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1— Crime and Punishment

1. Immanuel Kant, The Philosophy of Law , trans. W. Hastie (Edinburgh: T. and T. Clark, 1887), 196-198, italics in original text. This is the Edinburgh edition of Kant's Metaphysische Anfangsgrunde der Rechslehre (1796). The Hastie translation is more complete than the 1965 Ladd translation, which appeared under the title of The Metaphysical Elements of Justice . [BACK]

2. Ibid., 197. [BACK]

3. It is the transcendent end of the death penalty—an end uncontaminated by any thought of social utility—that makes Kant insist, "Even if a Civil Society resolved to dissolve itself with the consent of all its members—as might be supposed in the case of a People inhabiting an island resolving to separate and scatter themselves throughout the whole world—the last Murderer lying in the prison ought to be executed before the resolution was carried out" ( The Philosophy of Law , 198). [BACK]

4. John Rawls, for example, has stated emphatically that "to think of distributive and retributive justice as converses of one another is completely misleading." See A Theory of Justice (Cambridge: Harvard University Press, 1971), 315. Michael Sandel has seized upon this as a point of inconsistency in Rawls. See Liberalism and the Limits of Justice (New York: Cambridge University Press, 1982), 89-92. [BACK]

5. Friedrich Nietzsche, The Genealogy of Morals , in The Birth of Tragedy and The Genealogy of Morals , trans. Francis Golffing (Garden City, N.Y.: Double-day Anchor Books, 1956), 197, 202, 203, 202. [BACK]

6. Ibid., 195. [BACK]

7. Peter Gay, The Enlightenment: The Science of Freedom (New York: Norton, 1977), 437-447, quotation from 438. [BACK]

8. On Beccaria's immense popularity, see Coleman Phillipson, Three Criminal Law Reformers (London: J. M. Dent and Sons, 1923), 83-106. [BACK]

9. See, for example, Book 6, chapters 1 and 18 of Commentaries on the Laws of England: A Facsimile of the First Edition of 1765-1769 (Chicago: University of Chicago Press, 1979). Beccaria is mentioned by name in chapter 17 (p. 237). Blackstone's own view of criminal justice clearly echoes Beccaria's: " preventive justice is upon every principle, of reason, of humanity, and of sound policy, preferable in all respects to punishing justice" (p. 237), italics in original text. Bentham's reference to Beccaria is cited in Elie Halévy, The Growth of Philosophical Radicalism (London: Faber and Gwyer, 1928), 21. [BACK]

10. John Adams, The Works of John Adams (Boston: Little, Brown, 1856),

2:238, quoted in Henry Paolucci, "Translator's Introduction" to Cesare Beccaria, On Crimes and Punishments (Indianapolis: Bobbs-Merrill, 1963), xxi. [BACK]

11. Garry Wills, Inventing America: Jefferson's Declaration of Independence (New York: Vintage, 1978), 152. [BACK]

12. Beccaria, On Crimes and Punishments , 45, 65, 47-48. [BACK]

13. Ibid., 47. [BACK]

14. Ibid., 47. [BACK]

15. Ibid., 48. [BACK]

16. Kant, The Philosophy of Law , 202, 201. [BACK]

17. Marcello Maestro, Cesare Beccaria and the Origins of Penal Reform (Philadelphia: Temple University Press, 1973); Leon Radzinowicz, Ideology and Crime (New York: Columbia University Press, 1966), 1-28. [BACK]

18. David Rothman, The Discovery of the Asylum: Social Order and Disorder in the New Republic (Boston: Little, Brown, 1971); Michael Ignatieff, A Just Measure of Pain: The Penitentiary in the Industrial Revolution, 1750-1850 (New York: Pantheon, 1978). See also an important critique of Foucault, Rothman, and Ignatieff, by Ignatieff himself, "State, Civil Society, and Total Institutions: A Critique of Recent Social Histories of Punishment," in Crime and Justice: An Annual Review of Research , ed. Michael Tonry and Norval Morris (Chicago: University of Chicago Press, 1981), 3:153-192. [BACK]

19. Beccaria, On Crimes and Punishments , 64. [BACK]

20. Ibid., 62-64. [BACK]

21. This position is most influentially argued in James Willard Hurst, Law and the Conditions of Freedom in the Nineteenth-Century United States (Madison: University of Wisconsin Press, 1956), and Morton Horwitz, The Transformation of American Law, 1780-1860 (Cambridge: Harvard University Press, 1977). [BACK]

22. Lawrence Friedman, "Notes Toward a History of American Justice," Buffalo Law Reviw 24 (1974): 111-125, quotation from 125. [BACK]

23. Court Records of Kent County, Delaware, 1680-1705 , ed. Leon deValinger, Jr. (Washington, D.C.: American Historical Association, 1959), 234-235, 270-271, recounted in Friedman, "Notes Toward a History of American Justice," 111. [BACK]

24. Lawrence H. Gipson, Crime and Its Punishment in Provincial Pennsylvania (Bethlehem, Pa.: Lehigh University Press, 1935), 7. [BACK]

25. The Laws and Liberties of Massachusetts, 1641-1691 , ed. John D. Cushing (Wilmington, Del.: Scholarly Resources, 1976), 1:12. [BACK]

26. The Colonial Laws of New York from the Year 1664 to the Revolution (Albany: J. B. Lyon, 1894), 1:21. Cited in David H. Flaherty, "Law and the Enforcement of Morals in Early America," Perspectives in American History 5 (1971): 213. [BACK]

27. Flaherty, "Law and the Enforcement of Morals," 203-253. [BACK]

28. William E. Nelson, The Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760-1830 (Cambridge: Harvard University Press, 1975), 37. For a discussion of Nelson (along with Morton Horwitz and J.P. Reed) in the context of the new legal history, see Hendrik Hartog, "Distancing Oneself from the Eighteenth Century: A Commentary

on Changing Pictures of American Legal History," in Law in the American Revolution and the Revolution in the Law , ed. Hendrik Hartog (New York: New York University Press, 1981), 229-257. [BACK]

29. For findings that support Flaherty's and Nelson's, see Michael S. Hindus, Prison and Plantation: Crime, Justice, and Authority in Massachusetts and South Carolina, 1767-1878 (Chapel Hill: University of North Carolina Press, 1980), 48-51; George Dargo, Law in the New Republic (New York: Knopf, 1983), 25-27. [BACK]

30. Christopher Hill, Society and Puritanism in Pre-Revolutionary England (New York: Penguin, 1964), 343. [BACK]

31. Douglas Hay has argued, for example, that a margin of discretion in eighteenth-century English law enabled the ruling classes to demonstrate magnanimity and to exact deference from the lower orders. See his "Property, Authority, and the Criminal Law," in Albion's Fatal Tree: Crime and Society in Eighteenth-Century England , ed. Douglas Hay et al. (New York: Pantheon, 1975), 17-54. But see also John H. Langbein's critique of such a concept, in " Albion's Fatal Flaw," Past and Present 98 (1983): 96-120. For the uses of discretion in the late nineteenth and early twentieth centuries, see Lawrence Friedman, "History, Social Policy, and Criminal Justice," in Social History and Social Policy , ed. David Rothman and Stanton Wheeler (New York: Academic Press, 1981), 204-215. [BACK]

32. The Colonial Laws of Massachusetts, reprinted from the edition of 1672 , ed. William H. Whitmore (Boston: City Council, 1887), 54-55. Quoted in Flaherty, "Law and the Enforcement of Morals," 209. [BACK]

33. Patrick Lord Devlin, The Enforcement of Morals (London: Oxford University Press, 1959), 2. This was originally delivered as the Maccabaean Lecture in Jurisprudence at the British Academy. [BACK]

34. The Wolfenden Report; Report of the Committee on Homosexual Offenses and Prostitution (New York: Stein and Day, 1963), quoted in Devlin, Enforcement , 3. [BACK]

35. Devlin, Enforcement , 3, 5. [BACK]

36. H. L. A. Hart, Law, Liberty, and Morality (Stanford: Stanford University Press, 1963), 16-19, 28-70; for a weaker claim, see Ronald Dworkin, "Lord Devlin and the Enforcement of Morals," Yale Law Journal 75 (1966): 986-1005. The relation between law and morality is important not just for criminal law but also for constitutional law. See "Symposium: Law, Community, and Moral Reasoning," California Law Review 77 (1989): 475-594, for a discussion occasioned by Bowers v. Hardwick , 478 U.S. 186 (1986) (i.e., the constitutional right of privacy not extended to homosexual practices). [BACK]

37. John Austin, The Province of Jurisprudence Determined, and The Uses of the Study of Jurisprudence , ed. H. L. A. Hart (1832; rpt. New York: Weidenfeld and Nicolson, 1954), 371. For a twentieth-century elaboration of Bentham's and Austin's position, see H. L. A. Hart, "Positivism and the Separation of Law and Morals," Harvard Law Review 71 (1958): 593-629; for a response to Hart, see Lon Fuller, "Positivism and Fidelity to Law—A Reply to Professor Hart," Harvard Law Review 71 (1958): 630-672. For a Kantian (as opposed to

utilitarian) argument for the separation of law and morals, see George P. Fletcher, "Law and Morality: A Kantian Perspective," Columbia Law Review 87 (1987): 533-558. [BACK]

38. Oliver Wendell Holmes, "The Path of the Law," Harvard Law Review 10 (1897): 459, 464, 460. [BACK]

39. Nelson, Americanization of the Common Law , 110. [BACK]

40. Lawrence Friedman, A History of American Law , 2nd ed. (New York: Simon and Schuster, 1985), 291. [BACK]

41. Holmes, "The Path of the Law," 459. [BACK]

42. D. A. Miller, "The Novel and the Police," Glyph 8 (1981): 127-147, and The Novel and the Police (Berkeley: University of California Press, 1987); John Bender, Imagining the Penitentiary (Chicago: University of Chicago Press, 1987); Richard Brodhead, "Sparing the Rod: Discipline and Fiction in Antebellum America," Representations , no. 21 (1988): 67-96. [BACK]

43. William Hazlitt, Lectures on the English Comic Writers (1819; rpt. New York: Wiley and Putnam, 1845), 138; Charles Lamb, letter to Walter Wilson, December 16, 1822, in the latter's Memoirs of the Life and Times of Daniel Defoe (London: Hurst, Chance, 1830), 3:428. Both quoted in Ian Watt, The Rise of the Novel (Berkeley: University of California Press, 1957), 34. [BACK]

44. Friedman, A History of American Law , 291. [BACK]

45. For an extended argument along those lines, see chapters 2 and 4. [BACK]

46. Nancy Armstrong, Desire and Domestic Fiction: A Political History of the Novel (New York: Oxford University Press, 1987). [BACK]

47. James Fenimore Cooper, The Deerslayer (1841; rpt. New York: Signet Books, 1963), 534. All subsequent citations to this edition will appear in the text. [BACK]

48. See, for example, Jay Fliegelman, Prodigals and Pilgrims: The American Revolution against Patriarchal Authority, 1750-1800 (New York: Cambridge University Press, 1982); Jan Lewis, The Pursuit of Happiness: Family and Values in Jefferson's Virginia (New York: Cambridge University Press, 1983),169-187; Gordon Wood, The Radicalness of the American Revolution (New York: Vintage, 1991). [BACK]

49. Eve Kosofsky Sedgwick, Between Men: English Literature and Male Homosocial Desire (New York: Columbia University Press, 1985), 11. [BACK]

50. Eva Kittay, Metaphor: Its Cognitive Force and Linguistic Structure (New York: Oxford University Press, 1987). [BACK]

51. Emile Durkheim, The Division of Labor in Society , trans. George Simpson (New York: Free Press, 1964), 101. [BACK]

52. Ibid., 85, 88, 100. [BACK]

53. For more recent discussions of the punitive and the symbolic, see Joel Feinberg, "The Expressive Function of Punishment," The Monist 49 (1965): 397-408; Joseph Gusfield, "Moral Passage: The Symbolic Process in Public Designation of Deviance," Social Problems 15 (1968): 175-188. For an interesting argument in favor of "blaming" as a mode of communal signification, see James Boyd White, ''Criminal Law as a System of Meaning," in Heracles' Bow:

Essays on the Rhetoric and Poetry of Law (Madison: University of Wisconsin Press, 1985), 192-214. [BACK]

54. Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (1789; rpt. Oxford: Clarendon Press, 1907), 178. [BACK]

55. Ibid., 171, 194, italics in original text. [BACK]

56. Ibid., 194-195. [BACK]

57. For the relation between Holmes and Bentham, see H. L. Pohlman, Justice Oliver Wendell Holmes and Utilitarian Jurisprudence (Cambridge: Harvard University Press, 1984). [BACK]

58. Mark Kelman, "Interpretive Construction in the Substantive Criminal Law," Stanford Law Review 33 (1981): 591-673. Kelman's essay is part of a larger effort, associated with Critical Legal Studies, to deconstruct the putative neutrality of legal reasoning. His argument has implications outside the criminal law as well. See, for example, the responses to him in the "Symposium on Causation in the Law of Torts," Chicago-Kent Law Review 63 (1987): 397-680. [BACK]

59. Stanley Fish, for example, has objected to Kelman on the grounds that "what Kelman is really complaining about is that there is a criminal law at all." But that seems to me to be precisely Kelman's point. See Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (Durham, N.C.: Duke University Press, 1989), 392-398. For a more sustained, if implicit, response to Kelman, see Michael S. Moore, "The Moral and Metaphysical Sources of the Criminal Law," in Criminal Justice , vol. 27 of Nomos: Yearbook of the American Society for Political and Legal Philosophy , ed. J. Roland Pennock and John W. Chapman (New York: New York University Press, 1985), 11-51. [BACK]

60. E. P. Thompson, "The Crime of Anonymity," in Albion's Fatal Tree , 255-308, quotations from 272. [BACK]

61. Jan Lewis, "The Republican Wife: Virtue and Seduction in the Early Republic," William and Mary Quarterly , 3rd ser., 44 (1987): 689-721, esp. 707-713. [BACK]

62. Rosemarie Zagarri, "Morals, Manners, and the Republican Mother," American Quarterly 44 (1992): 192-216, quotation from 207. [BACK]

63. John Witherspoon, "On Conjugal Affection," Ladies Magazine (Philadelphia), September 1792, 176, quoted in Lewis, "Republican Wife," 710 n. 79. [BACK]

64. For a discussion of marriage in the context of race, see Philip Fisher, Hard Facts (New York: Oxford University Press, 1987), 22-86. [BACK]

65. James Fenimore Cooper, The American Democrat: Or, Hints on the Social and Civic Relations of the United States of America (1838; rpt., New York: Knopf, 1931), 110. [BACK]

66. Victor Turner, "Betwixt and Between: The Liminal Period in Rites de Passage ," in The Forest of Symbols (Ithaca: Cornell University Press, 1967), 93-111, quotations from 96-97. Turner draws on Arnold van Gennep, The Rites of Passage (Chicago: University of Chicago Press, 1960). [BACK]

67. Turner, "Betwixt and Between," 110. [BACK]

68. Turner himself has suggested that, in contrast to the localized and terminal liminality of tribal society, liminality in modern societies might be universal and permanent: "What appears to have happened is that with the increasing specialization of society and culture, with progressive complexity in the social division of labor, what was in tribal society principally a set of transitional qualities . . . has become itself an institutionalized state." See The Ritual Process: Structure and Anti-Structure (Ithaca: Cornell University Press, 1969), 107. [BACK]

69. Karen Halttunen uses the word "liminality" specifically and extensively. See her Confidence Men and Painted Women: A Study of Middle-Class Culture of America, 1830-1870 (New Haven: Yale University Press, 1982), 1-32. See also Jean-Christophe Agnew, Worlds Apart: The Market and the Theater in Anglo-American Thought, 1550-1750 (New York: Cambridge University Press, 1986), 195-203. [BACK]

70. Gordon Wood, The Creation of the American Republic, 1776-1787 (Chapel Hill: University of North Carolina Press, 1969), 606-607. [BACK]

71. J. G. A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton: Princeton University Press, 1975), 516. [BACK]

72. Pocock, Machiavellian Moment , 469; Pocock, "Virtues, Rights, and Manners: A Model for Historians of Political Thought," Political Theory 9 (1981): 353-368, reprinted in his Virtue , Commerce , and History (New York: Cambridge University Press, 1985), 37-50, quotation from 42-43. [BACK]

73. J. R. Pole, The Pursuit of Equality in American History (Berkeley: University of California Press, 1978), 13. [BACK]

74. James Madison, The Federalist Papers , ed. Clinton Rossiter (New York: New American Library, 1961), no. 10 (79, 81). [BACK]

75. Alexander Hamilton, The Federalist Papers , no.6, (56, 59). [BACK]

76. Ibid., 56, 59. [BACK]

77. Madison to Jefferson, April 23, 1787, quoted in Wood, Creation of the American Republic , 413. [BACK]

78. Theodore Sedgwick to Governor Bowdoin, April 8, 1787, quoted in Wood, Creation of the American Republic , 467. [BACK]

79. Some historians take Shays's Rebellion to be the cause (or at least the pretext) of the 1787 Constitutional Convention in Philadelphia. For more qualified views, see Robert A. Feer, "Shays's Rebellion and the Constitution: A Study in Causation," New England Quarterly 42 (1969): 388-410; Gordon Wood, "Interests and Disinterestedness in the Making of the Constitution," in Beyond Confederation: Origins of the Constitution and American National Identity , ed. Richard Beeman et al. (Chapel Hill: University of North Carolina Press, 1987), 69-109. [BACK]

80. For a meditation on the political institutions of republicanism now lost to us, see Hannah Arendt, On Revolution (New York: Viking, 1965). [BACK]

81. Aside from already cited works by Wood and Pocock, see Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge: Harvard

University Press, 1967), and The Origins of American Politics (New York: Knopf, 1968). Bailyn, Wood, and Pocock all argue, implicitly or explicitly, against the "liberal tradition" posited by Louis Hartz, The Liberal Tradition in America (New York: Harcourt Brace Jovanovich, 1955). For summaries of the debate, see Robert Shalhope, "Toward a Republican Synthesis: The Emergence of an Understanding of Republicanism in Early American Historiography," William and Mary Quarterly , 3rd ser., 29 (1972):49-80; Dorothy Ross, "The Liberal Tradition Revisited and the Republican Tradition Addressed," in New Directions in American Intellectual History , ed. John Higham and Paul K. Conkin (Baltimore: Johns Hopkins University Press, 1979), 116-131; Isaac Kramnick, "Republican Revisionism Revisited,'' American Historical Review 87 (1982): 629-664; Lance Banning, "Jeffersonian Ideology Revisited: Liberal and Classical Ideas in the American Republic," William and Mary Quarterly , 3rd ser., 43 (1986):3-19; Joyce Appleby, Liberalism and Republicanism in the Historical Imagination (Cambridge: Harvard University Press, 1992). Appleby and Kramnick, I should point out, continue to argue for the centrality of liberalism in American political thought. For a debate about the contemporary usefulness of classical republicanism, see "Symposium: The Republican Civic Tradition," Yale Law Journal 97 (1988): 1493-1723. [BACK]

82. Rawls, A Theory of Justice , 29. [BACK]

83. See, for example, Bernard Williams, "The Idea of Equality," in Problems of the Self (Cambridge: Cambridge University Press, 1973), 230-249. [BACK]

84. Samuel Williams, The Natural and Civil History of Vermont (Walpole, N.H.: Isaiah Thomas and David Carlisle, 1794), 330, quoted in Wood, Creation , 607. [BACK]

85. Lance Banning, "Jeffersonian Ideology Revisited," 12. In this context, we must also entertain the possibility that liberalism and republicanism had always been a hybrid formation. See, for example, Thomas Pangle's discussion of Montesquieu's "liberal republicanism." [BACK]

86. Cooper, The American Democrat , 41. [BACK]

87. Ibid., 41. [BACK]

88. For the centrality of consensus to American culture, see Sacvan Bercovitch, The American Jeremiad (Madison: University of Wisconsin Press, 1978), and The Office of "The Scarlet Letter" (Baltimore: Johns Hopkins University Press, 1991). [BACK]

89. Indeed, as Michael McKeon points out, the emergence of the very category of "class" already signaled a destabilized traditional order. See his The Origins of the English Novel, 1600-1740 (Baltimore: Johns Hopkins University Press, 1987), 162-167, 255-265. [BACK]

90. Raymond Williams, Marxism and Literature (Oxford: Oxford University Press, 1977), 121-127. [BACK]

91. Mary Douglas, Purity and Danger (Harmondsworth: Penguin, 1970), 137-195. [BACK]

92. See especially Linda K. Kerber, Women of the Republic: Intellect and Ideology in Revolutionary America (Chapel Hill: University of North Carolina Press, 1980), and Mary Beth Norton, Liberty's Daughters: The Revolutionary

Experience of American Women, 1750-1800 (Boston: Little, Brown, 1980). Important exceptions are Cathy Davidson and Carroll Smith-Rosenberg, both of whom have written on the rhetoricity of gender in the early republic. See, for example, Davidson, Revolution and the Word (New York: Oxford University Press, 1986); Smith-Rosenberg, "Dis-covering the Subject of the 'Great Constitutional Discussion,' 1786-1789," Journal of American History 79 (1992): 841-873. [BACK]

93. Hanna Fenichel Pitkin, Fortune Is a Woman: Gender and Politics in the Thought of Niccolò Machiavelli (Berkeley: University of California Press, 1984), 25, 144. [BACK]

94. Montesquieu, The Spirit of the Laws , trans. Anne Cohler, Basia Miller, and Harold Stone (New York: Cambridge University Press, 1989), 104. [BACK]

95. Gordon Wood and J. G. A. Pocock have done much to elevate "virtue" into the key term of Revolutionary thinking. See Wood, Creation of the American Republic , 65-70; Pocock, Machiavellian Moment , 462-552. Numerous other accounts have followed. See especially John T. Agresto, "Liberty, Virtue, and Republicanism, 1776-1787," Review of Politics 39 (1977):473-504; John P. Diggins, The Lost Soul of American Politics: Virtue, Self-Interest, and the Foundations of Liberalism (Chicago: University of Chicago Press, 1984); James T. Kloppenberg, "The Virtues of Liberalism: Christianity, Republicanism, and Ethics in Early American Political Discourse," Journal of American History 74 (1987): 9-33; Lance Banning, "Some Second Thoughts on Virtue and the Course of Revolutionary Thinking,'' in Conceptual Change and the Constitution , ed. Terence Ball and J. G. A. Pocock (Lawrence: University Press of Kansas, 1988), 194-212. [BACK]

96. The Debates in the Several State Conventions , ed. Jonathan Elliot (Washington, D.C.: Taylor and Maury, 1854), 3:536-537, quoted in Banning, "Second Thoughts on Virtue," 194. [BACK]

97. Watt, The Rise of the Novel , 157. [BACK]

98. Ruth Bloch, "The Gendered Meanings of Virtue in Revolutionary America," Signs 13 (1987): 37-58; Carroll Smith-Rosenberg, "Domesticating 'Virtue': Coquettes and Revolutionaries in Young America," in Literature and the Body , ed. Elaine Scarry (Baltimore: Johns Hopkins University Press, 1988), 160-183. This is also Ann Douglas's more general point in The Feminization of American Culture (New York: Avon, 1977). But see also Jan Lewis, who argues that the emphasis on chastity was already pervasive in classical republicanism ("Republican Wife," 716-721), and Nancy Cott, who sees chastity as an ideal consciously advocated by women as a means of empowerment. See her "Passionlessness: An Interpretation of Victorian Sexual Ideology, 1790-1850," Signs 4 (1978): 219-236. [BACK]

99. For the emergence of political parties and partisan maneuverings as a feature of modern liberalism, see Lee Benson, The Concept of Jacksonian Democracy (Princeton: Princeton University Press, 1961); and Joel Silbey, The Partisan Imperative: The Dynamics of American Politics Before the Civil War (New York: Oxford University Press, 1985). For the separation of spheres, see Al-

asdair MacIntyre, After Virtue (Notre Dame: University of Notre Dame Press, 1981), 38-39. [BACK]

100. See, for example, John P. McWilliams, Political Justice in a Republic: James Fenimore Cooper's America (Berkeley: University of California Press, 1972), 237-297. In The Pioneers Natty is put on trial for violating the civil law. [BACK]

101. Prominently featured in The Pathfinder is Lieutenant Muir, the quartermaster, whose unseemly desire for Mabel Duncan and treacherous alliance with the French make him doubly objectionable. [BACK]

102. Gordon Wood, "Conspiracy and the Paranoid Style: Causality and Deceit in the Eighteenth Century," William and Mary Quarterly , 3rd ser., 39 (1982): 402-441, quotations from 409, 430, 411, 409. [BACK]

103. For a history of the changing status of promises (especially in relation to contractual obligations), see P. S. Atiyah, The Rise and Fall of Freedom of Contract (Oxford: Clarendon Press, 1979), 139-218, 652-659. For a contemporary statement, see Charles Fried, Contract as Promise: A Theory of Contractual Obligation (Cambridge: Harvard University Press, 1981). For one of the most eloquent defences of promise keeping, see Hannah Arendt, The Human Condition (Chicago: University of Chicago Press, 1958), 243-247. [BACK]

104. David Hume, A Treatise of Human Nature , ed. Ernest C. Mossner (London: Penguin, 1984), 568, 574, 571, 568, italics in original. [BACK]

105. Ibid., 530-531. [BACK]

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