN THE NINTEENTH CENTURY

Professor Moses Coit Tyler, in his admirable Literary History of the American Revolution, takes occasion to remark that “whatever authority the Declaration has acquired in the world has been due to no lack of criticism” — that is to say, of adverse criticism.

A document against which so much diverse criticism has been directed at least enjoys the merit of not having been forgotten.

If the Declaration has not been forgotten, if it has been much criticized, much denounced and much applauded, if it has never lacked ‘friends’ or ‘enemies,’ no doubt one essential reason is that it was an event, or at least the chief symbol of an event of surpassing historical importance, as well as a literary document which set forth in classic form a particular philosophy of politics. In the Declaration the foundation of the United States is indissolubly associated with a theory of politics, a philosophy of human rights which is valid, if at all, not for Americans only, but for all men. This association gives the Declaration its perennial interest. The verdict of history constrained men to approve of the independence of the United States, or at least to accept it as an accomplished fact; the accomplished fact conferred upon the Declaration a distinction, a fame, which could not be ignored, and gave to its philosophy of human rights the support of a concrete historical example. There they were, and there they remained — stubborn fact married to uncompromising theory; bound for life; jogging along in discord or in harmony as might happen; an inspiration or a scandal to half the world, but in any case impossible to be ignored, with difficulty to be accepted or rejected the one without the other.

During the Revolution, as a matter of course, men were chiefly interested in the fact that the colonists had taken the decisive step of separating from Great Britain; the practical effect of taking this step, at this time, rather than the form, or even the substance, of the Declaration itself, was what chiefly engaged their attention. Warm patriots accepted its political philosophy as a commonplace; and for the most part they found the Declaration admirable, both in form and substance, because they believed that the act which it celebrated would have good practical results. “The Declaration will give a new spring to all our affairs,” Samuel Cooper wrote, thus expressing in a phrase the gist of contemporary patriot comment.1 Those who were ready for a declaration of independence readily accepted the Declaration of Independence. They were not disposed to judge it objectively — or, for that matter, to allow others to do so: “I hope,” Mr. Whipple wrote to a friend, “you will take care that the Declaration is properly treated.” For men engaged in a life and death struggle, the main point of interest was that the official justification of their endeavor, however formulated, should be ‘properly treated’ by being heartily approved.

The enemies of the Revolution, with minds similarly obedient to their interests, found the Declaration bad because they deplored the event which it symbolized. American Loyalist opinion was voiced by Thomas Hutchinson, then an exile in England, in a “Letter to a Noble Lord.” Systematic by temperament and habit, Hutchinson quoted and commented upon the Declaration paragraph by paragraph. Of its general philosophy, he said little, thinking it sufficient to point out a certain discrepancy between the theory which proclaimed all men equal and the practice which deprived “more than a hundred thousand Africans of their rights to liberty.” Nearly the whole of his pamphlet Hutchinson devoted to refuting the charges against the king. His long experience as administrator, his wide and exact knowledge of British and colonial history, enabled him to subject the statements in the Declaration to a minute and searching analysis, and to prove, past a doubt to those who were already predisposed to agree with him, that the charges against the king were “false and frivolous” — absurd in logic and without foundation in fact.1

Hutchinson expressed the views not only of American Loyalists but of the majority of Englishmen. It is true, some apologetic voices were raised in England. Governor Johnstone was “far from being pleased with the Americans for their declarations in favor of Independency, but. . . they were driven to the measure by our vigorous persecution of them.” According to Charles James Fox, the Americans “had done no more than the English had done against James II.” But in general the tone of British comment was hostile and contemptuously sarcastic. “The Declaration of Independence,” said a writer in the Scots Magazine, “is without doubt of the most extraordinary nature both with regard to sentiment and language; and considering that the motive of it is to assign some justifiable reasons of their separating themselves from Great Britain, unless it had been fraught with more truth and sense, might well have been spared, as it reflects no honour upon either their erudition or their honesty.”1

The most elaborate, and probably the most effective, contemporary analysis and refutation of the Declaration was prepared by an English barrister, John Lind, in a pamphlet which Professor Tyler says was “evidently written at the instigation of the ministry, and sent abroad under its approval.” The author points out that the Declaration consists of certain “maxims,” a certain “theory of government,” and certain “facts submitted to the candid world.” Like Hutchinson, he is chiefly concerned with the “facts.” Each charge against the king is quoted to be refuted; and the general conclusion which emerges from this long and minute analysis of the “facts” is that they are not true facts at all, but “calumnies,” statements which allege as usurpations certain measures of government under George III in no way different from measures under his predecessors which the Americans had repeatedly recognized as constitutional. The “theory of government” and the “maxims,” Mr. Lind despatches in brief space. “Of the preamble,” he says, “I have taken little or no notice. The truth is, little or none does it deserve.” Not for their merits, but for the evil they have done, do the American notions need to be refuted. For this purpose it is sufficient to say that they “put the axe to the root of all government,” since in every existing or imaginable government “some one or other of these rights pretended to be unalienable, is actually alienated.”1

In France, we are told, the Declaration was officially “well received.”1 Everything considered, to be received at all was to be well received. Democratic impudence could not well go farther than to ask the descendant of Louis XIV to approve of a rebellion based upon the theory that “governments derive their just powers from the consent of the governed.” If the French government received the Declaration, it did so in spite of its political philosophy, because it could not forego the opportunity to take a hand in disrupting the British empire. The alliance which the French government made with “our dear Americans” to achieve this end was nevertheless something more than a mere diplomatic entente. It was approved with unbounded enthusiasm by the people. To those who, steeped in the political and social thought of the age, were looking forward to the regenaration of France, America appeared as a striking confirmation of their hopes, possessing all the importance of a concrete illustration of their imagined state of nature. It is not enough, said Condorcet, that the rights of man “should be written in the books of philosophers and in the hearts of virtuous men; it is necessary that ignorant or weak men should read them in the example of a great people. America has given us this example. The act which declares its independence is a simple and sublime exposition of those rights so sacred and so long forgotten.”1

In France, therefore, where the American Revolution was looked upon as a kind of providential confirmation of ideas long accepted but hitherto demonstrated only in books, the Declaration was cordially approved. “The sublime manifesto of the United States of America was very generally applauded,” wrote Mirabeau in 1778.2 In 1783, Lafayette conspicuously placed a copy of the Declaration in his house, leaving beside it a vacant space to be filled, as we are told, by a declaration of rights for France when, if ever, France should have one.3 Whether, in 1789, Lafayette placed a copy of the Declaration of the Rights of Man and the Citizen in the vacant space beside the Declaration of Independence I do not know. He may well have done so. But it does not appear that the Declaration of Independence suggested to the French the idea of a declaration of rights, or that it served as a model for the Declaration of Rights which they in fact adopted.1 It was the event itself, the American Revolution, rather than the symbol of the event, which exerted a profound influence upon the course of French history.2 The reasoned justification of separation from Great Britain was based upon particular acts of the British government which did not directly concern Frenchmen, or upon a political philosophy which was already a commonplace of French thought. In France, therefore, the Declaration was celebrated as a great charter of freedom in the history of a people much admired, a charter all the more significant because it formulated, in terse and admirable phrases, those few political maxims which, as Condorcet said, “seem to be no more than the naïve expression of what common sense should teach all men.”1 To Condorcet, as to Jefferson, the political philosophy of the Declaration of Independence was just the common sense of the whole matter.

Jefferson and Condorcet, as well as most of their immediate contemporaries, no doubt took it for granted that this philosophy, being but the common sense of the matter, would rapidly win universal approval and become the sure foundation of governments throughout the world. But in fact the United States had scarcely assumed that equal station to which the laws of nature entitled it, before the laws of nature, in the sense in which the Declaration of Independence had announced them, began to lose their high prestige. Throughout the nineteenth century, these “naïve truths” which Condorcet thought “common sense should teach all men,” were for the most part taken to be fallacies which common sense would reject. What seems but common sense in one age often seems but nonsense in another. Such for the most part is the fate which has overtaken the sublime truths enshrined in the Declaration of Independence.

This is the more interesting since the main political tendency of the nineteenth century was toward democracy, and political democracy could be very conveniently derived from the general philosophy of the Declaration. Yet in very few of the innumerable constitutions of the nineteenth century, in few if any of the constitutions now in force, do we find the natural rights doctrine of the eighteenth century reaffirmed — not even, where we should perhaps most expect it, in the Constitution of the United States or the Constitution of the third French Republic. Modern democracy has accepted one article of the Jeffersonian philosophy — that government rests upon the consent of the governed; and this article, in the form of the right of the majority to rule, it has even erected into an article of faith. For this dogma a theoretical foundation had indeed to be found; but it is significant that the nineteenth century almost ostentatiously refrained from deriving the right of the majority from the natural rights philosophy as formulated in the Declaration of Independence and in the Declaration of the Rights of Man.

The simplest, the naïve, way to justify majority rule was of course to fall back upon force — the majority has the power, and therefore the right; we decide matters “by counting heads instead of by breaking them,” which seems to mean that it is right for the minority of heads to submit in order to avoid being broken by the majority of hands. This idea may sometimes be seen at work in the minds even of those who professed to defend the doctrines of the Declaration of Independence. In the Virginia constitutional convention of 1829, for example, when those who opposed an extension of the suffrage asked for some reasons for that measure “better than the rights of man as held in the French school,” Mr. Campbell, undertaking to derive the right of majorities from “the nature and circumstances of men,” found the “natural right” of majorities to reside in this, that the majority has the power “either to compel. . . or to expell the disaffected.”1 This defense of natural rights would probably not have commended itself either to Locke or to Jefferson; but as a rough and ready justification of democracy it has undoubtedly had, in the nineteenth century, a much wider influence than the ‘metaphysical subtleties’ of the Declaration of Independence.

A more sophisticated justification of majority rule was fashioned by Bentham and his English disciples. Bentham’s Fragment on Government appeared in 1776,2 the very year of the Declaration of Independence; but it is significant that Bentham’s ideas were not much attended to until a generation later when everything reminiscent of Rousseau’s Social Contract was suspect in England. After 1815, with the revival of the movement for parliamentary reform, there began to be a certain demand for a distinctively British road to democracy. What was wanted was a philosophy that would enable Englishmen to be both radical and respectable, a doctrine within the shelter of which one could advocate universal suffrage and at the same time ridicule Rousseau and renounce the “philosophy of the French school.” Bentham supplied this need. Rejecting the eighteenth-century doctrine of natural rights altogether, and taking his chief ideas from Hume and Beccaria, he made utility the test of institutions. The object of society is to achieve the greatest good of all its members; do not ask what rights men have in society, but what benefits they derive from it. In the long run no man can decide for another what is good for that other. Each must decide for himself; and so, if you give each man a voice in deciding what is to be done and how, each man to count for one and none for more than one, the result will be to bring about the greatest good of all, or at least ‘the greatest good of the greatest number,’ which is perhaps the nearest approximation to the greatest good of all. The high merit of Bentham’s theory, in an age that looked back to the Reign of Terror and forward to the socialist menace, was that it had the air of saying: I know that you, the majority of men, have the power, and I offer you everything on condition that you stop waving the red flag and keep the peace. Let us get together; instead of fighting, let us vote; instead of breaking heads, let us count them. The very word ‘utilitarianism’ had a pacific and practical sound; it enabled men to be democratic without thinking themselves visionary, — above all without being thought by others to be pro-French and revolutionary.

If the classic philosophy of the American Declaration of Independence and the French Declaration of Rights proved unacceptable to the nineteenth century, it was thus not because it could be easily made the basis of democratic government, but because it had been, and could again be, so effectively used as a justification of revolutionary movements. The nineteenth century, while progressively democratic, was on the whole anti-revolutionary. In the United States, from the Revolution to the Civil War, the strongest political prepossession of the mass of men was founded in the desire to preserve the independence they had won, the institutions they had established, the ‘more perfect Union’ they had created. The European world, for half a century after the French Revolution, lived in perpetual apprehension of a new Reign of Terror, and not the least of its difficulties was that of making terms with political democracy without opening the door to social upheaval and international conflict. The classic political philosophy of the eighteenth century therefore survived, in so far as it did survive, chiefly as an aftermath of the great revolutions. It maintained at best a precarious existence among the obscure and outcast parties that were frankly revolutionary, and flourished unashamed only in the full light of brilliant but brief revolutionary days.

In the western world, it is true, the philosophy of the Declaration won notable triumphs in South America, during the twenty-five years after 1808, when the Spanish and Portuguese colonies were winning their independence.1 In the United States it has even maintained an august official position to the present day. It may still be seen, in the state constitutions, perfunctorily safeguarding the liberties of mankind. The first state constitutions, which were adopted during the Revolution or shortly afterward, as a matter of course made the current philosophy the foundation of government; and revisions of these constitutions in later years, being mainly confined to those points in respect to which strong popular demand made positive changes necessary, commonly left the preambles intact. The preambles of newer state constitutions seem to be copies or adaptations of preambles in the older ones. Thus the phrase of the Massachusetts constitution of 1780 — “all men are born free and equal, and have certain unalienable rights”: or of the New Hampshire constitution of 1784 — “All men are born equally free and independent”; or of the Kentucky constitution of 1792 — “All men, when they form a social compact, are equal in rights”: — these phrases, with at most slight verbal changes, reappear in most of the Western state constitutions. Why not use these time-honored phrases, since they were in the great tradition, unless there was some good reason for not doing so? In the South, after the rise of the anti-slavery controversy, there were good reasons for not doing so; but even there it was found simpler on the whole to edit the phrases than to omit them altogether. Thus, in the constitutions of Alabama, Arkansas, Florida, Kentucky (1799), Mississippi, and Texas (1845), the phrase “All men, when they form a social compact, are equal” was changed to read “All freemen, when they form a social compact, are equal.”1 No danger in affirming that all freemen are equal, and have certain inalienable rights — particularly the right of property.2

The persistence of the political philosophy of the Declaration in the state constitutions must be mainly attributed to the conventional acceptance of a great tradition; particularly so during the thirty years prior to the Civil War, when political leaders, north and south, were ridiculing as fallacies, as glittering generalities, the very principles which were being proclaimed afresh in nearly every constitution of the time. During these decades, the ideas of the Declaration survived as a living faith chiefly among those who felt that slavery was an evil requiring immediate and desperate remedies. The old Jeffersonian anti-slavery sentiment had disappeared, or was rapidly disappearing, in the South. Cotton was king, and the cotton planters were determined to maintain their slaves at all hazards. In the North, business interests, deprecating agitation as inimical to prosperity, were all for holding fast to the sacred constitution as a prescriptive safeguard of liberty. Liberty they would defend, to be sure — “Liberty and Union, one and inseparable.” Against this attitude, the radical abolitionists revolted in passionate disgust. Every honest man, they thought, must know that slavery was a damnable crime against human nature; and yet the United States, proclaiming as its birthright that all men are created equal, not only persisted in the crime, but defended it as a necessary evil or a positive good, thus crowning national dishonor with a mean hypocrisy.

With this crime the abolitionists refused to compromise. Let the Union perish, if it must be so, yes, a thousand times! Honor and righteousness are more precious than law and order. There is a higher allegiance than loyalty to the state. The Constitution, cried Garrison, is a “covenant with death” an “agreement with hell.”1 Neither the Constitution nor the general good is the supreme law of the state, Channing affirmed. “Man has rights by nature. . . . In the order of things they precede society, lie at its foundation, constitute man’s capacity for it, and are the great objects of social institutions.”2 “We should be men first and subjects afterward,” said Thoreau. “It is not desirable to cultivate respect for law, so much as for the right. . . . How does it become a man to behave toward the American government today? I answer, that he cannot without disgrace be associated with it. I cannot for an instant recognize that political organization as my government which is the slave’s government also.”3 In justification of their revolt against the established régime, the abolitionists naturally turned to the Declaration of Independence. From the positive law, they appealed to a “higher law.” They would obey, not the Constitution, but conscience; they would defend, not the legal rights of American citizens, but the sacred and inalienable rights of all men.4

The abolitionists, like the French republicans and the followers of Mazzini in Europe, were but a revolutionary minority. By the great majority, both north and south, they were despised as fanatics and feared as incendiaries. Conservative men in the North did not defend slavery. They recognized it as in itself an evil, and in increasing numbers wished to restrict the spread of the evil, in the hope that, all in good time, it would disappear of its own accord. This they thought might come to pass if men would be patient and reasonable. But they thought that the abolitionists, with criminal disregard of consequences, were creating throughout the country an ugly temper which threatened civil strife and a dissolution of the beloved Union. They therefore refused to recognize rights that were not constitutionally defined, and sought for a solution of the slavery question in correct judicial interpretation. If the Declaration of Independence, as was claimed, countenanced the wild talk and treasonable acts of the abolitionists, then its self-evident truths must be the veriest abstractions, totally unapplicable to a practical world. “Is it man as he ought to be,” asked Rufus Choate, “or man as he is, that we must live with?. . . Do you assume that all men. . . uniformly obey reason?. . . Where on earth is such a fool’s paradise as that to be found?” He urged the Whigs to unite against the new Republican party because it was a ‘geographic party’ which, if it obtained control of the government, would appear to the South as an alien power, “its mission to inaugurate freedom and put down oligarchy, its constitution the glittering and sounding generalities of the Declaration of Independence.”1Glittering generalities! The very phrase practical men were looking for! Only madmen could suppose that the Union and the Constitution and all our hard-won substantial liberties should be abandoned for a metaphysical abstraction.

Southern slave owners were ready to deny the self-evident truths of the Declaration long before Rufus Choate pronounced them glittering generalities; yet they were at first somewhat embarrassed by the fact that the Declaration had been written by the great Jefferson. Loyalty to Jefferson died hard. But perhaps Jefferson did not mean what he said. “Our forefathers,” Governor Hammond explained, “when they proclaimed this truth [that all men were created equal] to be self-evident, were not in the best mood to become philosophers, however well calculated to approve themselves the best of patriots. They were much excited, nay, rather angry.” They were angry with George III; and what they meant to assert was only that kings and nobles and Englishmen were no better than simple American freemen. If Jefferson meant more than that it must be ascribed to the fact that he was unduly influenced by the French school of thought. “The phrase was simply a finely sounding one, significant of that sentimental French philosophy, then so current, which was destined to bear such sanguinary consequences.”1 A Godfearing people, such as the South had now become, could not be expected to follow even Jefferson in subscribing to ideas that were obviously tainted with French atheism. “All this,” the Rev. Frederick Ross asserted, “every word of it, every jot and tittle, is the liberty and equality claimed by infidelity. God has cursed it seven times in France since 1793.”1

To hint that Jefferson was an atheist who did not mean what he said was nevertheless not an adequate defense of slavery. Practical men in the North could pronounce the words ‘glittering generalities’ and let it go at that. They did not own slaves; they did not even defend slavery, they only accepted it as an existing evil to be dealt with practically. But Southern slave owners, denounced by the abolitionists as criminals, and conscious of a certain air of condescension with which even sensible men in the North regarded their ‘peculiar institution,’ could not keep an easy conscience without a profound conviction that slavery was a positive good. Profound convictions were not to be nourished by contemplating the compromises of the Constitution. Slave owners, as well as abolitionists, needed a higher law; but the higher law which they needed could not be found in the Declaration of Independence. They could adequately meet the abolitionists, who affirmed that slavery was a flagrant breach of the “laws of nature and of nature’s God,” by proving that, on the contrary, slavery was in tune with the cosmic harmonies. They had therefore to work out a social philosophy which would relieve them of all responsibility by reconciling society as it is with society as God in his inscrutable providence had intended it to be.

The key to the new philosophy was found in a re-definition of that ancient and battered but still venerable concept of Nature. Continental writers had already achieved this essential task; and it was Thomas Dew, fresh from German universities, who showed the South that natural law, properly conceived, might still be made the sure foundation of African slavery. Nature, he argued, is clearly the work of God, and man is the product of nature — it is “the nature of man to be almost entirely the creature of circumstances.” Now, since God has permitted men to enslave each other in every stage of human history, slavery must be in accord with the nature of man. Admit that slavery is an evil; yet, since the God of nature is perfect, “evil is not the sole object and end of creation,” but only incidental to some universal good. “Well, then, might we have concluded, from the fact that slavery was the necessary result of the laws of mind and matter, that it marked some benevolent design, and was intended by our Creator for some useful purpose.” And so, sure enough, it turned out, upon an unprejudiced examination of history, that human progress, in every stage of development, had been possible only because superior men gained leisure and opportunity by subjugating their inferiors. Thus God and Nature had decreed slavery as the price of civilization.1

A general principle such as this, which implied that “the actual is the rational,” permitted of extreme conclusions: “Man is born to subjection. . . . The proclivity of the natural man is to domineer or to be subservient”: “It is as much in the order of nature that men should enslave each other as that other animals should prey upon each other.”2 Well, what if the slave should cease to be subservient and begin to prey? Would it not be in the order of nature that the slave should kill his master and run away? And would not the slave who ran away, and the abolitionist who aided him, both be doing God’s will, if God permitted the enterprise to succeed? This was perhaps going too far. It needed to be demonstrated that obedience to the Fugitive Slave Law was more effectively in accord with God’s purpose than the inclination of the slave to run away. The general principle had therefore to be so stated that the positive law of any particular state would make an integral part of the universal law of nature.

It was Calhoun who performed this task most successfully. “In order to have a clear and just conception of the nature and object of government,” he says in the opening paragraph of the Disquisition on Government,1 “it is indispensable to understand correctly what that constitution or law of our nature is, in which government originates; or, to express it more fully and accurately, — that law, without which government would not, and with which, it must necessarily exist.” This constitution or law of our nature he states as follows: “while man is. . . so formed as to feel what affects others, as well as what affects himself, he is, at the same time, so constituted as to feel more intensely what affects himself directly, than what affects him indirectly through others.” His feeling what affects others fits him to live with others, in the social state; but his feeling more intensely what affects himself results in a “tendency to a universal state of conflict, between individual and individual,” which, if not restrained by some controlling power, will end “in a state of universal discord and confusion, destructive of the social state and the ends for which it is ordained. This controlling power. . . is government.”1 Thus society is necessary to satisfy men’s needs, and government is necessary to restrain their wickedness; and both are “natural” because God has so constituted man that he cannot live without them.

As government is essential for the existence of man in society, liberty is essential for his progress and perfection.

How far individuals may be left thus free will obviously depend upon circumstances — upon the special circumstances external and internal, of the particular community.

Liberty in this sense, which is (somewhat inconsistently) both the cause and the reward of progress, implies inequality of condition. That there must be, in popular government, “equality of citizens, in the eyes of the law,” Calhoun concedes. But to attempt to establish “equality of condition” would be to “destroy both liberty and progress.”

From this point of view, the self-evident truths of the Declaration of Independence were fallacies chiefly because they were derived from a false conception of nature. It might well be that all men are equal in a state of nature, “meaning, by a state of nature, a state of individuality, supposed to have existed prior to the social and political state, and in which men lived apart and independent of each other.” In such a state all men would indeed be free and equal.

Thus Calhoun identified natural law with the positive law of particular states, the state of nature with the state of political society as history actually gave it rather than as it might be rationally conceived and reconstructed. In this scheme the natural state of the African race was obviously the state which the historic process created for it in any moment of historical evolution. It might seem a hard saying to affirm that the natural rights of Southern slaves were defined in the Fugitive Slave law and the statutes of South Carolina; but so it had been decreed by God who created men with varying instincts and capacities, and laid down, in terms of these instincts and capacities, the indefeasible conditions under which men must win or lose a precarious freedom.

Whether the social philosophers of the Old South were much influenced by contemporary political speculation in Europe it is difficult to determine. Thomas Dew studied in German universities,1 where he must have become familiar with the ideas of the historic rights school. Francis Lieber, a German Liberal who took his degree at Jena, was appointed professor of Political Economy in South Carolina College in 1835. There he remained for twenty years teaching the ideas which he doubtless imbibed in his university days, and which in any case he expounded in his Political Ethics, first published in 1838.1 At all events, whether German influence was great or little, the political ideas which in the United States discredited the doctrines of the Declaration of Independence were similar in essentials to those which in Europe had already deprived the Declaration of the Rights of Man of its former high prestige.

In Europe, the revulsion from the ideas of the eighteenth century was the direct result of the French Revolution and the Napoleonic conquests. After twenty-five years of political upheaval it seemed to most men that “social regeneration” had been carried, if not too far, at least far enough. Long before that grey dawn of 1815, it seemed obvious that the Revolution had not ushered in the millennium. It seemed to have ushered in, instead of the millennium, the Guillotine; instead of a just and abiding social order, the Jacobin Terror; instead of the religion of Humanity, the blasphemies of Hébert’s Festival of Reason; instead of the fraternal concord of people, devastating war and the subjection of nations to the cynical despotism of a military adventurer. So at least most men thought. “The Revolution” was a phrase which called up, in the minds of solid, respectable people everywhere, terrifying visions of anarchy and atheism; the good it had done was carefully interred beneath the threshold of consciousness, while its evil deeds were held in pious remembrance. It was taken for granted that Napoleon was (what he called himself) the “child of the Revolution,” and that the Revolution was but the inevitable result of the loose and licentious doctrines of “Philosophers,” the “atheistical French school of thought,” above all of the false and vicious political philosophy of Rousseau’s Social Contract.

To the generation that did its political thinking against the background of the Reign of Terror and the Napoleonic conquests, it seemed that the revolutionary philosophy had proved disastrous chiefly in two respects. By endowing men with inalienable rights superior to those of positive law, it was a standing invitation to insurrection and a persistent cause of anarchy. But the philosophy of the Declaration of Rights not only preached revolution, it preached the universal revolution. Declaring that the inalienable rights were the same for all men and the only sure foundation of political institutions, it implied that the institutions proper to one people were so to all peoples. The practical outcome could be read in the history of Europe from 1789 to 1815. Not satisfied with destroying the foundations of French society, the National Convention, and after it Napoleon, had justified the conquest of Europe on the ground that it was the high mission of France to impose upon backward neighbors its own superior civilization. Those who had defended Europe in the wars of liberation could not but think that a political philosophy which justified the conquest of one nation by another must be false. And so, as the Revolution had created a deep-seated fear of social anarchy, the Napoleonic wars raised the sentiment of national patriotism to the level of a religious faith. Both in politics and religion, conservatism was in the ascendant, and men were predisposed to welcome theories which made for social stability and permitted each nation to hold fast to its established traditions.

The chief task of conservative thought in Europe was accordingly to discredit Rousseau and the Social Contract, just as the task of conservative thought in America was to discredit Jefferson and the Declaration of Independence. Many men refuted Rousseau; but the motives which led men to attempt it, as well as the method by which it was most commonly done, are conveniently revealed in the life and writings of the Vicomte de Bonald. Like many another French noble of ancient lineage, Bonald had read the Philosophers of the eighteenth century, and had taken on, as a kind of conventional veneer, the current ideas of natural rights. When the Revolution came he accepted it as the beginning of better days, and even, for a time, associated himself with it. But Bonald was a loyal son of the Church. Unable to approve the Civil Constitution of the Clergy, he emigrated in 1791; and watching, during weary years of exile, the course of events in France, the Revolution at last seemed to him the very negation of society and religion. In 1794, at the age of forty, never yet having written a book, Bonald took up his pen “under the irresistable impression” that it was his duty to show how anarchy and atheism were the inevitable results of the fatal theories of the Philosophers. His first work appeared in 1796 — the first of many volumes chiefly designed to lay a theoretical foundation for political and ecclesiastical authority.1

For Bonald, as for Calhoun, the chief fallacy of the political philosophy of the eighteenth century was a false conception of nature. It is significant that on the title page of his first book he placed the following passage from the Social Contract:

This was a profound truth for Bonald as well as for Rousseau. But what is the nature of things?

The error of Rousseau was to confound the “natural” with the “primitive.” The true nature of a thing is not found in its origin but in its end: the natural state is therefore a state of development, of accomplishment, of perfection. The instinct of man leads him to form societies; and these societies, since they exist, are “in the nature of man.” Like man himself, society has “existence for its object, and it must naturally tend toward its own conservation, toward its own perfection, as man by his nature tends toward existence and happiness.”1

If, then, society as it has developed and as it exists is the very work of nature, how absurd to say, as Rousseau and the Philosophers said: Go to, we will reconstruct society along rational lines, according to the nature of man. Men might as well try to change their own skins as to try, with conscious deliberation, to reconstruct society. “It is not for man to construct society; it is for society to fashion man.”2 Rousseau did not understand this profound truth; and because he did not understand this, he did not understand the true source of law and social authority. The source of law is no doubt the “general will,” as Rousseau maintained; but he misconceived the meaning of the general will, just as he misconceived the meaning of nature. The “general will” is not the mere sum of individual wills, determined by no matter what hocus pocus of compact or ballot box. “Every being has a will, if it be intelligent, a tendency, if it be material, to attain its end. . . . Political and natural society has an end, which is the production or the conservation of beings.” Therefore political society “wills the laws or necessary relations between beings; if it wills them, it produces them, or is itself produced by them, since the general will is necessarily efficacious.”1 This is a way of saying that the general will is the sum of those natural influences which shape the life of a people; and since it is God who creates nature and works through it, the general will is the same as the will of God. Thus Bonald sets up, for the purpose of keeping the individual in his place, a doctrine of the social will which functions without regard to what the individual consciously wills. “Man exists only for society, and society shapes him for its own purposes.”2

For the purposes of this study, Bonald’s premises are more important than his conclusions. His conclusions were too ultra conservative to place him in the main current of nineteenth century thought; but few writers enable one to understand better how the Revolution led men to renounce the eighteenth century conception of natural rights, or to see more clearly how, by a slight twist in the definition of nature, the foundation was laid for anti-revolutionary political philosophies.

This revolution in the inner world of thought, born of the desire to prevent revolution in the outer world of conduct, was far more systematically accomplished in Germany than in France, and is associated, in its origin, with a far greater man than Bonald. It was Savigny above all who taught the nineteenth century how to justify progressive changes in institutions without countenancing violent revolution, and how to think of the differing institutions of many nations as being all in harmony with nature and all equally pleasing in God’s sight. Savigny’s great work was the History of the Roman Law in the Middle Ages, the first volume of which appeared in 1815. But he formulated the central idea of the historic rights school the year before, in a pamphlet in which he opposed the current project for a codification of German law.1 Savigny maintained that any code at that time would be a bad one, because it would be too much influenced by the “shallow philosophy” of the natural law school, whereas a German code, if there must be one, should be based on a thorough knowledge of the history of German law. Law, said Savigny in effect, is not properly “made” by the legislator, any more than language is made by the grammarian. Law, like language, is a natural moral product of a people, no more than the persistent custom of a nation, springing organically from its past and present life. The business of the legislator is therefore not to “make” law, but to discover, through historical research, what it is.

The state itself, according to Savigny, is no more to be created by conscious deliberation than law or language. It also springs organically from the life and history of a people. It originates in “a higher necessity, in a creative power working from within. . . . The generation of the state is thus also an aspect of the generation of law, and it is certainly the highest degree of that generation.” Even statute law “lives in the general consciousness of a people”; and thus legislation, in its proper sense, is but giving to positive law “an outwardly recognizable form, by force of which each individual opinion may be set aside.”1 Savigny protested that he was far from wishing to close the door to progress. In the preface to his System of Modern Roman Law, written in 1839, he said that “the historical view of legal science is completely mistaken and disfigured when. . . so conceived as if, according to this view, the legal culture developing out of the past were set up as something supreme.” On the contrary, “the essence of that view consists much more in the uniform recognition of the value and the independence of each age, and it merely ascribes the greatest weight to the recognition of the living connection which knits the present and the past.”1

Savigny was not the most popular writer of the nineteenth century, but the doctrine of historic rights was so exactly suited to the hopes and fears of his generation that it entered, almost without effort, as an underlying preconception, into the thought of the time, very much as the natural rights doctrine of Jefferson and Rousseau had entered into the thought of the eighteenth century. The effectiveness of the historic rights philosophy was indeed precisely in this, that it encountered the natural rights philosophy of the eighteenth century on its own ground, and refuted it from its own premises. Admitting that rights were founded in nature, it identified nature with history, and affirmed that the institutions of any nation were properly but an expression of the life of the people, no more than the crystallization of its tradition, the cumulative deposit of its experience, the résumé of its history. It implied that every people has, therefore, at any given time, the social order which nature has given it, the order which is on the whole best suited to its peculiar genius and circumstance, the order which is accordingly the embodiment of that freedom which it has achieved and the starting point for such further freedom as it may hope to attain. Welcomed because it opened the door to progress in terms of nationality while refusing admission to revolutionary methods, the new doctrine, or the old doctrine newly formulated, became the accepted creed of all those who wished to be classed neither with the reactionaries nor with the revolutionists, those liberal-conservatives and conservative-liberals who realized that they lived in a changing world but ardently prayed that it might not change too rapidly.

To prevent the world from changing too rapidly, nothing is more effective than to look with admiration on the past; and it was probably the historians who did as much as any class of men to popularize the historic rights philosophy. With the rise of patriotic nationalism, men of all countries turned to study anew the origins and the development of national institutions. With unrivalled enthusiasm, with admirable patience and ingenuity, historians devoted themselves to finding out what had happened in the past of each nation in order, as Droysen later explained, to “understand through investigation.” And what historians for the most part understood through investigation was how things had come to be what they were, and why they could not after all have been much different — why the law and government of Germany, for example, could not have been the same, and could not in the nature of the case be made the same, as those of France.

In France liberals and conservatives alike turned to the past in order to learn how the Revolution came, why it succeeded in spite of failure or failed in spite of success, why the existing régime was what it was, why it would last indefinitely or prove only a necessary stage to something better or different. Nearly every history of France written between 1815 and 1848 conveys, explicitly or implicitly, the idea that whatever Frenchmen may think of the situation they are in, history will tell them how they came to be in it. Leber, the editor of one of many collections of chronicles designed to meet the demand for historical works after 1815, expressed a common view in his preface: “One seeks in history all the characteristic traits of a people. . . obeying in its movement the peculiar impulsion given to it by its laws, its beliefs, its morality, its genius, its industry, its habits, and its tastes.”1 In 1836 Sismondi defined, while he protested against, the underlying preconception which so largely shaped the historical work of his generation. “We seek in history,” he said, “the rights of the present generation, and not examples for guiding posterity; we ask of past centuries the measure of the prerogatives of the throne, or of the liberties of the people, as if nothing could exist today except that which has formerly existed.1

But it was in Germany, where the opposition to the Revolution was most pronounced, that political history came most effectively to the support of the historic rights school of jurisprudence; and among historians no one professed or preached the historic rights idea more persistently than the friend and associate of Savigny, Leopold von Ranke, the patron saint of nineteenth-century historians. Ranke’s first work appeared in 1824. Fifty-six years later, at the age of eighty-five, the tireless and insatiable old man sat down to write, in no matter how many volumes, a Weltgeschichte, of which in fact he lived to finish only six volumes. It was a brave attempt to complete the edifice which he had so long labored to erect; for in truth Ranke’s whole life was devoted to the Weltgeschichte, that is to say the history of the ‘progress of mankind.’ Yet in Ranke’s view the progress of mankind was strictly conditioned by the ‘individuality of nations.’ He thought of the different nations as collaborating at a common task, each one at some period taking the lead and contributing something distinctive, something proper to its peculiar genius, to the common possession. It was his plan to write the history of each European nation at the time when it made this distinctive contribution, at the time when it became, as German history in the time of Luther became, “at once a universal history.”1

This was a way of conceiving universal history that the eighteenth century would scarcely have understood. No man, professing a philosophy, was less of a Philosophe than Ranke. He does not, like Montesquieu, seek for that which is common to all peoples, but for that which is distinctive in each people. His interest in universal history never disturbs his faith in the ‘individuality of nations’; and hence he does not identify humanity with the universal man, with “man in general,” but with the particular nation (or great men speaking for the nation), at the moment when it most clearly exhibits the nation’s peculiar genius or individuality. When it does this “it enters into relations so intimate with all the powers of the world that its history, in a certain sense, expands into universal history.”1 This is almost the precise opposite to what the eighteenth century hoped for: the nation, which the age of enlightenment hoped to see assimilated to mankind, is already, in Ranke’s scheme, preparing to swallow the Human Race.

For Ranke, as for the generation after 1815, when, as he says, “historical studies developed essentially in opposition to the ascendancy of the Napoleonic ideas,” there is indeed no question of discovering the natural rights common to all men, or of constructing institutions appropriate to all peoples, since the individuality of nations is fixed past all changing. In each state, he says, “some particular moral or intellectual principle predominates: a principle prescribed by an inherent necessity, expressed in determinate forms, and giving birth to a peculiar condition of society or character of civilization.”2 The historian will note these distinctive characteristics of the different nations, and record the events in which they find expression; and he will do well to record them just as they occurred,1 bad and good together, since thus it is and not otherwise that God has made men and nations, through whose actions he indeed reveals himself. This is after all the ultimate truth, that history is God’s work, which we must submit to, but which we may seek to understand in order that we may submit to it intelligently.2

The influence of Ranke, through his books and through his disciples, was wide and profound; and the philosophy of history and of rights which he professed and which is implicit in his books, was that of Savigny, was in the main that of the generation in which he began to write, that which Hegel perfected and rarefied and formulated for that generation in the epigram, Weltgeschichte ist das Weltgericht. It is true that Ranke repudiated Hegelianism. But it was the Hegelian history rather than the Hegelian philosophy that Ranke rejected; what he objected to was not so much that Hegel derived a false philosophy from history as that he deduced a fantastic history from philosophy. The philosophy of both men was in essentials the same: in the dim background God (or the Transcendent Idea), moving in mysterious ways, obliquely revealing the cosmic purpose in man as he is, and in his history, just as it happened. For half a century this philosophy was the chief intellectual weapon for combating the natural rights doctrine of the eighteenth century, the chief intellectual bulwark for resisting the spread of French republicanism and the democratic internationalism of Mazzini. The individual, in the eighteenth century emancipated from prescriptive law and custom, was once more confined within the complex framework of circumstance; liberated by the revolutionary age from his environment in order to reconstruct it on rational lines, he was again imprisoned in the social process. The existing social order, the particular nation with its political organization, its law, its speech and literature, was thought of as the necessary product of the social process, as the product of history; and thought of therefore as the state of nature par excellence, as the only valid expression of God’s purpose, or as the concrete realization of a mysterious Reason of Nature superior to any mere individual reasoning, a kind of transcendental Vernunft enclosing and reconciling within its cloudy recesses the verdicts of innumerable and conflicting Verstände.

Natural rights in the eighteenth-century sense, in the sense of the Declaration of Independence, could not be a possession of the individual who was thus securely imprisoned in the social process. Rights he still did possess, rights that were even “natural” and God-given in their way; but they were not something to be fought for and won. Since the rights which God and nature gave him were little more than the privileges, or absence of privileges, which the positive law conferred, it was indeed not always easy to tell the difference between rights and wrongs. Perhaps there was consolation in thinking that one’s rights or wrongs, such as they were, were useful to that “society” which “shapes man for its own purposes”; and so long as the individual could be sure the purpose was beneficent, and would benefit some one in the long run, he might be content to sacrifice himself for the ultimate good which God could see even if he himself could not. But if the social process should some time cease to be visualized as the progressive realization of God’s purpose, the individual was likely to find his prison rather stuffy, might even find it impossible to associate the idea of rights in any sense with conditions that had every appearance of being ugly and meaningless.

This in some measure came to pass in the latter nineteenth century. Much serious, minutely critical investigation into the origins of institutions seemed to show that all things human might be fully accounted for without recourse to God or the Transcendent Idea. At the same time the fruitful discoveries of natural science, particularly the great discovery of Darwin, were convincing the learned world that the origin, differentiation, and modification of all forms of life on the globe were the result of natural forces in a material sense; and that the operation of these forces might be formulated in terms of abstract laws which would neatly and sufficiently account for the organic world, just as the physical sciences were able to account for the physical world. When so much the greater part of the universe showed itself amenable to the reign of a purely material natural law, it was difficult to suppose that man (a creature in many respects astonishingly like the higher forms of apes) could have been permitted to live under a special dispensation. It was much simpler to assume one origin for all life and one law for all growth; simpler to assume that man was only the most highly organized of the creatures (the missing link would doubtless shortly be found), and to think of his history accordingly, as only a more subtly negotiated struggle for existence and survival.

Meanwhile, this view seemed to find striking confirmation in the world of affairs. “The most indifferent arguments are good when one has a majority of bayonets,” Bismarck assured his contemporaries; and contemporaries celebrated his work when he made the German Empire by “iron and blood.” Cavour won liberty for Italy, as Mazzini said, “by bowing the knee to force,” by calling in the aid of Louis Napoleon, the very man who won fame by placing his heel on liberty in France; and in the New World it was not by the sweet reasonableness of Congressional debate, but by force of arms, that freedom was conferred upon the slave. Confronted with these solid facts, “speeches and resolutions of parliament,” rational schemes for reconstructing society, seemed indeed of little avail. Industrial exploitation, Machiavellian politics, war — what were these, what had they ever been, but nature’s instruments for enabling those to survive who had the power?

In this view of things, neither God nor the Transcendent Idea seemed any longer a necessary part of the social process. The social process would go on very well by itself. But what its purpose was, or whether it would ever come to any good end, who could say? Herbert Spencer, having replaced God by the Unknowable, could only affirm that the social process was one phase of the evolution of all things “from an indefinite, incoherent homogeneity to a definite, coherent heterogeneity.” This might be illuminating, but it was not the same thing as Ranke’s idea that ultimate purposes could safely be left to God, or as Hegel’s notion that the Transcendent Idea was working steadily toward Freedom. Yet it left the individual more diminished than ever, and more helplessly bound. In a universe in which man seemed only a chance deposit on the surface of the world, and the social process no more than a resolution of blind force, the ‘right’ and the ‘fact’ were indeed indistinguishable; in such a universe the rights which nature gave to man were easily thought of as measured by the power he could exert. Aggressive nationalism found this idea convenient for the exploitation of backward races; while militant socialists, proclaiming anew the social revolution, and giving but a passing glance at the old revolutionary doctrine of the Declaration of Independence and the Declaration of the Rights of Man, found their ‘higher law’ in nature and natural law indeed, but in natural law reconceived in terms of the Marxian doctrine of the class conflict.

To ask whether the natural rights philosophy of the Declaration of Independence is true or false is essentially a meaningless question. When honest men are impelled to withdraw their allegiance to the established law or custom of the community, still more when they are persuaded that such law or custom is too iniquitous to be longer tolerated, they seek for some principle more generally valid, some ‘law’ of higher authority, than the established law or custom of the community. To this higher law or more generally valid principle they then appeal in justification of actions which the community condemns as immoral or criminal. They formulate the law or principle in such a way that it is, or seems to them to be, rationally defensible. To them it is ‘true’ because it brings their actions into harmony with a rightly ordered universe, and enables them to think of themselves as having chosen the nobler part, as having withdrawn from a corrupt world in order to serve God or Humanity or a force that makes for the highest good.

In different times this higher law has taken on different forms — the law of God revealed in Scripture, or in the inner light of conscience, or in nature; in nature conceived as subject to rational control, or in nature conceived as blind force subjecting men and things to its compulsion. The natural rights philosophy of the Declaration of Independence was one formulation of this idea of a higher law. It furnished at once a justification and a profound emotional inspiration for the revolutionary movements of the seventeenth and eighteenth centuries. Founded upon a superficial knowledge of history it was, certainly; and upon a naïve faith in the instinctive virtues of human kind.Yet it was a humane and engaging faith. At its best it preached toleration in place of persecution, goodwill in place of hate, peace in place of war. It taught that beneath all local and temporary diversity, beneath the superficial traits and talents that distinguish men and nations, all men are equal in the possession of a common humanity; and to the end that concord might prevail on the earth instead of strife, it invited men to promote in themselves the humanity which bound them to their fellows, and to shape their conduct and their institutions in harmony with it.

This faith could not survive the harsh realities of the modern world. Throughout the nineteenth century the trend of action, and the trend of thought which follows and serves action, gave an appearance of unreality to the favorite ideas of the age of enlightenment. Nationalism and industrialism, easily passing over into an aggressive imperialism, a more trenchant scientific criticism steadily dissolving its own ‘universal and eternal laws’ into a multiplicity of incomplete and temporary hypotheses — these provided an atmosphere in which faith in Humanity could only gasp for breath. “I have seen Frenchmen, Italians, Russians,” said Joseph de Maistre, “but as for Man, I declare I never met him in my life; if he exists, it is without my knowledge.”1 Generally speaking, the nineteenth century doubted the existence of Man. Men it knew, and nations, but not Man. Man in General was not often inquired after. Friends of the Human Race were rarely to be found. Humanity was commonly abandoned to its own devices.

[1 ] Tyler, M. C. Literary History of the American Revolution, I, 499.

[1 ] For contemporary patriot comment, see Hazelton, op. cit., Ch. 10.

[1 ]Strictures upon the Declaration of the Congress at Philadelphia: In a Letter to a Noble Lord. London, 1776.

[1 ] For British comment, see Hazelton, op. cit., 232 ff.

[1 ]An Answer to the Declaration of the American Congress. London, 1776. See especially, pp. 117, 119, 120.

[1 ] Silas Deane to John Jay, Dec. 3, 1776; quoted in Hazelton, op. cit., 548.

[1 ]Oeuvres de Condorcet, VIII, II.

[2 ]Des lettres de cachet et des prisons d’état. Ouvrage posthume, composé en 1778. (Hambourg, 1782), I, 284. The “ouvrage posthume” was a mask to conceal the author.

[3 ] “As soon as he took a house in 1783, he placed in it the Declaration of Independence with a vacant place, ‘waiting,’ as he boldly said, ‘the declaration of rights of France.’” Mémoires et correspondance du général LaFayette, III, 197. Cf. Mémoires pour servir à la vie du général LaFayette et à l’bistoire de l’Assemblée constituente, I, 23.

[1 ] The idea of a declaration of rights, rather than the ideas contained in it, may have been taken from America. This idea, however, was found applied, not in the Declaration of Independence, but in the “Bills of Rights” in the American state constitutions. This question has been much discussed since 1895 when Jellinek published his Die Erklärung der Menschen- und Bürgerrecbte. The work has been translated by Professor Max Farrand, The Declaration of the Rights of Man and of Citizens. For an able critique of Jellinek, see the article by Boutmy in Annales des Science Politiques, XVII. For recent literature see Rees, W. Die Erklärung der Menschen- und Bürgerrechte von 1789 (Leipzig, 1912), and works cited by Rees in his bibliography.

[2 ] See Rosenthal, L. America and France: the Influence of the United States on France in the XVIII Century. 2nd ed. 1882.

[1 ]Oeuvres de Condorcet, VIII, 18.

[1 ]Proceedings and Debates in the Virginia State Convention of 1829–1830 (Richmond, 1830), 53, 54, 56, 120.

[2 ]A Fragment on Government, by Jeremy Bentham. Edited with an Introduction by F. C. Montague. Oxford, 1891.

[1 ] Calderon, F. G. Latin America, 81 ff. Shepherd, W. R. Central and South America, 73, 74. For certain declarations of independence and constitutions, see British State Papers, I. 1104, 1108, 1136; V, 645, 646; VIII, 570; IX, 698; X, 701, 1076, 1107; XIII, 725; XIV, 940; XVI, 1049; XVIII, 1065, 1074, 1119.

[1 ] The above paragraph is based upon an examination of state constitutions prior to 1878 as given in Poore, B. P. The Federal and State Constitutions, ed. 1878. Cf. for Arkansas, 103, 121, 134, 155; Alabama, 32; California, 195; Connecticut, 258; Florida, 317, 332, 347; Illinois, 446, 466, 471; Indiana, 500, 512; Iowa, 537, 552; Kansas, 580, 605, 609, 615, 630; Kentucky, 654, 666, 684; Louisiana, 755; Maine, 787; Maryland, 817, 837, 859, 888; Massachusetts, 957; Michigan, 983, 995; Minnesota, 1029; Mississippi, 1054, 1067, 1081; Missouri, 1114, 1135, 1165; Nebraska, 1203, 1214; Nevada, 1247; New Hampshire, 1280; 1294; New Jersey, 1310, 1314; North Carolina, 1409, 1419, 1436, Ohio, 1461, 1465; Oregon, 1492; Pennsylvania, 1541, 1554, 1564, 1570; Rhode Island, 1603; South Carolina, 1646; Tennessee, 1673, 1677, 1695; Texas, 1762, 1767, 1784, 1801, 1824; Vermont, 1859, 1867, 1875; Virginia, 1908, 1913, 1919, 1939, 1953; West Virginia, 1978, 1994; Wisconsin, 2028.

[2 ] “The right of property is before and higher than any constitutional sanction.” Kansas (Lecompton) constitution of 1857. Ibid., 605.

[1 ] “To say that this ‘covenant with death’ shall not be annulled — that this ‘agreement with hell’ shall continue to stand — that this ‘refuge of lies’ shall not be swept away — is to hurl defiance at the eternal throne.” Selections from the Writings and Speeches of William Lloyd Garrison (Boston, 1852), 118.

[2 ] Channing, W. E. Slavery (ed. 1835), 31.

[3 ] “Civil Disobedience”; Writings of Thoreau (ed. 1906), IV, 358, 360.

[4 ] Cf. Declaration of Sentiments of the American Anti-Slavery Society in Philadelphia. 1833. The abolition argument is carefully analyzed in Lewis, C. The Anti-Slavery Argument as Developed in the Literature 1830–1840 (ms. doctoral thesis in Cornell University library). The principles of the Declaration of Independence were defended by some who were not radical abolitionists. Lincoln defended the Declaration as defining an ideal to be attained “as soon as circumstances should permit.” Works, I, 232. But he carefully refrained from subscribing to the doctrine that natural rights could be conceived as a ‘higher law’ which justified violent revolution. Seward, in his famous 11 of March speech affirmed that the “laws must be brought to the standard of the laws of God.” “The constitution regulates our stewardship. But there is a higher law than the constitution.” Works of William H. Seward (Boston, 1884), I, 66, 74. The last phrase aroused furious opposition, especially in the South, and Seward, who did not always carefully consider what he was saying, hastened to explain that the phrase did not mean what it seemed to mean. The speech and the denunciation of it inspired William Hosmer to write a book in defense of the idea of a higher law. The Higher Law in its Relations to Civil Government. Auburn, 1852. Francis Weyland, President of Brown University, published in 1835 a widely used college textbook in which he defended the Declaration of Independence and brought much learning to the support of the natural rights philosophy. The Elements of Moral Science (ed. 1860), 180, 189, 197, 208, 219. Pro-slavery writers were at much pains, during the decade 1850-1860, to refute Weyland.

[1 ] Letter to E. W. Farley, Aug. 9, 1856; Brown, S. G. Life of Rufus Choate (ed. 1881), 325, 326.

[1 ] “Morals of Slavery,” in Pro-Slavery Argument, 250.

[1 ] Ross, F. A. Slavery Ordained of God (Philadelphia, 1857), 105.

[1 ] Dew, T. R. An Essay on Slavery (ed. 1849), 7, 24. The essay was first published in 1832 as a review of the debates in the Virginia legislature on the abolition of slavery.

[2 ] Quoted from Harper’s Memoir on Slavery (1838) by W. E. Dodd, who gives an admirable résumé of the social philosophy of the Old South in his Cotton Kingdom, Ch. 3. The pro-slavery philosophy may be conveniently studied in Pro-Slavery Argument as Maintained by the Most Distinguished Writers of the Southern States. Philadelphia, 1853. This is a reprint of writings by Dew, Harper, Simms, and Hammond. Cf. also Cooper, Th. Lectures on the Elements of Political Economy (Columbia, S. C., 1826); Fletcher, J. Studies on Slavery (Natchez, Charleston, New Orleans, and Philadelphia. 5th thousand, 1852); Sawyer, G. S. Southern Institutes (Philadelphia, 1859); Fitzhugh, G. Cannibals All! Or Slaves without Masters (Richmond, 1857); Seabury, S. American Slavery Distinguished from the Slavery of English Theorists and Justified by the Law of Nature (New York, 1861); Smith, A. W. Lectures on the Philosophy and Practice of Slavery (Nashville, 1856); Campbell, J. Negro-Mania: being an Examination of the Falsely Assumed Equality of the Various Races of Men (Philadelphia, 1851). J. C. Nott published his learned ethnological researches to demonstrate the ‘plurality of creations.’ Cf. his digression on the negro (Types of Mankind, 10th ed. 1871, p. 191.). His ideas on slavery were more fully given in an address printed in De Bow’s Industrial Resources, 11, 308. The laws of nature from the physiological point of view also proved that the negro never had been, and never could be, the equal of the white man. Cf. Dr. Cartwright on “Diseases and Peculiarities of the Negro” in Ibid., 315.

[1 ] The Disquisition on Government was not printed until 1851, when it appeared in the first volume of the Works of John C. Calhoun. The same ideas, so far as the Declaration of Independence is concerned, were presented by Calhoun in his speech on the Oregon Bill in the Senate in 1848. Works, IV, 507–510. Even at that time these ideas were common-place in the South. The Disquisition is important therefore, not from any influence it may have had in determining the character of the proslavery philosophy, but because it is the most coherent and carefully guarded formulation of that philosophy.

[1 ]Works of John C. Calboun, I, 1, 2, 4.

[2 ]Ibid., 52.

[1 ]Ibid., 55, 56.

[1 ]Ibid., 56, 57.

[1 ]Ibid., 58.

[1 ] Dodd, W. E. Cotton Kingdom, 49.

[1 ] “What is. . . the true state of nature of any being or thing? Doubtless that in which it fulfills most completely that end and object for which it is made. . . . Man was essentially made for progressive civilization, and this, therefore, is his natural state.” Political Ethics (ed. 1885), 1, 133.

[1 ] Moulinie, H. De Bonald: la Vie, la Carrière Politique, la Doctrine (Paris, 1916), Ch. I.

[1 ]Théorie du Pouvoir (ed. 1843).

[2 ]Ibid., I, 44.

[1 ]Ibid., 9.

[2 ]Ibid., 3.

[1 ]Ibid., 40–42.

[2 ]Ibid., 3.

[1 ]Von Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft.

[1 ]System des heutigen Römischen Rechts (ed. 1840), I, 22, 14, 39.

[1 ]Ibid., xiv, xv.

[1 ] Leber, C. Collection des meilleurs dissertations. . . à l’histoire de France (ed. 1838), I, xv.

[1 ] Sismondi, J. C. L. Histoire des français (ed. 1836), I, iii–iv.

[1 ] Beginning of Ch. 4, Bk. IX, of the History of Germany in the Time of the Reformation. Sämmtliche Werke, V, 102.

[1 ] Introduction to Bk. V of the History of the Popes. Ibid., XXXVIII, 1.

[2 ] Introduction to the History of Germany in the Time of the Reformation. Ibid., I, 1.

[1 ] This phrase of Ranke’s, er will blos zeigen, wie es eigentlich gewesen (Preface to the Histories of the Romance and German Peoples. Ibid., XXXIII-XXXIV, vii), contains the essence of his philosophy of history; and it is significant of the influence of his ideas that this simple phrase, the most famous and the most quoted of all of Ranke’s words, should have become a kind of gospel text for historians in the nineteenth century.

[2 ] Ranke’s ideas as to the significance of history are frequently suggested briefly in the introductions to the various books of his histories, particularly the Reformation, the Popes, and the History of England. They are set forth at greater length in his autobiography and correspondence, Sämmtliche Werke, LIII-LIV (Zur eigenen Lebensgeschichte); in the articles he contributed to the short-lived Historische-politischen Zeitschrift with which he was connected, Sämmtliche Werke, XLIX-L (Deutschland and Frankreich im 19 Jahrhundert); and in the address delivered upon his inauguration as Professor of History at Berlin in 1836, Ibid., XXIV, 280.

[1 ] De Maistre, J. “Considérations sur la France”; Oeuvres (ed. 1875), I, 68.