University of Virginia Library

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.[2] 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.[3]

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."[4]

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."[5]

In France, we are told, the Declaration was

officially "well received."[6] 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."[7]

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.[8] 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.[9] 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.[10] 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.[11] 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."[12] 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."[13]
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,[14] 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.[15] 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."[16] No danger in affirming that
all freemen are equal, and have certain inalienable
rights — particularly the right of property.[17]

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."[18] 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."[19]
"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."[20] 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.[21]

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."[22] Glittering 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."[23] 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."[24]

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.[25]

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."[26] 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,[27] "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."[28] 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,[33] 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.[34] 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.[35]

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."[38]

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."[39]
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."[40] 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."[41]

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.[42]
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."[43] 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."[44]

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."[45] 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.[46]

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."[47]

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."[48] 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."[49] 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,[50] 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.[51]

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."[52] 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.