BY THE time political theories and customs were taking definite shape in the American Colonies the characteristic ideas relating to natural law in England and in Continental Europe had been introduced into the environment of a pioneer rural civilization. But before the transmission took place a change in emphasis was under way which was accentuated under the peculiar conditions prevailing in America.

1. Transition from Natural Law Doctrines to Theories of Natural Rights. When the standard works of Gentilis, Grotius, Pufendorf, and Burlamaqui aimed to present the basic principles of the public and private law of Europe natural law doctrines were generally approved. As the importance of the canon law declined the doctrines were limited in their applications and, in certain countries, except for their use as critical standards to oppose the arbitrary and dictatorial policies of princes and kings, they were sparingly used in the practical operation of the law. But all branches of the law were subjected to natural law influences.

The original concepts of natural law, however, were to undergo a marked transformation, when the Reformation leaders, following Roman and mediaeval authorities, gave great significance in political and religious matters to the rights and liberties of the individual. Instead of natural law or rules of superior validity jus naturale was translated into a theory of natural rights — qualities inherent in man which it was the duty of the state to protect. Grotius was one of the foremost mediaeval thinkers to find a source of natural rights in certain inherent qualities belonging to the individual. These rights, which were sanctioned by natural law, might be discovered by human reason.[1] Montesquieu and the Physiocrats in France and English philosophers also formulated theories of natural rights as inherent in the individual, with certain formulas derived therefrom designed to limit all public authorities.[2] Moreover, the distinction suggested several centuries earlier that rulers were bound not only by the primary laws of nature but also by certain fundamental secondary natural laws which were expressed in positive laws, was formally enunciated.[3]

One of the popular writers of the eighteenth century, who based his political philosophy on rights inherent in the individual, was Vattel, whose volume on The Law of Nations appeared in many editions, French, English, and German.[4] As a representative authority Vattel's views, as well as those of Grotius, Pufendorf, and Burlamaqui, were extensively studied and followed during the formative period of American law. Vattel, who was a follower of Frederic von Wolff, began to translate Wolff's work, Jus Naturae Methodo Scientifica Pertractatum, and to render it available to the public and the result was that he put the doctrines of Wolff into such form that a relatively new and popular treatise was prepared.

To Vattel, it was regarded as settled on the basis of natural law "that liberty and independence belong to man by his very nature, and that they cannot be taken from him without his consent." Moreover, "the whole Nation, whose common will is but the outcome of the united wills of the citizens, remains subject to the laws of nature, and is bound to respect them in all its undertakings.... We must therefore," he continued, "apply to nations the rules of the natural law to discover what are their obligations and their rights; hence, the law of Nations is in its origin merely the law of Nature applied to Nations."

Vattel regarded this law immutable as being founded "on the nature of things," and particularly "on the nature of man" and hence he thought, "nations can not alter it by agreement, nor individually or mutually release themselves from it."[5] Vattel aided in the movement to establish written constitutions, as the foundation of public authority. He maintained that the fundamental laws enacted by the nation itself are not subject to change by the legislature. The distinction between fundamental and ordinary law was clearly drawn,[6] and American legal authorities soon began to make practical applications of the distinction.

With the writings of Grotius, Pufendorf, Wolff, and Vattel attention was directed to a state of nature — a golden age which existed at the beginning of society in which the laws of nature, as affecting the relations of individuals and of communities, predominated.[7] These laws of nature were of the immutable type, and it was not long before jurists and politicians began to think of man as emerging from this state of nature with a panoply of rights belonging to him as an individual. Political and economic conditions in Europe and in America were taking the shape which gave vital and legal force to the emerging concept of the natural inherent and inalienable rights of man.[8]

2. American Theories of Natural Law and of Inalienable Rights. In the process of transplanting fundamental law notions to the American Colonies, conditions were favorable not only to the reception of higher law theories but also to their incorporation as basic doctrines of public and private law. The colonists brought with them many of the current ideas of the common law as the foundation of their legal arrangements. But the law was as a rule applied by those untrained in the technical procedure and rules of the English system. Statutes applicable to local conditions were frequently lacking. Courts and judges found themselves called upon to make law for the occasion with little else to guide them except the Bible, the precepts of natural law or natural justice, and the community sentiment of what ought to be right and just. Under such circumstances appeals were frequently made to natural law or to allied concepts.

The pioneer rural conditions in which most of the colonists lived encouraged self-reliance not only in their economic and social conditions but also in their political ideas. Dependent for the most part upon their own efforts for a livelihood, they also had to assume a large share of responsibility in protecting individual and community rights. With the organized evidences of government far removed from the ordinary activities of life it was customary to place a high value on the assertion and protection of individual personal rights. Moreover, the normal methods of making and enforcing law tended to give special value to doctrines of natural law. Under the primitive conditions which prevailed, natural rights and natural law were regarded either as identical or as merely two phases of the same concept. Having theoretically, at least, adopted the rules and principles of the common law the prevailing English views as to the supremacy of the law were accepted. And the higher law doctrine as later announced by Blackstone gave sanction to the belief that certain laws were superior to all civil enactments.[9] The judges in the Colonies frequently indicated their belief in the natural laws, which were considered true laws, and legislation was thought to be binding only in so far as it was an expression of these laws.[10]

The process of the transmission of natural law theories to the new environment was hastened by the appeal to higher law ideas by the leaders of the revolt against Great Britain and by the philosophic trend of the eighteenth century to place uppermost in the political sphere the natural rights of the individual.[11]

The popularity of the concepts of natural rights and of natural law was greatly increased when they were espoused by the leaders of the American and French Revolutions. The American Revolution not only came first but also resulted in a more specific formulation of natural rights as inherent in the individual. James Otis, Samuel Adams, John Adams,[12] Thomas Paine, Patrick Henry, and Thomas Jefferson[13] made frequent use of the natural rights doctrine to support the right of rebellion against the arbitrary exercise of governmental powers. The Declaration of Independence gave a standard formula for the use of advocates of the doctrine in the dictum that men are "endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the pursuit of Happiness." Many of the Revolutionary patriots believed with Thomas Dickinson that liberties do not result from charters; charters rather are in the nature of declarations of pre-existing rights. They are founded, John Adams claimed, "in the frame of human nature, rooted in the constitution of the intellectual and moral world."[14] Until the adoption of the Declaration of Independence it was customary to regard these rights as having their sanction in the British Constitution.[15] "The law of nature and the law of revelation are both divine; they flow, though in different channels from the same adorable source," said James Wilson. In the course of his law Lectures he frequently extolled the instinctive or intuitive faculties whereby man arrived at principles of right and justice.[16]

The doctrine of the freedom and equality of men in their natural state, such as that described by Seneca and formulated into a dogma of mediaeval thought, was translated into a principle of political action. Governments, to justify their existence, were to be measured by the security they furnished for the natural principles of freedom and of equality.

Concepts of law in North America in the eighteenth and in the early nineteenth centuries were molded and, in considerable part, determined under the influence of the prevailing doctrine of inalienable rights and this idea gave a peculiar turn to all legal thinking. The law of the Colonies, the public papers and charters of the Revolutionary period, and the first written constitutions with specific enumeration of certain natural and inalienable rights, bear witness to the conviction that such rights were thought to exist, and that governments were designed primarily to preserve them.[17] Legislative enactments contrary to natural law or natural justice were regarded as ipso facto void and it was declared to be the duty of all persons to resist their enforcement. The view of the English philosopher that "that which is not just is not law and that which is not law ought not to be obeyed,"[18] was not infrequently taken as the starting point in the application of legal rules. Moreover, the belief in natural law and in inalienable rights aided materially in giving support to the courts when they were asserting the right to declare void enactments which interfered with these natural rights or contravened the express terms of written constitutions.[19]

The natural law philosophy, as a background for legal thinking, which was a part of the heritage of Western Europe and of America in the eighteenth century, was extensively used in America, where it was transformed into laissez faire individualistic dogmas under frontier methods of administering justice. It was also identified with the immemorial rights of Englishmen as declared by Coke and Blackstone. Into the philosophical mold of Grotius, Pufendorf, Burlamaqui, and Vattel was injected some of the characteristic ideas of Coke's Second Institute and of Blackstone's Commentaries and there was created a unique form of natural law, supposed to be universal in its applications.[20]

American political and legal theorists made use of every phase of natural law thinking. Judges with little legal training and with a scarcity of law books, when precepts from the Bible were not applicable, turned to natural law as a convenient symbol for the divine sanction of laws, after the fashion of the mediaeval canonists. To Paine and Jefferson, as with certain Greek thinkers, there was a disposition to recur to the deistic emphasis upon the laws of nature and to associate the concept with underlying principles of natural phenomena. Others identified the rights of nature with the rights of Englishmen. Though not so well known, Coke's appeal to natural law and to the higher reason of the common law was called upon by legal advocates when attacking obnoxious acts of the colonial legislatures, just as higher laws were appealed to in resisting the arbitrary acts of the King or of Parliament. The appeal to natural rights and natural law as a justification for the right of revolution was one of the chief features of the formative period of American institutions.

Natural law was also conceived as an ideal to which all just laws must conform,[21] as from the viewpoint of certain Greek and Roman jurists, and, in this sense, it was a convenient doctrine to temper the arbitrary features of a system of strict legal rules. It thus became an instrument of legal growth. Conceptions of a state of nature wherein men enjoyed natural freedom and equality conditioned the thinking of most of the Revolutionary leaders and through them a principle was announced which has proved to be one of the most insistent and fertile concepts of American legal thought, namely, that each individual is entitled to the equal protection of the laws.

Assuming a state of nature antedating organized political life wherein man was possessed of inherent and inalienable rights arising from the laws of nature, and basing government on a social compact resulting from this condition, there was formulated in the representative American constitution a group of rights belonging to the individual and of such superior sanctity that political society was formed primarily to preserve them. Out of a state of nature and emanating from the laws of nature arose the familiar inalienable rights which were superior to the state itself and, in fact, above all forms of political or social control. The theory of natural rights, which is the characteristic American interpretation of natural law, became the foundation for the concept of limited government which gained such a strong foothold in the United States. It gave the theoretical basis for the American doctrine of civil liberty which set the rights of the individual against the government and insisted on the formulation of limits on all forms of political authority.[22]

Thus the democratic ideas of the monarchomachs and of the representative theorists of England and of Continental Europe were made more concrete and more directly applicable to human affairs. It seems strange that this revival of the general acceptance of ideas of natural law and natural rights should have preceded by only a few decades a marked decline of the belief in natural laws of superior sanctity. Before considering the causes for this decline, it is necessary to trace briefly a similar revival of ancient superior law notions in France.

3. French Natural Law Concepts. The French system of law, arising as a direct development from the Roman law, was molded in its transmission through mediaeval channels in the light of the Roman and mediaeval concepts of natural law. Each variety of the concept characteristic of these periods had advocates in France. The divine sources and sanctions of natural law were particularly emphasized by French jurists of the Catholic faith. When human reason was given an important rôle in discovering natural law, it was in France that this rationalized natural law found many interpreters. The French attitude was well stated by Guizot, who said: "Any action, or any authority of man over man is legitimate only if it is in accord with reason, justice and truth, which are based on the law of God."[23] It was not until the modern period that mediaeval canon law, with its natural law principles, and local customs, often arising from similar sources, were replaced by laws emanating from a king or assembly. Fostering ideas of permanence and uniformity amidst the variations in the customary law and in the diversities of the provincial practices the natural law theories were looked upon as a factor of unity; and those favoring a united France became devoted exponents of the law of nature philosophy.[24]

When the French kings in their conflict with the Papacy fell back on the practices of the Roman imperialists, they asserted principles of political supremacy which were destined to weaken the controlling force of natural law. Bodin, as we have seen, became the philosopher of royal absolutism and he relegated natural law to principles which were merely a guide to the king's conscience. To those bent upon establishing an unlimited political sovereign, superior natural laws were an obstacle to be obliterated. But higher law ideas were too well established in the legal background of French thought to be entirely discarded. Moreover, the efforts to make of the king a ruler without limits on his authority soon brought an inevitable reaction in which natural law ideas again came to the forefront. The economic and political conditions of the Ancien Regime prepared the way for the French Declaration of the Rights of Man.

Prior to the French Revolution the Physiocrats advocated the doctrine of natural rights. There is, in effect, observed Quesnay, above positive laws, a body of laws, sovereign, immutable, and inviolable. Legal rules which conform to this body of laws are valid; those which are contrary thereto are void.[25] The natural rights of the individual, they contended, comprised three species of property. "First, the property of his person which includes the right to use all his faculties, and hence the right to labor; Second, movable property which consists of the results of his labor; Third, landed property."[26] To the Physiocrats laws were rules of justice and morality; they were not made by men but were merely discovered. They believed that certain laws, especially those relating to liberty and property, were essential to the social order and that only ordinances to carry out such laws could be made by legislatures or executives.[27] The essence of the Physiocratic doctrine was laissez faire in character, or to the effect that "economic law might be depended upon to bring about the best good of men and nations, if governments kept their hands off."[28] They insisted that governmental action ought to be restricted within the narrowest limits and individual activity ought to have every possible opportunity for expression — a doctrine which has left its impress on many of the aspects of American legal thinking. But in certain respects the ideas of the Physiocrats, as those of their predecessors, tended to favor state absolutism.

The French kings of the seventeenth and eighteenth centuries sought to assert complete control over the social and political life of the nation. Bossuet, the defender of this regime, followed Bodin and Hobbes and based the origin of all governments on force.[29] Emerging doctrines of nationalism gave encouragement to the assertion of principles of state absolutism. The doctrine of individual rights as a basis to check the public powers had not yet impregnated French legal thought. Mediaeval doctrines of a superior natural law, however, served to give a sanction to the assertion of a theory of individual natural rights. Extreme instances of the use of arbitrary authority by the kings were paving the way for resistance sanctioned again by appeals to higher laws. Political theories often take their peculiar forms because of attempts on the part of those interested to defend a cause. And in this case Protestants and Catholics following theories earlier formulated in Europe advocated limits on royal authority in the interest of the people.

Though the old French parlements performed in the main judicial functions as courts of the king over which he presided and whose judgments he might reverse, the natural division of powers which resulted led to the assumption of a share of the political powers by these bodies.[30] To them was accorded the duty of registering the royal edicts and in doing so they began to question the validity of the acts of the king or of his agents. As early as 1648 the parlements had proclaimed the necessity of "a legal order" and as a basis for such an order proposed certain fundamental laws or fundamental principles which were so essential that the king could not change them.[31] "Thus there appeared in an absolute monarchy, by the simple fact of the separation of powers, an organ of resistance and of control. The parlement, recruited from the higher middle class, claimed to be the guardian of the fundamental laws of the kingdom and considered itself as a moderating power designed to curb the excesses of royal absolutism."[32] A convenient vagueness in the term "fundamental laws" encouraged the members of the parlements to intervene on behalf of the people whenever a favorable opportunity occurred.[33] If need be the king could in the end secure his way by arresting and banishing the leaders of the parlements, but these bodies regarded themselves as mediators between the king and the people and served to keep before the public a belief in fundamental laws which the king could not change.[34]

Some of the cahiers issued preceding the French Revolution in resisting certain decrees frankly based their protests on the doctrine of fundamental and superior laws.[35] These mild protests accomplished little toward checking the tendencies in the direction of royal absolutism. But they strengthened the insistence on higher law ideas which were soon to find expression in the Declaration of the Rights of Man and of the Citizen.

Just as the leaders of the American Revolution appealed to the doctrine of natural and inalienable rights, so those who directed the French Revolution recognized as a fundamental truth the existence of similar rights.[36] A controversy has ensued among scholars as to whether the draftsmen of the French declaration were guided by the doctrines of Montesquieu and of Rousseau as well as of their predecessors or by the previous American declarations.[37] Whatever may be the merits of the claims of the partisans on each side it was the French Declaration which heralded to the world the great principles of natural and inalienable rights which were considered superior to all governments and which it was the prime duty of all democratic states to protect.[38] The doctrine of natural rights again based on the natural and necessary laws of a state of nature was made the very cornerstone of a political system. Differing from the major portions of the bills of rights of the American constitutions, which were comprised mainly of some of the hard-won privileges which Englishmen had acquired in centuries of conflict with their rulers, the French provisions were rather in the nature of vague theories or platitudes which had little practical meaning to the Frenchmen of the time. Similar theories were, of course, included in the Declaration of Independence and in certain provisions of the state constitutions.

Though the Declaration of the Rights of Man and the political and social philosophy involved therein left a permanent impression upon European thought, the conservative reaction which followed the French Revolution brought into disrepute natural and inalienable rights concepts which were regarded akin to ideas of violence and terrorism. It became unpopular in certain quarters to support the law of nature doctrines or to appeal to higher laws than those promulgated by the rulers. But Roman law principles and various ideas connected therewith were conducive to the continuance of natural law doctrines. And during the nineteenth century many treatises appeared, the object of which was to adapt natural law phrases prevalent in codes and in the customary legal terminology to the peculiar conditions of the time. Various schools of legal philosophy continued to be protagonists of natural law theories when in political circles these theories were regarded as exploded vagaries. To the efforts to keep alive natural law doctrines attention will be directed later. But these efforts for the time being seemed to be obscured by the persistent influences designed to discredit natural law theories.

4. The Decline of the Natural Rights Philosophy. As the enthusiasm waned which fostered eighteenth-century political radicalism in America and in France and the radical movement came into disrepute in all countries it became popular to discredit the natural rights thinking. To the conservative leaders who took charge of the political destinies of the European nations after the French Revolution the inalienable rights doctrine was "an invitation to insurrection and a persistent cause of anarchy."[39] And when the reaction from the practices and the political philosophy of the American and the French Revolutions gained ascendency in the United States one of the chief objectives was to discredit Thomas Jefferson and the tenets of the Declaration of Independence.[40] Both in politics and in religion, conservatism was in control, and men were disposed to welcome theories which made for social stability.[41] It is well to note that it was the politicians who were seeking greater political authority and those who were inclined to support absolutism in government who were chiefly concerned in the repudiation of natural rights and related natural law theories. Local justices in the application of the law to concrete cases and the people generally clung to natural law concepts long after they were thought to be repudiated in high political circles.

The anti-natural rights doctrine, according to Mr. Becker, became the accepted creed of all those who wished to be classed neither with the reactionaries nor the revolutionists, those liberal-conservatives and conservative-liberals who realized that they lived in a changing world but ardently prayed that it might not change too rapidly.

To prevent the world from changing too rapidly, nothing is more effective than to look with admiration on the past.[42]

A combination of factors tended to discredit the natural rights doctrine. Politically the doctrine was used to justify not alone political democracy but also the free right of the people to change their governments — namely, as a sanction for the right of revolution.[43] When the right to revolt led to the Reign of Terror and its aftermath the political reaction that followed in Europe placed the stamp of disgrace on the much-heralded doctrines of the revolutionary period.[44] Michel finds that the reaction against the individualistic doctrines of the French Revolution was fairly complete by 1825. French political thought with the exception of small groups had turned away from the belief in natural rights, anterior and superior to the state. Rights were the result of laws and laws came from a state or political power with supreme authority. Public powers were limited only by the personal God of De Bonald or the Absolute of Hegel, but the sovereign alone was to be judge of the nature of these limits.[45] The attack on eighteenth-century individualism was encouraged and strengthened also by the economic doctrines advocated by Saint Simon and his followers. There is no place in his system for the idea of rights but instead of rights he directs attention to interests.

In America the conservative reaction which followed the periods of the Revolution and of the Confederation did not so quickly discredit the natural rights philosophy of the Declaration of Independence, but the defenders of this philosophy grew fewer in number while the critics and opponents increased.[46] Some authors, Dr. Wright observes,

like Chipman, Hurlbut, Lieber, and Gerrit Smith, retain almost unchanged the traditional American theory that the basis of all laws and of all rights is to be found in the immutable truths taught by nature and to be learned by men through the use of reason, conscience, and the revealed work of God. Others, like Calhoun, Brownson, Fitzhugh, and Hildreth, discard the idea that there are certain inalienable rights derived from nature, although in every case holding that there are basic laws or principles which underlie all government and all of the social and economic relationships of men.[47]

He finds only one writer, Thomas Cooper, who attempts to refute the whole natural law theory.[48]

In England the natural rights theories were attacked also quite vigorously by the Social-Utilitarians who repudiated the foremost eighteenth-century political theories and made social utility the test of political institutions. Bentham, one of the leaders of this school, lent the weight of his influence against the natural law doctrines. For the idea that men had rights by nature which the sovereign was compelled to respect Bentham felt great contempt, nor did he have any confidence in the effort to place limitations on the supreme authority in a state.[49] "To maintain," says Bentham, "that there is a natural right and to impose it as a limit to positive laws, to say that law cannot go against natural right, to recognize, in consequence, the right which attacks law, which overturns and annuls it, is at once to render all government impossible and to defy reason."[50] He and his associates could see no limits to the sovereign power except restraints through the judgment of those in whom this power was reposed.

The historic method which grew in favor in history and in politics admitted that rights were founded in nature but identified nature with history and affirmed that the institutions of any nation were properly but an expression of the life of the people. By a change in the definition of nature the former concepts were made the basis for anti-revolutionary philosophies.

Historians such as Ranke[51] and Renan,[52] the philosopher, Hegel,[53] and the sociologist Auguste Comte[54] also joined the ranks of those who sought effectively to dispose of the ideas of natural rights superior to man-made regulations. And the historical school of jurists led by Savigny repudiated the eighteenth-century doctrines of natural rights and of a law of nature. To this school law existed independently of the state. It was the creation of the national consciousness or the spirit of the people and was evidenced by their customary habits. It was merely the function of the state to discover and enforce these customary laws.[55] Rights do not belong to man, as such, Savigny maintained, they are the result of positive laws. And positive laws, like language, morals, social and religious institutions, develop through the customs, habits, and traditions of a people. And with the aid of the historical jurists the older concepts of the law of nature and of natural rights were to give way to legal ideas as an outgrowth of history. Law was conceived as the unfolding of ideas of right through the customs and traditions to which people give obedience.[56] The philosophic forces at work in this development are suggestively characterized by Justice Cardozo, who observes that

the seventeenth and eighteenth centuries put their faith in Nature, and "their dominant philosophy was that of natural law." Preordained and immutable were the patterns to which conformity was due. The nineteenth century put its faith in unconscious and undirected growth; and Nature dethroned as an exemplar, was made to yield place to History. "None of the nineteenth-century interpretations will hear of an element of creative activity of men as lawyers, judges, writers of books, legislators. They have nothing to say about juristic endeavors to reconcile or harmonize or compromise overlapping claims by creative reason or an inventive process of trial and error. They think of the phenomena of legal development as events, as if men were not acting in the bringing about of every one of them." In the thought of this school, law is in the grip of forces stronger than itself, which shape the path of its advance.[57]

Thus the historical school of jurisprudence set about to destroy all vestiges of the ideas of natural law or natural rights.[58]

The natural rights philosophy received its most direct blow from the jurist John Austin and his successors who founded the analytical school of jurisprudence, and the advocates of the German theory that the state is the sole source and sanction of law, such as Ihering, Laband, and Jellinek. The Austinians conceived as the essence of the state a sovereign — a supreme, irresistible, absolute, and uncontrolled authority. The rules made or sanctioned by this authority were laws — all other rules were merely customs, habits, or moral practices. Questions relative to justice and to the aims of the law were consigned to the domain of positive morality.[59] Thus much of public law was denied the status of law, and the familiar dogmas of natural law and of inalienable rights were utterly repudiated. To the followers of Austin the attack upon natural rights, so far as such rights are accorded legal significance, is one which must be continued until no trace of the concept is left. Similar views were advocated by the supporters of the Macht Politik in Germany.[60]

Many factors and influences combined, therefore, to discredit political theorizing based on the doctrine of natural rights until it was referred to as "an exploded theory no longer believed in by any one of note."[61]

Natural law was absorbed as a feature of American public and private law at a time when the theories on which such a law was based were declining in Europe. The decadence of natural law concepts which affected the political circles mainly and which was characteristic of the decades in the middle of the nineteenth century in most European countries had its counterpart in the United States in somewhat narrowing the scope of the law of nature thinking and in giving the term a rigidity which tended to support the existing legal order. It was under these conditions that the courts fostered the gradual acceptance of some principles of natural law in the public law of the United States.

1. See De Jure Belli ac Pacis, Book I, chap. 1.

2. Recognizing that the formulation and classification of the inborn and indestructible rights of the individual belonged to a later stage in the growth of the theory of natural law, Gierke observed that mediaeval thought was filled with such ideas. Political Theories of the Middle Ages, p. 81; cf. also, Gierke, Johannes Althusius, pp. 107 ff. It is obvious that to attribute the origin of the theory of natural rights to the Protestant revolt is incorrect. Cf. David G. Ritchie, Natural Rights: A criticism of some political and ethical conceptions (3d ed., London, 1916), p. 6.

3. Gierke, Johannes Althusius, p. 175. For the effort to distinguish between immutable laws which do or do not admit of exceptions, see Domat, The Civil Law in its Natural Order, trans. by Wm. Strahan (2d ed., London, 1737), I, 64.

4. M. de Vattel, Le droit des gens ou principes de la loi naturelle appliques a la conduite et aux affaires des Nations et des Souverains (ed. of 1758) reproduced in the Classics of International Law, edited by James Brown Scott and published by the Carnegie Institution of Washington (1916).

5. Vattel, The Law of Nations, III, 3, 4. Professor Reeves thinks that the "impress of the law of nature upon the American ideas of the law of nations seems upon the whole not to be great." His view is apparently influenced by the tendency of American lawyers to depreciate natural law ideas. J. S. Reeves, "The Influence of the Law of Nature upon International Law in the United States," American Journal of International Law, III (1909), 547.

6. The Law of Nations, III, chap. 3.

7. Cf. Introduction by Albert de Lapradelle, in Vattel, op. cit.. III, viii. John Milton claimed, in the Gangreana, that "all men are by nature the sons of Adam, and from him have legitimately derived natural propriety [property], right and freedom. By natural birth all men are equally and alike born to like propriety, liberty and freedom."

8. One reason why Englishmen have given less consideration to natural rights, it is claimed, is that they have regarded their liberties as due to acquired rights rather than to natural rights. To them the concept "natural" became identical with the term "traditional." Jones, Cambridge Legal Essays (Cambridge, 1926), p. 228.

9. According to the classical natural law theory prevalent in colonial times all positive law was "a reflection of an ideal body of perfect rules demonstrable by reason, and valid for all times, all places and all men. Positive legal precepts got their validity from their conformity to these ideals" Pound, "The Theory of Judicial Decision," Harvard Law Review, XXXVI (May, 1923), 802.

10. P. S. Reinsch, "Colonial Common Law," Select Essays in Anglo-American Legal History, I, 376, 413; Professor Reinsch observes that "the analytical theory of Hobbes, making positive law independent of moral considerations and basing it on a sovereign will, was not accepted at that time. The law of God, the law of nature, was looked upon as the true law." For citations of representative colonial opinions see B F. Wright, Jr , "Natural Law in American Political Theory," Southwestern Political and Social Science Quarterly, IV (December, 1923), 202, 206. Cf. for example, John Wise, "A Vindication of the Government of New England Churches" — a pre-revolutionary treatise based on the natural law doctrines of Pufendorf.

11. Professor McIlwain maintains that the colonists based their argument for freedom from control by Parliament, first on their charters; second, on the contention "that the English constitution, founded on natural law, was a free constitution, guaranteeing to all its subjects wherever they might be the fundamental rights incident to free government"; and third, on a "non-constitutional appeal to natural law, no longer as a part of the British constitution, but as the rights of man in general." The American Revolution. A constitutional interpretation (New York, 1923), p. 152.

12. John Adams thought there were "rights antecedent to all earthly government — Rights, that cannot be repealed or restrained by human laws — Rights, derived from the great Legislator of the Universe." Works, ed. by C. F. Adams (Boston, 1865), III, 449. See also Otis, The Rights of the British Colonies Asserted and Proved, pp. 11, 16.; Wells, Life of Samuel Adams (Boston, 1865), I, 16-23, 70-77; and Thomas Paine, The Rights of Man.

13. For Jefferson's views, see Writings (Ford's ed.), V, 147, 329; VI, 87, 88, 102, 517; VII, 172, 406.

It was asserted that colonial rights were based on "the immutable laws of nature, the principles of the English Constitution and the several charters or compacts." Journals of the Continental Congress, ed. by Ford (Washington, 1004), I, 67.

James Otis in his argument against writs of assistance relied on natural rights and fundamental law. Cf. The Rights of the British Colonies; also C. H. McIlwain, op. cit., and my article "The Law of Nature in State and Federal Judicial Decisions," Yale Law Journal, XXV (June, 1916), 617, 623.

Jefferson in the Declaration of Independence in qualifying the inalienable rights used the English formula "life, liberty and the pursuit of happiness." The Virginia constitution asserted that: "All men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety." Constitution of Virginia, June 12, 1776.

The right to revolt was characterized in the Massachusetts declaration as "incontestable, unalienable and undefeasible."

14. See B. F. Wright, Jr , "American Interpretations of Natural Law," American Political Science Review, XX (Aug. 1926), 524 ff.

15. Samuel Adams, Writings (ed. by H. A. Cushing, 1904), I, 65. "The primary, absolute, natural rights of Englishmen as frequently declared in acts of Parliament from Magna Carta to this day, are personal security, personal liberty, and private property." Wells, Life of Samuel Adams, I, 75-77.

16. Works (ed. by Andrews), 1, 106, 117, 124. Wilson expressed the current opinion among lawyers and judges during the Revolutionary period when he wrote: "The law of nature is immutable; not by the effect of an arbitrary disposition, but because it has its foundation in the nature, constitution, and mutual relations of men and things."

17. Jefferson believed that the "will of the majority is in all cases to prevail, but that will to be rightful, must be reasonable; that the minority possess equal rights, which equal laws must protect, and to violate would be oppression" Legitimate restraints on the rule of the majority were inalienable rights and the laws of reason. Works, VIII, 2. When Secretary of State and President, Jefferson continued to apply doctrines of natural right and natural law. "The evidence of this natural right [expatriation], like that of our right to life, liberty, the use of our faculties, the pursuit of happiness, is not left to the feeble and sophisticated investigations of reason but is impressed on the sense of every man." The Writings of Thomas Jefferson (ed. by H. A. Washington), VII, 73. He also defended the right of navigation on the Mississippi on the broad ground of the law of nature and of nations.

18. Sydney, Discourses Concerning Government, Book III, chap. 11 See also, Pound, "Comparative Law in the Formation of American Common Law," Acta Academiae Universalis Jurisprudentiae Comparativae (1928), I, 183 ff.

19. The American Doctrine of Judicial Supremacy, pp. 18 ff., and D. O. Wagner, "Some Antecedents of the American Doctrine of Judicial Review," Political Science Quarterly, XL (December, 1925), 561 ff.

20. Pound, "The Theory of Judicial Decision," Harv. Law Rev., XXXVI, pp. 804, 805. Hamilton identified the common law and natural law. Works (ed by Lodge), VIII, 421.

In the disputes between the English political leaders and the colonists of America, Dr. Wright notes that those "who had read the orations of Cicero, the writings of Grotius and Vattel, Pufendorf and Burlamaqui, Locke and Blackstone, who had listened to sermons upon the eternal supremacy of the laws of God or had perused the arguments of the deists found in such philosophy controversial weapons suited to their needs" See, "American Interpretations of Natural Law," Amer. Pol. Sci. Rev, XX, 526 And he observes, "In the writings of all of the most influential theorists of the time the concept of a superior law of nature, from which are derived the basic rights of men, holds a very prominent place."

21. Natural rights and natural law, as an ideal form of the actual law were in the seventeenth and eighteenth centuries "guides to lead growth into definite channels and insure continuity and permanence in the development of rules and doctrines." Pound, An Introduction to the Philosophy of Law (New Haven, 1922), p. 44.

22. "The constitutional doctrine of the seventeenth and eighteenth centuries, working with the tools of natural law, erected constitutional limitations into legal obligations founded on unimpairable contract, gave a vis coactiva to constitutional limitations, enforceable if necessary by the right of resistance, and posited for every state an implied constitution founded on the natural law rights of the individual and having as much force as a written constitution." Edwin M. Borchard," Government Responsibility in Tort," Yale Law Jour., XXXVI (April, 1927), 794.

23. See, F. P. Guizot, Works, V, 60, 399, 519, and Histoire des origines du gouvernement représentatif en Europe (Brussels, 1851), II, Lecture X.

24. Voltaire referred to natural laws and natural rights which have a fundamental and immutable character. Oeuvres Completes, (new ed., Paris, 1883). In speaking of intolerance and natural law he wrote: "Natural law is that law which nature has indicated to all men." XXV, 39. At another time he referred to rights as never being established only by necessity, or force, or custom. XV, 452.

25. Quesnay, Traité du droit naturel, chap. 5, p 376. A dictum to which the Physiocrats referred was: "Ex natura jus, ordo et leges, ex hominare bitrium, regimen et coercitio."

26. William A. Dunning, Political Theories from Luther to Montesquieu, p. 59.

27. Cf. Henry Michel, L'ldée de l'état (2d ed , Paris, 1896) 17 ff.

28. Ibid., p 62. For the natural law doctrines of the Physiocrats see Quesnay, Traité du droit naturel (1765), L'ordre naturel et essential des sociétés politiques (1767). Physiocrates, Par. I, 41 and Par. II, 445.

29. Henry Michel, op. cit., pp 4 ff.

30. Glasson, Parlement de Paris et son rôle politique.

31. A. Esmein, Cours élémentaire histoire du droit français (11 ed., Paris, 1912), pp. 582 ff., and V. Marcaggi, Les origines de la déclaration des droits de l'homme de 1789 (2e ed., Paris, 1912), p. 85. Marcaggi observes that the history of the états généraux (States-General) is replete with illustrations of the assertion of the rights of man in opposition to the rights of the state.

32. Jean Brissaud, A History of French Public Law, trans. by James W. Gamer in Continental Legal History Series (Boston, 1915), p. 447.

33. V. Marcaggi, op. cit. p., 98. The remonstrance of March the 4th, 1776 cited the fundamental rule of natural law which protects the rights of person and property. Ibid., p. 101.

34. Jean Brissaud, op. cit., pp. 448 ff.; Esmein, op. cit., pp. 595 ff.

35. Marcaggi, op. cit., chap. 8.

36. Article I of the Declaration of the Rights of Man and of the Citizen, states that "Men are born and remain free and equal in rights. Social distinctions may be founded only upon the general will." "The aim of all political association is the preservation of the natural and indefeasible rights of man. These rights are liberty, ownership, security, and resistance to oppression." See also article I of the Declaration of Rights of 1793. See Robert Redslob, Die Staatstheorien der franzosischen nationalversammlung von 1789 (Leipzig, 1912).

The extent to which the ideas of the Declaration of Rights are based upon the political philosophy of Grotius, Pufendorf, Burlamaqui, and Vattel, concerning the natural equality and freedom of the individual, the right to own and use property, the liberty of conscience, and the consent of the people as the source of government, is considered by Marcaggi, op. cit., pp. 109 ff.

37. Sir Paul Vinogradoff regards the French declarations as only "the last consequences of a movement which is preeminently English and American." Yale Law Jour., XXXIV, 65. George Jellinek defended the thesis that the impetus for the French Declaration was given by Rousseau and its prototype was the American Declaration of Independence. The Declaration of the Rights of Man and of the Citizens, trans. by Max Farrand (New York, 1901). For reply to Jellinek, see Boutmy, Annales des sciences politiques, July 15, 1902. See claim that the Declaration of Rights comes from Rousseau, Paul Janet, Histoire des doctrines politiques (2d ed.), II, 612 and Tchernoff, Revue du droit public (1903), II, 96. For denial of this claim cf. Léon Duguit, "The Law and the State," Harv. Law Rev., XXXI (Nov. 1917), 27 ff. See also E. Doumergue," Les origines historiques de la Declaration des droits de l'homme et du citizen," Revue du droit public, XXI (1904), 673; and Fritz Klovekorn, Zur Entstehung der Erklärung der Menschen und Bürgerrechte (Berlin, 1910).

38. Jellinek, op. cit., p. 88. Marcaggi deals fully with different phases of this controversy. He concludes that the Declaration of 1789 was essentially a French product — the French Declaration presenting an interpretation, philosophic in character, of superior laws, universal and immutable, whereas the English and American bills of rights were traditional and practical in character. Jellinek declares that "whatever may be the value or worthlessness of its general phrases it is under the influence of this document that the conception of the public rights of the individual has developed in the positive law of the states of the European continent." Op. cit., p. 2.

39. Carl Becker, The Declaration of Independence (New York, 1922), pp 256, 257. Edmund Burke styled the French Constitution of 1793 a "digest of anarchy."

40. At the time of the adoption of the federal Constitution, Professor McMaster states that "we see that very scanty recognition seems to have been given to the equality of men, or to their inalienable rights to life, liberty and the pursuit of happiness." John Bach McMaster, The Acquisition of Political, Social and Industrial Rights of Man in America (Cleveland, 1903), p. 40.

41. Becker, op. cit., p. 258. The chief object at this time was "to make terms with political democracy without opening the door to social upheaval." Ibid., p. 238.

Eighteenth-century natural law developed anti-social tendencies by making the individual conscience the ultimate arbiter of political and legal obligations. Cf. Pound, Law and Morals (2d ed.), 88, and Justice Wilson's dictum that "The consent of those whose obedience the law requires ... I conceive to be the true origin of the obligation of human laws." Works (Andrew's ed.), I, 192. David G. Ritchie set about in an extensive treatise to demolish the theories of natural rights. "I had a certain fear," he wrote, "that in criticising that famous theory I might be occupied in slaying the already slain. Recent experience has, however, convinced me that the theory is still, in a sense, alive or at least capable of mischief. ... The real significance of the appeal to nature is, in the first place, the negative element in the appeal, it is an appeal against authorities that had lost their sacredness, against institutions that had outlived their usefulness." Natural Rights: A Criticism of some Political and Ethical Conceptions (London, 1895), IX, 13.

As is the case with other opponents of the doctrine the gist of Ritchie's argument centers about the use of the terms "natural" and "necessary" and some who refuse to accept his version of the use of these terms regard his criticism as largely futile and overdrawn. For instance, A. Inglis Clark believes that Ritchie's work contains "the materials for a perfect defense of the doctrine which it was written to confute." "Natural Rights," in The Annals of the American Academy of Political and Social Science, XVI (1900), 221.

42. Becker, op. cit., p. 266.

43. Justice Wilson, an exponent of natural rights theories, believed that "no exterior human authority can bind a free and independent man." Works (Andrew's ed.), I, 192; cf. also, Letters of Jefferson, Writings (Ford's ed.), V, 115-124; X, 37, 42-45.

44. For English reactionary views, see H. J. Laski, English Political Thought from Locke to Bentham, pp. 243-256 and for the reaction of the historical school of jurisprudence, consult Savigny, Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft (1814).

45. Michel, op. cit., pp. 164-168.

46.Professor Becker thinks "the political ideas which in the United States discredited the doctrines of the Declaration of Independence were similar in essentials to those which in Europe had already deprived the Declaration of the Rights of Man of its former high prestige." The Declaration of Independence, p. 256.

47. "American Interpretations of Natural Law," Amer. Pol. Sci. Rev., XX, 536; see also Wright, "George Fitzhugh on the Failure of Liberty," Southwestern Pol. and Soc. Sci. Quar., VI (December, 1025), 219.

48. "American Interpretations of Natural Law," Amer. Pol. Sci Rev., XX., 537.

49. William A. Dunning, op. cit., p. 217.

50. Works, 1, 136. "The founders use this phrase [natural law] as if there were a code of natural laws, they appeal to these laws, they cite them, they literally oppose them to the laws of the legislators, and they do not perceive that these natural laws are of their own invention." Bentham, in Principles of Legislation, Part I, XIII, 46. Cf. chapter by Michel on "La reaction en Allemagne et en Angleterre," pp. 134 ff.

Sir Frederick Pollock charges Bentham with being a follower of a form of Naturrecht which is "no more congenial to the positive law which lawyers discuss and administer than that of Ahrens or Kant." Science of Politics, p. 111.

For Burke's criticism of the French theories of the rights of men consult his Reflections on the French Revolution (1790).

51. Cf. Friedrich Meinicke, Die Idee der Staatsräson (2d ed. Berlin, 1925), pp. 468, 480; also Renan, L'Avenir de la science.

52. Renan believed that the individuals who insisted on natural or inherent rights were rarely able to appreciate them if guaranteed protection by the state, and he thought the needs of society should take precedence over individual rights. Op. cit., p. 357, and Questions contemporaines, p. 477; cf. also, Philip G. Neserius, "The Political and Social Philosophy of Renan," Southwestern Pol. and Soc. Sci. Quar. VIII (June, 1927), 40, 41. Natural rights or rights belonging to the individual were to be replaced by "the right of reason to govern humanity and by rights which are the result of history."

53. Grundlegung der Philosophie des Rechts, secs. 104-114; Reyburn, Hegel's Ethical Theory, pp. 118-121; Michel, op. cit., pp. 154 ff. Hegel repudiated the ideas of a state of nature and of natural rights resulting therefrom. He believed that the ultimate sanction of a state's power is force and that the prince or sovereign cannot be bound by a higher law.

54. "No man has any rights properly called. No one possesses any other right than that of always doing his duty." Comte, Politique positive, II, 361.

55. Vom Beruf unserer Zeit für Gestezgebung und Rechtswissenschaft (1814), pp. 5 ff., and System des heutigen Romischenrechts, sec. 7. Consult also followers of Savigny, G. F. Puchta, Kursus Institutionem and F. J. Stahl, Die Philosophie des Rechts (Heidelberg, 1854).

"Glorification of the positive law that is, to the disparagement of the natural law that ought to be, is characteristic of the reaction that has followed the rationalistic liberalism of the Age of Enlightenment. It may be that this positivism is largely due to the expansion of modern industry and commerce which has caused lawyers to be more concerned with the protection of private economic interests than with the larger issues of social well-being. In any case it is true that since the French Revolution, authoritarian reactionaries like De Maistre, romantic historicists like Savigny, idealizers of the actual like Hegel, utilitarians like Bentham, and positivists like Comte, have all united to heap scorn on the old liberal doctrine that men can and should change law to conform to their idea of natural law or justice." From Morris R. Cohen, "Positivism and the Limits of Idealism in the Law," Columbia Law Review, XXVII (March, 1927), 237.

56. Cf. Pound, Law and Morals, 2d ed., pp. 15-25. Dean Pound observes that "the historical jurist merely gave us a new natural law on a new basis." Ibid., p. 21.

57. Review of "Interpretations of Legal History," by Pound, Harv. Law Rev., XXXVII (December, 1923), 280.

58. R. Saleilles, "Ecole historique et droit naturel d'après quelques ouvrages recents," Revue trimestrielle de droit civil, I (1902), 80 ff.

59. See John Austin, Lectures on Jurisprudence, 5th ed., edited by Robert Campbell (London, 1885), I, 86, 178; II, 567 ff.

"The whole or a portion of the laws set by God to men is frequently styled the law of nature, or natural law; being, in truth, the only natural law of which it is possible to speak without a metaphor, or without a blending of objects which ought to be distinguished. But, rejecting the appellation Law of Nature as ambiguous and misleading, I name those laws or rules as considered collectively or in a mass, the Divine Law, or the Law of God." Ibid., 1, 86. Austin regarded the laws of God as laws In the proper sense because they were commands. I, 89, 175, 183, 338; also, Vinogradoff, Historical Jurisprudence, I, 115 ff.

60. Duguit, "The Law and the State," Harv. Law Rev., XXXI (November, 1917), 126 ff.

61. George Lawrence Scherger, The Evolution of Liberty (New York, 1904), p. 11.

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