Law and Lawyers in Edmund Burke's Scottish ... - SSRN papers

Law and Lawyers in Edmund Burke’s Scottish Enlightenment $ Se a n P a t r i c k D o n l a n

Though often obscured by discussions of political economy, jurists and jurisprudence were essential to the Scottish enlightenment. Scots law and legal pedagogy, through its connection to the continental legal tradition, was linked with a rich body of moral philosophy and legal humanism. Early eighteenth-century jurists and moralists like Gershom Carmichael and Francis Hutcheson, both at Glasgow, qualified the moral-legal voluntarism of Samuel Pufendorf and John Locke with a richer, more naturalistic analysis of the role of human sociability, sentiment, and sympathy. These changes intersected with a wider rule-oriented “civility” of the “culture of politeness,” but went deeper, providing the materials for non-theistic and non-rationalist explanations of human association and law. This was not secular—both men were deeply religious—but represented a significant move away from the Augustinian psychology and strict scriptology of much Scottish Calvinism. Hutcheson, the Scoti-hiberni “father of the Scottish enlightenment,” is especially instructive of the way legal language could be combined, and qualified, with a variety of other public languages.1 By mid-century, Scottish natural jurisprudence had, by incorporating the method of Montesquieu, comparative reports of the New World, and philosophical histories of the old, become increasingly scientific, “sociological,” and historical. Scottish thinkers, not least its jurists, articulated complex stadial and progressive histories, placing particular emphasis on the interaction between a people’s social structures, especially its commercial organisation, and their manners and laws. The result was an extremely sophisticated critique of methodological individualism, rationalism, and egoism.2

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burke’s scottish enlightenment

If the Scottish enlightenment is now well established, the idea of an Irish enlightenment remains problematic. The universal, progressive histories suggested by the Scots were complicated by Ireland’s still more complex confessional politics. Irish law in the eighteenth-century, and English policy in Ireland for many before, was distinctly unenlightened. Irish apologists, in defence of native institutions against charges of savagery and barbarism, not least in the Brehon laws, stressed the civility and refinement of Irish manners before conquest and commerce. On the margins of “patriotism” and “popery,” Edmund Burke’s essential Irishness remains poorly understood, not least in Ireland. But Burke was himself twice lord rector of Glasgow—he preceded Adam Smith—and there are few aspects of his life so neglected and so potentially rewarding as his relationships—personal, professional, and philosophical—to Scots jurists and the “Scottish enlightenment.” Between them, Burke and the Scots exemplified the most pressing debates and developments of the century.

# Burke’s Irish education was both formal, from rural hedge-school to Dublin’s Trinity College, and informal, in the complex confessional politics of eighteenth-century Ireland.3 Given its place as citadel of the established church, study at Trinity was surprisingly liberal and included that blend of moral and legal theory common to continental jurisprudence. As there was then no place for legal training within Ireland, there would not be until the nineteenth century, Burke left for London’s Middle Temple at the goading of his father. Unlike the civilian and Scottish traditions, a university education was unusual for contemporary common lawyers. Burke quickly became unhappy with the “narrow and inglorious” training he received.4 After a few years, he left before being called to the Bar and embarked on a literary career. His frustration with English jurisprudence went deeper than pedagogy, however, and his earlier works show him deeply critical of both English legal insularity and its relatively unsophisticated understanding of the relationship between law and manners.5 One of many apocryphal rumours about Burke and Scotland has him taking leave of his legal studies and travelling to Glasgow to contest, against Hume or Smith, the professorship left vacant by Francis Hutcheson’s early death.6 It is true that Hutcheson—with Lord Shaftesbury, Joseph Addison, and many of the ancients—was an important influence on the young Burke. His first philosophical work, the Philosophical Enquiry into the Origins of our

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studies in burke and his time

Ideas of the Sublime and Beautiful (1757) echoed, in title and substance, Hutcheson’s Inquiry into the Original of our Ideas of Beauty and Virtue (1725). In an early poem, Burke suggested that Hutchinson’s Essay on the Nature and Conduct of the Passions and Affections (1728) was a continuation of the work of the Greek Longinus, the stated model of his own Enquiry. Like thee too great Longinus did before The secret movements of the Soul explore, But that great Work which Time so long withheld From mortal Sight is now by thee reveald.7

Like Hutcheson, Burke’s work was naturalistic, founded in a common psychology and moral sensibility. Its methodology, “founded on experiment and not assumed,” was also in line with contemporary science.8 Indeed, as a friend of Burke’s observed, Hutcheson’s Inquiry was a “moral,” while Burke’s Enquiry was a “critical work.”9 Some thirty years later, Burke would meet the elderly William Leechman, colleague of Hutcheson and author of the biographical preface to his posthumous System of Moral Philosophy (1755).10 Leechman was then in his last years as Glasgow Professor of Theology and Principal of the University. While the character of their personal and philosophical relationships is complex, David Hume also owed much to Hutcheson. Having first studied law in Edinburgh, his turn to philosophy sprang from the desire to articulate a more rigorous “science of man.” His early philosophical works and “polite” essays reflect, while problematizing, Hutcheson’s legacy. But Hume was among the first to add historical depth to Scottish moral philosophy.11 This owed something to his relationship with Montesquieu, the godfather of the Scottish enlightenment, but it precedes the Spirit of the Laws (1748).12 The importance of time, at the level of both empiricism and history, is constant in his works. Legal “prescription,” for example, was rooted in a natural presumption of attachment and sympathy.13 He was also deeply critical of contemporary political mythology, not least contractualism. His History of England (1754-62) shows the English constitution arising, not from the wisdom of Saxon legislators, but the chaos and conflict of British history.14 Burke was already familiar with Hume’s writings by the early 1750s. His “Essay on Taste,” included in the second, definitive edition of the Enquiry, is considered to have been inspired by Hume’s work on the same subject. Burke thought highly, too, of his early histories (those of the later

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stages of British history). He offered a favourable review in the Annual Register, an encyclopaedic and “enlightened’social and political review he edited in the decade before entering Parliament (c.1758-67?). “Our writers had … so ill succeeded in history …,” he wrote, that it was almost feared that the British genius, which had so happily displayed itself in every other kind of writing, and had gained the prize in most, yet could not enter the list in this. The historical work Mr. Hume … published, discharged our country from this opprobrium.15

Burke also began his own Abridgement of the English History (c.1757-62?) in the same period. The work, and a short, but rich, fragment on English law (c.1757), reflected a similar reliance on natural presumptions and critique of “whiggish” histories.16 The Abridgement, completed through the Magna Charta—some 90,000 words—was discontinued in the early 1760s, perhaps as Hume began to publish on the same period or as Burke approached delicate questions of Irish history. If it shared much in common with Hume’s History, it already suggests Burke’s attempts to get beyond a civil or political history, to what we now call “culture.” He wrote that “the changes, … in the manners, opinions, and sciences of men … [are] as worthy of regard as the fortunes of wars, and the revolutions of kingdoms.”17 Burke and Hume met at the end of the 1750s, but if they impressed one another immediately, no deep friendship resulted.18 This seems to owe less to their genuine epistemological or theological differences, than to Hume’s views on Irish history. In his History of England (1754-62), Hume applauded British “civilization” of the native and catholic Irish, whom he considered long barbarous and ignorant.19 His depiction of the Irish rebellion of 1641 as a catholic massacre of protestants drew on the most biased histories and he credulously exaggerated the dead from several thousand to several hundred thousand.20 Burke, with Irish catholic historians like Charles O’Conor of Belanagare and Dr John Curry, presented a more complex picture of Ireland.21 There is, for example, a sense in which Burke agreed in the obsolescence of native custom. The virtues of a more “regular, consistent, and stable jurisprudence” were real, a mark of legal progress and foundation for social politeness.22 The “rule of law” did not, however, reduce to mere formalism. It was often Irish manners, Burke and the historians insisted, that carried the nation through the barbarous application of English law in Ireland. Although he would be continually frustrated, Burke sought throughout his life to have a more enlightened history of Ireland written.

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His Tracts on the Popery Laws (c.1765) was an impassioned critique of the Irish Penal statutes and plea for an accurate “interior history” of Ireland.23 Working in Irish politics at the same period saw him active in quieting the reaction of the Dublin government to the so-called “Whiteboy disturbances.” These agrarian disturbances, mischaracterised as sectarian, implicated Burke’s own catholic relatives. Both the Irish past and the eighteenth-century present were essential to Burke’s thought. His views on America, India, and France, on property and prescription, may all be seen to reflect the Irish experience of colonialism, confiscations and plantations. Burke may even have considered writing an Irish history.24 His support of free trade may also have an Irish source. In his attempts at reforming Irish trade after entering Parliament, Burke sought to eliminate the external economic monopoly imposed by Britain. This was entirely consistent with the “patriot” ideology of the protestant Irish of the established church soon to be called the “Ascendancy.” But Burke also hoped to undermine the internal social monopoly of this Ascendancy. Underlying this was a deeper belief, expressed in the Abridgement, in the benefits of “communication” and social commerce, of which economic relationships were but a part. His hope, founded in this commercial humanism, was that a union of sentiment and manners, if not necessarily of politics, might be affected between Ireland and Britain. Scotland was an explicit comparative example: Ireland, Sir, pays a great deal more than Scotland; and is perhaps as much, and as effectually united to England as Scotland is. But if Scotland paid nothing at all, we should be gainers, not losers by acquiring the hearty cooperation of an active intelligent people, towards the increase of the common stock; instead of our being employed in watching and counteracting them, and their being employed in watching and counteracting us, with the peevish and churlish jealousy of rivals and enemies on both sides.25

“How much,” Burke asked, “have you lost by the participation of Scotland?”26 Similar views on economic and social commerce were later expressed by Adam Smith in his Inquiry into the Nature and Causes of the Wealth of Nations (1776). “Without a union with Great Britain,” he wrote, “the inhabitants of Ireland are not likely for many ages to consider themselves as one people.”27 Smith, student of Hutcheson and friend of Hume, had read and approved of the Enquiry and is said to have remarked that its

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author ought to have a chair on moral philosophy. Hume initiated the first correspondence between the two men by sending a copy of Smith’s Theory of Moral Sentiments (1759) to Burke.28 For his part, Burke wrote a favourable review of the work and subsequently a letter expressing his agreement with its method. “The author seeks,” he wrote for the foundation of the just, the fit, the proper, the decent; in our most common and most allowed passions; and making approbation the tests of virtue and vice, and shewing that these are founded on sympathy, he raises one of the most beautiful fabrics of moral theory, that has perhaps ever appeared…. it is rather painting than writing.29

Burke’s own sympathy with Smith is not surprising, as he had suggested a similar, though much less developed, theory in the Enquiry. The natural and historical foundations of law, implicit in Hume’s histories and Burke’s Abridgement, are made much more explicit in Smith’s Lectures on Jurisprudence (1762-3/6). While these were not published at the time, they provide the essential background for the Wealth of Nations. Study of the Scottish enlightenment has meant that the complexity of Smith’s political economy has been increasingly recognised. Burke has fared less well.30 While there is much in common between the two, Burke’s continuing support of the “honour ethic” and primogeniture puts him as close to Montesquieu as Smith.31 If the obligations underlying the “moral economy” he defended were admittedly “imperfect,” in both the practical and juridical senses, they were nevertheless a meaningful attempt at balancing a sense of private and public interest. 32 Burke and Smith were to remain friendly and the final edition of his Theory, written the same year as the Reflections show Smith expressing distinctly Burkean sentiments about the revolution in France.33 Hutcheson was also a significant influence on Scottish “Common Sense” philosophers. Numerous Scots associated with the school—which rightly or wrongly criticised Hume as a moral, rather than an epistemological, sceptic—saw Burke as a fellow traveller.34 Thomas Reid, the principal advocate of Common Sense philosophy, was perhaps the sharpest critic of both Hume and Locke. As Professor at Glasgow, he incorporated Burke’s views into his moral and legal philosophy and ended the preface to his Essays on the Intellectual Powers of Man (1785) with a long passage from Burke’s Enquiry.35 James Beattie, poet and Aberdeen Professor of Moral Philosophy, thought Burke “one of the most agreeable men I have ever seen.”36 His

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Essay on the Nature and Immutability of Truth in Opposition to Sophistry and Scepticism (1763) has aged poorly, but it was a favourite with Burke, Johnson, and even the king.37 Dugald Stewart, philosopher, political economist, and biographer of Reid and Smith, also knew Burke. He thought it extremely worthy of observation, that although his good sense has resisted completely the metaphysical mysteries of the schools, he has suffered himself to be led astray by a predilection for that hypothetical physiology concerning the connexion between Mind and Matter, which has become so fashionable of late years.38

If he was later critical, too, of Burke’s rhetoric, like Reid he could quote approvingly from the Enquiry and repeat Reid’s description of Burke as a “very elegant writer.”39 Finally, the Reverend Hugh Blair, Edinburgh Professor of Logic made use of the Enquiry in his course on Rhetoric and Belles Lettres.40 He sent a copy of the published lectures to Burke as “one who is not only so thorough a judge of Literature, but himself so Eloquent as Orator, and of whom ideas, in one part of my subject, I have considerably availed myself.”41 Another Scot who made a connection between Burke and Common Sense philosophers was James Boswell, advocate, later member of parliament, and an associate of many of the members of the Scottish enlightenment. Like Caleb Whitefoord, the Scottish wit and wine-merchant, Boswell met Burke through Samuel Johnson’s “Literary Club.” 42 Writing of the common sense philosophers in his Life of Johnson (1790), Boswell noted that he and Johnson stood talking for some time together of Bishop Berkeley’s ingenious sophistry to prove the non-existence of matter, and that every thing in the universe is merely ideal. I observed, that though we are satisfied his doctrine is not true, it is impossible to refute it. I shall never forget the alacrity with which Johnson answered, striking his foot with a mighty force against a large stone, till he rebounded from it, “I refute it thus.” Johnson’s action was a stout exemplification of the first truths of Pére Bouffier, or the original principles of Reid and of Beattie without admitting which we can no more argue in metaphysics, than we can argue in mathematics without axioms. To me it is not conceivable how Berkeley can be answered by pure reasoning; but I know that the nice and difficult task was to have been undertaken by one of the most luminous minds of the present age, had not politicks “turned him from calm philosophy aside.” What an admirable display of subtilty, united with brilliance, might his contending with Berkeley

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have afforded us! How must we, when we reflect on the loss of such an intellectual feast, regret that he should be characterised as the man, “Who born for the universe narrow”d his mind, And to party gave up what was meant for mankind?.”43

Though Boswell was plagued with uncertainty about their relationship, he attempted, quite unsuccessfully, to model himself on Burke.44 Both Boswell and Johnson disagreed, of course, with Burke’s Whig principles. In their journey through Scotland, however, the two discussed a fictitious faculty for a St. Andrews college. Boswell was “to teach Civil and Scotch Law,” “Mr. Johnson … Logic, Metaphysics, and Scholastic Divinity,” and “Burke, Politics and Eloquence.”45 Boswell had also considered biographies of both Burke and Henry Home, Lord Kames.46 Kames was the most important Scottish jurist of the century, an historian and moralist, an enthusiast of commerce and common sense, of “improvement” and legal reform. His Historical Law Tracts (1758) fused Hutcheson, Montesquieu, and Hume, emphasising social “union” as a product of a civilised society.47 Burke saw the judge’s Elements of Criticism (1762) as continuing the aesthetics of his Enquiry.48 As with Kames, information on Burke’s relationship with Adam Ferguson is similarly slight. Ferguson, Edinburgh Professor of pneumatics and moral philosophy, remained the most anxious of major Scottish thinkers about the effects of modern commerce. There are, however, interesting parallels between the thought of the two men. Much is made, for example, of Burke’s observation that “art is man’s nature.”49 The idea was long a commonplace among legal humanists, but Burke would have found the same sentiment in his copy of Ferguson’s Essay on the History of Civil Society (1767).50 A decade before the Essay, Burke had also collaborated with Englishman and Middle Temple fellow William Burke (no relation) on An account of the European Settlements in America (1757). The work showed a deep engagement with the same sources and comparative histories for which Ferguson was famous. Indeed, although the Essay is generally credited as the first published use of the “comparative” history or geography of the French Jesuit Lafitau in English, it was an explicit and important source for the Account. For Ferguson, the civil society—he uses the term as most did then, inclusive of the whole society—as a slow, precarious achievement of great complexity.51 It was, as Burke later emphasized, anything but a contract.52 Where other Scots often seemed to prioritise political economy, Ferguson

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and Burke insisted on the dependence of commerce on manners.53 Ferguson’s Remarks on a Pamphlet Recently Published by Dr. Price (1776), criticised the abstract politics of the Dissenting minister Richard Price, whose support of the revolution in France would inspire Burke’s Reflections.54 In his history of Rome, a first edition of which was owned by Burke, Ferguson wrote that The maxims of a Christian and a gentleman, the remains of what men were taught by those maxims in the days of chivalry, pervade every rank, have some effect in places of the least restraint; and, if they do not inspire decency of character, at least awe the profligate with the fear of contempt, from which even the most powerful are not secure.55

Included in a long footnote at the conclusion of the work, this suggests the value, however unintended the consequences, of “chivalry” to eighteenth-century manners.56 “Gallantry” and “chivalry” were, in fact, common terms of art in the eighteenth-century analysis of European history. Chivalry was an “otherdirected” union of gallant manners encouraged by Christian ethics and combining private honour and public interest. It was an important element, too, in William Robertson’s History of the Reign of the Emperor Charles V (1769).57 The work’s introductory section was a concise, “philosophical” history of European manners reflecting the increasing civilisation and “society” or association among men. In addition to a Montesquieuan assessment of the mediating role of an aristocracy, Robertson gave clergy a somewhat larger place in the making of European modernity than did his fellow Scots.58 Burke expressed a similar opinion in the Abridgement, a point of some importance to his defence of the “spirit of a gentleman and the spirit of religion” in the Reflections thirty years later.59 Robertson, a historian whose only peers were Hume and Edward Gibbon, was an occasional Moderator of the Church of Scotland, a member of the “Moderate” party, and Principal of the University of Edinburgh. It is unclear when the two met, but Burke wrote a favourable review of Robertson’s early History of Scotland (1757).60 He may never have known of Burke’s role, but Robertson acknowledged drawing from the Account of the European Settlements in America for his own History of America (1776) and praised Burke’s grasp of American issues.61 Receiving a copy of the American history from Robertson, Burke wrote: I have always thought with you, that we possess at this time very great advantages towards the knowledge of human Nature. We need no longer go to History to trace it in all its stages and periods . . . . [N]ow the Great Map

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of Mankind is unrolld at once; and there is no state or Gradation of barbarism, and no mode of refinement which we have not at the same instant under our View.62

The two seem, however, to have drifted apart in later years in response to events in France. In discussing Robertson and Blair, Alexander “Jupiter” Carlyle remarked that Robertson was warped by the Spirit of Party, and so much Dazzled by the Splendor of the French Revolution, That even his Sagacity was Impos”d on, and he Could not Listen to the Ravings of Burke as he Call”d them, which in Spite of the High Enthusiastick Strain of Eloquence in which they are Involv”d, Have prov”d almost Literal Predictions, and have Entitled their Author to be Call”d The Prophet of Nations.63

The revolution, or Burke’s response to it, would prove an important turning point in several of his Scottish relationships.64 Given his friendship with Robertson, it is interesting to note that the Scottish jurist-historian Gilbert Stuart was also on friendly terms with Burke. Stuart’s hostility towards Robertson, who he blamed for vetoing his candidacy for the Professorship of Public Law at Edinburgh, was deep and well-known. Unlike the Scottish tradition, at mid-century less than half of Irish common lawyers received a university education. Lectures by William Blackstone at Oxford and Francis Stoughton Sullivan in Dublin began in the decade after Burke left the Middle Temple.65 Interestingly, Sullivan was a noted civilian, an Irish scholar who—like Burke—collected Irish language manuscripts for Trinity College, Dublin, and a friend of the historian O’Conor. In fact, Burke was working in Dublin as personal secretary to the Irish chief secretary, William Hamilton at the same time that Sullivan was delivering his lectures.66 The second, posthumous edition of these lectures was edited by Stuart, who included with it his own “Discourse Concerning the Laws and Government of England.” The book’s “advertisement” note it was a Pleasure to the Editor to reflect that he has endeavoured to pay a Tribute of Respect to the Writings of a virtuous Man and an ingenious Lawyer, whom an immature Death had ravished from his Friends and from Society.67

Characteristically, however, Stuart privately believed his own contribution was “excellent, & of more worth than the whole book.”68 Both 41


Stuart’s View of Society in Europe in its Progress from Rudeness to Refinement or Inquiries Concerning the History of Law, Government, and Manners (1778) and Sullivan’s work, with an inscription to Burke, are included in a single entry in his library catalogue.69 As Sullivan was dead by this time, the inscription is presumably Stuart’s. Later, his appointment as editor of the Political Herald in 1785 put him in regular contact with Burke and the opposition, before his early death the following year at the age of forty-two. Both Burke’s “Fragment” on law and his abridged English history avoided the more whiggish elements of Blackstone, Sullivan, or Stuart. On the antiquity of the Commons, on “Lawgivers,” the Norman conquest and the Magna Charta, he is critical of contemporary Whig mythology. Indeed, contrary to common—or common law—assumptions about Burke, he saw English jurisprudence progressing from a “rude and barbarous” past through its “communication” with European laws and manners. History was central to this understanding. “What can be more instructive,” he wrote: than to search out the first obscure and scanty fountains of that jurisprudence which now waters and enriches whole nations with so abundant and copious a flood—to observe the first principles of RIGHT springing up, involved in superstition and polluted with violence, until by length of time and favourable circumstances it has worked itself into clearness:—the Laws, sometimes lost and trodden down in the confusion of wars and tumults; and sometimes over-ruled by the hand of power; then, victorious over tyranny; growing stronger, clearer, and more decisive by the violence they had suffered; enriched even by those foreign conquests, which threatened their entire destruction; softened and mellowed by peace and Religion; improved and exalted by commerce, by social intercourse, and that great opener of the mind, ingenious science?70

Written the year before Kames” Historical Law Tracts (1758), Burke linked, as Kames did, the historical method with a “liberal” education. Jurisprudence, to be enlightened, had to go beyond law, both pedagogically and philosophically. In the 1790s, having met David Dalrymple, Lord Hailes of the Court of Session, and receiving his translation of Tertullian’s Apology, Burke wrote: I never think of some of you Scotch Gentlemen of the robe without being a little ashamed for England. Our Barr does not abound in general Erudition—and I am every day more and more convinced that they are not the better professional men for not being more extensively learned.71

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Like Kames, Hailes was a jurist, historian, moralist, and critic. Burke thought him, “the pleasantest, the most good-humord, the most unaffected, and the most communicative Man of Letters I ever conversed with.”72 The same dinner party at which Burke met Hailes included William Pitt, the Scottish Secretary of State Henry Dundas, and Scottish advocate Henry Mackenzie. Mackenzie, best known for his sentimental novel The Man of Feeling (1771), had already met Burke through their mutual “society” connections.73 His contribution to Scottish periodicals was such that Sir Walter Scott called him a “Scottish Addison,” but he also wrote political works in support of Dundas and through this association was later made Comptroller of Taxes for Scotland.74 His Letters of Brutus to Certain Celebrated Political Characters (1790-1) were initially critical, from a Tory perspective, of the Reflections and he later abridged a negative biography of Thomas Paine. Mackenzie would also chair a committee designed to determine the authenticity of James MacPherson’s Ossian. Based on Celtic legends common to Ireland and Scotland and presented as the works of an ancient Gaelic poet, MacPherson’s Fingal and Temora (1762-3) became the subject of great controversy and fame throughout Europe. Given his connections to the most forceful critics of the work—including Johnson and O’Conor—Burke’s initial response was surprisingly enthusiastic, at least about the merits of the writing. There was, he wrote, “far less doubt of the merit, than of the authenticity” of the work.75 Indeed, they preserved “the majestic air, and native simplicity of a sublime original.”76 He even discussed the works with Hume and both only slowly came to accept it as a forgery.77 Another Scottish story has Burke, through his knowledge of Irish, discussing the stories with an old Scot speaking Gaelic.78 It has been suggested that Ossian’s curious blend of politeness and primitivism owed much to the “joy of grief” at the heart of Burke’s Enquiry.79 Macpherson was also a historian, who claimed the Irish derived from the Scots, one of a number of points on which O’Conor corrected him. With his cousin John Macpherson, James would act as an apologist for the Indian interests Burke attacked in the Impeachment of Warren Hastings.80 He had even dedicated the works of “Ossian” to John Bute (Lord Bute), the Scottish mentor to the king criticised by Burke and the Rockingham Whigs. Burke’s role as Lord Rector of Glasgow University—the first selected from beyond Scotland—brought him into contact with a number of other Scottish academics. He is said to have remarked that it was “much the greatest honour I have ever received.”81 In this capacity, he visited Scotland in 1784 and 1785, becoming briefly involved in the rough and tumble of 43


university politics.82 At the same time, he seems to have belonged to both Edinburgh’s Royal Society and Glasgow’s “Literary Society.”83 William Richardson, Glasgow Professor of Humanities sent him several of his works on Russia and Shakespeare and appears to have followed Burke’s suggestion to write an “Essay on the faults of Shakespeare” (1783).84 Andrew Dalzel, classical scholar and historian of the University of Edinburgh was another one who accompanied him during his visits to Scotland.85 On his return to Scotland in 1785, Burke paid a visit to John Campbell, the duke of Argyll, at Inverary Castle. He also called on the Reverend John Logan, Scottish poet, minister, historian, and editor of the English Review (and champion of Blair and Ferguson). Burke thought a poem attributed to him, the “Ode to a Cuckoo,” was the “most beautiful lyric in the language.”86 In addition to his Poems (1781) and Sermons (1790), Logan published Elements of the Philosophy of History (1781) under the auspices of Robertson, Ferguson, and Blair. The work, intended for students, is fragmentary, but exemplifies the communitarian emphasis of Scottish thought. Joining Hutcheson and Montesquieu, he wrote: The arrangements and improvements which take place in human affairs result not from the efforts of individuals, but from the movement of the whole society. From want of attention to this principle, History has often degenerated into the panegyric of single men, and the worship of names. Lawgivers are recorded, but who makes mention of the people? . . . No constitution is formed by a concert: No government is copied from a plan. Sociability and policy are natural to mankind. In the progress of society, instincts turn into arts, and original principles are converted into actual establishments. . . . Rising, in this manner, from Society, all human improvements appear in their proper place, not as separate and detached articles, but as the various, through regular phenomena of one great system. Poetry, Philosophy, the Fine Arts, national manners and customs, result from the situation and spirit of a people. All that legislators, Patriots, Philosophers, Statesmen, and Kings can do, is to give a direction to that stream which is ever flowing. 87

A subsequent work, his last, was the Review of the Principal Charges against Warren Hastings Esquire, Late Governor General of Bengal (1788), in which he appears critical of the Impeachment. Logan, like Stuart, died an early death (he was forty). In Scotland, Burke had breakfast with Smith in Edinburgh and with Boswell, Dalzel, James Maitland (lord Maitland), and Colonel James Stuart 44


in Glasgow. Burke had corresponded, too, with the Colonel’s brother, Andrew Stuart, MP and Edinburgh lawyer.88 Far more important, however, was Burke’s connection with John Millar. Millar, Glasgow Professor of Civil Law, was a former pupil of Smith, friend of Hume, and tutor to Kames” children. His Origins of the Distinction of Ranks (1771), like the hints in Burke’s Abridgement, reflected the “natural” development and decline of social and sexual hierarchies.89 He enjoyed great success at the university and beyond. Arthur Browne, Trinity Professor of Civil Law—and yet another Burke correspondent—wrote that Millar “has acquired most deserved celebrity, and has attracted many of the youth of this country, as well as of England within the sphere of his instruction.”90 Millar’s correspondence was, in the 1780s, effusive in his praise of Burke. When other magistrates are chosen by us from local or temporary considerations, we wish to consider you as our permanent literary head, to whom we may apply in cases of difficulty and from whom we derive credit and reputation as a seat of learning. For my own part I must look upon it as one of the most fortunate circumstances of my life that brought me into your acquaintance by connecting me with you as a member of the same society, a connexion which I cannot bring myself to think of reliquishing.91

This is not surprising given the similar fusion of “civic” and “civil” languages in jurisprudence.92 Millar was, however, a more radical, and no less passionate, Whig. Millar did “relinquish” his connection to Burke. Later editions of his Historical View of the English Government (1787), dedicated to Charles Stuart Fox, painted Burke’s Appeal from the New to the Old Whigs (1791), and the split of a large block of Burkean Whigs from Fox, as an apostasy of the Whig faith. Burke received a very different reaction from the Edinburgh Professor of Civil Law, John Wilde. Wilde declared himself a Rockingham Whig and wrote consciously in emulation of Burke. Of less direct importance to the Scottish enlightenment, he was, with Burke and Gibbon, an important link with the German “historical school” of law.93 By the mid-1790s, Wilde began to suffer from mental illness. Burke received increasingly incoherent harangues from him on Catholicism and the Pope as anti-Christ.94 Despite his own sympathies, Burke eventually helped to organise a pension for Wilde. Wilde had earlier noted, in the introduction of his Address to the Lately framed Society of the Friends of the People (1793), his concern for the young James Mackintosh. He recognized, with many contemporaries, that

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the Scot’s Vindicae Gallicae (1791) was among the most closely reasoned critiques of the Reflections. As events unfolded in France, however, Mackintosh came to agree with Burke and visited him at Beaconsfield as something of a disciple. He subsequently studied at Lincoln’s Inn and wrote a Discourse on the Study of the Law of Nature and of Nations (1799) for presentation there. In it, he concluded: There is not, in my opinion, in the whole compass of human affairs, so noble a spectacle as that which is displayed in the progress of jurisprudence; where we may contemplate the cautious and unwearied exertions of a succession of wise men through a long course of ages; withdrawing every case as it arises from the dangerous power of discretion, and subjecting it to inflexible rules; extending the dominion of justice and reason, and gradually contracting, within the narrowest possible limits, the domain of brutal force and of arbitrary will.

This passage, which so much resembles that cited earlier from Burke95 , continues This subject has been treated with such dignity by a writer who is admired by all mankind for his eloquence, but who is, if possible, still more admired by all competent judges for his philosophy; a writer, of whom I may justly say, that he was “gravissimus et dicendi ete intelligendi auctor et magister;” that I cannot refuse myself the gratification of quoting his words: — “The science of jurisprudence, the pride of the human intellect, which, with all its defects, redundancies, and errors, is the collected reason of ages combining the principles of original justice with the infinite variety of human concerns.” 96

Mackintosh later served in parliament, lectured on law and politics and in 1820 was offered, though he declined, the Chair in Moral Philosophy at Edinburgh. Burke’s most important Scottish political associate was Henry Dundas, Lord Advocate of Scotland and later Viscount Melville. While Dundas was initially a political rival, he became an important ally during the Hastings Impeachment and later in French affairs.97 As friend and politician, he was the recipient of many Burke letters, especially on Ireland.98 As Secretary of State, he also received the more long-winded correspondence of Burke’s son Richard, then agent for the Irish Catholic Committee. With Hailes, Mackenzie, and Logan, Dundas was part of a circle of Moderates linked by Edinburgh literary clubs and periodicals and fusing traditional civic concerns about the new “monied interest,” paper currency, electoral reform, 46


and entails, with a principled defence of landed property.99 This is surprisingly similar to Burke’s own position. If the terminology of “Moderate” and “Popular” parties was unique to Scotland, the tensions were not. It is important in studying Burke, particularly in the context of the “Enlightenment,” to recognise that popular politics throughout Britain were as often as reactionary as radical.100 In the late 1770s, it was the patrician but reforming Rockingham Whigs who introduced a bill to remove civil disabilities on English Catholics. Dundas, with Robertson and the Moderate clergy and press, supported application of the Bill to Scotland.101 On rumour of these changes, however, riots erupted, most notably in Glasgow. With some humour, Burke wrote Boswell: I thought it possible, that even at the other side of the Tweed, a man might be allowed to say his prayers in Latin without any gross violation of the native, inherent, essential privileges and immunities of the broad Scotch. I admit, that the Ears of heaven may be more delighted with these accents; yet as the other Tongue may be as intelligible there (though not so pleasing) I think a little of it might be borne at Edinburgh without making a very serious quarrel of the matter…. the American rebellion is more to my Taste than that which you are cooking in the North. I think it [behoves] as well to resist an act of Taxation as an act of Toleration; and it would hurt me rather more to have the Excise [tax] in my own house, than the Mass in my Neighbours. I take it for granted, that there are good reasons for every thing you do. But I am apt to be as much puzzled with moral Mysteries as others are with religious.102

With far less humour, he criticised, both publicly and privately, the “Popular” leaders he believed responsible for inciting the riots. These included Dr. John Erskine, Doctor of Divinity at the University of Glasgow, leader of the evangelical wing of the Church of Scotland, and son of the jurist of the same name. “I could not prevail on myself to bestow on the Synagogue, the Mosque or the Pogoda,” Burke wrote him, “the language which your Pulpits lavish upon a great part of the Christian world.”103 Burke spoke in Parliament in favour of the “Petition of the Roman Catholics of Scotland for Relief.”104 He also supported the efforts of Scottish catholic bishop George Hay, whose library was burned and chapel plundered, on their behalf. Bishop Hay, who had earlier met to discuss a Catholic loyalty address, dined at Burke’s home in his visit to England.105 Subsequent antiCatholic riots in England also had a Scottish connection in George Gordon’s Protestant Association.106 While such labels are anachronistic, on issues like slavery, trade, criminal law, and religious tolerance, it was Burke’s 47


constituents, no less than the Scottish rioters, who were “conservative.”107 In addition to Burke, who is said to have met the Gordon rioters sword in hand, one of the targets of the riots was William Murray, Lord Mansfield, whose home was destroyed. Mansfield, from a family of Scottish Jacobites, had studied Roman and Romano-Scots law before becoming one of the greatest of eighteenth-century common lawyers. Unlike Burke, Mansfield had little sympathy for the American colonists and the “Messieurs Burkes”—probably Edmund, his brother Richard, and William—wrote against his views on the war, commenting along the way on both Irish and Scottish constitutionalism.108 Mansfield had also jailed, of course, John Wilkes, whom Burke and the Rockingham Whigs supported on principle, if not personally. In the subsequent jurisprudential debate over the role of the jury, they supported Lord Camden rather than Mansfield. Perhaps most damning for Burke, Mansfield was, like Blackstone, a Tory and linked to Lord Bute. While Burke never descended to the Anti-Scottish tirades of many Whigs, his writings on behalf of the Whigs criticised Bute’s influence on the king and the king’s on parliament. For his part, Mansfield suspected Burke to be the author of Junius” Letters (1768-72), critical of him and around which another debate on libel arose.109 In the Hastings impeachment, Burke famously and approvingly quoted Mansfield’s equitable approach to the rules of evidence. The judge was thought, however, to be sympathetic to Hastings and the praise may have been more rhetorical than real. Earlier when Mansfield was denying the jury a role in determining questions of law, Burke wrote: I have always understood, that a superintendence over the doctrines as well as the proceedings of the courts of justice, was a principal object of the constitution of this House; that you were to watch at once over the lawyer and the law; that there should be an orthodox faith as well as proper works: and I have always looked with a degree of reverence and admiration on this mode of superintendence. For being totally disengaged from the detail of juridical practice, we come something perhaps the better qualified, and certainly much the better disposed, to assert the genuine principle of the laws; in which we can, as a body, have no other than an enlarged and a public interest.110

In his delivered speech, he said Juries ought to take their Law from the Bench only; but it is our Business that they should hear nothing from the Bench but what is agreeable to the

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principles of the constitution. The Jury are to hear the Judge; the Judge is to hear the Law where it speaks plain, where it does not he is to hear the Legislator.111

Contrary to what may be seen as either Blackstone’s “originalism” or Mansfield’s “activism,” Burke saw legislators, not judges, as the proper agents of legal reform. Indeed, when Burke writes of being “in all our changes … never wholly old or wholly new,” he was not discussing common law courts, but the “principle of renovation, and union of permanence and change” in the “theory of parliaments.”112 Burke’s personal civility towards Mansfield may have been influenced by the judge’s relation, by marriage, to Lord Rockingham. There is also, however, a genuine sense in which Burke sympathised with a principle-centred jurisprudence, though one significantly less certain than Mansfield’s. As early as the Enquiry, Burke saw “general principles” as essential in guiding or coordinating the results of a “more general and perfect induction.”113 This resembles the growth of the common law, but it has as much to do with the corporate growth of science. Such principles, broader than legal rules or rights and more flexible to circumstance, were, in fact, one of the defining features of civilian jurisprudence.114 Burke would have known of the importance of such principles to Scottish law. Smith had suggested as much as early as the Theory of Moral Sentiments.115 In the same year as the publication of the Theory, Burke reviewed George Wallace’s System of the Principles of the Laws of Scotland (1759). The work “endeavoured to do, what, if it had been done with regard to the law of England, might be considered as an union of lord Coke, with Grotius and Puffendorf.”116 Given that many of the materials for review were supplied to Burke personally and the oblivion into which Wallace’s book quickly passed, it would be interesting to see how it came to hand.117 In any event, the flexibility of a principle-centred jurisprudence and what we might now be called virtueethics, suited both Burke and the Scottish social “science of man.” Generally speaking, neither for the civilians nor for Burke, was precedent anything like a simple application of legal rules.118 Burke also corresponded with John Dalrymple, the Earl of Stair, and his cousin, the jurist of the same name, both descendants of the great Scot jurist James Dalrymple, lord Stair and collaterals of Hailes. Before the Scottish riots, Sir John Dalrymple had, with Bishop Hay, sought to raise catholic regiments for the American war in exchange for legal concessions to them.119 John Dalrymple, the jurist and later baron of the exchequer,

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was the author of the Essay Towards a General Theory of Feudal Property in Great Britain (1757). Dedicated to Kames and limited to questions of real property, it was the first work of Scottish jurisprudence to reflect the influence of Montesqueiu. Dalrymple was also a historian of some talent, most notably of the Memoirs of Great Britain and Ireland (1771).120 Dalrymple’s Considerations on the Policy of Entails in a Nation (1764) stressed, as Burke would, the continuing importance of landed property in stabilising the dynamic energies of commerce.121 Both emphasised, too, the links between property law and the maintenance of the family relations, a point at the core of his contemporaneous Tracts (c.1759-65).122 Dalrymple also gave Burke advice on economic matters. Burke, in turn, provided materials for a work on Indian affairs. While the result was largely sympathetic to Burke’s views, Dalrymple’s initial draft made a strong assertion of the constitutional powers of the Crown.123 With the help of the Duke of Portland and Gilbert Elliot, later the Earl of Minto, publication of the work was delayed until changes could be made that would be less offensive to Burke’s Whig principles. Elliot, for whom Hume had once acted as guardian, studied law at Lincoln’s Inn and was, at various times, a member of parliament for Roxburghire, Berwick-on-Tweed, and Helston. Initially opposed to Burke’s politics, he was converted by his speeches on America and economic reform. Elliot was to become an especially important associate in the Hastings Impeachment and, in the early nineteenth-century, a distinguished Indian Governor-General. If he could find Burke frustrating at times, he called the Reflections a “new and better Aristotle,” adding shortly afterwards that he was “not the only Scotchman who loves and admires you.”124 He was also, with Dundas, an important influence on the eventual political union of 1800—ultimately compromised by the administration’s failure to effect Catholic relief—between Great Britain and Ireland.125

# The Scottish emphasis on culture and manners, rather than the great legislators of historiographical and jurisprudential myth, was related to, among other things, the elimination of clearly Scottish public spheres in the aftermath of Union. Burke shared a basically similar view. Four decades after leaving London’s Middle Temple, he wrote that Manners are of more importance than laws. Upon them, in a great measure, the laws depend. The law touches us but here and there, and now and then.

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Manners are what vex or soothe, corrupt or purify, exalt or debase, barbarize or refine us, by a constant, steady, uniform, insensible operation, like that of the air we breathe in.126

Manners were the expression, too, in the particular community and history, of natural human dispositions. Consequently, law was, as Burke wrote in the Reflections, “beneficence acting by a rule.”127 In recognising this, Burke may be seen to come full circle. In Scotland, his fellow hiberni Hutchinson, coming from moral philosophy, challenged the rationalism and egoism of “modern” natural lawyers. Trained in the law, Burke consistently leavened the “vulgar” legalisms of contemporary political and moral theory with a variety of other public languages—humanist, polite, civic, civil, and latitudinarian. For both men, this may have an Irish source.128 Manners necessarily achieve polemical precedence over laws and even commerce when there appeared, as in their own country, law corrupted by faction and commerce constrained by monopoly. notes 1.

2. 3.

4.

5. 6.

7.

See T.D. Campbell, “Francis Hutcheson: Father of the Scottish Enlightenment” in R.H. Campbell and A.S. Skinner (eds), The Origins and Nature of the Scottish Enlightenment: Essays (Edinburgh, 1982). The title is not surprisingly disputed. On Hutcheson’s use of legal language, see, e.g., Inquiry into the Origin of our Ideas of Beauty and Virtue (London, 1725), 24950. See John W. Cairns, “Legal Theory” in Alexander Broadie (ed.), The Cambridge Companion to the Scottish Enlightenment (2003). There are recurrent efforts to remind the public of the “Irish” Burke. Best-known is Conor Cruise O’Brien’s The Great Melody: A Thematic Biography and Comment Anthology of Edmund Burke (London, 1992), but he somewhat overstates the case. Cf. Michael Fuchs, Edmund Burke, Ireland, and the Fashioning of Self (Oxford, 1996). On Ireland generally, see S.J. Connolly, Religion, Law and Power: The Making of Protestant Ireland 1660-1760 (Oxford, 1992). From the “Fragment.—An Essay towards an History of the Laws of England” in The Writings and Speeches of Edmund Burke, gen. ed. Paul Langford (Oxford, 1981–), i. 323 (hereinafter “WS”). See Seán Patrick Donlan, “Beneficence acting by a rule: Edmund Burke on law, history, and manners,” (2001) 36 Irish Jurist (n.s.) 227. See, e.g., James Prior, Life of the Right Honourable Edmund Burke (London, 1854) and Peter Burke, The Public and Domestic Life of the Right Hon. Edmund Burke (London, 1853). Hutcheson also wrote Philosophiae Moralis Institutio Compendiaria, Ethices et Jurisprudence Naturalis Elementa Continens Lib III (1742) translated as A Short Introduction of Moral Philosophy (1747). While Hutcheson attended university in Glasgow and later became an influential lecturer there, the works for which he is best known were written in Dublin. See Michael Brown, Francis Hutcheson in Dublin, 1719-1730: The Crucible of His Thought (Dublin, 2002). “To Dr. H——n (6-19 Feb 1747/8)” in WS i.30 and Northampton, Fitzwilliam (Burke)

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8.

9. 10.

11.

12.

13.

14. 15.

16. 17. 18. 19.

20.

Papers A. xxiv. 108-9 (hereinafter “NRO”). Hutcheson’s son was a contemporary of Burke’s at Trinity. The Enquiry was important both to British and continental thought. Immanuel Kant said, for example, that Burke “deserves to be called the foremost author” of the empirical approach to aesthetic judgment. Critique of Judgement (Oxford, 1952), J.C. Merideth (tr.), 130. It was especially influential to romanticism and the German philosophers Gotthold Lessing and Johann Gottfried Herder. Cited in A.P.I. Samuels, The Early Life Correspondence and Writings of the Rt. Hon. Edmund Burke (Cambridge, 1923) 212. Hutcheson’s System is included in posthumous catalogues of Burke’s library. One catalogue is in Seamus Deane (ed), Sale Catalogues of Libraries of Eminent Persons: Volume 8—Politicians (London, 1973). Another larger listing, the Catalogue of the Library of the Late Right Hon. Edmund Burke, is in Oxford’s Bodleian Library (Ms. Eng. Misc. d. 722). I will refer to these as the “Deane” and “Bodleian” catalogues respectively. Like Hobbes, Hume tended to limit “justice” to the juridical, rather than a moral, sense. In Hume’s case, this was, in part, to distinguish natural “sympathy” or “fellow-feeling” and any explicit moral code generated on the basis of pure reason. This parallels, too, the distinction of “modern” natural lawyers between “imperfect” and “perfect” rights and, in that vernacular, might be best thought of as “imperfect” and “perfect” justice. Generally speaking, “justice” continued to be used for “beneficence” as well as for the legal order as a whole. See esp. Richard B. Sher, “From Troglodytes to Americans: Montesquieu and the Scottish Enlightenment on liberty, virtue, and commerce,” in David Wootton (ed.), Republicanism, Liberty, and Commercial Society, 1649-1776 (Stanford, 1994). In his “On Edmund Burke’s doctrine of prescription; or, an appeal from the new to the old lawyers,” (1968) 11 Historical Journal 35, Paul Lucas rather misses Burke’s rhetorical use of the language of prescription, but convincingly links Hume and Burke in a mutual belief in the doctrine’s foundation in human nature and attachment. For an interpretation of Burke’s doctrine of prescription in terms of a teleological conception of human nature and the state, cf. Francis Canavan, Edmund Burke: Prescription and Providence (Durham, NC: Caroline Academic Press, 1987), chap. 5. On these issues, see esp. Nicholas Phillipson, Hume (London, 1989). 1761 Annual Register 301 (second pagination). The Annual Register is a valuable source, but its anonymity requires some care. Burke’s involvement with the journal becomes increasingly unlikely after his entry into Parliament. See James E. Tierney, “Edmund Burke, John Hawkesworth, the Annual Register, and the Gentleman’s Magazine,” (1978) 42 Huntington Library Quarterly 57. These are included as “Fragment.—An Essay Towards an History of the Law of England” and An Essay towards an Abridgement of the English history, WS i. 322-31 and i. 332-552. WS i. 358. See Prior, 60-1. Hume relied heavily on the account of Sir John Davies (1567-1624?). See Donlan, “‘Little better than cannibals’: Sir John Davies and Edmund Burke on property and progress,” (2003) 54 Northern Ireland Legal Quarterly 1 and gen. Hans S. Pawlisch, Sir John Davies and the Conquest of Ireland (Cambridge, 1985). Shortly after their first meeting, the two men quarreled about the rebellion. As recounted by any early (Scottish) biographer, Burke “considered himself, though no Catholic, as referred to on the subject of the massacre.” Robert Bisset, Life of Edmund Burke, (2nd ed. London, 1800), ii. 425-6. Hume may have aimed a later passage on the rebellion at Burke. “There are indeed three events in our history,” he had written, “which may be regarded as

52


21.

22. 23. 24.

24. 25. 26.

27.

28.

29.

30.

touchstones of partymen. An English Whig, who asserts the reality of the popish plot, an Irish Catholic, who denies the massacre in 1641, and a Scotch Jacobite, who maintains the innocence of queen Mary, must be considered as men beyond the reach of argument or reason, and must be left to their prejudices.” The History of England, from the Invasion of Julius Caesar to the Revolutions of 1688 (Indianapolis, 1778 edn. [originally 1762]), iv. 395. Burke sought, with the Scottish historian Tobias Smollet, O’Conor, and Curry to persuade Hume to reconsider his account. Despite these efforts, Hume made only minor adjustments in future editions. See David Berman, “David Hume on the 1641 Rebellion in Ireland”, (1976) vxv Studies 101. Burke arranged for Smollet to review Curry’s Historical Memoirs of the Irish rebellion (1758). Smollet was the author of the Complete History of England (17578) as well as The Expedition of Humphry Clinker (1771). O’Conor also suggested that Smollet was attempting a history of Ireland. He believed the same of Thomas Nugent, translator of the works of Montesquieu, Rousseau, Burlamaqui, and Voltaire, recipient of an honorary LL.D from Aberdeen (1765), and perhaps a distant relative of Burke by marriage. WS i. 330. See Burke’s “Tracts Relating to Popery Laws” in WS esp. ix. 478-9. See John C. Weston, Jr., “Edmund Burke’s Irish History: A Hypothesis” (1962) 77 Publications of the Modern Language Association of America 397 and Walter D. Love, “Charles O’Conor of Belanagare and Thomas Leland’s “philosophical” history of Ireland,” (1962) 13 Irish Historical Studies 1. Burke “accidentally” discovered manuscripts on Brehon law, originally collected by the Welshman Edward Lhuyd, in the home of his Scottish friend Sir John Seabright and sent them to Leland. See Love, “Edmund Burke, Charles Vallancey, and the Seabright manuscripts,” (1961) 95 Hermathena 21. See Burke’s “Tracts Relating to Popery Laws” in WS esp. ix. 478-9. From “Two Letters on the Trade of Ireland (23 April 1778)” in WS ix. 511 Id. There exist two very interesting essays on “The Conduct of Lord Mansfield” written by “Messieurs Burkes”—probably Edmund, William, and Burke’s brother Richard—under the pseudonym “Valens.” Included in John Almon’s Biographical, Literary, and Political Anecdotes (3 vols, 1797), iii. 152-76, the essays compare the American situation with that of both Ireland and Scotland. Inquiry into the Nature and Causes of the Wealth of Nations (Oxford, 1993 [1776]), 461. Wealth is included in the Deane catalogue. L.M. Cullen has suggested that “there are passages in Adam Smith’s Wealth of Nations ... that seemed framed in Burkean language, suggesting ... access to a paper by Burke that is now lost.” “Burke’s Irish views and writings” in I. Crowe, Edmund Burke: His Life and Legacy (Dublin, 1997), 71. Hume sent it in Smith’s name, perhaps intentionally for review in the Annual Register. See James Y.T. Grieg (ed.), The Letters of David Hume (Oxford, 1969 (2 vols.)), i.303, 312. In general, the personal, philosophical, and political relationships between Burke, Hume, and Smith remain inadequately explored. See, however, D. Miller, Philosophy and Ideology in Hume’s Political Thought (Oxford, 1981), 196-204. 1759 Annual Register 485. The entire first chapter (“Of sympathy”) is extracted. See also The Correspondence of Edmund Burke (Cambridge, 1980 (10 vols), hereinafter “C”), Thomas Copeland (gen. ed.), i. 129-30. Donald Winch has argued that the “main obstacle” in understanding Smith is the “liberalcapitalist perspective.” Adam Smith’s Politics: An Essay in Historiographic Revision (Cambridge, 1978), 165. But Winch may make a similar mistake with Burke in “The Burke-Smith Problem and Late Eighteenth-century Political and Economic Thought,” (1985) 28 Historical Journal 231 and Riches and Poverty: An Intellectual History of Political Economy in Britain, 1750-1834 (Cambridge, 1996), esp. 214 by failing to contextualize Burke’s admittedly shrill “Thoughts and Details on Scarcity (1795)” within his other writings. It was after all, Burke,

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31. 32.

33. 34.

35.

36. 37.

38. 39.

40. 41. 42. 43. 44.

45.

46.

47.

not Smith, who served as a legislator for thirty years, offering more than the consolations of philosophy. Cf. Charles de Secondat, Baron de Montesquieu, The Spirit of the Laws (Chicago, 1952 [1752]), Thomas Nugent (tr.), revised by J.V. Prichard, iii. 7. See E.P. Thompson, “The Moral Economy of the English Crowd in the Eighteenth Century,” Past & Present 50 (1971) 76. Cf. Thomas Barlett, “An End to Moral Economy: The Irish Militia Disturbances of 1793” in C.H.E. Philpin, Nationalism and Popular Protest in Ireland (Cambridge, 1996). See, e.g., Smith, Theory of Moral Sentiments (Indianapolis, 1976 [1790 edn.]), 233. Like so many statements about Hume, this is a contentious issue. I follow those interpretations of Hume that minimise the gap between him and Common Sense philosophers. See esp. David Fate Norton, David Hume: Common Sense Moralist, Sceptical Metaphysician (Princeton, 1982). Cf. James Moore, “Hume and Hutcheson” in M.A. Stewart and J.P. Wright, Hume and Hume’s Connexions (Edinburgh, 1994). The Bodleian catalogue lists Hume’s Essays and History of England. See the Preface to Reid’s Essays on the Intellectual Powers of Man (1785) in The Works of Thomas Reid (Edinburgh, 1895), William Hamilton (ed.), i. See also Hamilton, 498. Reid’s “Essay on the Importance of an Inquiry into the Human Mind” was printed in 1764 Annual Register 190 (second pagination) and his Essay on the Active Powers of the Human Mind (1788) includes a discussion of justice and rights that Burke might have found analogous to his own views. See Melvin Dalgarno, “Reid’s Natural Jurisprudence: The Language of Rights and Duties” in V. Hope, Philosophers of the Scottish Enlightenment (Edinburgh, 1984). R.S. Walker (ed.), James Beattie’s London Diary 1773 (Aberdeen, 1946). The second edition was reviewed in 1771 Annual Register 252 (second pagination), his Dissertations Moral and Critical (1783) in 1783 Annual Register 207 (second pagination). The Dissertations and “Beattie’s Essays” are included in the published catalogues of Burke’s library. Burke was also on familiar terms with Sir William Forbes, the author of An Account of the Life and Writings of James Beattie. The Collected Works of Dugald Stewart, esq., F.R.SS. (Bristol, 1994 [1855]), William Hamilton (ed.), v. 213. See Stewart’s “Account of the Life and Writings of Thomas Reid” in The Works of Thomas Reid, 29, 219, and 498 (Reid). See also The Collected Works of Dugald Stewart, esq., F.R.SS., x. 229-31 See Blair, Lectures on Rhetoric and Belles Lettres (Carbondale, 1965 [1783]), H.F. Harding, (ed.), 55, included in the Bodelian catalogue. A letter from Blair to Burke (24 May 1783) included in the Burke Papers of the Wentworth Woodhouse Muniments at the Sheffield Archives, WWM Bk P 1/1806. See Bryant, 201 and the letter from Whitefoord (c.5 May 1774) at C ii.535-7. Life of Johnson (Oxford, 1998 [1791]), 333-4. (citing Goldsmith’s “Retaliation”). See Frank Brady, “Introduction to the Boswell-Burke Correspondence” in George M. Kahrl, Rachel McClellan, Thomas W. Copeland, James M. Osborn, and Peter S. Baker, The Correspondence of James Boswell with David Garrick, Edmund Burke, and Edmond Malone (London, 1986). Boswell, Journal of a Tour of the Hebrides with Samuel Johnson, LL.D., (London, 1963 [1773]), Frederick A Pottle and Charles H Bennet (eds), 78. Johnson’s Journey to the Western Islands of Scotland is listed in Burke’s “Bodelian” library catalogue. Boswell also wrote, and sent to Burke, A Letter to the People of Scotland on the Present State of the Nation (1783) in which he disagreed with Burke’s views on India. He wrongly suspected, as he did repeatedly, that this had led to a personal breech between the two. See Historical Law Tracts quoted in William C. Lehmann, Henry Home, Lord Kames, and the

54


48. 49. 50.

51.

52.

53.

54.

55. 56.

57.

58.

59. 60.

Scottish Enlightenment: A Study in National Character and in the History of Ideas (The Hague, 1971). Kames” broad view of property and prescription was expressed as early as Essays on Several Subjects of Law (1732). Its section on “Custom and Habit” is particularly interesting in light of Burke’s later political writings. It is the only work by Kames included in the library catalogues. “An appeal from the new to the old Whigs (1791)” in The Works and Correspondence of the Right Honourable Edmund Burke (London, 1852 [8 vols.]), iv. 466. “We speak of art distinguished from nature,” Ferguson wrote, “but art itself is natural to man.” Essay on the History of Civil Society (Cambridge, 1995), 161. Burke may have reviewed the work and the quote is included in the extract in 1767 Annual Register 308 (second pagination), 311 (second pagination). The Essay is on the Bodleian library list. While Peter J. Stein’s Legal Evolution: The Story of an Idea (Cambridge, 1980) is an otherwise excellent source on historical jurisprudence, Burke does not, as Stein suggests, collapse “civil society” (in its modern sense) into the state, but the state into the wider civilized society. See Id., 57-8. Burke’s famous passage use of contractual language in the Reflections (194-5) was intended to show its complete insufficiency in understanding the complexities of human community and history. See, e.g., Reflections on the Revolution in France (Harmondsworth, 1969 [1790]), Conor Cruise O’Brien (ed.), 173-4. See Pocock, “The Political Economy of Burke’s Analysis of the French Revolution” in Virtue, Commerce, and History: Essays in Political Thought and History, Chiefly in the Eighteenth Century (Cambridge, 1985) and “Edmund Burke and the Redefinition of Enthusiasm” the Context as Counter-Revolution in François Furet and Mona Ozouf, (eds), The French Revolution and the Creation of Modern Political Culture: vol. 3, The Transformation of Political Culture 1789-1848 (Oxford, 1990). Interestingly, however, Burke may be the “Mr. B” lumped together with Price in support of the American cause. Ferguson’s response to the French Revolution is less clear. Cf. his Principles of Moral and Political Science (1792). These were, however, “chiefly a retrospective of lectures.” See also the earlier, simplified student version, the curious Institutes of Moral Philosophy for the Use of Students in the College of Edinburgh (London, 1994 [1769]), esp. Part V (“Of jurisprudence”). History of the Rise, Progress and Termination of the Roman Republic (1783). Ferguson’s Roman Republic is included in the Bodleian catalogue. Burke’s earliest biographer, Robert Bisset, was the son of Thomas Bisset, who succeeded Adam Ferguson’s father as minister of Logierait in the highlands of Perthshire. Shortly before publication of the Burke biography, he wrote a short “Life of Dr. Adam Fergusson (1798),” included in the Edinburgh Room of the Edinburgh Public Library, suggesting Ferguson’s general hostility towards abstract and democratic politics. See Robertson, The Progress of Society in Europe: A Historical Outline from the Subversion of the Roman Empire to the Beginning of the Sixteenth Century (introduction to The History of Charles V), (Chicago, 1972 [1769]), 57. Charles V was reviewed in 1769 Annual Register 255 (second pagination), but its content suggests that Burke was not the reviewer. The clergy almost never appear, for example, in the analyses of Ferguson or John Millar and Hume and Smith were both more sceptical than Burke about the role of clergy and the truth of religion. Even Robertson is not immune from curious, offhand insinuations about Catholic clergy. Cf. Louis Schneider, “Tension in the thought of John Millar,” Studies in Burke and His Time 13 (1971-72) 2083. Reflections, 173. See 1759 Annual Register 490. Robertson’s Historical Disquisition Concerning Ancient India (1791) is included in Burke’s library catalogue.

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studies in burke and his time 61. See Robertson, The History of America (London, 1818), ii. 437 n117. Stewart also commented favourably on the Burkes” Account. 62. (9 June 1777) in C iii. 350-1. The review in 1777 Annual Register 215 (second pagination) is so close to Burke’s letter that it may safely be attributed to him. In return, Burke sent his Letter to the Sheriffs of Bristol (1777), critical of the rigid formalisms of British rhetoric on the colonies. 63. “A comparison of two eminent characters attempted after the manner of Plutarch” in Carlyle, Anecdotes and Characters of the Times (London, 1973), James Kinsley (ed.), 281. 64. There is little written on Scotland in the 1790s. A future essay will explore the Scottish response to Burke’s anti-revolutionary writings in greater detail. 65. Burke reviewed Blackstone’s Discourse on the Study of the Law (1758) favourably in Annual Register 458, but it is unlikely that Burke reviewed the first and second volumes of Blackstone’s Commentaries in the Annual Register. See Tierney. While Blackstone’s intellectual legacy is as easily caricatured as Burke’s, real and considerable differences exist. 66. Published originally as the Historical Treatise of the Feudal law and the Constitutional Laws of England (1770), the work was reviewed in 1772 Annual Register 235 (second pagination). The reviewer (Burke?) notes that the “historical method ... becomes almost necessary, in treating a science which belongs wholly to political society and civil life. The true reason of all law, is best discovered where the principles of human conduct are found, in the interest and passions of mankind.” Id. 67. (Retitled) Lectures on the Constitution and Laws of England ((2nd edn) London, 1776), vii. 68. Quoted in William Zachs, Without Regard to Good Manners: A Biography of Gilbert Stuart 1743-1786 (Edinburgh, 1992), 59. See also Zachs, 59-60. 69. The entry, as written in the Deane catalogue, reads “561 Stuart’s View of Society, 1778. Sullivan’s Lectures on the English Laws, with a Ms. Inscription to Burke, 1776.” Both are included in the Bodleian catalogue. Stuart was awarded an LL.D from Edinburgh for his “Historical Dissertation on the Antiquity of the English Constitution” (1768). Its second addition was dedicated to Mansfield. 70. From the “Fragment” in WS i. 322. 71. (16 Dec 1791) C vi. 46. Hailes” “Address of Tertullian” is listed in the Bodleian catalogue. 72. WS vi. 466. Hailes studied at Eton, the Middle Temple, and the University of Ultrecht. He was the author of numerous “antiquarian” works, including the Annals of Scotland (17769), on medieval Scottish history, and several works critical of Gibbon. See Cairns, “Legal study in Ultrecht in the late 1740s: the education of Sir David Dalrymple, lord Hailes” in Rena van den Bergh (ed.), Summa Eloquentia: Essays in Honour of Margaret Hewett (Pretoria, 2002). It was also Hailes who had suggested that the young Boswell seek out Dr Johnson. 73. See Harold William Thompson, A Scottish Man of Feeling: Some Account of Henry MacKenzie, esq., of Edinburgh and of the Golden Age of Burns and Scott (London, 1931), 250-61. 74. Especially The Mirror and The Lounger, to which Hailes also contributed. Scott dedicated his Waverly (1814) to Mackenzie. 75. 1760 Annual Register 253 (second pagination). 76. 1761 Annual Register 279, 276 (second pagination). Both Fingal and MacPherson’s proCeltic Introduction to the Ancient History of Great Britain and Ireland (1771) are included in the library catalogue. On the different Irish and Scottish responses on Ossian and historiography, see Clare O’Halloran, “Irish re-creations of the Gaelic past: The Challenge of Macpherson’s Ossian,” Past and Present 124 (1989) 69; Idem., “Golden Ages and Barbarous Nations: Antiquarian Debate on the Celtic past in Ireland and Scotland in the Eighteenth Century” (unpublished PhD, University of Cambridge 1991); Colin Kidd, “Gaelic antiquity and National Identity in Enlightenment Ireland and Scotland”, 1994 English Historical Review 1197, 1198. See also Kidd, British Identities Before Nationalism: Ethnicity and Nationhood

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burke’s scottish enlightenment in the Atlantic World, 1600-1800 (Cambridge, 1999). 77. For a report of the Hume-Burke conversation, see Hume’s letter to Blair, the author of the introduction to Ossian (19 Sept 1763) in Greig, i.303. 78. Bisset, ii. 447-8. Burke’s earliest education, among his maternal Catholic relatives in the Blackwater valley of rural Cork was in an Irish hedge-school and quite possibly in the Irish language. See also William O’Brien, Edmund Burke as an Irishman (Dublin, 1924), 72-3. 79. See L.L. Stewart, “Ossian, Burke and the ‘Joy of Grief,’” (1977) 15 English Language Notes 29, 29-30. See also James Dwyer, The Age of the Passions: An Interpretation of Adam Smith and Scottish Enlightenment Culture (East Linton, 1998), 9. 80. See James Riddy, “Warren Hastings: Scotland’s Benefactor?” in Geoffrey Carnall and Colin Nicholson, The Impeachment of Warren Hastings: Papers from a Bicentenary Commenmoration (Edinburgh, 1989). The Bodleian list includes the History of the East India Company (1779), by one or both of the Macphersons, and MacPherson’s History. 81. Cited in Donald Wintersgill, The Rectors of Glasgow University 12820-2000 (Glasgow, 2001), xx. See ix-xi. Burke wrote a young friend, “by what I have observed, the Scotch places of Education are much superior to ours for such persons as have the early and preliminary parts Neglected (20 June 1784) C v. 152).” 82. In 1784, Burke dined with Smith in Edinburgh and with Millar, Boswell, Andrew Dalzel, Colonel James Stuart, Lord Maitland in Glasgow. He then visited Loch Lomond, on John Dalrymple’s suggestion, with Smith and Maitland. The next year, he dined in Edinburgh with Robertson, before travelling to the Highlands. 83. Members of the Royal Society of Edinburgh included Beattie, Blair, Dalzel, Home, Mackenzie, Reid and Robertson. The older Literary Society included Ferguson, Hume, Reid, Richardson, and Smith. 84. See C v. 122. 85. See the letter from Dalzel (20 July 1784) in the Burke Papers (listed as WWM Bk P 1/1899). 86. Quoted in Donald C. Bryant, Edmund Burke and His Literary Friends (St. Louis, 1939), 283. See Burke’s letter to Logan in C iv.354-5 (6 July 1781). Authorship of the poem actually remains unclear, and it may have been the work of fellow Scot Michael Bruce. 87. Elements of the Philosophy of History (Edinburgh, 1781), 14-5. Later sections discuss Asia and chronicle the decline of Rome through luxury and corruption. See also Logan’s Dissertation on the Governments, Manners, and Spirit of Asia (1787). 88. See C ix. 432. 89. Dwyer argues that “Millar constructed a natural history of love … the first “enlightened” account to attempt a reappraisal of feudal society and its ethic of chivalry.” The Age of the Passions, 6. 90. A Compendium View of the Civil Law, Being the Substance of a Course of Lectures Read in the University of Dublin (Dublin, 1797), i. 17. 91. WWM Bk P 1/2007. 92. See Lehmann, “Comment on Louis Schneider, ‘Tension in the thought of John Millar,’” (1971-72) 13 Studies in Burke and His Time 2099, 2110 n26. See also Knud Haakonssen, “John Millar and the Science of a Legislator,” 1985 Juridical Review 41. 93. See Cairns, “The Influence of the German Historical School in Early Nineteenth-century Edinburgh” (1994) 20 Syracuse J Int’l L & Com 191. With its eighteenth-century limitations, Scottish “historical” jurisprudence was in many respects superior to the Idealism and nationalism of the “historical school.” 94. See WS ix.127. Cf. Northampton, Fitzwilliam Papers A. vi. 41. A. 95. From the “Fragment” in WS i. 322 96. Discourse on the Study of the Law of Nature and of Nations (London, 1799), 58 (citing Reflections, 193).

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studies in burke and his time 97. Burke called his “Speech on the Nabob of Arcot’s Debts” his “Dundas” Speech.” 98. Dundas proceeded (and defeated) Burke as Lord Rector of Glasgow University. In preparation to parliamentary action on the slave trade, he was the recipient of Burke’s Slave Code, drafted two decades before. The Code was designed ameliorate the evils of slavery and to initiate its end. See WS iii. 562-81. 99. The “Belles Lettres Society” (1759-63) and its successor, the “Feast of Tabernacles” club included Mackenzie, Logan, and Dundas. On Dundas, see esp. Dwyer and Alexander Murdoch, “Paradigms and politics: manners, morals and the rise of Henry Dundas, 17701784 in Dwyer, R.A. Mason, and Murdoch (eds.), New Perspectives on the Politics and Culture of Early Modern Scotland (Edinburgh, 1982). 100. See Dwyer, Virtuous Discourse: Sensibility and Community in Late Eighteenth-century Scotland (Edinburgh, 1987), 14, 18. 101. See The Parliamentary History of England from the Earliest Period to the Year 1803 (London, 1816 (30 vols.), xix. 1142. 102. (1 Mar 1779) C iv.45-6. 103. (12 June 1779) C iv.85. Erskine maintained a friendly rivalry with Robertson, leader of the Moderate wing. Robertson, as Principal of Edinburgh University, gave Catholics refuge during the riots and may have been saved from harm by Erskine. Note the section on “Erskine’s Pamphlet” in Mrs Crewe, “Extracts from Mr Burke’s table talk,” in (1862-3) 7 Miscellanies of the Philobiblon Society. “A very odd Assertion in it; “that the Author is very Religious” which might be answered by saying “well, & what then? it is not this we question, but it is whether the Government of France is a religious [one] & not formed on Atheistical Principles?”” 17-8 (Section 13). 104. See Parliamentary history, xx. 322-7. 105. See WWM Bk P 8b and Annual Register 1779, 301-2. Hay was bishop of Daulis and vicar apostolic of the lowland district. “Hay on Miracles” (1775) is also included in the Burke catalogues. On the Scottish “No Popery” affair of 1778-9, see Sher, Church and University in the Scottish Enlightenment: The Moderate Literati of Edinburgh (Edinburgh, 1985). See Peter F. Anson, Underground Catholicism in Scotland 1622-1878 (Montrose, 1970), 177-82. 106. See NRO A. xxvii. 2 on Gordon and Scotland. See also C iv. 263-5 and WWM BK P 8/49b on the Scottish riots and “zeal.” 107. If Rockingham reformism and the obligations of honour it presupposed, were admittedly imperfect, they had, at the time, a genuine, if meliorist, record of improvement. 108. See the two letters on “The Conduct of Lord Mansfield” in Almon. 109. They seem to have been written by Phillip Francis, later a critic of Hastings and colleague of Burke on the Impeachment. 110. W ii. 137 (taken from the draft of the “Speech on the Jury Bill” in W 137-46). Cf. WS ii. 3439, which contains the speech given. 111. WS ii.347. 112. “Notes for Speech (30 Nov 1774)” cited in Gerald W. Chapman, “The organic premise” in Daniel E. Ritchie (Ed.), Edmund Burke: Appraisals and Applications (New Brunswick, 1990), 247, 250n24. 113. A Philosophical Enquiry into the Origins of our Ideas of the Sublime and the Beautiful (Oxford, 1990 [1757]), 4. Burke’s views on natural law are the source of great confusion, not least among his apologists. His natural jurisprudence owes as much to Newton and European law as to Aquinas, Pufendorf, or the common law. The best discussion may be Burleigh Taylor Wilkins, The Problem of Burke’s Political Philosophy (Oxford, 1967), which also includes a chapter on “Burke, Hume, Smith, and Beattie” at 50-71. 114. See Neil McCormick, “‘Principles’ of law,” 1974 Juridical Review 217 and D. Walker, “Principle and authority as sources of norms,” 1982 Juridical Review 198.

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burke’s scottish enlightenment 115. See, e.g., Smith’s Theory of Moral Sentiments, 341-2, Lectures on Jurisprudence (Indianapolis, 1978 [1762-3/6]), 397, and the Wealth of Nations, 296. Principles were essential, too, to Reid. 116. 1760 Annual Register 263 (second pagination). The review cited heavily from the author’s critique of slavery and noted it was “grounded on [the laws] of nature and nations.” Id. Burke also owned Wallace’s Thoughts on the Origin of the Feudal Tenures, and the Descent of Ancient Peerages in Scotland (1783) dedicated to Mansfield. 117. Only Wallace’s first volume was published and the work “seems to have been a disastrous failure. It is said that only 40 copies were sold and that the author bought up the rest ....” David M. Walker, A Legal History of Scotland: vol. 5, The Eighteenth Century (Edinburgh, 1998) and The Scottish Jurists (Edinburgh, 1985), 305. Wallace was the son of Robert Wallace, Hume’s opponent in debates on the population of ancient and modern worlds. 118. There was nowhere a “simple application of rules derived from precedents to the facts of new cases.” Michael Lobban, The Common Law and English Jurisprudence, 1760-1850 (Oxford, 1991), 83. Cf 1-5. While this reflects a certain, common understanding of Burke, it in fact runs counter to the whole tenor of Burke’s thought. See also Knud Haakonssen, The Science of a Legislator: The Natural Jurisprudence of David Hume and Adam Smith (Cambridge, 1981), 132. 119. See Anson, 177 and Thomas Barlett, The Fall and Rise of the Irish Nation: The Catholic Question 1690-1830 (Dublin, 1992). 120. See 1771 Annual Register 246 (second pagination). 121. See esp. Chp. VI. See also Phillipson, “Lawyers, Landowners, and the Civic Leadership of Post-Union Scotland: An Essay on the Social Role of the Faculty of Advocates 1661-1830 in 18th Century Scottish society,” 1976 Juridical Review 97. 122. The younger Burke, in response to Scottish events of 1745-6, wrote a friend, “I am sure I share in the general compassion. “Tis indeed melancholy to consider the state of those unhappy gentlemen who engaged in this affair (as for the rest they lose but their lives) who have thrown away their lives and fortunes, and destroyed their families for ever, in what I believe they thought a just cause.” In WS i. 63 and Samuels, 244 n1. 123. Both the Essay on Feudal Property and the published work on India (later We Have All Been in the Wrong; or, Thoughts…Upon Mr. Fox’s East-India Bills) are in the library catalogue. 124. (6 Nov 1790) in C vi. 156,; (19 Nov 1790) WWM Bk P 1/2274. 125. See his “Speech … in the House of Peers, April 11, 1799 … respecting an Union between Great Britain and Ireland (1799) and Claire Connolly, “Writing the union” in Dáire Keogh and Kevin Whelan (eds), Acts of Union: The Causes, Contexts and Consequences of the Act of Union (Dublin, 2001), 177-8, 180. 126. Letters on a Regicide Peace, 126. Cf. WS iii. 299. This, and indeed much more, links Burke with both Montesquieu and, later, Alexis de Tocqueville. 127. Reflections, 149. At its best, law was the reason—or at least a calmer passion—to public passions, but these remained as essential as sentiments in Burkean psychology. 128. This mirrors, in a sense, Brown’s comments on Hutcheson as “established outsider” in Francis Hutcheson in Dublin. See also Terry Eagleton, “Homage to Francis Hutcheson” in Heathcliff and the Great Hunger: Studies in Irish Culture (London, 1995).

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