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| The Roots of American Order by Russell Kirk |
The American colonial people were eminently practical, and often suspicious of abstractions. Although most of them were religious, few of them were metaphysical. {p. 347}
[T]he leading public men of the age are influenced deeply by important books published during their own formative years. They read those books when they are young not long after the books have been published; a generation later, the opinions expressed in such books often are reflected in the actions of leading men who had studied them closely when, aged fifteen to twenty-five years, they were seeking for first principles. {p. 348}
Boldly anti-Christian, contemptuous of the Middle Ages, dedicated to speedy intellectual and social changes, developing their own dogmas of the perfectibility of man and society, the philosophes of the Enlightenment expected the swift transformation of civilization on purely rational principles–and meant to assist powerfully in that transmutation. {p. 348}
All of Montesquieu’s writings were eagerly read, in youth, by man of the men who signed the Declaration of Independence and drew up the Constitution of the United States; others absorbed Montesquieu’s ideas at second hand through Blackstone’s Commentaries on the Laws of England. {p. 350}
[Montesquieu] possessed to the fullest that gift for brilliant generalization which is found more often among French men of letters than among any other people, a talent that Alexis de Tocqueville would apply to American in the next century. {p. 350}
[O]ne country’s historic experience cannot be transported to a different land, and customs and habits cannot be altered by positive law–they can only be distorted. {p. 351}
For Montesquieu, the highest achievement of any country’s law is the enlargement of personal freedom. {p. 353}
For political and civil laws are not abstractly ordained or agreed upon at any one moment in history: instead, laws slowly grow out of men’s experience with one another–out of social customs and habits–as, one may add, the common law of England developed. {p. 354}
Forms of government arise out of complex combinations of circumstances and experiences; and governments are reflections of a nation’s laws, rather than the source of laws…Montesquieu discerns three general patterns of government, nevertheless: the republic, the monarch, and the despotism. The republic is sustained by the citizens’ virtue, the monarchy by the king’s honor, and the despotism {like that of the Ottoman’s} by the subjects’ fear. {p. 354}
No man, and no political body or office, ought to possess unchecked power. For the sake of personal liberty and free community, power ought to be divided and hedged. Might this slow the actions of the state? Well, be it so, Montesquieu thought: freedom is better than haste. {p. 355}
Political virtue, Montesquieu had written, is eagerness to serve the commonwealth. {p. 358}
[T]he first form of human association is the little family group. To defend themselves from enemies, such groups league together, and the political state grows slowly out of their military necessity. {p. 363}
Historically considered, Hume continues, the notion of a social compact cannot be substantiated. {p. 355}
In the Constitution, as in the Declaration of Independence, there can indeed be found an idea of compact. But that idea is more nearly related to the Hebrew understanding of the Covenant than it is to Hobbes’ or Locke’s theories. {p. 364}
Revolutionaries of every description, Hume said, the civil magistrate justly puts on the same footing with common robbers. {p. 364}
From Blackstone, most Americans with any interest in the law acquired their principal stock of knowledge of natural law, common law, equity, and “the chartered rights of Englishmen.” {p. 368}
Then as now, English law was not codified, unlike the law of the Continental nations. {p. 369}
Blackstone was a champion of ancient precedent and long-sanctioned usage; had the little-schooled American lawyers not been restrained by him, much of enduring value in the tested English rule of law might have been lost through ignorance or hasty improvisation. {p. 370}
[A]lthough most Americans nowadays think of law as an enactment of a legislature, actually the basis of American law, still applied in countless cases, is the common law which began to develop in England nine hundred years ago. {p. 371}
All looked upon the common law as the nearest approach {however imperfect} to natural law, because it had grown out of the experiences and observations and consensus of many generations of wise men, and had been tested repeatedly for its conformity to natural justice. To Jefferson and his followers, however, the common law was suspect precisely because it was ancient; preferring modernity, they tried in vain to develop an alternative body of peculiarly American laws. {p. 371}
Burke’s famous speech to the House of Commons on conciliation with the American colonies was studied in virtually every high school, as a model of political wisdom, logic, and rhetoric; editions of that address {1775} continue to appear. {p. 375}
By denying Americans their prescriptive liberties, Burke went on, the Crown must imperil the chartered rights of Englishmen. {p. 386}
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