Natural Law and the American Tradition; D. Keeler

Although the colonies did not produce legal philosophy, they av idly consumed the two monumental writers of English law: Coke and Blackstone. Lord Coke was a product of the Seventeenth Century, which saw not only the ascendency of the doctrine of natural law as a restriction on the sovereign's relations to his subjects, but in England saw it established Davis E. Keeler is director of the Law & Uberty Project of the Institute for Humane Studies, Menlo Park, Cal Ifornia.

NATURAL LAW AND THE AMERICAN TRADITION 273 that there were certain fundamen tal common law rights which the courts would enforce even against the king. To Lord Coke, the common law limitations on royal authority became natural limitations on all authority; the common law rights of Englishmen became the natural rights of man. Because of the inexact manner in which the common law was devel oped and handed down, in his expo sitions of the content of these natu ral rights of Englishmen Coke seldom rested solely upon the Magna Carta or other authority but would invariably invoke ((commonright and reason" to justify his position. Yet however these rights might be discovered, it is clear that they transcended both parliament and king. In Bonham's Case (1610), Coke said: ((And it appears in our books, that in many cases, the common law will control the acts of Parliament, and sometimes adjudge them ut terly void; for when an act ofParlia ment is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such an action to be void."

In 1765, William Blackstone pub lished his Commentaries on the Law and within a short time he became as well read in America as in Eng land. These quotations are from an American edition published in Phil adelphia in 1771: ((When the Supreme Being formed the universe and created matter out of nothing, he impressed certain principles upon that matter from which it can never depart and without which it would cease to be ... This then is the gen eral significance of law . ~ . But laws in their more confined sense, and in which it is our present business to consider them, denote rules not of action in general, but of human action that is the precepts by which man endowed with both reason and free will, is commanded to make use of those faculties in the general regulation of his behavior ... So when He created man . . . He laid down certain immutable laws of hu man nature . . . and gave him' also the faculty of reason to discover the purport of those laws. The Creator ... has been pleased so to contrive the constitution and form of human ity that we should want no other prompter to inquire after and pur sue the rule of right. but our own self-love, that universal principle of action. . . . God has not perplexed the law of nature with a multitude of abstract principles ... but has graciously reduced the rule of obe dience to this one paternal precept that man shall pursue his own true and substantial happiness."

Though Blackstone speaks of the natural liberties and absolute rights of man, he adds a reservation: ((I know it is more generally laid down more largely, that acts of Parlia274 THE FREEMAN ment contrary to reason are void. But if parliament will positively en act a thing to be done which is un reasonable, I know of no power in the ordinary forms of the Constitu tion that is vested with the author ity to control it." In that he was right, for in Eng land the Revolution of 1688 had es tablished the supremacy of Parlia ment and in the Mother Country Lord Coke's fundamental rights of Englishmen could no longer prevail over the will of the legislature. Whatever reservations Black stone may have had about the ulti mate supremacy of natural rights, they were not shared by the colo nists who eagerly consumed Black stone on the rights of Englishmen Man to Man Justice and ignored Blackstone on the su premacy of Parliament.

And this was what the Revolution was about. The Declaration of Inde pendence was a statement of these principles. Far from being an ex travagant rallying cry for a difficult cause, it was a simple statement of the general political and legal con sensus of the colonists. When the in furiated colonists denounced the Stamp Tax and demanded the rights of Englishmen, they were not de manding those rights which Parlia ment had from time to time granted its subjects but rather those imme morial rights of Englishmen granted by God and manifest in nature which no parliament however representa tive may take away or alter. , IDEAS ON LIBERTY IT is in the direction of a more acutely developed sense of individual conscientious responsibility that we must constantly look for any per manent improvement in the ordered general welfare of our society. It must be remembered that ninety-five percent of the peace, order and welfare existing in human society is always produced by the consci entious practice of man to man justice and person to person charity.

When any part of this important domain of personal virtue is trans ferred to government, that part is automatically released from the re straints of morality and put into the area of conscience-less coercion. The field of personal responsibility is thus reduced at the same time and to the same extent that the boundaries of irresponsibility are enlarged. CLARENCE MANION, The Key toPeace William M. Manoogian UTOPIA LOST: A Refutation of Human Perfectibility ((When goods increase, they are in creased that eat them: and what good. is there to the owners thereof, sav·, ing the beholding of them with their eyes?" This biblical verse, Ecclesiastes 5:11, was the inspiration of that most famous of anti-utopians, Thomas Robert Malthus, who became a c1er··· gyman in the same year (1798) he published his famous Essay on Pop_· ulation. Malthusian pessimism win always be flawed by its clumsy and rather foolish predictions on food·· producing and birth control technol·· ogy, but it will always be a powerfu]l tradition because the ultimate refu·· tation of human perfectibility does indeed derive from a theory of hu·· man numbers, one which is far morE~ complete than anything conceived in Ecclesiastes or elaborated by MalMr. Manoogian Is Assistant Counsel to the House olf Representatives' Committee on Civil service.