Hume and Constitution

American Society for Eighteenth Century Studies (ASECS)

Hume-Historian of the English ConstitutionAuthor(s): Constant Noble StocktonSource: Eighteenth-Century Studies, Vol. 4, No. 3 (Spring, 1971), pp. 277-293Published by: The Johns Hopkins University Press. Sponsor: American Society for EighteenthCentury Studies (ASECS).Stable URL: http://www.jstor.org/stable/2737733Accessed: 17/06/2010 14:10

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Hume-Historian of the English Constitution CONSTANT NOBLE STOCKTON

THIRTY OR FORTY YEARS AGO it might have seemed that David Hume's History of Englandfrom the Invasion of Julius Caesar to the Abdication of James the Second (6 vols., 1754-62) was dead for good. J. B. Black gave it a slightly condescending historiographical evaluation that must have seemed definitive,' and W. C. Abbott recorded its seventy-five years of popularity and subsequent fall from scholarly favor.2 To be sure, whenever a thinker of Hume's stature spends ten years of his life writing a large scale work, there must be something good in it. But its grace of style, its malicious wit, and its thought-provoking philosophical digressions were not enough. The work was disfigured, it was thought, by three fatal defects. In an age of scientific historiography still inspired by Ranke, Hume's methodology seemed slipshod in comparison with, say, Gardiner's. In an age of increasingly sophisticated faiths, Hume's vituperative attacks on "all religions save the true one" seemed crude and antiquated. And the interpretations of English constitutional history which Hume so carefully and artfully developed seemed, as Thomas Preston Peardon remarked in 1933, to be long superseded.3

But in the past generation or so, there have appeared several lines of scholarly interest which converge upon this neglected magnum opus. Hume's epistemological and ethical theories have always been a fruitful object of study. In this century many philosophers of history have become increasingly sceptical of the possibility of a purely objective historical science. This development has interested some scholars in the relation between Hume's scepticism and his views about history. It also reminds us that perhaps Hume's work in history has been unfairly criticized. It is a kind of anachronism on our part if we expect the standards of a Gardiner in Hume, for in the eighteenth century the customs and criteria of historical writing were somewhat different.

1 J. B. Black, The Art of History (London, 1926), pp. 77-116. 2 W. C. Abbott, Adventures in Reputation (Cambridge, Mass., 1935), pp. 117-146. 3 Thomas Preston Peardon, The Transition in English Historical Writing, 1760-1830

(New York, 1933), p. 20. 277

278 EIGHTEENTH-CENTURY STUDIES

For instance, manuscript sources, the cornerstone of the "scientific" methodology, were then for the most part unavailable.4 On another side, students of the history of ideas have become increasingly interested in the Scottish development, in the eighteenth century, of what has become the social sciences. In 1965, for example, books were published which dealt with Hume as a historian, as an economist, and as a political theorist.5 And on yet another side, the past generation or two has seen much revision in English constitutional history. In the perspective of these new non-Whig attitudes, Hume's constitutional interpretations do not seem as wrong as they seemed in the perspective of Hallam, Stubbs, or even Peardon. To Hume's position in relation to these changing interpretations of English constitutional history, the rest of this essay will be devoted.

Hume's History of England focuses on the constitutional struggles of the reigns of the first four Stuarts and the Puritan interregnum. Indeed, he wrote the two volumes covering this period, 1603-89, first. According to his analysis, the political difficulties of this age were the fault of a tragic inconsistency in the constitution, an inconsistency partially resolved by the beneficial legislation of the first session of the Long Parliament but not altogether settled until the revolution of 1688-89. He emphasized that the constitutional pretensions of James I and Charles I, although tending dangerously toward absolutism, were plausible and grounded in Tudor precedents. He argued that it was Parliament that encroached on the prerogatives of the king, not vice versa. On the other hand, he admitted the privileges of Parliament and held that indeed liberty had to be defended if it was not to be lost forever. On the whole, however, Hume found that the Puritans, although sagacious in the pursuit of their cause, "disgraced it by their violence, and also by their cant, hypocrisy, and bigotry, which, more than the principles of civil liberty, seem to have been the motive of all their actions."6 Hume had virtually no sympathy for the schemes of Charles II, who "knew, that he had succeeded to a very limited Monarchy ... yet he cou'd not be quiet, nor contented with a legal

4 Charles H. Firth, "Development of the Study of Seventeenth-Century History," Transactions of the Royal Historical Society, 3rd ser., 7 (1913), 25, 30, 33, 37-39.

5 David Fate Norton and Richard Popkin, eds., David Hume: Philosophical Historian (Indianapolis, 1965); W. L. Taylor, Francis Hutcheson and David Hume as Predecessors of Adam Smith (Durham, N.C., 1965); Laurence L. Bongie, David Hume: Prophet of the Counter-Revolution (Oxford, 1965).

6 Hume's letter to Catherine Macaulay, 29 March 1764, New Letters of David Hume, ed. by R. Klibansky and E. C. Mossner (Oxford, 1954), p. 81.

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Authority." But he makes a strenuous effort to be fair to James II despite his disapproval of his "absurd conduct."7 After our historian had completed the two volumes on the first four Stuarts, he abandoned his original plan of continuing his narrative past 1689 and instead wrote two volumes on the reigns of the Tudors. One motive for this altered course was the comparative unavailability of sources for the more recent period. But an even stronger motive was his growing conviction that the struggles of the seventeenth century could only be understood in relation to the events of the sixteenth, the age in which the conflicting precedents later invoked were established or regularized. His handling of the constitutional history of the Tudor period was somewhat partisan-very full and specific in treating the royal prerogative, somewhat incomplete and biased in treating the privileges of Parliament. Then, last of all, Hume wrote two volumes on the history of medieval England, emphasizing the arbitrary power of the more effectual kings and the lawless violence of the baronage in contrast to the impotence of the people. Thus, as one eighteenth-century commentator put it, "Having undertaken to conjure up the spirit of absolute power, he judged it necessary to the charm, to reverse the order of things, and to evoke this frightful spectre by writing (as witches use to say their prayers) backwards."8

Hume's avowed aim, in both his political essays9 and in his History, 10 was "to abate the acrimony of party disputes." He sought to show both an element of truth and an element of error in the political theories and historical claims of both Whigs and Tories. In such essays as "Of the Original Compact" he analyzed away the greater part of the Whig political theory. In such essays as "Of Passive Obedience" and in several treatments of the same topic in the History of Englandl I he easily refuted the Tory shibboleth which, by the middle

7 Hume's letter to Andrew Millar, 12 April 1775, Letters of David Hume, ed. by J. Y. T. Greig (2 vols., Oxford, 1932), I, 217.

8 This is the wording given by E. C. Mossner, Life of David Hume (Austin, 1954), p. 302, and attributed by him to Richard Hurd, "Post-Script" to Moral and Political Dialogues (London, 1761). A briefer but similar quotation is given by Firth, p. 37, and attributed by him to Fox but without citation. Another brief but similar quotation is given by Black, p. 82, and by G. B. Hill, Letters of David Hume to William Strahan (Oxford, 1888), p. xxix, note, and attributed to Horne Tooke, citing Recollections of the Table-Talk of Samuel Rogers (London, 1856) p. 123.

9 David Hume, "Of the Coalition of Parties," Essays, ed. by T. H. Green and T. H. Grose (2 vols., London, 1875). I, 464-465. Hume published this essay in 1758, as he was writing the Tudor volumes of his History.

10 David Hume, History of Great Britain, Vol. I, Containing the Reigns of James I and Charles I (Edinburgh: Gavin Hamilton, 1754), pp. 245-246. This passage in the first edition, not repeated in later editions of the History, is quoted by E. C. Mossner, "Was Hume a Tory Historian ?" Journal of the History of Ideas, 2 (1941), 234.

11 David Hume, History of Englandfrom the Invasion of Julius Caesar to the Abdication of James the Second, 1688 (6 vols., New York, 1850), VI, 19, 133-134. This edition, the


of the eighteenth century, hardly needed refutation. His attack on the rival historical theories was less impartial. Tory historians received only a couple of vague and perfunctory slaps. But he subjected the Whig historical tradition and its mythologists to both envenomed diatribe'2 and extended, systematic refutation. My thesis is that the constitutional interpretations with which Hume attacked the Whig myth of the "ancient constitution" are not so incorrect as was supposed two generations ago.

As J. G. A. Pocock has reminded us,'3 the myth of the "ancient constitution" flourished among English common lawyers of the seventeenth century and among Whigs-English and American-in the eighteenth. It asserted, in essence, that the English people had since time immemorial enjoyed the same free parliamentary constitution; that it was originally brought from Germany by the Anglo- Saxons; and that it was vindicated against attempted tyranny by Magna Carta, by the Lancastrian succession of 1399, and (in later versions of the myth) by the "Puritan Revolution" of the 1640s and the "Glorious Revolution" of 1688. Such nineteenth-century historians as Hallam, Stubbs, and even Gardiner tended to present their increasingly accurate data in somewhat the same conceptual framework, in accordance with much the same ideal model. Indeed, as G. R. Elton wrote not long ago, "Our history is still much written by whigs, the champions of political freedom."'4 Hume and Carte'5 are instructive eighteenth-century exceptions to this received interpretation.

According to Pocock the Whig myth of the "ancient constitution," as a plan of regular parliamentary government existing from time immemorial, was first undermined by the realization that there had been a feudal system very different from the generally accepted arche- type. In England this realization was resisted by those men whose thinking had been molded by the traditions of common law, which they held to be the core of the "ancient constitution" as well as the embodiment of right reason. The feudal system was therefore "discovered" first in France, then in Scotland, by men trained in the

most convenient American one, is hereafter cited as History. Concerning passive obedience, see also Hume's Treatise on Human Nature, ed. by L. A. Selby-Bigge (Oxford, 1951), Book III, Part II, Section X, pp. 563-567.

12 Especially History, II, 514; and VI, 365-366. 13 J. G. A. Pocock, The Ancient Constitution and the Feudal Law (Cambridge, 1957),

especially chaps. 2 and 3. 14 G. R. Elton, The Tudor Revolution in Government (Cambridge, 1953), p. 1. 15 Thomas Carte, A GeneralHistory ofEngland (4 vols., London, 1747-55). Concerning

Hume's relationship to Carte, see Sir Francis Palgrave, "Hume and his Influence upon History," Quarterly Review, 73 (March, 1844), 546-549, 554-555.

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civil law. Hume, like Sir Thomas Craig,6 was a Scot trained in Scots and civil law. When this "discovery" was finally made in England, Pocock informs us, it was made by Sir Henry Spelman, whom Hume frequently cites, and it was consolidated by Robert Brady, who is said to have been Hume's "principal help for constitutional information."17

A major phase of Hume's attack on the myth of the "ancient constitution" is his contrast, after the manner of Spelman and Brady, of feudal institutions with those later ones which Whig historians had claimed to be immemorial. For example, taking the part of an adherent of the court party in 1641, Hume ironically invites the partisans of the so-called "ancient constitution" to act in accordance with the real ancient constitution:

If we must return to the ancient barbarous and feudal constitution, let those gentlemen, who now behave themselves with so much insolence to their sovereign, set the first example. Let them make court to be admitted as retainers to a neighbouring baron; and by submitting to slavery under him, acquire some protection to themselves: together with the power of exercising rapine and oppression over their inferior slaves and villains. This was the condition of the commons among their remote ancestors.'8

Hume's attack on the ancient constitution goes beyond that of Spelman and Brady in several important respects. In treating the age of feudalism itself, Hume causally connects feudal institutions with the "manners" and the economic life of the period. These extra-legal factors enable him to do what those "discoverers" of feudalism had been unable to do-to explain feudalism's decline.'9 They contrast a static feudal system with current institutions; Hume explains, or tries to explain, the development of both. In this sense his treatment of the earlier history of England was genuinely historical in a sense in which theirs was not. He depicts life and government in Anglo-Saxon England before William the Conqueror introduced feudalism. He describes, by a kind of natural history,20 how he believes feudalism must have originated in Europe. And he explains, as well as he can, the decline of feudalism in the unsettled political world of the fifteenth century. Through all these changes, the motives of individual men are

16 Concerning Craig's "discovery of feudalism," see Pocock, pp. 79-90. 17 Sir Francis Palgrave, p. 555. 18 Hume, "Of the Coalition of Parties," Essays, I, 467. 19 Pocock, pp. 114, 118. 20 Dugald Stewart called such attempts at imaginative reconstruction "theoretical or

conjectural history"; see Gladys Bryson, Man and Society: the Scottish Inquiry of the Eighteenth Century (Princeton, 1945), pp. 88-92. "Natural history" is Hume's own term, as in his Natural History of Religion.


given at least their due emphasis as causes of political and constitutional developments, but cultural, social and economic factors provide the underlying condition of those developments.

Hume's attack on the myth of a changeless "ancient constitution" continues in a further phase. He attempts to demonstrate that the Tudor constitution differed both from the medieval patterns and from the more modern pattern confirmed by the Revolution of 1688. Hume himself believed that his interpretation of Tudor near-absolutism, his attempted demonstration "that the family of Tudor possessed in general more authority than their immediate predecessors," was original and had not been tried before.2'

Throughout the six volumes of his History, then, one of Hume's continuing purposes is the refutation of the Whig myth of the "ancient constitution." At the end of the volume of the History which he wrote last, as a kind of valedictory to historical writing, Hume summarizes the development of the English constitution and concludes with the following explicit attack on the ancient constitution and its adherents:

In each of these successive alterations, the only rule of government which is intelligible, or carries any authority with it, is the established practice of the age, and the maxims of administration which are at that time prevalent and universally assented to. Those who, from a pretended respect to antiquity, appeal at every turn to an original plan of the constitution, only cover their turbulent spirit and their private ambition under the appearance of venerable forms; and whatever period they pitch on for their model, they may still be carried back to a more ancient period, where they will find the measures of power entirely different, and where every circumstance, by reason of the greater barbarity of the times, will appear still less worthy of imitation. Above all, a civilized nation like the English, who have happily established the most perfect and most accurate system of liberty that was ever found compatible with government, ought to be cautious in appeal- ing to the maxims of uncultivated ages as certain rules for their present conduct.22

Hume's History was hardly in print before Whigs returned his attack by condemning his own constitutional interpretations as "Tory." His work remained so popular, however, that finally one enterprising Whig simply rewrote it, deleting passages with which he disagreed and inserting interpretations of his own. This was John Baxter's A New and Impartial History of England (1796) which Jefferson repeatedly praised and sought unsuccessfully to have republished in an American edition.23 It was not until the second

21 Hume, "Of the Coalition of Parties," Essays, I, 467 n. 22 Hume, History, II, 514. See also "Of the Coalition of Parties," pp. 467-468. 23 H. Trevor Colbourn, The Lamp of Experience (Chapel Hill, 1965), pp. 178-179.

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quarter of the nineteenth century that Hume's History finally fell from general esteem. John Stuart Mill wrote a brilliant attack on Hume's objectivity,24 and Sir Francis Palgrave published two learned attacks on Hume's scholarship.25 Meanwhile, something like the myth of the ancient constitution was receiving what seemed to be a vindication at the hands of eloquent and scholarly writers. Macaulay's History of Englandfrom the Accession of James II(1848-61) put things in an opposite perspective. George Brodie published a lengthy and tendentious A History of the British Empire, from the Accession of Charles I to the Restoration: ... andIncluding a Particular Examination of Mr. Hume's Statements, Relative to the Character of the English Government (4 vols., 1822). Henry Hallam's Constitutional History of Englandfrom the Accession of Henry VII to the Death of George II (2 vols., 1827), more moderate than Brodie's in its text, attacked Hume repeatedly in very immoderately worded footnotes. William Stubbs's Constitutional History of England (3 vols., 1873-78) magisterially ignored Hume, but its emphasis on the Germanic origins of English liberty, the democratic elements in medieval English government, and the Lancastrian principles of parliamentary constitutionalism seemed to echo the old Whig tradition. Samuel Rawson Gardiner's series of works (1863-1901), which described Hume's favorite period with a scholarly rigor that Hume could not have equalled, avoided digressions into constitutional theory but seemed to share in the Whiggish assumption that the partisans of the "Puritan revolution" were the partisans of England's true constitution.

Probably it hardly needs to be demonstrated that the last generation or so has seen the growth of a kind of non-Whig revisionism in English constitutional history. Herbert Butterfield uses Hallam as a favorite example of "the Whig interpretation of history."26 Stubbs has been the object of persistent, if usually respectful, criticism,27 although Norman Cantor's introduction to his recent abridgement of Stubbs

24 John Stuart Mill, "Brodie's History of the British Empire," Westminster Review, 2 (1824), 346-402; the anonymous review article is attributed to Mill by George L. Nesbitt, Benthamite Reviewing: The First Twelve Years of the Westminster Review, 1824-1836 (New York, 1934), p. 180.

25 Sir Francis Palgrave, "Anglo-Saxon History," Quarterly Review, 34 (1826), 248-298; "Hume and his Influence upon History," ibid., 73 (1844), 536-592. The two articles, anonymous in the Quarterly Review, appear in Palgrave, Collected Historical Works (10 vols., Cambridge, 1922), IX, 375-428 and 535-598.

26 Herbert Butterfield, The Whig Interpretation of History (London, 1954), p. 4. Butterfield points out that Hallam was conservative in his appraisal of contemporary political issues but wrote "Whig" history anyway.

27 See Helen Cam, "Stubbs Seventy Years After," Cambridge Historical Journal, 9 (1947), 129-147; J. G. Edwards, William Stubbs, The Historical Association General Series No. 22 (London, 1952); and H. G. Richardson and G. 0. Sayles, The Governance of Medieval England (Edinburgh, 1963), pp. v-vi and 1-21.


illustrates the fact that a "neo-Stubbsian trend" is by no means dead.28 Gardiner's assumptions have been criticized, for example, by G. R. Elton,29 whose other works30 develop a decidedly non-Whig constitutional interpretation. The earlier editions of Taswell-Langmead's famous textbook read like a paraphrase of Hallam; the eleventh edition, as extensively rewritten by Theodore F. T. Plucknett,31 is often strikingly like Hume.

Historiographers writing on Hume in the earlier years of our century naturally reflected none of this constitutional revisionism. Instead, they simply repeated the Brodie-Hallam stigmatization of Hume as "Tory." According to W. C. Abbott, "he wrote a Tory history in a period of Whig ascendancy."32 Preserved Smith informs us that "he wrote partly to divert his readers and partly to inculcate his own anti-clerical and Tory principles"; a few sentences later Smith speaks of his "bitter . . . hatred of freedom."33 James Westfall Thompson exaggerates and distorts the criticisms which previous commentators had made, writing, "Hume ignored all those facts which were favorable to his two pet aversions, Whigs and religion,"34 although indeed Hume endorsed the Revolution of 1688 and much of the constitutional legislation of the seventeenth century, holding that the Stuarts had to be stopped if liberty was to be preserved. It could be shown that J. B. Black, author of the longest and most influential treatment of Hume as a historian,35 himself tends towards a "Whig interpretation of history" in his Reign of Elizabeth, Vol. VIII of "The Oxford History of England." In more recent years, several articles have debated the sense in which Hume was or was not a Tory.36 But regarding the correctness of the content of Hume's constitutional treatments, it would seem that the historiographers have let Brodie and Hallam have the last word. Yet, as many contemporary or near- contemporary writers on English constitutional history draw away

28 Norman F. Cantor, ed., William Stubbs on the English Constitution (New York, 1966), p. 10.

29 G. R. Elton, "A High Road to Civil War?" in From the Renaissance to the Counter- Reformation: Essays in Honor of Garrett Mattingly, ed. by Charles H. Carter (New York, 1965), pp. 325 if.

30 Especially his Tudor Constitution (Cambridge, 1962). 31 Thomas Pitt Taswell-Langmead, English Constitutional History, 11th ed. by T. F. T.

Plucknett (Boston, 1960); first published 1875. 32 Abbott, p. 121. 33 Preserved Smith, History of Modern Culture (2 vols., New York, 1934), II, 257. 34 James Westfall Thompson, A History of Historical Writing (2 vols., New York,

1942), II, 71. 35 Black, pp. 77-116. 36 E. C. Mossner, "Was Hume a Tory Historian ?" Journal of the History of Ideas, 2

(1941), 225-236, and "An Apology for David Hume, Historian," PMLA, 56 (1941), 657-690; Marjorie Grene, "Hume: Sceptic and Tory," JHI, 4 (1943), 338-348.

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from the "Whig" interpretations of their predecessors, they are drawing closer to the interpretations of Hume.

As an illustration I will select, not the complex struggles of the seventeenth century (although the "Apology of the Commons" of 1606 would make an excellent case study), but some of the constitutional problems of the reign of Richard II.

From the time of Shakespeare into our own century, Richard II has usually been depicted as a tyrant rightfully deposed by the defenders of parliamentary liberty. In Elizabeth's last years the theme was used by the friends of Essex; similar treatments appeared, significantly, in 1641 and 1681. From 1689 into the nineteenth century, the deposition of Richard II was identified with the deposition of James 11.37 Hallam, for example, writes, "upon the same principles that cost James II his throne, it was unquestionably far more necessary, unless our fathers would have abandoned all thought of liberty, to expel Richard 11."38 Stubbs asserts that Richard's rule was "a resolute attempt not to evade but to destroy the limitations which for nearly two centuries the nation, first through the baronage alone and latterly through the united parliament, had been laboring to impose upon the king."39 Concerning the significance of the accession of Henry IV, Stubbs makes the famous comment that "the house of Lancaster had risen by advocating constitutional principles, and on constitutional principles they governed," their rule being "the trial and failure of a great constitutional experiment; a premature testing of the strength of the parliamentary system."40 (It will be noted that here Stubbs begs the question by using the word "constitutional" to designate that "ancient constitution" in which he himself believed; the whole point is that Richard II had enunciated and acted upon contrary constitutional principles of his own.) Holdsworth, too, identifies Richard II with "the Stuarts," citing a passage in which Stubbs invidiously links the theories of Richard II with those of James I.41

To this phase of the "Whig" constitutional interpretation, which has flourished well into the present century, Carte and Hume are, pre-

37 There is a convenient summary of these interpretations in Anthony Steel, Richard II (Cambridge, 1941), pp. 2-5, although the following paragraphs show that Steel is dead wrong in identifying Hume with the Hallam-Stubbs interpretation.

38 Henry Hallam, View of the State of Europe During the Middle Ages (2 vols., London, 1846), II, 212.

39 William Stubbs, Constitutional History of England (3 vols., Oxford, 1897), II, 524. 40 Ibid., III, 8, 5. 41 W. S. Holdsworth, A History of English Law (London, 1909), II, 345.


dictably, exceptions. Hume presents Richard II as less objectionable in his measures than Edward I or Edward III but beset by a factious baronage. He was destroyed, moreover, by a faithless usurper who continued many of the same "tyrannies" for which Richard had been attacked, and who relied on parliament-as did his Lancastrian successors-only because his title was shaky and his treasury was empty. Hume sharply distinguishes the deposition of Richard II from the Revolution of 1688 which, like every right-thinking Briton, he extravagantly praises, emphasizing "the difference between a great and civilized nation, deliberately vindicating its established privileges, and a turbulent and barbarous aristocracy, plunging headlong from the extremes of one faction into those of another."42 Yet Hume accepts the identification of Richard with thefirst two Stuarts because he intends to defend the constitutional pretensions of both.43 He knows that if he can make a case for Richard II, then he has made a case for James I and Charles I as well.

The scholarly work of the past generation has developed a constitutional interpretation of Richard II that is closer to Hume than it is to Hallam and Stubbs. V. H. Galbraith, reviewing Anthony Steel's Richard II, concludes, "Richard ... was no tyrant, but the last truly medieval king of England, strong to realize the fullness of the medieval kingly ideal.... Not only was he more sinned against than sinning; the right, in so far as it is to be discovered, was on his side."44 Thus Hume's general interpretation, like his interpretation of many other constitutional matters, is far less disrespectable now than it used to be.

Let us examine one specific instance. After the impeachment of Suffolk and the appointment of a commission of magnates to exercise soverign power, "the king ... was really dethroned: the aristocracy was rendered supreme."45 Then, as Richard travelled through England rallying his adherents, he assembled seven leading judges and put to them a series of questions concerning the legality of recent events. Hume recounts seven of their answers: They declared that the late commission was derogatory to the royalty and prerogative of the king; that those who procured it, or advised the king to consent to it, were punishable with death; that those who necessitated and compelled him were guilty of treason; that those were equally criminal who should persevere in maintaining it; that the king has the right of dissolving parliaments at pleasure; that the parliament, while it sits, must first proceed

42 Hume, History, II, 313-314. 43 Ibid., II, 200-201. 44 V. H. Galbraith, "A New Life of Richard II," History, 26:104 (March 1942),

225-226. 45 Hume, History, II, 291.

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upon the king's business; and that this assembly cannot without his consent impeach any of his ministers and judges.46 Here Hume pauses in his narrative to discuss whether the judges' replies were correct.

According to Hume the judges' first five assertions "appear justi- fiable" and "even in accord with our present strict maxims with regard to law and royal prerogative."47 Concerning the sixth-that Parlia- ment must first proceed upon the king's business-Hume notes that Richard's successor, Henry IV, afterwards insisted upon it. Concern- ing the last point-that the king's ministers and judges can be impeached only with the king's consent-Hume cites a statute of Edward III which seems to assume that the king's ministers could not be impeached while in office. "Upon the whole," Hume concludes, "it must be allowed that, according to ancient practice and principles, there are at least plausible grounds for all these opinions of the judges."48

My point is that constitutional scholarship since Hume, after disagreeing both with the judges and with Hume for a century or more, has come around to taking Hume's position. Hallam wrote, "These answers . . . were for the most part servile and unconstitutional,"49 The first edition of Taswell-Langmead's English Constitutional History uses Hallam's very words in an even more forceful context: the judges' answers "were undoubtedly both servile and sanguinary, unconstitutional for the most part even as the constitution was then understood, and utterly inconsistent with the continued existence and future development of parliamentary liberty."50 A similar point of view is found in Tout's Chapters in Administrative History.51 Stubbs, to be sure, reports the answers of the judges without commenting on them, although he refers to the "despotic and impatient impulses" of Richard in resisting the commission.52 But Steel, in his life of Richard II, reminds us that it is dangerous to speak of a fixed constitution at this date, save in a nontechnical sense to describe the institutions and practices of the day.53 "From this point of view," as Plucknett

46 Ibid., II, 292. 47 Ibid. 48 Ibid., II, 293 n. 49 Hallam, View of Europe, II, 204. 50 Taswell-Langmead, pp. 171-172. Plucknett quotes Taswell-Langmead's original

formulation before attacking it. 51 Thomas Frederick Tout, Chapters in the Administrative History of Medieval England

(6 vols., Manchester, 1928), III, 423-424. 52 Stubbs, II, 500-501. 53 Steel, pp. 131-132. Hume makes exactly the same point in the more general context

of his attack on the Whigs' myth of the ancient constitution, History, II, 514, quoted above, note 22.


restates Steel's argument in his recent revision of Taswell-Langmead, "the judges' opinions seem to be a defensible statement of fourteenth- century practices." The first several points, Plucknett adds, reaffirm the principle of the Statute of York, 1322; the fifth and sixth "state the undoubted fact that the parliament was effectively the king's parliament, concerned with the king's affairs," and the last point shows "the unsettled problems involved in the process of impeachment." Thus from echoing the words of Hallam this famous textbook has shifted to a position like Hume's. (A fascinating study could be made, incidentally, demonstrating the rise and fall of Whig constitutional historiography as recorded in the amendment of successive editions of Taswell-Langmead.) "In short," Plucknett concludes, "the answers are a case for the crown, arguable if not conclusively convincing, when tested by contemporary practice."54 McKisack, in "The Oxford History of England," while holding that Richard II aimed at tyranny and ought to have been replaced, sides with Hume, Steel, and Pluck- nett concerning the replies of the judges.55 Wilkinson, too, argues "that the answers, in the main, represented the traditions and customs of the land."56 And Harold Hutchinson, in the most recent biogra- phy of Richard II, adds, "It is difficult to see what other answers they could have given consistent with their integrity as good lawyers."57

Analyses like the foregoing could be multiplied. In instance after instance, Hume's interpretations, which were attacked by nineteenth- century representatives of the "Whig" interpretation of history that he had sought to refute, now seem to be well-taken.

Although Hume's constitutional interpretations are often impress- ively similar to the interpretations of recent scholars, the differences between his constitutional history and ours are also worthy of note. In two respects he culpably failed to meet his own standards; in other respects, it is our standards and perspectives that have shifted.

He had claimed that as a historian he was independent and impartial -indeed, that his was the first truly unprejudiced history of England

54 Taswell-Langmead, p. 172. ss May McKisack, The Fourteenth Century, 1307-1399; Vol. V of "The Oxford History

of England" (Oxford, 1959), pp. 448-449. 56 B. Wilkinson, Constitutional History of Medieval England, 1216-1399 (3 vols.,

London, 1952), II, 237. 57 Harold F. Hutchinson, The Hollow Crown (New York, 1961), p. 109.

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ever written.58 As Black says, "seldom has a writer been so ruthlessly measured by his own words, or so bitterly attacked for falling short of them."59

There is an element of anachronism in this standard criticism of Hume as it is often put, for the idea of impartiality has somewhat altered since Hume's day, and he never intended to provide the kind of impartiality which recent methodologists have come to expect. It was not objectivity that he claimed, but independence-"I thought that I was the only historian that had at once neglected present power, interest and authority, and the cry of popular prejudice."60 To Hume the chief use of history was "to discover the constant and universal principles of human nature, .. . so many collections of experiments, by which the politician or moral philosopher fixes the principles of his science."'61 Even taking into account the fact that the meaning of the word "moral" has also narrowed, we should still expect that conclu- sions derived from these "experiments" would be expressed by our historian in the form of personal judgments. The stance which he assumes in the History is not that of the unjudging chronicler, but that of the impartial evaluator. If he plays the role of an honest judge rather than that of a bought judge, if he gives each partisan his day in court and weighs the evidence fairly before he judges the past, then he is being impartial according to his own criteria. Indeed this is exactly what Hume appears to do, presenting in elaborate detail the alleged arguments of proponents and opponents of great issues before delivering, like a verdict, the opinion of "moderate men."

Bufthe regrettable fact is that this panoply of impartiality is too often misleading. In his attempt to maintain his stance of independence, he leans over backwards; in his attempt to prove his independence of the "present power, interest, and authority" of the Whig establish- ment, he too often presents the facts one-sidedly and employs his rhetorical ingenuity to make the monarchial side seem better than it is. Macaulay's attack is well-taken: Hume is a very accomplished advocate. Without positively asserting much more than he can prove, he gives prominence to all the circumstances which support his case; he glides lightly over those which are unfavorable to it; his own witnesses are applauded and encouraged; the statements which seem to

58 Hume, "My Own Life," Essays, I, 4; Letter to James Oswald of Dunnikier, 28 June 1753, Letters, I, 179; to Matthew Sharp of Hoddam, 25 Feb. 1754, ibid., I, 184; to William Mure of Caldwell, Oct. 1754 [?], ibid., I, 210.

59 Black, Art of History, p. 91. 60 Hume, "My Own Life," Essays, I, 4. 61 Hume, "Of Liberty and Necessity" in An Enquiry Concerning the Human Under-

standing, Essays, II, 68.


throw discredit on them are controverted; the contradictions into which they fall are explained away; a clear and connected abstract of their evidence is given. Everything that is offered on the other side is scrutinized with the utmost severity; every suspicious circumstance is a ground for argument and invective; what cannot be denied is extenuated, or passed by without notice; concessions even are sometimes made; but this insidious candor only increases the effect of the vast masses of sophistry.62

Perhaps the best example of what Macaulay had in mind is Hume's treatment of the struggles and deposition of Richard II. Sometimes with "insidious candor" he blames both sides equally.63 Yet he touches very lightly indeed upon the diverse arbitrary policies of Richard which Stubbs catalogues at length. At one point Hume even refers to them sceptically as the "supposed abuses of the government."64 As a rule he does not quite express approval of "the weakness and fluctuation of Richard's counsels."65 But most often he either barely mentions Richard's own misdeeds or sympathetically explains them, all the while emphasizing and sharply criticizing every transgression by Richard's enemies. For example, when describing the quarrel between the future Henry IV and the Duke of Norfolk which gave Richard occasion to exile them both, Hume judges the former very sharply for what surely was, in relation to the manners of the times and the magnitude of the surrounding events, a comparatively minor in- fraction.66 But shortly thereafter, when the father of the exiled Henry died and Richard broke his promise by confiscating the vast estates that the exile should have inherited, Hume offers a sympathetic explanation of Richard's seizure. Then, almost as a decoy, he goes on to criticize as "an extravagant act of power!" Richard's further action in ordering a sentence of death (later commuted to banishment) for the exiled Henry's attorney "who had procured and insisted on the letters" guaranteeing Henry's inheritance.67 When Hume recounts the final charges read in parliament at Richard's deposition, charges which according to Steel "simply represent an unanswered speech for the prosecution,"68 it is to be expected that our historian will do his best to answer them. Hume's masterpiece of fallacious extenuation,

62 Thomas Babington Macaulay, "History," Edinburgh Review, 94 (May 1828), 359-360; republished in numerous places, including Works of Lord Macaulay, ed. by his sister, Lady Trevelyan (10 vols., Philadelphia, n.d.), I, 225; Fritz Stem, ed., Varieties of History (New York, 1956), p. 81; and Thompson, History of Historical Writing, II, 71 n.

63 Hume, History, II, 303. 64 Ibid., II, 308. 65 Ibid., II, 306. 66 Ibid., II, 305. 67 Ibid., II, 307. 68 Steel, p. 283.

HUME 291

surely, is his comment concerning the mysterious death in prison of Richard's uncle and arch-enemy Gloucester:

The murder of Gloucester (for the secret execution, however merited, of that prince certainly deserves this appellation) was a private deed, formed not any precedent, and implied not any usurped or arbitrary power of the crown which could justly give umbrage to the people. It really proceeded from a defect of power in the king, rather than from his ambition; and proves that, instead of being dangerous to the constitution, he possessed not even the authority necessary for the execution of the laws.69

Here Hume's "insidious candor" allows him to grant that there has been a murder and even to imply that the king was responsible, although it would seem that, if the act deserves Hume's appellation of "secret execution," then strictly speaking it was not altogether "a private deed." But for Hume then to argue that this violent act was a consequence of the inadequacy of the power of the alleged tyrant is a stroke of forensic genius. Nevertheless, such strenuous logical gymnastics show Hume more the "very accomplished advocate" than the impartial judge.

A second culpable defect of Hume's constitutional history, even according to the criteria of his own age, is his inadequate use of the more technical legal scholarship available to him. For example, the internal evidence of Hume's History and other writings makes it seem doubtful whether he had read either Fortescue or Coke. To be sure, he speaks of both. He cites Fortescue in three singularly irrelevant contexts.70 But his treatment of the constitutional arguments of the adherents of Lancaster and York is so anachronistic that it is hard for us to believe that he had ever seen examples of the kinds of arguments that were used.7' He speaks of Coke as the speaker of the Commons who was browbeaten by Elizabeth, as the ferocious prosecutor of Essex and Raleigh, and as the indefatigable investigator of the murder of Overbury by Somerset.72 He cites Coke's Institutes twice in very minor matters.73 But he makes no mention of Coke's great attempt to make the common law a check on the prerogative courts and on the crown itself, or of Coke's subsequent fall. To be sure, Coke did fall, and all of those major cases in which he was not involved were major victories for the crown. But Hume ought to have found Coke's cour- ageous struggle in defense of balanced government and against the

69 Hume, History, II, 310-311. 70 Ibid., II, 407, 511; IV, 559. 71 Ibid., II, 426-428. 72 Ibid., IV, 278, 316, 384, 436. 73 Ibid., III, 460; IV, 433.


prerogative to be an instructive phase of the constitutional narrative that he was recording. Such an account would have given Hume op- portunity to express his disapproval both of the dangerous extent of the royal prerogative and of Coke's own unhistorical assumptions concerning the ancient constitution. Yet Hume does not mention Dr. Bonham's Case, the Case of Proclamations, Glanville's Case, Peacham's Case, or the Case of Commendams. Moreover, although Hume defends James I and Charles I by arguing that their motives were innocent, he could have vastly strengthened this defense by setting forth the legal principles which, in that legalistic age, had encouraged the king to act as he had. This is true of Hume's treatment of the controversy over the seating of Sir Francis Goodwin in Commons, James's controversy over tonnage and poundage and the "Book of Rates" (he does not mention Bate's Case), the Five Knights' Case, Rolle's Case, Hampden's Case, and Charles's final attempt to arrest the five mem- bers of Commons. And elsewhere, it could be shown, Hume's History of England is deficient at those points where legal history is relevant to the broader constitutional issues which he aimed to em- phasize.

Hume's omissions can be accounted for, but not justified. As a youth he had studied law-Scots law, with its basis in civil law-and he had hated it.74 He came to his History, therefore, with both an aversion to close legal studies of any kind and an ignorance of the particular principles of English common law. But during the years in which he wrote the History he was employed as Keeper of the Advo- cates' Library at Edinburgh. Its books were his chief source, and the books that he acquired for the library in part reflected his own scholarly needs. We cannot blame an eighteenth-century historian for failure to use manuscript sources, for these were virtually unavailable. We can fairly blame Hume for not using the secondary works that were, or could have been, in the very library that he governed.

Lastly, Hume's constitutional history of England is not like ours because his assumptions, purposes, and interests differ from ours. He tends to interpret history in relation to an eternal and irrepressible conflict between liberty and authority, a conflict manifesting itself in England under the conditions of England's changing "manners" and economic life and its changing but always mixed constitution. In treating this conflict between liberty and authority, we have seen, he attacks the Whig mythology by emphasizing, perhaps even exaggerat- ing, although not necessarily approving, the power exercised by the

74 Hume, "My Own Life," Essays, I, 2.

HUME 293

monarchy. He is most effective in treating those issues that fit into this context-the tensions of the Anglo-Saxon monarchy, feudalism, the deposition of Richard II, the tragic struggles of James I and Charles I, the Puritans' failure to find an adequate constitutional basis for their rule, and the Revolution of 1688. As a result of this perspective he is less adequate concerning such constitutional achievements as those of the reigns of Henry II, Edward I, and Henry VIII, for they can be shown to best advantage by assuming other frames of reference, not that one. Thus he says little of administrative history, a topic of more recent interest. Of the constitutional accomplishments of Thomas Cromwell, for instance, he says not a word.

Perhaps it is Hume's tendency to interpret events in relation to these and other preconceptions that gives to his History a singularly a priori cast. This aura is enhanced by his habit of casually dropping maxims and obiter dicta about the teachings of history which, in fact, seem less empirically demonstrated than intuitively derived, after the manner of de Tocqueville. To some twentieth-century readers it will appear that these limitations in Hume's work have a further, possibly ironic, significance. Hume, the arch-empiricist, pronouncing that the chief use of history "is only to discover the constant and universal principles of human nature,"75 went to historical experience to learn the eternal truths of human nature as revealed in their historical dimension. But the questions that he asked and the postulates that he assumed conditioned and limited the answers that he found.

Yet even in these respects, in his failures as well as in his successes, his History of England remains an instructive example of eighteenth- century English constitutional thought. And, in relation to our changing styles of constitutional interpretation, many of his conclu- sions seem by no means as mistaken as was supposed a generation ago.

Wisconsin State University, River Falls.

75 Hume, "Of Liberty and Necessity" in An Enquiry Concerning the Human Under- standing, Essays, II, 68.

Article Contentsp. 277p. 278p. 279p. 280p. 281p. 282p. 283p. 284p. 285p. 286p. 287p. 288p. 289p. 290p. 291p. 292p. 293

Issue Table of ContentsEighteenth-Century Studies, Vol. 4, No. 3 (Spring, 1971), pp. i-ii+241-358Front Matter [pp. ]On the Road with the Philosopher and the Profiteer: A Study of Hugh Henry Brackenridge's Modern Chivalry [pp. 241-256]The Debate on Eternal Punishment in Late Seventeenth- and Eighteenth-Century English Literature [pp. 257-276]Hume-Historian of the English Constitution [pp. 277-293]Emblem and Expressionism in the Eighteenth-Century Landscape Garden [pp. 294-317]Erratum: Towm Planning in Frontier America [pp. 317]Archbishop John Tillotson and Johann Gottfried Lessing: The Ideal of an Objective Prose Style [pp. 318-331]ReviewsReview: untitled [pp. 332-336]Review: untitled [pp. 336-342]Review: untitled [pp. 342-345]Review: untitled [pp. 345-348]Review: untitled [pp. 348-349]Review: untitled [pp. 350-351]Review: untitled [pp. 351-352]Review: untitled [pp. 352-353]

American Society for Eighteenth-Century Studies Newsletter [pp. 354-358]Back Matter [pp. ]

Documents

Hume and Constitution