Tocqueville, Lieber, and Bagehot: Liberalism Confronts the World

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Tocqueville, Lieber, and Bagehot

The Palgrave Macmillan Series on the History of International Thought seeks to publish the best work in this growing and increasingly important field of academic inquiry. Its scholarly monographs cover three types of work: (i) exploration of the intellectual impact of individual thinkers, from key disciplinary figures to neglected ones; (ii) examination of the origin, evolution, and contemporary relevance of specific schools or traditions of international thought; and (iii) analysis of the evolution of particular ideas and concepts in the field. Both classical (pre 1919) and modern (post 1919) thought are covered. Its books are written to be accessible to audiences in International Relations, International History, Political Theory, and Sociology. Series Editor Peter Wilson, London School of Economics and Political Science Advisory Board Jack Donnelly, University of Denver Fred Halliday, London School of Economics and Political Science David Long, Carleton University Hidemi Suganami, University of Keele Also in the Series Internationalism and Nationalism in European Political Thought by Carsten Holbraad

The International Theory of Leonard Woolf by Peter Wilson

Tocqueville, Lieber, and Bagehot Liberalism Confronts the World David Clinton

TOCQUEVILLE, LIEBER, AND BAGEHOT

© W. David Clinton, 2003 All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission except in the case of brief quotations embodied in critical articles or reviews. First published 2003 by PALGRAVE MACMILLAN™ 175 Fifth Avenue, New York, N.Y. 10010 and Houndmills, Basingstoke, Hampshire, England RG21 6XS Companies and representatives throughout the world PALGRAVE MACMILLAN is the global academic imprint of the Palgrave Macmillan division of St. Martin’s Press, LLC and of Palgrave Macmillan Ltd. Macmillan® is a registered trademark in the United States, United Kingdom and other countries. Palgrave is a registered trademark in the European Union and other countries. ISBN 1–4039–6247–2 hardback Library of Congress Cataloging-in-Publication Data Clinton, W. David Tocqueville, Lieber, and Bagehot: liberalism confronts the world/ David Clinton. p. cm. Includes bibliographical references. ISBN 1–40396–6247–2 1. Liberalism. 2. International relations. 3. Tocqueville, Alexis de, 1805–1859—Contributions in political science. 4. Lieber, Francis, 1798–1872—Contributions in political science.5. Bagehot, Walter, 1826–1877—Contributions in political science. I. Title. JC574.C583 2003 320.51⬘092⬘2—dc21

2003041438

A catalogue record for this book is available from the British Library. Design by Newgen Imaging Systems (P) Ltd., Chennai, India. First edition: September, 2003 10 9 8 7 6 5 4 3 2 1 Printed in the United States of America.

To the friends of liberty in an unfriendly world

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Contents

Acknowledgments

ix

Chapter 1

Introduction

1

Chapter 2

Why did M. Tocqueville Change His Mind? Civic Virtue and International Society

17

Why did Professor Lieber say No? Nationalism and Internationalism

45

Why was Mr. Bagehot Opposed? Government by Discussion

75

Chapter 3 Chapter 4 Chapter 5

Conclusion: The Legacy of Liberalism

105

Notes

123

Bibliography

151

Index

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Acknowledgments

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hapter 2 is an extension and elaboration of an article that originally appeared as “Tocqueville on Democracy, Obligation, and the International System,” in the Review of International Studies 19 ( July 1993): 227–44, and permission from Cambridge University Press to use this material is gratefully acknowledged. Likewise, a briefer and somewhat different version of Chapter 4 appeared as “Dash and Doubt: Walter Bagehot and International Restraint,” in The Review of Politics 65 (Winter 2003): 89–109, and permission to use this material is gratefully acknowledged. The evolution of this work on nineteenth-century writers proceeded at an appropriately stately pace, carrying over from its inception in the twentieth century to its completion in the third year of the twenty-first. That process allowed time for the author to benefit from the professional and personal aid of many people and institutions. To take the latter first, the manuscript could not have been completed without the support provided by a sabbatical leave from Tulane University in the 1999–2000 academic year, and the Department of Political Science and the Dean of the Faculty of the Liberal Arts and Sciences deserve thanks for making that leave financially possible. Equally, the staff of the Department of International Politics at the University of Wales at Aberystwyth, led by its head, Professor Ken Booth, displayed nothing but generosity and cooperation in supplying an environment conducive to research and writing. The book draws on the resources of a number of research facilities. My thanks go to the staff of the HowardTilton Library at Tulane, and in particular to Mr. Jack Calbert, who was of invaluable help. The staffs of the Henry E. Huntington Library in San Marino, California, the Hugh Owens Library of the University of Wales at Aberystwyth, the National Library of Wales, and the British Library— especially in the Humanities 1 and Rare Books and Music reading rooms— performed yeoman service. The conference “An Intermediary between

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Acknowledgments

Minds: A Symposium on the Career of Francis Lieber,” held on November 9–10, 2001, at Lieber’s institution, the University of South Carolina, was of great benefit, and Mr. Henry Lesesne was gracious to issue an invitation. Other persons whose assistance has been vital also deserve recognition. Professors Adam Roberts and James Farr thoughtfully wrote extensive comments on earlier drafts of the chapter on Lieber—comments that, where I have been wise enough to incorporate them, have significantly strengthened the manuscript. I have profited from conversations with Professors Catharine Brosman and Harry Redman on the journals and reviews of mid-nineteenthcentury France and on Tocqueville’s familial and political connections. Mr. and Mrs. Paul Heim were kind enough to invite me to Langport for a personal tour of Bank House, Bagehot’s birthplace; their generous hospitality complemented the assistance provided by the very helpful representatives of the Langport town library and the Churches Conservation Commission. At Tulane, Ms. Astrid Reim devoted hours to locating microfilmed newspaper reports of some of Lieber’s lectures, and Mr. Matthew Kenney helped greatly in surmounting various problems arising from the vagaries of computers. The intelligent and constructive suggestions made by a number of readers, including the reviewers of Palgrave, deserve special mention. Finally, I would be highly remiss if I did not pay tribute to the encouragement and support given by family members—most particularly Mr. and Mrs. W.D. Clinton, and Mr. and Mrs. James K. Clinton—in allowing me to see this project through to completion. They mean more to me than can easily be expressed in these pages. Given such a list of assistance, it may seem that there remains almost nothing for the putative author to have contributed to this volume. Needless to say, the responsibility for all errors and weaknesses remains mine alone.

CHAPTER 1

Introduction

Liberalism at the international level has always been vague and ambiguous.1

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hether to reduce or to confirm ambiguity, one may turn to history. With its appreciation for the individual and for private life, and its professed distaste for coercion, liberalism has often given the impression of acknowledging the “great external realm” of international politics only reluctantly. It is the intention of this work to examine classical liberal attitudes toward international life by reference to the thought of three observers of another era of international change and assimilation, even “globalization,” perhaps similar to our own, the middle of the nineteenth century. The three men who form the subject of this book are remembered in very different ways, and none is thought of as first and foremost a theorist of international politics. Alexis de Tocqueville stands high in our intellectual heritage as a synthesizing sociologist and an interpreter, both to the Europe of his day and to posterity, of American and pre-Revolutionary French society. Francis Lieber holds a secure place in the history of the development of the legal regulation of warfare, which inevitably involves his work in discussions of the ethical responsibilities of states and the justifiability of war, subject to humanitarian restraints. Walter Bagehot’s name remains a byword for political analysis that in the place of the exegesis of formal charters substitutes the identification of functions and the interpretation of real power relations; in particular, no treatment of British politics is complete without a reference, preferably with witty quotation attached, to his dissection of The English Constitution.

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Liberalism Confronts the World

Fame is far from an equal-opportunity employer, and their latter-day renown is not equal. Tocqueville commands a recognition not matched by the other two, as measured by the continuing stream of scholarship addressed to the questions he raised and purporting to disprove, expand on, or defend his methods or conclusions. John Stuart Mill, a friend and political ally, compared him favorably with Montesquieu, declaring Tocqueville’s mind “of a soberer character” and Democracy in America a book “such as Montesquieu might have written, if to his genius he had superadded common sense.” On the other hand, James Bryce ranked Montesquieu above Tocqueville and thought Bagehot’s “intellect altogether worthy to be compared even with that of the earlier and greater of these two illustrious men.” A contemporary American reviewer averred, “as a political philosopher … Lieber stands far in advance of De Tocqueville,” contending that the “work of the latter, at most, can only be considered a supplement to that of the former” and arguing that “[t]here is not a political idea, much less a principle of political science propounded by De Tocqueville which Lieber had not before announced in his ‘Civil Liberty.’ ” More than 60 years after Lieber’s death two chroniclers of his life who were far from uncritical of his ideas described him as “one of the nineteenth century’s most impressive academic figures.” An evaluation at the end of the twentieth century placed Lieber in a respectable second rank following Tocqueville among commentators on the American political system; further, Lieber has recently received renewed attention for his role in the evolution of the discipline of political science in the United States. Likewise, well after the death of all three of our subjects, no less an authority than A.V. Dicey declared, “The English thinker with whom Tocqueville can be most profitably compared is Bagehot.” He found a number of points on which “[t]hey have much in common:” “Both are born critics; both are supremely interested in political speculations; each by force of a genius for analysis could attain, at moments, to a sort of prophetic foresight. … Both writers are governed by that passionate love for truth which makes prejudice almost impossible.” Among policy-makers, Bagehot may call upon the support of prime ministers from Gladstone to Heath; Woodrow Wilson paid tribute to his influence over British fiscal policy as “a sort of supplementary chancellor,” no matter which party was in power; and McGeorge Bundy found him an authority for foreign policy, terming Bagehot’s Physics and Politics “a revelation” with valuable lessons for democratic societies in managing the problems raised by nuclear weapons. Lieber’s stoutest champion was probably Secretary of State Elihu Root, who told the American Society of International Law in 1913 that Lieber’s name was “honored by scholars and patriots the world over,” and added that if the society “were about to choose a patron saint, and the roll were to be called, my voice for one would answer ‘Francis Lieber.’ ”2

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None of these encomia redresses the balance in the reputations of these figures at the start of the twenty-first century, but they do indicate that, in the field of international politics at least, all three have a claim to our attention, not only for their merit—though that could be argued to be considerable in each case—but also for their representativeness. Their writings span the second and third quarters of the nineteenth century, beginning, for our purposes, with the publication of the first volume of Tocqueville’s Democracy in America in 1835 and of Lieber’s Manual of Political Ethics in 1838, and concluding with Bagehot’s death in 1877, years in which the fame of all three was widespread. They also represent the three major countries in the van of political liberalism, Tocqueville in France, Bagehot in Britain, and Lieber in the country where he spent practically the whole of his adulthood, the United States. To the extent that the earlier era in which the values of liberalism were thought to be triumphant holds lessons for a world in which liberalism is again believed to have seen off its competitors, their thoughts are also useful as a contemporary lesson, and perhaps as a warning. Their personal histories were as varied as have been their posthumous reputations. Through his brief life, Tocqueville displayed the manners appropriate to the courtesy title of baron that he chose not to employ; this greatest of analysts of democracy instinctively held more in common at a personal level with his fellow aristocrats, even those who were his strongest political opponents, than with members of the bourgeoisie, even those who were his closest allies. Bagehot’s forbears were also long established, but as respectable merchants and latterly bankers, occupying a position as one of the first families of the little Somerset town of Langport. Just as Tocqueville revered the Normandy chateau that bore his name, which he and his wife retrieved from ruin, and to which they returned—fleetingly between legislative sessions during his active political career, and permanently following his involuntary retirement from it—so the Bagehots made frequent visits to Herd’s Hill, the home that Bagehot’s father had purchased when Bagehot was a boy and in which the senior Bagehot was still living when Bagehot’s death there brought to an end a life even shorter than Tocqueville’s. Lieber’s family was as thoroughly middle class, but the wartime destruction of much of his father’s property in East Prussia had deprived the family of any income other than that derived from its ironware business carried on in the family home in Berlin. Lieber’s departure from Prussia for political reasons would involve him in work as a manual laborer in London and a swimming instructor in Boston before he established himself in the academic career that would occupy the bulk of the forty-five years he lived in the United States.3 None of the three was primarily a practicing politician, but all had brushes with those who were. Tocqueville’s parliamentary career spanned

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over a decade, from 1839, when he was elected to the Chamber of Deputies under the July Monarchy, through the Constituent Assembly elected in the confused aftermath of the overthrow of the monarchy in 1848, to the National Assembly of the Second Republic, in which he served until the dissolution of that body in the coup d’état of 1851. For six months in 1849 he served as foreign minister. Lieber, so far as is known, never considered running for office in the United States, although he did hope for election to the Frankfurt Assembly during a brief return to Prussia in 1849, and for appointment to a diplomatic post in the service of the United States, especially in the years following the Civil War. Neither ambition was realized, and his highest attainment was umpire to the commission charged with settling claims arising out of the Mexican–American War, which post he filled from 1870 until his death in 1872. Bagehot was a parliamentary candidate once, in Bridgwater in 1865, and seriously considered making the attempt on at least two other occasions, but failed in each instance (in the case of Bridgwater, possibly through corruption) and relinquished the idea in the last years of his life.4 Lieber and Tocqueville were contemporaries, the former being born in 1798 and the latter in 1805. Moreover, the two men met at an early stage, on September 18, 1831, at “old Mrs. Otis’s” house in Boston, when Tocqueville and Gustave de Beaumont were slightly less than halfway through their American tour, and while Lieber was still living in that city before his appointment at South Carolina College in 1835. Lieber recorded in his diary for that day that the two French visitors “are here to study the prisons,” but in the frequent conversations they held that fall they ranged far beyond the official purpose for the Tocqueville–Beaumont journey. The chronicler of their travels named Lieber as one “of those individuals who contributed most to their understanding of the United States,” an assessment that seems borne out by the surviving accounts of their discussions. For example, Tocqueville recorded in his diary for September 22 an observation by his new American acquaintance: Mr. Lieber … said to me this evening, We Europeans, we think to create republics by organizing a great political assembly. The [American] Republic, on the contrary, is of all the governments the one that depends most on every part of society. Look at this country! The Republic is everywhere, in the streets as in Congress. If an obstacle embarrasses the public way, the neighbours will at once constitute themselves a deliberative body; they will name a commission and will remedy the evil by their collective force, wisely directed. Does a public ceremony, a banquet, take place, you will likewise see a gathering, a deliberation, and an executive authority

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arising therefrom. The concept of an authority preceding that of the parties interested does not exist in anyone’s head. The people has the Republic to the marrow of the bone. One may compare this with the well-known passage in Democracy in America on the art of associating together: If some obstacle blocks the public road halting the circulation of traffic, the neighbours at once form a deliberative body; this improvised assembly produces an executive authority which remedies the trouble before anyone has thought of the possibility of some previously constituted authority beyond that of those concerned. Where enjoyment is concerned, people associate to make festivities grander and more orderly. … There is no end which the human will despairs of attaining by the free action of the collective power of individuals. The parallel could hardly be clearer between what Tocqueville was to write on the relationship between laws and mores, and what Lieber remarked to him in Boston: “For my part, I feel myself inclined to believe every day more strongly that constitutions and political laws are nothing in themselves. They are dead creations to which the morals and the social position of the people alone can give life.” Similar comments by Lieber on the relations between the sexes and the respectability of all careers in the United States made their way into Democracy; it was no wonder that Lieber, “more than any other publicist in the United States, would parallel Tocqueville’s political philosophy in his own writings.”5 As with most professional collaborations and personal friendships, relations between the two were not always smooth. So impressed were Tocqueville and Beaumont with their American interlocutor that they asked Lieber to prepare the English translation of their report on American penitentiaries, a project on which he was “all the time engaged” in April 1832, not only translating the text but, with typical Lieberian energy, adding copious notes that at some points rivaled the original manuscript in length and at others flatly disagreed with it. When Tocqueville received the published work in November 1833, he complained to Beaumont, “It happens that I have not been completely satisfied with his translation. He has loaded it down with notes in which, in his capacity as a foreigner, he feels himself obliged to contradict the smallest truths that we utter about America. … The whole of his work has led me to believe that the Americans haven’t felt themselves even yet well enough treated by us. Those people there have an

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incorrigible conceit.” Could there have been a lingering complaint in Tocqueville’s mind when, a decade later, Lieber sought his aid in securing election as a foreign associate of the Institute in Paris? In the correspondence that followed, it is difficult to decide which is the more regrettable, Lieber’s repeated unashamed importuning of Tocqueville to lobby his fellow members of the Institute to gain Lieber’s election, or Tocqueville’s deceptiveness in the equally frequent assurances from him and from his wife that he was doing everything possible to satisfy Lieber’s wish (which they assured him was their wish as well), while, so far as the surviving record indicates, in fact doing nothing at all. In the end, Lieber was elected, but not until the charade had gone on for years.6 This history of petty demands and tergiversations does not call into question the friendship between the two, but rather illustrates it. They continued to correspond through the 1830s, 1840s, and 1850s. When Tocqueville, developing his ideas on the French colonization of Algeria, consulted Lieber on American expansion to the west, Lieber responded with an extended analysis of the character of those who became settlers and their relations with local and national political authorities, observations that Tocqueville apparently took into account in preparing his parliamentary report on Algeria in 1847. Although Tocqueville did not again visit America, when Lieber returned to Europe in 1844, he met Tocqueville several times in Paris— including June 10, when the pair conversed at the much-desired Institute, where, the ever-hopeful Lieber wrote his wife, “I was at home”—and exchanged letters, including one from Lieber, then in Hamburg, in which he reiterated what the recipient had himself so often said, “the highest interests of the cause of civilization require France and England to be united.” Upon assuming the direction of Le commerce in 1844, Tocqueville sought foreign correspondents who would contribute articles on political and social developments in their countries; under elaborate arrangements of secrecy instituted so that he could write with complete candor, the indefatigable Lieber supplied two reports from the United States before Tocqueville was forced to sever his connection with the journal. Although Lieber does not seem to have visited Paris during his shorter trip to Europe in 1849, when he returned to Frankfurt after the revolutions of 1848 only to see his hopes for a united, liberal German state dashed, he did see Tocqueville on his final European sojourn in 1851. The two walked in the Tuileries and discussed their shared antipathy toward Louis Napoleon. Tocqueville informed Lieber immediately after the coup at the end of 1851 that he could no longer correspond on political subjects, but they continued to write until Tocqueville’s death in 1859, and Lieber exchanged letters with Beaumont and with Tocqueville’s widow after that date.7

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Little wonder, then, that Lieber praised Tocqueville highly in a widely reprinted lecture given a few months after the latter’s death. (Of course, in eulogizing his late friend, he was at the same time complimenting himself, given that at least twice in the preceding decade he had privately voiced the opinion that the “two highest statesmanlike political philosophers … now living are De Tocqueville and Lieber,” granting that “[i]n some things de Tocqueville is superior to me; in some I am above him.” Tocqueville was in good company; on other occasions, Lieber ranked his own contributions with those of Aristotle, Thomas More, Hobbes, Grotius, and Pufendorf.)8 Bagehot was a generation younger than Lieber and Tocqueville, as well as of a different nationality, though that would not have precluded contact between them. During his yearlong stay in London in 1826, the year of Bagehot’s birth, Lieber applied for a chair in Germanic languages at the University of London, then in process of formation, but departed for the United States before the new institution was in a position to make a decision. One can only wonder what the result would have been if Lieber had been successful in his application and had still been at the university 16 years later when Bagehot went to University College, London: if he had been instructed by Lieber, would Bagehot have salted his essays with fewer wry references to obscure, verbose German professors—or more? The two nearly crossed paths again in 1851, when both visited the Great Exhibition. Bagehot toured the Crystal Palace on May 7 and found the American exhibit (and the Americans) there distinctly unimpressive; Lieber came in July and afterwards had to admit that the exhibit, at least, deserved the criticism it had received.9 In one sense, Lieber was as much the contemporary of Bagehot as of Tocqueville, for the long life of the tough Prussian American meant that Bagehot survived him by less than five years. Both of them witnessed a series of important events that Tocqueville did not, from the American Civil War to Italian unification and the wars that culminated in the creation of a united Germany. Lieber and Bagehot were both heartened by events in Italy, but they differed strongly and publicly over the other crises of the 1860s and early 1870s. The decision of the British government to grant the Confederacy belligerent status, though not diplomatic recognition, about which Bagehot insisted “we could not decorously have done otherwise,” Lieber fulminated was “unwise and injudicious,” showing London “very dull and heavy.” Lieber was passionately devoted to the preservation of the Union; Bagehot believed the world’s interest would be better served by the creation of two states where there had been one. Bagehot was appalled by the monetary indemnity imposed on France at the conclusion of the Franco-Prussian War, criticizing Bismarck for having “mulcted [France] to a dangerous and preposterous amount,” while Lieber would have demanded

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even more stringent terms. The two may simply have disagreed with too much frequency and conviction to become correspondents, much less friends.10 Separated by only the Channel, not the Atlantic, Bagehot and Tocqueville moved in the same milieu and shared many acquaintances. The liberal elite of England welcomed both, and their mutual friends included W.R. Greg, George Cornewall Lewis, Nassau William Senior, and the Grotes, both the learned George and the formidable Harriet. They both frequented the Parisian salon of Julius and Mary Mohl. Senior’s daughter, Mary Simpson, who also knew both men, called Tocqueville “the most delightful of all the celebrated men who were to be met at Madame Mohl’s,” and in the same volume of reminiscences reprinted the letter of congratulations that Mary Mohl sent to Eliza Wilson on the news of her engagement to Bagehot. We know that Tocqueville and Bagehot met on at least one occasion, which also stands as an illustration of the intertwining of their circles. James Wilson, Eliza’s father and a member of Palmerston’s government, hosted a dinner on July 4, 1857, at which Greg and the ubiquitous Madam Mohl were both present, along with Mrs. Wilson and three of their six daughters (including Eliza). According to George Ticknor, a visiting American also in the party, the other person at the table was “a barrister,—whose name I did not get,” and we have the testimony of Bagehot’s sister-in-law that the young man, who in fact had already discarded the idea of a legal career, was Bagehot. Ticknor continued, in his letter to his wife, “After dinner Tocqueville”—making his final visit to Britain and being lionized by all society—“came in, and we all changed language at once.” To complete the picture requires only to add that Ticknor, a professor of German at Harvard, was also a friend of Lieber.11 Nothing could have been more respectful than the manner in which Bagehot referred to “the great and gifted De Tocqueville” in his published work. When, in his review of the published journals of Senior, he wished to emphasize the greatest possible contrast with “some nameless fool or grave charlatan,” he suggested the name of Tocqueville. Yet such obeisances was rarely unaccompanied by suggestions of disagreement. When he cited Tocqueville’s belief that parties not prepared to debate serious political issues of great moment would degenerate into mere factions struggling only for personal advancement, it was in order to observe that the consensus between moderate Liberals and moderate Conservatives in support of Lord Palmerston had produced no such consequence. He noted Tocqueville’s conviction that absorption in the making of money was a sure road to the individualism that would sap the citizenry’s determination to protect its liberties, but qualified this dictum to apply only to “mere bargain and sale” connected

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“to no healthy industry.” If, on the other hand, “the commerce were of the healthy and legitimate sort which is based on regular industry,” it was “perhaps the most innocent employment of man” and Tocqueville’s criticism “might be thought to be the expression, if not of a disappointed man, yet of a disappointed literary class.” He acknowledged Tocqueville’s remark that only devotion to the several states and no national patriotism existed in America, but called this view “perhaps exaggerated” even in 1833.12 All these differences were within the realm of normal political debate, but one disagreement bore a profoundly personal stamp for Tocqueville. The same event that retired him from public life brought Bagehot into it: the Prince-President’s coup d’état in December 1851. The youthful Bagehot happened to be in Paris at the time and wrote the articles that established his literary reputation, in the form of a series of letters from the French capital. Addressed to and published in the Unitarian journal the Inquirer, they seemed designed to shock its readers’ liberal beliefs and grave dispositions. The letters were bright, cynical, and amusing (though also perceptive, apt, and penetrating), but their worst fault in the eyes of the subscribers to the Inquirer was that they supported the coup. The approaching nearly simultaneous conclusion of the terms of both the Legislative Assembly and the President, combined with the constitutional proscription of presidential reelection and compounded by agitation among the radicals in the Assembly and on the Parisian streets, had roused the fear, particularly among small proprietors, of a repetition of the pitched battles of May and June 1849. Bagehot insisted that some sort of revolutionary upheaval had been inevitable, because the national character of the French had shown itself incapable of making constitutional government work, and that therefore “the President was, under the actual facts of the case, quite justified in assuming the responsibility” of establishing, at least temporarily, a dictatorship. Disclaiming “any highflown speculations about liberty or equality,” he argued that society had been in danger of assault by socialist revolutionaries and that “no legal or constitutional act could have given an equal confidence” to that produced by Louis Napoleon’s seizure of power. “What was wanted was the assurance of an audacious government, which would stop at nothing, scruple at nothing, to secure its own power and the tranquillity of the country,” and the president had given every Parisian that assurance. “I have endeavoured to show you what was the crisis, how strong the remedy, and what the need of a dictatorship,” Bagehot concluded in the first of his seven letters. “I hope to have convinced you that the first was imminent, the second effectual, and the last expedient.” “I observe much excellent weeping on the Cromwellian deportations and the ten years’ exile of Madame de Stael,” he wrote satirically in the second, but

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for him the argument of necessity prevailed: “Six weeks ago society was living from hand to mouth: now she feels sure of her next meal. And this, in a dozen words, is the real case—the political excuse for Prince Louis Napoleon.”13 Nothing could have been further removed from the view of Tocqueville, who published his account of the coup under yet more dramatic circumstances. Not being permitted to contradict the official version of events within France, he took advantage of the presence of Harriet Grote in Paris at the time and gave her a short article he had immediately composed, which combined a recitation of events with a denunciation of the motives and the actions of the President. Through their mutual friend Henry Reeve she saw to its publication in London, in the form of an anonymous letter to the Times on December 11, 1851. Its conclusion could have been describing a different world from the one that Bagehot had seen: “Force overturning law, trampling on the liberty of the press and of the person, deriding the popular will, in whose name the Government pretends to act,—France torn from the alliance of free nations to be yoked to the despotic Monarchies of the Continent,—such is the result of this coup d’état.” Tocqueville also warned against those British observers (like Bagehot, although his letters had not yet appeared) who defended the actions of Louis Napoleon: We are grieved … that any English writers should seem to applaud what all honest Frenchmen condemn. … If the judgment of the people of England could approve these military saturnalia, and if the facts I have related, and which I pledge myself are accurately true, did not rouse its censures, I should mourn for you and for ourselves and for the sacred cause of legal liberty throughout the world; for the public opinion of England is the grand jury of mankind in the cause of freedom, and if its verdict were to acquit the oppressor the oppressed would have no other recourse but in God.14 Although Tocqueville had served as rapporteur of a special committee of the Legislative Assembly the previous summer that had unsuccessfully recommended a revision of the Constitution allowing the President to seek another term, he was among the deputies who gathered at the Bourbon Palace to protest the developing seizure of power by the President, who were driven out of the Palace by armed force, who held a rump session elsewhere at which they continued their opposition, and who were arrested on December 3 and conveyed in a prison carriage to Vincennes, where they were held until their release the following day. The immediate hazard of this rough treatment was

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to his delicate health; the more lasting blow was the abrupt termination of his political career. He declined to take the oath of loyalty to the new imperial regime, and he refused to maintain formerly cordial relations with colleagues, friends, and family members who chose otherwise.15 For the young Bagehot, who had only recently completed his training for the bar, had found it distasteful, and was torn over his plans for the future, “Paris and the writing of these Coup d’État articles … effected the cure,” according to his sister-in-law and earliest biographer. “Walter Bagehot returned from Paris in 1852, refreshed, braced, and determined” to follow the path in which he succeeded throughout his life, of combining banking and journalism. For the unwell Tocqueville, who saw not only his own career but also his hopes for a regime that could give his country both liberty and equality shattered, the coup could have no such happy issue. “What has just happened in Paris is abominable, in form and substance, and when the details are known, they will appear even nastier than the event as a whole,” he mourned in a letter written in mid-December that underscored his bitterness. “The nation, at this moment, is mad with fear of the socialists and a passionate desire to regain its well-being. It is incapable and, though I say it with much regret, unworthy of being free.” It is pure speculation, of course, but is it too implausible to believe that their disagreement over this event, so central to the lives of both men, destroyed any possibility of the mutual appreciation that their shared opposition to centralization, dogmatism, and illiberality might otherwise have engendered?16 Recitation of Tocqueville’s beliefs, which Lieber also held, raises the final preliminary question for this study: Were these three figures in fact liberals? All were adherents of individual liberties, limited government, and the rule of law. All distinguished civil society from the state, and the autonomous individual from both, and proclaimed that neither state nor society could legitimately depart from its duty of safeguarding individual rights, though none was a straightforward adherent of contractarian interpretations. Each would have much preferred the label of “liberal” to that of “democrat,” and all perceived an inherent tension between liberty and equality. In each case, that liberal label would have been appropriate, but not without qualification. Tocqueville avowed that Le commerce was, while under his direction, the “only authentic representation of liberal ideas” among French newspapers, but his liberalism has been termed both “unusual” and “strange,” primarily because of his well-known indictment of the evils of “individualism” and his corresponding emphasis on the individual’s role as citizen—an emphasis that had much more to do with Machiavelli, Montesquieu, and republicanism than with Locke, Bentham, and the social contract. In Tocqueville’s view,

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a liberalism that laid excessive stress on the distinction between public and private and forbade the society from intruding on the private realm ran the risk of undermining both public and private interest rightly understood. Persons who busied themselves solely with material gain neglected their public duties; if they failed to watch over the state carefully and sharpen their sense of public responsibility continually through taking part in the great issues of politics, they would see their liberties disappear. Even if they were then allowed to go on pursuing prosperity, they would do so only at the sufferance of the state, and they would see their spirits impoverished by this constriction of their natural capacities. Moreover, the state had a responsibility to promote virtue among its citizens, by opening to them avenues for political participation and by acting in a “heroic” way that reminded them that there was more to political life than a sordid competition for office and the opportunities for personal enrichment that it might provide. It was this distaste for quiet and quotidian management that, particularly in the field of foreign affairs, unnerved Tocqueville’s liberal contemporaries. In his writings, “Tocqueville may indeed be called a liberal, but only if one recognizes that his works weave together threads that remind one at times of a ‘conservative’ like Chateaubriand, a ‘liberal’ like Constant, or a ‘radical republican’ like Michelet.”17 “He is a Liberal both as man and as scholar,” declared Lieber’s colleague in the study of international law, J.C. Bluntschli, an endorsement that sounds emphatic but may be vitiated somewhat by questions about Bluntschli’s own liberalism. A later observer found that the term only began the list of appellations that had been applied to Lieber: … a liberal, a nineteenth-century conservative, a nationalist, an internationalist, a preacher, a reformer, an idealist, a man of practical bent, a middle-class apologist, and a zealous European revolutionist … a scholar, political scientist, sociologist, author, publicist, political economist, teacher, historian, philologist, penologist, encyclopedist, international lawyer, military expert, and athlete. Lieber’s devotion to constitutionalism and to the institutions of civil society certainly appears to qualify him as a liberal; it is his intense nationalism and his repeated invocation of an organic interpretation of the state that have caused some to wonder whether the liberal camp is his natural home. If the state was “the society of societies,” might it not “absorb all [other] societies and social relationships (and thus, by definition, all the media for the realization of individuality) under its ‘protecting’ wings”? The most emphatic of

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the three in discounting the notion of a social contract among individuals who had previously been entirely and naturally free, Lieber was nonetheless equally certain that his idea of the primordial state responding to the natural need of humans for society was fully compatible with restraints on the reach of government and the largest scope for individual freedom. More thoroughgoing than either of the others in rejecting political interference with market forces, he held as well that nationalism did not imply governmental centralization. Once inculcated with nationalist sentiments, citizens could freely cooperate within a decentralized political structure and a free economy. Some of Lieber’s interpreters have questioned the ease with which all these ingredients could be combined in any sort of liberal recipe: which was the main dish and which the accompanying spices? There were occasions on which Lieber ranked national unity above liberal constitutionalism.18 Bagehot held to the liberal faith in the power of reason to animate the search for concord among different interests. “He was a thorough Liberal,” proclaimed his collaborator R.H. Hutton, before immediately limiting the scope of his claim by adding, “so far as a steady belief in the educational advantages of popular institutions, and especially of wide and directly practical discussions, could make him a Liberal.” The only one of the three who could adhere to a political party under the banner of Liberal, Bagehot did so adhere, though without undue partisanship. “All his life, Walter Bagehot was an official Liberal,” the editor of the contemporary edition of his writings has asserted, “but apart from his belief in the benefits of free trade, there was little to distinguish him from a progressive and open-minded Conservative.” He counted the Conservative leaders Sir Stafford Northcote and Lord Carnarvon among his friends and distrusted what Hutton called “the enthusiasms of the Liberal Party.” His opposition to an extension of the franchise that would give effective political control of the nation to the working class and result in “the virtual disfranchisement of the educated and propertied portion of the nation” brought him into conflict with “the advanced Liberal party,” and revealed him to be, in this sense at least, a more “aristocratic liberal” than Tocqueville. He combined a confidence that rational discussion could peacefully resolve most disagreements without recourse to violence, with an abiding skepticism that a mass electorate was capable of such discussion. To think otherwise was, he declared, to place the abstractions of a political dogma above the observation that one could make of most people in real life; and it was this conservative preference for the tangible over the notional that gave rise to the sentiment expressed in a comment attributed to him after his death: “I hate the Liberal enthusiasts. I feel inclined to say, ‘Go home, Sir, and take a dose of salts, and see if it won’t clear it all out of

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you.’” He “blended two gifts rarely conjoined; a mystic and conservative moral physique with a liberal and defining intellect.”19 Finally, if one adopts the definition of liberalism advocated by Anthony Trollope in a novel published while Bagehot, at least, was still alive, then Tocqueville, Lieber, and Bagehot all stood aside from liberalism. Trollope places his statement of political creed in the mouth of Plantagenet Palliser, Duke of Omnium and Gatherum and Liberal prime minister, speaking to his younger friend, the MP Phineas Finn: … with the Conservative all … improvement is to be based on the idea of the maintenance of … distances. I as a Duke am to be kept as far apart from the man who drives my horses as was my ancestor from the man who drove his, or who rode after him to the wars,—and that is to go on for ever. … The doctrine of Liberalism is, of course, the reverse. The Liberal, if he have any fixed idea at all, must, I think, have conceived the idea of lessening distances,—of bringing the coachmen and the duke nearer together,—nearer and nearer, till a millennium shall be reached by— “By equality?” asked Phineas, eagerly interrupting the Prime Minister, and showing his dissent by the tone of his voice.20 So, too, would have all three of our authors dissented, and by more than vocal tone. Tocqueville was indeed convinced that equality was the primary fact of the age, and although he resolutely proclaimed himself neutral between aristocracy and democracy, he did allow that equality was more natural than hierarchy and therefore more just. Yet as Mill recognized, he assumed that, while the process of leveling would continue until all “artificial inequalities” had been removed, there would remain the inequalities “which are the natural and inevitable effects of the protection of property.”21 Lieber even more resolutely opposed any measure of forced economic equalization, and his observation of ill-educated voters in both South Carolina and New York confirmed his rejection of universal suffrage. Bagehot, as just noted, shared his skepticism. This economic component of their liberalism, though it will not form one of the major themes of the present volume, is a defining characteristic of their thought that drew them away from egalitarianism (and could serve as a forecast of contemporary egalitarians’ criticism of neoliberalism in the international economy). Not bound by one party line, then, these three authors represent the variety of mansions within the house of liberalism. They allow us an insight into

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the contributions of liberal thought to nineteenth-century understandings of international politics, and they offer both guidance and cautionary examples to liberalism as it confronts the world at the turn of the twentieth to the twenty-first century. By reviewing what they had to say about their time, we may gain a more secure grasp of our own.


CHAPTER 2

Why did M. Tocqueville Change His Mind? Civic Virtue and International Society

[F]or Liberalism the peaceful coexistence of a number of nations, each organized as a State and conducting its relations with its neighbours on the same principles that govern the relations of free and self-conscious individuals, is a necessary condition of political stability and progress.1

O

f all the debates that did not occur in the nineteenth century, one of the more interesting would have been between Alexis de Tocqueville of 1839, newly arrived in the Chamber of Deputies and apparently spoiling for a fight with any convenient foreign adversary, and Foreign Minister Tocqueville of 1849, the professed advocate of international peace and quiet diplomatic resolution of disputes. A dialogue between the two Tocquevilles would have done much to illuminate the political issues that divided France and preoccupied Europe in the middle of the nineteenth century—and continue to be matters of concern a century and a half later. It would have been a stimulating contest, filled with articulate passion on either side. The younger man would no doubt begin by repeating the defiant words of his maiden speech to the Chamber, saying that even in a situation in which France was isolated in the face of the united action of the other great powers, “If she can do nothing by herself, I submit that at least she is capable

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of preventing what others want.” If charged with imprudence, he might retort that “prudence is often more reckless than recklessness itself,” or draw on the notes he made in 1840 for a general policy for France in Asia, in which, after recalling, “I hear it said, ‘What does the East matter? We should be building railways,’ ” he termed such a concern with domestic improvements “absurd as it is cowardly.” In fixing its attention on the material well-being of the people rather than raising their spirit, any French government would be giving way to the lowest passions and perhaps opening itself to revolutionary overthrow by a populace mistakenly convinced that a concern for order at home necessarily led to pusillanimity abroad. Instead, the government should learn, as he mentioned in his notes for a speech of November 30, 1840, that “one can oppose revolutionary passions only with national passions.” If France was isolated from the other great powers, as it was in these two years, it still ought not to accept their action tamely— “in the face of this extremity, a thousand times better to go to war.” After all, as he was to declare in 1843, “if modesty is a virtue among individuals, it is one poorly suited to a great people,” and, as he said in the speech of 1840, “A government that cannot make war is a detestable government.”2 The Tocqueville of a decade later might begin with a statement from his electoral circular of May 1849, in which he praised that very search for “regular government and thereby material prosperity” that he had disdained in 1840, and a reference to his letter to Henry Reeve the following month that he would remain at the Foreign Ministry “only as long as I can be useful to the great cause of the steadying of society. … working to maintain general peace. … [and] drawing away from the world the blight of general war.” As for facing a hostile coalition, he could quote his speech of June 7 to the new National Assembly of the Second Republic, in which he contended that the chances of it “never … have … been smaller,” that “the danger appears to me chimerical,” that in fact it “does not exist!” Indeed, the surest way to create such a “hostile pact” would be to suppose it existed, thereby frightening public opinion in France in a way that would then act as an irritant in the country’s relations with others. The policy, then, urged by French interests as well as French honor, and by “the interest of humanity,” because war “could bring on, not only for us but for the whole civilized world, a hideous shipwreck,” “is today the policy of peace.” In a rebuke to his younger self, he might draw on the notes he prepared in October and November 1848, after his appointment as French delegate to a general conference (later aborted) on the Austro-Sardinian war: “There are people in France whose policy both at home and abroad is an anachronism. When one asks them what they would do today, they answer by telling you what they would have done fifty years ago. To situations profoundly dissimilar, they apply identical reasoning.”

Why did M. Tocqueville Change His Mind?

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Whatever might have been an appropriate course in the 1790s, “You have another means” in the middle of the nineteenth century: “Your example.” And after he left the Cabinet—still more after he was removed from public life altogether—he continued to speak in terms that could serve him in carrying on his side of the debate. He could say to the former Tocqueville, as he did say to Nassau William Senior in conversations in 1851 and 1853, that Louis Napoleon was “rash and wrong-headed,” a gambler who might be tempted by “the intoxicating effect of military glory” into war. “[H]e has notions about the part which France ought to play in the affairs of Europe which might make him a very disagreeable, perhaps a very dangerous, member of the political world,” he warned his English friend. Britain might be able to take steps to ward off the danger. “But to us Frenchmen the consequences of war must be calamitous.”3 In seeking to understand how a man noted for the fervor with which he held his views could become entangled in such a dispute with himself, one might explain the disparity by arguing that his earlier statements were marked by immaturity, while his later stance was that of seasoned judgment and experience. In his Souvenirs, written for his own use and not for publication in the immediate aftermath of his forced retirement, Tocqueville admitted that during his eight years in opposition to the governments of the July Monarchy he “carried on lively warfare (even, I confess, too lively where foreign affairs were concerned) against the administration.” His experience as foreign minister had led him “to think that we attacked the foreign policy of Louis-P[hilippe]’s government too much (although that government really did lack both shame and patriotic feeling, but its difficulties really were great, too).” Or one could assert with an early biographer that the need to concert his stated views with his chosen allies in the dynastic opposition in the Chamber, and to comply with the needs, both stylistic and substantive, of the journals for which he was writing in his early years, led him to voice opinions that were at least more highly colored than those he held in reality. Alternatively, one could suggest that the international environment substantially changed between 1840 and 1849, and Tocqueville’s prescriptions for French foreign policy changed with it. Finally, one could arrive at the same conclusion that Tocqueville’s performance as foreign minister elicited from another biographer: “It is difficult to run in two opposite directions at the same time, and Tocqueville did not perform this feat without losing some of his exquisite sense of balance.” As acute a student of politics as Tocqueville was, as a would-be statesman he simply contradicted himself.4 In order to answer the puzzle of why Tocqueville seemed to change his opinion so sharply, it is necessary to examine Tocqueville’s views on international relations, and in particular the way in which they deal, on the level of

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the states-system, with the vital problem that preoccupied him in all his work throughout his life: preserving liberty, diversity, and virtue in an epoch of increasing uniformity. Though scattered, his reflections on the subject form, by and large, a manageable whole that merits our renewed attention; they demonstrate that for Tocqueville the progress of democracy and the preservation of domestic liberty had to be understood in an international context. Reconciling democracy and liberty at home was the first task of the statesman, but this end could be attained only through acting abroad in a way that buttressed the domestic supports of liberty. The duty to act in this way was overriding, but the precise form it took depended on both the internal and the external circumstances of the state. Equality “A great democratic revolution is taking place among us.”5 Tocqueville believed that this social change was the premier reality of the modern age. He began his analysis in Democracy by noting that nothing in the United States had struck him more vividly than “the equality of conditions” there and “the enormous influence that this primary fact exerts on the course of society,” and he promised his readers that the universal impact of this equalizing trend would be the thread binding together all the particular incidents, institutions, and practices he described in the pages that followed. In the Old World, meanwhile, he “saw the equality of conditions that, without having reached its extreme limits found in the United States, was approaching them more each day,” and he asserted that “the same democracy reigning in American societies appeared to me to be advancing rapidly toward power in Europe” in an era marked by Comtean positivism. The progress of equality had broken down all hierarchies and traditional distinctions among classes and estates. Political, military, economic, religious, and technological changes had uniformly tended in the direction of rendering illegitimate and then obliterating differences of all kinds, “in all the Christian universe.” “Democracy,” then, meant leveling, effacing whatever privileges or customs served to distinguish one person from another. This democracy might be accomplished in equal liberty or in equal servitude, but its progressive attainment seemed an “irresistible revolution that for so many centuries has marched over all obstacles.” Those, like Tocqueville himself, primarily concerned with the fostering of liberty might hope to guide the democratic juggernaut in ways that would avoid the despotic form of equality, but they could not expect, even if they wished, to halt or reverse it.


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The equality of all, rulers and ruled, accorded with “the modern idea, the democratic idea, and I dare say the correct idea of liberty,”6 a fact that, in and of itself, might not guarantee that it would triumph, but did help to explain its attractiveness to such a variety of peoples as it marched toward realization over seven centuries. It was also consistent with religious traditions, which usually consider man in himself, without regard for what the laws, customs, and traditions of a country have added to the common base. Their principal purpose is to regulate the relationship between man and God, and the general rights and duties of men toward each other, independently of the form of society. … And if one examines the subject still more closely, one finds that the more a religion has the abstract and general character which I have just described, the more it spreads, despite differences of laws, climate, and men. In particular, “the Christian religion has been completely faithful to what I call the philosophical method natural to religions [, placing] itself absolutely outside all particular institutions which can exist among men, social or political, all legal conventions, in order to consider the human species as a single whole composed of similar individuals, all subject to the same moral law and called in the same way to the same fate.”7 What religion for millennia had prepared, political developments since the Middle Ages had promoted. Tocqueville’s thesis in the Ancien Regime was that the destruction of hierarchies and the pressure for uniformity had long preceded the Revolution. The physiocrats “not only hate[d] certain privileges, but diversity itself [was] odious to them; they adore[d] equality even in servitude.” The tenets of what Tocqueville called “socialism”—“the community of goods, the right to work, absolute equality, uniformity in all things, mechanical order in all the movements of individuals, regulatory tyranny, and the complete absorption of the personality of the citizens into the social body”— were all advocated under the Old Regime. The effect of the Revolution, then, was not to create, but to accelerate in a violent fashion the sweeping away of all distinctions among persons, including that of citizenship. Every previous revolution, he asserted, “had taken place within the borders of a single country.” The French Revolution had taken the drive toward equality to a new intensity by bursting the constraints of the system of states: it “did not have a territory of its own; further, to some extent its effect has been to erase all the old frontiers from the map.”8 In Democracy, Tocqueville maintained that in all prior history the needs and interests of particular societies established their own standards of right

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and wrong. Every association—a class, a caste, or a nation—“holds itself a little apart … and feels needs of its own.” These needs give the group its sense of honor, which “is nothing other than that particular rule, founded on a particular state, with the aid of which a people or a class distributes praise or blame.” In addition, “there exists a more general, older, and more holy law,” also based on needs, but in this case on the “permanent and general needs” of the human race. The historic development Tocqueville saw in his day was that, as the tendency toward equality of condition reached its fulfillment, purely national standards of morality were disappearing and the general necessities of humanity—“simple and general notions of good and evil, to which ideas of praise and blame would be attached by a natural and necessary bond”—were becoming the common standard. The day could arrive when “all the peoples of the world should come to the point of having the same interests and the same needs.”9 It was this inexorable, seemingly illimitable, quality to the democratic revolution that brought to the fore Tocqueville’s concerns in the international realm. Taken to its logical conclusion, the erasing of all distinctions among individuals would overwhelm the boundaries among states. Having overcome the barriers of class, of wealth, of religion, of region, the movement toward equality of condition seemed unlikely to be stopped by the barrier of citizenship. Rather, as it approached fulfillment within states with increasing rapidity and force, it would begin—had already begun—to undermine the distinctions among states and the legitimacy of treating one’s own citizens or nationals differently from those of other countries. Every previous attempt to set bounds to the democratic revolution had been defeated; every previous prediction that it had reached its natural limits had been falsified. “Will it be stopped,” Tocqueville asked, “now that it has become so strong and its adversaries so weak?”10 Tocqueville was not an adversary of democracy, but he did not wish to take this step, because he did not favor the destruction of the national barrier to complete equality of condition. “I am convinced,” he wrote in a manuscript left unfinished at his death, “that the interests of the human race are better served by giving every man a particular fatherland than by trying to inflame his passions for the whole of humanity.” He led up to this conclusion in a reflection on the value—for the national society, but ultimately for the rest of humanity as well—of patriotism: Man has been created by God (I do not know why) in such a way that the larger the object of his love the less directly attached he is to it. … There are but few who will burn with ardent love for the entire human species.


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For the most part, the sole means by which Providence (man taken as he is) lets each of us work for the general good of humanity is to divide this great object into many smaller parts making each of these fragments a worthy object of love to those who compose it.11 This patriotism should not be confused with nationalism, at least not if the latter connotes a tie of blood or physical characteristics. Tocqueville maintained a lively opposition to racialist doctrines, calling them a species of “fatalism” that, if widely accepted, would “culminate in a vast limitation, even a complete abolition, of human liberty.” (When Arthur de Gobineau sent a copy of his manuscript “Essay on the Inequality of the Human Races” to Tocqueville and pressed him for his reaction, Tocqueville strove to find some points to praise, out of affection for the younger man who had served him as his chef de cabinet during his brief tenure as foreign minister, but his primary response was one of unqualified rejection of Gobineau’s doctrines: “I believe that they are probably very false; I know that they are most certainly pernicious.”12) Rather, Tocqueville’s political community was one defined by the continuous process of self-government and associating together by people who defined their ties as ones of fellow citizenship, not mythic blood relationship; this was especially true of the modern, “well-considered” patriotism. Public virtue could be kept alive in the minds of most citizens only if the object of their patriotism was close enough to see, to understand, and to influence. With the focus of their loyalty at hand, citizens would most easily see the necessity and the effectiveness of their taking part in its governance. They could be most easily persuaded to make the sacrifices to preserve free institutions if these institutions were accessible. The more remote the governing authority, the less likely the citizen was to rouse himself to defend the public interest, and the more prone he was to devote himself to purely private pursuits. While erstwhile citizens looked after their families or gave themselves over to the acquisition of wealth and material comforts, the public good would go unattended and the decay of liberal democratic institutions would transform their citizens into subjects. Such a gulf between government and the people in its care would complete the work of “seventy years of revolution,” which had “destroyed our courage, our hopefulness, our self-reliance, our public spirit, and, as respects by far the majority of the higher classes, our passions, except the vulgarest and most selfish ones— vanity and covetousness.”13 All extensive political units were subject to this danger, in Tocqueville’s view. The American federal government was to most of its citizens only “a huge and distant motherland and a vague, ill-defined sentiment,” which

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rested on the loyalties freely given to the states: “Public spirit in the Union is in a sense, only a summing up of provincial patriotism.” Any large country would face a considerable challenge in preserving public spirit, because “all passions fatal to a republic grow with the increase of its territory, but the virtues which should support it do not grow at the same rate.”14 Still, combating the tendency toward shortsighted materialistic individualism in even the largest nation would be an easy task compared with the struggle to preserve public spirit in the sprawling supranational empire established if the march of the principle of equality toppled political institutions built on national differences. Deadening uniformity of the kind Tocqueville associated with Eastern despotisms would only be made worse by the fact that the submergence of the prior states-system would leave no place in which dissidents could seek asylum and refuge.15 The Society of States Although Tocqueville did not believe the advance of democracy could be halted, he did think its path could be altered. Humanity still had a choice between equality combined with freedom and equality that suffocated freedom. While equality would triumph as the natural condition of all citizens, it could be modified by artificial means that preserved useful supports to liberty, and Tocqueville’s writings are filled with examples of such works of artifice: federalism, administrative decentralization, the jury system and other legal forms, and, most important, the art of associating together, outside the framework of government, for shared ends. On the broadest level, this list of freedom-promoting expedients included the sustaining of a system of independent states as foci for the loyalty and civic virtue of their inhabitants. The progress of equality within states would continue, a process that Tocqueville contended was further advanced in Europe than most of his contemporaries understood. Indeed, if liberty was to survive in these states—in Tocqueville’s terms, if they were to become democratic republics rather than democratic despotisms—the advance of equality would necessarily be roughly simultaneous in all of them. If it were not, the free democracies, or democratic republics, which he expected to be unskilled at conducting foreign policy, would probably fall prey to their less free but more adept neighbors.16 In his view, however, this equality should not progress so far as to erase the institution that he believed history had demonstrated was the largest to evoke civic virtue, the state. Preservation of civic virtue, and therefore the state, and therefore the states-system, required, in addition to the institutional devices noted above,


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a renewed attention to patriotism.17 Tocqueville was firmly of the opinion that religious teaching should inculcate civic virtue, even while it avoided party politics; he hoped that the clergy would tell citizens “that while Christians, they also belong to one of the great Human Societies which God has formed, apparently in order to show more clearly the ties by which individuals ought to be mutually attached—societies which are called nations, inhabiting a territory, which they call their country.”18 The education of public opinion—a task of increasing importance in a democratic epoch— was also the responsibility of political leaders.19 Such teaching would be useless, however, unless states showed themselves to be worthy of the loyalty and sacrifices of their citizens. It was necessary that in their foreign policy, states display a willingness to defend their interests and an ability to take what Tocqueville called “heroic” actions. No one of his day was more devoted to Anglo-French amity than he, but when in 1840 he believed that the British government had shown insufficient consideration for its partner’s interests, he was quick to call for a stiff French retort and to criticize the government in Paris for what he saw as undue meekness in the face of provocation. His attitude during the crisis over the right of British naval vessels to search French ships, in their effort to end the slave trade, was primarily due to the impact he feared it might have on French public opinion; as he explained to John Stuart Mill, “if it be important to keep up in a nation, especially in a nation so unstable as ours, the feeling that leads to great actions, the people must not be taught to submit quietly to be treated with indifference.” The July Monarchy could not afford to dampen whatever ardor it aroused among its people: “To show no sense of your treatment of us would have been to smother, and perhaps extinguish, passions which we may some day need. The most elevated feeling now left to us is national pride. No doubt we ought to try to regulate it, and to moderate its ebullitions; but we must beware of diminishing it.”20 To such statements, Tocqueville’s liberal English friends reacted with alarm; this was not the Tocqueville they thought they knew—the urbane French foe of autocracy whose Democracy they had admired, who had stayed with them in England and assured them that England was his second intellectual home. Henry Reeve, who had produced the first English translation of Democracy, was to write Tocqueville that his account of the Anglo-French differences in the early 1840s—which, if Charles Greville’s journals are to be believed, was taken seriously enough to be discussed at a meeting of the British Cabinet—was factually incorrect, and to warn him that any British government that opened negotiations on the apologetic footing that Tocqueville demanded, would be thrown out of office. (To third parties,

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Reeve was blunter, writing to Greville that Tocqueville’s “speech and conduct … have inflicted a most severe blow on his reputation here, and I deeply regret that he should have blundered into such a course.” Thirty years later, Reeve still felt strongly enough about the matter to insist, “M. de Tocqueville and his friends arrived at an erroneous conclusion.”) Senior wrote Tocqueville that his fiery speech of November 30, 1840,”wd have been utterly ruinous to any English statesman. What, it wd have been said, to think of going to war merely to prevent our being excluded from taking part in the affairs of Syria & Egypt? Or to shew that we are not unable to go to war?” and dismissing such contentions as “scarcely deserving a serious answer.” Mill, while warning Tocqueville that his speech had created “a painful impression,” tactfully attributed to other unnamed “journalists & public speakers in France. … a lamentable want both of dignity & of common sense. … [a] rabid eagerness for war, the reckless hurling down of the gauntlet to all Europe …” In a later letter, Mill was more direct. He agreed “that the feeling of orgueil national is the only feeling of a public-spirited & elevating kind which remains & that it ought not therefore to be permitted to go down,” but went on to confront Tocqueville on the question of the proper content of that pride: But, in the name of France & civilization, posterity have a right to expect from such men as you, from the nobler & more enlightened spirits of the time, that you should teach to your countrymen better ideas of what it is which constitutes national glory & national importance, than the low & grovelling ones which they seem to have at present … Here, for instance, the most stupid & ignorant person knows perfectly well that the real importance of a country in the eyes of foreigners does not depend upon the loud & boisterous assertion of importance, the effect of which is an impression of angry weakness, not strength. It really depends upon the industry, instruction, morality, & good government of a country: by which alone it can make itself respected, or even feared, by its neighbours … 21 In his replies to these admonitions, Tocqueville claimed to have been misunderstood, arguing that if the July Monarchy failed to assuage wounded feelings of French pride—“exaggerated perhaps in their development, but just in their origins”—it would be overthrown and replaced by a revolutionary regime truly bent on war. In pressing for a stiff stand by the government, then, he was acting as the truest friend of peace and goodwill between Paris and London. Still, when, in a letter to his closest friend, Gustave de Beaumont, he soberly enumerated the reasons in favor of caution and against


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bellicosity, he added, “These wise reflections do not prevent me, at the bottom of my heart, from seeing all this crisis with a certain satisfaction. You know what a taste I have for great events and how tired I am of our little democratic and bourgeois soup-pot.” The soup pot might let the sterner civic virtues cool; attention to public affairs might require the higher temperatures of a “forward” foreign policy. Nor was this defiance only a cover for an antipathy toward British power; not only does Tocqueville’s lifelong praise for the liberty he saw across the Channel militate against such an interpretation, but so does his support for similar displays of resolution undertaken by Britain itself. When the Eastern Question erupted again in the mid-1850s, he applauded the resolution of Palmerston, who eventually led Britain into the Crimean War; in conversation with Senior, he paid tribute to his visitor’s country for having taken “the brave and the magnanimous course.”22 Imperialism was another example of such a “heroic” action that, by rousing the imagination of the people, could capture their loyalty and inspire them to lift their eyes from their private pursuits and look to the common weal.23 On April 6, 1830, as planning went forward for the first French expedition against Algiers, Tocqueville remarked in a letter to his brother that those previously skeptical about the venture “since war has been resolved on … have in general ceased to criticize both the end in view and the preparations.” “The unanimity of opinion upon this point,” he wrote approvingly, “shows the spirit of the nation.”24 Nor, again, did he limit himself to French imperialism in his advocacy of an expansionist mission that he thought both civilized those in the conquered territory and elevated the thoughts of those in the conquering nation. At the time of the Sepoy Mutiny of 1857, he urged a British correspondent that her country should remain in possession of India: “Nothing under the sun is so wonderful as the conquest, and still more the government, of India by the English. Nothing so fixes the eyes of mankind on the little island of which the Greeks never heard even the name.” Even if, “as a mere question of money and of physical strength, India costs more than it brings in, … England obeys an instinct, not only heroic, but wise” in reasserting control to her greater glory.25 In all of this, we see how important the more republican Tocqueville, in contrast to his more liberal English friends, believed it was for states to display vitality and the ability to act, if, on some occasions, for no other reason than to demonstrate they could still act. At times, this action could result in war and, despite his conviction that war was hazardous to liberty because of the centralization of governmental authority it promoted and the popular acclaim it gave to military leaders who might turn themselves into military despots, he was prepared to acknowledge that on occasion it could contribute

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to civic virtue, that it had in fact “great advantages”: I do not wish to speak ill of war; war almost always enlarges the thought of a people and elevates its heart. There are cases where only it can arrest the excessive development of certain penchants that equality naturally gives rise to, and where, for certain deep-seated maladies to which democratic societies are subject, it must be considered almost necessary.26 It has been argued that Tocqueville thought that some degree of internal political turmoil was necessary to the health of a regime, because it jolted citizens out of their individual preoccupations and forced them to think of the best way to preserve their freedom. He seems to have believed that political turmoil, in the clash of proud nations and their heroic acts, was necessary in the states-system as well, to preserve the health of its component parts.27 If the parts were to be thus secured, what of the whole? In detailing the ways in which states could preserve themselves and avoid submergence in a featureless uniformity fatal to individual liberty and public spirit, one may easily forget the increasing equality of condition and impatience with artificial distinctions among groups that caused Tocqueville to fear for the patriotic community in the first place. If indeed his basic assumption was that “the gradual development of equality of conditions is … a providential fact … universal … enduring,”28 how would it express itself in a political system run on the principle of the separate sovereignty of its members and marked by a distinct hierarchy running from the great powers to the small? Tocqueville hoped the answer would be found in the very “reputation” that states would burnish by their self-assertion. Renown or glory could mean nothing unless there were common standards for judging those who merited them and the reasons why they were praiseworthy. The international system would be best served if the pressure for egalitarianism could be channeled into a shared code of conduct by which all European, or “civilized,” states would consider themselves bound. Tocqueville was certainly convinced that this homogenization of Europe was already well advanced; he told Senior in 1852 that “in this great nation, called Europe, similar currents of opinions and feelings prevail, different as may be the institutions and characters of its different populations”—a contention he assumed needed no evidence beyond the general reaction against the revolutionary feeling (itself also continent-wide) of 1848. He repeated the sentiment to his friend three years later, saying, “In the period in which we live, and, still more, in the period which is approaching, no European nation can long remain absolutely dissimilar to all the others.”29 His public rhetoric followed much the same


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line. In his speech to the Chamber of Deputies during the 1840 AngloFrench crisis, he spoke of “the general public good sense of Europe” and of the “moral necessity which European opinion” created. In the end, he claimed, if France stated its justifiable demands clearly and demonstrated that they were consonant with the European consensus, Britain would yield, because “a sort of universal reason rested on each government in particular and obliged it to conform to its judgments.”30 In fact, the governments in both London and Paris did yield to the criticisms of Tocqueville and his colleagues in the events of 1840, making this an episode he could claim in support of the contention that international expectations influenced the actions of even powerful states. He accepted the wisdom of a certain modesty in calling others to account; “I acknowledge,” he wrote to Reeve in March of 1853, “that one is never in a position to judge of what appertains to the honor and interests of a foreign nation; that it alone is able to judge of these questions; that there is always some absurdity, in public as in private life, in giving advice to one’s neighbors. … ”31 Nevertheless, he held that there were actions that any state that called itself civilized simply could not countenance, and it was the community or society of states bound by these common standards, and not the melding or superseding of those states by any broader unity, that, for him, was the desirable expression of equality in a democratic age. The norms of this society might be institutionalized, and Tocqueville even at his most defiant was willing to recognize the authority and utility of such rules. For all his readiness to go to war in 1840, his primary substantive recommendation was that France should call for a conference of the great powers, principally those “who are on the scene and can act immediately,” to come to an agreed settlement that could then be imposed on the sultan and his rebellious Egyptian subordinate. Each power would feel obliged to attend, because if it did not, the conference “would act without it, and even despite it,” and such a great-power steering committee enjoyed its authority to act because it was “in accordance not only with natural law among nations, but even more with the prior usages of Europe.” Reason, which was coming to impose similar ways of thought on all Europe, also lay behind common action among its separate states: “[I]f one wants to speak of natural law among nations, of that which is indicated by reason, there is surely nothing more natural than this: several nations have a common interest in the settlement of the same affair; they come to an understanding and order among themselves this shared affair that interests each one.” As for a conference “finding its precedents in the customs and usages of Europe,” this was a matter of evident history: “Europe, in effect, in almost all critical circumstances, has

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acted as I indicate, notably in a very recent case, which has a perfect analogy with the one of which I speak, the case of Belgium,” which had ended in the mutual guarantee of Belgian independence. Similarly, four years later, in the midst of yet another Anglo-French dispute over Tahiti, he declared in his series of articles in the Commerce that “What France can do as an act of free will out of regard for her own convenience, she cannot do under the influence of an order from abroad,” but his first reference in his speech in the Chamber on the subject was to international law and Vattel. These authorities helped to define for France what her convenience demanded and what she ought to do of her own free will.32 If the norms of this society were to have any reality, in other words, they had to affect the policies of states, even when those states might find it expedient to act otherwise. In Democracy, Tocqueville stressed the principle of self-interest rightly understood as a way, in an individualistic, non-deferential era, of linking individuals to their national community. In a somewhat similar fashion, he identified a number of ways in which states did, or could, make apparent sacrifices of their short-term interests to strengthen the international society that was the best guarantee of their own preservation and freedom in the long term. The duties to the society of states that might require sacrifices from its members were several. One was a duty to secure a balance of power by preventing the preponderance of any one state. This might require states to act in defense of the system before their own interests were immediately threatened. In a letter to Senior written during the Crimean War, Tocqueville criticized the “detestable jealousies and ambitions of the European nations” that prevented them from cooperating against the greatest potential power, Russia.33 Preserving adequate power against a potential threat could also require expanding the size of one’s own country, even at the risk that free domestic institutions would be imperiled. In his analysis of the United States, Tocqueville granted that “in general … nothing is so contrary to the well-being and freedom of men as great empires,” precisely because of their inability to evoke civic spirit from their subjects, as noted earlier, but he insisted that this consideration might have to yield to the “necessity” imposed by the strength of adversaries, asking, “What does it matter that a people presents the image of ease and freedom if it sees itself at risk daily of being ravaged or conquered?” “Force,” he concluded, “is therefore often one of the first conditions of happiness and even of existence of nations.”34 On the other hand, respect for the interests of the states-system as a whole could also demand restraint and abstention from foreign adventures that might cause other states to fear for their own safety. In 1850 Tocqueville


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condemned Palmerston for contributing to the outbreak of revolution in 1848, and especially for disturbances in the Italian peninsula, by seeming “to interfere in the affairs of the Continent for the purpose of serving his own personal or party interest at home, with little regard to the consequences on the rest of Europe.” The chance of upheavals that might cause the collapse of the states-system had been too great; Palmerston “ought to have known in 1847 that he could not stir the inflammable elements of Rome and Naples without risking a general conflagration. … He must have known that all the Continent was mined. And he had no right to presume on his insular position and throw combustibles over the rest of the world.” Likewise, he warned Reeve that Napoleon III was capable of waging “a personal war, if I may speak thus”—a war not supported by the interests of France, but in fact contrary to them, and harmful to the general interests of humanity, but one that would “surprise France and over-excite its national vanity,” and thereby keep the Emperor in power. Great statesmanship, while maintaining national spirit and the willingness to use armed force if necessary, would refrain from saber rattling, even at the temporary cost of some chauvinistic domestic popularity. The previous generation had demonstrated that a prolonged general war could shake, perhaps destroy, European society; to seek out an unnecessary war was, in the strictest sense, “revolutionary.”35 The balance of power rested on a rough consensus among the players on their rights, interests, and duties. Beyond this, there existed for Tocqueville a further obligation to lead this consensus in a liberal direction. The bedrock for such an enlightened general agreement lay in understanding between Britain and France, the two liberal great powers after 1830—an understanding for which he pressed throughout his political life. “I believe the union of the two nations to be essential to the maintenance of free institutions in Europe,” he wrote in 1836, “and in my opinion this consideration surpasses every other.”36 Within Europe as a whole, the duty of France was the extension of liberty. As he wrote 12 years later, “I say first that the interest in promoting the principles of liberty in the world is the first interest of our policy,” though he added, “it is not the only one, and it would be very imprudent to consider only that.”37 More broadly still in the world outside Europe, France was bound to set an example, not least by demonstrating that she was capable of making her imperialism high-minded. Thus, Tocqueville in a letter outlining his projected journey to Algeria, the first of two he was to make to the country’s most prized overseas possession: “The African question, complicated and important as it is, may be summed in these words:—How shall we succeed in raising a French population, with our laws, our manners, and our civilization, and at the same time treat the natives with the consideration to

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which we are bound by honor, by justice, by humanity, and by our real interests?”38 Likewise, while he viewed the British dominion over India as the “triumph … of Christianity and civilization,” he thought that merely governing a people was not enough. He wrote at the time of the Mutiny of 1857–58 that “the English had not in a century done anything for the Indian population that might have been expected from their enlightenment and their institutions.” What Tocqueville expected of a liberal imperial power could be stated succinctly: “not only to dominate India, but to civilize it.”39 Imperialism captured the Tocquevillian prescription precisely. By uniting the world in one international system and replacing the “Chinese immobility” of local traditions and mores in the four-fifths of the globe outside Europe and North America with European “mobility”—that is, the movement toward the common standards of humanity revealed first in Europe by its democratic homogenization—it remained consistent with the worldwide trend toward equality and the undermining of parochial differences (which could not be resisted in any case). By occasioning heroism and magnanimity on the part of the states that pursued and governed empires, it allowed the principle of equality to express itself in ways consistent with the freedom and virtue of citizens in the metropole.40 For Tocqueville, then, the primary moral and political issue in statecraft was two-sided: first, to preserve the state as a focus of loyalty and selfsacrifice that would in turn preserve public spirit among the citizens, and, second, to encourage the state to act toward other states and toward the whole society of states in ways that furthered an international consensus on just and honorable state behavior. While he always remained a patriot of his nation, he was also cognizant of standards of conduct beyond the national.41 These two guides to action would produce an international pattern of both assertiveness and moderation—a set of mores that would foster national progressiveness as well as self-restraint, in accordance with an enlightened international agreement. If they could be safeguarded against both revolution and reaction, these mores would be vital in maintaining national liberty and, through it, individual liberty and civic virtue. France In his service as foreign minister from June through October of 1849, Tocqueville had a brief opportunity to try to put these sentiments into action.42 One instance will be mentioned here: French policy toward the occupation of Rome by revolutionary forces arising as a consequence of the upheavals of 1848. It demonstrates the extent to which he believed that full membership in the society of states imposed moral obligations on states to


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conform to and raise the international standards of conduct that the society embodied. When he became foreign minister at a time of great domestic and international ferment, Tocqueville later recalled, he “adopted two maxims of conduct,” which he recommended to all who should succeed him. One was “unreservedly to break with the revolutionary party abroad. … but … not to … be carried on to a denial of the principles of our Revolution: liberty, equality and clemency.” In this way, “France should, though fighting the revolution, not lose her proper and natural reputation among the nations as a liberal country.” The second precept was to husband the shrunken resources of France—“never to attempt anything obviously beyond our powers … but yet to be proud of the high position that did remain to us, and, facing all risks, to hold that position, should it be disputed.”43 One can see in these selfadmonitions the main outline of Tocqueville’s thought: oppose the international revolutionary side of the movement toward democracy but foster liberal institutions within states; have a prudent care for the power France would need to play her part in the balance-of-power game but make it a noble part and be willing to act boldly in its defense. In the case of the “Roman Question” these general principles were put to a specific test. In the chaos of 1848, an uprising had established a Roman Republic, overthrowing clerical government and forcing the Pope to flee. In the reaction of 1849, with the revolution in retreat everywhere, Pius IX had appealed for outside aid in his restoration, and that summer, only days before Tocqueville accepted the Foreign Ministry, French troops were dispatched to Rome for that purpose. Later Senior suggested, and Tocqueville agreed, that the motives for the Roman expedition were three: “the maintenance of French influence in Italy, the restoration of the Pope, and the introduction or preservation in Rome of liberal institutions.” The undoing of the Roman Republic was necessary to the defeat of violent revolution in Europe, which would have carried the principle of equality in the wrong direction. By seeing that the Pope was returned, France gained “a right to be heard” in Italian affairs and forestalled an Austrian intervention in Italy that would have increased Vienna’s influence there. So far, Realpolitik prevailed. But this was all to be done in a liberal way. The French siege of Rome was to be carried out so as to avoid undue loss of life and prevent the destruction of the city’s architectural and artistic treasures. When this was accomplished, Tocqueville afterwards recalled, “the whole object of my correspondence was, to induce the Pope to grant liberal institutions to his people. I considered this as the most important of the three objects of the expedition—as an object affecting not only our interests but our honour, as an object without which the whole

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expedition was a lamentable failure.” Thus, French diplomats strenuously pressed reluctant papal representatives to reorganize the courts, reform the civil code, establish elective national and municipal councils that would have power over taxation, and replace the ecclesiastical public administration with a secular one.44 One warrant Tocqueville claimed for demanding reforms was that increasing uniformity of opinion that he had perceived as early as his trip to America. Without a reconstruction of the Roman administration along liberal lines, he wrote to Corcelle, the Church would retain institutions “the most contrary to the spirit of the modern world,” and would fall victim to the progress of democracy. Only if the Pope was persuaded to follow Tocqueville’s advice to harness and deflect the spread of equality instead of attempting the impossible task of repressing it would the Church survive— an objective of vital importance, “because I believe the cause of Catholicism inseparable today from that of order in the world.” His second justification for his action also lay in his recognition of an international consensus: France’s reputation before the European society of states was at stake. He directed his envoy to remind the pontifical authorities that, “as long as we occupy this territory, we are accountable to the public opinion of Europe and particularly to the public opinion of France, accountable for what takes place within the limits where our army is, and … regard for our interest and our honor obliges us strictly not to allow what would wound either.” Louis Napoleon, then president, dismissed the government in which Tocqueville served before the conclusion of these negotiations, but, had he remained in office and found himself unable to secure his reforming objectives, he later insisted, he would have withdrawn French forces from the support of the reestablished papal government and published an account of the entire affair as an appeal to contemporary opinion and to posterity. In this way, he said, “We should have set ourselves right with Europe.”45 In fact, the foreign minister’s position at the time was somewhat more equivocal than this recollection would suggest. Well before he left office, Tocqueville was losing hope of seeing meaningful changes enacted. Rather than publish a manifesto, however, he chose to exert pressure on the ecclesiastical authorities in private, while publicly describing Pius’s Motu Proprio, the proclamation of amnesty and reform, as “a germ” from which greater liberalization could be expected in the future—in spite of the fact that he was confidentially telling friends and colleagues that it was precisely what he later told Senior he had been determined to avoid: a lamentable failure.46 By late October, just before Tocqueville’s dismissal from office, the papal nuncio in Paris was reporting assurances by the Foreign Minister that the affair was


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“closed” and that the French government was “content with what the Holy Father has done.”47 By praising in his speeches to the Assembly what he privately condemned, Tocqueville was still appealing to the common conscience of Europe, but he was doing so by putting the best face on what he had been able to accomplish, not by issuing an indictment. The Foreign Minister was also recognizing the limits on what he could do without entangling France in a major war that would go far beyond the siege of Rome, at a time when he thought that only a period of peace would permit the institutions of the new government to root themselves in public trust. Because any alternative regime would be less friendly to liberty, his task was to maintain the position of France externally while avoiding a war that would be a godsend to the opponents of liberty internally—hence his pacific stance. Unfortunately for France, what had followed the small-minded Orleanist regime after 1848 was neither an aristocracy devoted to liberty, as he found in his admired England, nor a republic that preserved liberty through selfinterest rightly understood and the art of associating together, as he found in the United States, but an unsteady new regime, a republic in a country that he always believed better suited to a constitutional monarchy, a hastily improvised structure set up in the wake of a revolution that had surprised almost everyone (even, despite his speech foretelling it, Tocqueville himself )—in other words, the Second Republic.48 Its institutions were imperfect, as he admitted even though he served on the committee of the Constituent Assembly that drew up its constitution.49 Its main danger, however, was that it was loved by no one and was at best only the second choice of almost everyone. On the one hand, a majority of the members of the new legislative body, the National Assembly, were opponents of any republic, and Tocqueville strongly suspected the new president, Louis Napoleon, of wishing to overthrow the republic as well. Legitimists, Orleanists, and Bonapartists all disliked the institutions that Tocqueville hoped to nurture. On the other hand lay “the Mountain” in the Assembly and its followers in the armed forces and the populace—those who were unsatisfied with the political equality enshrined in universal male suffrage (which Tocqueville supported in the belief that participating in the act of governing would encourage the widespread civic spirit that the survival of liberty required), and wished to push on to economic equality (the “socialism” that he thought both impractical and deadening to individual liberty). Both were lively dangers, but the latter was the more immediate, as demonstrated by the June Days of 1848, in which he had witnessed firsthand the fighting in the streets of Paris and, along with the other members of the National Assembly, narrowly escaped with his life when the chamber was occupied by armed

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insurgents. The French proponents of continuing revolution had international links as well, and he suspected that the revolutionaries who made up the Roman Republic in 1849 held out against the French siege as long as they did because they expected a second uprising in Paris in June of that year and hoped that its success would bring about a withdrawal of French forces from Italy. In the end, of course, the Republic was toppled from the other direction, by the Prince-President’s coup d’état of December 2, 1851, in which Tocqueville was briefly imprisoned and then, partly by his own choice, banished from public life for the remaining seven years of his life. In such a perilous situation, it is little wonder that his writings, both at the time and later, were peppered with references to the need, as he put it in his notes for the National Assembly debate of June 7, “to bring anarchy to an end [and] to prevent reaction.”50 The danger was not simply that following the internal struggles of 1848–49 France was physically weak in relation both to other Great Powers and to the challenges it faced in its external environment—the plight of “a nation that imagines it has an influence it can no longer exercise; a nation that is proud without being strong”—but even more that the demands of a sizable war would probably strain to the breaking point the sinews of the new government that Tocqueville wished to use for the rebuilding of civic virtue among the French people. In his contemporaneous “Notes on the Revolutions of 1848 and in Particular the Italian Problem,” the theme appeared repeatedly—“the best means of satisfying … the interest in promoting the principles of liberty … is not force or war”; the effect of war would be to give power to the “anti-republican element” (the army); one should remember “the utility of peace, for liberty, for the Republic”; “In [17]90, the means of emancipation was war, today it is peace”—all leading up to his argument tying together foreign adventurism and domestic dangers to liberty: Reason for dissimilarity … That one could better demand effort from the nation in [17]90 than today. … The country was surprised by the republic and you want to impose on it the crushing costs of a revolution and the immense costs that war entails. Do not forget that the government is not a government that one can impose. It must be accepted and loved by the country. Not only is it useless to become entangled in this movement through war, but it would be dangerous to do so. [If the country is pushed into war,] France will make its efforts, but they will be made to the detriment of the Republic.


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Six months later, he would tell the National Assembly that if peace could be preserved, the Republic, and the opportunity it provided for the reconciliation of equality with liberty, would be “immortal.”51 (In the event, the Second Republic proved all too mortal, and the Second Empire recommenced all the tendencies that Tocqueville had found so harmful under the July Monarchy—corruption, the centralization of power, and the directing of public concern toward material well-being rather than self-government in freedom. As Tocqueville saw it, the Emperor retained his throne by stupefying the people as well as enriching them, and Tocqueville spent the remainder of his life warning against a war launched for the domestic popularity of Napoleon III.) Entanglement in the Roman Question was thus a very painful affair for Tocqueville. Even as disagreements over policy strained to the breaking point his friendship with Corcelle, with whom he had once had the warmest ties, the obduracy of the papal government defeated his plans for reform, while the danger of antagonizing Pius entirely and losing all influence to Austria prevented the Foreign Minister from giving voice to his disappointment in a public protest. It was episodes like this that drove him to despair of directing the external affairs of France, with the unhappy comment, “It would be better to plant cabbages.”52 Yet to avoid making the effort was impossible: the position of his country at the center of European affairs laid on it the inescapable duties of upholding French honor, advancing the cause of liberalism, and preserving an equilibrium of power in Italy. To do otherwise would be to abandon the consensus of the society of states and to risk the perils of that other expression of international democratic equality, the dissolution of international society into a featureless and oppressive uniformity. On the other hand, to pursue these goals in too militant a fashion would unleash domestic passions favorable either to a despot promising martial glory or to a revolutionary regime ready for war on all established institutions at home and abroad. Either alternative would be fatal to liberty in France. In a middle course, and in that course only, lay the hope of protecting civic virtue and individual liberty in a country in the situation in which France found herself. The United States How would Tocqueville’s views apply to a country that had consciously taken itself out of Europe? To judge how his guideposts might direct the United States, one can look to the three factors that he found most helpful in explaining any regime: mores, circumstances, and laws. Of the three, Tocqueville considered mores to be the most important in preserving a free democratic republic in the United States. America, he

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thought, was in no immediate danger of seeing public spirit wither in its people; it was perhaps in less danger than any European country even though the principle of equality had progressed further in the New World than anywhere in the Old. Most European countries continued to rely on an “instinctive love of country that has its source principally in the unreflective, disinterested, indefinable sentiment that binds the heart of the man to the place where the man was born.” They were unaware of what he tried to warn them in Democracy, that the foundation of instinctive patriotism in customs and habits was rapidly disappearing, endangering public spirit and the bulwarks of personal freedom. The American Republic, by contrast, had imbibed from the beginning a newer, “reflective patriotism,” in which “[a] man understands the influence that the well-being of the country has on his own; he knows the law permits him to contribute to producing this wellbeing, and he interests himself in the prosperity of his country at first as a thing that is useful to him and afterwards as his own work.” This publicspirited turn of mind, which grew under the influence of self-interest as well as “with the aid of laws … [and] the exercise of rights,” was further strengthened by the institution of federalism and decentralization of most governmental authority. As Tocqueville saw it, “this same republican spirit, these mores and habits of a free people, … having been born and developed in the various states, are afterwards applied without any difficulty to the sum of the country.” Indeed, when he visited the United States, he found a sense of patriotism that was not only strong, but over-strong: “national pride [has] recourse to all the artifices and descend[s] to all the puerilities of individual vanity.”53 The loss of civic virtue in a recognizable national community and its replacement by a combination of a vaguely beneficent attitude toward the whole of humanity and an intense preoccupation with individual self-interest—this fear was in no appreciable way being realized in the United States. The national pride of the Americans was so great that they were more prone to what Tocqueville thought was a common trait of their English cousins, collective self-righteousness. Moreover, this public spirit was the consequence of domestic conditions, so that there was no need for statesmen to stir up patriotism by embarking on heroic foreign ventures. Fortunate in its mores, the United States was doubly fortunate in its circumstances. “The American Union has no enemies to combat,” Tocqueville observed. “It is alone in the midst of the wilderness like an island in the ocean.” A protected geographic setting meant that circumstances did not mandate, any more than mores, an active, glorious role for the United States in its own defense. States confronted by powerful adversaries nearby had to live with the possibility that a long war for their existence, not necessarily of


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their own making, would force them to face a “sad alternative: that their defeat delivers them to destruction and their triumph to despotism.” The American Union, by contrast, could be confident it would not “dissolve in the middle of a great war,” because “it has no great wars to fear.”54 Secure in its continental isolation, the United States was an active participant in the society of states of the early and mid-nineteenth century only in a certain sense. Legally, economically, and culturally, it was a part of an “Atlantic Community,” as it always had been; Tocqueville’s own journey and his volumes on America were evidence of that. Politically, however, it remained aloof, outside what he termed in 1853 “the great theatre of human affairs; for,” as he put it, “after all this theatre is not at Sidney, or even Washington, it is still in Old Europe.” Moreover, because the United States was a sovereign state granted diplomatic recognition by the Europeans and because it had some means of defending itself, it, unlike Asia, say, could not be brought into the political system against its will as a colony or protectorate. Under these circumstances, Tocqueville could discern no moral obligation for the American Republic to become an active participant in the society of states, either to uphold a balance of power or to press the international consensus on proper state behavior in a progressive direction. If the United States could maintain civic virtue within its borders through domestic means, and as long as necessity or its history did not tie it to the diplomatic combinations of the Old World, it was free to act or to refrain from acting as it chose. France, because of its history and its location, was intimately bound up with the society of states, for good or ill; Tocqueville once reflected “sadly on the fatal influence which we often exercise upon all around us. When a revolution breaks out in France, all Europe falls into anarchy; and when order is reestablished in France, every other country restores the old abuses.” Yet the United States, in its foreign as in its domestic affairs, began with a clean slate. “Nations,” he held, “like individuals who have any selfrespect, pledge themselves as to their future conduct by their past.” But when nations had no past, he did not consider them irresponsible if they used their freedom of action to stand aside from international society. Rather, he envied them: “Admirable position of the New World that enables man to have no enemies but himself! To be happy and free, it is enough for him to wish it.”55 Of course, such fortunate circumstances might not last forever. The growth of the power of the United States might lead it to acquire important interests in locations more exposed than its sheltered homeland; powerful empires might arise on its northern or southern borders. It would then quickly discover that the third element in shaping its regime, its system of laws, was not well suited to a leading role in the states-system, for “the great

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good happiness of the United States is … not to have found a federal constitution that permits it to sustain great wars, but to be so situated that there are none for it to fear.” If it had a foreign cause for fear, the country would have to reconsider its views on federalism and decentralization, for, as desirable as they were for the purpose of preserving civic virtue, Tocqueville refused “to believe that confederated peoples could struggle for long, with equal force, against a nation in which governmental powers were centralized.” Nor would the Americans find the organization of the federal government itself conducive to an effective, energetic foreign policy. While the president and the Senate, the two institutions primarily charged with conducting foreign policy, were less purely democratic than the House of Representatives or the state governments, they were not so far removed from the people as to escape entirely the weaknesses characteristic of any effort to carry out external relations under the immediate influence of public opinion.56 Here again, France was the alternative and the possible model. Deprived of its seclusion, the United States would, like France, require a stronger government, “especially externally.” A “central government energetic in its own sphere of action” was, for a country in the position of France, simply a necessity; “our situation in Europe lays down an imperative law for us in what should be a thing of choice.”57 If it left its isolation, the United States would have a responsibility to alter its domestic political arrangements so as to be able to play a respectable and constructive part in the greater society of states. It would then encounter with renewed urgency the dilemmas that Tocqueville explored: how to combine individual liberty and civic virtue with national effectiveness on the international stage? How to combine national liberty and collective vigor with duties to a broader, though intangible, international order? The Primacy of Domestic Policy In confronting Tocqueville’s thinking on the issues posed by “this society of nations in which each people is a citizen, a society always somewhat barbarous, even in the most civilized ages, whatever the effort made to soften and regulate the relations of those who compose it,”58 it is not difficult to find passages and pronouncements in his writings that appear contradictory. This seeming lack of consistency is not surprising, however, if one accepts the view that for Tocqueville international questions were subordinate ones, interesting primarily for what they revealed about the major issue: the survival of individuals’ freedom and virtue. Foreign policy was to be conducted so as to improve the prospects for liberty within one’s own country, and as


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circumstances changed so did the policy—sometimes one of peace, sometimes one of war—most conducive to the preservation of liberty in an egalitarian age. As Doris Goldstein noted regarding his understanding of the requirements of citizenship in a free society: “the means of sustaining citizenship, whether participation, enlightened self-interest, organized Christianity, or even a policy of military adventure, were subject to partial or total change depending on political circumstances. This kind of flexibility was, however, applicable only to means, since the goal—to stimulate and maintain citizenship—remained constant despite all political and social change.”59 The exercise of influence between the domestic regime and external actions was also reciprocal. Although the protection of civic virtue was vital and foreign policy was to be molded so as to further that aim, it was also true that the right sort of citizen spirit could help a regime to conduct a better foreign policy. When he criticized Louis Philippe as “incurably pacific,” Tocqueville was not opposing peace as such, but only peace sought for the wrong reasons. As he saw it, the Orleanist monarchy assiduously avoided actions that might lead to an armed conflict because it did not wish to arouse the domestic passions that could call into question the inadequate moral foundations of the regime itself. The government preferred to “retire [the people] from the contemplation of the general interest [and] to immure them in the contemplation of particular [material, individual] interests.” Bereft of the opportunity to confront great fundamental issues in domestic life, political actors made diplomacy another field to be exploited for narrow partisan or individual advantage: “When interests replace beliefs in domestic politics, party feeling breaks out in foreign policy.”60 By contrast, a well-ordered domestic regime could produce a superior foreign policy, precisely because statesmen were not hampered by the fear that vigorous action abroad would expose the rickety condition of public feeling at home. Great Britain could be effective against Revolutionary and Napoleonic France precisely because of the solidity of her regime. In the notes left at his death for the second volume of The Old Regime and the Revolution, Tocqueville planned to emphasize that France had possessed one type of strength—“a centralized government, an entire nation mobilized”— and Britain another: “It was not the sea which saved it; it was its spirit, its constitution, it was above all freedom. Great spectacle, freedom alone capable of fighting against the Revolution.” 61 He hoped that the Second Republic could become such a well-ordered regime, and he strove for the international peace that would allow it the opportunity to gain the confidence of the people and see off its challengers from left and right who, if they gained power, would smother civic virtue.

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The distinction that Tocqueville wished to preserve, therefore, was between two kinds of domestic influence on foreign policy. One, which he favored, was a republican foreign policy conducted with the aim of bolstering patriotism and through it the virtues of citizen involvement in political affairs and an attachment to and willingness to defend liberty. The other, which he opposed, was a foreign policy conducted under the deleterious influence of the very weaknesses to which democracies were subject if republican virtue declined and citizens did not involve themselves in great political debates that would sharpen their appetite for liberty—that is, a foreign policy that served party interests or became the tool of personal profit and individual material advantages, the forces that would destroy liberal democracy. It was the latter sort of short-sighted inertness to which he was referring when he said of Switzerland in 1849, “There could be no better example of the nature of democracies, which … invariably decide questions of foreign policy for reasons of internal convenience.”62 Nothing could be more courageous and honorable than the actions of a liberal regime that had managed to absorb the democratic revolution without being consumed by it; nothing could be more craven and blind than the actions of a democratic regime that had succumbed to the attractions of materialism and individualism, to the detriment of liberty and civic involvement. In all this one sees that, for Tocqueville, the growth of equality and the preservation of liberty had implications for the ethical duties of states. The supreme duty was to further the civic virtue of one’s citizens, an object that was in particular danger as the progress of equality threatened to undermine states, the only modern institutions in which public spirit could be sustained. The second duty was to promote liberal and honorable standards of conduct by the society of states, the only alternative to the despotic universal empire he feared. These duties imposed certain requirements on the kind of foreign policy each state could follow, although the exact policy response—the choice between peace and war, for example—varied with circumstances. Because the second duty was required only as it was instrumental in fulfilling the first, however, it fell only on states that were full participants in the society of states, such as France. When states such as the United States were on the periphery of international society and moreover could preserve the domestic spirit of liberty by means other than an active, heroic foreign policy, they were not bound by the second duty—indeed, they might feel they had a duty to steer clear of close connections with the society of states, because the measures required by an active foreign policy, such as government centralization, themselves carried risks for liberty and civic virtue.


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In large measure, therefore, foreign policy ought to be driven by the requirements of the domestic regime. Nevertheless, the necessities of the states-system imposed limits on the degree to which domestic preferences could be expressed in foreign conduct. The influence of the need to balance power was particularly clear. France, at the heart of the society of states, had an obligation to pursue liberal aims, which Tocqueville tried to accomplish by pressing the Pope for reforms in Rome. But this effort could not be carried too far, for fear of antagonizing the pontiff and throwing him—and the major share of political influence in Italy—into the arms of the Austrians. The United States, having to a degree turned its back on the society of states, had a duty to tend its own garden and preserve the liberty that its mores and its institutions fostered. But if the growth of rivals in the New World or the extension of American interests in the Old compelled the United States to pay attention to the necessities of the balance, Washington would fall under the injunction of liberalizing the international consensus as well, despite all the dangers that a foreign policy of active engagement would entail for domestic liberty. It would have no choice: the pressures of life in the center of the society of states would already have made obsolete the old isolationist route to citizen virtue. The only choice would be what sort of active role could be made the most effective substitute toward the same end. Both the heroic, liberalizing approach to international society demanded of some states and the isolationist, decentralizing approach allowed to others could be understood only as they were affected by the central issue that Tocqueville identified: the management of relations among a society of sovereign states consistent with the demands both of ethics that went beyond any one state and of the preservation of liberty within particular states. On the importance of that challenge, M. Tocqueville never changed his mind.


CHAPTER 3

Why did Professor Lieber say No? Nationalism and Internationalism

And indeed the relation which Liberalism is trying to create between nation and nation is precisely a kind of society, not a bureaucratically ordered association, … but a society more articulated and more free, growing up spontaneously and organically out of relations subsisting less between governments than between peoples.1

I

n the spring of 1872, when Gustave Moynier proposed in the pages of the Revue de Droit International that a permanent international court be established with the authority to impose penalties on any citizen of a signatory state who violated certain codified laws of war, the editors of the journal requested responses from a number of publicists in the field of international law.2 That of Francis Lieber was unequivocal: “I have expressed myself as early as in my Political Ethics against the idea of a Permanent High Court of Nations by whom all international misunderstandings should be decided, as undesirable and without effect, if it could be established. I have not changed my opinion.”3 At first glance, this stance appears anomalous. Lieber, a professor of law and politics for decades since his emigration from his native Prussia to the United States in 1827, had long advocated the development of international law, calling it “possibly the greatest achievement of combined judgment and justice, acting under the genial light of culture and religion.”4 He had suggested bringing under the sway of international agreement subjects ranging from a uniform system of weights and measures—which “would do more for

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peace and good relations among nations than would any system of alliances”—to emigration and immigration—“no doubt, one of the greatest achievements of civilization is the fact that a stranger is no longer the hostis of antiquity”—to the preservation of international telegraph lines from destruction in time of war—“a noble item in the history of the Law of Nations”—to the adoption of a single international currency. “Nor will the steady process of uniformation stop there,” he believed.5 Nor did Lieber oppose all distillation of practice into specific principles; on another occasion he had favored asking an international congress, properly constituted and “avowedly convened for such a purpose,” to “take some … canons out of the cloudy realm of precedents.”6 Given this record of internationalist advocacy over nearly half a century, it seems odd that Lieber, at the very end of his life—he was to die within six months—would reject in such uncompromising language an idea that, on the surface, appeared consistent with his opinions; and it is certainly true that over the course of a long career Lieber did make varying statements on specific issues. Yet an examination of Lieber’s thought shows his opposition to follow from his view of politics in general and his own combining of nationalism with internationalism in particular. In a sense, there were two Liebers, a nationalist and an internationalist, but he always insisted that the one required the other. To understand his claim of consistency requires tracing his reasoning from his conception of human nature, through the nature of the state, to the relations among states in the broad international society. The Nature of Humans, and of States “I always teach in one of my lectures,” Lieber once wrote to his fellow scholar Johann Kaspar Bluntschli, “that life, all conscious existence, turns on the two poles of Individualism and Socialism.” On the one hand, the human condition included individualism, by which Lieber meant not the shortsighted narrow withdrawal into purely private concerns and consequent neglect of civic duties that so troubled Tocqueville, but an innate human desire for recognition as a separate moral being, not simply an anonymous part of a herd. “It is the general anxiety of man to be an individual and to individualize everything around him,” Lieber told his frequent correspondent Charles Sumner. “To be drowned in undefined generality makes him restless, unhappy.” Private property, “the priceless individual value which Christianity gives to each human being,” and the recognition by modern states of “individual and primordial rights” were all signs of this side of human nature. To be

Why did Professor Lieber say No?

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complete, however, life had to couple to a strong sense of individual identity an equally strong attachment to others. Sheer physical necessity, as illustrated in the extended period of helplessness of humans in infancy and youth— unusually long compared with that of other species—was a fundamental generating force for society. So were humans’ unique capacity for language and the exchange of goods, binding together the participants in mutually profitable trade. Discernible in even the most basic settings, “man’s sociality increases infinitely with every step he makes in the progress of civilisation.”7 The necessity of a state drew equally on these complementary elemental forces. The desire for possessions of one’s own produced a longing to be grounded in a homeland and a “love of country,” of which Lieber asserted, “We must single out one country, from among all countries of the globe, to call ours. The sound, ‘My country,’ is so delicious,—‘my home,’ ‘my garden,’— because we feel rescued from vague generality, stabilitated; we see our humanity reflected.” Equally, patriotism (“that sacred enthusiasm which prompts to great exertions and has the welfare, honor, reputation of the country at large in view”) and public spirit (“a practical disinterestedness and cheerful readiness to serve the community and promote its essential success in every way”) powerfully supported the social need to live in cooperation with others.8 (Thus, Lieber demonstrated the great effect on his thinking produced by his exposure to German Romanticism.) Yet as soon as humans lived together, the possibility of disputes over possessions and clashes over rights arose. Principles or rules to adjudicate among claims required an interpreting and enforcing mechanism, and that authority Lieber called the state. Among all the societies to which humans belonged, for purposes ranging from economic advancement to religious devotion, only the state had as its raison d’être the identification and enforcement of rights in society, and he therefore called it the “jural society.” Although he granted—indeed, insisted—that different circumstances required different governmental institutions to stand before the universal backdrop of the primordial state, he thought that the notion of rights precluded the legitimacy of arbitrary states not themselves governed by law or respectful of the rights of their citizens. If the legitimate governmental face of the state, then, was law-governed and institutional, it was also organic, resting on broad public support for and attachment to the institutions and, as Tocqueville would say, the mores of the regime. A student of philology, Lieber coined the term “hamarchy” to describe a government with an “organic life, if I may say so, in which a thousand distinct parts have their independent action, yet are by the general organism united into one whole, into one living system.” (This connection between rulers and ruled, and

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among all segments of the population, distinguished the hamarchy from the “autarchy,” in which unlimited power rested in the hands of some political force—which could be an unrestrained popular majority—that imposed its will on the entire community without consulting it and without allowing for the modification or repeal of the sovereign’s actions by any of the differing opinions that necessarily existed in any extended society.)9 In the circumstances of the nineteenth century, Lieber held that an organic state was necessarily a national one, and a nation by definition displayed an organic connection among its members: The word Nation, in the fullest adaptation of the term, means, in modern times, a numerous and homogeneous population … , permanently inhabiting and cultivating a coherent territory, with a well-defined geographic outline, and a name of its own—the inhabitants speaking their own language, having their own literature and common institutions, which distinguish them clearly from other and similar groups of people; being citizens or subjects of a unitary government, however subdivided it may be, and feeling an organic unity with one another, as well as being conscious of a common destiny. Organic intellectual and political internal unity, with proportionate strength, are notable elements of the idea of a modern nation in its fullest sense. A nation was a unique type of organic state, not found in the ancient world, but peculiarly suited to the requirements of the modern. In particular, one might note Lieber’s attribution to a nation of “a coherent territory,” by which he meant a territory more extensive than was occupied, for example, by the city-states of the states-system of Thucydides’s day. Elsewhere he spoke of “a portion of the earth with a dignified geographical character” in contradistinction to “the crowns of many little kingdoms crowded on one head … jarring and unmeaning sovereignties, that have not the strength to be sovereign.”10 What could bind together the inhabitants of these extensive territories into the organic union that Lieber thought the best states would possess? An answer might begin with the recognition—perhaps surprising in the nineteenth century—that one item did not appear on Lieber’s list of defining characteristics of nations: race. A vigorous opponent of slavery, particularly after his move from South Carolina to New York in 1857, he nevertheless wrote to secretary of state Hamilton Fish in 1870 that “the U.S. ought to pass a law prohibiting the immigration of any but white people,” thereby excluding Asians, whom he compared to “the Norway rat.” In his scholarly


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writings, he dismissed the idea of “the pretended Latin race,” but, especially in the 1860s and 1870s, he often employed another of the terms of his own coinage, the “Cis-Caucasian race” or the “Cis-Caucasian races”—the “white Caucasian race as developed in Europe and the Western hemisphere”— which included in the parlance of the time such groups as the Slavonic, the Celtic, the Teutonic, and the “Anglican” “races.” Because he thought the “Cis-Caucasian race” was leading the way to international understanding, he asserted, “Internationalism is part of a white man’s religion.” Where all this seems to have left Lieber is a belief that “races” were defined by culture and history, not by blood or physical characteristics. A race was therefore largely synonymous with a nation, not a preexisting fact that defined a nation. No race was by nature superior to any other, but one racial grouping—the “Cis-Caucasian”—had been the first to discover and put into practice the principles of modern government that advanced liberty. Over time, interdependence and advancing technology would see that these insights were shared, in the latest instance of “the rule of all spreading humanity that the full amount of what has been gained by patience, blood, or fortunate combinations is transferred to other regions and distant tribes.”11 More likely, in the eyes of Lieber the enthusiast for philology, to bind together an extended nation was a common language, necessary to “the communion of mind with mind.” Another force was found in the “common institutions” mentioned in his definition, including “a unitary government, however subdivided it may be.” The experience of living under the same free institutions—and above all “the noblest, vastest, highest institution[,] … the state[,] which for that very reason requires more cultivation and exertion of the highest and best powers than any other”—led to a common sense of nationhood. And it was this sentiment (though he would find “sentiment” too weak a word to encompass it) that was the most powerful force holding together citizens in the far-flung territories that modern nations occupied. It could elicit from Lieber, who was also a would-be poet, passages that were almost lyrical in their praise of “the sweets and securities, the mutual support and mutual elevation which modern political society, enlarged as it is, yet forming one organized and united thing throughout,” derived from being “a nationalized society.”12 This “inchoate consciousness of common destiny in a community,” as one interpreter of Lieber has put it, preceded political institutions; rather, proper governmental institutions ought to follow national boundaries. “Modern patriotism is not satisfied with the narrow bounds of a city, as of old, or the limits of a province, though it be the fairest,” Lieber proclaimed.

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“Nothing but a country, that is the dwelling-place of a nation, suffices for the patria of modern man.” He was equally dismissive of multinational states. “[T]he merely agglomerated monarchy” was as unsuited to modern liberty as the weak and provincial sliver of a state. Austria, “a monarchy which never had any but an artificial and forced existence, and in which true greatness or simple and national development was made impossible by its various conglomerated elements,” would always be hostile to liberty domestically and a hindrance to international progress: “the drag-chain to the chariot of advancing Europe.”13 Supported by ties such as language, by institutions, and by a sense of national identity, “the normal type of modern government is the National Polity,” thought Lieber. And if for Tocqueville the advance of democracy, century by century, could be explained only as the work of providence, for Lieber it was the rise of nationalism that was divinely ordained. “The instinctive social cohesion,—the conscious longing and revealing tendency of the people to form a nation” was the result of “the providential decree of nationalization.” “Modern patriotism” lay under the injunction of “a mission imposed by Him who willed that there should be nations. … It is sovereign to all else. It is the will of our Maker—the Maker of history.” All of this may not justify the description of Lieber as “a pre-Bismarckian supernationalist,” but it is true that in Lieber, the anxious proponent of German unity and the determined defender of the American Union against secession, the nationalist currents of the nineteenth century ran deep.14 One final feature of the state was that it was independent of outside control. Lieber argued that, because the state was a society among a specific group of people, it necessarily excluded dictation by those who were not participants; if it did not, then the society would be governed by a force outside the society. “Since the state, then, implies a society which acknowledges no superior, the idea of self-determination applied to it means that, as a unit and opposite to other states, it be independent, not dictated to by foreign governments, nor dependent upon them any more than itself has freely assented to be, by treaty and upon the principles of common justice and morality, and that it be allowed to rule itself, or that it have what the Greeks chiefly meant by the word autonomy.” This definition of the sovereign state meant that individual liberty required national liberty, that self-determination of citizens within the polity would mean nothing if authorities beyond the polity could impose their will on it: It is impossible to imagine liberty in its fullness, if the people as a totality, the country, the nation—whatever name may be preferred—or its


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government, is not independent on [sic] foreign interference. … This independence or national self-government farther implies that, the civil government of free choice or free acquiescence being established, no influence from without, besides that of freely acknowledged justice, fairness, and morality, must be admitted.15 The state, then, was a “jural society,” and therefore a proper state was lawgoverned. A proper state was organic, and therefore under the conditions of modern life a legitimate state was national. A legitimate state had a free government, and therefore one that possessed autonomy from external forces in the international environment. For Lieber, the state was not the highest good, but it was the means to the highest good of the development of human beings according to their individual and social nature, and its necessities dictated the shape of the larger international society. International Society At first glance, Lieber’s picture of international society lacked every one of the features that he saw or hoped to see in the state. To be consistent with the nature of a jural society that concerned itself with rights, the state ought to be governed by laws that protected rights. Yet at least early in his career Lieber contrasted the lawsuit as a means of resolving disputes over rights within the state, with war, the ultimate means of resolving disputes among states. The law was “founded upon the very ideas of truth, justice and reasoning, according to sound rules of judgment and proof,” while in war “the belligerents appeal from reasoning to the use of force.” “The law suit is part and parcel of the intercourse of the citizens in peace, and within the sphere of law—it is, in short, the very opposite to war in every respect.” The case was the same with that other component of the legal process, the execution of a sentence, that is to say, the punishment of a lawbreaker. He denied that, strictly speaking, punishment was the correct term in the international context, because punishment could be carried out only by an authority that had the legal right to do so, and “wars can exist between independent states only, one of which, therefore, has no right to punish the other, which would presuppose a lawful power over it.” Sanctions in international relations, therefore, whether they consisted in the declaration of a war itself or the imposition of penalties (such as the loss of territory, the requirement of reparations, or the restriction of the future actions of the losing party), were “merely a resorting to that means, which the warring nation considers as the most suitable to prevent a recurrence of wrong, or to obtain restitution.”16

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The situation was the same with all the cultural ties that bound together each state, but separated states from one another. Each people had its own language, and even though the phenomenon of language was “the most wonderful and most important [process] on this earth [for] … the conveying of ideas from one distinct individual to another; for the communion of mind with mind,” still the absence of one worldwide language set nations apart. So it was with the other forces that Lieber found acting within the well-ordered, consensual state; to the degree that they unified each state, and particularly a national state, they created diversity in the society of states. Nations formed “separate communities, large enough to be, in a degree, their own world, and separated by language, history, law, views, prejudices, desires, &c.” These cultural distinctions created great variations in perceptions and opinions on international questions; states’ actions “are in many cases not so absolutely just or unjust that they cannot appear in very different lights” to different national communities.17 The disparity in states’ mores and outlooks militated against the effective or just operation of formalistic institutions, which would tend to impose uniform rules on highly unlike circumstances: “A congress on the banks of the Po, or on the Bosphorus, for Asia, Europe and America, would make galling decisions for people near the Rocky Mountains. … The difference of nations, which nevertheless is necessary, must needs lead to very different wants and views.” This difference would impede the working of any international institution that pretended to direct the actions of sovereign states, if indeed it did not prevent the creation of such an institution from the outset. Of the two forces that gave strength to domestic law—supportive public opinion within the state, and governmental power to compel obedience— “one of these agents would be very weak, the other would not exist at all, in those decisions of a supposed [international] congress.”18 Bereft of sustaining public opinion and sentiment, cultural ties, and effective institutions, any international body that was the result of an effort to give the attributes of a state to an authority created above the states would be either unavailing or tyrannical. It would necessarily be autarchic rather than hamacratic, because it could not be organic. It would, in a word, be unnatural: Mankind extends over so vast a space, the various countries have characters so different, the several portions of mankind stand in so different degrees of civilization, their wants, physical and intellectual, their taste and genius promoted or retarded by circumstances and events uncontrollable by them, the objects they strive for by joint exertions, their dangers, desires, interests and views, languages and religions, capacities and means, are of


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such infinite variety—that human society does not, and according to the order of things, ought not to, form one state. There exist many states; that is, mankind is divided, in consequence of countless concurring circumstances, into a number of societies, in each of which exists the absolute necessity of forming a state—a necessity without which man cannot rise higher. The world dictated by the nature of humanity and by “one of God’s holiest ordinances” was a world of states.19 In such a world, Lieber enthusiastically recognized “the law, which prevails throughout the universe, that the greater, wider interest must prevail over the lesser and narrower,” following the chain from the individual to the family, the “whole house,” the street, the town, the county, the province, and the country—but he carried the logic no further. The interest, if it could be identified, of the entire international society, did not necessarily prevail over that of the state, and the state was under a heavy responsibility to look after its own interests. This primary responsibility to the domestic community introduced a markedly competitive element into the relations of states, and, “whatever the theory may be” of self-determination, “[s]elf-preservation alone forces at times a state to interfere with the affairs of another.” Lieber weighed “necessity” very heavily in his doctrine of jus in bello, and he believed that at times states faced a necessity of expanding that could provide a sufficient justification at the level of jus ad bellum. He all but asserted that the purchase of the Louisiana Territory by the United States in 1803 was unconstitutional. “But there are reasons and circumstances which carry along states and nations. To be securely and truly master of the western country it was necessary for the United States to possess the mouth of the Mississippi.” If France had declined to sell its North American possession and the United States had mounted an invasion, “a war would have been the consequence where right would have been on either side,” France appealing to its legal right and the United States to necessity. “This is a dangerous theory,” he admitted, “but danger is not a test of truth.” Nor was this the only expansion of American territory that could be so justified. “I ask you as a fellow internationalist,” he wrote to Bluntschli in 1869, “whether the annexation of Nova Scotia, not by haggling, cheating or war, but by the manly action of the people [of Nova Scotia] and the equally manly yielding of the British Government, would not be one of the choicest acts or procedures in all history. Would it not be unique and one of the crosses on the breast of the 19th century …”20 In a similar vein, he strongly argued that the Prussian mission to unify the German nation was a call of necessity that overrode the legal rights of the

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smaller states Berlin would be required to absorb. In the aftermath of the lightning victory of Prussia over Austria in 1866, he criticized the North German Confederation as insufficient: “Although Prussia took possession in a revolutionary way of Hannover, she has still not been bold and resolute enough.” When Baden and the other small German states endeavored to preserve their independence, Lieber queried, “Who can blame them? But also, who can blame the friends of Unity, for wanting a powerful and revolutionary Emperor?” and he returned to the subject in a letter at the end of 1867, voicing his dissatisfaction that “Germany remains with ‘the stocking half pulled up.’ ” Moreover, it was not only the duchies and city-states of Germany that stood in the way of history; it was also the despised empire to the south. Upon receiving a copy of the Right of Conquest from his German friend Franz von Holtzendorf, Lieber questioned the absence of “the conquest of a country if required to fulfill a distinct mission” from von Holtzendorf ’s list of justifiable grounds. If there was no other way, should Germany “never have the right to compel the … Austrians, by conquest, to return again to her dominion … ?”21 This line of thought reached its conclusion, of course, in the FrancoPrussian War, which concluded a year and a half before Lieber’s death. A combative publicist in seeking American popular support for the Prussian side in this, “far the greatest war of all history,” he was equally unyielding in private correspondence in demanding rigorous terms of peace, including the cession of Alsace “and a comfortable slice of Lorraine,” the addition of the Netherlands to “the German Bund,” monetary reparations, and the transfer to Germany of the 20 best ships in the French Navy. He was as adamant in refusing to accept third-party mediation of this war as he had been in the case of the American Civil War, and for the same reason: he feared that such “interference” would cheat the just side of its victory. The attainment of German unity was so important that he had told Tocqueville in 1831 that he would, at least for the immediate future, sacrifice to it even the cause of liberty that preoccupied them both: “I regard political union as much more important and much harder for a people to achieve than liberty. I should regard it as a great happiness that all the Germans should be subject to the same yoke, were it the yoke of iron. They would then become a single people, and with time they would be free.”22 If this were all there was to Lieber’s thought, he would deserve to be dismissed as a belligerent nationalist, who believed that peace could be corrupting, and whose work “belongs to the uncreative, the justification school.”23 Yet Lieber’s prodigious outpouring of words over a lifetime had a balance missing from the discussion thus far of his views on international


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society. This aspect, acting as a counterweight to his nationalism and his belligerence, helped him to compose the influential policy directive on which his contemporary reputation chiefly rests. For Lieber, international society was cooperative as well as competitive. His views on international cooperation stemmed both from the “social” and from the “individual,” or self-interested, sides that he found in human nature, and they made him, not least in his own eyes, a committed internationalist, particularly in his last years as his thinking turned increasingly to the international stage. In the social aspect of human nature Lieber found a natural force drawing human beings toward contact and interaction with their fellow creatures. This inherent sociality of humans did not stop at the frontiers of the national community, although it was certainly most strongly expressed within them; rather it radiated out to encompass “the great civilized family of men,” which was growing with each advance of civilization itself. (In a similar turn of phrase, an acquaintance of Lieber recalled that he was drawn “to regard nations only as different members of the same household.”) Among the members of this family, “internationalism,” or a good-faith effort to extend the areas of cooperation and minimize the harshness of conflict whenever possible, was a duty, “for it is the application of the Gosple [sic] to the intercourse of nations.” More specifically, states had an obligation, for example, to tell the truth. Lieber found “no shadow of justification to equivocation or positive lying in diplomatics, in order to injure others or benefit ourselves,” and, while he conceded that untruthfulness might in extraordinary cases be a “necessary defence” against “the attacks of malignity,” he warned “how criminal a degree [to which] all right, honor, and the barest justice may be abandoned, if the principle of veracity is once set aside in the intercourse among nations.”24 Moreover, there was a duty to aid the spread of civilization, which was bringing increasing numbers of states within the realm of cooperative intercourse, as it gave them an increasing similarity to one another: “It was a peculiar feature of antiquity that law, religion, dress, the arts and customs, that everything in fact was localized. Modern civilization extends over regions, tends to make uniform, and eradicates even the physical differences of tribes and races. Thus made uniform, nations receive and give more freely.” That extension of likeness among states, which Tocqueville found threatening to liberty, Lieber thought beneficent, because it was a mark of the ever-widening scope of “civilization” within which the inborn urge to associate could express itself fully. Measures, whether technological or legal, that bound peoples together more tightly, enabling them to recognize their underlying similarity, ought to be encouraged: thus his advocacy of mutual

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pledges not to disrupt the international telegraph cables, which linked the international community “in the great cause of intercommunion and intercommunication,” in times of war; and his decades-long effort to secure by domestic legislation and by treaty “the mutual acknowledgement of international copyright peculiarly necessitated by our common and interwoven civilization, as well as by the most elementary principles and ideas of individual property.” Could such ideas not be seen as a precursor of Mitrany and the functionalist road to prosperity and peace? These were not simply useful acts of public policy; they were duties that nature had dictated. Even war “by no means absolves us from all obligations toward the enemy,” in part because “the belligerents are [fellow] human beings”; and “[p]aradoxical as it may seem at first glance, … the closest contact and consequent exchange of thought and produce and enlargement of knowledge between two otherwise severed nations, is frequently produced by war.”25 If innate sociability drew humans toward international cooperation, selfinterest prodded them in the same direction. The “all-pervading”—indeed, the “divine”—“law of interdependence” applied “to nations quite as much as to individuals,” and, “like all original principles or characteristics of humanity,” was increasing in both scope and power as civilization advanced, thereby illustrating Lieber’s contention that what was truly natural to humanity became more evident as it became more social. In a Kantian argument, Lieber held that because human wants were the same everywhere, while the resources to satisfy those wants were unequally distributed across the earth, sheer self-interest dictated economic exchange that would result in constantly increasing and universally profitable mutual dependence. “All men stand in need of coin, desire silk, are pleased with indigo blue; but very limited regions only produce them,” he noted. “This is the way the Creator enforces inter-dependence. This is the law which necessitates and more and more promotes international good-will and leads to the great Commonwealth of Nations.” Moreover, the beneficial consequences of such contacts went well beyond the purely economic (or the wholly lower-case): “Barter, Division of Labor and Trades, Commerce, the greater portion of the Law and the whole Law of Nations, all Politics, and the Spread of Civilization are based on this Inter-Dependence.”26 Because “nations are no more destined for oyster-like seclusion and selfsufficiency than individuals, but, on the contrary, are made for interdependence and inter-completion,” the removal of barriers to their exchange was for Lieber a vital part of the internationalist creed. His devotion to the cause of free trade was a position to which he held consistently for half a century, despite the discomfort it caused him to be separated from the


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predominant opinion within the political parties he supported (first the Whigs and later the Republicans), and thrown into the company of the Democrats he detested. Tocqueville, who on most subjects was as rigorous in his economic liberalism as Lieber, had written of the principle of comparative advantage underlying free trade that he had been “brought to believe that this theory rests on truth; and that this freedom is an object toward which it is reasonable to tend, although with precautions and in infinite gradations.” Where his French friend was tentative, Lieber was unequivocal: “Free Trade is nothing else than the application of the gospel of good-will and love to production and exchange, or to the material intercourse of distant societies which always precedes their intellectual intercourse,” and “He who interferes with free exchange, and consequently with free consumption, interferes with the divine law of Inter-Dependence.” If governments would refrain from hindering individuals’ free economic exchange across state borders, they would contribute greatly to “the close of short-sighted international selfishness and unneighborly ill-will.” In a more positive vein, they should take steps to encourage international economic activity by simplifying the mechanisms of commerce. Lieber was a determined proponent of a universal currency that would sweep away the uncertainties imposed by fluctuating exchange rates, and to this end he was willing to sacrifice even his habitual national prejudices. The new international currency ought to be based on the national currency that was most widely used internationally already, the French franc, and the United States, despite “the chauvinism regarding the Dollar,” ought to assimilate its currency to the five-franc piece. He wrote Samuel Ruggles, a campaigner for this plan, that “Universal Coinage would be one of the greatest elements of all Internationalism.” The extension of international copyright, in granting an author the same protection for his work in every country, was of a similar cast. Of lesser importance but still beneficial would be the adoption of a single worldwide system of weights, measures, and time, all of them taking the logical French standards. These measures would, by easing the way to greater international contact, “hasten the advent of general peace.” And Lieber was certain that the international community would take such advantageous steps, as he was confident that free trade would inevitably triumph. “Our race is now going to enter the period of International Free Trade,” he wrote, adding, “—that is, of International Peace and Good-Will.”27 As these various proposals indicate, Lieber was not averse to limitations on the complete freedom of action of states. He wished them to forbear to exercise the right of maintaining their own national currency, of employing their own system of weights and measures, of imposing tariffs on imports,

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and of refusing copyright protection to foreign authors. (He felt so strongly about the last of these measures that he had “no manner of doubt” that if a country remained obdurate in declining to provide such protection other states would be justified in employing sanctions, including the use of military force, against it.) Penal exile of any criminals except those convicted of political offenses he considered “an international wickedness,” in that it threw the dangers posed by such convicts onto foreign societies without their consent, and he wished states to abandon it. Even the use of national unification to justify territorial expansion had its limits, in that he condemned the taking of territory beyond that occupied by the national group. Lieber opposed the Mexican War, because he expected it to lead to the addition of new areas favorable to the introduction of slavery; he was highly skeptical of “Mr. Seward’s scheme” of buying Alaska and called it “silly,” because he thought such a noncontiguous and uninhabited territory had no natural connection to the Union; he feared the annexation of “that black, Catholic Spanish mass” of Cuba and Puerto Rico, because he doubted the feasibility of their cultural assimilation into American society. “I am no extensionist,” he insisted, “mere aggrandizement indicates no highly organic and intrinsical development of a nation. … mere extension, inorganic extension always weakens … mere extension and pure accumulation burthens.”28 More important, Lieber’s “law of nations was posited on the existence of a society of nations,” in which moral restraints had real meaning.29 “Patriotism and national vanity are not the same,” he observed, and he considered a fallacy the idea “that there is a fate written somewhere beyond the nation itself, and independent of its own morality, to which everything, even justice and liberty, must be sacrificed.” The victims of such a misconception included those who believed that “the highest destiny of the United States consists in the extension of her territory,” whereas in fact “our destiny is … of a substantive character.” That is, the destiny of the United States lay in the perfection of its domestic institutions, a goal that could be accomplished within the limits imposed by the moral rights of other states. Lieber’s very use of just-war terminology demonstrated that he accepted a moral order in the international realm in which “[p]eace is the natural state, not war, Hobbes to the contrary notwithstanding; and it is not reasonable to sacrifice the entire normal state to the exceptional.”30 It was precisely because Lieber saw international society as a moral order that he believed that any supranational compulsion had no place in it, and international institutions could operate based solely on the innate sociality of human beings. By definition, morality consisted in acting because the action was in itself right, not because of any threatened punishment. This was


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a point he made at the very outset of his Civil Liberty and Self-Government, as applied to all spheres of human life: “Indeed, it would not be a moral world, if the necessary consequence of theft were the withering of the arm that committed it; if the tongue that lies were stricken with palsy. On the contrary it would be a non-moral world, a world of necessity and not of freedom of action. … Fear of itself is no moral motive.” Morality entered the world because punishment (at least in this life) did not always follow crime; and humans, whether in their personal or their sociopolitical lives, if they were to act morally had to do so out of conviction and not out of the expectation of reward. Although he was more prone to say that moral action would serve self-interest among states than among individuals, he held that praiseworthy conduct among states, too, was a matter of free choice, not coercion. One of the dangers of “universal monarchy” on which Lieber constantly pounded was that it impaired this unfettered action, shackling it with a centralized “system” of dictation. Likewise, one of the evidences of humanity’s progress was that international life in the ancient world had been subject to the will of “one leading state or country at any given period,” an idea that in the modern world was “an anachronism, barren in everything except mischief, and always gotten up, in recent times, to subserve ambition or national conceit.” Lieber strongly criticized Napoleon III on this score. “He clings to the idea of the Roman universal monarchy,” Lieber told a correspondent, referring to the papacy, and if that device should prove to be “utterly impossible, to the idea of French predominance and leadership, while the Cis-Caucasian race has risen to the far higher idea of a Commonwealth of leading nations under the aegis of the comprehensive Law of Nations.”31 Both a state or other institution that swallowed up other states to become a universal monarchy and a leading state that laid down the law to other states, making their independence only nominal, removed the element of free will, and therefore the possibility of morality, from the world. This centralization of authority in world politics—even more harmful, in Lieber’s eyes, than the centralization of governmental power within states, which he also opposed—was worse than anachronistic; it was destructive of the fruitful variety among peoples. In his Manual of Political Ethics, Lieber turned aside from his advocacy of hamarchy over autarchy and inserted an extended quotation from an eighteenth-century writer, not because it was so clearly related to his subject but because it expressed a view in which he believed deeply. It concluded with a prediction of the leveling effect of universal monarchies that had a distinctly Tocquevillian flavor: “At length it would bring down everything to the same measure; under the level of uniformity would disappear this happy variety of thoughts and sentiments,

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of talents and tastes, of habits and actions, which is at the same time effect and cause of the progress of life, and together with the national existence would vanish the physiognomy and the individuality of all nations.” And, as did Tocqueville, Lieber worried that concentrated international power would be destructive of individual liberty, which depended on the sheltering institutions of proud independent states. Centralized control would undo the happy circumstance in which humanity had “found the means of combining national vigor with the protection of individual rights”—“that by international law a ‘system of states,’ as Europe has been called, can exist whose members are entire sovereign nations. … the family of nations to which we belong.”32 For this was Lieber’s alternative to deadening and dictatorial universal monarchy: a system of independent states, guided by several leading states of roughly equal power, which would not be an anarchy, ruled by the law of the jungle, but a truly moral world in which states freely accepted the rule of justice out of a conviction of its rightness. All of his proposals for internationalist reforms had about them this quality of voluntarism. When he praised the “inter-statal arbitration” of the Hellenic world as a model for the modern, he described its “characteristic feature” as “the voluntary submission of the parties to a freely chosen judge, with a binding and solemn promise of the litigants to abide in good faith by his adjudication.” When he pointed to “one of the foremost characteristics of advancing civilization,” he had in mind “[i]nternational arbitration, freely resorted to by powerful governments, conscious of their complete independence and self-sustaining sovereignty … the substitution of reason, fairness, and submission to justice, for defying power or revengeful irritation,” and added, “There is no nobler sight than the strong—be they single men or nations—laying down their strength, like a sword by their side, saying, ‘We will abide by the judgment of the just; let justice be done.’ ” When he wrote to Secretary of State Fish of his desire to “do something for the promotion of the law of nations, the jural church of good will among men,” Lieber meant not an established church with the power to compel adherence, but a freely accepted community of faith. When he referred to the branch of law “which is the glory of our race in modern history, and possibly the greatest achievement of combined judgment and justice, acting under the genial light of culture and religion,” he meant “International Law, that law which [acts] without the sword of justice.” When he pleaded for international copyright, he called it “one of the greatest and most beneficent effects of civilization, that we acknowledge rights beyond the limit of the state; that we acknowledge rights where we can no longer be forced to acknowledge them.” When he lauded international law as “one of the proudest victories of civilization” and asked, “Where does


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its force lie?” his answer was not any governmental enforcement mechanism, but the fact that “it has gradually developed itself out of the intercourse in peace and war of civilized nations, and a united feeling of justice or fairness, mutual advantage and honor.” When he sought to describe the overall tone of civilized international life, he employed such words as “neighborliness” and “gentlemanliness”—a cast of mind and a pattern of behavior freely accepted out of an inwardly felt sense of honor or justice and legitimized through common usage, as opposed to a set of regulations the violation of which would bring physical punishment.33 Thus, as a reviewer of “Nationalism and Internationalism” put it, “It is in the spontaneous rapprochement of ideas and mores, combined with the independence of nations, that Mr. Lieber sees the hope of science and of modern civilization.” But not wholly spontaneous, for Lieber placed great store in the leadership of international opinion by those whose recognized learning, justice, and probity gave them the authority to identify the principles on which states should act toward one another. The free and voluntary acceptance of their guidance by independent states, even by those states that possessed the sheer physical power to resist if they chose, was a mark of the advancing civilization that Lieber saw all around him. “The truer a nation is, the more essentially it is elevated,” he wrote early in his career, “the more it disregards petty considerations and takes the good and true, from whatever quarter it may come.” “The leading nations—the French, the English, the German, the American—they draw the chariot of civilization abreast, as the ancient steeds drew the car of victory,” he frequently declared in one of his favorite metaphors; and the learned and public-spirited could light the way. Individual scholars through the extent of their learning and the force of their argument had exercised such influence in history. Adam Smith, “the Scotch professor who dared to teach, in his dingy lecture-room,” that nations benefited from the prosperity of others, had had such an effect, for “his teaching … went forth, and rose above men and nations, and statesmen and kings; it ruled their councils and led the history of our race into new channels; it bade men adopt the angels’ greeting: ‘Peace on earth and good will towards men,’ as a maxim of high statesmanship and political shrewdness. Thus rules the mind; thus sways science.” The effect of such teaching would be even greater if recognized experts made joint statements pointing out the path that the law of nature illuminated for the law of nations to follow. This idea of international meetings among private but prestigious persons was a project that Lieber pursued for years; he described it at some length in a letter: The strength, authority and grandeur of the Law of Nations rests on, and consists in the very fact that Reason, Justice, Equity speak through men,

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“greater than he who takes the city”—single men, plain Grotius, and that nations, and even Congresses of Vienna cannot avoid hearing, acknowledging and quoting them. … But it has ever been and is still a favorite idea of mine that there should be a congress of from five to ten acknowledged jurists, to settle a dozen or two of important yet unsettled points— a private and boldly self-appointed congress, whose whole authority should rest on the inherent truth and energy of their own proclama. No reason existed why such a conference should not see its guidance accepted; after all, “There is now no intercourse between civilized nations which is not tinctured by Smith and Grotius,” and that very rising standard of civilization would render governments even more receptive to disinterested advice in the years ahead.34 Lieber disliked any official international convention writing rules and establishing an enforcement mechanism for them in part because he suspected it was a step toward the universal monarchy he feared so greatly, but, it is clear, even more because he thought it was unnecessary. In his optimism about the future, he was a fitting representative of Victorian liberalism at the high tide of confidence at mid-century, and there is no more convincing evidence of that fit between man and era than Lieber’s praise for London’s Great Exhibition of 1851. Visiting the Crystal Palace provided the occasion for what was to be Lieber’s last voyage to the Europe he had left in 1827, though he could not know it then, and before he departed the United States he could not refrain from writing to the Times his assessment of its significance for the age. It was a highly characteristic effort. There was an expression of swelling pride in the progress of the modern period: “It will serve in future ages as the superscription of a peculiar era, having advanced a notable distance beyond its predecessors. … At the beginning of the century we have the battle of Leipsig, where all Europe fought; in the middle of the century we have the strife of London, where all the earth contends in a bloodless encounter.” There was the assurance that its influence—through “the great exchange of contrivance, taste, and knowledge it must promote among the most distant tribes; the feelings and reflections it must enlarge, the mutual kindliness it must strengthen; the modesty with which it must impress some, perhaps, in a certain degree, all; the many new thoughts beyond the immediate sphere of industry it must call forth; the peaceful disposition which the universal contact of the different nations must diffuse among them”—would further international understanding. The Exhibition was a material triumph, but its delighted visitors ought to remember that “institutions are more important [than manufactures] and cannot be exhibited.” More impressive was the


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tribute it paid both to political economy (which “had taught men that the idea of ‘natural enmity’ among nations, even in industrial advancement, is an absurdity”) and to international law (under which “justice and reason have risen above the sovereign powers, and form a code acknowledged by independent equals bowing to opinion”). The fact that states across the globe sent their wares demonstrated the increasing spread of civilization guided by institutions such as these—freely recognized institutions that did not stifle but stimulated the energies of nations, “which thrive best when they meet like boys at the public schools, where few favors are asked and fewer granted, and where every one learns to rely on that alone within him which is sterling and substantial.” This peaceful and voluntarily regulated competition could lead only to ever-higher levels of civilized conduct, “and, as such, we bless it—we bless it as an inciting agent, and as a peace-maker withal.”35 General Orders No. 100 Ten years after Lieber’s pilgrimage to the Great Exhibition, the American Civil War rudely shattered the gathering peace for which he had expressed such fond hopes, but it did so with his wholehearted approval. Twenty years of living in South Carolina and concealing his antislavery opinions had had a repressing effect on Lieber, and he soon thereafter adopted positions that he had previously condemned as extreme. When he moved to New York in 1857, he publicly revealed for the first time the intensity of his loathing for slavery, when the crisis over secession came in the winter and spring of 1860–61 he favored no concessions to the southern states that involved protecting the position of slavery, and when fighting began he sided increasingly with the Radical Republicans. He became a vociferous propagandist for the Union cause, assuming the chairmanship of the publications committee of the Loyal Publication Society, which produced thousands of copies of dozens of tracts, newspapers, and the like, advocating the most implacable rigor in prosecuting the war. These pamphlets included Lieber’s own “No Party Now but All for Our Country,” in which he adopted the dangerously vague definition of a traitor as “every one … that works or speaks in favor of our criminal enemies, directly or indirectly, whether his offense be such that the law can overtake him or not,” called on the Federal Government to act “against unfriendly and mischievous neutrality” of foreign states, and contended that Lord Lyons, the British minister in Washington, had no right to converse with political figures who were Democrats, thundering, “We pronounce every foreign minister accredited to our Government, who tampers with our enemies, and holds covert intercourse with disloyal men among us, as failing

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in his duty toward us, and toward his own people, and we await with attention the action of our Government regarding the recent and surprising breach of this duty.” (Even Lieber came to regret and disavow this last passage.) He filled his private correspondence with violent diatribes against both southern leaders and northern adherents of a negotiated peace; for Lieber, the question was only “Who shall put the heel on the other.” He reversed himself on a range of constitutional issues on which he had taken public positions for 30 years, from the authority of Congress to abolish slavery, to the power of the president to suspend habeas corpus, and, when critics charged him with inconsistency, combatively replied, “The Country stands high above the constitution.” His nationalism aroused, he saw only defeatism in moderation.36 Yet “[i]t was, in fact, in this period of the American Civil War … , when his ‘nationalistic’ emotions were … aroused … , that his most conspicuous contributions to internationalism were made.” The instructions to the U.S. armies in the field did not make up a long document, but they contained enough in the way of precept and exposition to demonstrate that, even in the crucible of war, Lieber’s faith in a community of independent states held together by standards of behavior anchored in their own self-evident justice rather than coercive authority, held firm. Indeed, these two poles of his thought might be summed up in two sentences from the order: “To save the country is paramount to all other considerations” and “Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another, and to God.”37 Too old to take up arms himself in the war, Lieber saw his contribution to the war effort in his pen and tongue. In addition to his often-ferocious participation in the public debate, he hoped to employ his scholarly expertise on legal and international issues, and he soon began to pepper various government officials with both solicited and unsolicited advice. He supplied Attorney General Edward Bates with precedents and arguments that allowed the Union Government to grant captured Confederate troops the protected treatment of prisoners of war, without recognizing the Confederacy as a sovereign belligerent. In response to Secretary of War Edwin Stanton’s request, he wrote “A Memoir on the Military use of Coloured persons, free or slave, that come to our armies for support or protection.” He sent to General Henry Halleck a similar memorandum on military honors and later, once Halleck had been named General in Chief of the Union Army, a more consequential set of guidelines for dealing with guerillas. Halleck, himself a student of international law, had the latter work distributed throughout the army.38 Thus encouraged, Lieber turned his attention to the problem that became more pressing as, after initial reverses, Union forces began to advance into


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Confederate territory: how to treat these places and their inhabitants. What rules were to apply to the governing of persons and property, what distinctions were to be made among the civilian population according to the degree of support that had been given to the enemy, what restrictions ought to guide military operations that were inevitably conducted in the midst of noncombatants? Various Union commanders answered these questions in various ways, partly as a result of their differing political sympathies, and Lieber was as disturbed by the inconsistencies in policies across the theaters of the war as he was by the inadequacy of the answers given by some officers. In mid-November 1862, he wrote to Halleck to say, “Ever since the beginning of our present War, it has appeared clearer and clearer to me, that the President ought to issue a set of rules and definitions providing for the most urgent cases, occurring under the Law and Usages of War, and on which our Articles of War are silent.” The circumstances surrounding the present case made a clarification of the rules particularly needful, he warned, stressing, “in all other countries the Law of War is much more reduced to naked Force or Might, than we are willing to do it, especially now, perhaps, in this Civil War, and there exists much more thorough organization in those countries; nor do single wars extend there over such distances as here.” Addressing the General in Chief “as the jurist, no less than as the soldier,” he urged Halleck to establish and chair a committee to undertake the task. Halleck demurred, citing pressures of time, but in early December he summoned Lieber to Washington, and when Lieber arrived appointed him to a board assigned to draw up just such regulations.39 The code that resulted was very much Lieber’s own. The other four members of the board, all general officers, charged him with preparing an initial draft; as the project unfolded, they made only revisions, and not many of those. When he sent the draft to Halleck in February 1863, he claimed, with slight exaggeration, “nothing of the kind exists in any language,” and “I had no guide, no ground work, no text book. … where nearly everything was floating.” Halleck contributed the most substantial alterations, almost all of them in the nature of excisions of explanatory material that the professorial Lieber had included. Lieber regretted the elimination of his scholarly apparatus, mildly protesting to Halleck, “I wrote something between and betwixt a code and a book—it was all new ground; and I thought it might be necessary to lay and show the foundation for the new structure—giving the reasons,” but he acquiesced. Nonetheless, when the document appeared as General Orders No. 100 in May 1863, bearing the title “Instructions for the Government of Armies of the United States in the Field” and the order of President Lincoln that it “be published for the information of all concerned,” it was clearly the product of Lieber’s hand.40

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The code—as it was generally termed despite the opinion of Lieber’s biographer that it “was less a rigid code than a persuasively written essay on the ethics of conducting war”—showed its consistency with Lieber’s lifelong positions. In the winter of 1861–62, he had delivered at the Columbia University School of Law a series of lectures on “The Laws and Usages of War,” on which he had drawn, but his interest long predated that effort. As long ago as 1838, when writing his Manual of Political Ethics, he had included a final chapter devoted wholly to an elucidation of the contention “An unjust war is not only immoral, but it is one of the greatest crimes— murder on a large scale,” and its implications for a number of specific problems faced in entering into and carrying on warfare. No pacifist (in fact, something of a bellicist in his view that “As protracted peace is not unalloyed with evil … so is a just war not without its great advantages”), Lieber was at the same time a moralist, and for him war could no more be divorced from considerations of ethics and justice than could any other political act. As diligently as he attempted to separate his private concerns from his public duties, the humanitarian features of the code could not have been completely detached from his worry over the fate of his three sons, one of whom had enlisted in the Illinois militia, one of whom had received a commission in the Union Army, and one of whom—in a break with his father that grieved Lieber greatly—had joined Wade Hampton’s legion in South Carolina. With the closest members of his family fighting on both sides, Lieber had weighty reasons for hoping to temper the ferocity of war.41 “Usage, History, Reason and Conscientiousness, a sincere love of Truth and Justice and of Civilization, have been my guides” in formulating the code, Lieber told Halleck. These influences taught him that “[p]eace is [the] normal condition [among states]; war is the exception,” and being the exceptional condition war required justification. This was not an impossible standard to meet, for, as he had written in the Manual of Political Ethics, “the immoral consequences of submission to foreign conquerors, and of habitual submission to injustice, plunder and insult, are still greater and penetrate deeper [than the evils resulting from the use of force], for they tend to extinguish that lively feeling of justice, without which no free state can flourish.” Still, it was a test that not every war could meet, and he had laid out the traditional criteria of the jus ad bellum in plain fashion: A war, to be justifiable, must be undertaken on just grounds, that is, to repel or avert wrongful force, or to establish a right; must be the last resort, that is, after all other means of reparation are unavailable or have miscarried; it must be necessary, that is, the evil to be averted or redressed


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should be a great one; and it must be wise, that is, there must be reasonable prospect of obtaining reparation, or the averting of the evil, and the acquiescence in the evil must be greater than the evils of the contest. The code put the matter more briefly, and somewhat more ambiguously: “war has come to be acknowledged not to be its own end, but the means to obtain great ends of state, or to consist in defense against wrong.” Allowing “great ends of state” to be considered a just cause of war recalled Lieber’s expansion of the right of conquest to include the fulfillment of a state’s mission; it also reflected his passionately held nationalist view that through the sole act of secession, even without any attack on the Union, the Confederacy would have destroyed the American mission, which was to be united in one nation.42 Once a just cause had been established, Lieber was inclined to give military necessity the last word in the conduct of the war. In 1838, in the Political Ethics, he had considered some customary restrictions of the jus in bello to be mere “niceties” remaining from the days when “wars were somewhat like duels, or tournaments.” In the modern era of national states, however, “when nations are aggressed in their good rights, and threatened with the moral and physical calamities of conquest, they are bound to resort to all means of destruction.” Read in isolation, this passage would mean that jus ad bellum had swallowed up jus in bello entirely, particularly since he went on to say, “First, settle whether the war be just; if so, carry it out vigorously; nothing diminishes the number of wars so effectually. … As for the destruction alone, in whatever number, or by whatever means, it is lawful and advisable.”43 Again, the 1863 code contained echoes of these earlier ideas, when it declared, “no conventional restriction of the modes adopted to injure the enemy is any longer admitted,” and “The more vigorously wars are pursued, the better it is for humanity. Sharp wars are brief.”44 Yet Lieber went on to identify rather specific restraints on the conduct of war, and to press for them in equally vigorous language. The explanation is to be found in completing the sentence in the code declaring that any “conventional” restriction was no longer allowed; Lieber immediately added, “but the law of war imposes many limitations and restrictions on principles of justice, faith, and honor.” It was not an artificial, autarchic law, even if it had been codified, that bound the international family of nations; it was their voluntary adherence to standards justified because they were, and could be seen to be, right in and of themselves. The code was clear enough: “There exists no law or body of authoritative rules of action between hostile armies, except that branch of the law of nature and nations which is called the law and usages of war on land.”45

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In general, Lieber argued, rules that were inherently valid furthered the “ultimate object of all modern war”—“a renewed state of peace.” One measure that would contain the national bitterness hindering a return to the natural state of peace was the avoidance of attacks on noncombatants: hence the rule of discrimination, which he believed had made great strides with the progress of “the Europeans, and their descendants in other portions of the globe.” “[A]s civilization has advanced during the last centuries, so has likewise steadily advanced … the distinction between the private individual belonging to a hostile country and the hostile country itself, with its men in arms.” In the case of the former, “the principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit.” The same protection was to be extended to such public buildings as churches and hospitals, and to museums and the works of art they contained. The protection was not absolute, and Lieber allowed under “the exigencies of war” a number of actions that the subsequent evolution of the law of war has prohibited, but the overall effect was that “protection of the inoffensive citizen of the hostile country is the rule; privation and disturbance of private relations are the exceptions.”46 As the code included provisions protecting noncombatants through discrimination, so it devoted considerable attention to rules protecting combatants from unnecessary harm. Lieber’s statement in the code that those who take up arms do not cease to be moral beings, noted earlier, was foreshadowed in fuller form in the Manual of Political Ethics. Soldiers had obligations even to their enemy, he declared there, which meant that they were allowed only to “injure him as enemy”—that is, to employ only the violence needed to remove his opposition to their attainment of the immediate aim of the battle, or the ultimate object of the war, “which among civilized nations is always peace, on whatever conditions that may be.” To go beyond what was militarily required in an “unnecessary infliction of suffering” was “to injure my enemy privately,” and “I have not the right” to inflict such “cruelty.” Such harm, along with “all avoidable destruction of works of art or science, in particular, and all unnecessary destruction of any kind,” was “criminal” and an “abuse of arms.” The safeguards of combatants also included the right to protection and care (such as food and medical attention) once they were rendered hors de combat, because “So soon as an enemy is rendered harmless by wounds or captivity, he is no longer my enemy, for he is no enemy of mine individually.” Chaplains, surgeons, and other medical personnel were not even to be made prisoners of war “unless the commander has reasons to retain them,” and they were not to be aimed at directly; their functions related to the needs of soldiers in the opposing armies as human beings, not as enemies, and they were therefore to be exempted from attack as far as possible.47


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Although Lieber paid little attention to the issue of legitimate and illegitimate means of waging war (and dismissed those who made it their concern, asking, why anyone should quote “old Vattel [, who] ought to be called Father Namby Pamby”), he did hold that certain stratagems were unacceptable because they undermined his fundamental premises that “peace is the end of war” and that “peace is founded upon confidence.” “Perfidy” was never to be tolerated, for it destroyed the minimum of trust needed to induce compliance with restraints. For example, if troops surrendered in the expectation that their protection as prisoners of war would be respected, and that expectation was then betrayed, fewer surrenders would take place, even in hopeless circumstances, and wars would become longer and bloodier; if one belligerent abused the protected status of hospitals by applying hospital markings to buildings being used for military purposes, the other would soon cease to refrain from attacking buildings marked as hospitals. The same was true of the use of the enemy’s uniform or flag, and of feigning surrender and then taking advantage of the enemy’s lessened precautions to resume fighting. While “deception”—such as leading the enemy to expect that an attack was to come from one direction while in reality preparing to launch it from another—was to be expected, perfidy struck at the idea of war as a rule-governed activity, and “if no degree of confidence remains between the belligerents, every war would become an internecine war; and so it is the case between all savage tribes, who have lost all confidence in one another.”48 In all this, Lieber resisted the conception of the law of war as “a Penal or Criminal Law.” It was instead a set of usages taken on the one hand from the demands of military necessity and the legitimate object of defeating the enemy as rapidly as possible, and on the other from the demands of justice to the enemy as fellow human being with whom one was at war only in an exceptional interlude to the normal state of peace. When he wrote to Halleck with his interpretation of the code in subsequent specific circumstances, it was usually in this sense. The execution of those convicted of espionage was to be so understood: “You donot punish a spy; you kill him to repress his trade.” So was that of retaliation for violations of the laws of war by the enemy: “Retaliation is no punishment for a crime committed by the victim: it is a measure of defense and repression in which the opposite party is treated as a unit.” Retaliation could therefore rightfully be visited even upon those who had committed no crime, such as prisoners of war in one’s hands. Lieber admitted, “It is this very thing which makes Retaliation so awful,” but was emphatic that “it is necessary”: “it can be no objection to retaliation that the innocent or comparatively innocent suffer by it. That is the very character of retaliation. If we only kill the guilty perpetrator, if we catch him, it would not be retaliation—it would [be] plain and well observed justice.”49

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Nevertheless, for Lieber the limits imposed by reason and justice were real—more real, in fact, than a positive law laid down that did not show itself to be reasonable and just to those who were to be bound by it. Throughout the war, his correspondence carried the insistence that self-restraint was required by honor; by the object of all war, which was peace; and by the usages that any state entering war tacitly accepted. Retaliation was necessary, but it had “its limit in simple death” and could not justly include torture even if the enemy employed torture. Nor could it go beyond the initial unjust action to which it was a response. When Lieber heard that General Ambrose Burnside had threatened to hang ten Confederate officers for every Union officer hanged by Confederate authorities, the author of the code wrote Halleck that Burnside’s vengefulness was “very necessary promptly to stop” under articles XXVII and XXVIII. “If one belligerent hangs ten men for one,” he warned, “the other will hang ten times ten for the ten, and what a dread geometrical progression of skulls and cross bones [we] would have!” Hardly had the code appeared when he argued for its application against “the disastrous consequences of reckless devastation,” writing to Halleck somewhat peremptorily, I believe it is now time for you to issue a smart order, directing attention to those paragraphs in the Code which prohibit devastations, demolition of private property etc. I know by letters from the West and the South … that the wanton destruction of property by our men is alarming. It does incalculable injury. It demoralizes our troops, it annihilates wealth irrecoverably and makes the return to a state of peace and peaceful mind more and more difficult. The unhappy years he had spent in Columbia, South Carolina, and the college’s censure of him after his endorsement of Lincoln in 1860, did not prevent him from entreating Halleck to prevent unnecessary cruelty by General William T. Sherman’s and other armies when they entered the state. When the end came, he argued that Stanton could not lawfully order prayers for the president of the United States to be said in Richmond.50 From its publication, Lieber was confident that what he called “Old Hundred” was a signal “contribution by the U.S. to the stock of common civilisation.” He told Halleck that it would “do honour to our country” and, more colloquially, referred to “our little pamphlet—short but pregnant and weighty like some stumpy Dutch women when in the family way with coming twins.” He predicted, “It will be adopted as a basis for similar works by the English, French and Germans” and “quoted as authority, by other


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nations instead of its looking out for authority with them,” and this diffusion did occur. Whatever its immediate effect on the conduct of the war by Union forces, it remained for generations the basis for the rules by which the U.S. Army was governed; and its genealogy has been traced through the regulations attached to the Hague Conventions of 1899 and 1907, to the judgments of the Nuremburg Tribunal in 1946, and the Geneva Conventions of 1949. In an address delivered on the fiftieth anniversary of the issuing of General Orders No. 100, a former secretary of state and secretary of war, Elihu Root, attributed to Lieber and the spirit of the code, in part, the fact that “after the surrender and the triumph [of 1865] came reconciliation, friendship, the restoration of a united country, and, beyond all human experience, even within the lifetime of the generation which had waged the conflict, freedom from the bitterness of spirit that time cannot soften.”51 Lieber would have said that this influence derived from exactly those features that advanced international life in general. The code was issued to a civilization that was receptive to it, at a favorable moment when “the laws and usages of war have been of all branches of the Law of Nations the most rapidly improving in quite recent times.”52 It was not the decree of an aspiring universal monarchy, but was declared as a voluntary measure of self-limitation that both preserved the honor and furthered the interests of the state that issued it. The restraints were effective because they rested on self-evidently honorable and just reasoning and drew on a large body of long-accumulating practice. They could be codified because they already possessed authority; they did not derive authority from being codified. In the eyes of the elderly German American professor, they vindicated his confidence in the progressive character of international society. The Importance of Voluntarism When Gustave Moynier formulated his proposal to establish an International Judicial Institution for the Prevention and Repression of Infractions of the Geneva Convention in 1872, he contended that the case for a new authority was unassailable: the Convention, negotiated in 1864 to provide a certain minimum standard in the treatment of the wounded in wartime, had not been supported by enabling legislation in many of the signatory states. A “recognition of the inadequacy of a purely moral sanction” represented by the mere existence of the Convention brought him to advocate a new device, “an institution that, at bottom, requires an attack on the sovereignty of states,” he admitted, but one with such advantages that he hoped “to see them make this concession voluntarily.” His plan was

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this: a second international treaty accompanying the Geneva Convention would establish penalties for violations of its provisions. (Moynier found a precedent for such international legislation in treaties between Switzerland and several other states protecting an interest uncomfortably close to Lieber’s heart, literary property rights.) In case of war, a five-person tribunal, composed of one representative chosen by each of the belligerents and three judges chosen by the president of the Swiss Confederation from neutral countries, would form to hear any charges of violations. (Moynier’s precedent here was the tribunal that had recently settled the Alabama case.) He may have believed that his idea was carefully hedged with safeguards: the international judicial body was to rule only on cases brought to it by the interested governments (not by third parties, nor could it originate complaints itself ), and only on subjects under the Geneva Convention (though Moynier did raise the possibility that its competence could be extended to other matters, such as the rules concerning explosive projectiles under the St. Petersburg Convention). No international executive agency was envisaged; the judgments of the tribunal were to be carried out by the interested governments, “authorities who could not be constrained by any material force, but on whom public opinion would act powerfully.”53 If Moynier thought that these limitations would disarm any opposition to his proposal, he was mistaken, for Lieber had a lifetime’s worth of objections, which he detailed in his letter of reply. Together, they encapsulate his view of international society. He began by noting his credentials as an internationalist, declaring himself “distinctly and emphatically in favor of constantly expanding and multiplying international Arbitration and Reconciliation,” and reminding his readers that he “conceived and wrote” General Orders No. 100. “I hail every thing which, in whatever degree it may be, makes reason, justice and charity hover like a tempering cloud even over the fiercest heat of the raging battle,” he insisted. Still, he could not accede to the Moynier plan. “Who should be the sheriff of a High Court of Nations? And what common court even, would have any impressive authority of which it were not known that its decrees would be carried out by public power?” he queried. “By whom shall the respective governments be held to punish those who have infringed upon the laws of the Geneva Convention, if the belligerents do not do it on their own accord?” The lack of institutions to embody a sovereign power on the international scene once again reared its head as a fatal objection, in Lieber’s mind, to the pretence that an international body could exercise legislative and judicial functions. Nor did he wish such institutions to be established; they would constrain the ability of free peoples to determine their course for themselves; it was “not puerile jealousy, but the necessity of autonomy which


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would prevent a free nation” from relinquishing its external freedom, “and free nations stand especially in need of autonomy,” a need that “increases with the advance of freedom and the expanse of self-government.” To respect that legitimate desire for autonomy, and to advance the cause of international cooperation, Lieber favored a case-by-case approach, under which states agreed through special treaties to create courts of arbitration on particular issues. “They have power and their decisions have force for the very reason that they are constituted by mutual and especial consent, and for the special occasion,” he noted. A free process of deliberation could take place within each state to decide whether such a panel was needed in light of the circumstances at hand. It would be informed by a disinterested consideration of equity and usage. Lieber recalled that he had “strongly recommended to return to the custom of the middle ages, and to select the Law Faculties of Universities of high repute for international arbiters,” and he cited a favorite historical example: Hugo Grotius was quoted as authority at the Congress of the European Nations at Vienna, but he was thus quoted above monarchs, ministers and nations because he was an unofficial man, absent from the strife and who had written his work on Peace and War at the dictation of reason, justice and equity, without any special connexion with the cases in question, appealing to reason, justice and equity alone. “[O]ne of far the most effectual and beneficent things” that Lieber could suggest was a contemporary expansion of the model laid down by Grotius: … one of the most promising things in matters of internationalism would be the meeting of the most prominent jurists of the Law of Nations, of our Cis-Caucasian Race—one from each country—in their individual and not in any public capacity, to settle among themselves certain great questions of the Law of Nations, as yet unsettled, such as Neutrality, or the aid of barbarians, or the duration of the claims or obligations of citizenship—I mean settle as Grotius settled what he settled, by the strength of the great argument of Justice. A code or proclamation, as it were of such a body would soon acquire far greater authority than the book of the greatest single jurist.54 What made this a workable alternative to Moynier’s idea was Lieber’s faith that a tide was running in the European and North Atlantic world that would incline nations and their leaders toward voluntary acceptance of the

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dictates of justice. Greater communication—and Lieber distinguished autonomy from isolation—was daily lessening the differences of thought among nations, ushering them toward similar conceptions of justice. There was “intercourse [even] in war, since man cannot meet man without intercourse,” and the Geneva Convention, supported by the proper free institutions, might “become more and more one of the very elements of international progress for our race.” There was no need for Moynier’s permanent international court, which “savour[ed] of Universal empire,” because the progressive principles of the Convention would succeed due to their own rightness. “Nothing is more sacred to me than thus seeing Charity keeping pace with the drummer and marching forward, not to fight, but only to lift the wounded, or in doing so, to be laid low herself,” Lieber declared, concluding that he hoped that the conference of jurists he proposed would meet in 1874.55 Such a meeting did take place in 1874, and the resulting Brussels Declaration, containing much that was in Lieber’s code, led to the Oxford manual adopted in 1880 by just such a group of respected experts as he had desired, the Institute of International Law.56 Lieber did not live to see it, having died in the fall of 1872, but his hope of being named, at the age of 76, as one of the American participants demonstrates his self-confidence. He possessed confidence, too, in the enlightened evolution of the “family of nations.” The recasting of states into national units, their development of free domestic institutions, the growth of universally profitable exchange among them—these providentially directed changes, which carry an air more of Mazzini than Treitschke, would lay the foundations for peace. Scholars and publicists of justice and equity (among whom Lieber certainly counted himself ) would identify the standards to be erected atop this base. In the resulting community of free, civilizing, independent and interdependent nations, peace would become ever more beneficial and war, with the spread of voluntary arbitration, would become less frequent. When justice did require war, it would be fought with respect for the standards of conduct demanded by the only proper end of war, that of peace. The victory of the Union in 1865, extinguishing slavery and sealing the national identity of Lieber’s adopted country, and the triumph of Prussia in 1871, creating the national unity of his native one, evidenced for him the course of history. Armed with such optimism, when confronted with Moynier’s proposal, which he considered both harmful and unnecessary, Lieber could hardly do anything but say no.

CHAPTER 4

Why was Mr. Bagehot Opposed? Government by Discussion

[T]he Liberalism that governments most need consists ultimately in a profound conviction that reasonableness in the long run always defeats its enemies; that in the conflict of opinions and tendencies, the most rational are the fittest to survive. …1

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n the mid-1870s the “Eastern Question,” which had so exercised Tocqueville in his parliamentary debut 35 years before, underwent another of its periodic eruptions. In rapid succession, two issues came before the British government for decision, both of them the consequence of the slow decay of Ottoman power throughout the nineteenth century: first, the Khedive of Egypt, in dire financial straits, agreed to sell to the government in London a considerable block of shares in the private corporation that operated the Suez Canal; second, the Porte itself, facing revolts in its European provinces and diplomatic demands from Russia, sought support from Britain. Where Tocqueville in 1839–43 had advocated a “forward” policy directed at keeping “the sultan independent of the czar, and Muhammad Ali [the pasha of Egypt] independent of the English,”2 Walter Bagehot in 1875–77 repeatedly criticized both the purchase of the shares and any form of involvement in the confrontation between Constantinople and St. Petersburg. Where Tocqueville had been willing to run even the risk of a war between Paris and the other four great powers, Bagehot opposed all risks that London might encounter if it pursued an active role in the Near East.

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Of course, Bagehot had long scorned the abilities of Disraeli (and come close to impugning his character); given Bagehot’s admiration for Gladstone, it was hardly likely that he would do anything else. Then, too, Bagehot was an advocate, with Gladstone, of reducing public expenditures wherever possible, and both the investment in the canal and any intervention in the affairs of the Ottoman Empire were liable to involve considerable expense. Still, do these reasons wholly explain the sustained editorial barrage in the Economist against the decisions or contemplated actions of the Disraeli government over the last 15 months of Bagehot’s life? Government by Discussion Although Bagehot remains best known for his study of British government, The English Constitution, he painted his widest canvas in his later effort—first published as a series of essays in the Fortnightly Review between 1867 and 1872, and then as the book Physics and Politics in the latter year—to apply the most recent research in anthropology and the emerging ideas of Darwinian natural selection and Spencerian social change to no less a topic than the evolution of all government and the history of all nations. Lieber might snort to a correspondent that the advocates of the theory of evolution “not only prove to you that your grand-mother was a hideous gorilla, but they do it with enthusiasm and treat you almost like a heretic if you will not agree” and suggest that Darwin might derive the French “from an ancient self-cohabiting peacock,” but Bagehot was much impressed by this new avenue of scientific investigation, and Physics and Politics, while a relatively brief work, had a bold theme and anticipated the Social Darwinists.3 Citing both science and scripture, Bagehot began by describing “primitive,” “patriarchal,” or “ante-political” man as having unbounded authority over his household but being aware of no law or morality and therefore “at the mercy of every impulse and blown by every passion.” In such a condition, no end of any magnitude or durability could be achieved; “law—rigid, definite, concise law—is the primary want of early mankind; that which they need above anything else, that which is requisite before they can gain anything else.” How it came about that different small groups in scattered locations first attained some measure of stability through accepted rules, Bagehot did not venture to say, but his heavily emphasized point was: “[i]n early times the quantity of government is much more important than its quality. … A good rule is better than a bad one, but any rule is better than none.” Once recognized rules became established among some group, the principle of natural selection operated to give that group an immense advantage over others;

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because its members could concert their actions against the isolated individuals and families outside, it easily defeated them in the endemic conflict over scarce resources. They were killed off, while its members survived to father succeeding generations; the more effective form of social organization drove out the less. When one of these groups encountered another, all else being equal, the victory went to the better-organized party, the group with the more cohesive discipline and thus the greater fighting power. The advantage, indeed the necessity, was for unquestioning obedience to whatever rule existed, enforced by one united caste exercising what would later be differentiated into religious and secular authority, employing summary penalties, the more ferocious the better. To describe this set of unchallenged practices, Bagehot coined one of his more famous phrases, “a cake of custom.” Societies baked and preserved the cake for efficiency, not for liberty: “That this regime forbids free thought is not an evil; or rather, though an evil, it is the necessary basis for the greatest good; it is necessary for making the mould of civilisation, and hardening the soft fibre of early man. … Later are the ages of freedom; first are the ages of servitude.” Individuality was not to be tolerated; a “national character” was formed because those who did not conform were quickly eliminated, allowing only the obedient to live to pass on their traits to the future. So the history of generations went in a story of repeated conquest. Those groups—which as ages passed, social organization solidified, and similarities and the capacity for common action increased could now be called nations—that failed to keep pace with the military strength of their neighbors were trodden under, no matter how advanced they might otherwise become in philosophy, art, or wealth. “Conquest improved mankind by the intermixture of strengths,” Bagehot declared; “the armed truce, which was then called peace, improved them by the competition of training and the constant creation of new power.” Most nations remained in this condition of “arrested civilisations” in which the “tendency in descendants to be like their progenitors, and yet … also … to differ from their progenitors” was allowed only half its operation, and natural variations from the set pattern were cut off. Fear of the terrible consequences that might follow if the cake of custom was disturbed prevented the emergence of any minority opinion. Yet Bagehot insisted that, if progress was to be achieved, some means had to be found of “breaking the cake of custom … and reaching something better.” Again a minority of nations somehow passed through to the next stage in which they “gained variability without losing legality,” and again the advantage that this advance gave them in the evolutionary mechanism, “the battle of nations,” meant

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that they conquered and survived. These states—for now he begins to employ that term—had entered “the age of discussion” in which questions were settled not by status but by choice. “A free state … in which the sovereign power is divided between many persons, and in which there is a discussion among those persons” first appeared in recorded history among the Greek republics, and since that time the world had never been without one or more free states. The “fatal clog is removed, and the ordinary springs of progress … begin their elastic action,” under the incentives that discussion gave to intelligence and toleration for new ideas, as well as the opportunity it provided for the exposure of bad ideas. A fortunate number of states continued their evolution in the direction not only of increasing power but also of increasing freedom, and with time the world reached the state of things known to Bagehot’s readers in 1872. Whatever may be said about the accuracy of this account of comparative civilizations, with its contention that nations that prevailed in war were not simply stronger but in some sense better, it is clear that Bagehot attached considerable significance to the contrast between the conditions that had obtained in all early societies and still marked most contemporary societies around the globe, in which coercive force maintained adherence to unexamined creeds, and those that marked modern polities of discussion, in which reason had obtained a foothold. In the latter, disinterested intelligence based on evidence and sound judgment had taken a place at the table of politics along with its older counterparts of tradition and sheer power. England (to use Bagehot’s preferred term for his own country) formed the supreme example of government by discussion, for “[t]he whole fabric of English society is based upon discussion—all our affairs are decided, after the giving of reasons, by the compromise of opinions.” Along with confirming and removing a Cabinet, the primary task of Parliament was to express, to concentrate, to distill, and—because it operated on a stage closely watched by the entire nation—to publicize the opinions of the country; that was the way in which “public opinion” was formed. English statesmen had “to persuade, not to coerce.” They did so the more easily because English society had, painfully and slowly over centuries, acquired an openness to the various influences that made discussion fruitful. The first of these was a constantly renewed willingness to learn. Such instruction did not come solely from formal education, though Bagehot was in favor of extending mandatory primary education to all classes as the Reform Bill of 1867 extended political power. Trade brought instruction, by exposing the nation to other ways of thought; so did religious toleration. In a distinctly Tocquevillian vein, Bagehot believed that involvement in political controversies, by forcing citizens to


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look to the needs of the whole polity beyond their own private concerns, also imparted a valuable education.4 Bagehot thought that England, “a country governed mainly by labour and by speech,” came closer than any other to the model of government by discussion, and that it derived great advantages thereby. One of the principal strengths that discussion imparted to the authorities in any country was that it informed them as well, by demonstrating to them the measures that popular opinion would accept, and those at which it would rebel. “A despotic monarch does not know where he stands,” he wrote in contrasting parliamentary government with the regime of Napoleon III. “[H]e knows there is much prejudice opposed to him, but he cannot say how much; he cannot begin to remove that prejudice, for ‘real’ vigorous discussion is of all things to him most dangerous.” Contrary to the general opinion, only a free government could confidently undertake bold measures, because it was an informed government: “Whatever else may be said against England, and the English Constitution, she has, and the Constitution has given her, the strongest government in Europe.” Moreover, a free government was, through time, an improving government, as truth would emerge if no interference was allowed in the process of unfettered discussion. Although “the State power may be used equally for truth or error,” he declared, “in discussion truth has an advantage. Arguments always tell for truth as such, and against error as such; if you let the human mind alone, it has a preference for good argument over bad, it oftener takes truth than not.” A society open to discussion was a kind of “Court of Inquisition” sitting century after century, sifting out falsehoods and tending, gradually and imperfectly, toward truth. Bagehot’s “continual hope,” as one observer put it, “was that through the use of reason the eager essences could be moderated and the irrational passions restrained.”5 Government by discussion, then, was a good thing—good for the governed, and good for those who governed. It was the instrument both of stability and of progress in those countries fortunate enough to have mastered it. Bagehot had strong doubts, however, that the presuppositions and methods of discussion could be transferred wholesale to the broader international society. Discussion and International Relations One might begin by noting that Bagehot feared that it was difficult enough to maintain government by discussion within countries, because of the inveterate human tendency to act without consideration. “What mankind really wish to economise is thought,” he asserted, and ceaseless activity was

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a common way to avoid thinking: People rush to and fro. They are never still. They go to eight committees in a day, taking care to be pretty late at each—they look at their watches the moment they get there—they spurt out rapid errors. If you suggest a little reflection before doing anything, they say, “Don’t bother about that now;” and when all has gone wrong, they have the ready plea, “I was so occupied, I could not give it a thought.” Wise action required judgment and judgment required time: this was what most people lacked the patience to give, and deliberation suffered for the lack of it. This “inability to stay quiet,” this “wild passion for instant action,” was an understandable inheritance from the ages before the practice of discussion began, when the party who hesitated was likely to be killed by the party who acted promptly, but it was no longer advantageous in an era in which scientific progress demanded careful study and public policy required deliberation. The balance of good and harm produced even by benevolence could be questioned: “it is open to argument whether it be or be not an evil to the world, and this is entirely because excellent people fancy that they can do much by rapid action—that they will most benefit the world when they most relieve their own feelings; that as soon as an evil is seen ‘something’ ought to be done to stay and prevent it.”6 To these general predispositions could be added influences peculiar to each country. As noted earlier, Bagehot distrusted the tendency of the business classes to concentrate on their private dealings and neglect their public duties; he feared equally that they would carry over into government the feeling they brought from the busy commercial world—that immediate activity was always useful, and that reflection was evidence of impracticality and sloth. Even greater was his apprehension of extending the franchise below the middle classes, to “the poor, the untrained, and the ignorant.” In the debates over the extension of the suffrage in the 1860s, Bagehot tirelessly opposed the simple lowering of property qualifications as tending inevitably toward universal suffrage, which would in his view throw all political power into the hands of classes who were ill-equipped to distinguish good arguments from bad, who were apt to decide according to emotion rather than reason, and who were therefore unable to carry on government by discussion.7 Finally, even if the House of Commons remained “pre-eminently considerate, well-judging, and convincible,” it was not possible for all organs of the British government to be so. In dealing with India, for example, a society not converted to the politics of discussion, what was needed in a statesman was


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not persuasiveness but forcefulness. So long as the British political system had to produce officials to govern India, it could not be wholly given over to the politics of discussion.8 If all these things were true of the free country in which Bagehot lived, how much less likely to witness unhindered discussion were the unfree governments of the other European great powers. He “watched for twenty years with a strange, almost personal interest,” and not without sympathy, the career of Napoleon III, and granted the emperor a number of praiseworthy qualities and wise policies, such as free trade—but in the end he dismissed Imperialism because “it is not a teaching government; it does good things for the nation, but it does not show the nation why they are good; it does not state the arguments upon which they rest; it trusts to success for such conviction as it desires.”9 Whether Germany had a national character as uncongenial to the politics of discussion as that of France, Bagehot never ventured to decide, at least in his published work. Rather, his concern was that throughout his career policy in the strongest German state, Prussia, was determined by a man who exemplified the tendency to act, instead of discussing, that Bagehot so distrusted. Chancellor Bismarck, he charged repeatedly, was “a statesman who was accustomed to deal rather in blows than arguments,” who “simply strikes heavily, so to speak, those who differ from him.” This was “the one great weakness of a powerful mind, the incapacity to measure the true force of opinion.” Bismarck’s lack of concern with the opinions of others, with convincing them as opposed to defeating them, gave rise to Bagehot’s acid advice: … it is quite conceivable that even he would be the better for a little of that necessity for convincing his colleagues, which he so much dislikes. It is true it is troublesome. But all troubles to individuals are not evils to the state, and some of them are great goods to the state. We suspect that the great German Chancellor himself would give both Germany and the world less trouble, if he were a little more hampered than he is with the necessity of carrying duller-minded colleagues with him, and with the policy he pursues. In such circumstances, Bagehot concluded despairingly, “neither France nor Germany have had any effectual training in political argument.”10 Beyond the particulars of the national character of any one people was the fact that all peoples had different national characters, impeding the mutual understanding and the ability to grasp the arguments of others that true

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discussion required. Differences in language were only the most obvious instance of this impeding diversity. “In English a distinguished foreigner says not what he thinks, but what he can,” Bagehot observed, having noted his own corresponding difficulty when attempting to converse in Paris. “Dry thoughts are cosmopolitan,” he granted, and therefore written communication could overcome much of the problem, “but the delicate associations of language which express character, the traits of speech which mark the man, differ in every tongue, have not even cumbrous circumlocutions that are equivalent in another.” On the other hand, a shared tongue could create its own bad feelings: “A common language … is hardly ever a bond of friendship, but it is very often, and very naturally, a source of irritation to both the communities that speak it. Every trivial and disparaging remark passed upon one nation by another in a language common to both rubs the sores of wounded vanity.” If the United States were suddenly to become a German-speaking nation (and it is interesting to speculate on Lieber’s reaction to such a transformation), Anglo-American relations would in all likelihood be improved.11 Bagehot could predict ill effects both from a similarity and from a dissimilarity of languages, not because he was endeavoring to protect himself from ever being proved wrong, no matter what the facts, but because language was only a manifestation of a deeper phenomenon that impeded nations following the reasoning of other nations, that made them quick to take offense at the perceived slights of others—that prevented their engaging in the politics of discussion. This was the near-impossibility of carrying on a reasoned debate and agreeing on a generally acceptable compromise among those who did not begin as like-minded persons. If the participants in a debate did not accept the same starting ideas of what constituted the desirable end to be sought and what constituted a convincing reason for preferring one policy over another as the best way of seeking it, they could not be expected to agree. Statesmanship in conditions of fundamental difference over these starting points required the ability of an intellect to “go out of itself and enter into the conceptions and modes of thought of a different world,” ceasing “to affirm itself as the true type for the universe” or “to resent as a sort of imbecility the reluctance of other worlds to abolish themselves and conform to the standard it sets up.” If peoples, and those who acted for peoples, were not to be thrown back onto pre-political ways of dealing with others, they needed “flexibility of intellect to look at a different race’s wishes from their own point of view … and enlargement of heart to enter into their popular feelings.”12 These qualities of large-mindedness and sympathy were arduous enough to attain even among groups living under the same government. “It is a great


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advantage to a nation to be composed of human beings who understand one another, and a great disadvantage to be composed of such as do not understand each other,” Bagehot declared, referring to the heterogeneous Austrian Empire. “And heterogeneous compounds can scarcely understand one another.” The reasons for a lack of understanding went well beyond the confusions of language, he stressed: “no representative body will ever be popular—that is, will ever be strong—if its constituents diverge too widely to understand each other, or to communicate with each other in reasonable freedom; and this whether the divergence arises from difference of language, of civilisation, or of interests, or even of geographical position.” Government by discussion, it seemed, was to be attained and maintained only by meeting a number of highly demanding preconditions, and the progress of political evolution did not mean that it was fated to succeed anywhere.13 One could attempt to satisfy these conditions by applying the nationality principle and drawing state boundaries to include homogeneous populations. “The interest of the world is that it should be composed of great nations,” Bagehot told the readers of the Economist, meaning “not necessarily great in territory, but great in merit, great in their connecting spirit, great in their political qualities.” Quoting the proverb “Like loves like,” he maintained that “a condition of a real nation is that at the same moment it should be impelled by the same motives, excited by the same hopes, depressed by the same fears, thinking the same thoughts.” It almost went without saying that this likeness in thought demanded likeness in speech, and especially in a free polity in which political leaders had to convince one another and their citizens using reasons: Even if men of a different speech do think the same, they cannot tell one another that they do so; they cannot tell it quickly enough for the swift necessities of political action. That popular opinion, so familiar, so powerful, so commonplace to us, is only possible in a nation which is almost wholly composed of a homogeneous race. It is popular, because there is a people—a set of men—at the same moment capable of feeling a single sentiment and acting on a single thought. The cause of liberalism, then, was the cause of nationalism: “for liberal and even semi-liberal statesmen unity is all but necessary, and division all but fatal.” “[H]omogeneity is all but essential to any freedom and quite essential to the best freedom,” he declared, and “[a]n increase in the number of states, of which the subjects can really comprehend one another and really act with one another, is a probable sign of a great augmentation in the strength and

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number of free governments.” There were limitations to the application of any general principle, of course, but on the whole the advance of the principle of nationalities advanced the cause of government by discussion as well. It was the success of Count Cavour in melding liberalism and nationalism that brought Bagehot to eulogize him warmly in a leading article that came as close as he ever did to stating that nationalism was a good dictated by providence.14 Clearly, the nationalizing expedient as a way to discussion was inapplicable to the broader world of mutually incomprehensible languages and modes of thought (if indeed the solidification of populations into like-minded nations did not raise the barriers among their self-contained communities even higher). Nor would it necessarily be wise to create a supranational governing framework for discussion. Bagehot feared as much as Tocqueville “the reduction of the world, or all the most progressive parts of it, to one dead level”; even within the smaller confines of the community of English-speaking nations he hoped for “diversity of opinion.” “An ‘Anglo-Saxon league’ would establish, perhaps not openly, but certainly in fact, a cosmopolitan tyranny,” not only by tending to flatten out those useful differences in thought and practice that derived from placing even similar populations in varied circumstances, but also by creating such a center of power that it could dominate other peoples without accepting any responsibility for their welfare. Concentrations of power not restrained by any countervailing centers of power had been necessary in an earlier era to preserve the cake of custom and prevent the return of anarchy, but now in the age of free politics unaccountable power was dangerous, among states as well as within them: “No race is fit to be trusted with irresponsible and uncontrolled power over other and weaker races; least of all a race like our own, which, in spite of all its splendid qualities, is in its relation to types of humanity which differ from it, coarse, domineering, and often cruel.” Zealots always wished for unfettered power, and zealotry was what Bagehot distrusted above all else. His account of Turgot and the Economistes contended, as had Tocqueville, that in France the desire for centralization and the impatience with restraints on power had long predated the Revolution: this school of “eager speculators … had a horror of checks and counterpoises and resistances; they wished to do everything by the fiat of the sovereign.” Bagehot accused them of harboring a “childlike” faith in despotism; “they never seemed to think how they were to get their despot, or how they were to ensure that he should be on their side.” Such faith could just as easily be disappointed on the international level.15 If no supranational government was possible or desirable, then in a world of independent states strategic calculations again reared their heads. If “no


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nation would ever agree to submit its existence to arbitration,” then the concern for survival and the possibility of the ultimate recourse to war remained, even in a world of liberal and national states. Throughout his career Bagehot consistently maintained that to a threat to the survival of a society all else had to yield. “The first duty of society is the preservation of society,” he declared in his letters on the French coup d’état. By this he meant simply that “a certain social fabric somehow exists—people contrive to go out to their work, and to find work to employ them actually until the evening, body and soul are kept together.” Because survival was society’s first duty, even Bagehot’s cherished liberal values were subordinate to it: “To keep up this system we must sacrifice everything. … at all hazards, and if we can, mankind must be kept alive.” Bagehot held that the survival of society had been under revolutionary threat in France in 1851, and therefore he supported the coup and, at least initially, the illiberal government that followed: “Legislative assemblies, leading articles, essay eloquence,—such are good— very good,—useful—very useful. Yet they can be done without. … The selling of figs, the cobbling of shoes, the manufacturing of nails,—these are the essence of life. And let whoso frameth a constitution for his country think on these things.” Nor was this insistence simply the bravado of an immature essayist; he expressed much the same sentiment, if in less colorful language, in his grave paper on toleration nearly a quarter of a century later when he argued that discussion should be completely free, subject to the limitation “that the discussion shall not destroy the society.”16 What bitter dissension might do to a society from within, invasion and conquest might do from without. Without a willingness to wage war in its defense, the very existence of government by discussion was questionable. Despite his distrust of inflated military budgets, Bagehot held that the readiness to fight was a necessary element of statesmanship, and on this ground he criticized even his political beau ideal Gladstone for an unwillingness to “imagine that any thing so coarse as war will occur.”17 Diplomacy, Law, and Honor In this setting, even the devices that formed a watered-down counterpart to the politics of discussion in liberal countries lost some of their effectiveness, vitiated by the impediments to free discussion created by the lack of unhindered communication and the need to hedge against security risks. Diplomacy was a sort of discussion, in which states attempted to come to some measure of agreement, compromising their differences rather than allowing them to go to the dangerous arbitrament of war. It was because he

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sought the widest range of participants in diplomatic discussion that Bagehot favored the traditional rule of diplomatic recognition, conditioning this “almost … judicial act” only on the effective control of a clearly defined territory and people and an assured future; if a state considering granting recognition imposed any other test than this, it was acting with a “sinister by-thought which warps its judgment.” His reaction to reports in 1875 that Germany would withhold recognition from the Spanish government until it removed certain disabilities from the exercise of the Protestant religion was that “It is difficult to conceive a worse principle to lay down than that any European power should regulate its recognition of another power by the wisdom or folly, the agreeableness or disagreeableness of the latter’s internal statesmanship.” There would be no end to the objections of “political taste” that might be raised, and the international society would lose one of its few advantages in promoting discussion: the lack of any one authority to suppress dissenting opinions. Calling such a mode of behavior “a thoroughly vicious one,” Bagehot condemned it in the strongest terms: “A more mischievous division of power and responsibility, a more shocking moral anarchy, than such a system would lead to, it is hardly in human power adequately to conceive.”18 In reality, however, diplomatic discussion did not fully represent the substitution of reason for force that marked the advent of the age of contending opinions and the breaking of the cake of custom. Diplomatic language, “which is the most ambiguous possible,” was not meant to make an argument but to advance a (perhaps concealed) design. Nor, if it came from a third party intending to mediate a dispute, could it supply relevant information, which the parties concerned must know better than anyone else.19 Ironically, if anyone could be made aware that an international controversy had two sides and a compromise acceptable to both had to be reached, it would be the ruler of a “civilised European despotism”—the last person to permit government by discussion within his own realm. In the daily conduct of behind-the-scenes diplomacy, he or his advisers would necessarily come into contact with the needs and desires even of an adversary state, and take account of them. By contrast, “[y]ou cannot convince a free people.” Even for Bagehot, the determined opponent of universal suffrage and the advocate of a more limited and educated electorate, “the nation—the real thinking considerate men who form the basis of our polity and frame the deliberate opinion which in the last resort rules and guides it”—went well beyond the community of professional diplomats. The average voter in this larger community would never appreciate the niceties of diplomatic language, never take the trouble to master a foreign démarche couched in them, and thus


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never be persuaded by them: Nations are not hard readers, and a despatch is very hard reading. It necessarily states every consideration with a caution, a dignity, and a forbearance, which always takes the life out of the words, and often makes them quite torpid. Popular readers require something more stimulating than this. If a common person in this country reads a despatch he will be apt to say it is “very dull, and not very clear,” and he will soon forget all about it. The despatch would be bad if it were pungent and incisive, for then it might cause anger … but without a popular incisiveness no foreign nation will ever read or apprehend it.20 Nor would anyone in the country that received a foreign dispatch take care to explain it to the domestic electorate. Certainly the opposition party would not; although it might be anxious to discredit the actions of the government in a foreign crisis, it would find it politically inexpedient to be seen as the advocate for a foreign, much less an enemy, power. “All political parties conspire to prove to the nation the validity of its claims,” was Bagehot’s dictum. The case was even worse where, as in the United States, the predominant political power had descended to “the just-taught classes.” As competent as they might be in dealing with questions relating to their daily lives, “it is absurd to expect from such persons the balanced sense, the exercised judgment, the many-sided equanimity, which are necessary to form a judgment on elaborate controversies, and on difficult foreign relations.” They had all the worst qualities for the politics of diplomatic discussion: hastiness— “They go too quick”—suspicion—“They fancy that all who argue against them are trying to impose upon them”—and even xenophobia—“They are the ready victims of incendiaries—the sure converts of agitators who trade in grievances.” As a result of all these forces, “a free people only hears its own side,” and nations that were most given to the politics of discussion in their own affairs were the least suited to apply it to their relations with others.21 If diplomacy could effect only a marginal improvement in the rational capacity of the international environment, the same was true of international law. Granting that “discussion, practice, and a host of consistent adjudications have introduced something like an approach to order and agreement out of the seething chaos,” Bagehot nevertheless gave little deference to most of the sources of the law of nations. The statements of scholars and publicists, from which Lieber expected so much based on their demonstrable justice and rationality, for example, Bagehot called “the dogmas of speculative jurists like Grotius and Vattel as to what in their judgment was desirable and right.”

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In this “conflicting and fluctuating compromise between judge-made law, and the law of the strongest” there were from the outset noticeable departures from the rule of reasonable argument and impartial law that marked a free domestic government.22 To some degree, international law was susceptible to strengthening, extension, and reform, and Bagehot joined Lieber in hoping that such efforts would be successful. In his articles on the debate over policy that London should follow in the American Civil War, he gave adherence to law a prominent place, and he believed that shared interest could give impetus to changes on matters the war brought into sharp relief, especially the rights of neutral commerce. “Considerable modifications, in the interests of commerce and humanity,” had been introduced by the Treaty of Paris in 1856; more could be expected. “Probably ere long all maritime nations will agree to abandon. … the search for and confiscation of ‘contraband of war’ on its way to the enemy’s ports,” he predicted, “as not worth the risk of quarrel and collision which it involves.” Likewise, although the right of blockade was both recognized and necessary, “no belligerent could be allowed to blockade the ports of an enemy for ever, where access to those ports was of supreme importance to the rest of the world,—as where they constituted the only quarters whence some indispensable article such as tea, cotton, or medicine, for example, could be procured.” On these issues, Bagehot anticipated that states, neutral or belligerent, would come to see a common interest in limiting the effect of war on third parties and on the international community at large— neutrals would have an interest in protecting their access to markets; belligerents would have an interest in not adding to the ranks of their enemies by antagonizing neutral states—and in such cases change in international law could come and the changed law be respected.23 If it could be done, it ought to be done, and “in Europe it should clearly be the object of those who look after the working of international rules and laws, to prevent as much as possible the mischiefs of war from spreading amongst those who are not implicated in the quarrel.” But what if on some issue the interests of belligerents and neutrals did not coincide? Bagehot might contend that in such a case “the best interests of the neutrals ought to prevail,” but he candidly admitted that it was difficult to ensure that a rule advancing the interests of the neutral states would in fact prevail. The Declaration of Paris protected from seizure both neutral goods carried in enemy ships and neutral ships even when carrying enemy goods (with the exception of contraband of war). To extend this principle to the sanctity of “all private property at sea,” including commercial vessels flying the enemy flag (with the same exception) was “reasonable” because, he insisted, the lack


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of such protection simply meant that shipping firms in belligerent countries sold their vessels to their competitors in neutral countries. No diminution in the trade to and from belligerents resulted, therefore, only a penalty visited upon the former companies and an unearned bonus given to the latter. Yet, in what must be considered his last word on the subject because it appeared exactly a week before his death, he admitted that there was a “difficulty”: [T]here is no one to complain to any purpose if the agreement is not respected. We may of course, if we please, agree to respect the private property of our enemies when at sea, but if we don’t keep our word, who is to call us to account for it? Not our enemy, for he is already doing all in his power to call us to account; and clearly not any neutral power which has not been aggrieved, and would not wish to run the risk of a quarrel for the sake of enforcing abstract justice. … we do not see by whom, if [such a new rule] is broken, it is to be enforced. The stumbling block of the lack of an enforcement mechanism reappeared; in cases in which neutral states were not harmed, but unjustly advantaged, by a wrong-headed rule, not even self-help provided any party with the means and the motive to enforce what, from the standpoint of general world prosperity and economic efficiency, would be a better rule. “It must be a purely voluntary engagement,” he granted, “binding, of course, in honour on all who give it, but if disregarded, not disregarded at the cost of making a new enemy by that disregard.” The observance of most international law, and particularly the laws of war, was doubtless “more or less spontaneous,” but in the case of the protections codified in the Declaration of Paris belligerents considering a violation had at least to consider the possibility that, in addition to their dishonor, they might make an enemy of a former neutral whose ships or goods were molested. In the case suggested of protecting all commerce, on the other hand, “this rule would be one of honour alone. And we cannot say that we regard this motive as one sufficient to secure its due observance by the maritime states of Europe.”24 Here one sees Bagehot’s low opinion of the honor that so impressed both Lieber and Tocqueville. Lieber opposed international enforcement measures and sought in honor the motive for free, uncoerced observance of international law by states acting justly, even in defiance of their immediate interests; Bagehot saw little prospect that the international community would hire any “sheriff,” and therefore saw no reason to discuss the wisdom of such a step, but also believed that honor alone would be an insufficient spur to action. Tocqueville hoped that a common definition of honorable conduct would

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provide an acceptable substitute for the deadening uniformity resulting from the abolition of sovereign states; Bagehot thought sovereignty was not in danger and a code of honor was not in sight. “Such disinterested virtue is no part of international morality” as the Continental powers understood it, and by implication as Bagehot understood it as well, “and no object of a war can be more infinitesimal than the attainment of a paper promise, which only such virtue will perform.” The rulers of states did not view their interests as being so bound up with those of their counterparts in other states, nor did they enter into such a union of sentiment, as to make a common concept of honor a significant motivating force.25 Just as with diplomacy and international law, Bagehot did not dismiss honor entirely, even when he castigated as a “pernicious mistake” the idea “that politics are simply a subdivision of immutable ethics.” When a Federal man-of-war stopped the British passenger vessel Trent and seized two Confederate representatives, the editor of the Economist was ready enough to term the act “a casus belli that stern duty will not permit us to disregard.” In this “act contrary to the usage of civilised nations, … [t]he honour of England is tarnished by the ill-treatment of our guests; the security of our commerce is impaired by the violation of our vessel.” Declaring, “Our duty is clear,” Bagehot concluded by demanding an apology, reparation, the release of the two men, and an expression of regret “for the dishonour of our national flag and for the violation of the sacred right of asylum,” adding, “and we must intimate that if [Federal officials] refuse we have no alternative save war. The calamity is great, but the obligation is greater.” Honor, then, was a matter of self-respect, and a shared conception of what honor required could be found in “the usage of civilised nations.”26 Honor or international morality—and Bagehot tended to employ the terms interchangeably—was like the practice of discussion within free societies in that it grew up in a setting in which power was shared among different parties who could not live apart from one another, but none of whom was strong enough to rule over the others. “The idea of international morality has arisen in Europe, where there are many states something like equal, who are partly acquainted with each other, and who have a complex set of mutual relations,” he noted, sounding much like Vattel and contrasting this necessary interaction with the situation of a government like that of China, which was so large and so distant from Europe as to be “almost a world in itself,” with “no intimate relations” and “no adequate knowledge” of any foreign state. “In consequence our ordinary diplomacy wants the usual premises of its argument” in dealing with China, he warned; “it assumes maxims which have no meaning to those whom it addresses.”27 Argument (discussion in the one setting, diplomacy in the other) rested on general acceptance


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of the rules of the pluralistic game (the rule of law in the first case, honor and international morality in the second). On the grounds of the beneficial effect of having to live in a society of states composed of something like equal competitors, Bagehot took the somewhat surprising stand for an English Liberal of advocating the success of Southern separation, peacefully if possible, from the American Union. His position was due not to any sympathy with slavery—he attributed to that institution what he called “the terrible social blot,” “the violence and cupidity,” even “the semi-barbarism” of the South—but to a conviction that the existence of two republics in the territory of the United States would be better for all concerned than the existence of one. The two populations, North and South, had grown so far apart in their thinking that they were no longer able to carry on government by discussion together, and would be unable to do so even if the North was able to conquer the South. Yet it was not only between the two halves of the Union that civil argument and compromise had become impossible; the same was true of the relations between an undivided American Union and the other members of international society. In holding that the ending of the Union was a desirable goal, Bagehot could not have been more opposed to Lieber’s vociferous Unionist stand, but the two joined in adopting the schoolyard as a metaphor for international life: Very many–amongst whom we must reckon ourselves—have come to the conclusion that it is with young nations much as it is with young children:—if they are brought up in close association with each other, they will fight much and create the most dreadful disturbances in their youth, and yet they will on the whole grow up into more various, more interesting, and better disciplined forms of mature life than “only children” educated at home. The constant action and reaction of different tempers, different talents, different tastes, is, on the whole, an advantage, a great advantage, to their originality of character—a great advantage also to their self-knowledge. … The American nation has very much the sort of faults which “only children” are said to have. It has no correct measure of its own strength. Having never entered into close competition with any other nation, it indulges in that infinite braggadocio which a public school so soon rubs out of a conceited boy. And what is a more serious though a less disagreeable fault, there is inevitably a terrible uniformity about the American national character, a frightful want of play and variety in its political life. In addition to the Tocquevillian concern for the flattening effect on the thought of a people not exposed to political differences, there is in this

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admission “that we do regard the disruption of the Union as a matter for rejoicing than for regret” the idea that participation in international society gives a people a better grasp of honor and international morality. In developing their country without “a little general political society,—equal competitors in the political race,” the citizens of the American Republic had lost sight of the need to take the interests of others into account. “They believed that no other nation could stand up against them, that the rest of the world had no rights which could for a moment be suffered to stand in the way of their interests or their designs,” Bagehot said in his indictment. “They were so rough, so encroaching, and so overbearing, that all other governments felt as if some new associate, untrained to the amenities of civilised life, and insensible alike to the demands of justice and of courtesy, had forced its way into the areopagus of nations.” Two states would balance each other. More importantly, “in future they will have to share the common lot of European nations, and to develop their resources and pursue their progress under the wholesome restraints of powerful neighbours and rival forms of polity.” Americans would be less boastful, Europeans would be less anxious, and some form of international morality would be better established.28 Of course, this hope was disappointed, the North did conquer, and the United States became even more powerful and unchallenged in its hemisphere. Bagehot would cite the episode as an example of the difficulty of fostering a shared sense of honor or international morality as a buttress for a politics of international discussion. “[O]ur notion of continuous political morality is very modern, and hardly penetrates to oriental despotisms,” he reminded his readers; and most of the world lay outside Europe and remained “uncivilised.” Even among modern liberal states, some, like the United States, could be isolated from the main currents of international politics and as a result unwilling to accede to the general attitude of give and take that a politics of discussion required. Even modern states at the heart of Europe could regress, as Bagehot thought at the beginning of the FrancoPrussian War, when he commented, “We seem not to be speaking of this age or of any civilised age, but of some barbarous period, when we discuss the killing of multitudes to please soldiers or to keep a dynasty upon the throne.” In his eyes, honor was, with diplomacy and international law, a useful palliative but not a panacea.29 The Politics of Abstention Bagehot, then, maintained a fundamental confidence in the beneficence of discussion, and therefore in the advantages of a wide dissemination of


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information—where that was possible. As a polity of discussion, “England thinks aloud,” he reminded his readers with a touch of pride, and the concentration of attention on parliamentary debate that educated the nation, both shaping and reflecting its opinion, also informed foreign governments of British thinking on international issues. Because British foreign policy that had to be defended in Parliament could not be a “latent policy” followed in secret by a handful of ministers, it was known to have broad public support, and for that reason the country’s “voice is heard in all the world.” Moreover, he wished no previous decision ever to be beyond discussion; the nation should always be ready to think again.30 Where this practice of publicity did not already exist, he proposed to extend it, as in a pamphlet published in 1862, in which he suggested an annual statement by the government to Parliament specifying the foreign threats that its requested defense expenditures were to counter.31 As a liberal, Bagehot was convinced that the interests of well-intentioned states naturally and inevitably coincided, and he favored advancing these shared interests by common action wherever possible. Phrases like “the general welfare of the world” rolled as easily from the Bagehotian pen as from the Gladstonian tongue, and tools like diplomacy and international law could be improved to the benefit of all. This was particularly true of economic questions in an age when a “great deal of capital is in its essence cosmopolitan.” Bagehot shared with Lieber a belief that a universal currency would advance world prosperity, and published a pamphlet supporting monetary amalgamation. Still, commercial relations were something of a special case—an exception to the general variation in national character and consequently in the definition of wise public policy: Every person must see that the demand for uniformity in currency is only one case of the growing demand for uniformity in matters between nations really similar. Many subjects, most subjects of legislation, vary between nation and nation; they depend on national association and peculiar idiosyncrasy and other causes. But commerce is everywhere identical; buying and selling, lending and borrowing, are alike all the world over, and all matters concerning them ought universally to be alike too.32 Interesting and important as such questions were to the editor of the Economist, they nonetheless remained exceptional. On most issues, differences in national character—developed over centuries and unchangeable in their main outlines save through much time or destructive upheaval— impeded both the formation and the recognition of shared interests. As long

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as states remained sovereign and independent, as Bagehot thought they should, as long as they retained diverse ways of thought, they could not enter into the communion of minds that the politics of discussion demanded. National leaders were prone to overlook even the possibilities of conversation, conciliation, and compromise that did exist, because they continued to act under the influence of those pre-political impulses that were a vigorous legacy of the ages of enforced orthodoxy. The instinct for acting immediately instead of awaiting a sober second thought too often commanded the foreign policy of every state, even those that had most successfully mastered the practice of discussion in their domestic affairs. “There is a very great difficulty in doing good—a difficulty which weighs heavily upon individuals, but weighs upon a government even more—in fact, far more,” Bagehot warned. “This is the difficulty of knowing what you are doing.” The temptation was exceedingly great “to think that just principles of political action can be established from first principles by a few minutes’ consideration”—“to suppose,” for example, “that life in the east is subject to the same sort of conditions, and will be benefited by the same sort of ‘reforms’ as life in constitutional England.” All the differences in national character (which was “a deep thing—a shy thing”) and circumstances that were for him so powerful militated against any confidence that one’s intentions would be successful when acted on in an alien context.33 And confidence seemed to Bagehot precisely that commodity that was in too abundant supply in international society. Within a like-minded community, he admitted the case was necessarily different: “No country can ever get on well without a very large amount of unreasoning confidence in its institutions—without a great amount of confidence which is not founded on either adequate experience or adequate discussion, but which is due to blind liking and prepossession.” When crossing the boundaries between such communities, however, the case was reversed: the danger was excessive confidence, based on insufficient knowledge and unwarranted trust that good intentions would set all right in the end. He was from the first dismissive of schemes of reform for other peoples; conceding the activity and intelligence of those like Tocqueville who strove to promote liberalism across Europe after 1848, he asked, “Well, what have we gained?” answered his own question with the short reply “A parliament in Sardinia!” and drew his broader moral from the tale: Surely this is a lesson against proposing polities which won’t work, convening assemblies that can’t legislate, constructing executives that arn’t [sic] able to keep the peace, founding constitutions inaugurated with tears


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and eloquence, soon abandoned with tears and shame; beginning a course of fair auguries and liberal hopes, but from whose real dangers and actual sufferings a frightened and terrified people, in the end, flee for a temporary, or may be a permanent, refuge under a military and absolute ruler. Bagehot’s refusal to be swept away by ill-informed enthusiasm into precipitous action is best expressed in that most surprising of places, a love letter to his fiancée: “I am cheerful but not sanguine. I can make the best of anything, but I have a difficulty in expecting that the future will be very good. The most successful men of action rather over-estimate their chances of success in action. I cannot do this at all. I have always to work on the bare, cold probability.”34 These ideas lay at the heart of what Bagehot’s friend Hutton called his “very curious combination of dash and doubt”—a lively, colorful, even arch writing style employed in urging caution, restraint, and modesty. They ran as a recurrent motif throughout his life. As a young man of 20 writing to his mother, he disclaimed any intention of penning “a philippic against Indian aggression,” but did note wryly, “Nobody scarcely in England ever knows that we are at war except when there comes a battle, and when heaps of people are killed we wake up to the fact, and wish to know the reason for it.” Ten years later, he caustically described another author’s article advocating British intervention to oppose Russian oppressions in Poland as “an awful production,” even though it had appeared in Bagehot’s own journal: It appears to mean that you are to go into Poland and raise a standard of revolt—without in the least knowing whether the Poles have any capacity or desire for freedom—about which he admits there are no data—but on the chance of their having some—wh. either means that you are to desert them, if you do not find them up to the mark, or that you are to maintain them or attempt by endless war to maintain them altho’ they are unfit— both which are absurd.35 At the outset of the American Civil War, despite his repugnance for the slavery of the South on the one hand and his dislike of the protectionism of the North and belief that two republics in what had been the United States would be better international citizens than one, on the other, Bagehot declared that the “plain and simple” interest and duty of his country was “to stand steadily apart.” In 1864, he denounced Lord John Russell’s “inapplicable and inconsistent suggestions” in favor of intervening in the developing crisis over Schleswig-Holstein, and in 1866, when he addressed a Liberal meeting

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as a parliamentary candidate in Bridgwater, he “expressed himself in favour of non-intervention, remarking that as a general rule it was always better to leave people to manage their own affairs.” When Lord Palmerston died in 1865, Bagehot published a generous eulogy, but added that Palmerston had “great difficulty” as foreign secretary, precisely because he acted precipitously, without the requisite knowledge: “He had no real conception of any mode of life except that with which he was familiar. … He supported the Liberal party [in other countries] when it was bad and the country unfit for it, as much as when it was good and the nation eager for it.”36 To a proposal in 1870 that London help to bring the Franco-Prussian War to an end by guaranteeing the neutrality of Alsace-Lorraine, Bagehot gave the back of his hand with the comment that “no man of business would commit his fortune to difficult and dubious engagements like this, and no nation should commit its honour.” Such guarantees were dangerous, or they were useless: “Either they mean much, and then they are important contracts, which may bring us into trouble hereafter; or they mean nothing, and then no one will ask for them, and they won’t be given.” He feared that a pledge on Alsace-Lorraine “was most important, and that it would impose on us serious duties, if not involve us in grave duties hereafter.” When the war resulted in an astonishingly rapid and complete demonstration of German military supremacy, he warned against any change in British defense policy based on a confidently held but mistaken reading of German intentions, noting, “We do not know that Germany will be aggressive.” In 1875, he counseled negotiations rather than war with China over disputes concerning the treatment of British emissaries, in the fear that a successful war would bring the collapse of the Imperial Government of China and “might force a Chinese Empire on us as an Indian Empire has been already forced.”37 Indeed, on colonial questions Bagehot’s fear that the country would act beyond the limits of its knowledge was stronger than he was willing to avow publicly. In the Economist he wrote (in words that could have been penned by Tocqueville or Lieber), “To every true Liberal, there is something sacred in the discipline of self-government.” Where Tocqueville found in such statements a reason for peoples to maintain that discipline by undertaking great international tasks, and Lieber a reason to resist forces outside the national self-governing community that might attempt to dictate to it, however, Bagehot found in it an anticolonial lesson: “neither England nor any other Power can override the true interests of subject provinces and States on the ground of imperial necessity, without committing a political crime.” In the article he accepted that when “a race or nation could not stand alone”— when “it would, if abandoned, lapse into anarchy, or become the prey of the


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nearest unscrupulous Power, or give itself up to despotism”—it had to be governed by someone else, but when J.E. Cairnes called for self-government for the colonies and an empire held together by moral, not political, ties, Bagehot wrote him to voice his approval of Cairnes’s ideas. He warned that “neither the Colonies nor England” would agree, but dismissed their views with the comment, “The smaller people are the more they wish to belong to some large aggregate.” We have the testimony of his friend Hutton that Bagehot “would have been glad to find an excuse for giving up India, for throwing the Colonies on their own resources, and for persuading the English people to accept deliberately the place of a fourth or fifth-rate European power.” His consistent theme was the need for policy-makers to keep before them their own uncertain knowledge and the likelihood of unintended consequences.38 Bagehot’s exceptions to this rule were few. He meant his strictures to apply to governments because of the great extent and indiscriminate nature of their actions. Private individuals, including journalists, might do as they pleased, and he took full advantage of this liberty in criticizing British and foreign leaders, particularly Bismarck, whom he came to distrust increasingly in the years following German unification. He castigated the Chancellor’s “shameless” and “cynical immorality” over Schleswig-Holstein in both 1864 and 1866, scorned his demand in 1874 that France suppress Roman Catholic critics of Germany as “an act of monstrous moral weakness,” denounced his “narrow and imperious bigotry” in the Kulturkampf in 1875, and grew ever more insistent that “[h]is deep belief in the ‘blood and iron’ theory, which was necessary to make a physically strong state,” was dangerous once Germany had a settled polity, with accompanying international responsibilities. Bismarck was in fact the supreme example of what Bagehot feared: a statesman who “knows the spell of decisive and resolute action, but … hardly knows its dangers. … [who] wants Lord Melbourne’s genius for leaving things alone.”39 Bagehot also, however, wished to use his journalistic vehicles to persuade the British public to avoid intense excitement—the enemy of reason—over issues of foreign policy. On very few occasions did he call for action by the British government, particularly action that involved the use of force, and these exceptional statements were almost always so heavily qualified as to verge on cautioning against the very step they advocated. In considering the establishment of the National Review, the journal that he helped to found and coedited throughout its existence from 1855 to 1864, he cautioned, “The subjects of war and foreign policy with which the public mind is so absorbingly occupied do not fill the same prominent position in our characteristic views. They

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may [be] treated of appropriately and in our way, but still they are not what any of us wd. first mention in describing our tenets.” The prospectus of the journal—in its comment that “we do acknowledge and will enforce those mutual claims of sympathy and duty between nations which no division of the great human family can guiltlessly evade,—believing that the virtue and well-being of States is forfeited, not fostered, by selfish exclusiveness”— might be thought to advocate a more activist line, but in Bagehot’s eyes these duties were primarily “Thou shalt nots” that fitted well with his international quietism.40 When the debates of the mid-1870s over Britain’s stance in the Eastern Mediterranean began, then, Bagehot brought to them a fully formed strategy of foreign policy, based on his understanding of international politics and human society. With the Conservatives in office, he lacked the informal entrée that he enjoyed with Liberal governments, but this distance from power also gave him the freedom to voice his opinions freely, without fear of offending those who were his political allies and personal friends.41 Consistent with his lifelong beliefs, he took his place squarely on the side of the skeptics, both on the revelation that the Disraeli government had negotiated the purchase from the Khedive of nearly half the shares of the company operating the Suez Canal, and on the question of the extent to which Britain should support Turkey in its confrontation with Russia. Bagehot’s commentary on the Suez Canal shares began on November 27, 1875, with the worry that “the degree in which we are concerning ourselves in [the Khedive’s] affairs, and the extent to which we are ‘indorsing him,’ are very serious”; it ended on February 26, 1876, with the warning, “There is great danger, we think, that our Government may drift into a policy on Egyptian finance which may incur some evils, which will bring no advantages, and which it would never have chosen beforehand.” From first to last, his concern was that the Government was involving itself in a host of complications— with the Khedive, in its new relation with him of creditor to debtor; with the other shareholders in the company, whose economic interests in the canal might conflict with the political interests of the British government, which was now making itself the largest single shareholder; and with the French government, which might become alarmed that London was attempting an indirect takeover of the canal—that it had not thought through. The financial risks were of course much on the mind of the editor of the Economist, and as he told a correspondent in December, “we have seen in the case of Turkey what evils are caused by sanctioning loans to Governments which we cannot controul. [T]hey have cost English lenders many millions of money and are likely to cost them more still. I hope we shall not do the same again


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with Egypt but I very much fear it.” It was nonetheless the political risks that alarmed him most. He called for an immediate summoning of Parliament and for the Government to explain its actions, so that the country could make up its mind. The public would soon decide, whatever the Government did, for “being without an opinion is so painful to human nature that most people will leap to a hasty opinion rather than undergo it,” and an informed debate was far preferable to that. In six editorials he made his contribution to that debate, until admitting that “the purchase of the Suez shares was a thing most taking to the common mind,” which “likes things which promise much, which seem to bring large gains very close, which somehow excite sentiment and interest the imagination,” though he continued to stand on the side of “the latent opinion of men of sense used to business and affairs— of those whose votes are to be weighed, not counted—[which] is usually dubious, and often condemnatory.” That opinion held that the acquisition of the shares contributed nothing either to London’s moral or legal right or to its physical ability to seize or defend the canal in case of war, and that “a settled and continuous interference in the national concerns of a foreign state is perilous.” In holding it, Bagehot gave evidence of his reluctance to act in poorly understood foreign circumstances without the gravest and most clearly demonstrated urgency for doing so: “We do not know what will be the course of history or the necessities of future times. Is it right to bind them without knowing? Is it not better to leave them to themselves?”42 If the purchase of the canal shares raised many issues, it was simplicity itself compared with the crisis that arose beginning in 1875 regarding the place of the mostly Christian populations in the European parts of the Ottoman Empire. The crisis had a legal aspect, for the treaty ending the Crimean War 20 years before, to which London was a signatory, guaranteed the territorial integrity of the Porte. It had a moral aspect, particularly after Gladstone’s publication of his pamphlet on the “Bulgarian horrors” and his Midlothian campaign rousing public sentiment against a British government perceived as insensible to the sufferings of Christians persecuted under Muslim rule. It had a strategic aspect in that the natural inheritor of any provinces that escaped Ottoman rule was Russia, which was suspected of harboring ambitions in the Balkans and the Eastern Mediterranean dangerous to Britain’s lifeline to India. British policy proceeded by fits and starts, in part because the Government was seriously divided on these issues, which ultimately (though after Bagehot’s death) would lead to the resignation of Lord Derby as foreign secretary. The Andrassy Note of December 1875, demanding internal reforms in the Ottoman domains, which was accepted but not acted on by the Porte, was followed by an uprising of Serbs against

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Ottoman control, by the Constantinople conference of the great powers in December 1876 and January 1877, and by the increasing likelihood of a Russo-Turkish war that might draw in the other powers. The affair would lead to the Congress of Berlin in mid-1878, but that goes beyond Bagehot’s lifetime. Thus, the final year of his life was spent in an atmosphere of rising tension, bitter public debate, and widespread confusion. To it all, Bagehot strove to apply his preferred remedy of deflating reason to all threats of what he saw as overextension and emotion. He began by cautioning his readers against taking any stand on the issues involved while they knew so little about them: “Foreign politics are too much regarded as a department of politics in which it is the duty of every considerable power to have strong opinions and a clear policy. … It is a childish and almost an idle thing to have strong convictions as to what ought to be done with [the elements of the Turkish Empire], when so few people know the natural forces at work to modify their complex and highly artificial political conditions.” Despite this advice, he stated from the outset his own position, from which he never varied: “a policy of calm and neutral observation. … of vigilant laissez-faire.”43 This aloof attitude put Bagehot at odds with almost all the major currents of opinion on the crisis. The Prime Minister favored supporting Turkey, largely on the grounds of the danger to Britain’s access to the Eastern Mediterranean if the disintegration of Turkey opened the way for Russian expansion into the Balkans. “It can hardly be right,” Bagehot replied, “to take any part in enforcing actively a suzerainty so unpopular, and so likely to be unscrupulous if it were ever really enforced at all, as that of the Porte over its dependencies.” He argued that “Mahometan government” was inherently despotic, and that it was in irreversible decline because its officials seemed determined to “combine external imbecility with internal untrustworthiness.” Gladstone, as leader of the Opposition in all but name, favored turning Turkey out of Europe “bag and baggage” and allowing her former provinces to make their own independent life. “It can still less be right to encourage actively the wayward caprices of these dependencies as to their own destinies,” Bagehot responded, taking issue with the political leader he most admired, “knowing as we do how apt these caprices are to be wholly irresponsible.” Even worse would be an attempt to guarantee the new political independence of successor states in the Balkans: “Any promises by us or anyone to maintain this or that fragment of the present with this or that right, are like attempts to assure this or that wave a particular position in a shifting sea.” Both the Government and the Opposition were wrong if they


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rushed into this dangerous and ill-understood region: We cannot … think Lord Derby to be wise in wishing to use English power and give English guarantees to uphold the present form of things in European Turkey, any more than we think Mr. Gladstone to be right in wishing to use English power and give English guarantees to create a new form there. We believe that we have neither substantial interests nor effectual power in that part of the world; and, therefore, we would give no guarantees there.44 In his effort to dissuade both parties from unwise action, Bagehot evidenced his general approach to international questions, under which the greatest danger the nation most often faced was that of premature and imprudent action. He recognized the existence of both interests and duties in the international realm; states did not occupy a moral and intellectual vacuum in which only the assertion of power could be expected. But did either duties or interests exist here? The primary source of duties regarding the Ottoman Empire, Bagehot argued, was the Crimean War 20 years back, and particularly its conclusion. He considered the assertion that “by supporting Turkey in the Crimean war we incurred a responsibility to see that she governed rightly ever after,” either by acting as an advocate for the Christian population before the Porte or by intervening to set up some form of protectorate over the provinces where atrocities had occurred. Bagehot’s rebuttal to this argument was, first, that by fighting and winning the Crimean War Britain and its allies had created no new state of affairs for which they assumed responsibility, but merely postponed a dénouement that would have come in any event—that had arrived now—in which the injustices of Ottoman rule had brought revolt; and, second, because the Crimean War had been waged with the express purpose of denying Russia the right to interfere in the affairs of the sultan, its outcome could not consistently be interpreted as giving Russia’s five opponents in that war the same right. On the other hand, those who favored sustaining Turkey against Russia pointed to the explicit language of the Treaty of Paris ending the war, which guaranteed the territorial integrity of the Ottoman Empire against Russia. Bagehot readily admitted that “it cannot be doubted that we did so promise; the words of the treaty are as clear as any words can be, and there is no doubt that these words exactly express our intention at the time they were used.” For him, the matter did not end there, however. Relying on the doctrine of rebus sic stantibus (though without using that term), he contended, “Eternal promises, whether private or public, are

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impossible in a changing world.” In 1856, it had been thought that the barrier of an intact Turkey was necessary to prevent Russia from menacing Europe; in 1876, a unified Germany could play that role. In 1856, it had been hoped that Turkey was on the road to reform; in 1876, that was clearly not the case. Bagehot therefore thought that Britain’s express promise ought to be disregarded entirely, “because the international statute of limitations has destroyed its binding power.”45 What was true of British duties was also true of British interests. That same rise of Germany that had destroyed the basis of the British guarantee to Turkey had also made superfluous Britain’s security interest in a Turkish bulwark. Germany and Austria, both of which had their own designs on the Balkans, could be relied on to prevent Russia from going dangerously far: “We may freely trust Germany and Austria to see that western interests and the interests of civilisation are not neglected, and confine ourselves to taking good care that our road to India is not rendered unsafe.” As for the link to India, the speed with which steam vessels could now make the journey to the subcontinent had rendered the possession of Constantinople far less valuable than previously, and in such a case it was better to run the calculable risk that Russia might take Constantinople than to run the incalculable risk inherent in making the promises necessary to prevent it. A British occupation of Constantinople could be the very step that brought on Ottoman collapse, and London would find itself drawn into administering far more formerly Turkish territory than simply the capital: “The inevitable law which compels highly civilised nations to conquer their semi-civilised neighbours would operate in this case as in others.”46 Whether one considered the question from the standpoint of international law, moral duty, or the necessities of power, Bagehot’s response was the same. Did duty require intervention on either side? “We are in no way … bound.” Did any national interests demand action? “[T]hey certainly do not at present call on us to do anything.”47 All these specific issues only illustrated the fundamental difficulty for Bagehot in most demands for foreign intervention: because national characters were so deep-seated, so diverse, and so opaque to one another; because the legacy of the pre-political age still hung over humanity in the age of discussion, making leaders far too prone to quick action without careful consideration beforehand; and because circumstances prevented free international discussion, international relations were characterized primarily by unnecessary and harmful activity. “English statesmen have no adequate means of judging what is best for the decomposing parts of the Turkish Empire,” he lamented, and they were no more knowledgeable of other


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regions around the world. Rationality, calm, and restraint were the qualities most advantageous to modern states. Bagehot’s conviction, according to Hutton, was that “the practical energy of existing peoples in the West, is far in advance of the knowledge that would alone enable them to turn that energy to good account”; his hope, that “eager nations … had had their day; the time for deliberating, hesitating, and slowly resolving nations had arrived”; his policy, “to discourage … anything like an ambitious colonial or foreign policy.” Advocating his vision of a “Little England” did not seem to him “a cynical or unpatriotic wish,” but rather an opportunity: “He wanted to see the English a more leisurely race, taking more time to consider all their actions, and suspending their decisions on all great policies and enterprises till either these were well matured, or, as he expected it to be in the great majority of cases, the opportunity for sensational action was gone by.”48 In one sense, this reluctance to engage in “high-handed diplomacy” may seem ironic—Bagehot’s aspirations for the part that rationality could play in politics were so high that he lost almost all confidence that politics in the international context could meet his exacting standards of rational discussion and therefore preferred abstention. In another sense, his doubt that whole nations, of varying characters, could understand one another well enough to make the politics of discussion work was wholly consistent with, for instance, his reluctance to give preponderant political power into the hands of the uninstructed working class, or his skeptical attitude toward the transplanting of the institutions that had grown in one nation’s history, into the circumstances of another nation. He had great belief in the exercise of reason but little faith in the amount of knowledge most people brought to the task. His most comprehensive essay on religious belief was, significantly, entitled “The Ignorance of Man.” “We count the pebbles on the shore,” he suggested in another warning of the limitations of human insight, “and image to ourselves as best we may the secrets of the great deep.” Although international politics lacked the infinite mysteries of theology, its complexities were quite sufficient to defeat even the best intentions of hasty action.49 In an appreciation of a departed Liberal minister, Bagehot attributed to an entire generation of his countrymen his own philosophy of caution and restraint: We wish that foreign nations should, as far as may be, solve their own problems; we wish them to gain all the good they can by their own exertions, and to remove all the evil. But we do not wish to take part in their struggles. We fear that we might mistake what was best; we fear that in so shifting a scene we might find years hence, when the truth is known, that

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we had in fact done exactly the reverse of what we meant, and had really injured what we meant to aid. We fear that amid the confusion our good must turn to evil, and that our help would be a calamity and not a blessing.50 Bagehot frequently dilated on the incongruity of Disraeli, the former Radical representative of urban, ethnic London, as leader of the stolid, unprogressive Tory country squires. In his essentially conservative mistrust of the human ability to alter complex realities for the better, Bagehot revealed the crosscurrents beneath his own enlistment under the Liberal banner. “Daring and resolve are not after all the greatest qualities of statesmanship,” was his insistent reminder. “The caution and temporizing inertia of true thoughtfulness is a constituent of statesmanship of still greater value.”51 When Disraeli championed two audacious policies in the East, it was little wonder that Bagehot, never given to theatrical politics, would be opposed.

CHAPTER 5


Whatever is realistic in concept, and founded in an endeavor to see both ourselves and others as we really are, cannot be illiberal.1

O

ur three authors are long dead, Tocqueville for nearly a century and a half, Lieber and Bagehot for roughly a century and a quarter. Can their words have anything to say to students of international relations at the beginning of the twenty-first century? It is the argument of this study that they can and do, both because of their own insight and articulateness, and because liberalism, the tradition within which they wrote, retains a vitality greater than anyone could have predicted, it may be, since 1914. The passing of the totalitarian challenge to liberal values (perhaps temporary, but nonetheless profoundly important) has revived a philosophy that to many had seemed antique and today appears unrivalled. Such a transformation in the intellectual climate of most of the world’s centers of power cannot fail to bring consequences in the practical world of international politics.2 The issues on which these three nineteenth-century figures speak to the vastly altered twenty-first-century world may be grouped into three, dealing with the recognized participants or agents in the world arena, the trends that are driving them, and the policies they believe it right to follow. To none of these questions did the authors return a unanimous answer; and some devoted more of their attention to one of the issues, some to another. None of the three wholly ignored any of these topics, however, and each rose to heights of eloquence on at least one.

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Questions of Identity All three saw nationalism as less problematic than a description of it as an “imagined community” might imply. Tocqueville did indeed speak of patriotism instead of nationalism, but he held that the communities that were the focus of patriotism were both natural and desirable as the repository of and spur to public spirit; without la patrie, atomized individuals would soon face a paternalistic, if not a tyrannical, state. Lieber was the most straightforward believer in a positive view of nationalism, holding it to be the modern expression of the natural right of self-government. In his attempt to marry the “jural” doctrine of individual rights to an organic society in which alone citizens could find happiness, he strained the bounds of liberalism. Bagehot, too, praised nationalism, if with qualifications depending on the circumstances, but his idea of it seems to have been more akin to Tocqueville’s “instinctive patriotism” based on old traditions of loyalty and ways of life, complemented by modern “rational patriotism,” or the sense of proprietary pride in the political system engendered by one’s rational discussion with others about its governance. Whereas Tocqueville thought these two forms of patriotism were alternatives, with the latter inexorably replacing the former, Bagehot assumed they could be combined, with beneficial results.3 All three may have been quite mistaken in thinking that “human fellowfeeling … might apply within a nation, but hardly at all between nations,” and that “[s]ympathy subsumes a sentiment of patriotism or ‘love of country,’ but it does not extend to a ‘love of mankind’ ” (although Lieber did allow that a common conception of justice could develop that transcended national boundaries, of which more will be said later).4 Still, those who contend that this view holds too cramped an appreciation of the human capacity for solidarity and kinship must contend with such doubts.5 Certainly, there are groups smaller than states, particularly in the less-developed world, that have acquired stronger holds upon the loyalties and affections of their members, ranging from villages to blood relations to informal economic networks. Yet are there any such organizations or communities larger than the state that could be used to dispute Tocqueville’s, Lieber’s, and Bagehot’s argument from experience? Since, in their view, nations were inevitable, all three joined in the great liberal project of preserving the freedom of the individual within a workable social framework. They also shared the liberal faith that the two were ultimately compatible, indeed, mutually reinforcing. For our purposes, it is important to note as well that this relationship between the individual and the national community affected and was affected by the shape of the

The Legacy of Liberalism

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international society and the actions of the state in it. “From a classical liberal standpoint, one can grasp the generation of order at the international level only by scrutinising what happens ‘from within and beneath’ … , that is to say, from within the nation-state,” as one writer puts it. “The causal direction is therefore primarily, although not exclusively, ‘bottom-up’ or ‘from below,’ from domestic (subnational and national) to international.”6 Lieber confronted the task of reconciling freedom and order in his repeated invocation of individualism and socialism, rights and duties. His nationalism did not prevent him from saying that the superiority of modern over ancient liberty lay in the recognition in the former of primordial individual rights that the state was obligated to respect, and as international society developed further one mark of its advance was that states increasingly granted that they were honor-bound to respect the rights of foreign nationals as well. Tocqueville addressed both the individual and the community, and held, as we have seen, that “to deny one of these forces is to deny mankind.” A properly constituted community could inculcate virtue in the individual, who in turn was made willing and able to act in ways that preserved a free community. Through acting abroad in heroic ways that elevated the thoughts of the citizen, the state helped to propel this virtuous cycle. By comparison, Bagehot thought that history first saw the development of “national characters” marking (and constraining) large numbers of individuals, and that individual liberty emerged only in the later age of discussion. Indeed, national characters emerged precisely through the suppression of individual distinctiveness, and he feared, as much as Tocqueville did, the power of popular sovereignty to suppress diversity in national life, reducing it to one dead level. The free age of discussion would then prove to be only an interlude. After all, over the course of history other states that were beginning to feel their way toward liberty had been conquered and disappeared; even England was marked by less local distinctiveness than it had been as recently as in the eighteenth century.7 If this pattern were repeated, it would represent a step backward and away from civilization. As Sully says of the classical liberal economists, then, for these three observers of international politics, political order came up from within states and then was constructed among states rather than displacing them. Those today who would problematize the states-system and seek to transfer the loyalties of individuals to a global community must deal with the conviction of all three that this shift could not be accomplished without endangering individual liberty, because it would be impossible to sustain the civic virtues in such a setting. A global civil society would be too thin—too remote and

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abstract, not rooted in history, neglectful of differences in language and culture—if it were not destructive—“fundamentally corrosive,” in one contemporary formulation that might stand as a summation of Tocqueville’s worst fears, “of existing social borders.”8 If Tocqueville, Lieber, and Bagehot suffered from a lack of imagination in failing to appreciate the ways in which these difficulties might be overcome, they at least identified the problem as one facing their successors—who, so far, have not clearly succeeded in overcoming it, either. Questions of Inevitability For all the contrasts that might be drawn between liberals and realists, these representatives of the liberal camp would accompany the neo-realists far enough to acknowledge that as long as a system of independent states existed, the resulting anarchy would force those responsible for state policy to tailor their acts with the necessities of security in mind. Tocqueville granted that states in the center of the international system could not always act as they pleased (as he thought the United States, because of its isolation, could). States closer to the heart of international society were forced to adapt their domestic practices—providing themselves with strong armed forces, the means of decisive action, some degree of centralized government power, and what Lieber would call a “respectable” territory—in ways that they might not have chosen for themselves if left to their own devices. Still, it would not be anarchy alone that would require these measures, for it is not only fear but also a sense of duty that prompts them, and that sense of duty is grounded in domestic regimes. Liberal states had the responsibility to draw the international system in certain directions, even while protecting their security and their commercial interests. If these international necessities demanded measures that strained domestic liberty, leaders faced an inescapable dilemma. They might find, however, that in exchanging isolation for involvement they had refounded their liberties on a more secure basis; civic virtue nourished by a government that provoked its citizens into worthy debates over great international issues might be more conducive to the continuance of liberty than a decentralized government that avoided foreign dangers. (Bagehot, of course, believed the opposite.) Lieber could conceive of a world without states, but only as a universal monarchy inimical to liberty. It was a part of republican liberty that citizens should be willing to fight for their country, and this selflessness was higher and nobler than was a preoccupation with money or political patronage. While war could be regulated and its severity softened, it could not be


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abolished without throwing all states open to the aspiring despot aiming at unchecked dominion; “military necessity” could override the limitations of proportionality and discrimination. The “national mission” that might be imposed on a state originated elsewhere than in international anarchy; for Lieber, as for Tocqueville, the domestic regime was the driving engine, demanding expansion or national unification. The search for the security of this domestic experiment in liberty therefore could coincide with the imperatives imposed by external anarchy, as the liberal regime warded off outside threats. Over time, however, Lieber believed, along with modern liberals, that governments could learn to build on the elements of society among them, agreeing to submit to arbitration subjects over which they would have fought a generation before. International anarchy did not stifle that sort of free, unforced cooperation, any more than it prevented the development of mutually beneficial economic interdependence through the beneficent operation of free trade. For Bagehot, preservation of the society was always paramount; the question concerned the conditions under which this aim could be accomplished. Pre-political societies could be kept together only by suppressing domestic individuality. Stationary societies had found no way to escape this situation. Political societies were not endangered but much enriched and strengthened by domestic liberalism, although the questioning could legitimately be stopped when it threatened to undermine the continued existence of the society. All of this was, nevertheless, without reference to the international environment, and Bagehot was the least likely of the three to find external threats immediately pressing. A combination of geographic good fortune, shared economic interest, and generally increasing level of civilization meant that Britain’s security was at risk primarily from domestic overreactions to distant foreign problems. Even states that were less favored generally had a greater margin of security than their domestic alarmists contended. Bagehot did not foresee a day that war would be abolished, but he was convinced that most wars were the result of blunder, not necessity. All three were characteristically liberal in rejecting the overweening tyranny of international structure. Defense had its requirements, but statesmen could still make choices, and the harsh outlines of the states-system could be softened through economic and other interchange, some progress in international law, and improvements in the self-knowledge of each people at home. Tocqueville, Lieber, and Bagehot saw the great historical forces that would impose themselves on political leaders, not in the condition of anarchy and the distribution of power, but in the conceptions of the world that moved whole societies and even civilizations.

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For Tocqueville, that force was of course democracy, the destruction of traditional hierarchies and their replacement with a single popular opinion, which weighed upon every individual with the same great and possibly oppressive weight. It was not completely irresistible, however, or rather the mode of its expression was not ordained. He thought societies still possessed the choice between equality in freedom and equality in servitude. One of the causes that would decide which path they followed domestically was the choice they made externally: whether, by accepting individualism and materialism, they allowed patriotism to decay and opened the way for the submergence of states in an international soft despotism, or they channeled the pressure for equality into adherence to a common set of standards for honorable international behavior that would constitute a form of equality compatible with freedom, both national and individual. The sometimes strenuous, sometimes hazardous actions that such a code of conduct would require of states would in turn demand public-spirited thinking from their citizens, saving them from the lassitude that a fixation on individual comfort and well-being threatened. The other two did not see the pressure for equality expressing itself in just this way. Lieber’s hopes for “uniformation” were wholly benign, as increasing contact made it possible for each people to learn from others in those realms of thought and practice in which they had forged ahead. He shared Tocqueville’s hopes for an international standard of honorable conduct to which progressive, liberal states could hold themselves accountable. Moreover, unlike Tocqueville, who saw the encounter with the nonEuropean world as one in which the advancing West prevailed over “Chinese immobility,” not just in China but through the whole world, Lieber saw a world in which liberal ideas were open to all peoples regardless of cultural background. In the case of an ancient civilization like that of China, even an intervening period of Western control would not be necessary, as the Chinese authorities would of their own accord immerse themselves in the liberalizing tide. This form of parallel progress was wholly compatible with national freedom. Lieber had his own fears of universal monarchy, of course, but guarding against such dangers was for him a matter of national defense and a determination not to be bullied by other states, rather than warding off the enervation of populations. Bagehot shared Lieber’s confidence in the beneficial effects of prosperity, which was possibly the reason why both were firmer adherents of international free trade than was Tocqueville. Indeed, Bagehot’s definition of “verifiable progress” lay in control over the material world—bringing nature under human control and using it for tangible ends, whether those were


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increased, and more effective, weapons, or consumer goods that made life increasingly comfortable.9 The business classes might see their intellects narrowed if they failed to participate in public affairs, but for Bagehot the tension between prosperity and civic virtue was far from being as sharp as it was for Tocqueville. The distinctiveness of national characters, reinforced by differences in language, would also militate against the crumbling of the states-system. As European or civilized peoples forged further ahead of nonEuropeans through their mastery of the physical world and their constantly augmenting ability to wrest prosperity from nature, while among themselves European peoples remained distinctive, equality on the international level would remain remote, whether as aim or as fear. It might be noted as well that none of the three believed that the pressure for equality ought to include economic equality, though all saw that this was a possibility in the social revolutions of their time. Tocqueville’s attitude varied, from the skepticism concerning poor relief that he expressed in his “Memoir sur Pauperisme” in 1835, to the more radical line taken in Le Commerce in 1844–45, but in his mature years of political power he opposed the “right to work” and castigated the “socialism” of the revolutionaries of 1848–49.10 Lieber devoted an entire book to an effort to demonstrate that the unfettered market would work to the benefit of all, and a denunciation of those who endeavored to stir up class hatred.11 Bagehot was willing to countenance some surprising departures from free-market orthodoxy, such as public ownership of the railways, but efforts to found a modern economy on anything but the laws of supply and demand provoked his scorn.12 Even less desirable to any of them was a future in which equality had drained of any importance the distinction between great and small powers. As assiduously as Tocqueville labored as foreign minister over the problems of Switzerland or the Roman Republic, he did so in large measure because of the involvement of other great powers in their affairs, and the prospect that those powers might, if not opposed, settle events in the small states in a way that would not suit France. Highly conscious of the rank of France among the great powers, he was determined that it not be lost, either through indolence or through unwise overextension. Lieber indeed often proclaimed that the day of one single leading power was past, but it had been replaced, in his frequently repeated image, by several leading nations drawing the chariot of civilization abreast. The great powers would be the leaders in scientific, commercial, and political advance. It was of them that he seemed to be thinking when he referred to the “mission” of nations. It was they that took the lead in opposing attempts at universal monarchy. It was they that merited praise for obeying international law when they possessed the strength to defy

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it if they chose. They did not define that law—a task for those whose learning and probity qualified them to discern the dictates of impartial justice—but it was their practice, in adhering to it, that solidified it. Bagehot, as has been noted, held that great powers, because of their more extended interests and heavier responsibilities, tended to be nobler and less petty than small powers. Small nations were better off being made part of great states of a different nationality than falling prey to domestic bad government, if that was the alternative. What was international law became law because the great powers were compelled to accept it, either by other great powers or by their own self-interest. Whether their influence was directive or disruptive, however, the great powers constituted the reference points of the international system. They would have been resistant, not to say unsympathetic, to the notion that economic globalization was dethroning the sovereign state. Certainly they all noted the increasing economic interchange that, they hoped, was binding the economies of the advanced countries ever more closely together. Only Bagehot, in his description of the role the City of London had come to play as the financial center for businesses well beyond Britain, seemed to conceive of a world economy, but all could see the heightened pace of international trade and finance. (And Tocqueville, at least, participated in it by buying American bonds.) They noted the intertwining of economic fortunes that these trends necessitated. Bagehot, too, seems to have had the clearest sense of a kind of common security, when he advocated a publicly announced policy of making Britain’s defense expenditures a function of those it identified as its potential threats, raising spending only if those other governments raised theirs, readily lowering it if they reduced theirs, and always following the rule “Don’t begin”—never to be the first to launch an arms race by developing new weapons systems unless there was clear evidence they were being developed by a likely adversary.13 Yet none of this indicated to Bagehot, Tocqueville, or Lieber that they were seeing the nation-state being drained of its significance by broader economic forces (as opposed to political or cultural forces), constraining the freedom of action of national capitals through the operation of international capital. In this respect, they certainly did not foreshadow current controversies over the “discipline” (“tyranny” to its critics) exercised by the global liberal economy over local and national freedom to adopt alternatives to market-oriented policies. Lieber saw such politico-cultural forces at work in the providential trend (encompassing at least the world’s areas of European settlement) toward nationalism and the creation of states that would follow the boundaries of nations. In drawing on the awakened national spirit of their peoples, these


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national states would be more firmly rooted, more secure in their own separate identity, than states had ever been before. It was also in this sense, and not solely in the material sense, that they would grow ever stronger. For such strong states, increasing similarity posed no threat, and would in fact ease economic interchange and diffusion of knowledge. Nationalism for Lieber was “natural” in the same sense that equality was for Tocqueville—in accord with the innate propensities of human beings to seek communion with like beings and to resist subordination to the will of another. Of all three, Bagehot was least inclined to see any single trend sweeping over the whole of the civilized world. Certainly, he recognized that significant changes could take place in public opinion—not simply in what was currently popular, but in what was politically inconceivable, because of the hostility it would encounter. (He often adverted to the difference between the early years of the nineteenth century, when fear of revolution quashed any prospect of change in the existing laws, and the days of his essays—the third quarter of that century—when the Reform Bill, Catholic Emancipation, repeal of the Corn Laws, and other measures had overthrown the earlier presuppositions of politics and had themselves been established as an unchallengeable status quo.) Nevertheless, if the hand of History was moving the species toward some goal, it was beyond his powers or those of anyone else to discern the direction. The prior evolution of societies had turned on the smallest causes, he thought, small enough to defy human prediction. Some changes might be irrevocable: once universal suffrage was introduced, for example, no effort to induce the working classes to retreat and share political power with the middle or upper classes would ever succeed. The difficulty of persuading an unassailable majority to dilute its control, however, was not to be confused with the impulse of Providence. A cautious empiricism led Bagehot away from metaphysics. Of the three, then, Bagehot’s thought would have the least in common with that of contemporary observers who see either “the end of history”—an eminently liberal vision in its expectation that history had reached its culmination in the elimination of all serious competitors to liberal democracy, the only challenge for which would be the preservation of human spiritedness when the contest of ideologies had given way to public administration—or “the clash of civilizations”—a prognosis less optimistic in its view that as the relative power of the West, the bearer of the liberal tradition, declined, international politics would increasingly take on the character of a struggle between the West and other cultures defined by non-liberal beliefs. The former would be a rough approximation of Lieber’s hope; the latter, a fairly accurate reverse image of Tocqueville’s observation. Grounded in a liberal

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confidence in the efficacy of individual free will, the thought of none of these writers would supply fertile ground for any deterministic interpretation of history. Questions of Purpose Here one has moved fully from the province of diagnosis to that of prescription, and, as fully engaged political advocates, all three theorists were wholly willing to undertake that move. The points at which they came to rest illustrate the dilemma that faced, and continues to face, the liberal creed. As the bearer of humane and progressive values, liberalism sees much that is wrong with the world, and much that the application of intelligence and goodwill can set right. It has, it has been observed, an “intense desire to transform people and communities.”14 It is the self-conscious purveyor of reform, both because that reform is in the interest of other peoples, and because reform of the international system will, by removing unnecessary foreign tensions and distractions, open the way for thoroughgoing reform at home. Impartiality toward the interests of all humans would never allow the liberal to view foreign nationals simply as means to the well-being of his or her own country. Rather, the liberal (who has much in common with Martin Wight’s rationalist or Grotian) thinks of responsibilities—of enlightenment or service— to other members of an international community.15 The responsibility is doubled when such efforts at reform serve the combined interests of foreigners and citizens. Yet the tolerance on which liberalism prides itself, and its revulsion at the brutal intolerance displayed by totalizing ideologies, lead it to pursue a policy of live-and-let-live. It accepts that interests may differ and holds as one of its proudest creations a political system in which various groups may safely and legitimately pursue their contending interests. It prizes diversity and is particularly suspicious of attempts to erase differing opinions through force. Why should the international system not afford havens for alternate ways of life and thought? Liberalism urges statesmen to think twice before taking up the sword and abandoning the compromising, conciliating, tolerant ways of peaceful diplomacy.16 It is the plight of liberalism to be caught between these two impulses. The generous desire to reform the world is at war with the open-minded reluctance to impose one’s will on others. Active, intervening, reformist liberalism contends with peaceful, accommodating, quietist liberalism. Neither has ever vanquished the other. The three authors considered here form a continuum on this issue of purpose. They range from the active policy favored by


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Tocqueville, who wished France to serve as the propagator of liberty even in those periods in which he most hoped to avoid war, through Lieber, who agreed with Tocqueville that liberty formed a knowable good toward which other countries ought to evolve, but thought that this end could be achieved through the self-evident rightness of the principles, to Bagehot, who cautioned against over-certainty in thinking that one knew what was best for other peoples, and preached restraint. “France must not lose her liberal visage,” reiterated Tocqueville throughout his career. He said, and meant, liberal, not radical, for in one sense liberalism was for him a middle way. Drawn up in grim array stood purblind conservatism, common among members of his class and equally so in the middle classes, which were terrified of losing their material comforts, which opposed all change and vainly wished to defy what he saw as the inevitable tide of equality. Confronting this phalanx was an intoxicated revolutionary spirit seeking to tear down all barriers to the unconstrained exercise of power by the people in the name of equality, heedless of the threat of tyranny to which it opened the door. Tocqueville’s liberalism accepted the democratic destiny of the country, but hoped to achieve it without revolutionary excesses, while preserving room for distinction and accomplishment. In another sense, however, liberalism was much more than a compromise between its two opponents, for it struck out on a line with objectives distinct from either of them. One rival thought of nothing but its privileges or its possessions; the other, its resentment and rage. Neither considered the value of the freedom of the human spirit, and the mission of liberalism was to champion that most precious achievement. Given the importance of what was at stake, no government that adhered to liberalism and disposed of the power to make its wishes felt in the international arena could responsibly remain passive. Reaction had its adherents among most of the major powers; revolution, it seemed, could summon up misguided but potent popular movements out of the spirit of the time. If liberty were not to be trampled in the contest between these two, it required an international champion. Moreover, the effort demanded peculiar skill in carrying on the struggle for liberal ends employing liberal means, without falling prey either to the unscrupulousness that its enemies felt free to use, or to an over-scrupulousness doomed to defeat in a harsh global contest. Still, the very difficulty of such a policy meant that it promised great domestic benefits, because it raised for public debate issues of both high principle and fiendish complexity—the very sorts of issues that could prompt French citizens to elevate their eyes above the making of money, and fix their attention on measures necessary to save the country and vindicate its principles.

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Doing so would discipline the people in the civic virtues that alone would preserve their own freedom. Fully as ardent a champion of liberalism as Tocqueville, Lieber was more sanguine about its prospects. He bitterly criticized autocratic forces in the international system, such as the Austrian government and the papacy, but he was confident that in the end they would be swept away. In contrast to Tocqueville’s attitude toward equality, Lieber believed that his providential force of nationalism was fully compatible with freedom, and would in fact decisively advance it. He fought his battles with those—Jacksonians who trafficked in class resentments, abolitionists (at least before the Civil War)— he thought were so intoxicated with egalitarianism that they endangered the institutions necessary to preserve liberty, but these were domestic struggles of the sort that each people was required to fight for itself. As emotional as he became in his dreams of German unity, frustrated over decades, he never advocated any form of American intervention in support of this goal. Of the adversaries of liberalism, then, reaction was doomed to defeat because it ran contrary to the awakening nationalism of the age, which would bring in its train the organic, hamacratic state, while the wrongheaded view of equality held by revolutionaries was to be confronted in domestic contests, country by country, not as a matter of foreign policy. For an outside power to decide the issue by intervention would be coercion, itself a violation of the right of each nation to choose its course, and inconsistent with freedom. For Lieber, the hoped-for condition was one in which each great power pursued its own mission of aligning the boundaries of its state with its national population and perfecting its free domestic institutions. Meanwhile, scholars and publicists could form international law from the law of nature and see it observed by states out of unforced respect for its justice. Great powers would not lack outlets for their energies, but their mission was different from, and more inwardly directed than, the one Tocqueville envisaged for them. Bagehot’s vision of the proper purposes for which great powers should employ their resources took a further step in the direction of restraint and the Burkean belief that “politics is a piece of business of time and place.” Difficulties in international relations arose because policy-makers ignored this observation and brought inappropriate patterns of behavior into dangerous situations. Driven by the premium given to decisiveness in the pre-political age, leaders acted too quickly in a later era, ignoring the fact that they lacked sufficient information to decide wisely in unfamiliar settings. Politicians trained in one type of regime assumed that the practices that worked well in their countries could be exported to entirely different settings.


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Busy officials felt compelled to decide complex questions more quickly than they were justified in doing, and mistook activity for policy. Bagehot argued that all this frenzy was contrary to the principles of true liberalism, for those principles included a broad-minded willingness to accept different ways of carrying on the business of governing widely disparate societies, an intellectual modesty in declining to claim a privileged monopoly of knowledge, and a rational determination not to be pushed into acting beyond the facts available or the power to achieve one’s goal, regardless of emotional but imprudent appeals. The province of government was not to serve as the moral tutor to its people, but to protect their security and respect their liberty. Hasty action that embroiled the society in unnecessary conflicts, or loaded it with responsibilities it did not have the understanding to fulfill, served neither safety nor freedom. Bagehot and Tocqueville therefore form the two poles of this debate over the correct interpretation of liberalism in foreign policy. The one argued for “heroic” actions in championing liberty, the other, for “animated moderation” and restraint. Oddly, they metaphorically crossed paths on this very issue through the agency of a third party, the poet Arthur Hugh Clough. Bagehot and Clough became acquainted in the 1840s; Bagehot supported Clough’s selection in 1849 as head of University Hall, a residence for students of London University; and their mutual friend Hutton declared that Clough “had I think a greater fascination for Bagehot than any of his contemporaries.” For his part, Clough declared that he “thought [Bagehot] the only genius-like kind of man to be found” at University College. Having visited Paris in the spring of 1848 (where he evinced a far more favorable view of the radicals in their confrontation with the Constituent Assembly than did Tocqueville), Clough traveled to Rome in the summer of 1849, just in time to be caught up in the French siege of that city, at the very moment that Tocqueville was assuming responsibility for the operation as foreign minister. During his part-voluntary, part-enforced stay in Rome, Clough composed much of his extended iambic hexameter work, Amours de Voyage. Heavily autobiographical, it is a study of the pains, but perhaps the necessity as well, of commitment. A young Englishman, a Mr. Claude, touring Rome, finds himself trapped in that city when the French besiege it. In his letters to a friend at home, he reveals a growing sympathy for the defenders of the Roman Republic, saying at the defeat of the first French assault, “I am thankful they fought, and glad that the Frenchmen were beaten.” For all his professed cynicism over sacrificing oneself for one’s country, he cannot refrain from expostulating, “France, it is foully done!” Simultaneously, he begins to express an increasing appreciation for Mary Trevellyn, one of the daughters

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of an English family also unable to escape the French attack. Yet in neither his political affiliation nor his romantic attraction can he bring himself to act on his feelings, which might, after all, prove to be nothing more substantial than a mere velleity. When he comes close to confessing a love for Mary, he immediately draws back, protesting, I do not like being moved: for the will excited; and action Is a most dangerous thing; I tremble for something factitious, Some malpractice of heart and illegitimate process; We are so prone to these things with our terrible notions of duty. Meanwhile, Claude’s political commitment to the Roman Republic remains similarly stillborn, out of his fear of “the ruinous force of the will.” Did he begin to believe in the cause simply because he wished to believe? Action will furnish belief,—but will that belief be the true one? This is the point, you know. In the end, he remains a spectator, “Waiting till Oudinot [the French commander] enter, to reinstate Pope and Tourist.” So, too, with his love for Mary. When it is suggested to him that he has put himself under an obligation to her, he is horrified and declines to accompany her party when it is able to leave the city. Almost immediately, he regrets his decision, follows the Trevellyns, loses their track, and finally returns to Rome, now under French occupation, conscious of his failure and resigned to it. As for Clough, his story, at least in its political aspects, mirrored Claude’s. In 1848 he had accused the new Second Republic of being “extremely shopkeeperish and merchantilish” and predicted that it would “prefer going to war to keep the people amused, rather than open any disagreeable social questions.” His letters in 1849 from Rome documented his increasing identification with Mazzini’s republican government of the city, as he refers to “our batteries,” reports of “our driving back the French,” and laments that “these Blackguard French are attacking us again.” He ridiculed the French claim (later to be relied on by Tocqueville) to have employed restraint in attacking the city, so as to preserve its architectural and artistic beauty; Clough accused the French government of resting its case on a quibble between bombs and grenades. And he reserved special scorn for the Odilon Barrot ministry in which Tocqueville served, declaring, “Whether the Roman Republic will stand I don’t know, but it has shown under Mazzini’s inspiration a wonderful energy, and a glorious generosity; and at any rate has


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shaken to its foundations the Odillon-Barrot ministry, which I trust may yet go to its own place.” For all this seeming fervor, however, Clough granted one of Tocqueville’s central arguments—that a French capture of Rome was better than a return of papal government through conquest by the wholly illiberal Austrians and Neapolitans. Moreover, the only concrete action he took in support of his sympathies, apparently, was to donate some eau de cologne to the military hospital. Like Claude, Clough seems to have distrusted greatly his ability to be certain that the commitments he made were to some worthy object and not “something factitious.” Clough’s fundamental rule of conduct was “to withhold judgement and not cheat ourselves into beliefs which our own imperious desire to believe had alone engendered,” according to Hutton, who went on to recall Clough’s caution against “the ruinous force of the will” to persuade us of illusions which please us. … This practical teaching which Clough urges, in season and out of season, met an answering chord in Bagehot’s mind … in relation to the over-haste and over-eagerness of human conduct, and I can trace the effect of it in all [Bagehot’s] writings, political and otherwise, to the end of his life. Bagehot himself praised Clough’s “strong realism” and noted approvingly in an essay after Clough’s death, “He saw what it is considered cynical to see— the absurdities of many persons, the pomposities of many creeds, the splendid zeal with which missionaries rush on to teach what they do not know, the wonderful earnestness with which most incomplete solutions of the universe are thrust upon us as complete and satisfying.” Clough was, he declared, “anxious never to overstate his assurance of anything.” Here we have the confrontation between the two conceptions of the liberal purpose. For Tocqueville, French intervention in Rome was an example of a “heroic” action that elevated the minds of French citizens by forcing them out of a mundane preoccupation with money and requiring them to debate issues of the highest moment.17 For Clough—and, by implication, for Bagehot—the episode was an illustration of the ease with which intelligent but imprudent people could convince themselves of the necessity of involvement in dubious projects about which they in fact possessed very little information. To one, it stood for the responsibility of liberal states to advance the liberal cause in an international environment all too likely to be dominated otherwise by illiberal despotisms of the Right or Left; to the other, it stood as a warning of the continuing attraction of a hasty decisiveness that was the

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legacy of the pre-political and therefore pre-liberal age. Tocqueville called attention to the beginnings of reforms that he was able to introduce; Bagehot, to an unwelcome entanglement in the occupation of Rome that lasted a decade.18 So the debate over the role of liberalism in world affairs has proceeded in the decades that have followed: is it to be the champion of liberty, assertively promoting it against its foes abroad, or is it to be the example of liberty, displaying determination in perfecting its own society and tolerance in not presuming to know what is best for others? A.J.P. Taylor identified the disagreement as an inconsistency running through the whole of Gladstone’s career, in which he appealed to the Cobdenites—“rational and modestly reluctant to interfere with others”—but also to those whose belief in moral responsibilities and “the public law of Europe” could justify widespread intervention.19 George Kennan, who associated himself with the cause of liberalism whatever his criticisms of the “moralist-legalist” strand in U.S. foreign policy, could endorse both views in the same book. In a small volume of essays published in the early days of the Cold War, he celebrated “an attitude of detachment and soberness and readiness to reserve judgment,” all impeccably Bagehotian qualities of mind. He then went on, in a Tocquevillian mode, to describe the difficulties and dangers faced by the United States in the Cold War contest and to discern in them the circumstance that, “by providing the American people with this implacable challenge, has made their entire security as a nation dependent on their pulling themselves together and accepting the responsibilities of moral and political leadership that history plainly intended them to bear.”20 It might be argued that the Cold War, on the contrary, suppressed the influence of liberalism on foreign policy, because considerations of survival crowded out those of reform. As Bagehot’s critic Sisson put it, “Liberalism does not flourish except within safe frontiers and that is, of course, one of the reasons for making the frontiers safe, so long as that is practicable. So long as there are life-and-death confrontations within a country, there are other pre-occupations than liberalism.”21 So too among countries. With the passing of the Cold War, and its replacement with something like a unipolar international system, has come the renewal of the debate over the proper course for the United States, the preeminent liberal power. The comparative weakness of the non-liberal centers of power in the current historical era removes a constraint on the application of principle in international politics, but what is the proper principle? Are the “heroic” measures of today to be found in the promotion of democracy and free markets, and the establishment of multilateral humanitarian intervention as the governing doctrine on


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the use of force? Or do the times now require the “animated moderation” of a benign acceptance of political and economic diversity around a heterogeneous globe, combined with a renewed attention to the problems peculiar to a liberal society at home? At this point, the voluble Lieber demands readmittance to the discussion, for it has begun to veer in the direction of the concept that he developed more fully than either Tocqueville or Bagehot, that of honor. A pre-liberal concept, honor, he would say, can resolve the contest over the direction in which liberalism truly points the foreign policy of a great power.22 Dignity, self-respect, consideration for others, high-mindedness, candor coupled with courtesy—these are all qualities displayed by one whose actions are governed by a sense of honor. This honor is owed, not to anyone else, but to oneself; one behaves honorably to preserve one’s self-respect, to live up to the standards one has set for oneself. Lieber’s advocacy of codes of conduct freely accepted by states solely for their inherent justice, and not due to any external coercion, follows from this conception. Tocqueville would endorse the idea that reason, dictated by simple, universal standards of justice, would impose itself on all states—all states in civilized Europe in his day; perhaps he would say all states today. Bagehot would be skeptical, not because he would oppose applying the standards to his own state, but because he doubted that justice alone would bring their adoption by most states. The discussion would raise the issue of the sufficiency of liberalism. None of the three was a liberal, pure and simple. Tocqueville’s advocacy of civic virtue marked him as an inheritor of the Republican tradition and set him apart from Benthamite individualism. Lieber’s sense of robust honor had a chivalric quality about it that was anything but Millian. Bagehot rested his interpretation of history on a struggle for survival that did not necessarily reward liberal values and was not moving toward an obviously liberal apotheosis. If the ultimate standards of behavior and the ultimate reasons for adhering to them are to be found outside liberalism, is liberalism anything more than a veneer? It may soften the outlines of a Hobbesian world; it may dress in modern language precepts derived from classical notions of virtue. It consumes intellectual sustenance, rather than supplying it.23 As much for raising critiques of liberalism as for being guided by it, then, we benefit from examining the work of these thoughtful liberals of more than a century ago. Their insights and their shortcomings are instructive. And if we can construct an international system that is at once high-minded and tolerant, harmonious and free, we shall find among the cornerstones of our edifice, traces of the workmanship of Alexis de Tocqueville, Francis Lieber, and Walter Bagehot.


Notes

Chapter 1

Introduction

1. Richard Falk, “Liberalism at the Global Level: Solidarity vs. Cooperation,” in Eivind Hovden and Edward Keene, eds., The Globalization of Liberalism (Houndmills, Basingstoke, Hampshire, and New York: Palgrave, 2002), p. 75. 2. John Stuart Mill, “De Tocqueville on Democracy in America [I]” London Review (October 1835), in Collected Works of John Stuart Mill, Vol. XVIII, Essays on Politics and Society, ed. J.M. Robson (Toronto: University of Toronto Press, 1977), p. 51; letter of 1914, from Bryce to Emilie Barrington, in Norman St John-Stevas, ed., The Collected Works of Walter Bagehot, 15 vols. (London: The Economist, 1965–86), XV: 72 (hereinafter CW ); Samuel Taylor, “De Tocqueville and Lieber as Writers on Political Science,” Princeton Review 30 (October 1858): 627; Joseph Dorfman and Rexford Guy Tugwell, “Francis Lieber: German Scholar in America,” Columbia University Quarterly XXX (September 1938): 159; Vincent Ostrom review of Richard Matthews, If Men were Angels: James Madison and the Heartless Empire of Reason, in American Political Science Review 89 (September 1995): 749; A. V. Dicey, “Alexis de Tocqueville: A Study,” The National Review 21 (August 1893): 784; M.R.D. Foot, ed., The Gladstone Diaries, 14 vols. (Oxford: Clarendon Press, 1968–94), X: 58; letter of October 11, 1870, from Earl Granville to Bagehot, in CW, XIII: 638; Woodrow Wilson, “A Literary Politician” (1895) in C W, XV: 157; McGeorge Bundy, “The Polity of Discussion: Bagehot’s Physics and Politics Revisited in the Nuclear Age” (October 1980), Rand Paper P6544, Rand Corporation; Elihu Root, “Francis Lieber,” American Journal of International Law 7 ( July 1913): 466. Cf. Dicey’s opinion of Tocqueville and Bagehot as “[t]wo men of marked originality” who had “thrown new light on the theory of politics,” and his assertion that, while “De Tocqueville’s services to political science have now been fully acknowledged, though they can scarcely receive more ample acknowledgement than is their due [,] Mr. Bagehot’s achievements have scarcely as yet been fully recognized” ( “Walter Bagehot” (June 26, 1879), in CW, XV: 80. (Taylor did admit that “[i]n the mere literary art of luminous and animated expression, and of symmetrical form in composing a treatise, we give a decided preference to De Tocqueville before Lieber,” but emphasized his high

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regard for Lieber by comparing his Civil Liberty with Aristotle’s Politics, much to the advantage of the former (pp. 627, 643). See also Mill, “Bentham” (August 1838) in Collected Works of John Stuart Mill, 33 vols. (Toronto: University of Toronto Press, 1963–91), X, Essays on Ethics, Religion and Society, ed., J. M. Robson, p. 109; address of March 24, 1916, by Bryce, at the unveiling of a memorial tablet to Bagehot, in CW, XV: 75. See the biographical sources referred to in chapters 1–3. Ibid.; William Gwyn, Democracy and the Cost of Politics in Britain (London: The Athlone Press, University of London, 1962), pp. 73–75. See Lieber’s diary entries for September 18, September 30, and October 15, 1831, in Thomas Sergeant Perry, ed., The Life and Letters of Francis Lieber (Boston: James R. Osgood and Company, 1882), pp. 91, 92, 96; George Pierson, Tocqueville in America (Baltimore: Johns Hopkins University Press, 1996), originally published as Tocqueville and Beaumont in America (New York: Oxford University Press, 1938), pp. 375–80, 782, 784; Alexis de Tocqueville, Democracy in America, in Oeuvres Completes (Paris: Gallimard, 1951–), I, Vol. 1, pp. 194–95; OC, V, 1, p. 92. See also Frank Friedel, Francis Lieber: Nineteenth-Century Liberal (Baton Rouge: Louisiana State University Press, 1947), pp. 89–90, who grants that Tocqueville “was to eclipse [Lieber] thoroughly as an interpreter of American democracy.” Perry, Life and Letters, p. 96; Pierson, Tocqueville in America, p. 708; OC, VII, 97–113; Charles Mack and Ilona Mack, eds., Like a Sponge Thrown into Water: Francis Lieber’s European Travel Journal of 1844–1845 (Columbia, South Carolina: University of South Carolina Press, 2002), p. 140. Lieber diary for May 19, 1844, and June 11, 1844, letters of November 7, 1844, and November 26, 1844, to Tocqueville, and letter of May 16, 1854, to C.J.A. Mittermaier, in Perry, Life and Letters, pp. 183, 191, 192–93, 275; Lieber letter of July 22, 1870, to Martin Russell Thayer; OC, VII, 109–12, 179; OC, III: 333–56; Mack and Mack, eds., Like a Sponge, pp. 24, 25, 26, 27, 29, 30, 32, 92, 96, 98. “The Ancient and the Modern Teacher of Politics,” in The Miscellaneous Writings of Francis Lieber, Vol. I, Reminiscences, Addresses, and Essays (Philadelphia: J.B. Lippincott Company, 1880), p. 384 (hereinafter RAE); letter of October 19, 1856, to Samuel Allibone; letters of August 9, 1856, to Matilda Lieber, and of August 13, 1838, to Charles Sumner, cited in Friedel, Francis Lieber, pp. 164–65, 276–77. Friedel, Francis Lieber, pp. 47– 48, 256–57; Alastair Buchan, The Spare Chancellor: The Life of Walter Bagehot (East Lansing, Michigan: Michigan State University Press, 1960), pp. 33– 46. Bagehot wrote his mother that the American exhibit was “much behindhand,” and added, “There were a great many Americans in the crowd. … [including] one who swore he was member in Congress for California and looked like a Smithfield drover” (letter of May 8, 1851, to Edith Bagehot, in C W, XII: 319). In his letter on the Exhibition written in June before he left for London, Lieber admonished his countrymen that listening to such

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remarks might do them good: I have had no intention of administering a sedative to any person in our country whose temper may have been somewhat ruffled by the observations daily making at the paucity of our part of the Exhibition. The United States can well take care of themselves, and if the self-laudatory spirit, to which we are not a little given, has received a check in some by this contact with other nations, it must be considered as one of the welcome effects of the international concourse at London. (Letter of November 10, 1851, “To the Editors of the Times Newspaper (London)”) 10. “American Complaints against England” (September 14, 1861), CW, IV: 316; “English Feeling towards America” (September 28, 1861), CW, IV: 323–28; “Prince Bismarck’s Interference in France” (January 24, 1874), CW, VIII: 260; Lieber letters of June 1, 1861, of August 15, 1870, of August 22, 1870, and of October 5, 1870, to Sumner. 11. See “Mr. Grote” (June 24, 1871) and “Senior’s Journals” (August 1, 1871), in CW, II: 368–86; “Sir George Cornewall Lewis” (October 1863) and “The Tribute at Hereford to Sir George Cornewall Lewis” (September 10, 1864), in CW, III: 366– 403; letters of November 23, 1857, from Eliza Wilson to Walter Bagehot, of November 29, 1857, from Marie Mohl to Eliza Wilson, and of April 6, 1860, from W.R. Greg to Matilda Wilson, in CW, XIII: 405, 415–16, 559–60; Buchan, The Spare Chancellor, p. 99; OC, VI: vols. 1 and 2; Roger Boesche, ed., Alexis de Tocqueville: Selected Letters on Politics and Society (Berkeley: University of California Press, 1985); André Jardin, Tocqueville: A Biography, Lydia Davis with Robert Hemenway, trans. (New York: Farrar Straus Giroux, 1988); Life, Letters, and Journals of George Ticknor, 2 vols. (Boston: Houghton Mifflin, 1909), II: 361–62; Emilie Isabel [Mrs. Russell] Barrington, Life of Walter Bagehot (London: Longmans, Green and Co., 1914), p. 235; Emilie Isabel [Mrs. Russell] Barrington, The Servant of All: Pages from the Family, Social and Political Life of My Father James Wilson, 2 vols. (London: Longmans, Green and Co., 1927), II: 4–5; M.C.M. Simpson, Letters and Recollections of Julius and Mary Mohl (London: Kegan Paul, Trench and Co., 1887), pp. 136–37; M.C.M. Simpson, Many Memories of Many People (London: Edward Arnold, 1898), pp. 54–63; Friedel, Francis Lieber, pp. 64, 200, 214. 12. “Senior’s Journals,” p. 386; “The Crédit Mobilier and Banking Companies in France” (January 1857), CW, X: 356–57; “The State of Parties” (April 2, 1864), CW, XIV: 287–88; “The American Constitution at the Present Crisis” (October 1861), CW, IV: 285. See also The English Constitution in CW, V: 339, 394–95, 406; “One Difference Between France and England” (September 12, 1868), CW, VIII: 178; William Irvine, Walter Bagehot (London: Longmans, Green and Co., 1939), pp. 246 – 47. 13. “Letter I.—The Dictatorship of Louis Napoleon” (January 8, 1852) and “Letter II.—The Morality of the Coup d’état” (January 15, 1852), in CW, IV: 29–44. An undated letter from R.H. Hutton to Arthur Clough, which is surprisingly

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sharp, coming from the pen of a man often described as Bagehot’s closest friend, is representative of the reaction the letters received in liberal circles: Have you read Bagehot’s “fast” politics in the Inquirer? It quite bears away the palm in the advanced school of principle-ridiculing, ethics-repudiating, sharp scornful politics. … I think his doctrine detestable, almost as much so as the measure he defends. And the talent of his letters, which is very great, I think, chiefly lies in Thackeray’s talent of amusing onesided caricature [rather] than in real political insight. (Frederick Mulhauser, ed., The Correspondence of Arthur Hugh Clough, 2 vols. (London: Oxford University Press, 1957), I: 304.) Perhaps Hutton had found even more outrageous than the published letters a private letter sent to him by Bagehot from Paris in December 1851, in which Bagehot had said, provocatively, “I think M. Buonaparte is entitled to great praise. He has very good heels to his boots, and the French just want treading down, and nothing else—calm, cruel, business–like oppression, to take the dogmatic conceit out of their heads. … [E]very Parisian wants his head tapped in order to get the formulae and nonsense out of it. … So I am for any carnivorous government” (CW, XII: 327–28). 14. Times (London), December 11, 1851, p. 5. Tocqueville wrote the article in French; Reeve, as he had done with both volumes of Democracy in America, translated it into English. The original no longer exists, but a retranslation into French may be found in OC, VI, 119–29. 15. Jardin, Tocqueville, pp. 457–80. 16. Barrington, Life of Walter Bagehot, pp. 203–04; Buchan, The Spare Chancellor, pp. 53–65; Jardin, Tocqueville, p. 461. 17. Roger Boesche, “Tocqueville and Le Commerce: A Newspaper Expressing His Unusual Liberalism,” Journal of the History of Ideas 44 (April–June 1983): 292. See also Boesche, The Strange Liberalism of Alexis de Tocqueville (Ithaca, New York: Cornell University Press, 1987); letter of October 3, 1845, to Beaumont, in OC, VIII, pt. 1, pp. 564–65, cited in Boesche, “Tocqueville and Le Commerce,” p. 279; Robert Kraynak, “Tocqueville’s Constitutionalism,” American Political Science Review 81 (December 1987): 1175–95. 18. J.C. Bluntschli, “Lieber’s Service to Political Science and International Law,” in The Miscellaneous Writings of Francis Lieber, Vol. II, Contributions to Political Science (Philadelphia: J.B. Lippincott Company, 1880), p. 8 (hereinafter CPS); Wilson Smith, “Francis Lieber’s Moral Philosophy,” Huntington Library Quarterly 18 (August 1955): 395; C.B. Robson, “Francis Lieber’s Theories of Society, Government, and Liberty,” Journal of Politics 4 (May 1942): 237. See also Wilson Smith, Professors and Public Ethics: Studies of Northern Moral Philosophers before the Civil War (Ithaca: Cornell University Press, 1956), pp. 95–110. 19. R.H. Hutton, “Memoir” (March 31, 1877), in CW, XV: 39; Norman St JohnStevas, Walter Bagehot: A Study of His Life and Thought Together with a Selection

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from His Political Writings (London: Eyre and Spottiswoode, 1959), pp. 45–59; “Mr. Mill’s Address to the Electors of Westminster” (April 29, 1865), CW, III: 542, 545; Keith Feiling, Sketches in Nineteenth Century Biography (London: Longmans, Green and Company, 1930), p. 138. Bagehot’s differences with the advanced Liberals may have lain behind the fact that, although, when John Stuart Mill was a parliamentary candidate in 1865, Bagehot endorsed him in the columns of the Economist, despite “differing as we do in the strongest manner from many of Mr. Mill’s political opinions,” when Bagehot’s name was mooted as a candidate for the University of London seat in 1867, Mill supported Edwin Chadwick instead. (In the event, both Chadwick and Bagehot withdrew and Robert Lowe won the seat unopposed.) See “Mr. Mill’s Address to the Electors of Westminster,” p. 541; letters of July 22, 1867, July 25, 1867, July 31, 1867, two of August 2, 1867, and two of August 20, 1867, from Mill to Chadwick, in Collected Works of John Stuart Mill, Vol. XVI, ed. Francis Mineka and Dwight Lindley, The Later Letters of John Stuart Mill 1849–1873 (Toronto: University of Toronto Press, 1972), pp. 1292 ff. See also Alan Kahan, Aristocratic Liberalism: The Social and Political Thought of Jacob Burckhardt, John Stuart Mill, and Alexis de Tocqueville (Oxford: Oxford University Press, 1992), pp. 4, 15, 68–74. William McGovern describes Bagehot as “essentially conservative in most of his political attitudes” and Leslie Stephen characterizes him as “to a certain point conservative or aristocratic.” With a fine display of impartiality, Crane Brinton devotes three pages to evidences of Bagehot’s liberalism, followed by one page of evidences of his conservatism. See William McGovern, From Luther to Hitler: The History of Fascist-Nazi Political Philosophy (London: George G. Harrap and Co., 1946), pp. 463–73; Leslie Stephen, Studies of a Biographer, 4 vols. (London: Duckworth and Co., 1910), III: 155–87; Crane Brinton, English Political Thought in the Nineteenth Century (London: Ernest Benn Ltd., 1949), pp. 180–98. McGovern’s claim that “The Nazis have taken over Bagehot’s version of Social Darwinism almost in its entirety” (p. 633) says more about the magpie-like propensity of fascist propagandists to pick up scattered fragments of thought regardless of their mutual consistency than it does about Bagehot as a progenitor of Nazi attitudes. 20. Anthony Trollope, The Prime Minister (1876) (London: Penguin Books Ltd., 1994), p. 584. 21. Mill, “De Tocqueville on Democracy in America [I],” p. 51.

Chapter 2


1. Guido Ruggiero, The History of European Liberalism, trans. R.G. Collingwood (Boston: Beacon Press, 1959), pp. 247–48. 2. Wherever possible, use has been made of previous translations of Tocqueville’s work, with citation being made to the Gallimard edition of the Oeuvres Complètes (hereinafter cited as OC ), with reference being made first to the Tome,

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3.

4.

5.

6.

7.

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then, in the case of those Tomes that contain more than one volume, to the volume number, and then to the page number. Where no prior translation has appeared, translations are by the present author. See OC, III, vol. 2, pp. 259, 265, 280, 292, 300, 304, 339. On Tocqueville generally, see André Jardin, Tocqueville: A Biography, trans. Lydia Davis with Robert Hemenway (New York: Farrar, Straus, Giroux, 1988). OC, III, vol. 3, pp. 249–54, 261, 286–89, 291; VI, vol. 1, p. 100; Nassau William Senior, Journals Kept in France and Italy from 1848 to 1852, ed. M.C.M. Simpson, 2 vols. (London: Henry S. King and Co., 1871), II: 231; M.C.M. Simpson, ed., Correspondence and Conversations of Alexis de Tocqueville with Nassau William Senior from 1834 to 1859, 2 vols. (London: Henry S. King and Co., 1872; rept. ed. New York: Augustus M. Kelley, 1968), II: 41–42. OC, XII, pp. 45, 284; Tocqueville, Recollections, trans. George Lawrence (London: Macdonald, 1970), pp. 22, 285; Edward Gargan, Alexis de Tocqueville: The Critical Years 1848–1851 (Washington, D.C.: The Catholic University of America Press, 1955), p. 144; Antoine Redier, Comme Disait M. de Tocqueville … (Paris: Perrin, 1925), p. 163. One could also assert that these differences were only apparent, and that Tocqueville’s thought was in reality fundamentally consistent, either because “Tocquevillian patriotism is decidedly pacific” throughout, or because Tocqueville “shared … the extreme nationalism … [of ] Bonapartism” and had done so long before Louis Napoleon came to power. (See Bruce Smith, Politics & Remembrance: Republican Themes in Machiavelli, Burke, and Tocqueville (Princeton, New Jersey: Princeton University Press, 1985), pp. 160–61; Hugh Brogan, Tocqueville (London: Collins/Fontana, 1973), p. 23. It will be the argument of this chapter that Tocqueville’s thought is consistent, but not in the sense of either Smith or Brogan. The quotations in this and the following paragraph are all taken from Tocqueville’s introduction to Democracy in America, OC, I, vol. 1, pp. 1–4. See Alexis de Tocqueville, Democracy in America, translated, edited, and with an introduction by Harvey Mansfield and Delba Winthrop (Chicago: The University of Chicago Press, 2000). Tocqueville, “The Social and Political State of France Before and After 1789,” London and Westminster Review (1836), printed as the introduction to L’Ancien Regime et la Revolution, OC, II, vol. 1, p. 63. See Pierre Manent, Tocqueville and the Nature of Democracy, trans. John Waggoner (Lanham Way, Maryland: Rowman & Littlefield, 1996), pp. 20–22. See also the point Tocqueville made in his notebook during his American travels: “If ever the world comes to be completely civilized, the human race will in appearance form only one people.” (OC, V, vol. 1, p. 190) OC, II, vol. 1, p. 88; The Old Régime and the Revolution, ed. Francois Furet and Francoise Melonio, trans. Alan Kahan (Chicago: The University of Chicago Press, 1998), pp. 100, 327. See also Tocqueville’s letters to Arthur de Gobineau of September 5, 1843, and January 24, 1847, in OC, IX, vol. 2, pp. 46, 276–81,

Notes

8. 9.

10. 11. 12.

13.

14. 15.

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and Marvin Zetterbaum, Tocqueville and the Problem of Democracy (Stanford: Stanford University Press, 1967), p. 151. Furet and Melonio, The Old Regime, pp. 99, 210, 213. OC, I, vol. 2, pp. 238–49, passim; Zetterbaum, Problem of Democracy, pp. 36–39; Tocqueville, Memoir, Letters, and Remains, trans. and ed. Miss Senior, 2 vols. (London: Macmillan and Company, 1861), II: 365–66. One example of a norm that Tocqueville believed was valid at all times and places was the prohibition against slavery. At a meeting of l’Académie des Sciences Morales et Politiques on April 20, 1839, in response to statements that he took to mean that, while modern slavery was to be condemned, slavery in the ancient world had been necessary to economic development and therefore, “in a certain epoch, good and legitimate,” he rose to make an impromptu intervention “against this doctrine, which I consider false and immoral,” saying, “These facts are odious in our days; they were no less so three thousand years ago.” OC, XVI, pp. 165–67. OC, I, vol. 1, p. 4. OC, II, vol. 2, p. 347. See also Manent, Tocqueville and the Nature of Democracy; Edward Gargan, De Tocqueville (London: Bowes and Bowes, 1965), pp. 14–15. Letter of November 17, 1853, OC, IX, p. 202. See also Tocqueville’s letters of October 11, 1853, December 20, 1853, and July 30, 1856, OC, IX, pp. 199–269, passim; Michael Biddiss, ed., Gobineau: Selected Political Writings (London: Jonathan Cape, 1970). Tocqueville in conversation with Senior on April 26, 1858, in Paris (Correspondence and Conversations, II: 207–08). See also Jean-Claude Lamberti, La Notion D’Individualisme chez Tocqueville (Paris: Presses Universitaires de France, 1970). Correspondence and Conversations, I, vol. 1, pp. 171, 166, 163. Tocqueville’s belief in the need for asylum for political refugees may be seen in his dealings as foreign minister with the revolutionaries from across Europe who had taken refuge in Switzerland in 1849. See his own account in his Souvenirs (OC, XII, pp. 245–46). Cf. Gargan, Tocqueville: The Critical Years. For an argument that Tocqueville paints himself as less sympathetic toward the Swiss in 1849 than in fact he had been, see Luc Monnier, “Tocqueville et la Suisse,” in Alexis de Tocqueville: Livre du Centenaire, 1859–1959 (Paris: Centre National de la Recherche Scientifique, 1960), pp. 101–13. During his tenure, he had also to deal with the issue of participants in the failed Hungarian uprising of 1848, who had fled into the Ottoman Empire, and whose return the Austrian and Russian governments were demanding. (See the private correspondence with Beaumont, whom Tocqueville had dispatched as French ambassador to Vienna, which was almost entirely taken up with this issue (OC, VIII, vol. 2, pp. 173–227).) In the Souvenirs, Tocqueville dryly observed that the Sultan’s officials, who protested that those who had requested the mercy of asylum ought to have it respected, “spoke like civilized men and Christians,” while the Russian and Austrian ambassadors, in threatening war if the refugees were not delivered to them, “replied as true Turks” (OC, XII, p. 257).

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16. OC, I, vol. 1, p. 233. As a member of the Chamber of Deputies, Tocqueville had closely questioned the government about its treatment of refugees from Tuscany who had come to France following upheavals against the papal authorities in Romagna. See OC, III, vol. 2, pp. 449–58. 17. For a consideration of patriotism by the young Tocqueville, written during an 1831 trip to Sicily, in which he reflects on the emotions that came upon him— the attraction of his own country, the desolation of exile, and the longing for his country when he was removed from it, even voluntarily, for any length of time— emotions that he believed were common, even natural to all persons, see OC, V, vol. 1, p. 49. 18. Letter to Madame Sophie Swetchine, October 20, 1856, OC, XV, vol. 2, pp. 296–97. 19. Letter to John Stuart Mill, March 18, 1841, OC, VI, vol. 1, pp. 335–36. Cf. letter to Gustave de Beaumont, April 8, 1853, OC, VIII, vol. 3, pp. 101–02. 20. Letter of December 18, 1840, OC, VI, vol. 1, pp. 330–31. 21. OC, VI, vol. 1, pp. 66–70, 332–33, 337–38; VI, vol. 2, p. 91; John Laughton, Memoirs of the Life and Correspondence of Henry Reeve, C.B., D.C.L., 2 vols. (London: Longmans, Green, and Co., 1898), I: 142; Henry Reeve, Royal and Republican France, 2 vols. (London: Longmans, Green, and Co., 1872), II: 164; Henry Reeve, ed., The Greville Memoirs: A Journal of the Reign of Queen Victoria from 1837 to 1852, 2 vols. (New York: D. Appleton and Company, 1885), I: 315n. 22. Letter to Reeve, November 7, 1840, OC, VI, vol. 1, p. 63; VIII, vol. 1, p. 421; Tocqueville, Memoir, Letters, and Remains, II: 257–58. See also OC, XI, vol. 1, p. 90. 23. See Boesche, Strange Liberalism, pp. 215–18. 24. Tocqueville, Memoir, Letters, and Remains, I: 443. 25. Letter to Lady Teresa Lewis, in Tocqueville, Memoir, Letters, and Remains, II: 409. See also letter to Reeve, April 12, 1840, OC, VI, vol. 1, p. 58. 26. Democracy in America, OC, I, vol. 2, p. 274. 27. Boesche, Strange Liberalism, pp. 218–25. 28. Democracy in America, OC, I, vol. 1, p. 4. 29. Tocqueville, Memoir, Letters, and Remains, II: 201–02, 293; OC, VI, vol. 2, pp. 151, 171. 30. OC, III, vol. 2, p. 350. See also Mary Lawlor, Alexis de Tocqueville in the Chamber of Deputies: His Views on Foreign and Colonial Policy (Washington, D.C.: The Catholic University of America Press, 1959), p. 82. 31. OC, VI, vol. 1, p. 142. 32. OC, III, vol. 2, pp. 261–62, 404–06. As noted above, Tocqueville himself was designated the French representative to just such a meeting in 1848 on affairs in northern Italy, though in the end the conference did not take place. 33. Tocqueville, Memoir, Letters, and Remains, II: 310; OC, VI, vol. 2, pp. 185–86. See also his description of the failure of the coalitions against Revolutionary and

Notes

34.

35.

36.

37. 38.

39.

40.

41.

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Napoleonic France before 1813, in Alexis de Tocqueville, “The European Revolution” and Correspondence with Gobineau, ed. and trans. John Luckacs (Westport, Connecticut: Greenwood Press, 1959; rept. ed., 1974), p. 113. OC, I, vol. 1, pp. 164–65. Playing a great, and necessary, role in the shifting conditions of the states-system—knowing when to choose peace and when to accept war—might demand as well a tempering of democratic control over the conduct of foreign affairs. Tocqueville’s Souvenirs concluded that democracies, “as a rule, have only very confused and very erroneous ideas on external affairs …” (OC, XII, vol. 1, p. 246.) Tocqueville, Memoir, Letters, and Remains, I: 78–79; letter to Reeve, February 25, 1859, OC, VI, vol. 1, p. 279. See also letters to Beaumont, August 9, 1840, to Paul Clamorgan, February 13, 1847, and to Reeve, January 8, 1851, in OC, VIII, vol. 1, p. 421; VI, vol. 1, p. 133; X, pp. 409–13; Alexis de Tocqueville, Selected Letters on Politics and Society, trans. James Toupin and Roger Boesche, ed. Roger Boesche (Berkeley: University of California Press, 1985), pp. 185–86. Letter to Reeve, May 22, 1836, OC, VI, vol. 1, p. 32. See also letter to Senior, January 22, 1855, in Tocqueville, Memoir, Letters, and Remains, II: 289; OC, VI, vol. 2, pp. 173–75. As we have seen, of course, Tocqueville was not always uncritical of Great Britain. See Lawlor, Tocqueville in the Chamber, pp. 67–99; Boesche, Strange Liberalism, p. 216; Max Beloff, “Tocqueville et L’Angleterre,” in Livre du Centenaire, p. 88. “Notes on the Revolutions of 1848 and in Particular the Italian Problem,” OC, III, vol. 3, pp. 249–54. Letter to Corcelle, October 11, 1846, OC, XV, vol. 1, p. 219. Tocqueville would ensure that his position was reflected in the report he helped to write the following year for a special parliamentary commission established to study the problems of colonization in Algeria (OC, III, vol. 1, pp. 308–418). See also Lawlor, Tocqueville in the Chamber, pp. 150–70; Stephane Dion, “Durham et Tocqueville sur la colonisation libérale,” Journal of Canadian Studies 25 (Spring 1990): 60–77; André Martel, “Tocqueville et les Problemes Coloniaux de la Monarchie de Juilleˆt,” Revue D’Histoire Economique et Sociale 32 (1954): 367–88; Henri Baudet, “Alexis de Tocqueville et la Pensée Coloniale du XIXe Siecle,” in Livre du Centenaire, pp. 121–31. Letter to Lord Hatherton, November 27, 1857, in Tocqueville, Selected Letters, pp. 359–60. See the unfinished volume L’Inde, OC, III, vol. 1, pp. 441–550. Tocqueville generally opposed introducing European settler populations into colonial possessions, arguing that they were “mortifying to the self-respect of the indigenous people” (letter to Reeve, January 30, 1858, OC, VI, vol. 1, p. 254). Letter to Corcelle, October 2, 1854, OC, XV, vol. 1, pp. 118–19; letter to Reeve, April 12, 1840, OC, VI, vol. 1, p. 58. See also OC, III, vol. 1, pp. 22–23, 216; Irving Zeitlin, Liberty, Equality, and Revolution in Alexis de Tocqueville (Boston: Little, Brown, 1971), p. 119. See Tocqueville, Memoir, Letters, and Remains, II: 263.

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42. For three generous assessments of Tocqueville’s performance as Foreign Minister, see the eulogy published by his friend Jean-Jacques Ampère as “Alexis de Tocqueville (mémoire),” Correspondant (1859), p. 4; Pierre Marcel, Essai Politique sur Alexis de Tocqueville (Paris: Felix Alcan, 1910), pp. 408–32; Redier, Comme Disait M. de Tocqueville …, pp. 215–18. 43. Souvenirs, OC, XII, vol. 1, pp. 243–44. 44. Tocqueville, Memoir, Letters, and Remains, I: 151, 232; II: 148; OC, XV, vol. 1, pp. 281, 285, 293. On Tocqueville’s correspondence with Francisque de Corcelle, his special representative in Rome, in which the Foreign Minister exhorted his emissary to demand steps to liberalize the restored papal government, see OC, XV, vol. 2, pp. 253, 256–57, 277, 282, 305–06, 311, 339, 373–80, 422–24, 429–30, 448–49, 474; Francoise Melonio, “Tocqueville et la restauration du pouvoir temporal du pape (Juin–Octobre 1849),” Revue Historique 271 (January–March 1984): 109–23. On the Roman Question more generally, see Jardin, Tocqueville, pp. 437– 44; Emile Lesueur, “Les Débuts du Prince de La Tour L’Auvergne-Lauraguais dans la Carrière Diplomatique: Les Francais à Rome en 1849,” Revue D’Histoire Diplomatique 44 (1930): 155–81; Guillaume Mollat, “Les Debuts de l’Occupation Francaise a Rome en 1849, d’apres une Correspondance Inedite,” Revue d’Histoire Ecclesiastique 30 (April 1934): 334–60; (June 1934): 587–619; Alessandro d’Alessandro, “La Repubblica Romana del 1849 e l’Intervento Francese,” Nuova Rivista Storica 41, 2 (1957): 261–89; Comte de Quinsonas, “L’Expedition de Rome 1849 et le General Oudinot,” Revue Historique de l’Armée 15, 3 (1959): 59–78; William Echard, “Louis Napoleon and the French Decision to Intervene at Rome in 1849: A New Appraisal,” Canadian Journal of History 9, 3 (December 1974): 263–74. 45. OC, XV, vol. 2, p. 399; Tocqueville, Memoir, Letters, and Remains, II: 155. See also Gargan, The Critical Years, pp. 122–79; OC, XV, vol. 2, pp. 277, 306, 343, 395, 439; Charles Pouthas, “Un Observateur de Tocqueville à Rome Pendant les Premiers Mois de l’Occupation Francaise (Juillet–Octobre 1849),” Rassegna Storica del Risorgimento 37 (January–December 1950): 417–30; A.-B. Duff and M. Degros, Rome et les Etats Pontificaux sous l’Occupation Etrangère: Lettres du Colonel Callier (Juillet 1849–Mars 1850) (Paris: Imprimerie Nationale, 1950). Tocqueville drew up two statements of the liberalizing measures he thought essential in Rome, “Mesures Administratives et Institutions” and “Justice dans les Etats Romains.” See OC, III, vol. 3, pp. 340–41, 342–43. 46. For Tocqueville’s two major statements to the National Assembly on this subject—that of August 6, in which he defended French support for the reestablishment of papal authority while demanding reforms, and that of October 18, in which he admitted that “the Moto proprio did not immediately and completely realize all the wishes of our diplomacy,” but added that “it is fair to say that in the Moto proprio of the Pope are found the greater part of the most essential reforms we had asked, and those that are not found there in a developed state are

Notes

47.

48.

49.

50. 51.

52.

53. 54. 55.

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found there in germ and in promise”—see OC, III, vol. 3, pp. 314–32, 345–65. For the confidential correspondence with Corcelle and others in which he was taking a much less sanguine line, see OC, XV, vol. 2, pp. 418, 424, 439, 443, 448– 49, 464, 474. Fonti per la Storia d’Italia (Roma, 1972), vol. 116, ed. Michele Fatica, Le relazioni diplomatiche fra lo stato pontifico e la Francia, III Serie: 1848–1860, Vol. Secondo (19 Febbraio 1849–15 April 1850), pp. 203, 292–94, 302–07, 384–85, 389–90, 395. See also Don Tommaso Leccisotti, “La Corrispondenza fra Don Luigi Tosti e l’Ambasciatore D’Arcourt nel Periodo della Repubblica Romana (1849),” Pio IX 5, 3 (1976): 312–39; Giacomo Martina, Pio IX (1846–1850) (Roma: Universitá Gregoriana Editrice, 1974), p. 384. In his Souvenirs, Tocqueville reproduces the passages in his celebrated speech to the Chamber of Deputies on January 30, 1848, only a month before the overthrow of the July Monarchy, in which he warned of an upheaval, but he goes on to add that he was as surprised as anyone by the speed and completeness with which it occurred (OC, XII, pp. 37–41). Although he would not have gone so far as the opinion on the Constitution of 1848 attributed to Palmerston: “the day-before-yesterday tomfoolery which the scatterbrained heads of Marrast and Tocqueville invented for the torment and perplexity of the French nation.” (Cited in F.A. Simpson, Louis Napoleon and the Recovery of France, 1848–1856 (London: Longmans, Green and Co., 1923), pp. 167–68.) The Souvenirs (OC, XII) is devoted to Tocqueville’s interpretation of this period. For his notes for the June 7 debate, see OC, III, vol. 3, p. 269. Souvenirs, OC, XII, p. 284; OC, III, vol. 3, pp. 249–54, 291. The editors of the OC date the “Notes on the Revolutions of 1848 and in Particular the Italian Problem” to late October or November, 1848. Letter to Beaumont, October 12, 1849, OC, VIII, vol. 2, p. 201. See also Maurice Degros, “Les ‘Souvenirs,’ Tocqueville et la Question Romaine,” in Livre du Centenaire, pp. 157–70; Charles Lucet, “Lamartine, Tocqueville, Gobineau … Les Ministres des Affaires Etrangères de la Seconde Republique et Leurs Cabinets,” Revue d’Histoire Diplomatique 93, 3– 4 (1979): 247–78. A.J.P. Taylor criticizes Tocqueville for having “fallen victim to the doctrine of ‘the lesser evil’” when the “social peril threw him off his balance” (“De Tocqueville in 1848,” in Europe: Grandeur and Decline (Penguin Books: Harmondsworth, Middlesex, England, 1950), p. 44). OC, I, vol. 1, pp. 245–46, 166, 247. OC, pp. 320, 172, 174. Letter to Reeve, March 26, 1853, OC, VI, vol. 1, p. 143; Democracy in America, I, vol. 1, pp. 174, 238; Memoir, Letters, and Remains, II: 124. See Paul Varg, United States Foreign Relations, 1820–1860 (East Lansing, Michigan: Michigan State University Press, 1979), pp. 20– 42; Adam Watson, “New States in the Americas,” in Hedley Bull and Adam Watson, eds., The Expansion of International Society (Oxford: Clarendon Press, 1985), pp. 127–41. On Tocqueville’s contrast

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56. 57. 58. 59. 60.

61.

62.

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between, on the one hand, the United States, “without neighbors, thus without enemies,” and therefore free from “the constraints of diplomacy and war,” and, on the other, France, “surrounded by neighbors who are always rivals and may at any time become enemies,” which therefore must “place above all else worries over external security,” see Raymond Aron, “Idées Politiques et Vision Historique de Tocqueville,” Revue Francaise de Science Politique X (September 1960): 518–20. Democracy in America, OC, I, vol. 1, pp. 174, 133. Ibid., p. 174; letter to Eugene Stoffels, October 5, 1836, in Tocqueville, Selected Letters, p. 113. “Discours” given to L’Academie des Sciences Morales et Politiques, April 3, 1852, OC, XVI, p. 232. “Alexis de Tocqueville’s Concept of Citizenship,” Proceedings of the American Philosophical Society 108 (February 1964): 52. Tocqueville, Memoir, Letters, and Remains, I: 120–21; OC, III, vol. 2, pp. 344– 45, 375–83, 433. See also Jack Lively, The Social and Political Thought of Alexis de Tocqueville (London: Oxford University Press, 1962), p. 138. Tocqueville, The Old Regime and the Revolution, Vol. 2, Notes on the French Revolution and Napoleon, ed. Francois Furet and Francoise Melonio, trans. Alan Kahan (Chicago: The University of Chicago Press, 2001), p. 181; European Revolution, p. 113; OC, II, vol. 2, p. 247. Cf. OC, III, vol. 2, p. 319. Souvenirs, OC, XII, p. 246.

Chapter 3


1. Ruggiero, The History of European Liberalism, p. 413. 2. Moynier would go on to serve as president of the conference that founded the International Red Cross. 3. Lieber thus considered that Moynier’s plan for a court empowered to punish individual war criminals was as objectionable as an international tribunal of universal jurisdiction empowered to issue decisions binding on governments, a position he had long held. The letter appeared in the Revue de Droit International 4 (1872): 330–32, in French. Lieber’s original letter, written in English, addressed to General G.-H. Dufour, honorary president of the Comite international de secours aux militaires blessés, and dated April 10, 1872, may be found in the Francis Lieber papers, Henry E. Huntington Library, San Marino, California. All manuscripts referred to in this chapter, unless otherwise identified, are from this collection. Translations of other correspondence to and from Lieber, unless otherwise identified, are by the present author. 4. RAE., p. 367. 5. Lieber, “De l’unité des measures et étalons dans ses rapports avec le droit des gens et avec le droit et les rapports privés de nation a nation,” Revue de Droit

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International 2 (1871): 655; letter of August 21, 1868, to Johann Bluntschli, letter of June 11, 1864, to Charles Sumner, letter of September 8, 1867, to Samuel Hooper, in Perry, Life and Letters, pp. 389, 347, 374. Perry’s volume, prepared under the direction of Lieber’s widow Matilda Oppenheimer Lieber, must be employed with care; without warning to the reader, it often “corrected” Lieber’s English, excised material without ellipsis, and combined letters of several dates into one. The standard biography of Lieber today is by Friedel, Francis Lieber. Earlier biographical accounts include Lewis Harley, Francis Lieber: His Life and Political Philosophy (New York: Columbia University Press, 1899), and Ernest Nys, “Francis Lieber—His Life and His Work,” The American Journal of International Law 5 ( January 1911): 84–117; (April 1911): 355–93. See also Charles Robson, “Papers of Francis Lieber,” Huntington Library Bulletin 3 (February 1933): 135–56. 6. Letter of December 27, 1861, to Sumner, in Perry, Life and Letters, p. 325. 7. Letter of March 24, 1870, to Bluntschli; letter of August 27, 1837, to Sumner; Francis Lieber, Essays on Property and Labour, as Connected with Natural Law and the Constitution of Society (New York: Harper and Brothers, 1841); Francis Lieber, On Civil Liberty and Self-Government (London: Richard Bentley, 1853), pp. 28–29, 34 (hereinafter CL); Francis Lieber, Manual of Political Ethics, 2 vols., (Boston: Charles C. Little and James Brown, 1838) I: 7, 15–16, 32, 35–36, 107–14 (hereinafter MPE ). See also MPE, I: 417; letter of February 17, 1867, to Andrew Dickson White. Despite his rejection of Hobbes’s view of the natural human condition, Lieber supplied a (characteristically extended) list of blessings brought by society that paralleled Hobbes’ recounting of the benefits made possible by the peace sustained by the Leviathan, though Lieber’s summary gave its first attention to intangible satisfactions of association, as opposed to material goods: Without society, no fellow-feeling, no kindness and sympathy; without society, no public opinion, no shame, no virtue, no religion; without society, no impulse for industry, no mental development, no intellectual progress from generation to generation, no common stock of sciences, no common stock of moral experience, no literature, no taste, no music, no fine arts, no exalted love of the beautiful, no deep reflection, no refinement; without society, no expanded idea of justice and mutual respect of rights, property and independence; no public spirit and all that is connected with this elevating quality; without society, no extensive exchange of produce, of customs and ideas, no calming and enlarging commerce; without society, no saving of time, no increase of productiveness, no union of labor, of capital, of mind and various means, no works to benefit the many, no roads, no canals, no insurance against the elements, no schools, no protection; no cultivation to its greatest extent, no multiplied and animating enjoyments, no raising of the standard of comfort; without society, no great increase of numbers—without society, no humanity in man. (MPE, I: 140)

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8. Letter of February 17, 1867, to White; letter of August 27, 1837, to Sumner, in Perry, Life and Letters, p. 121; MPE, II: 217; Friedel, Francis Lieber, p. 154n. 9. MPE, I: 161–94, 411–16. See also letter of “Christmas 1841” to Rufus Choate in Perry, Life and Letters, p. 166; letter of August 22, 1871, to Sumner; “What Is Our Constitution—League, Pact, or Government?” and “Anglican and Gallican Liberty” in CPS, pp. 117–18, 369–88; MPE, I: 247, 363–64, 378, 385; Bernard Brown, American Conservatives: The Political Thought of Francis Lieber and John W. Burgess (New York: Columbia University Press, 1951), pp. 26–44; John Gunnell, The Descent of Political Theory: The Genealogy of an American Vocation (Chicago: The University of Chicago Press, 1993), pp. 24–34. Other terms for which Lieber claimed credit include nationalism, internationalism, city-state, interdependence, commonwealth of nations, and Pan-American. See Friedel, Francis Lieber, pp. 101, 102, 161–62, 179. Lieber’s Civil Liberty and SelfGovernment had as its subtext praise for Anglo-American institutions and criticism for the “autarchic” Imperial system of Napoleon III just as thoroughly as did Tocqueville’s Ancien Regime, and Lieber’s anti-Imperial asides only grew stronger between the first edition of 1853 and the second of 1859. 10. “Nationalism and Internationalism” and “What Is Our Constitution,” in CPS, pp. 96–97, 227–28. 11. Letter of April 15, 1870, to Hamilton Fish; “On the Idea of the ‘Latin Race’ and its Real Value in International Law” and “Suggestions on the Sale of Arms by the U.S. Government During the Franco-Prussian War,” in CPS, pp. 308–09, 311, 320; MPE, II: 8; CL, pp. 291–92. See also Frank Friedel, “Francis Lieber, Charles Sumner, and Slavery,” Journal of Southern History IX (1943): 75–93; Friedel, Francis Lieber, pp. 223–58, 357; Louis Sears, “The Human Side of Francis Lieber,” South Atlantic Quarterly 27 ( January 1928): 61; C.B. Robson, “Francis Lieber’s Nationalism,” Journal of Politics 8 (February 1946): 57–59; James Farr, “From Modern Republic to Administrative State: American Political Science in the Nineteenth Century,” in David Easton, John Gunnell, and Michael Stein, eds., Regime and Discipline: Democracy and the Development of Political Science (Ann Arbor: The University of Michigan Press, 1995), pp. 147–48. Lieber was emphatic in his article on the “Latin Race”: Some great and eminently leading nations—such as the Greek and the English— have been and are a mixture of varied tribes and races. There are, unquestionably, distinct characteristics belonging to different races; but it must never be forgotten that the tendency of all our civilization is to the greater and greater assimilation of these Cis-Caucasian races, and that all the noblest things—religion, truth, and science, architecture, sculpture, and civil liberty—are not restricted to races. To all these the mandate is given: Go into all the world. (CPS, pp. 308–09) 12. “Fallacies of Protection,” in CPS, p. 442; CL, pp. 273, 310–23; MPE, I: 100, II: 490; letter of April 23, 1854, to George Hillard, in Perry, Life and Letters, p. 272; James Farr, “Francis Lieber and the Interpretation of American Political Science,”

Notes

13.

14.

15. 16.

17. 18. 19. 20. 21.

22.

23. 24.

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Journal of Politics 52 (November 1990): 1036. See also C.B. Robson, “Francis Lieber’s Theories of Society, Government, and Liberty,” Journal of Politics 4 (May 1942): 227–49; Merle Curti, “Francis Lieber and Nationalism,” Huntington Library Quarterly 4 (April 1941): 263–92. Robson, “Francis Lieber’s Nationalism,” p. 72; “An Address on Secession” and “Nationalism and Internationalism,” in CPS, pp. 125–26, 228; letter of November 10, 1851, to the Times (London) on the Great Exhibition; letter of June 4, 1849, to Franz Mittermaier, in Perry, Life and Letters, p. 221. See also letters of June 30, 1864, to George Halleck, and of September 15, 1848, to Mittermaier. “What Is Our Constitution,” in CPS, pp. 96–97, 98, 101, 113; Joseph Dorfman and Rexford Guy Tugwell, “Francis Lieber: German Scholar in America,” Columbia University Quarterly XXX (September 1838): 159; CL, p. 33. CL, pp. 22, 41–42; “Nationalism and Internationalism,” in CPS, p. 237. MPE, I: 53, II: 612. See also Francis Lieber, Legal and Political Hermeneutics; on Principles of Interpretation and Construction in Law and Politics (Boston: C.C. Little and J. Brown, 1839). CPS, p. 442, cited in Farr, “Lieber and Interpretation,” p. 1036; MPE, II: 664–65. MPE, II: 651–53; CPS, p. 116. MPE, I: 245; II: 288–89. See also II: 651–53. Ibid., II: 478; I: 326–28; letters of October 11, 1869, and March 24, 1872, to Bluntschli. Letters of February 12, 1867, October 1, 1867, December 8, 1867, October 11, 1869, and March 24, 1872, to Bluntschli; letter of May 26, 1872, to Holtzendorf, cited in Dorfman and Tugwell, “Franz Lieber, German Scholar in America. Part II,” Columbia University Quarterly XXX (December 1938): 292, and in Perry, Life and Letters, pp. 424–25. Letters of June 1, 1861, July 28, 1870, August 14, 1870, August 15, 1870, August 16, 1870, August 17, 1870, August 18, 1870, August 22, 1870, and October 5, 1870, to Sumner; letters of February 8, 1862, and November 25, 1862, to Halleck; letters of May 29, 1869, October 1, 1870, and December 24, 1870, to Bluntschli; Francis Lieber, “No Party Now But All for Our Country” (Union League No. 19, Philadelphia, 1863), in Friedel, Francis Lieber, p. 347; “Suggestions on the Sale of Arms by the U.S. Government During the FrancoPrussian War,” in CPS, p. 311; Pierson, Tocqueville in America, p. 380. Dorfman and Tugwell, “Francis Lieber,” (September 1938): 189; MPE, II: 645–48; letter of April 18, 1854, to George Hillard. Lieber, Property and Labour, p. 212; Russell Thayer, “The Life, Character and Writings of Francis Lieber: A Discourse Delivered Before the Historical Society of Pennsylvania, January 13, 1873” (Philadelphia: Collins, Printer, 1873), p. 40; letter of October 8, 1871, to Samuel Ruggles, cited in Sears, “The Human Side of Francis Lieber,” p. 61; MPE, II: 84. See also Brian Schmidt, The Political

138

25.

26.

27.

28.

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Discourse of Anarchy: A Disciplinary History of International Relations (Albany: State University of New York Press, 1998), pp. 47–52. CL, p. 250; letters of August 20, 1857, and August 6, 1858, to Ruggles, cited in Sears, “The Human Side of Francis Lieber,” p. 55; “Suggestions on the Sale of Arms,” in CPS, p. 319; Property and Labour, pp. 36–37; MPE, II: 649, 657. Lieber told Ruggles, “Were I a clerguman [sic] I should certainly have spun a long pulpit yarn from this blessed cable” (letter of August 20, 1857, cited in Sears, p. 55). As early as 1840, he wrote a long letter to Senator William Preston of South Carolina advocating international copyright protection; at his own expense, he had the letter printed as a pamphlet in which, referring to the situation in the United States as it then stood, in which foreign authors had no copyright to their works in the United States, he asked, “Is this a state of civilization, that is, of mutual, candid acknowledgment of justice, fairness, liberality? Or is it a state of barbarity, of pilfer and plunder, meanness and violence?” (“On International Copyright, in a Letter to the Hon. William C. Preston,” in CPS, pp. 358–59). “Nationalism and Internationalism,” in CPS, pp. 241–42; “Notes on Fallacies of American Protectionists,” in CPS, pp. 394, 399–400. Lieber’s similarity to Kant on this question did not prevent him from dismissing On Perpetual Peace with the words, “This paper, much as there is contained in it for reflection, belongs certainly to the weaker productions of that philosopher” (MPE, II: 653). “Fallacies of Protectionists,” in CPS, pp. 394, 402, 410–12, 435; Friedel, Francis Lieber, pp. 132, 136, 191, 223, 344, 410; Tocqueville, letter of October 22, 1842, to his brother Edouard, in OC, XIV, p. 231; Lieber, Property and Labour, p. 60; “De l’unité des mesures,” pp. 651–58; letter of January 26, 1872, to Sumner; letter of October 8, 1871, to Ruggles, cited in Sears, p. 61. Lieber expressed this idea of inevitability more colorfully in a private letter in which he declaimed, “Free Trade is the distinct course of history. … a hundred years hence … protection will be looked upon as the exceptional deviation and with the same surprise as we look upon the beauty-patches of our great-great-grand-mothers” (letter of June 20, 1865, to Allibone). See also letter of July 1, 1856, to Allibone, and of November 2, 1860, to Oscar Lieber, in Perry, Life and Letters, p. 314; Francis Lieber, “Free Trade and Other Things: A Philosophical Tutti Frutti,” DeBow’s Review XV (1853): 53–65. “On International Copyright,” in CPS, pp. 356–57; “Suggestions on the Sale of Arms,” in CPS, p. 320; letters of April 23, 1847, to Ruggles (cited in Sears, “The Human Side of Francis Lieber,” p. 47), of April 2, 1867, to Andrew Dickson White, of April 9, 1867, to Sumner (cited in Perry, Life and Letters, p. 370), and of October 11, 1869, to Bluntschli. He urged Sumner to send to European scholars copies of “your Domingo speech” opposing the purchase of Santo Domingo (letter of March 29, 1871), but he did favor making the cession of California a condition of any treaty of peace with Mexico in 1847, on the grounds that California, unlike Mexico proper, had no unassimilable population, and the few existing inhabitants were making no proper use of it. (Friedel,

Notes

29. 30.

31.

32.

33.

34.

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Francis Lieber, pp. 227–28, points out the contradictions in which this stand involved Lieber. See also Dorfman and Tugwell, “Francis Lieber,” September, 1938, p. 177.) The phrase is that of Brown, in American Conservatives, p. 53. CL, pp. 25–26, 249; “Fallacies of Protectionists,” in CPS, p. 401. In the latter passage, Lieber was attempting to refute the argument that certain industries deserved protection because they would be strategically important in time of war; going beyond Adam Smith, Lieber answered that the benefits of free trade in peacetime were the norm, which should not be sacrificed to the exceptional case of war. “The Ancient and the Modern Teacher of Politics,” in RAE, p. 370; letter of July 22, 1870, to Martin Russell Thayer, in Perry, Life and Letters, p. 397. See also Lieber’s Preface to Gustave de Beaumont and Alexis de Tocqueville, On the Penitentiary System in the United States and Its Application in France, translated, with an introduction, notes, and additions by Francis Lieber (Philadelphia: Carey, Lea & Blanchard, 1833), p. xxv. “Certainly Lieber’s anti-Catholicism was largely an outgrowth of his ardent nationalism;” that is, his life-long suspicion of the Roman Catholic Church was founded on his reading of history, which told him that in the past the Church had acted as a universal monarchy, and his fear that it harbored the ambition to do so again (Friedel, Francis Lieber, p. 408). Quotation from “M. Ancillon, Tableau des Revolutions du Système politique de l’Europe, Part I, Tom 1, p. 68,” in MPE, I: 413; “The Ancient and the Modern Teacher of Politics,” in RAE, p. 382. “International Arbitration,” in CPS, pp. 324, 325, 328; letter of May 15, 1870, to Fish, cited in Dorfman and Tugwell, “Francis Lieber,” December 1938, p. 290; “History and Political Science Necessary Studies in Free Countries,” in RAE, p. 367; “On International Copyright,” in CPS, pp. 354, 358–59; “The Character of the Gentleman,” in RAE, p. 267; letter of February 11, 1871, to the Nation, in CPS, p. 322; letter of April 29, 1870, to Sumner. Review of “Fragments of Political Science on Nationalism and Internationalism,” in Revue de Droit International I (1869): 297 (possibly written by Gustave RolinJaequemyns, the editor); letters of February 14, 1838, to Sumner, and of May 7, 1869, to Thayer; “History and Political Science” in RAE, p. 349; “Nationalism and Internationalism,” in CPS, p. 242. See also letters of December 15, 1866, to White, of January 4, 1870, to Sumner, and of March 24, 1872, to Bluntschli. On Lieber’s confidence in the power of opinion in shaping events, and of publicists in shaping public opinion, see MPE, I: 184–85, 256, II: 497, 651–53; RAE, p. 373; CPS, pp. 320–22, 326–29, 443; letters of May 21, 1863, of June 2, 1863, of March 10, 1864, and of November 16, 1865, to Halleck; James Childress, Moral Responsibility in Conflicts: Essays on Nonviolence, War, and Conscience (Baton Rouge: Louisiana State University Press, 1982), pp. 103, 161. Ernest Bruncken recalled Lieber as “one of the few men who have carried international law a goodly step forward on the road towards becoming a real body of consistent rules compelling universal acceptance by their inherent reason, instead

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35.

36.

37.

38.

39.

40.

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Notes

of being a conglomerate of pious wishes and vague preachments” (“Francis Lieber: A Study of a Man and an Ideal,” Deutsch-Amerikanische Geschichtsblatter Jahrbuch der Deutsch-Amerikanischen Historischen Gesellschaft von Illinois 15 (1915): 21). Letter of July 3, 1851, “To the Editors of the Times Newspaper (London).” See also “The Crystal Palace and the Men of 1851,” in Asa Briggs, Victorian People: A Reassessment of Persons and Themes 1851–1867 (Chicago: The University of Chicago Press, 1955; revised ed., 1972), pp. 15–51. Lieber’s final characteristic touch was a second letter, written when he discovered that the committee responsible for organizing the Exhibition had generated surplus funds at its conclusion and was seeking suggestions for their use, in which he advocated sponsoring a series of publications to advocate a worldwide system of uniform weights and measures (letter of November 10, 1851, to the Times (London)). Friedel, pp. 241– 42, 298–314, 342–50; “No Party Now,” p. 11; letters of March 4, 1863, and May 20,1863, to Halleck; letters of June 1, 1861, and February 7, 1866, to Sumner; Dorfman and Tugwell, “Francis Lieber,” December 1938, pp. 278–83. Robson, “Francis Lieber’s Nationalism,” p. 61; “General Orders No. 100,” arts. V, XV. “The Lieber Code” has been reprinted in many places, including CPS, pp. 245–74; Leon Friedman, ed., The Law of War: A Documentary History, 2 vols. (New York: Random House, 1972), I: 158–86; and Richard Hartigan, Lieber’s Code and the Law of War (Chicago: Precedent Publishing, 1983), pp. 45–71. Hartigan also reprints a selection of correspondence and documents relating to the code. Friedel, Francis Lieber, pp. 320–31; letters of August 10, 1862, of August 11, 1862, and of September 1, 1862, to Halleck. The rules on guerillas may be found in CPS, pp. 275–92. Frank Friedel, “General Orders 100 and Military Government,” Mississippi Valley Historical Review 32 (March 1946): 541–56; Friedel, Francis Lieber, pp. 322–24, 331–32; letter of November 13, 1862, to Halleck. Friedel, Francis Lieber, pp. 332–35; letters of February 20, 1863, and April 10, 1863, to Halleck. Halleck did require Lieber to add one section, on the peculiar problems presented by civil wars, rebellions, and insurrections. Lieber, calling it “ticklish work,” submitted six pages; Halleck, his editorial pencil as sharp as ever, reduced them to several paragraphs (Friedel, Francis Lieber, p. 334). Lieber’s original decision not to include special rules governing civil conflicts, along with his reliance on precedents from European interstate wars, demonstrates that, despite his great reluctance to make any statement that even implied granting the Confederacy an international personality and belligerent status, he did recognize that the Civil War bore some resemblances to international war in that it was to a large extent carried on between organized territorial units with established political authorities. See also Richard Baxter, “The First Modern Codification of the Law of War: Francis Lieber and General Orders No. 100,” International

Notes

41.

42.

43. 44. 45.

46.

47.

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Review of the Red Cross (April 1963): 170–89; (May 1963): 234–50; Michael Hoffman, “The Customary Law of Non-International Armed Conflict: Evidence from the United States Civil War,” International Review of the Red Cross 30 ( July–August 1990): 322–44; George Haimbaugh, “Introduction to Panel II: Humanitarian Law: The Lincoln-Lieber Initiative,” Georgia Journal of International and Comparative Law 13 (1983): 245–51. Friedel, Francis Lieber, pp. 305–06, 324, 335; MPE, II: 645. Selections from the Columbia lectures on the laws and usages of war had been printed in the New York Times on January 13, 1862 (p. 8), February 10, 1862 (p. 3), February 16, 1862 (p. 3), and March 17, 1862 (p. 2). It was in fact just at the outset of his work on the code, on December 16, 1862, that Lieber received confirmation of the rumors that his eldest son had been killed that summer fighting for the Confederacy at the Battle of Williamsburg (Friedel, Francis Lieber, p. 326). Letter of February 20, 1863, to Halleck; MPE, II: 647–48, 653–54; “General Orders 100,” arts. XXIX, XXX. For a highly useful analysis of General Orders 100 and a comparison of its ideas with those that Lieber had expressed elsewhere, see “Francis Lieber’s Interpretation of the Laws of War,” in Childress, Moral Responsibility in Conflicts, pp. 95–163. MPE, II: 660–61. “General Orders 100,” arts. XXIX, XXX. Ibid., arts. XXX, XL. “Custom, not convention, contained the rules at the time Lieber was writing,” says James Garner, “General Order 100 Revisited,” Military Law Review 27 (January 1965): 8. “General Orders 100,” arts. XXII, XXV, XXIX. For other examples of rules protecting noncombatants, see arts. IV, XXIII, XXXIII-XXXV, XXXVII, XXXVIII, XLIV, XLVII, CXVIII, CXLVIII. Among the instances in which the code might appear less than enlightened in contemporary eyes is its willingness to sanction the starvation of “the hostile belligerent,” whether “armed or unarmed,” the driving of noncombatants back into a besieged city short of provisions “so as to hasten on the surrender”, and the seizure of art works from the defeated enemy as spoils of war or as punishment. See arts. XVII–XXI, XXXVI; Theodor Meron, “Francis Lieber’s Code and Principles of Humanity,” in Jonathan Charney et al., eds. Politics, Values and Functions: International Law in the 21st Century, Essays in Honor of Professor Louis Henkin (The Hague: Kluwer Law International, 1997): 251–53. Meron adds, nevertheless, in words that Lieber would take as an endorsement of his conviction that international law progresses as leaders and peoples are persuaded of the natural justice of a standard, “Rather than any one technical or detailed rule, the Lieber Code’s foundation in broad humanitarian principles explains its tremendous impact both on later multilateral treaties codifying the laws of war and on the development of customary law” (p. 253). “General Orders 100,” arts. XVI, XLIX–LIII, LV, LXI, LXVIII–LXXIII, LXXV–LXXXI, CIV; MPE, II: 658–59; Childress, Moral Responsibility in Conflicts, pp. 129–32, 143– 46.

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48. “General Orders No. 100,” arts. XI, XV, XVI, LXIII–LXVI, LXXXII, LXXXIII, CI, CVII, CXIV–CXVII, CXXVI. The code did prohibit “the use of poison in any way” (arts. XVI, LXX). See also Childress, Moral Responsibility in Conflicts, pp. 132–34; MPE, II: 661–62; letter of October 3, 1863, to Halleck. 49. Letters of October 3, 1863, October 7, 1863, and April 19, 1864, to Halleck. See “General Orders No. 100,” arts. XXVII, XXVIII. 50. Friedel, Francis Lieber, p. 300; letters of May 20, 1863, June 2, 1863, August 3, 1863, October 15, 1864, February 11, 1865, and April 16, 1865, to Halleck. 51. Letters of May 20, 1863, October 3, 1863, and October 4, 1863, to Halleck; Friedel, Francis Lieber, pp. 335–41; Meron, “Francis Lieber’s Code,” p. 258; Elihu Root, “Francis Lieber,” in Root, Addresses on International Subjects, compiled and edited by Robert Bacon and James Brown Scott (Cambridge: Harvard University Press, 1916), p. 93. See also George Davis, “Memorandum Showing the Relations Between General Orders No. 100 and the Hague Convention with Respect to the Laws and Customs of War on Land,” American Journal of International Law VII (July 1913): 466–70; Hartigan, Lieber’s Code and the Law of War. 52. Letter of October 3, 1863, to Halleck. See also George Davis, “Doctor Francis Lieber’s Instructions for the Government of Armies in the Field,” American Journal of International Law I ( January 1907): 13–25. 53. The ten articles of the proposed treaty establishing the tribunal and an extended discussion of them by Moynier may be found with Lieber’s letter of April 10, 1872, to G.-H. Dufour. The terms of the treaty, along with a summary of Moynier’s explanation, a further introduction by Gustave Rolin-Jaequemyns, and letters of response from Lieber and three other authorities on international law, may also be found in Revue de Droit International 4 (1872): 325–46. 54. Letter of April 10, 1872, to Dufour. For a very different interpretation of Grotius’ writings, which—precisely contrary to Lieber’s view—sees them as carefully calculated to advance their author’s political ambitions, see C.G. Roelofsen, “Grotius and the International Politics of the Seventeenth Century,” in Hedley Bull, Benedict Kingsbury, and Adam Roberts, eds., Hugo Grotius and International Relations (Oxford: Clarendon Press, 1990), pp. 95–131. 55. Letter of April 10, 1872, to Dufour. See letters of December 27, 1861, January 4, 1870, and August 14, 1870, to Sumner, of June 18, 1864, to Halleck, of April 16, 1866, and March 24, 1872, to Bluntschli, of May 7, 1869, to Thayer, and of December 15, 1866, to White. I am indebted to Professor Adam Roberts for pointing out that Lieber’s optimism concerning the capacity of national governments to see to the implementation of the laws of war was not only widely shared in his time, but continued to dominate international lawmaking up to and including the Hague Conferences of 1899 and 1907. Only gradually thereafter did provisions for implementation by other means begin to assume significance, leading up to the current proposed International Criminal Court, with precisely the power to try individuals that so disturbed Lieber

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(though only in cases in which national authorities have failed to apply the laws of war against their own forces). The case for the ICC is based on the contention that Lieber was overly optimistic in thinking that all states, or even all great powers, could be relied on to act effectively to curb abuses of the law. 56. See Meron, “Francis Lieber’s Code,” p. 258.

Chapter 4


1. Ruggiero, History of European Liberalism, p. 441. 2. Jardin, Tocqueville, p. 310. 3. Letter of March, 1871, to Thayer, cited in Friedel, Francis Lieber, pp. 415–16; “Physics and Politics: Or Thoughts on the Application of the Principles of ‘Natural Selection’ and ‘Inheritance’ to Political Society,” in CW, VII: 17–144 (hereinafter CW ). For biographical treatments of Bagehot, see St John-Stevas, Walter Bagehot, pp. 1–117; Alistair Buchan, The Spare Chancellor. 4. “Average Government” (March 29, 1856), CW, VI: 87; “The Non-Legislative Functions of Parliament” (August 18, 1860), CW, VI: 41– 44; “The Indian Viceroyalty” (December 5, 1863), CW, VIII: 336; “The Quarterly Review on the Lessons of the War” ( January 28, 1871), CW, VIII: 70; “Compulsion and Education” (December 14, 1867), CW, VII: 382–85; Physics and Politics, CW, VII: 117–18; “Prince Bismarck’s Last Speech” (March 27, 1875), CW, VIII: 272–73; “The Provisional Government: Its Advantages and Its Dangers” (March 25, 1865), CW, VII: 157, 159. See Bagehot’s discussion of what he called “the lyrical function” and “the informing function” of the House of Commons, in The English Constitution, CW, V: 311–15. When he made his second unsuccessful attempt at election to Parliament from the University of London seat in 1867, he stated in his election address, “After the first Reform Act, the cry was ‘Register! Register! Register!’ The cry should now be, ‘Educate! Educate! Educate!’ ” (CW, X: 394) 5. “Mr. Gladstone” (July 1860), CW, III: 429; “The Present Majority in Parliament” (May 22, 1869), CW, VII: 186; “The Metaphysical Basis of Toleration” (February 10, 1874), CW, XIV: 61; Gordon Lee, “A Voice of Sanity: Walter Bagehot, 1826–1877” (The Economist Newspaper Limited, 1996), p. 14. See also Bagehot’s youthful avowal to his mother of his “delight” at Metternich’s resignation in the face of the upheavals of 1848: “If any one believes in old diplomatic, despotic governments now, they must be strangely insensible to facts: the oldest, the strongest, the ablest cannot stand a riot in Vienna not much stronger in itself, than those in Trafalgar Sq[uar]e. It shows the weakness of the system, and of every system which counts for nothing the opinions and convictions of the great mass of its most intelligent subjects.” He applied the same lesson to the earlier fall of Louis Philippe. Letter of March 24, 1848, to Edith Bagehot, CW, XII: 272. Cf. Lieber’s assertion that free governments, because they could call on the energies of their citizens, were strongest.

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6. “Thinking Government” (April 19, 1856), CW, VI: 91–92; Physics and Politics, CW, VII: 122–27. See also “On the Emotion of Conviction” (a paper delivered on December 13, 1870, to the Metaphysical Society) in CW, XIV: 46–57, for an elaboration of Bagehot’s argument that the desire to believe and act on something far outran the evidence to support such beliefs. 7. “Shakespeare—The Individual” (July 1853), CW, I: 202–03; Emilie Isabel [Mrs. Russell] Barrington, Life of Walter Bagehot (London: Longmans, Green and Co., 1914), p. 12; “Plurality of Votes: The True Principle of a Reform Bill” (March 24, 1860), CW, VI: 325. See the entire series of articles Bagehot wrote on parliamentary reform in CW, VI: 181–404. See also “The Crédit Mobilier and Banking Companies in France” (January 1857), CW, X: 356–57; “The Orton Demonstrations” (April 3, 1875), CW, VII: 241–44; “Politics and Ideology: The Reform Act of 1867,” in Gertrude Himmelfarb, Victorian Minds (London: Weidenfeld and Nicolson, 1968), pp. 333–92. 8. “Parliamentary Reform” (January 1859), CW, VI: 189; “The Indian Viceroyalty,” pp. 335–39. This necessity was of course one reason why Bagehot wished the country to refrain from acquiring colonies. 9. Barrington, Life, p. 420; “France and the Money Market” (December 14, 1867), CW, VIII: 175. See also “France or England” (September 5, 1863), CW, IV: 89–94. 10. “Prince Bismarck’s Last Speech” (March 27, 1875), CW, VIII: 271; “Prince Bismarck’s Foreign Policy” (April 10, 1875), CW, VIII: 276; “Prince Bismarck on Cabinets” (December 4, 1875), CW, VIII: 282; “No More Guarantees” (October 22, 1870), CW, VIII: 194. 11. “Béranger” (October 1857), CW, II: 11; “An ‘Anglo-Saxon Alliance’ ” (January 2, 1875), CW, VIII: 357. See also letters of December 7, 1851, to Edith Bagehot, and of “December 1851,” to Hutton, in CW, XII: 326, 328. Cf. Tocqueville’s remark in conversation with Senior in 1857—“It is scarcely possible for a man to be original in any language but his own; in all others he is forced to say what he can, and that is generally something he recollects.” (Correspondence and Conversations, II: 169.) 12. “The Conservative Incapacity for Dealing with a Composite Empire” (March 27, 1869), CW, VIII: 101, 104. 13. “The Gains of the World by the Two Last Wars in Europe” (August 18, 1866), CW, VIII: 157; “The Political Aspect of the Oecumenical Council” (December 11, 1869), CW, VIII: 170. 14. “The Meaning and the Value of the Limits of the Principle of Nationalities” (June 18, 1864), CW, VIII: 149–53; “The Gains of the World,” pp. 157–58; “The Death of Count Cavour” (June 8, 1861), CW, IV: 455–58. Bagehot believed that Italian and German unification benefited the world because it produced not only homogeneous states but also large states. Here again, his emphasis was on the effect that political structures had on the quality of the

Notes

15. 16. 17.

18.

19. 20.

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discussion that went on within them. Large states held greater aims and ambitions, were bound by greater responsibilities—played for greater stakes—than their smaller counterparts, and “the magnifying effect of a great career will ennoble powerful nations, [but] the deteriorating consequences of a petty life will render small nations more and more ignoble.” Bagehot was quite clear that “[s]mall politics debase the mind just as large politics improve it,” and he looked forward to a future in which “the diffused participation in elevating excitement” would “raise and rouse the minds engaged in [it], while the effect of the minute old sort [of politics] was often to cramp and lower them” (“The Gains of the World,” pp. 155–57). “An ‘Anglo-Saxon Alliance,’ ” p. 358; “Adam Smith as a Person” (July 1, 1876), CW, III: 104. Letters on the French Coup d’Etat of 1851 (January–March 1852), CW, IV: 36, 84; “The Metaphysical Basis of Toleration,” p. 72. “Mr. Gladstone,” pp. 421–22, 439. Another advantage of national unification was that it tended to result in the creation of larger, more defensible states. “Nations are becoming indestructible,” and this ability to resist attack would deter war. The fact that this trend was important, however, showed that war remained an easily imaginable facet of international life. See “The Gains of the World,”pp. 154–55. “The Common Sense of International Law: Recognition” (July 4, 1863), CW, IV: 383–86; Physics and Politics, CW, VII: 109; “Prince Bismarck and Spain” ( January 16, 1875), CW, VIII: 264–68; “The Ignorance of Man” (April 1862), CW, XIV: 109. “What Should be our Present Policy in the East” (February 17, 1877), CW, VIII: 311; “No More Guarantees,” pp. 194–95. “Inconvincible Governments” (June 21, 1856), CW, VI: 104–07; “The State of Parties” (February 7, 1863), CW, VII: 149; “No More Guarantees,” p. 195. Bagehot held that publicizing international disagreements worsened them, and therefore diplomatic correspondence both in the initial stages of a developing issue, before any commitment had been made, and in the stage of implementation, once a commitment had been undertaken, was necessarily confidential. Only the intermediate stage, when the country was called on to shoulder a formal commitment, could be conducted in public: “In domestic questions the nation can watch a political topic from the beginning to the end; in foreign questions it assists only at the second act” (“The State of Parties,” p. 151). Bagehot did admit, “On some subjects (possibly, for example, on simple questions of foreign policy) the views of self-taught men may be very valuable, for their moral instincts sometimes have a freshness rarely to be found” (“Parliamentary Reform,” p. 197). See also “No More Guarantees,” p. 193; “King Leopold” (December 16, 1865), CW, IV: 447–50; “Aristocratic and Unaristocratic Statesmen” (April 28, 1855), CW, XIV: 210; “The Re-Election of

146

21. 22. 23.

24. 25.

26.

27. 28.

29.

30.

31.

32. 33.

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Notes

General Grant to the American Presidency” (November 9, 1872), CW, VIII: 352–53. “Inconvincible Governments,” pp. 104 –07. “Shall the Blockade be Respected?” ( January 25, 1862), CW, IV: 351. Ibid., pp. 351–52. The text of the Declaration of Paris of 1856 may be found in Friedman, ed., The Law of War, I: 156–57. See the series of editorials by Bagehot on the Civil War, almost all of which appeared in the Economist running from January 1860 to December 1867, including such topics as “The Legal Relation of England and of Individual Englishmen to the Civil Struggle in the United States” and “The Common Sense of International Law: Recognition,” in CW, IV: 195–429. See also Michael Churchman, “Bagehot and the American Civil War,” CW, IV: 179–94. Whether Bagehot was correct in asserting that the consumption of tea was “indispensable” to Great Britain is, perhaps, not a question that need be decided by an American here. “The Declaration of Paris” (March 17, 1877), CW, VIII: 72–76. “What Should Not be the Policy of England in the East” (October 21, 1876), CW, VIII: 306. But see “Mr. Mill’s Address to the Electors of Westminster” (April 29, 1865), CW, III: 543. “Our Duty” (November 30, 1861), CW, IV: 329, 333. See also “Peace or War with America?” (January 1862), CW, XIV: 247– 48. In the event, the British government, with Bagehot’s support, settled for the release of the Confederate emissaries and little else. “The Chinese Difficulty” (October 9, 1875), CW, VIII: 346. “Dissolution of the Union as Regards America” (January 26, 1861), CW, IV: 221; “The ‘Monroe Doctrine’ in 1823 and 1863” (November 14, 1863), CW, IV: 97–99; “The Disruption of the Union, as it would affect England” (January 19, 1861), CW, IV: 213–14; “English Feeling towards America” (September 28, 1861), CW: 327–28. “The Danger of Lending to Semi-Civilised Countries” (November 23, 1867), CW, X: 420–21; “The Declaration of War by France” (July 16, 1870), CW, IV: 153. “The Unseen Work of Parliament” (February 9, 1861), CW, VI: 47; “The Suez Canal and the English Government” (February 12, 1876), CW, VIII: 326. See Byron Dexter, “Bagehot and the Fresh Eye,” Foreign Affairs 24 (October 1945): 108–18. “Count Your Enemies and Economise Your Expenditure” (1862), CW, VIII: 45–58. See also “The Limit of Defensive Outlay” (April 26, 1862), CW, VIII: 59–64. “The German Terms of Peace” (March 4, 1871), CW, VIII: 251; “The Crédit Mobilier,” p. 370; “A Universal Money” (1869), CW, XI: 65. “The Report of the Commissioners Appointed to Inquire into the State of Popular Education in England” ( June 29, 1861), CW, VII: 373–74; “Mr. John Morley on Education” (October 14, 1876), CW, VII: 445; “Béranger,” p. 11.

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34. “The American Difficulty” (December 23, 1876), CW, VIII: 370; Letters on the French Coup d’état, p. 84; letter of December 1, 1857, to Eliza Wilson, in Emilie Isabel [Mrs. Russell] Barrington, ed., The Love-Letters of Walter Bagehot and Eliza Wilson (London: Faber and Faber, 1933), p. 53, reprinted in CW, XIII: 417–18. See also “Trollope, Bagehot, and the English Constitution,” in Briggs, Victorian People, pp. 87–115. 35. “Walter Bagehot” (October 1877), CW, XV: 119; letters of February 26, 1846, to Edith Bagehot, and of January 13, 1856, to Hutton, CW, XII: 208–09, XIII: 379–80. Only in the case of Poland was Bagehot’s preference for the sin of omission over the sin of commission even temporarily shaken: Even the languid blood of England is beginning to be stirred to its depths by the brutalities it reads of, by the obvious resolve to proceed to something like the utter extermination of a whole people, and by the savage and unmanly severity with which that resolve is being carried out. We are beginning to ask ourselves whether Europe can stand by and see such things done, and whether, though we are hopeless of doing much good, we are not “verily guilty concerning our brother” if we permit the perpetration of so much evil. … If negotiation can do nothing in this matter, it is evident that a general and desperate war can only be averted by the passive witnessing and almost the tame connivance on the part of England and France in the consummation of a great iniquity and a cruel wrong. (“The State of Europe” (January 1864), CW, XIV: 268)

36.

37.

38.

39.

As can be seen, even in the case of a humanitarian intervention morally demanded against “the utter extermination of a whole people,” Bagehot did not hold out much hope of doing any good, and in the event Britain did not intervene and Bagehot did not publicly comment further. “The Legal Relation of England and of Individual Englishmen to the Civil Struggle in the United States,” p. 252; “The State of Parties” (April 2, 1864), CW, XIV: 289; “Lord Palmerston” (October 21, 1865), CW, III: 277; report of the Bridgewater Mercury (June 13, 1866) on Bagehot’s speech (June 5, 1866), in CW, XIV: 367. “No More Guarantees,” pp. 195–96; “The Present War and the English Defences” (October 1, 1870), CW, VIII: 65; “The Chinese Difficulty,” pp. 348–49. “The Liberal Creed as to Government by the Sword” (October 13, 1860), CW, XIV: 232, 233; letter of July 6, 1873, to J.E. Cairnes, CW, XIII: 646; “Walter Bagehot” (Dictionary of National Biography in CW, XV: 130). “The Gains of the World by the Two Last Wars in Europe,” p. 160; “Prince Bismarck’s Interference in France” (January 24, 1874), CW, VIII: 260, 263; “Prince Bismarck’s Last Speech,” p. 272; “Prince Bismarck’s Foreign Policy” (April 10, 1875), CW, VIII: 276. Likewise, although he was far more sympathetic toward that other autocrat, Napoleon III, Bagehot noted that “his most pernicious characteristic is his restlessness” (“The State of Europe,” p. 275).

148

40.

41.

42.

43.

44.

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See also Kenneth Wheare, “Walter Bagehot: Lecture on a Master Mind,” Proceedings of the British Academy LX (London: Oxford University Press, 1974), p. 9. Letter of March 18, 1855, to Martineau, in CW, XIII: 364; XIV: 413, 418. See also “The Disruption of the Union, as it Would Affect England,” p. 213; “The Sinking Fund: Its New Aspect” (May 22, 1858), CW, XIV: 76–78; “Civil War in America and the attitude of England” (April 27, 1861), CW, IV: 244. By and large, Bagehot’s political sympathies expressed themselves in downplaying criticism of Liberal governments, rather than heightening criticism of Conservative governments. For a thorough examination of Bagehot’s years with the Economist, including the effect of the fact that the founder of the journal, and Bagehot’s father-in-law, was James Wilson, a member of Palmerston’s governments, see Ruth Edwards, The Pursuit of Reason: The Economist 1843–1993 (London: Hamish Hamilton, 1993), pp. 168–227. See the six editorials—“The Financial Effect of the Suez Canal Purchase,” “The Political Effect of the Suez Canal Purchase,” “The Suez Canal Purchase as Far as We Yet Understand It,” “The Suez Canal and the English Government,” “Sir Stafford Northcote on the Suez Canal Purchase,” and “The Debate on the Purchase of the Suez Canal Shares”—in CW, VIII: 313–34; letter of December 10, 1875, to Earl Grey, CW, XIII: 674–75. See the eight editorials Bagehot published on the matter—“Lord Derby on the Principalities and Turkey,” “The Cloud in the East,” “Mahometan Government,” “Lord Derby on the Eastern Question,” “The Increasing Difficulties in the East of Europe,” “What Should not be the Policy of England in the East,” “Lord Beaconsfield at the Mansion House,” “What Should be Our Present Policy in the East”—in CW, VIII: 283–312. “When Disraeli took office in 1874,” a sympathetic biographer has stated, “it is doubtful whether he had any clear ideas on foreign policy other than doing something—it did not much matter what—to reassert Britain’s power in Europe,” the very attitude that Bagehot distrusted. See Robert Blake, Disraeli (London: Eyre and Spottiswode, 1966), p. 571. (See also, at p. 646, Blake’s list of the qualities shared by Disraeli and Bismarck—all of which Bagehot deplored.) On the other hand, Bagehot has been described as “cold” toward Gladstone’s anti-atrocity agitation; Bagehot favored nonintervention, not reforming involvement. See R.T. Shannon, Gladstone and the Bulgarian Agitation 1876, 2nd ed. (Hamden, Connecticut: Archon Books, 1975), p. 153. Ironically, though Bagehot could not know it, of all the major political figures on the scene, Derby, whom Bagehot praised as “an admirable foreign minister when it is desirable to throw cold water on an active policy,” held the views closest to his own. The Foreign Secretary’s objections to the increasing bellicosity of the Disraeli Government led to his resignation a year following Bagehot’s death, in March 1878. See Andrew Roberts, Salisbury: Victorian Titan (London: Weidenfeld and Nicolson, 1999), pp. 149–88.

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45. “The Increasing Difficulties in the East of Europe” (October 7, 1876), pp. 301–03; “What Should Not be the Policy of England in the East” (October 21, 1876), pp. 304–05. 46. “The Cloud in the East” (November 20, 1875), p. 288; “Lord Derby on the Eastern Question” (September 16, 1876), pp. 298–99; “What Should Not be the Policy,” p. 307. 47. “The Increasing Difficulties,” p. 303; “What Should be Our Present Policy in the East” (February 17, 1877), p. 311. Again, though Bagehot was not aware of it, Salisbury, who replaced Derby as foreign secretary, was making just the same argument on Constantinople within the Cabinet that Bagehot was propounding in the Economist. 48. “The Cloud in the East,” p. 289; Hutton, “Walter Bagehot,” CW, XV: 105, 119; Hutton, “Walter Bagehot,” CW, XV: 133. See also “Bagehot on Foreign Affairs—Introductory Note,” CW, VIII: 142–44. 49. Hutton, “Walter Bagehot,” CW, XV: 105; “The Ignorance of Man,” pp. 93–115; “Mr. Clough’s Poems” (October 1862), CW, II: 244. See also William Irvine, Walter Bagehot (London: Longmans, Green and Co., 1939), pp. 195–228; John Halstead, “Walter Bagehot on Toleration,” Journal of the History of Ideas XIX (January 1958): 119–28. 50. “The Late Lord Clarendon” (July 2, 1870), CW, III: 528. 51. “Prince Bismarck’s Interference in France,” p. 263.

Chapter 5


1. George Kennan, American Diplomacy 1900–1950 (Chicago: University of Chicago Press, 1951), p. 89. 2. See, for example the argument by Daniel Patrick Moynihan in The Law of Nations (Cambridge, Massachusetts: Harvard University Press, 1990) that the world has come round to a second Wilsonian moment, perhaps more favorable than the first, in which international law and collective security can find their fulfillment and world politics can be reconstructed along liberal lines. 3. This despite Sisson’s astringent insistence that Bagehot had no sense of the national community, but was only a spokesman for a class, or even for a particular interest (that of banking) within a class. 4. The quotations are from Razeen Sully, Classical Liberalism and International Economic Order: Studies in Theory and Intellectual History (London: Routledge, 1998), p. 57. 5. For an eloquent example, see Andrew Linklater, Men and Citizens in the Theory of International Relations, 2nd ed. (London: Macmillan, 1990). 6. Sully, Classical Liberalism, p. 185. 7. See “Lady Mary Wortley Montague” (January 1862), CW, II: 221. 8. Mervyn Frost, “Global Civil Society: An Ethical Profile,” in Hovden and Keene, eds., The Globalization of Liberalism, p. 163.

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9. See the contrasts he drew between what 20 “savages” could produce and what 20 Englishmen could produce, and between the domestic comfort of medieval and that of Victorian homes. (Physics and Politics, CW, VIII: 135–36; “The Waverley Novels” (April 1858), CW, II: 63–64. 10. Souvenirs, OC, XII: 95–96; Boesche, “Tocqueville and Le commerce,” pp. 277–92. 11. See Property and Labour; Dorfman and Tugwell, “Francis Lieber” (September 1938), pp. 172–74; Friedel, Francis Lieber, pp. 191–96. 12. See Bagehot’s attack on the socialism of John Ruskin as “muddiness and fallacy,” “nonsense,” and a “farrago of absurdities,” in “Aesthetic Twaddle versus Economic Science” (August 18, 1860) and “The Merchant’s Function” (August 25, 1860), CW, XIV: 315–29. 13. “Count Your Enemies” (1862), CW, VIII: 54–56. 14. Tom Young, “‘A Project to be Realized’: Global Liberalism and a New World Order,” in Hovden and Keene, eds., The Globalization of Liberalism, p. 174. 15. See Martin Wight, International Theory: The Three Traditions, ed. Gabriele Wight and Brian Porter (New York: Holmes and Meier, 1992). 16. See John Gray, Two Faces of Liberalism (New York: The New Press, 2000). There is also the liberalism that has grown so dismayed with the falsity and corruption of international politics that it wishes to withdraw from them altogether, in order to concentrate wholly on improving the life of domestic society. An extension and heightening of the second strand of liberalism outlined here, it found only a qualified backing from Bagehot and none at all from the other two authors. 17. As we have seen, Tocqueville claimed that the initial decision to intervene had not been his and declined to defend it, but he strenuously insisted that it be followed through to a successful conclusion once it was launched. 18. CW, VIII: 173, 175. 19. A.J.P. Taylor, The Trouble Makers: Dissent over Foreign Policy 1792–1939 (London: Hamish Hamilton, 1957), pp. 70, 71. 20. Kennan, American Diplomacy, pp. 88, 106. 21. Sisson, The Case of Walter Bagehot, p. 123. See also pp. 126–27. 22. See Geoffrey Best, Honor Among Men and Nations: Transformations of an Idea (Toronto: University of Toronto Press, 1982). 23. See Leo Strauss, Liberalism Ancient and Modern (Ithaca, New York: Cornell University Press, 1968), pp. 26– 64.

Bibliography

Writings by the Three Subjects of this Book Bagehot, Walter. The Collected Works of Walter Bagehot. Edited by Norman St JohnStevas. 15 vols. London: The Economist, 1965–86. ——. The Works and Life of Walter Bagehot. Edited by Emilie Isabel [Mrs. Russell] Barrington. 10 vols. London: Longmans, Green and Company, 1915. Lieber, Francis. Essays on Property and Labour, as Connected with Natural Law and the Constitution of Society. New York: Harper and Brothers, 1841. ——. The Life and Letters of Francis Lieber. Edited by Thomas Sergeant Perry. Boston: James R. Osgood and Co., 1882. ——. The Miscellaneous Writings of Francis Lieber. 2 vols. Philadelphia: J.B. Lippincott Company, 1880. Vol. 1: Reminiscences, Addresses, and Essays. ——. The Miscellaneous Writings of Francis Lieber. 2 vols. Philadelphia: J.B. Lippincott Company, 1880. Vol. 2: Contributions to Political Science. ——. “De la non-reprise des relations de la France et de l’Angleterre avec la Republique Mexicaine.” Revue de Droit International 4 (1872): 475–80. ——. “De l’unité des mesures et étalons dans ses rapports avec le droit des gens et avec le droit et les rapports privés de nation a nation.” Revue de Droit International 3 (1871): 651–58. ——. “Lectures on the Laws and Usages of War.” New York Times, 13 January 1862, p. 8; 10 February 1862, p. 3; 16 February 1862, p. 3; 17 March 1862, p. 2. ——. “Free Trade and Other Things: A Philosophical Tutti Frutti.” DeBow’s Review 15 (1853): 53–65. ——. On Civil Liberty and Self-Government. London: Richard Bentley, 1853. ——. “An Introductory Letter” to Sophisms of the Protective Policy, by Frederic Bastiat. Translated by D.J. McCord. New York: George P. Putnam, 1848. ——. Legal and Political Hermeneutics: On Principles of Interpretation and Construction in Law and Politics. Boston: C.C. Little and J. Brown, 1839.

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Lieber, Francis. Manual of Political Ethics. 2 vols. Boston: Charles C. Little and James Brown, 1838. ——. Papers of Francis Lieber. Henry E. Huntington Library. San Marino, California. de Tocqueville, Alexis. Democracy in America. Translated, edited, and with an introduction by Harvey Mansfield and Delba Winthrop. Chicago: The University of Chicago Press, 2000. ——. The Old Regime and the Revolution. 2 vols. Edited by Francois Furet and Francoise Melonio. Translated by Alan Kahan. Chicago: The University of Chicago Press, 1998–2001. ——. Selected Letters on Politics and Society. Edited by Roger Boesche. Translated by James Toupin and Roger Boesche. Berkeley, California: University of California Press, 1985. ——. Recollections. Translated by George Lawrence. London: Macdonald, 1970. ——. The European Revolution and Correspondence with Gobineau. Edited and Translated by John Luckacs. Westport, Connecticut: Greenwood Press, 1959; rep. ed. 1974. ——. Oeuvres Complètes. Paris: Gallimard, 1951–. ——. Memoir, Letters, and Remains. 2 vols. Translated and edited by Miss Senior. London: Macmillan and Co., 1861. —— and Gustave de Beaumont. On the Penitentiary System in the United States and its Application in France. Translated, with an introduction, notes, and additions by Francis Lieber. Philadelphia: Carey, Lea & Blanchard, 1833.

Books and Monographs Barrington, Emilie Isabel [Mrs. Russell]. The Love-Letters of Walter Bagehot and Eliza Wilson. London: Faber and Faber, 1933. ——, ed. Life of Walter Bagehot. London: Longmans, Green and Co., 1914. Boesche, Roger. The Strange Liberalism of Alexis de Tocqueville. Ithaca, New York: Cornell University Press, 1987. Brogan, Hugh. Tocqueville. London: Collins/Fontana, 1973. Brown, Bernard. American Conservatives: The Political Thought of Francis Lieber and John W. Burgess. New York: Columbia University Press, 1951. Buchan, Alastair. The Spare Chancellor: The Life of Walter Bagehot. East Lansing, Michigan: Michigan State University Press, 1960. Bundy, McGeorge. “The Polity of Discussion: Bagehot’s Physics and Politics Revisited in the Nuclear Age.” Rand Corporation: Rand Paper P-6544, October 1980. Childress, James. Moral Responsibility in Conflicts: Essays on Nonviolence, War, and Conscience. Baton Rouge, Louisiana: Louisiana State University Press, 1982. Centre National de la Recherche Scientifique. Alexis de Tocqueville: Livre du Centenaire, 1859–1959. Paris: Centre National de la Recherche Scientifique, 1960.

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Edwards, Ruth. The Pursuit of Reason: The Economist 1843–1993. London: Hamish Hamilton, 1993. Feiling, Keith. Sketches in Nineteenth Century Biography. London: Longmans, Green and Co., 1930. Friedel, Frank. Francis Lieber: Nineteenth-Century Liberal. Baton Rouge, Louisiana: Louisiana State University Press, 1947. Gargan, Edward. Alexis de Tocqueville: The Critical Years 1848–1851. Washington, D.C.: The Catholic University of America Press, 1955. Gilman, David Coit. Bluntschli, Lieber and Laboulaye. “Privately printed for a few friends in Baltimore,” 1884. Gobineau, Arthur de. Gobineau: Selected Political Writings. Edited by Michael Biddiss. London: Jonathan Cape, 1970. Goldstein, Doris. Trial of Faith: Religion and Politics in Tocqueville’s Thought. New York: Elsevier, 1975. Greville, Charles. The Greville Memoirs: A Journal of the Reign of Queen Victoria from 1837 to 1852. 2 vols. Edited by Henry Reeve. New York: D. Appleton and Co., 1885. Harley, Lewis. Francis Lieber: His Life and Political Philosophy. New York: Columbia University Press, 1899. Hartigan, Richard. Lieber’s Code and the Law of War. Chicago: Precedent Publishing, 1983. Hovden, Eivind and Edward Keene, eds. The Globalization of Liberalism. Houndmills, Basingstoke, Hampshire, and New York: Palgrave, 2002. Irvine, William. Walter Bagehot. London: Longmans, Green and Co., 1939. Jardin, André. Tocqueville: A Biography. Translated by Lydia Davis with Robert Hemenway. New York: Farrar, Straus, Giroux, 1988. Lamberti, Jean-Claude. La Notion D’Individualisme chez Tocqueville. Paris: Presses Universitaires de France, 1970. Laughton, John. Memoirs of the Life and Correspondence of Henry Reeve, C.B., D.C.L. 2 vols. London: Longmans, Green, and Co., 1898. Lawlor, Mary. Alexis de Tocqueville in the Chamber of Deputies: His Views on Foreign and Colonial Policy. Washington, D.C.: The Catholic University of America Press, 1959. Lee, Gordon. “A Voice of Sanity: Walter Bagehot, 1826–1877.” The Economist Newspaper Limited, 1996. Lively, Jack. The Social and Political Thought of Alexis de Tocqueville. London: Oxford University Press, 1962. Kahan, Alan. Aristocratic Liberalism: The Social and Political Thought of Jacob Burckhardt, John Stuart Mill, and Alexis de Tocqueville. Oxford: Oxford University Press, 1992. Manent, Pierre. Tocqueville and the Nature of Democracy. Translated by John Waggoner. Lanham Way, Maryland: Rowman & Littlefield, 1996. Marcel, Pierre. Essai Politique sur Alexis de Tocqueville. Paris: Felix Alcan, 1910.

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Index

anarchy, international, 108–9 Austria, 33, 50, 54, 82–3, 102, 143–4n5 Bagehot, Walter (1826–1877) life of, 3, 4, 7–11 on “age of discussion”, 78–9 on American Civil War, 7, 88, 90, 91–2, 95 on Otto von Bismarck, 81, 97 on civilized states, 77–8, 86, 92, 96, 102, 110–11 on diplomacy, 85–7 on Disraeli government, 75–6, 100–1, 148n44 on equality, 14 on Franco-Prussian War, 7, 92 on freedom of thought, 77–9, 107 on French coup d’état, 9–10, 85 on impetuosity, 79–80, 94, 95, 119–20 on international law, 87–90 on law, 76 on liberalism, 83–4 on limitations of knowledge, 80, 81–4, 94, 99, 100, 102–4, 116–17, 119–20 on Louis Napoleon, 79, 81, 85, 147n39 on “national character”, 81–2, 94, 107 on national interests, 88–9, 93

on nationality, 82–3, 106 on non-intervention, 95–8, 99, 100–4, 116–17, 119–20, 147n35 on Ottoman Empire, 75–7, 99–102 on unfettered power, 84 on primacy of survival, 85, 109 on rationality, 13, 79–81 on slavery, 91 on Suez Canal, 75–6, 98–9 on universal suffrage, 13, 80, 86, 113 on William Gladstone, 76, 85, 100–1, 148n44 balance of power, 30, 33, 37, 43 civilization, 18, 27, 28, 29, 31–2, 46, 55, 60–1, 63, 68, 74, 92, 96, 102, 107, 109, 110–11: see also under Bagehot, Lieber, Tocqueville Clough, Arthur Hugh, 117–19, 125–6n13 “democracy”, see equality Dicey, Albert Venn, 2, 123n2 diversity, international, 21–3, 28–9, 37, 52–3, 55–6, 59–60, 81–2, 84, 110, 111 equality, 14, 20–2, 24, 34 free trade, 56–7 see also under Lieber French foreign policy, see under Tocqueville

158

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Index

General Orders No. 100, see under Lieber Great Exhibition (London) of 1851, 7, 62–3, 124n9, 140n35 “hamarchy”, 47–8, 59 “heroic” foreign policies, 18, 25–8, 38, 41–3, 108, 110, 115–16, 117, 119–21 see also under Tocqueville “honor”, 33, 70, 89–92, 121 Hutton, Richard Holt, 13, 95, 97, 103, 125–6n9 imperialism, 27, 31–2, 96–7 India, 27, 32, 80–1 “individualism”, 8, 11–12, 46 international law, 29, 30, 45, 59, 60–1, 63, 69, 87–9 international morality, 66, 70, 89–92 international norms, 28–32, 34 internationalism, 46 July Monarchy, 19, 25, 26 language, 49, 52, 82 liberalism and nationalism, 83–4 propagation of, 20, 31–2, 33–7, 42, 94–5, 108, 114–21 tensions within, 114–21 Lieber, Francis (Franz) (1798–1872) life of, 3, 4–8, 63–5, 66, 141n41 and American Civil War, 7, 63–71, 74 on civilization, 46, 55–6, 60–1, 63, 68, 74, 110 on equality, 14 on Franco-Prussian War, 7–8, 54, 74 on free trade, 56–7, 138n27 and General Orders No. 100, 63–71 on German unification, 50, 53–4, 74, 116 on human nature, 46–7

influence of on Tocqueville, 2, 4–5 on influence of scholars and publicists, 46, 61–2, 73–4, 112, 116, 139–40n34 on interdependence, 56–7, 63, 74, 112 on international copyright, 56, 58, 60, 138n25 on international judicial institutions, 52, 72–3 on international law, 45, 59, 60–1, 63, 69 on international morality, 58, 66, 70 on internationalism, 46, 55, 64 on national autonomy, 50–1, 58–62, 63, 72–4, 111–12 on national expansion, 53–4, 58, 138–9n28 on nationalism, 12–13, 46, 48–50, 54, 64, 74, 106, 112–13, 116 on organic conception of society, 47–8, 51 on patriotism, 47 on private property, 47 on race, 48–9, 136n11 on regulation of war, 1, 46, 53, 64–71, 140–1n40 on slavery, 48–9, 58, 63–4 on uniform weights and measures, 45 on uniform currency, 57 on “universal monarchy”, 59–60, 62 on war, 51, 66, 74 Mill, John Stuart, and Tocqueville, 2, 25–6 national expansion, 30, 53–4 nationalism, 46, 48–50, 83–4, 106–8 “necessity”, 30, 47, 53, 109 patriotism, 22–4, 25, 38, 47, 106 race, 23, 48–9, 136n11 restraint, international, 30–1, 39, 92–8, 102–4, 116–17

Index slavery, 48–9, 58, 63–4, 91, 129n9 Tocqueville, Alexis Charles Henri Clérel de (1805–1859) life of, 3–7, 8–11, 33–7 on Algeria, 31 on art of associating together, 4–5, 23, 24 on balance of power, 30, 33, 37, 43 on centralization, 23, 27, 37, 41 on citizen virtue, 12, 23, 27, 32, 36, 38, 41, 42, 107, 108, 110, 116 on civilized states, 18, 27, 28, 29, 31–2, 107 on equality, 14, 20–2, 24, 28, 34, 42, 110 and French coup d’etat, 10–11 on imperialism, 27, 31–2, 131n39 on “individualism”, 11–12, 23, 37, 110 on international law, 29, 30

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159

on Louis Napoleon, 6, 19, 31, 35 on national pride, 25, 26, 27, 38 opposition to “revolutionary party”, 33, 35, 111 on patriotism, 22–4, 25, 38, 106, 130n17 on race, 23, 129n9 on republicanism, 11, 27, 38, 42, 110, 115–16, 121 on Roman Republic, 32–7, 117, 118–19 on slavery, 129n9 on war, 17–19, 27–8, 35, 36, 37, 38–9 universal currency, 46, 57, 93 universal suffrage, 13, 35, 86, 113 war, 17–19, 27–8, 51, 66, 74, 77–8, 84–5, 88–9, 90 see also Lieber, General Orders No. 100

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