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Published online by Cambridge University Press: 01 August 2014
When James Otis in 1764 declared that government “has an everlasting foundation in the unchangeable will of God, the author of nature, whose laws never vary,” and that “there can be no prescription old enough to supersede the law of nature and the grant of God Almighty, who has given to all men a natural right to be free,” he was at once making use of one of the oldest and most important conceptions in the history of political thought and giving to that concept a distinctly American meaning. His was merely one of the earliest examples in this country of a kind of political theory which was to find reflection in the Declaration of Independence in one generation, in the higher law doctrine in another, and in a famous trilogy of decisions of the Supreme Court in still a third. However, the natural-rights theory is by no means the only usage found for the natural-law concept in the political thought of this country, and it is the purpose of this paper to trace briefly the various interpretations placed upon it and the different forms through which it has passed.
It is easy enough to say that natural law has meant just what the individual theorist desired to have it mean; for its content has varied from philosophical anarchy to paternalistic aristocracy, and from the assertion of strongly individualistic democracy to the defence of highly centralized government. But this statement does not dispose of the problem. It is necessary to know why and when these varying interpretations were advanced and what their exponents meant when they spoke so confidently of the laws of nature.
1 The Rights of the British Colonies Asserted and Proved, 11, 16Google Scholar.
2 Although the theory of the natural rights of the individual was used by the Sophists, it is an interpretation of the natural-law concept which was otherwise used practically not at all until the period of the civil wars in seventeenth century England. The best examples of such usage are contained in Locke's second Treatise and Blackstone's Commentaries.
3 The cases referred to are Lochner v. New York (1904), Adair v. U. S. (1907), and Coppage v. Kansas (1914).
4 This subject is best discussed in Reinsoh, English Common Law in the Early American Colonies, and in Merriam, History of American Political Theories, Chap. I.
5 When John Adams was beginning his study of law in 1758, Jeremiah Gridley, leader of the Boston bar, told him that the difficulties of the lawyer in this country were greater than in England, for here he must study not only the common law but also “civil law, and natural law and admiralty law…. .” Works, II, 46Google Scholar. A glance at the citations in the writings of men like Adams and James Wilson will demonstrate their indebtedness to the European theorists of what some have termed the school of natural law.
6 Riley, , American Thought, 2nd ed., 1–2Google Scholar. See also Becker, The Declaration of Independence, Chap. II. I am inclined to believe that Professor Becker overestimates the influence of the philosophical and scientific movements and neglects the importance of political and legal writers, especially Blackstone.
7 Writings, I, 47Google Scholar.
8 Works, III, 462Google Scholar. See also his Novanglus and Clarendon letters.
9 Of particular importance are the pamphlets of Jefferson, Hamilton, and Wilson.
10 On this subject see C. H. McIlwain, The American Revolution, and R. G. Adams, Political Ideas of the American Revolution.
11 Writings, Conway ed., I, passim.
12 The lack of a bill of rights in the proposed Massachusetts constitution of 1787 led to the preparation of a document which deserves a more prominent place in American political theory than it has been accorded. I refer to the “Essex Result” written by Theophilus Parsons, later chief justice of his state, and adopted by a group of voters of Essex County. It may be found in T. Parsons' Memoir of his father.
13 See Farrand, M. (ed.), Records of the Federal Convention, I, 49, 134, 147, 324, 437, 440Google Scholar; II, 56, 119, 124, 137, 222.
14 The more important speeches and writings are collected in Elliot's Debates and Ford's Pamphlets and Essays.
15 Particularly is this true of Gerry and Martin. It is interesting to compare the much-quoted statement in the opening days of the convention that “The Evils we experience flow from the excess of democracy,” with campaign uses of extreme natural-rights theories.
16 This applies especially to George Mason of Virginia. See also the opinion of Jefferson as expressed in his letters of the time. Writings (Ford's, ed.), IV, 2, 4, 5, 8Google Scholaret seq.
17 See his Letters of Fabius, 1787. In the edition of 1797 he points with pride to the resemblance between the theory of these letters and Paine's Rights of Man.
18 Given in McMaster, and Stone, , Pennsylvania and the Federal Constitution, 295Google Scholar. The most amusing, if not the most profound, arguments of the campaign are to be found in H. H. Brackenbridge, Cursory Remarks. This ironical essay is reprinted in Ford's Essays.
19 Works, IV, 579Google Scholar, 292 ff. Cf. Merriam, op. cit., 125.
20 Ibid., VI, 232, 234, 271, 275, 397, 458.
21 Writings (Ford's, ed.), V, 147, 329Google Scholar; VI, 87, 88, 102, 517; VII, 172, 406.
22 Political Writings, especially the Advice to the Privileged Orders.
23 Letters of Publicola, in his Writings, I, 69, 77, 78, 80, 83, 94, 98Google Scholar.
24 Lectures on Law, Works (1804 ed.), especially Vol. IGoogle Scholar.
25 Ibid., I, 108.
26 Sketches of the Principles of Government (1793).
27 Writings (Ford's, ed.), VIII, 2Google Scholar.
28 Ibid., IX, 425.
29 In Jackson's first inaugural address there is a casual reference to the rights of man, and in his nullification message and proclamation he asserts his belief in the right of revolution when undertaken by the people of the whole state. Messages (1837 ed.), 37, 193, 230, 231Google Scholar. Lincoln's profound belief in the rights of the people certainly did not lead him to place any emphasis upon the “natural” rights of man.
30 Works (4th ed.), II, 46Google Scholar; IV, 375. But cf. Ibid., IV, 500–522.
31 Oration at Quincy, July 4, 1831.
32 Speech at New York, April 30, 1839.
33 Letters, Speeches and Papers, VIII, 307Google Scholar; also IV, 355, V, 49, 391.
34 The best treatment of this subject is found in Haines, C. G., The Law of Nature in State and Federal Decisions, 25 Yale Law Journal, 617CrossRefGoogle Scholar. One of the earliest and most widely used digests of American law contains a characteristic acceptance of such theory: “The civil state enforces this law of nature that binds men to regard the rights of others; …. the civil laws of a state are those of nature modified and perfected in a manner suitable to it, and to the advantages of society; …. the commands of the sovereign manifestly against the law of God, natural or revealed, are not to be obeyed.” Dane, N., Digest of American Law, VI, 626Google Scholar.
35 Cf. Paxson, , History of the American Frontier, 100–101Google Scholar.
36 Debates, especially 83 ff., 122–136.
37 Debates, passim. The speeches of Upshur and Leigh for the conservatives and of Campbell, Cooke, and Mercer for the radicals are particularly significant.
38 Brief descriptions of the theories of these writers are to be found in Merriam, History of American Political Theories. It should be mentioned here that Lieber is placed in the natural-law group on the basis of his Manual of Political Ethics, for in his later Civil Liberty and Self Government the concept is not referred to.
39 Works, XV, 347–48, 397, XVII, 9–12Google Scholar.
40 See Wright, , “George Fitzhugh on the Failure of Liberty,” Southwestern Political and Social Science Quarterly, VI, 219Google Scholar.
41 Lectures an the Principles of Political Economy, 53–54. Austin recognized the existence of natural law as “divine positive law,” to be ascertained through revelation or the application of the principle of utility. Cooper made no similar concessions.
42 Works, I, 66 ff.Google Scholar
43 In The Higher Law and Civil Disobedience respectively.
44 In Slavery in the United States and An Essay on Liberty and Slavery respectively.
45 Especially important are the writings of Calhoun and those by Harper, Hammond, Simms, and Dew in The Pro-Slavery Argument.
46 Hammond, in The Pro-Slavery Argument, 109.
47 E.g., M. F. Morris, History of the Development of Constitutional and Civil Liberty; L. Abbott, The Rights of Man; J. M. Beck, The Constitution of the United States; F. Exline, Politics.
48 Haines. op. cit.
49 In Southwestern Political and Social Science Quarterly, IV, 202Google Scholar.
50 Principles of Sociology, 418–419.
51 The Law of Nature, Annals, I, 558Google Scholar. An able defense of natural law as a juristic concept is Cohen, M. R., “Jus Naturale Redivivum,” Philosophical Review, XXV, 761Google Scholar.
52 Witness the contemporary fashion of bowing down in worship of the great god Progress; and yet how few, even among those who have written on the subject, have any real definition in mind for the concept. An excellent illustration of its loose usage is found in Hoover's, HerbertAmerican Individualism (1922)Google Scholar.
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