Declaring the Laws of Nature
“When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”
The Declaration of Independence is a précis of the Enlightenment’s fundamental principles, which can be summed up in four words, each connected to one of the four branches of philosophy: in metaphysics—nature; in epistemology—reason; in ethics—rights; and in politics—constitutionalism.1 The Declaration’s underlying philosophic structure and logic mirrors the Enlightenment project: it has a metaphysics and an epistemology that are presented in the first paragraph, and it has an ethics and a politics that are presented in the second paragraph. The Declaration captures the spirit of the philosophic revolution launched by the Enlightenment’s two greatest thinkers: Isaac Newton and John Locke. Its metaphysics and epistemology are drawn from Newton’s Philosophiae Naturalis Principia Mathematica and Locke’s Essay Concerning Human Understanding, and its ethical and political teachings are drawn from Locke’s Second Treatise of Government. It was Newton who taught the colonists about the physical laws of nature, and it was Locke who most influenced their views on the nature of reason and the moral laws and rights of nature.2
In 1787, the Reverend Nathanael Emmons captured the importance of Newton and Locke to the revolutionary generation in these terms: “Newton, by his discoveries in the material, and Locke, by his discoveries in the intellectual world, have enlarged the boundaries of human knowledge, and of human happiness.” Three years earlier, the Reverend Samuel McClintock delivered a sermon to the New Hampshire legislature in which he lauded America as the home of the Enlightenment, a place where the “Locks and Newtons making new discoveries in the laws of nature, and the latent powers of the human mind” could inspire a new society “rising to a degree of perfection hitherto unknown.”3
The Declaration’s first paragraph is rarely read with the care it deserves. Readers should ponder its words carefully:
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
The first paragraph introduces in an abstract form the Declaration’s purpose, its principles, and the actions that follow therefrom. Its purpose is to “declare” to the world the “causes which impel” the colonists to separate from Great Britain. Its principle is defined by the “Laws of Nature and of Nature’s God,” against which the colonists have judged the actions of their oppressors and to which they now appeal in order to refound their political institutions. And its action is defined by the necessity to dissolve their connection to Great Britain.
Implicit in this opening paragraph are certain metaphysical and epistemological assumptions that are respectively Newtonian and Lockean in character, and which can be summed up in two words: nature and reason. By nature and reason, Newton, Locke, and America’s founders meant something like this: first, that nature is fixed (which means that all entities have a fixed identity) and is governed by universal laws of cause and effect; second, that nature is knowable (which means the efficacy of human reason); and third, that nature and reason therefore provide the standard of human action. In sum, the first paragraph says this: reason is the means and nature is the standard by which men must distinguish between freedom and slavery. Let us now unpack this highly essentialized summary.
REASON, OR “A DECENT RESPECT TO THE OPINIONS OF MANKIND”
The first paragraph of the Declaration announces to the world the intention of the colonists to declare their independence from Great Britain. Out of a “decent respect to the opinions of mankind,” the Americans will demonstrate to “a candid world” the “causes which impel them to the separation.” By showing respect to the “opinions of mankind” and by appealing to the “Laws of Nature,” the Declaration says that the American Revolution is to be guided by reasoned philosophic analysis. In effect, it says this: We, the assembled representatives of the United States, shall identify and define our fundamental principles and then announce them to the world as demonstrably true. The objective of the Declaration is to elucidate the conditions of slavery and freedom that justify the Americans in their separation.
Jefferson and his fellow Americans are thus appealing to nature and to man’s reason as the standard of moral and political right. According to the Declaration’s first paragraph, reason is capable of apprehending three important things: first, the evidentiary facts that prove a design on the part of British imperial officials to enslave them; second, the moral standard against which these unjust acts are to be judged (and on which new political institutions are to be built); and third, the necessity of separation. Jefferson and his revolutionary compatriots believed that their indictment of wrongs committed by George III and the self-evident truths on which they would construct a new political society could be known and understood by all men everywhere.
Jefferson’s affirmation of the important role played by reason was common among the revolutionary generation. In his Notes on the State of Virginia, Jefferson advanced one of the clearest Enlightenment statements on the efficacy of reason: “Reason and free inquiry are the only effectual agents against error…. They are the natural enemies of error, and of error only…. Reason and experiment have been indulged, and error has fled before them. Truth can stand by itself.”4 Unassisted human reason was for Jefferson the only means by which to discern the laws of nature. In a 1787 letter to his nephew, Peter Carr, Jefferson advised the young man to “fix reason firmly in her seat and call to her tribunal every fact, every opinion. Question with boldness even the existence of God; because, if there is one, he must more approve of the homage of reason, than that of blindfolded fear.”5 This is the same principle that Jefferson, Adams, Washington, and the other revolutionaries applied to their dispute with Great Britain. The overarching principle of the Declaration’s first paragraph is that reason can distinguish between just and unjust, good and bad, freedom and tyranny. The American case will rest on facts submitted to a candid world, with reason as the judge.
The main burden of the Declaration was to demonstrate that the actions of King George III and the British Parliament necessarily amounted to despotism, thus impelling the Americans to declare their independence from Great Britain. In the middle of the Declaration’s second paragraph, Jefferson presents an informal indictment against George III, the purpose of which was to define the conditions of tyranny. Recent events (a long train of abuses by the king and Parliament) demonstrated, according to Jefferson, nothing less than a “design to reduce” the Americans “under absolute despotism.” This is a stunning claim. What could it possibly mean?
From the beginning of the imperial crisis, the most impressive American minds charged British authorities with a “design” to enslave them.6 As early as 1765, John Adams raised the alarm in his “Dissertation on the Canon and Feudal Law,” in response to the Stamp Act: “Nothing less than this seems to have been meditated for us, by somebody or other in Great Britain. There seems to be a direct and formal design on foot, to enslave all America.”7 A few years later, in response to the Townshend Acts, John Dickinson of Pennsylvania pursued the revolutionary logic in his Letters from a Farmer in Pennsylvania (1766–67):
Some person may think this act of no consequence, because the duties are so small. A fatal error. That is the very circumstance most alarming to me. For I am convinced, that the authors of this law would never have obtained an act to raise so trifling a sum as it must do, had they not intended by it to establish a precedent for future use…. In short, if they have a right to levy a tax of one penny upon us, they have a right to levy a million upon us.8
And Jefferson himself warned in his 1774 Summary View of the Rights of British-America that “single acts of tyranny may be ascribed to the accidental opinion of a day; but a series of oppressions begun at a distinguished period, and pursued, unalterably through every change of ministers, too plainly prove a deliberate and systematical plan of reducing us to slavery.”9
What are twenty-first-century readers to make of these charges? Proving their veracity is the Declaration’s central political task. The Declaration presents inductively its case against the king in order to justify its claim that there was a “design to reduce” the American colonists “under absolute Despotism.” From the Declaration’s list of grievances emerges the general charge that these Anglo-American provincials’ natural right to freedom and self-government has been violated. How so? The Declaration says: “The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.” Consider the nature and meaning of this remarkable charge: Great Britain, the freest nation in the Old World, stands accused of tyranny and despotism! How is this possible?
The plot thickens, given that these charges are all brought against George III. This may strike readers as odd. Why is the bill of indictment brought against George III and not against Parliament? Prior to 1776, virtually all of the American petitions and remonstrances were directed against the actions of Parliament. Why the change? The answer is to be found in the evolving logic, substance, and strategy of the American argument against British usurpations in the years between 1764 and 1776, which underwent a profound transformation after 1774. Until that year, the great villain for the Americans was Parliament, which had, after all, passed the Sugar, Stamp, Declaratory, Townshend, Tea, and Intolerable Acts.
During the 1760s, the central constitutional disagreement between British imperial officials and their American colonists concerned the question of political sovereignty—whether it lay in Parliament or in the colonial legislatures. This issue had been brought to the forefront of the imperial debates by the passage of the Declaratory Act in 1766, which said that the American colonies were subject to the laws of Parliament “in all cases whatsoever.” The British position was clear: the constitutional authority of Parliament did and must extend to the colonies because “two supreme or independent authorities cannot exist in the same state.” The idea of an imperium in imperio (i.e., a state within a state) was an absurdity. Accordingly, there could be “no possible medium between absolute independence” on one hand, and “subjection to the authority of Parliament” on the other.10 Logically, this was a tough nut for the colonists to crack. It was not until 1773 and 1774 that America’s best constitutional theorists—men such as John Adams and James Wilson—developed a powerful counterargument to the British case for parliamentary sovereignty.
In sum, the Americans challenged the claim that the colonies were members of the British state and therefore subject to Parliament. Most colonies, they argued, were founded in the seventeenth century, before Parliament became the sovereign political authority in the British state. Instead, they argued, their only political connection with Great Britain was through their legally chartered allegiance to the person of the king. In return for the colonists’ homage and fealty, the king would provide his colonies with protection. From the beginning, so the argument went, the provincials were independent of Parliament. And now in 1776, having been denied the king’s protection through the Prohibitory Act of 1775, it became necessary to dissolve their connection and allegiance to the British Crown.
To “prove” to a “candid world” the charge that there was a design to impose a tyranny over the American colonies, the Declaration enumerates twenty-seven injuries and usurpations allegedly committed by the king. Each of the charges refers to a specific action taken or not taken by the king. Read closely, the list of injuries and usurpations can be divided into three main sections.11 The first section, counts one through twelve, enumerates the king’s abuse of his executive powers. His offenses include disallowing or suspending colonial legislation, dissolving colonial legislatures, obstructing the colonial system of justice, corrupting the separation of powers by making judges dependent on his will, and keeping standing armies. The second section, counts thirteen through twenty-two, details the king’s collusion with Parliament to subject the colonies “to a jurisdiction foreign to our constitution, and unacknowledged by our laws.” His offense here was not having vetoed Parliament’s abuses, such as: quartering British troops in America and putting them above criminal law, restricting American trade, restricting trial by jury and other common law rights, imposing taxes without the consent of the governed, and destroying the colonists’ right to self-government. Of special significance is the charge that Parliament has declared its power to be arbitrary in America through the passage of the Declaratory Act of 1766. The third section, counts twenty-three through twenty-seven, identifies those abuses that amount to an undeclared state of war. The king’s abuses include what one scholar has referred to as “war atrocities”: he has initiated the use of physical force by turning his navy and army against the lives and property of the colonists.12
The Declaration’s indictment provided a summary of all the injuries and usurpations committed by king and Parliament, from the Stamp Act of 1765 to the so-called Intolerable or Coercive Acts of 1774 (which effectively destroyed the self-governing political institutions of Massachusetts). The king had violated the British constitution, the colonial charters, common law rights and liberties, and, most importantly, the colonists’ natural rights to life, liberty, and property. He had, in other words, destroyed the provincials’ ability to govern themselves. Taken separately, these injuries and usurpations did not amount to despotism, but taken all together, this “long train of abuses” could reasonably be seen as nothing less than “a design to reduce” the colonists “under absolute despotism.” The revolutionary generation saw in Parliament’s actions, taken as a whole, a pattern leading to tyranny and slavery.
The Declaratory Act of 1766 was the theoretical embodiment of non-objective, despotic rule, and the Intolerable Acts of 1774 were its existential result. The colonists’ revolutionary logic worked inductively. Their observation and experience of repeated actions (the effects) inspired them to integrate separate and discrete events into a pattern in order to identify the ultimate motive (the cause). Jefferson’s logic went something like this: “When we see two facts accompanying one another for a long time, we are apt to suppose them related as cause and effect.”13 The Declaration’s moral and political charge—that is, “the establishment of an absolute Tyranny over these States”—is “proved” by presenting, integrating, and evaluating the facts of the case.
To know what injustice and despotism are, one must also know what justice and freedom are. The Americans, according to the Declaration’s first paragraph, are “to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them.” These “Laws of Nature and of Nature’s God” (discussed in the next section) provide some kind of standard against which the actions of king and Parliament, indeed, all government, are to be judged. Or, as Jefferson writes close to the end of the Declaration, the standard against which these actions are to be judged is what he calls natural “right.”
In sum, the Americans were not concrete-bound pragmatists. They did not take Britain’s various depredations as separate and distinct events. They kept a tally and then added it all up. The Americans studied, weighed, and measured the separate actions of king and Parliament (i.e., the evidence of the crime); they integrated the totality of British actions and drew the evaluative conclusion that king and Parliament had a “design” (i.e., the motive) to reduce them under absolute despotism (i.e., the ultimate crime itself); and then they contrasted the actions of British imperial officials with their own moral principles (i.e., the standards of justice). In 1768, John Dickinson in his famous Letters from a Farmer described perfectly the Americans’ mode of thinking: “Ought not the PEOPLE therefore to watch? to observe facts? to search into causes? to investigate designs? And have they not a right of JUDGING from the evidence before them, on no slighter points than their liberty and happiness?”14 The revolutionaries’ Enlightenment moral principles provided the touchstone by which to judge the actions of king and Parliament, and their principles necessitated the nature of their response. In July 1775, in its Declaration of the Causes and Necessity of Taking Up Arms, the Continental Congress declared that the American colonies had been enslaved “by violence,” and the colonists “have thereby rendered it necessary” to “close with their last appeal from Reason to Arms.”15
Jefferson and his fellow revolutionaries understood that there are two basic ways to deal with men in political society: either by faith and force or by reason and freedom. According to Jefferson, once man has surrendered his reason, he “has no remaining guard against absurdities the most monstrous, and like a ship without rudder, is the sport of every wind.” In such cases, “gullibility, which they call faith, takes the helm from the hand of reason, and the mind becomes a wreck.” Or, as the Virginia statesman Richard Bland understood this distinction: “Right and Power have very different Meanings, and convey very different Ideas.”16
Jefferson and the Declaration’s co-signers understood that reason and freedom are inseparably one; that liberty “takes root and growth in the progress of reason”; that “truth is certainly a branch of morality”; that “reason and persuasion” are the only practical means to deal with other individuals in a free society; that “honesty is the first chapter in the book of wisdom”; that individuals must be free to act on their judgment if they are to pursue the values necessary to sustain and advance their lives (e.g., justice, freedom, wealth, and happiness); that freedom from force is an objective requirement of human life; that moral and political right exist “independent of force”; that “force cannot change right”; that a “government of reason is better than one of force”; that the mind must not be forced by physical compulsion; that the initiation of physical force stops individuals from thinking and acting on their judgment, which therefore leads to slavery; and that force is the handmaiden of despotism. “In a republican nation whose citizens are to be led by reason and persuasion and not by force,” Jefferson wrote in an 1824 letter, “the art of reasoning becomes of first importance.” By contrast, “force,” he noted in his first inaugural address, is “the vital principle and immediate parent of despotism.”17
The essence of force for American revolutionaries was the dominion of some men over others. They considered the initiation of physical force to be a direct violation of the moral law. Ultimately, force meant the use of physical compulsion and coercion by some men against others, all of which they saw inherent in the Stamp, Townshend, and ultimately in the aptly named Coercive Acts. Eighteenth-century Americans saw offensive power and force as grasping, aggressive, malignant, corrupting, and morally imperialistic.
Quite possibly the greatest achievement of the American Revolution was to free men to follow the dictates of their own minds, guided by unencumbered reason. “We believed,” Jefferson wrote, reflecting on what had been accomplished in 1776, “that men, enjoying in ease and security the full fruits of their own industry, enlisted by all their interests on the side of law and order, habituated to think for themselves and to follow their reason as their guide, would be more easily and safely governed than with minds nourished in error and vitiated and debased … by ignorance, indigence and oppression.” The American experiment in self-government would ultimately result, Jefferson hoped, “in establishing the fact, that man may be governed by reason and truth.” In a free, republican society, “every man’s own reason must be his oracle” or “his own rightful umpire.” In fact, there was for Jefferson a direct and reciprocal connection between self-government and reason. In a truly free and self-governing society, each and every man must freely “act according to the dictates of his own reason” and he “must form his judgment on the evidence accessible to himself.”18 Political self-government depends on moral self-government, which in turns depends on an individual’s ability and willingness to follow the “standard of reason.” Jefferson was confident that the American people were capable of political self-government precisely “because they are under the unrestrained and unperverted operation of their own understandings.” This is precisely why Enos Hitchcock of Rhode Island could say of the American Revolution that it did something achieved by no other nation in history: “a revolution by reasoning.”19
For Thomas Paine, the American Revolution was about more than just independence from Great Britain. It was, first and foremost, an intellectual and a moral revolution that swept away the “tyranny and the antiquity of habit” that had “established itself over the mind.” The real revolution was to free the minds of men to pursue the truth in the light of day. Men were now no longer “afraid to think.” The Revolution changed everything—it forever changed the way men viewed the world. The “present age will hereafter merit to be called the Age of Reason.” Henceforth, Paine announced: “Mankind are not now to be told they shall not think, or they shall not read; and publications that go no farther than to investigate principles of government, to invite men to reason and to reflect, and to show the errors and excellences of different systems, have a right to appear.” One extraordinary thing about the Declaration of Independence is that it took what many of the most enlightened Europeans of the time considered to be the best constitution, the best form of government, and the best laws in the world, held them up to the tribunal of reason—and found them wanting. By liberating and elevating reason to discover the “errors” and “defects” of every constitution and government, the Declaration provided both the means and the standard by which to judge all governments everywhere. Hence, from July 4, 1776, “despotism felt a shock, and man began to contemplate redress.”20
But of course the Declaration did more than justify the use of reason in combating injustice and tyranny. The revolution that occurred in the minds of men was followed, according to Paine, by a “revolution in the principles and practice of governments.” Reason would now be the means by which men discovered the moral laws and rights of nature on which their new constitutions and governments would rest. With the Declaration of Independence and the American Revolution, there is, Paine wrote hopefully, “a morning of reason rising upon man, on the subject of government, that has not appeared before.”21
The Declaration of Independence and America’s revolutionary generation elevated the sovereignty of reason to a place of prominence in man’s moral and political affairs. The titles of Ethan Allen’s best-known work, Reason the Only Oracle of Man (1784), and Elihu Palmer’s newspaper, The Temple of Reason, summed up the epistemological self-confidence of America’s revolutionary mind. Unlike their Puritan forebears, American revolutionaries claimed that reason can discover and know with certainty the moral laws and rights of nature that undergird the political institutions of a free society. In his Principles of Nature; or, A Development of the Moral Causes of Happiness among the Human Species (1801), Palmer declared that “reason, which is the glory of our nature, is destined eventually, in the progress of future ages, to overturn the empire of superstition.” Along with most enlightened revolutionaries, Palmer believed that the “strength of the human understanding is incalculable, its keenness of discernment would ultimately penetrate into every part of nature,” including human nature, “were it permitted to operate with uncontrolled and unqualified freedom.” Most importantly, though, Palmer believed that for man to be morally good, he must be given full scope to use the “operation” of his “intellectual powers,” and he “must feel an unqualified confidence in his own energies.” With epistemological self-confidence came moral and political self-confidence. By exploring the “empire of reason” and by using the “unlimited power of human reason,” the revolutionary generation believed that man could discover objectively true moral laws of nature just as Newton had discovered the physical laws of nature. In fact, “Reason, or the intellectual powers of man, must eventually become both the deposit and the guardian of the rights and happiness of human existence.”22
NATURE, OR “THE LAWS OF NATURE AND OF NATURE’S GOD”
By dissolving the political bands that had connected them to Great Britain, American provincials were reclaiming the right of self-government to which the “Laws of Nature and of Nature’s God” entitled them. But what exactly did Jefferson and the other revolutionaries mean when they spoke of the “Laws of Nature and of Nature’s God”? What was their understanding of a moral law of nature (including its attributes and sanctions), its source, how it is known and promulgated, how it differs from a right of nature, and how it should be used in a political, legal, and constitutional context?
Following the philosophic trends of the European Enlightenment, eighteenth-century Americans believed that just as there are physical laws of nature, so there are moral laws of nature. The “Laws of Nature and of Nature’s God,” they argued, apply to man’s ethical, social, and political relations in ways similar to how these laws apply to the inanimate objects of nature. As we saw in chapter 1, the great hope of Enlightenment moral theory was summed up in the words of John Locke, who famously claimed in his Essay Concerning Human Understanding that morality can and should be placed “amongst the sciences capable of demonstration.”23 As Newton’s laws of nature describe the nature of reality, Locke’s moral laws of nature describe the reality of human nature: what human nature is, how it operates, and the requirements needed for human life and flourishing. More importantly, Locke’s moral laws of nature also direct individuals to act in a certain way; they tell them how they ought to behave.24
In the Second Treatise, Locke famously identified the laws of nature with reason, which means that unassisted reason provides the means by which man discovers principles of human action and interaction that serve his life. Eighteenth-century Americans learned from Locke that the laws of nature are rationally discoverable principles, the applications of which promote human flourishing, social order, and peaceful relations among individuals in a social context. The founding fathers believed that these laws of nature should also be the basis for civil laws. Because the laws of nature (whether divine or secular) do not specify adequate or complete natural sanctions—that is, punishments for those who violate them—societies of men must give their collective sanction to a neutral arbiter—that is, to government, with the power to punish criminals.
This is the intellectual universe that American revolutionaries were drawn toward and relied on when they announced to the world their moral claim to assume a “separate and equal station.” Throughout much of the eighteenth century, and certainly in the period between 1765 and 1800, Americans regularly invoked the “law of nature” as the guiding principle of their moral and political thought.
In reaction to the British Parliament’s passage of the Stamp Act in 1765, John Adams encouraged his fellow colonial Americans to “study the law of nature” and to search for the foundation of all just government “in the frame of human nature, in the constitution of the intellectual and moral world.”25 A decade later, an eighteen-year-old Alexander Hamilton, then a student at King’s College in New York, advised his American compatriots to apply themselves “without delay, to the study of the law of nature.” He recommended they read the great seventeenth- and eighteenth-century “law of nature” theorists, such as “Grotius, Puffendorf, Locke, Montesquieu, and Burlemaqui.”26 To Hamilton’s impressive list, John Adams, Thomas Jefferson, and James Wilson added Richard Cumberland, Emmerich de Vattel, and Jean Barbeyrac.
For Enlightenment philosophers and America’s revolutionary generation, the laws of nature were not created by human will, but were, rather, discovered, defined, institutionalized, and enforced by man. The laws of nature transcend the commands made by legislatures, and they apply regardless of whether they are recognized and enforced by any political institution. According to James Otis, the “law of nature was not of man’s making, nor is it in his power to mend it or alter its course.” Instead, man’s relationship to the law of nature, he continued, can follow only one of two paths: “He can only perform and keep or disobey and break it.”27 The Americans learned from their philosophic tutors that the moral laws of nature were discoverable by reason and that such laws should guide man’s individual ethical and social behavior.
Over the course of the eighteenth century, colonial Americans developed and used a rather sophisticated understanding of the moral concept “law of nature.” Following Locke and other Enlightenment philosophers, colonial and revolutionary Americans typically defined the law of nature as synonymous with reason or as a dictate of “right reason.”
As early as 1717, John Wise, in his A Vindication of the Government of New England Churches, argued that right reason provides the rule for each man “in all their Actions; obliging each one to the performance of that which is Right” relative to justice and “to all other Moral Vertues.” The law of nature is, according to Wise, synonymous with “Mans Reason.” It is a “dictate of Right Reason,” which means that “the Understanding of Man is Endowed with such a power, as to be able, from the Contemplation of humane Condition to discover a necessity of Living agreeably with this Law: And likewise to find out some Principle, by which the Precepts of it may be clearly and solidly Demonstrated.” Man can discover the law of nature and the principles of human association, according to Wise, by “a narrow Watch, and accurate Contemplation of our Natural Condition.”28
Forty-five years later, on the eve of the imperial crisis, the Reverend Abraham Williams in a 1762 election sermon argued that the laws of nature are “founded in Reason and Equity.”29 As the American Enlightenment reached its peak starting in the 1760s and 1770s, the best colonial thinkers saw the philosophic relationship between right reason and the moral law of nature. Revolutionary-era pamphlets, sermons, and official declarations and petitions are replete with similar attempts to associate the moral laws of nature with reason or “right reason.”30 It was critically important to American colonials that they ground their moral, political, and constitutional “Principles upon the solid Basis of Truth,” and “Reason points out to us the Method” for determining the truth relative to the moral laws of nature. The Americans were “bound by the sacred law of reason and nature,” wrote “An American” in the Massachusetts Spy, to oppose the Sugar, Stamp, and Townshend Acts as “tyranny,” and they were to view the money taken from them by these laws as “downright robbery.”31
How did the American colonists understand the relationship between reason and the moral laws of nature?
The revolutionary generation most often said that the laws of nature were known and promulgated through a discovery process—that is, by the application of right or proper reasoning to the study of nature and human nature. One anonymous writer from Hampshire County in Massachusetts summed up in 1775 the emerging American understanding of how the laws of nature are known and promulgated when he indicated that the purpose of man’s “principle of intelligence” is to “discover truth from falsehood, good from evil, to investigate the nature and tendency of actions, their qualities, causes and effects, the connection and relation of things and the duty resulting therefrom.” And in the context of the imperial crisis, the Americans’ happiness, he continued, “depends upon carefully distinguishing between propositions deduced from the fine spun hypothesis framed by designing men, and self-evident principles; between plausible representations, and plain stubborn facts.” Later that year, a New Yorker writing under the pseudonym “The Monitor” declared that the law of nature is synonymous with the law of reason, which in turn is little more than the “dictates of common sense” applied to “unalterable relations of right and wrong, justice and injustice.” Such laws, he continued, “retain their force” in spite of the “arbitrary constructions,” “perverted conceptions, or contaminated principles” of kings and ministers.32
John Adams probably thought more seriously about the relationship between human reason and the moral laws of nature than did any other American revolutionary. As early as 1756, a twenty-one-year-old Adams was writing in his Diary that reason is man’s only tool for determining what is morally right. Man has been given “reason,” he argued, “to find out the Truth, and the real Design and true End of our Existence.” For Adams, the moral law of nature was synonymous with reason: “Law is human Reason,” he asserted; it governs “all the Inhabitants of the Earth; the political and civil laws of each Nation should be only the particular Cases, in which human Reason is applied.” In fact, “Nature and Truth or rather Truth and right are invariably the same in all Times and in all Places. And Reason, pure unbiassed Reason perceives them alike in all Times and in all Places.”33
As a young man, Adams took seriously the possibility that there are principles of natural justice grounded in an objective moral order that can be known through reason. Reason itself, however, is not a law of nature. It is a means by which to discover the laws of nature. The moral laws of nature denote a relationship between existence broadly speaking and man’s consciousness, that is, between nature and human nature. Moral principles are necessary and must be discovered because man, given his particular nature as a volitional and rational being, bears a certain relationship to the world in which he lives, including his relationship to other men. As Adams put it in 1765: “Tis impossible to judge with much Præcision of the true Motives and Qualities of human Actions, or of the Propriety of Rules contrived to govern them, without considering with like Attention, all the Passions, Appetites, Affections in Nature from which they flow. An intimate Knowledge therefore of the intellectual and moral World is the sole foundation on which a stable structure of Knowledge can be erected.”34 Untutored reason was not, however, enough for Adams. “Right” reason was a method—the proper method—for thinking and acquiring knowledge. And it was principally that “method,” Adams mused, that allowed Isaac Newton to discover and demonstrate “the true system of the World.” Newton rose above other English scientists of the time because he had “employed Experiment and [Geometry?]”—that is, induction and deduction—in scientific inquiry. “It [is] the Method then,” concluded Adams, that discovers nature’s secrets and potentially reveals the moral laws of nature.35
Advocating something like the “historical plain method” advanced by Locke in the Essay Concerning Human Understanding, Adams defined “Natural Phylosophy” as “the Art of deducing the generall laws and properties of material substances, from a series of analogous observations.”
The manner of reasoning in this art is not strictly demonstrative, and by Consequence the knowledge hence acquired, not absolutely Scientifical, because the facts that we reason upon, are perceived by Sence and not by the internal Action of the mind Contemplating its Ideas. But these Facts being presumed true in the form of Axioms, subsequent reasonings about them may be in the strictest sence, scientifical. This Art informs us, in what manner bodies will influence us and each other in given Circumstances, and so teaches us, to avoid the noxious and imbrace the beneficial qualities of matter.36
The Lockean method of “right reason” applied as much to the study of man and society as it did to the study of nature. Adams and the thinking revolutionaries who joined him assumed that moral and political philosophers must devote themselves to observing and experiencing the world around them, to examining their own ideas and passions introspectively, and to studying the history of mankind. The primary mode of reasoning applied by revolutionary Americans to discovering the moral laws of nature was therefore inductive. The very same method they would have used to investigate the physical laws of nature—that is, an empirical, a posteriori, inductive mode of reasoning—was also used to reveal the moral laws of nature.37
No founding father before the Revolution thought longer and harder about the method of reason by which to discover and reveal the moral laws of nature than John Adams. By observing empirically the nature of “terrestrial enjoyments” and sufferings—that is, the rewards and punishments consonant with the moral law of nature—Adams thought it possible to reason backward from effects to causes and then forward again to the principles that might guide human action. The most important and fruitful field of study for Adams was that of human nature, or what he often referred to as the “Constitution of our Minds and Bodies.”38 From an early age, he drove himself to understand and give an account of his own mental operations and those of others. “Let me search for the Clue, which Led great Shakespeare into the Labyrinth of mental Nature! Let me examine how men think,” he demanded of himself. Adams always began with himself, turning inward and observing his passions and the operation of his own mental processes: “Here I should moderate my Passions, regulate my Desires, increase my Veneration of Virtue, and Resolution to pursue it, here I should range the whole material and Intellectual World, as far as human Powers can comprehend it, in silent Contemplation.”39 Adams’s mode of reasoning was perfectly consistent with Locke’s “historical plain method.”
In the years after the Revolution, Ethan Allen of the Green Mountain Boys was one of America’s leading thinkers in search of the moral laws of nature. In Reason the Only Oracle of Man (1785), Allen identified the process by which the laws of nature are known. Nature is like a book and the Book of Nature can be read, he reasoned analogously, but it must be opened first before it can be read. And how is the Book of Nature opened? Allen insisted that it must be opened and then read inductively. Nature’s laws are discovered through our experience of cause-and-effect relationships. He argued that experience teaches man that all consequences have causes, that the events of the world we experience are causally dependent on preceding ones. The Book of Nature says that all entities in nature are interconnected and that nature’s order and harmony are not the result of “blind chance.” To change the metaphor, the universe—that vast system of cause and effect—is run like a perfectly calibrated watch by God the Watchmaker and the promulgation of its laws “is co-extensive and co-existent with, and binding on all intelligent beings in the universe.”40
Following Locke and his Enlightenment students, eighteenth-century Americans saw a direct relationship between the physical laws of nature and the moral laws of nature as they apply to human action.
Many colonists echoed Montesquieu’s description of the laws of nature in the Persian Letters (1721), wherein the Frenchman defined such laws as the relations between things. “Justice,” or the moral law, he wrote, “is a relation of suitability, which actually exists between two things.”41 The laws of nature describe the forces of, regular actions by, and relations among entities of various kinds, both in nature and in society. Nature’s laws describe the way nature and human nature are related, and they prescribe moral rules of behavior.
As early as 1725, Benjamin Franklin, a coeditor of Jefferson’s draft declaration and the quintessentially enlightened thinker, identified how eighteenth-century Americans typically saw the relationship between the scientific and moral laws of nature: “How exact and regular is every Thing in the natural world! How wisely in every Part contriv’d! … All the heavenly Bodies, the Stars and Planets, are regulated with the utmost wisdom! And can we suppose less care to be taken in the order of the Moral than in the Natural System.”42 Forty-nine years later, another “Philadelphian” declared “To the Freeman of America” that the “laws of mechanics apply in politics, as well as philosophy.” In fact, he implied that the Americans were following the moral law of nature while the British were following the law of armed force.43
In 1766, in the wake of the Stamp Act crisis, Richard Bland, a writer, planter, and long-standing member of the Virginia House of Burgesses, mocked the common British viewpoint that the Britannic empire was a vast physical system revolving around the dictates of Whitehall. Bland noted that there were Newtonian “Laws of Attraction in natural as well as political Philosophy,” and “that Bodies in Contact, and cemented by mutual Interests, cohere more strongly than those which are at a Distance, and have no common Interests to preserve.” Bland charged the British with violating this law of nature in order to destroy the colonies “whose real Interests are the same, and therefore ought to be united in the closest Communication, are to be disjoined, and all intercommunication between them prevented.” In trying to resolve the debate between colonies and mother country, Bland argued, “we can receive no Light from the Laws of Kingdom, or from ancient History, to direct us in our Inquiry.” Instead, he urged his fellow Americans to have “Recourse to the Law of Nature, and those Rights of Mankind which flow from it.”44
A generation later, Elihu Palmer, one of America’s leading Deists in the quarter century after the end of the War of Independence, presented the Enlightenment view quite clearly in his treatise on the Principles of Nature (1801), stating that there are laws of nature that define man’s “physical relation … to all existence” (i.e., descriptive scientific laws), and there are laws of nature that define man’s moral relationship “to his own species and to all other inferior animals” (i.e., prescriptive moral laws).45 Both forms of the law of nature are instances of, and are necessitated by, the law of causality as they apply to man and his relationship to nature and human nature. The careful, painstaking observation of nature, sometimes enhanced through social experimentation and trial and error, leads man from the facts of nature or human nature to a mechanical law or a moral principle, from change or indeterminacy to a fixed, law-like pattern in nature or a certain moral principle for man.
We can better grasp how the revolutionary generation understood and applied the idea of a moral law of nature by seeing it in the form of an “if-given-then” conditional imperative. Their reasoning about the moral laws of nature went something like this: If you want to achieve the following outcome X, given certain facts of nature and human nature Y, then you must recognize and respect the following principles or rules Z.46 These principles or rules are the moral laws of nature. They are laws of nature because they partake of necessity—a necessity that describes what is (i.e., the constitution of human nature), what ought to be (i.e., living a free and flourishing life), and what is necessary to link what is with what ought to be (i.e., moral rules of action and the institutions necessary for their fulfillment). “It is Necessity, Necessity alone,” intoned Jonas Clark, the pastor of a congregational church in Lexington, Massachusetts, in 1781, “which combines men in society, and gives rise to civil government.”47
A simple example will illustrate the founders’ moral reasoning. Assume that you are a liberty-loving American colonist and the year is 1776. If you want to continue living in a free and just society (i.e., one that respects the rights of individuals), given the legislation passed by the British Parliament and supported by the Crown during the preceding eleven years (e.g., the Sugar, Stamp, Declaratory, Townshend, Tea, Coercive, and Prohibitory Acts, which not only taxed the colonists without their consent but also denied them long-established common law rights), then you must take the appropriate actions necessary to secure your freedom (i.e., to declare your independence from Great Britain and to defend your freedom with arms if required). The moral laws of nature are those rules that can be first induced and then deduced from man’s metaphysical condition as it applies to both his relationship with nature and his relationship with other men.
American revolutionaries understood the law of nature as it applied to man and his relations with others to be a code of moral principles defining and regulating man’s relationship to himself and to others. In 1762, during that period when the American mind was in the process of being revolutionized and constitutionalized, the Reverend Abraham Williams described the laws of nature as “those Rules of Behaviour … [describing] the Relation [men] bear to one another.” A decade later, an anonymous writer in Boston declared that nature’s “laws are the measure of right and wrong: We refer to them in all cases as citizens, and on that reference is founded the security of our properties, our persons, and our rights.” The following year another Bostonian, the pseudonymous “Massachusettensis,” announced that a free and flourishing society was one where every individual was guided by a “sure and righteous rule of action in every occurrence in life.” This rule of action secured, to all men who obeyed it, freedom “from the molestation and disturbance of all men.” In a free and just society, this rule of action was the municipal law, “which is no more than the law of nature applied to man in society, having for its principal objects, the freedom of the person, conscience, and security of the subject in his property.” In 1778, as Massachusetts was entering its fourth year without a legally functioning government, William Whiting told a group of radical libertarians in western Massachusetts that, “in a state of nature, each individual has a right … to dispose of, order, and direct, his property, his person, and all his own actions, within the bounds of the law of nature.”48 The ultimate goal of the moral laws of nature was to expand man’s freedom and to protect and promote his well-being and happiness in a social context.
Revolutionary Americans considered the moral laws of nature to have the following attributes: they must be necessary (i.e., governed by the law of cause and effect), absolute, fixed, universal, eternal, uniform, orderly, harmonious, binding, demonstrable, and unalienable. The moral laws of nature as understood by the Americans begin with the law of identity; they begin with the fact that all entities, including men, have a fixed nature or specific identity made of particular, unchanging attributes. The law of identity for the revolutionary generation implied the law of causality, which meant that cause-and-effect relationships could only be understood in the light of identity. “Human nature is every where the same,” asserted a writer in the Boston Gazette, which means that “similar effects will always flow from the same cause.” James Otis likewise characterized the qualities of the moral laws of nature in this pithy statement: “The laws of nature are uniform and invariable. The same causes will produce the same effects from generation to generation.” The laws of nature are “always binding,” declared the anonymous Boston author of “A Dialogue Between a Ruler and a Subject” in 1772, and two years later Richard Wells declared the “laws of right and wrong” to be “eternally and invariably the same.” According to an anonymous writer in the Massachusetts Spy, the moral law of nature is known by studying the “nature of man” and the “constitution of things”; it is “discoverable by reason”; it provides all of the “principles and springs of action”; it is “discharged by conforming to the laws of eternal justice, and the practice of every social virtue”; it is “binding all over the globe, in all countries, at all times, same at Rome, at Athens, in Britain and America”; no “senate, no parliament, no assembly, can dispense with it, retrench or alter it”; and “no law, no transaction repugnant to this law is of any validity.”49
In his pamphlet The Farmer Refuted of 1775, Alexander Hamilton attributed to the law of nature the following characteristics: it is an “eternal and immutable law”; it is “indispensibly, obligatory upon all mankind, prior to any human institution whatever”; and it is “binding over all the globe, in all countries, and at all times.” According to Hamilton, the general commands of the law of nature are as follows:
Upon this law, depend the natural rights of mankind, the supreme being gave existence to man, together with the means of preserving and beatifying that existence. He endowed him with rational faculties, by the help of which, to discern and pursue such things, as were consistent with his duty and interest, and invested him with an inviolable right to personal liberty, and personal safety.
Hence, in a state of nature, no man had any moral power to deprive another of his life, limbs, property or liberty; nor the least authority to command, or exact obedience from him; except that which arose from the ties of consanguinity.
Given human nature, the moral law commands two things: first, that man must identify and pursue those values “consistent with his duty and interest,” and he has a moral right to his life, liberty, and property; and, second, that he may not deprive others of their natural rights. It was on the basis of this “criterion,” Hamilton claimed, that the Americans detected “injustice” in Parliament’s legislation of the 1760s and 1770s.50
In 1787, Elizur Goodrich delivered an election-day sermon on “The Principles of Civil Union and Happiness Considered and Recommended” to the Connecticut legislature, in which he described some of the principal characteristics of the moral laws of nature. Goodrich’s statement is important for shedding light on what the revolutionary generation meant by a moral law of nature, and for demonstrating unequivocally Locke’s influence on the development of America’s revolutionary mind. “The principles of society are the laws,” he wrote,
which Almighty God has established in the moral world, and made necessary to be observed by mankind; in order to promote their true happiness, in their transactions and intercourse. These laws may be considered as principles, in respect of their fixedness and operation; and as maxims, since by the knowledge of them, we discover those rules of conduct, which direct mankind to the highest perfection, and supreme happiness of their nature. They are as fixed and unchangeable as the laws which operate in the natural world. Human art in order to produce certain effects, must conform to the principles and laws, which the Almighty Creator has established in the natural world.”51
Goodrich’s reasoning is one of the best examples of how the revolutionary generation understood the Declaration’s call to the “Laws of Nature and of Nature’s God.” According to Goodrich, there are laws of the moral world—prescriptive moral laws that are as “fixed and unchangeable” as the laws governing the physical universe—that can be discovered and should be applied as rules of conduct to human life. These laws, principles, rules, and maxims, if understood and followed, will help men to perfect their lives as individuals and to improve their relations with others. Based on what man is, these moral laws instruct men in how they ought to act and live if they are to achieve their highest values.
Such moral laws of nature also have consequences—consequences certain and absolute—for those who follow and do not follow them, and so wise legislators, according to Goodrich, should base their laws on them:
Moral connections and causes in different circumstances produce harmony or discord, peace or war, happiness or woe among mankind, with the same certainty, as physical causes produce their effect. To institute these causes and connexions belongs not to men, to nations or to human laws, but to build upon them. It is no more in the power of the greatest earthly potentate to hinder their operation, than it is to govern the flowing and ebbing of the ocean.
This is why “Human art in order to produce certain effects, must conform to the principles and laws, which the Almighty Creator has established in the natural world.” Reality is the standard from which man must make certain choices and take certain actions that will result in consequences that either diminish or further his life and happiness. To deny these principles is to deny reality: “For he, who attempts these things, on other principles, than those of nature, attempts to make a new world; and his aim will prove absurd and his labour lost.”52 These makers of new worlds who deny or do not follow the laws of nature are utopians, who deny the reality of this world; they are fantasists, who always resort to force to make people accept their untrue ideas. In the context of the time, they become Jacobins. The moral laws of nature, by contrast, provide men with true principles of action by which to guide their conduct in the pursuit of certain ends (e.g., their “true happiness”).
American revolutionaries continued to use the language of the moral law of nature well into the 1790s. Other than John Adams, no member of the revolutionary generation thought longer and harder about the moral laws of nature than James Wilson. In fact, he devoted an entire chapter to it in his Lectures on Law. Wilson considered the moral law of nature to be immanent in human nature. The fundamental characteristics of the law of nature are, he argued, immutability and universality: 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”; and the “law of nature is universal … having its foundation in the constitution and state of man, has an essential fitness for all mankind, and binds them without distinction.” Drawing on the authority of Cicero, his description of the moral law of nature sums up the view of an entire generation:
This law, or right reason, as Cicero calls it, is thus beautifully described by that eloquent philosopher. “It is, indeed,” says he, “a true law, conformable to nature, diffused among all men, unchangeable, eternal. By its commands, it calls men to their duty: by its prohibitions, it deters them from vice. To diminish, to alter, much more to abolish this law, is a vain attempt. Neither by the senate, nor by the people, can its powerful obligation be dissolved. It requires no interpreter or commentator. It is not one law at Rome, another at Athens; one law now, another hereafter: it is the same eternal and immutable law, given at all times and to all nations: for God, who is its author and promulgator, is always the sole master and sovereign of mankind.”53
For Wilson and America’s revolutionary statesmen, the moral laws of nature provided them first with a universal moral standard by which to judge the actions of the British Parliament during the 1760s and 1770s and then with a moral base on which to design and build their new constitutions and governments. The law of nature stands above man’s law. Governments hitherto owed their origin to accident and force, but the Americans could now design and build governments on the basis of rationally discernible and true moral principles.
The law of nature should guide all law, including the international law of nations. When he was Secretary of State in the Washington administration, Thomas Jefferson argued that America’s foreign policy should be guided by “the moral law of our nature.” This higher moral law, Jefferson argued, creates “moral duties which exist between individual and individual in a state of nature,” and such a law accompanies men when they enter “into a state of society.” In fact, the “aggregate of the duties of all individuals composing the society constitutes the duties of that society towards any other.” The result is that “between society and society the same moral duties exist as did between the individuals composing them, while in an unassociated state, and their maker not having released them from those duties on their forming themselves into a nation.”54
And what is the source of the moral laws of nature? The Declaration of Independence speaks of the “Laws of Nature and of Nature’s God,” a phrase that captures rather nicely the revolutionary generation’s ambiguity or being of two minds about the nature, source, and sanctions associated with the laws of nature. Jefferson’s equivocation in that phrase, however, leaves open the question whether nature simply, or nature’s God, is the source of these laws.
Do the moral laws of nature depend on the existence of a divine creator? This much can be said with confidence: when Jefferson wrote of “Nature’s God” he almost certainly meant the impersonal, far-removed, deist God that set the world in motion according to laws that were meant to govern in his absence. The Declaration’s God is not the God of the Old Testament (nor is it even the God of the New Testament) but is Nature’s God. Jefferson’s God is posited but not known. What can be established, however, and what is immediately relevant to the Declaration, is nature and its laws.55 Thus Jefferson could tell his nephew Peter Carr, “those facts in the Bible which contradict the laws of nature, must be examined with more care, and under a variety of faces.”56
The claim that the laws of nature are God’s laws appeared frequently in the literature of the American Revolution. The revolutionary generation, almost to a man, considered God the source or first cause of nature’s laws. In The Farmer Refuted, Alexander Hamilton summed up—while quoting, ironically enough, Blackstone—what was probably the common sense of the subject among most Americans. “Good and wise men, in all ages,” according to Hamilton, have
supposed that the Deity, from the relations we stand in to himself and to each other, has constituted an eternal and immutable law, which is indispensably obligatory upon all mankind, prior to any human institution whatever.
This is what is called the law of nature, “which, being coeval with mankind, and dictated by God himself, is, of course, superior in obligations to any other…. No human laws are of any validity, if contrary to this; and such of them as are valid derive all their authority, mediately or immediately, from this original.”57
The purest Christian form of this teaching can be seen in a 1770 sermon delivered by the Reverend Samuel Cooke, who argued that faith, not reason, was the foundation of man’s moral duties. Cooke argued:
without a true fear of God, justice will be found to be but an empty name. Though reason may in some degree investigate the relation and fitness of things, yet I think it evident that moral obligations are founded wholly in a belief of God and his superintending providence. This belief, deeply impressed on the mind, brings the most convincing evidence that men are moral agents, obliged to act according to the natural and evident relation of things, and the rank they bear in God’s creation; that the divine will, however made known to them, is the law by which all their actions must be regulated, and their state finally determined.58
In contrast to Cooke, most revolutionary Americans argued that the moral law of nature is known by right reason and not through revelation. In fact, a few attempted to pick up where John Locke left off—that is, to establish a demonstrative science of ethics that did not necessarily rely on the existence of God to be knowable or operational. This latter group might include Thomas Jefferson, John Adams, Ethan Allen, and Elihu Palmer. It is important to note that all four were believers, but they also attempted to ground the law of nature on what might be called metaphysical law or what Jefferson variously referred to as the “laws of our being,” the “order of nature,” the “moral law of our nature,” and “universal law.”59 They followed a tradition extending from Grotius, Locke, and Montesquieu down to the founders, which said that the moral law of nature would still be valid and operational even if, in the words of Grotius, “there is no God, or that he has no Care of human affairs.”60
Several revolutionary thinkers came very close to adopting a similar position. Ethan Allen, for instance, echoing Montesquieu in the Persian Letters, wrote that the moral laws of nature are derived not from sacred texts or books of philosophy but from the Book of Nature—that is, from “the fitness of things.”61 Moral science, according to Allen, is known by reason and derived from experience. The moral laws of nature can therefore be known without knowing or proving the existence of God. Likewise, Elihu Palmer, seemingly combining Grotius and Montesquieu, stated the fundamental issue in unmistakable terms:
If a thousand Gods existed, or if nature existed independent of any; the moral relation between man and man would remain exactly the same in either case. Moral principle is the result of this relation, it is founded in the properties of our nature and it is as indestructible as the basis on which it rests. If we could abandon for a moment every theistical idea, it would nevertheless remain substantially true, that the happiness of society must depend upon the exercise of equal and reciprocal justice.
Palmer’s statement represents the intellectual revolution toward which the American mind was slowly moving—toward a view of natural justice grounded in a potentially godless metaphysical law. The challenge of this law was to discover the naturally proper “moral relation between man and man” that would promote a flourishing human life and serve as the basis for a new legal and political order. Such a law would exist, to repeat Palmer’s felicitous expression, whether “a thousand Gods existed, or if nature existed independent of any.”62
America’s revolutionary thinkers typically identified the particular content of the laws of nature and their sanctions based on where they located the source of those laws. Not surprisingly, they viewed the substance of the laws of nature in one of two ways: as either God-centered and duty-based on one hand, or as man-centered and rights-based on the other. Those who saw God as the first cause of the laws of nature (e.g., James Wilson, John Witherspoon, and the colonies’ religious leaders) typically established two laws as fundamental: first, the law to obey God’s commands; and, second, the Golden Rule to “do unto others as you would have them do unto you.” The sanctions associated with God’s laws of nature were dependent on the immortality of souls and the promise of eternal bliss or suffering in the afterlife.63
Contrariwise, those who turned to nature and to what John Adams referred to as the “constitution of the human mind” as the first cause of the laws of nature (e.g., Adams, Jefferson, Ethan Allen, and Elihu Palmer) typically established two laws as fundamental: first, the law of self-preservation; and, second, the law to respect the rights of others. The punishments associated with violating the secular first law of nature were penury, misery, and death, and the rewards for obeying it were life, health, and happiness. The punishments for violating the secular second law of nature were social neglect and contempt, and the rewards for obeying it were social esteem and admiration.64 Whereas God-centered laws were synonymous with man’s duties, man-centered laws issued from man’s rights.
American revolutionaries studied the moral laws of nature with a practical purpose in mind: to translate these laws into the civil or municipal laws that govern society. America’s founding statesmen and jurists viewed proper conventional, customary, and statutory law as the existential embodiment of the law of nature. A free and just society was, they argued, grounded on such laws. The distinction between the law of nature and man-made law was admirably summed up by one long-forgotten writer in Boston as the difference between unwritten and written law. The unwritten law “dictates the doing of justice to individuals, and the injuring no one.” This law of nature “is not peculiar to any nation or people”; instead, it is “put in every breast universally.”65 An intermediary form of law between the law of nature and statutory law is described by our author as customary law, which arises spontaneously and informally in particular societies over the course of decades, centuries, and millennia. The authority of customary law is found both in its ancientness and the voluntary assent of people to live by certain folkways over long periods of time.66 Written or statutory law—or at least the best kind, the kind that protects the rights of individuals—is an instantiation of the law of nature and the customary law. The purpose of written law is to put the laws of nature and custom into written and legal form and ultimately “into force, by executing tribunals, and annexing penalties.” For many eighteenth-century Americans, the laws or principles associated with Magna Carta, the English common law, and the English constitution were conventional expressions of the laws of nature. “These principles of right, called the Unwritten Law,” when combined with customary and statutory laws such as those represented in the pre-1688 English constitution, were adopted in America “not as receiving authority from Britain, but as being founded in the nature and fitness of things.”67 For American colonials, the original Saxon constitution was the embodiment of the moral law of nature, which is why they fought so hard to defend their ancient constitution during the early years of the imperial crisis.
The great theoretical and practical problem confronted by America’s Lockean statesmen was in translating the unwritten into written law. As noted in chapter 1, in the state of nature, the law of nature was seen as toothless. It had no enforcement mechanism to deal with those who violated its rules. Samuel Cooke, the Pastor of the Second Church in Cambridge, Massachusetts, illuminated the problem in his 1770 sermon on “The True Principles of Civil Government.” As men form larger and more complex societies, the “temptations to injustice and violence increase,” noted Cooke, “and the occasions of them multiply in proportion to the increase and opulence of the society.” The problem is that the moral laws of nature only influence, guide, and “bind the conscience of the upright,” which means such laws are “insufficient to restrain the sons of violence.” Hence arises the need for men to escape the state of nature and to form governments in order to provide an enforcement mechanism for the moral laws of nature. The role of government in a free and just society is to establish “rules or laws” that mirror the moral laws of nature, “with proper penalties to enforce them, to which individuals shall be subjected.” Or, as the Reverend John Tucker of Newbury preached in his election sermon to the governor and legislature of Massachusetts in 1771, the purpose of government is to establish “certain laws, as the general measures of right and wrong.” Political rulers in a free and just government serve as “watchmen and guardians over the state, whose special business it is” to “curb and restrain the unrighteous and factious, from acts of fraud, rapine and violence, and to protect others in the peaceable enjoyment of their rights.”68
A decade after Tucker addressed the Massachusetts governor and legislature, the Reverend Jonas Clark, speaking to the same body, compared a duly established civil government to “a Shield, as it is instituted for the defence and protection of the subjects of the state.” He reminded the Massachusetts rulers that “they are intrusted with several powers of government, that individuals may be protected and defended in their life, liberty, property and rights—that the internal peace and order of society might be preserved; and that the external defence, of the whole, against the encroachments, violence, assaults, or invasions of enemies, or oppressors, might effectually be provided for.” When government is viewed as a “shield,” its role is to protect individuals in their rights. The protection of the rights of individuals requires a government to make statutory laws that “flow from the constitution, as the streams from a fountain, and even grow out of it, as the tree from the root, or the branches from the stock.”69 The constitution—a written constitution—is built in turn on the unwritten, moral laws of nature.
In 1775, John Joachim Zubly from Georgia defined a law as a “rule of behavior, made under proper authority, and with penalties annexed, suitable to deter the transgressions.” This definition applied to both the unwritten and the written law. The problem with the unwritten law or the law of nature, however, is that it lacked the necessary punishments and enforcement mechanisms to make it salutary. If the moral law of nature is God’s law, then its ultimate punishments were not delivered until after death, which meant they were useless in terms of providing satisfaction in the context of life here and now. If the moral law of nature is a reflection of man’s natural constitution and the requirements of human life, then its ultimate sanctions and punishments could only be executed by those who were the victims of such transgressions, which of course would lead naturally to the war of all against all. This is why, Zubly argued, men create governments. They cannot exist without just laws enforced equally. He described the problem this way: “The will, minds, tempers, dispositions, views and interests of men are so very different, and sometimes so opposite, that without law, which cements and binds all, every thing would be in endless disorder and confusion.” The unwritten law must be therefore translated into written law with the force of a neutral, third party to back up its commandments. The challenge of course is for government to make laws that actually reflect the moral law of nature and thereby expand the boundaries of freedom. The connection between law and liberty was crucial. The “well regulated liberty of individuals is the natural offspring of laws,” Zubly insisted, “which prudently regulate the rights of whole communities.” In fact, Zubly assumed that law and liberty are “perfectly consistent.” Liberty that is not regulated by law, he continued, “is a delusive phantom, and unworthy of the glorious name.”70 Thus the single greatest theoretical and practical task of revolutionary statesmanship was in translating the unwritten law into written law and in designing laws consistent with liberty.
Writing in Boston’s Continental Journal, the pseudonymous “Benevolus” identified the precise relationship between the moral laws of nature and the coercive laws of government. According to Benevolus, the most common crime in civil society—the most common violation of the laws of nature—is the theft of property, which is the result of stealing either by individuals or governments, including democratic majorities. The “wisdom of philosophy,” noted Benevolus, has offered to statesmen certain “remedies” and “policies” for dealing with violations of the laws of nature in civil society. They include:
1. A constitution of government derived from the law of nature and right reason, the real original of all positive laws.
2. A government founded upon the fundamental principles of justice and equity; wherein power is restrained from tyranny, and liberty from licentiousness.
3. A code of laws, so digested with such clearness and precision, as to exclude cavil and chicanerie from the shifting scales of justice, poised equally to ALL, by an impartial administration of it.
4. A government, in which, every member of the legislative is so far subjected in his person and property, as immediately and effectually to feel, equally, with his fellow citizens, every mischief and inconvenience resulting from all and every act of legislation: A government, in short, wherein the exercise of the moral virtues is impressed upon the governed, not only by precept, but by the uniform example of those who govern.71
Benevolus’s statement is the clearest expression of how the revolutionary generation understood the four-step connection between the laws of nature, constitutions, governments, and laws statutory and municipal.
In contrast to their Loyalist brethren, many revolutionary statesmen of the founding era believed that any positive law that violated the laws of nature was necessarily null and void. In 1764, James Otis declared that any statutory law that violated “natural equity” and “his natural laws” should be declared “void” by the king’s “executive courts.” In 1772, Samuel Adams, writing for the Committee of Correspondence of the Boston Town Meeting, declared: “All positive and civil laws should conform, as far as possible, to the law of natural reason and equity.” Two years later, James Wilson announced, quoting the Swiss legal and political theorist Jean-Jacques Burlamaqui, that the law of nature “must regulate the legislature itself.” That same year, the First Continental Congress in its Declaration and Resolves invoked “the immutable laws of nature” against Parliament’s recently passed Coercive Acts.72 A year later, in 1775, Alexander Hamilton followed Wilson’s lead and defended the actions of the Continental Congress with a direct appeal to the laws of nature:
When the first principles of civil society are violated, and the rights of a whole people are invaded, the common forms of municipal law are not to be regarded. Men may then betake themselves to the law of nature; and, if they but conform their actions to that standard, all cavils against them betray either ignorance or dishonesty. There are some events in society, to which human laws cannot extend, but when applied to them, lose all their force and efficacy. In short, when human laws contradict or discountenance the means which are necessary to preserve the essential rights of any society, they defeat the proper end of all laws, and so become null and void.73
From the American perspective, the clearest example of an unjust law that violated the law of nature was the Stamp Act, which taxed the Americans without their consent. In 1772, Joseph Warren captured the relationship between natural and conventional justice in an oration delivered to commemorate the Boston Massacre. Warren reminded his audience “that the greatest and most important right of a British subject is, that he shall be governed by no laws but those to which he either in person or by his representative hath given his consent.” He continued: “And this I will venture to assert, is the grand basis of British freedom; it is interwoven with the constitution; and whenever this is lost, the constitution must be destroyed.”74 The rule of consent is grounded on the right of property, which in turn is grounded on the natural law of self-ownership. Or consider the view of an anonymous writer in New York, who declared, “That representation should accompany taxation is an eternal law of nature, and inseparable from the very idea of property, so that no property can exist without it: whatever is a man’s own, no other person can have a right to take from him, without his consent, expressed by himself, or his representative.” Correctly parsed, the law of nature says, “whatever is a man’s own, no other person can have a right to take from him, without his consent.” The municipal or statutory expression of this law of nature says that consent in the context of civil society is best expressed through the principal of political representation. Therefore, whoever attempts to tax an individual without his direct or indirect consent “attempts an injury” and “whoever does it, commits a robbery.”75 The philosophic concept “law of nature” was at the heart of the American revolutionaries’ case against the actions of the British Parliament.
In sum, there was a consensus across a broad spectrum of American opinion in 1776 that the political laws of a free and just society should reflect the fundamental moral laws of nature. When Jefferson wrote in the Declaration of Independence that the Americans were now prepared to break their familial ties with Great Britain and to establish new political societies on the basis of the “Laws of Nature and of Nature’s God,” he was expressing what he referred to as the common sentiments of the “American mind.” Virtually all Americans during the Revolutionary period believed that there are moral laws of nature, that they transcend the laws of men, that such laws must be discovered through reason and by studying the Book of Nature, that they describe cause-and-effect relationships between man and nature and between man and man, that they prescribe principles of action and moral rules of behavior, and that such laws are fixed, absolute, universal, and eternal. Not all Americans agreed on the exact content of those laws or whether their ultimate source was to be found in “Nature” or in “Nature’s God,” but Jefferson’s felicitous ambiguity was also an expression of both the Enlightenment mind and the American mind.