Natural Law and the American Tradition
MAY 01, 1981 by DAVIS KEELER
Davis E. Keeler is director of the Law & Liberty Project of the Institute for Humane Studies, Menlo Park, CalIfornia.
Legal and political philosophy came to America with the first New England colonists. These Puritans were not concerned with politics itself but treated upon it as it was involved with their religious problems. Outside of New England, though the colonists were also taken up in the problems of establishing governments and framing laws, there was virtually no writing dealing with the philosophy of politics or laws.
In those first years, the Puritan conception of law was quite clear: the only true law was that of God’s making. It was only when the rules of man were based squarely on the revealed will of God that they attained the dignity of law. The concept of natural law was completely absorbed in divine law. An English lawyer in Boston wrote in 1642 that the colonial tribunals ignored English Common law and sought to administer Mosaic law.
Although the colonies did not produce legal philosophy, they avidly consumed the two monumental writers of English law: Coke and Blackstone.
Lord Coke was a product of the Seventeenth Century, which saw not only the ascendency of the doctrine of natural law as a restriction on the sovereign’s relations to his subjects, but in England saw it established that there were certain fundamental common law rights which the courts would enforce even against the king. To Lord Coke, the common law limitations on royal authority became natural limitations on all authority; the common law rights of Englishmen became the natural rights of man.
Because of the inexact manner in which the common law was developed and handed down, in his expositions of the content of these natural rights of Englishmen Coke seldom rested solely upon the Magna Carta or other authority but would invariably invoke “common right and reason” to justify his position.
Yet however these rights might be discovered, it is clear that they transcended both parliament and king. In Bonham’s Case (1610), Coke said: “And it appears in our books, that in many cases, the common law will control the acts of Parliament, and sometimes adjudge them utterly void; for when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such an action to be void.”
In 1765, William Blackstone published his Commentaries on the Law and within a short time he became as well read in America as in England. These quotations are from an American edition published in Philadelphia in 1771: “When the Supreme Being formed the universe and created matter out of nothing, he impressed certain principles upon that matter from which it can never depart and without which it would cease to be . . . This then is the general significance of law . . . But laws in their more confined sense, and in which it is our present business to consider them, denote rules not of action in general, but of human action . . . that is the precepts by which man . . . endowed with both reason and free will, is commanded to make use of those faculties in the general regulation of his behavior . . . So when He created man . . . He laid down certain immutable laws of human nature . . . and gave him also the faculty of reason to discover the purport of those laws. The Creator . . . has been pleased so to contrive the constitution and form of humanity that we should want no other prompter to inquire after and put-sue the rule of right but our own self- love, that universal principle of action . . . . God has not perplexed the law of nature with a multitude of abstract principles . . . but has graciously reduced the rule of obedience to this one paternal precept that man shall pursue his own true and substantial happiness.”
Though Blackstone speaks of the natural liberties and absolute rights of man, he adds a reservation: “I know it is more generally laid down more largely, that acts of Parliament contrary to reason are void. But if parliament will positively enact a thing to be done which is unreasonable, I know of no power in the ordinary forms of the Constitution that is vested with the authority to control it.”
In that he was right, for in England the Revolution of 1688 had established the supremacy of Parliament and in the Mother Country Lord Coke’s fundamental rights of Englishmen could no longer prevail over the will of the legislature.
Whatever reservations Black-stone may have had about the ultimate supremacy of natural rights, they were not shared by the colonists who eagerly consumed Black-stone on the rights of Englishmen and ignored Blackstone on the supremacy of Parliament.
And this was what the Revolution was about. The Declaration of Independence was a statement of these principles. Far from being an extravagant rallying cry for a difficult cause, it was a simple statement of the general political and legal consensus of the colonists. When the in furiated colonists denounced the Stamp Tax and demanded the rights of Englishmen, they were not demanding those rights which Parliament had from time to time granted its subjects but rather those immemorial fights of Englishmen granted by God and manifest in nature which no parliament however representative may take away or alter.