THE
ENLIGHTENMENT AND THE LOSS OF LIBERTY
by
W. B. Allen Professor of
Government
Harvey Mudd College Claremont, California
Prepared for the Goodrich
Lectures on the History of Liberty
Wabash College, February
26, 1986
How
we regard the birth of liberty in North America greatly influences our
appreciation of its value today. Scholarship has long and rightly portrayed
its origins in traditions antedating the American Revolution. They derive
it from the English Common Law, and see in the American founding a confirmation
of that tradition of English law and custom. The colonists are regarded
as having gradually acquired the arts of independent self‑government
from the historic practices of English indulgence. In that light, they
have seen the Revolution rather as a break from English administration
of the colonies than as a decisive advance in theory and principles of
self‑government. Accordingly, they have systematically discounted
the influences of thinkers—English, Scottish, and continental—in originating
the Revolution. Rather, they insist, whiggish activists borrowed the rhetoric
of their English cousins to defend their unparalleled exertions on, behalf
of independence, but with little idea whatever of a way of life other
than colonial experience had prepared them for.
There is considerable truth in this account,
inasmuch as the Americans treasured most highly the rights and liberties
of Englishmen. They began to defend and articulate their rights to life,
liberty, and estates from the earliest date. The 1646 case of Robert Childs
et. al. testifies powerfully to this history, and not alone. We would
be neglectful, however, if we failed to note that these early challenges
were generally directed toward colonial exercises of power—as was the
rhetoric of Patrick Henry in the Parson’s fee case of the late 1750s.
In short, it was in the context of seeking out limitations on the colonial
exercise of power that Americans so frequently and habitually invoked
their ancient rights under the British constitution. This process reached
its peak in the use made of the work, English Liberties, by Henry
Care. It was no accident, to be sure, that Care is probably the most radical
of post‑settlement whigs. Yet, he did not go far enough for the
Americans. In the case of men like Sam Adams, his virulent anti‑popery
survived far better than his scholarly reliance on English law.
Accordingly, contemporary scholarship
is wrong in its central claim—namely, that prior to the Revolution Americans
did not meaningfully divide over questions of rights and liberties. They
are also wrong to minimize the influence of modern political philosophy
in the direction that debate ultimately took. Not only was it the case
that the British constitution ceased to offer adequate authority from
the moment the imperial power itself came into question (the evidence
for which may be gleaned from the Massachusetts General Court’s instructions
to its British agent, Jasper Mauduit, in 1762, which instructions elevated
John Locke above immemorial usage). It is more dramatically the case that
Americans well before, small groups to be sure, began to search for a
more express articulation of the foundations of liberty. In the late 1740s
a small group in Massachusetts, Sam Adams at its center, had already opened
the quest—prior to the outbreak of the Seven Years War and well before
the questioning of imperial power. They published a short‑lived
but frankly political journal, taking North America and Americans, not
just Massachusetts, as the natural arena and objects of their efforts.
One member of this group, Daniel Fowle,
provides the most dramatic evidence of the direction in which their thoughts
turned. Fowle’s work from 1754‑1756 remains extant, though it has
apparently never been consulted. It is perhaps the first comprehensive
discussion of the principles of government, in the tradition of the literature
of the Revolution, written and published by an American. Fowle’s A
Total Eclipse of Liberty bridges the old and new worlds; aimed at
exposing abuses of power in Massachusetts, it celebrates the English constitution
and English liberties. At the same time, however, Fowle explicitly introduces
reason and the “poor dim light of nature” as the standards of political
judgment. It is therefore no accident that his short essay contains all
the essential forms and objectives of Revolutionary rhetoric, including
the robust version of the consent of the governed and an express assertion
of the right of revolution.
Where did Fowle derive the principles
of his analysis? Primarily from the philosophical traditions of the west,
including the eighteenth century enlightenment and continental thought.
Inasmuch as my particular concern is to discuss the status of liberty
in eighteenth century continental thought—and that primarily of Montesquieu—this
last point is the one to which I will draw ultimate attention. Before
I take up that direct discussion, however, I wish to set forth with some
clarity the significance of Fowle’s essay and its exact content (which,
I believe, is no longer familiar to any scholar apart from my wife and
myself).
I derive the significance of Fowle’s
work indirectly. Scholars like Spurlin and Lutz have conducted exhaustive
surveys of Revolutionary and colonial thought for indications of intellectual
antecedents. Spurlin considered Montesquieu alone, while Lutz surveyed
the whole range of moral and philosophical literature. They agree on the
enormous significance of Montesquieu but largely confine his influence
to a point when the direction of the Revolution had already been set.
Lutz’s more recent and more accurate work demonstrates Montesquieu’s great
importance but expressly maintains that the Spirit of the Laws
served as a reference source in a context where, confronted with an accomplished
Revolution and needing to establish a government, the founders were searching
for guidance. In short, Montesquieu did not inspire the Revolution; he
only provided much needed practical advice after it had occurred. Spurlin
and Lutz agree: Montesquieu appeared in America only after 1760 and then
mainly in the 1780s.
This judgment was certainly a reasonable
one from all direct and indirect evidence. In terms of direct evidence
we can not find advertisements for Montesquieu’s works prior to the 60s
and have few if any records of its being offered for sale. Further, few
persons have ever uncovered citations prior to that period. In terms of
indirect evidence, America was not exactly on the intellectual mainline.
While Montesquieu took Europe and England by storm, it is not unrealistic
to think that a work published effectively in 1749 and translated into
English in 1750 might take a few years to penetrate the less developed
corners of the world. In fact, however, Daniel Fowle’s essay reproduced
extensive citations from the book in 1754. How early he saw it—and he
refers to the book, not to someone else’s citation—we are as yet unable
to judge. Clearly, however, he saw it early. Further, he published an
important part of it to his countrymen. The cause of liberty had a boost
from the continent long before the king and parliament had become liberty’s
enemies. That is the significance of Fowle’s work.
As to the content of A Total Eclipse
of Liberty, I require to tell Fowle’s story. A printer‑publisher
in Boston, he was summoned before the Lower House of Assembly on 24 October
1754 to answer questions concerning a publication entitled “Monster of
Monsters.” ‘The House considered the anonymous piece a libel on itself
and wished to find and punish those responsible. Fowle denied that he
either authored or printed the piece. He admitted that he had handled
it, receiving some ten copies, which he offered for sale. He was vague
about his knowledge of the source, indicating only that the pamphlets
had been delivered to him by some youth, presumably employed by the printer.
There was some indication that Fowle’s brother, Zechariah, and a Royal
Tyler were involved, but he did not say so squarely. In the end the House
remanded him to the common jail, pending further word from the Speaker.
There was no finding of guilt and no formal presentation of charges. But
Fowle was jailed, and there began his work, A Total Eclipse of Liberty.
He succeeded in writing only a few pages before pen and paper were removed
from him. He spent forty‑eight hours confined in the stone jail,
and another three days in the jailer’s quarters, during which time his
distraught wife lost her health and miscarried.
Fowle
complained bitterly of this “unheard of attack upon the Liberty of
an Englishman, than which scarcely anything is dearer, if he has but
the spirit of a Man. . .” In his own words, the experience seemed thus:
I had no bed to
lodge on, but a pillow and one blanket. I walked about, and when tired
sat down, and heard the Clock strike every Time from 12 till eight.
There is but one Window, and that without any Thing to keep off the
Weather, as there is only several Iron Bars, no Winder‑shut, which
the Murderer was favour’d with. The Place stunk prodigiously,
which oblig’d me to tye my Handkerchief over my Mouth and Nose, for
fear of being suffocated; worse than the Smell of Brimstone.
I heard no Noise for some considerable Time; all Nature seem’d to
be dead; the first stirring of any Thing I could hear, was the Noise
of Rats, which seem’d to be of a prodigious size. . .
After forty‑eight
hours of this Fowle was removed to the jailer’s quarters, where an order
was received commanding that he be released privately. Upon this news
he responded, “I now desire that the same Authority that put me in, would
by virtue of that same Power take me out, and not thrust me out privily.”
On October 28th Fowle remained
a prisoner, whereupon, in his account, he inserted a lengthy extract from
“that approved piece,” Montesquieu’s Spirit of the Laws. He used
those passages which defined liberty in the famous sixth chapter of Book
XI, the same passages which recur throughout the founding era, culminating
in Federalist number 47 in 1788. As he transcribed them, evidently
from the translation of Thomas Nugent but corrected here and there against
the French original, they read thus:
The [political)
Liberty of the Subject is a Tranquility of Mind, arising from the Opinion
each Person hath of his safety. In order, to have this Liberty, it is
requisite the Government be so constituted as one man need not
be afraid of another. When the Legislative and Executive Powers
are united in the same Person, or in the same Body of Magistrates,
there can be no Liberty; because Apprehensions may arise least the same
Monarch or Senate should enact tyrannical Laws, to execute them
in a tyrannical Manner.
Again, There is no Liberty,
if the Power of Judging be not separated from the Legislative,
the Life and Liberty of the Subject would be exposed to arbitrary
Controul; for the Judge would be the Legislature. Were it
joined to the Executive Power, the Judge might behave with all
the Violence of an Oppressor [violence and oppression]. There would
be an End of every Thing, were the same Man, or the same
Body, whether of the Nobles or of the People, to exercise these
three Powers, that of enacting Laws, that of executing the Publick
Resolutions, and that of judging the crimes or Differences
of Individuals [trying the causes of individuals].
Placed in the context of Fowle’s ordeal,
we should have less difficulty to hear the apocalyptic and revolutionary
nature of Montesquieu’s teaching. Where liberty (he had said “political
liberty,” but Fowle altered it) is not assured, man must fear man; without
the separation of powers, laws will be tyrannically framed and executed;
without separation of powers, judges act with all the violence of an oppressor
(he corrected Nugent’s “violence and oppression”); and, everything would
collapse if the different powers were exercised by the same man or men.
In fact, in colonial America as in Montesquieu’s
France, it was commonplace to find the powers of government promiscuously
mixed. The case of Robert Keayne in Massachusetts, at a hundred years
remove but not very different in form from Fowle’s case, testifies to
this. Accordingly, these radical claims about the danger to liberty constitute
as much an indictment in the one case, America, as in the other case,
France. Moreover, even as Fowle celebrates English liberty, he has learned
from this Frenchman of radical defects in that liberty. Hence, he is at
the start of that train of reflections which produced the American Revolution
and introduced a new, non‑customary standard for the defense of
liberty.
What is of great interest in this story
is the fact that Montesquieu was also the last Enlightenment thinker on
the continent who could have left such a legacy. In the very year Fowle
wrote, Montesquieu completed the definitive version of his classical work
and then died. In that same year, Jean Jacques Rousseau published his
Discourse on the Origins of Inequality Among Men, which opened
the modern assault on nature as a moral standard and natural rights as
a source of political principles.
True, for Rousseau man was good in nature—if
to be good it suffices to be peaceful and stupid. But that is the point:
man in nature is not the man we know. The men we know, Rousseau held,
are wicked. What changed him? “only the changes occurring in his structure,
the progresses he has made and the knowledge which he has acquired.” Thus,
in the “Second Discourse,” in footnote “I,” Rousseau repeats the critique
he had offered in the “First Discourse on Science and the Arts.”
It was not without
difficulty that we succeeded in making ourselves so unhappy. When one
considers, on the one hand, all the prodigious labors of men, so many
profound sciences, so many invented arts, so much strength applied,
abysses filled in, mountains levelled,, rocks crushed, rivers made navigable,
land cleared, lakes dug out, swamps dried up, enormous buildings erected
on land, the sea covered with vessels and sailors, and when,, on the
other hand, one investigates with but little meditation the true advantages
which have resulted from all this for the happiness of humankind, one
can only be struck by the astonishing disproportion which exists between
these things and deplore man’s blindness. . . Admire human society
as much as one may, it will be no less true that it necessarily inclines
men to despise one another in proportion as their interests intersect.
. .
This
art alone, this capacity for progress, for self‑perfection, is the
sole distinguishing characteristic of man for Rousseau,. And it is a sufficiently
ambiguous distinction that there is room to wonder where man begins and
orangutan ends—or whether African cannot mate with orangutan. It is on
this ground that Rousseau entertained the idea of a progressive development
of humanity. The very uncertainty of humanity’s identity renders a reliance
on nature as a guide impossible. There could not be a more complete contrast
with Daniel Fowle, who assumed not only that he could recognize men, but
That all Men are
so Just, that not any one individual would do any Thing
he imagin’d injurious to his Neighbor, but that they were only liable
to some Mistakes about their own and others’ Rights. . .
The contrast was produced by the Enlightenment’s
inclination to follow in the paths of Galileo and Descartes, in the paths
of natural science.
We can discern the threat to liberty
in this approach by considering its effect on Thomas Jefferson’s thought
in the context of America, where Jefferson tried to mate natural science
and freedom. He, more than any other founder, was profoundly influenced
by the European Enlightenment, and the result was some confusion in his
own mind as to the force of American principles in the context of natural
history. The confusion was sufficiently great that he almost repudiated
the truths of the Declaration of Independence.
Jefferson’s position, stated most forcefully
in the Notes on the State of Virginia, has long been misunderstood
and abused by scholars, who have accused him of being simply a racist.
The controversy centers in an exchange Jefferson had with Benjamin Banneker.
Let me remind you of the case. Banneker’s impassioned appeal of August
19, 1791 was that Jefferson (as Secretary of State as well as author of
the Declaration) exert himself to remove the baseless prejudice of an
inherent inferiority of black people. For the purpose Banneker condescended
to make himself an exhibit. While he did not appeal to the instance of
his producing an almanac, the formal occasion of his letter was to transmit
that philosophical effort to a kindred soul. Thus, the implication was
unavoidable that Banneker considered this a case made; his mathematical
and astronomical abilities were the acquisitions of his race. He appealed
to Jefferson, therefore, to join in procuring for black people “their
promotion from any state of degradation to which the unjustifyable cruelty
and barbarism of men may have reduced them.” Banneker attributed the entire
prejudice concerning the blacks lack of “mental endowment” to the enforced
brutishness of slavery.
Jefferson responded by immediately recognizing
the almanac as the “proofs you exhibit, that nature has given to our black
brethren, talents equal to the other colors of men,” although Banneker
had treated the trans mission as incidental and even apologized for including
the two messages in the one letter. Moreover, Jefferson saw the exhibit
as aimed at the prejudice of color, with the distinction that Jefferson
derived it not only from slavery but from the “degraded condition of their
existence, both in Africa and America.” Jefferson, therefore, rejected
Banneker’s claim that the whole cause of black imbecility was American
despotism. Much like Rousseau, he had public, if speculative, doubts
about the place of the black man in the chain of being.
This
story actually begins with Jefferson’s Notes, in which he pondered
whether the black man were not inferior to whites. Scholars have assailed
first the passages in the Notes and then Jefferson’s response to
Banneker (as well as later correspondence) as evidence of his indelible
prejudice. They overlook in the Notes his prayer that matters stand
other than they seemed. The later charges center on the fact that Jefferson
allegedly wrote in a private letter to Joel Barlow (some say Benjamin
Rush, mistakenly) and questioned whether “Banneker had done the almanac
or that any black man could have.” The implication has been that Jefferson
spoke differently to his “white equal” than to Banneker, as well as differently
in public and private. Obviously, the Notes are every bit as public
as the Declaration was, and at the least Jefferson is exculpated from
the charge of hypocrisy. We are concerned to know whether he is equally
exculpated from the charge of confusion.
Jefferson returned to these questions
in a letter to Joel Barlow on October 8, 1809. He wrote concerning a Frenchman
who had assumed the mission to prove black capacities, having taken up
Rousseau’s challenge. I quote at length:
He wrote to me
also on the doubts I had expressed five or six and twenty years ago
in the Notes on Virginia, as to the grade of understanding of the negroes,
and he sent me his book on the literature of the negroes. His credulity
has made him gather up every story he could find of men of color, (without
distinguishing whether black, or of what degree of mixture,) however
slight the mention, or light the authority on which they quoted. The
whole do not amount, in point of evidence, to what we know ourselves
of Banneker. We know he had trigonometry enough to make almanacs, but
not without the suspicion of aid from Ellicot, who was his neighbor
and friend [and employer, in laying out Washington, D.C.],, and never
missed an opportunity of puffing him. I have a long letter from Banneker,
which shows him to have had a mind of very common stature indeed.
Here,
of course, Jefferson accepts Banneker’s authorship, while retaining the
suspicion that he was aided in the work. More importantly, he takes what
little he finds in Banneker’s mind as evidence sufficient as to “the grade
of understanding of the negroes.” What grade was that: “a mind of very
common stature indeed.” The term of reference for this “common stature,”
of course, has to be the intellectual attainments of white folk, since
the questions grow out of the suspicion that the black mind was inferior
to the common.
Some scholars have imagined this phrase
to imply defect, inferiority. They read the word “common” to mean base
or vulgar (certainly a possible meaning), and there differ from me, who
recalls the Euclidean term “common notion” as the critical lynchpin in
constructing the intellectual edifice of geometry. That is, what Jefferson
sought in every black mind was not evidence of genius but of ordinary
intelligence, intelligence sufficient to warrant confidence that the axioms
of nature would command the souls of ordinary black folk as they do those
of ordinary white folk. That must be the level of intelligence of the
common intellect, else the “consent of the governed” will lose all intelligibility.
Here, then, is where confusion enters,
for this is the light in which Notes on the State of Virginia,
querying whether freed blacks could become citizens, developed Jefferson’s
doubts as forcefully and publicly as those doubts are ever developed anywhere.
I give the relevant text:
In general, their
existence appears to participate more of sensation than reflection.
. . An Animal whose body is at rest, and who does not reflect, must
be disposed to sleep of course. Comparing them by their faculties of
memory, reason, and imagination, it appears to me, that in memory they
are equal to the whites; in reason much inferior, as I think one could
scarcely be found capable of tracing and comprehending the investigations
of Euclid. . .
*****
. . . notwithstanding these
and other discouraging circumstances among the Romans, their slaves
were often their rarest artists. They excelled too in science, insomuch
as to be usually employed as tutors to their master’s children. . .
not their condition then, but nature, has produced the distinction.—Whether
further observation will or will not verify the conjecture, that nature
has been. less bountiful to them in the endowments of the head. . .
*****
To justify a general
conclusion, requires many observations, even where the subject may be
submitted to the anatomical knife. . . How much more then where it
is a faculty, not a substance, we are examining; where it eludes the
research of all the senses; . . . let me add too, as a circumstance
of great tenderness, where our conclusion would degrade a whole race
of men from their rank in the scale of beings which the Creator may
perhaps have given them. . . I advance it therefore as a suspicion
only, that the blacks . . . are inferior to the whites in the endowment
both of body and mind.
In
light of these passages everything should become clear. Jefferson’s disagreement
with Banneker over the source of black degradation derived from Jefferson’s
own confidence in the sufficiency of natural history to answer that question.
Only natural history could provide such an answer as would remove the
truth beyond mere political taste or sentiment. It would have been foolish
to embrace the equality of blacks and whites, if to do so were to entail
the denial of the natural rights on which the laws of free men were based.
Such a result would have had to follow, if the political union of blacks
and whites had to be forced against the evidences of natural history.
If the souls of black folk could not be commanded by the axioms of nature,
their political union with whites could not be based on that mutual consent
which derives from recognition that all men are created equal—that is,
black men could not recognize the equality of all men or the superiority
of life in accord with natural right. It was not Banneker’s appeal to
the Declaration which could persuade Jefferson. It was rather the demonstration
that Banneker possessed “a mind of very common stature indeed.” This
was for Jefferson not merely a disposition of the heart, for he regarded
the agreement of natural history with natural right as the necessary foundation
of that elevation of mind and body to which he aspired on behalf of all
men.
Jefferson’s proclivity for natural science
betrayed him in this case into seeking a proof for the axiom that all
men are created equal, the which is not only impossible but oxymoronic.
His problem emerges from his entertaining the question of humanity as
a matter of natural science. As Euclid’s common notions reveal, through
the centrality of the term “equal” in the five axioms, the self‑evidence
and truth of axioms revolve around a principle of identity. That is, the
native operation of the intellect is the distinction of same and other—the
recognition of the principle of equality.
What that means in this case is that
to recognize that all men are created equal, and to recognize all men
as men, are one and the same. The one cannot be accomplished without the
other. To push the question, Are blacks men? Are Indians men? Are Chinese
men? Are Saxons men? Are Persians men? is already to deny the radical
insight of the Declaration. Jefferson, speculating Rousseau‑like
on orangutans and near‑men, threatened to overturn the liberating
foundation of the American polity. Since in Rousseau human equality meant
nothing, inasmuch as a changing and deviating nature constantly undermined
the meaning of humanity itself, such speculation was vacuous. But for
Jefferson, to whom humanity was founded in an immutable identity, such
speculation was dangerous in the extreme, however natural in the context.
To his credit, however, he protested to Barlow that “nothing was or is
farther from my intentions, than to enlist myself as the champion of a
fixed opinion, where I have only expressed doubt.”
The path cleared by Rousseau led at century’s
end not only to Jefferson’s confusion but to Kant and Hegel and ultimately
to Nietzsche. In the course of time reason, revelation, and nature came
to be supplanted by history as the principal moral cause to which most
thinkers turned. Even in the French Revolution, where Montesquieu’s work
was remembered, the spirit of Rousseau ultimately prevailed. It realized
itself in Hegel’s identification of the Napoleonic consummation of that
revolution as wisdom’s dawning. Thus, the eighteenth century, and its
Enlightenment, closed on a dismal note of anticipated slavery, fully realized
in the form of the modern totalitarianisms since. It did not bring liberty;
it brought tyranny.
American liberty alone preserves historic
evidence of the path not taken by Europe. Through it we are enabled to
recover the true direction of Montesquieu’s thought. We can ask what there
was in his thought which enabled him to stop short of Rousseau’s plunge?
How was he enabled to preserve nature and natural rights in the face of
what seemed Europe’s philosophical fate? I have provided one answer to
that question in a previous essay for the Academie Montesquieu on “Montesquieu
and Natural law.” Here I will content myself to describe the impact of
Montesquieu through the eyes and experience of Daniel Fowle (and, by implication,
Sam Adams).
While Fowle’s experience may seem particular,
he approached it throughout, more than John Peter Zenger did, as having
general significance. He made this clear at the outset, when he apologized
for the moderate tone of his work by his fear that “it should be accounted
a libel” and some reader
be thrown into a stinking
stone Gaol, though never so innocent, and suffer in the same Manner
as if he was the real Author: without Law, nay contrary to Law, and
in direct opposition even to the poor dim Light of Nature, if I am not
very much mistaken.
Fowle’s
approach brings the light of nature to the support of law. Following the
citation from Montesquieu, a lengthy citation from Henry Care entered,
and in which Fowle fastened on those “Rights that from age to age have
been deliver’d down to us from our Renown’d Fore‑Fathers. . .” Needless
to insist, it would be a miracle if the “poor dim light of nature” concurred
in every bequest from the past. Still, the singular freedoms enumerated
by Care all eventuated in “this Truth,, that when Liberty is once gone,
even Life itself grows insipid, and loses all its Relish.”
A Total Eclipse divides into four parts,
after the “Preface.” ‘The last part is an appendix, entitled “The Original
of Civil Government, the Rights of the People, etc.” In the final section
Fowle recurred to the ultimate foundation of government, the right of
consent, rather than to immemorial usage. He took as his authoritative
model, Roman liberty, and the subjection of the “chief rulers” to the
will of the people. This democratic sentiment flew in the face of British
tradition, which entertained a notion of an original contract only as
a point of departure and to which no return was conceivable. Under English
principles, as Blackstone was later to codify, the people’s original authority,
once alienated, was alienated for good.
Fowle’s intention to present a design
of good government, which could be defended “against the Invaders of our
Liberties and Privileges” required him to go beyond English traditions.
It required him to argue for enforceable limits on all delegated authority.
In the course of his argument he adduced all of the principles which were
later to coalesce in the ideas expressed in the Declaration of Independence.
I quote at length:
‘this observed,
“No Governors are the natural Parents or Progenitors of their People,—Nor
has God by any Revelation nominated Magistrates, shewed the Nature,
or Extent of their Power, or given a Plan of Civil Polity for Mankind.”
‘Tis also allow’d “to constitute a State or Civil Polity in a regular
Manner, these three deeds are necessary: First, a Contract of
each one for all, that they should unite in one Society
to be governed by one Counsel. And next a Decree or Ordinance
of the People concerning the Plan of Government; and the Nomination
of the Governors. And lastly, another Covenant or Contract
between these governors and the People, binding the Rulers to a faithful
Administration of their Trust, and the People to Obedience.
Fowle’s
plan envisions two contracts, an original and an operational or ongoing
contract, identifying the people as the true sovereign. He did not overthrow
the divine right of kings; he added to it a superior divine right of the
people. He plainly conceived a written constitution as the organic tie
between rulers and communities. And he sought some form of election o
f rulers by the whole society, albeit unspecified.
These provisions of political philosophy—derived
from the proposition that no man is the natural ruler (or parent) of any
other—Fowle derived from a standard of right, as opposed to English inheritance.
Of this right, he argued, if there is no such thing,
there could be no Oppression
or injustice, for Oppression or Injustice is when that which is another’s
Right is detained or taken from him against his Consent.
It
must come as no surprise, therefore, that in Boston in 1754 he also preached
a right of revolution, without which a rule of right, or higher law, remains
inefficacious. Representatives have “no more than a delegated Power
from the Fountain (anticipating George Washington and the Federalist,
among others), chose for the Defense and Protection of the People.” They
hold their power conditionally, not only “from” but “by” the people.
So that it’s natural,
nay a Duty, when the common Rights of this Community is trampled upon,
or only the Liberty of one is attempted against, and that made
a Precedent of, then they are perfidious to their Trust, and
that moment forfeit all the Power committed to them; the Alarm then
ought to be given, but with Prudence and Moderation. .
.
One
would think this Lockean in its form, but for Fowle’s faith in the efficacy
of revolution. Locke, too, conceived that the original contract constituted
an irretrievable surrender of rights—not in right, to be sure, but for
all practical purposes. Fowle, however, considered a patient, suffering
people as “Herds of miserable abject Slaves or Beasts of Burden, rather
than civil Polities of rational Creatures.” To him, “the point in hand
is very short.” Either representatives—kings included—are limited in their
power or they are not. He concluded that “there is no middle State betwixt
Slavery and Freedom.”
At the heart of Fowle’s view of the origin
of civil government, then, is a view of representation which itself reposes
on a principle of right conceived as deriving from the nature of things—human
equality. That is precisely the point which Fowle drew from his reading
of the Spirit of the Laws. What seems to have prevented Montesquieu’s
plunge into the European abyss was a view of government as conditional,
not total, itself deriving from a view of the individual man, of human
equality as the fundamental datum.
In the very middle of the Enlightenment,
whose direction was to apply an ever increasing power over nature to man
himself, Montesquieu. held a different course. While modern political
philosophy in general adopted the idea that human polity was purely arbitrary
and conventional, Montesquieu considered it necessary in the course of
nature. On the basis of this distinction one would think that Hobbes,
say, would emphasize choice or consent over determination, while Montesquieu
would emphasize some form of determinism. And so he has often been misinterpreted,
by those departing from his discussions of the force of climate and moeurs
in determining the conditions for human laws.
In fact, however, Hobbes produced the
greater determinism precisely because, there being no non‑arbitrary
standard on which to found human society, superior force alone prevailed
and set in notion a course of events as determined as a stone’s flight.
Montesquieu, on the other hand, albeit realist enough to concede the power
of superior might, found in the necessities of nature ample ground for
choice. Particularly, arguing that man could not live but by choosing,
while nevertheless inclining to choose the natural course, there was a
moral force which prevailed in determining people’s constitutional courses.
The signal fact about the eighteenth
century was that there was no liberty to speak of throughout the monarchies
of Europe. The eighteenth century opened on a note established by Louis
XIV in France, absolute monarchy: “l’etat, c’est moi.” While the
victories of Marlborough secured the settlement of liberties in England,
they did not contribute materially to any political improvement in Europe.
Montesquieu turned to the English constitution precisely because it alone
boasted a constitution which promised liberty. Indeed, all eighteenth
century reflection turned to England, in order to appreciate such niceties
as the trial by a jury of one’s peers.
Eighteenth century political philosophy,
Enlightenment thought, turned largely to the world of science and the
idea of relieving man’s estate through mastery over nature. Its implicit
reliance on a democratization of science, and hence society, went unnoticed,
until Rousseau forced it upon the attention of the world. Montesquieu
redirected it by raising the question of political alternatives in a way
which had not received as close attention since Aristotle. He indicated
that European monarchies, “the monarchies that we know,” did not have
liberty for their direct object. He did so, however, in a context in which
he had clarified liberty as an object for man. That is, he derived from
nature, even natural necessities (to speak in pleonasms) a standard by
which to assess the politics of his era. While other Enlightenment thinkers
(Voltaire included) had regarded nature primarily as an object of material
reflections, Montesquieu charted a different course. That course was not
followed in the balance of the eighteenth century. Rousseau, though writing
almost exclusively in the realm of political philosophy, does so to the
effect of denying the existence of a human nature (man is infinitely pliable),
rejecting reason as a source of political principles (the general will
is not a rational will), and giving birth to the school of historical
determinism (the first man to chain off a plot of ground and get away
with it changed forever the condition of man).
The fact that Montesquieu made liberty
over virtue the fundamental organizing principle of political life altered
completely the modern conception of politics. As virtue required a comprehensive,
all‑powerful state, so liberty called into being the idea of a state
limited by the superior prerogatives of citizens. That contrast might
alone explain the difficulty Europe experienced in taking Montesquieu’s
teaching to heart.
Montesquieu did not go unheeded in North
America, however. Although his understanding of the English constitution
was under assault in England at the end of the eighteenth century, on
the North American continent it had inspired a new English constitution—one
in which the roles of the people and their parliament had been reversed.
The people became for the first time in history the exclusive guardians
of their constitution, conformably to the vision of Daniel Fowle. The
new theory of representation had become the concrete form of the idea
of liberty in the modern world. Montesquieu was its creator and, for that
reason alone, eighteenth century Europe the source. In North America it
became what Daniel Fowle wished, that liberty for which everyone had “as
high Esteem. . . as the ancient Romans had, that they made it one
of their Goddesses. . .”
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