Main currents in American thought

To turn from Calhoun and Stephens to Francis Lieber is to pass from the South to the North, from an obsolescent political theory to a prophetic conception, from the doctrine of states rights to the principle of an evolving state that draws all lesser sovereignties into its orbit by the law of attraction. Joseph Story had educed the legal conception of the organic nature of the federal union from the terms of the Constitution; Francis Lieber provided a philosophical background that justified the same conclusion; and under the combined legal and philosophical attack the compact theory found its philosophical breastworks leveled, its natural-rights theory undermined, and its commanding position effectively turned.

The figure of our first academic political philosopher appears oddly out of place in the midst of South Carolina politicians, yet fate set the studious German in the thick of the Fire Eaters, to cogitate a philosophy of freedom in the land of slavery, and to justify the spirit of nationalism amongst the advocates of particularism. For twenty-one years he lived quietly in his southern classroom and study, disregarding the passions that buzzed about him, elaborating ideas that in later years came to exercise a determining influence upon our academic political thinkers, and publishing ponderous volumes that marked the beginning of the swing away from the natural-rights philosophy and towards the conception of an engrossing political state. Applying German liberalism to American constitutionalism, he succeeded in new-modeling the Federalism of Hamilton and sending it forth to meet the needs of an imperializing generation. He agreed with Calhoun in the latter’s attack on French romantic theories; he agreed with Webster in the conception of the organic nature of the federal compact; but he went further and elaborated a theory of the state as an historical development that receives its form and spirit from the impress of social needs. Building on a foundation provided by Montesquieu and Burke, guided by Hamilton and Marshall, he set about erecting a structure that in the hands of Theodore Woolsey and John W.

Burgess came to overtop all local and state sovereignties—an imperial authority that, in the words of Burgess, must become “the organ of interpretation in last instance of the order of life for its subjects” (Merriam, American Political Theories, p. 299). In that subtle shift of vocabulary from citizen to subject appears the final result of the speculations begun by Lieber, which in rejecting the natural-rights philosophy overthrew the defenses erected by the eighteenth century against an engrossing political state, and set the individual citizen at the mercy of a new divine-right sovereignty. “Really the state cannot be conceived,” according to Burgess, “without sovereignty, i.e. without unlimited power over its subjects; that is its very essence” (Merriam, American Political Ideas: 1865–1917, p. 380).

Between the democratic Stephens and the imperializing Burgess stands the work of Francis Lieber. Born in Germany in the year 1800, son of a well-to-do Berlin family, Lieber’s youth and young manhood fell in stirring times. When only fifteen he served in the Waterloo campaign under Blücher, was wounded, stricken with typhus, and nearly lost his life. From those perilous experiences he emerged a pronounced liberal. During the Metternich reaction he fell under suspicion, served a prison term for his political opinions, graduated from the University of Jena, and in 1822 went to Greece with a group of young German idealists to serve the cause of revolution. Disgusted with the Greek character he made his way to Italy, fell in with the historian Niebuhr, became tutor to the latter’s son for a year, continued his university studies, was a second time imprisoned, and finally in 1826 quitted a hopelessly reactionary Germany, spent a year in England, and then emigrated to America, following the example of Prof. Charles Follen. In Boston he taught gymnastics for a time, edited the Encyclopedia Americana, and in 1835 was appointed to the professorship of history and political economy in South Carolina College. Here he remained till 1856, teaching, writing, and acquiring academic fame. In 1855 he aspired to the presidency of the college, a post then vacant, but his political theories were in disrepute with the legislature, and his views on slavery were under general suspicion.

Becoming embroiled with the politicians, he lost the post, resigned his professorship, and went to New York City, and in 1857 he was called to the new chair of history and political science at Columbia, where he remained till his death in 1872.

The two books on which rests his reputation, Political Ethics (1838–1839) and Civil Liberty and Self-Government (1853), are substantial volumes quite lacking the genial note that marks his Stranger in America (1834), a series of sketchy letters that among other things contains an extraordinarily vivid account of his experiences at Waterloo (Letters VI, VII). To a casual reader these excursions into the philosophy of politics are as soberly respectable as a judge’s wig, as studiously conventional as a professor’s gown. He went about the business of blowing up the accepted Jeffersonian philosophy decently, in the name of the law and under the high sanction of liberty. There can be no doubt that this German liberal was a passionate lover of liberty, and no doubt of his conviction that freedom is possible only in a society under the reign of law. Like Hamilton, he had no local ties or state loyalties to circumscribe his political allegiance. It was natural for him to think in terms of nationality. His bitter experience in Germany had laid open to him the fatal weakness of petty states, and he was loath to see repeated in America the history of warring antagonisms that disrupted the German people. He was a profound admirer of the British constitution, more English than German in his conception of liberty.

The nationalism of Lieber was identical with that of John Adams. It was, in a phrase, government by law. But this government by law was both political and legal. The former, he believed, was admirably provided for by the federal Constitution; the latter was equally provided for by the body of the Common Law; with these twin safeguards, he was convinced, the liberty of the citizen was assured. In his interpretation of the Constitution Lieber added little that was new. He followed the older Federalists back to Montesquieu, and accepted the existing system of constitutional checks as the final word of political wisdom. In Civil Liberty and Self-Government he glorifies the federal system as the apotheosis of representative republicanism, quite unconcerned at its undemocratic features. The sufficiency of the Common Law to all social needs and the implicit sovereignty of the judiciary, he regards as equally axiomatic. “The law,” he says, “must be the lord and our ‘earthly god,’ and not a man, a set of men, or the multitude” (Civil Liberty and Self-Government, p. 208). Yet with the common blindness of the legalist, he proceeds to erect a profession above society, and exalts a group of judges, appointive and not elective, preferably holding office for life, as the embodiment of impartial justice. That it is a presumption contrary to fact seems not to have entered his mind. That judicial interpretation implies judicial legislation, and that judicial legislation implies the sovereignty of lawyers, are logical deductions of which his philosophy made no account.

But if in his exaltation of the Common Law he was as extreme a legalist as Hugh Legaré, in his doctrine of historical evolution he discovered the seeds of freedom in what he calls institutions. By these he means the organic expressions of daily life, or the customs of society which take spontaneous form from its needs. It is no other than the social fabric that Tom Paine was fond of contrasting, in its pervasive and beneficent coöperation, with the repressive tyrannies of the political state. Where liberty reposes thus in the social fabric, Lieber argues, the sovereign power is held in check; and where institutional freedom has not taken root, the political state will run into absolutism.

“Liberty,” he argues, “is a thing that grows, and institutions are its very garden beds. There is no liberty which as a national blessing has leaped into existence in full armor like Minerva from the head of Jove. Liberty is crescive in its nature. It takes time, and is difficult, like all noble things.... It must be defended, developed, conquered, and bled for. It can never be added, like a mere capital on a column; it must pervade the whole body” (Civil Liberty and Self-Government, pp. 334–335, third edition). “Liberty stands in need of character,” and this character is received from social institutions. He then proceeds:

It was the deep-rooted civisme anglais, he believed, that had developed the orderly liberty of the English race; and it is this same institutional spirit that provides the surest check upon the augmenting power of the political state. There can be no tyranny where society is trained and disciplined in liberty.

The creative source and origin of this excellent civisme anglais Lieber discovered in the principle of local self-government; in the exercise of local control of local interests; the enjoyment of innumerable lesser sovereignties within the larger national organism. These lesser sovereignties are both civil and social, and the amount of liberty enjoyed in a given society is measured by the independent vigor with which they function. The exercise of definite rights by the several states is clearly one of the important institutional functions of self-government, but it is only one. The New England town-meeting, county and city governments, are even more important, while outside these civil organisms are innumerable social organisms, exercising their common right of establishing by-laws for their own governance, and spreading the spirit of liberty through all the practices of society.

This, quite evidently, is the spirit of laissez faire applied to political philosophy. A people thus used to order their social affairs, as the English people have long done, will prove competent to manage their political affairs; and the widespread spirit of individual independence will prevent the drift towards unregulated centralism with its corollary of tyrannical power. The conception of institutional liberty embodies much of the spirit of Jeffersonianism, and it goes back in its origins as far as Roger Williams. The states-rights advocates, Lieber implies, were mistaken in seeking the principle of liberty through particularism. In magnifying the individual commonwealth they overlooked the more vital units of self-government. To erect the state above the nation was no lasting solution of the most difficult problem in political philosophy, namely, the coördination of sovereign power with individual liberty; it was only to substitute one sovereignty for another, whereas to encourage the spread of self-governing bodies through society was to provide the necessary countercheck to centralizing power and coördinate liberty and sovereignty under the reign of law.

A stimulating thinker was this German liberal with his historical method and his conception of an evolutionary freedom rooted in the institutions of the English people. He gave a new turn to speculation on the origin and nature of the political state, the immediate consequence of which was the repudiation of the compact theory and natural-rights philosophy by our academic political scientists. The organic conception of the political state fell in with the centralizing movement that followed the Civil War, a movement which the forces of institutional self-government have been powerless to prevent. On the whole the influence of Lieber has been rather against than for that liberty which was so dear to him, and the explanation is to be found in the tragic divorce, in his thinking, of politics and economics. His inveterate legalism and his failure to investigate the economics of politics proved in the end the undoing of his liberalism.