2 THE TREE OF LIBERTY

In the nave of the Church of St. Nicholas in the Lesser Town of Prague, there is a statue. It purports to be St. Cyril of Alexandria, an unlovely fifth-century character who earned his sainthood through quarreling with the church’s enemies and expelling Jews from the city.

The symbolism of the statue is heavier than its marble. The Catholic Church vanquishes its foes with merry, righteous ruthlessness. But this was an image forged in anxiety, when over a century of conflict with Protestant heresy had left the church weaker than ever before. By the turn of the eighteenth century, England, the Netherlands, Switzerland, many of the German principalities, and all of Scandinavia had adopted Martin Luther’s reforms. Across the Atlantic, English Protestant colonies held the balance of power over their French and Spanish neighbors. Even in Bohemia, as it was then known, the long shadow of the Hussite movement remained. In all likelihood the statue was placed there to remind parishioners of the penalty of recidivism—as if they could forget.

The spread of the Protestant faith had a greater impact on the trajectory of natural law than any movement before or since.[1] It helped create an entire language of right based on the fundamental power of choice, reinforced egalitarian principles inherent in the law yet largely dormant since Cicero’s time, and provided the rational and spiritual foundation for rebellion. Initially, however, none of these outcomes seemed likely. Martin Luther was not a champion of enlightened skepticism; quite the contrary.

But it did not take long for Protestantism to outgrow these narrow bounds. Philip Melanchthon, a disciple of Luther, broke with his mentor on the issue of natural law and reason. Philosophy alone might not provide the answers to essential truths, he admitted. “But moral philosophy is part of divine law. For it is the law of nature itself…. And it is certain that the law of nature is truly the law of God concerning those virtues that reason understands.”[3] Such rational virtues do not stand apart or in opposition to those of the Ten Commandments, he insisted. Rather, all revealed wisdom in the Bible merely reinforced what humans already knew within their hearts; natural law and biblical law were one and the same. Alberico Gentili, an Italian Protestant living in sixteenth-century England, poetically described natural law as “a particle of divine law” left behind after Adam and Eve’s expulsion from the Garden of Eden.[4]

This seemingly mild critique was in fact a clarion call for succeeding generations. Protestantism’s philosophical and spiritual core lay in its name: to protest is to challenge the status quo. It is a profoundly individual decision. Protestantism emerged as an idiosyncratic revolutionary movement more than a countervailing orthodoxy, which accounts for its otherwise astonishing growth. It was never a monolithic faith; schisms and challenges were woven into the fabric. From the sixteenth to the early eighteenth centuries, these schisms widened into gulfs and finally distinct sects—Methodism, Congregationalism, Anglicanism, Quakerism, and so on—all unique, yet all “Protestant.” This heterodoxy meant that each individual, in challenging the Catholic Church, was in effect placing his or her own beliefs against the whole.

Consider the Puritans. They abandoned England in the 1620s because they believed the Church of England had become infected by popery, and they founded their colony in Massachusetts as a “city on a hill,” where all like-minded nonconformists could find refuge. Yet almost from the beginning there were problems. The colony was overseen by a governor and council of elders whose primary task was to ensure all inhabitants followed biblical law; sin, in these messianic times, meant the colony might be one step closer to divine wrath. But how to impose religious conformity on a community of nonconformists? Sectarian heresy was rife, with numerous communities hiving off from Massachusetts to form their own “havens” beyond the walls. Ultimately the crisis became so acute that Governor John Winthrop allowed dissident leader Roger Williams to establish a second colony, Rhode Island, as a kind of inverted Massachusetts. Rhode Island had universal tolerance and a rigid separation of church and state. Not only nonconformists but Jews, Muslims, Catholics, Quakers, and nonbelievers were welcomed.[5]

The case of Massachusetts illustrates the latent power of Protestantism: it encouraged, even mandated original thought. Individuals had to reckon for themselves their relationship with God, and in so doing redefined their relationship with the rest of God’s creation. This instilled a lack of deference not only to church but also, inevitably, to state. Until the seventeenth century, the idea of state justice was barely questioned. Sovereigns were honor-bound to be fair and evenhanded in their administration of law, but the rationale lay in the ancient idea of keeping the kingdom in harmony with nature (as per Cicero), not deference to individual rights. The difference is one of agency: here the sovereign has a duty to act, but the citizen/subject does not have the right to demand. Cicero was explicit on this point.

Protestantism slowly but surely worked a transformation within the collective mind. Cicero declared that “the security of the people is the highest law.” That phrase, restated and reworked through millennia, has come to embody the collectivist view of law as preservation of the community over individual rights. But when individuals begin to question their role within the cosmos, the universal center shifts from the collective to the one: what is my relationship with God and society? What do I believe to be true? If deference to a higher authority is no longer possible, the only avenue left is individual reason. Thus Western society not only implicitly accepted the Stoic premise of natural law but also began to seriously consider what that law entailed. Teleologically, these questions took the form of what God expects of us and what we expect from Him. If God conferred certain blessings (and obligations) on each of us, no secular or clerical authority could supersede them. Thus “God’s blessings” gradually evolved into rights.[7]

The term “right” was not invented in the seventeenth century, but the modern definition certainly was. The Magna Carta speaks of “ancient rights and liberties,” but these were more properly understood as customs that had the force of law. “Liberty” in the medieval era simply meant the ability to do that which one was not otherwise constrained from doing. Yet liberty, defined as freedom of choice, was at the heart of the Protestant Reformation. Under its auspices, God instilled in each individual an implicit knowledge of Himself. One must have the power to choose—and therefore the right to choose—in order to reach that understanding.

If the Protestant Reformation led to the first essential characteristic of modern natural law, the primacy of the individual, the scientific revolutions of the seventeenth and eighteenth centuries provided the second: rationalism. Logic had been at the core of natural law philosophy since the Stoics, but the perceived dichotomy between reason and faith meant that the law’s defenders were constantly having to prove they were not heretics—or, worse, atheists. Scientific rationalism, founded on the principle of demonstrable proof, swept aside these stale debates. It is generally believed that the rise of scientific methods challenged religious orthodoxy, pitting secular values against spiritual. This is reductive at best. Scientists and scholars of the seventeenth century did not set out to topple the Judeo-Christian God from His throne; on the contrary, most were assiduous in maintaining that the universe they uncovered reinforced rather than refuted His presence.[9] This was a rational sphere, where both heaven and earth moved in perfect, orderly, precise motion. Such clockwork precision suggested a divine intelligence; rather than the mysterious, unknowable figure of the Middle Ages, God became a great tutor sharing his infinite wisdom. This view meshed perfectly with Cicero’s “mind of Jupiter.” The laws of humanity were no less rational than those of the cosmos. Natural law thus became enfolded within a holistic philosophy embracing physics, biology, astronomy, mathematics, and behavioral science.

Dutch philosopher Hugo Grotius was the first to apply this new scientific method to natural law, with far-reaching results. Rather remarkably, he did so on commission: in 1605 the Dutch East India Company had been accused of some illegal business off the coast of Malaysia and offered him a handsome fee if he could prove that their actions, while an affront to Portuguese law (that is, the law of their victims), were quite consistent with ius gentium, the Law of Nations.[10] First, however, he had to demonstrate that there was a law of nations.

As with any experiment, he began by introducing doubt. Does natural law even exist and, if so, what evidence is there to support that claim? Aristotle defined justice as a virtue that considered only the other’s good. As human nature was fundamentally moral, a community composed of moral persons would reach justice by consensus among themselves. Grotius disagreed: whether humans were moral or not, surely one sought his own good first. And, if so, how could there still be justice? Clearly the individual reasoned that in order to enjoy justice himself he must be willing to give it to others. This concept, which humanists defined as “sociability,” reversed the understood trajectory of the law. Rather than flowing from the community into each individual (as both Roman and medieval scholars posited), Grotius claimed it flowed from the individual into the community. Justice began in the mind. It was not a moral choice but a rational one.[11]

The truly radical aspect of this idea was that it didn’t require God. No divine being was needed to instill a moral code within each human mind to guide its choices: the mind, in a rational universe, would reach the same conclusion anyway. “Measureless as is the power of God,” Grotius wrote, “nevertheless it can be said that there are certain things over which that power does not extend…. Just as even God cannot cause that two times two should not make four, so He cannot cause that which is intrinsically evil not to be evil.”[12] This was the voice of scientific reason. If only one logical result is possible, that logic is immune from all the devils and angels in the firmament. It is worth remembering that these words were written in 1625, one year before and a few hundred miles away from the infamous trials of Wurzburg and Bamberg, which saw the mass execution of over a thousand accused witches. Heresy was a real and acknowledged crime. Perhaps recognizing this, Grotius softened the hammer-blow of his conclusion as best he could: “What we have been saying would have a degree of validity even if we should concede that which cannot be conceded without the utmost wickedness, that there is no God, or that the affairs of men are of no concern to Him.”[13] Etiamsi daremus non esse Deum, “Such things as these would still be true even without God.”

Removing God from natural law allowed the concept to stand or fall on its own merits. The tenets of that law emerged from the rational choices each person made in order to exist within a community. Thus, in an early foreshadowing of Jefferson’s “self-evidence,” Grotius argued the law spoke for itself. Sounding much like Rene Descartes describing a proof, he wrote of his method:

I have made it my concern to refer to the proofs of things touching the law of nature to certain fundamental conceptions which are beyond question; so that no-one can deny them without violence to himself. For the principles of that law, if you only pay strict attention to them, are manifest and clear, almost as evident as are those things which we perceive by our own senses…. With all truthfulness I aver that, just as mathematicians treat their figures as abstracted from bodies, so in treating law I have withdrawn my mind from every particular fact.[14]

At the center of Grotius’s argument was the fundamental nature of liberty. Scholars had never reached a working consensus on whether liberty was a law, a right, or a condition. Thomas Aquinas looked askance at the whole idea, allowing only that there was nothing in the natural law to expressly deny it. Luis de Molina, writing at the end of the Renaissance, offered an interesting twist: just as man owned his life and body, so too was he “the owner of his own liberty, and therefore, even standing solely under natural law, he can alienate it and drive himself into slavery.”[15] The implication is that people can only sell their liberty (Molina is likely referring to indentured servitude, not slavery) if they own it in the first place. This was something, but not very much. His contemporary Hugues Doneau, writing just a decade before Grotius, traced the concept of liberty back to Ulpian. Just as natural law was common to all creatures, so too were all creatures, man and beast, born free. “Servitude is contrary to nature, as long as we understand nature as the first condition in which men were created, common even to brute animals.”[16] As a philosophical construct this was problematic: did not humans “enslave” animals all the time—horses, oxen, cattle—to say nothing of even worse treatment? Would not Doneau object if someone told him his horse was “free”?

Liberty as a condition hardly qualified as a natural law. Accordingly, Grotius dismissed the idea. A beast in the wild might be free, in the sense that no constraints were placed on it, but it did not enjoy “liberty.” Liberty was an awareness of one’s own freedom. Only a human with a rational mind could understand and appreciate this gift. From that awareness came the ability to determine action—or, as the Protestants would have it, make choices:

God made man autexousios, that is, free and sui iuris [independent], in such a way that each man’s actions and the use of his goods should be subject to his own will and not to another’s. And that is approved by the consensus of all the nations. For what else is that natural liberty than the faculty of doing what it pleases anyone?[17]

From Grotius’s reference to the “use of his goods” came another advance in natural law, property. Reflecting the new individualism of the seventeenth century, Grotius defined “right” as a power relationship between the self and all things, internal and external. Thus one exerted power (dominium) over one’s body, mind, and possessions equally. This right was inviolable unless it conflicted with another’s—in other words, if your dominium over a piece of property was challenged by another claim. This was radical indeed. The disparities of wealth and poverty in seventeenth-century Europe were great, and ordinary subjects had few property rights. It is not surprising, then, that over a century before the American revolutionaries built their revolution upon Grotius’s concept of liberty, the English Levellers of the mid-seventeenth century advocated the radical philosophy that every human had an absolute right to that which they themselves created. As Max Weber argues, this was entirely consistent with the Protestant work ethic emerging at that time. Protestants, Weber writes, believed that as God gave His blessings through the land, only by fully utilizing that land could they honor God.[18] Richard Overton, an English pamphleteer and prominent Leveller, related this sacred trust to the very right to life itself and emerged with a holistic political philosophy grounded squarely in natural law:

To every individual in nature is given an individual property by nature not to be invaded or usurped by any. For everyone, as he is himself, so he has a self-propriety, else he could not be himself; and of this no second may presume to deprive of without manifest violation and affront to the very principles of nature and of the rules of equity and justice between man and man…. No man has power over my rights and liberties, and I over no man’s.[19]

The essential inviolability of the individual, which lay at the heart of both Protestant and Grotian philosophy, was the nexus by which natural law translated into reform, and ultimately revolution. Until the seventeenth century, bound up as it was in abstract notions of “justice,” natural law remained almost as remote and unknowable as the mind of God itself. Moreover, the task of divining it was, as Cicero had argued, exclusively the province of state magistrates. But if Law began not in the mind of God but in the rational mind of mankind, as Grotius claimed, individuals—magistrate, serf, or slave—were like a sovereign state unto themselves. For the first time, their “rights” were understood not in relation to a state, but inherent to themselves. One did not enjoy these rights as a man or a citizen or a property owner, but simply as a human being. This introduced a radical new concept into law: equality. If each person on earth is born with the rights to life, liberty, security, and property, such rights transcend nationality, gender, religion, and caste. Justice became redefined as the protection of these rights.

This was a profoundly dangerous idea, for many reasons. To start with, it placed clear limits on what a state could do to its citizens in the name of “law.” If law existed for the purpose of upholding rights, any law which failed or did the opposite was not, by definition, a law at all. An obvious example was torture. State-sanctioned torture to obtain confessions or evidence in law was ubiquitous throughout the Western world well into the eighteenth century. Not only that; condemned criminals were often subjected to prolonged agony prior to their execution. Sometimes these horrors were enacted in public before a jeering crowd. These cruelties reflected a prevailing view of criminality in which criminals placed themselves against the state or community, almost as a private war. Each crime was an offense against the body politic, and thus torture and execution were a form of collective catharsis; “justice” became a pageant in which the suffering and death of the criminal mirrored the enjoyment and satisfaction of the populace.[20]

But if every person enjoyed natural rights under the law, those rights must extend to criminals as well. Among them, as Grotius identified, was freedom from bodily harm. This natural law foundation coincided with a great societal shift in Western Europe in the eighteenth century, “a sense of the separation and self-possession of individual bodies, along with the possibility of empathy for others,” as historian Lynn Hunt describes it.[21] Accordingly, the Baron de Montesquieu condemned the practice of judicial torture in his Spirit of Laws, published in 1748. The gruesome breaking and death of a sixty-four-year-old French Protestant in 1762 led Voltaire to pen a Treatise on Tolerance on the Occasion of the Death of Jean Calas, which for the first time invoked the phrase “human right” in connection with state practice.

Neither, however, went as far in their reasoning as Italian scholar Cesare Beccaria. Montesquieu and Voltaire viewed torture largely from the perspective of the state; states, they claimed, as custodians of civilization, must not engage in uncivilized conduct. Beccaria distinguished himself by viewing the practice from the vantage of the condemned criminal whose rights were being abridged. Torture was not only barbaric but “useless cruelty.”[22] It served no purpose other than bloodlust and violated the condemned person’s sacred rights for the amusement of the crowd. Moreover, if the state could not violate a person’s body without also violating his or her natural rights, he reasoned, how could it take a life? The state did not give the subject his life any more than his body or his freedom; what right then did it have to take it? Only if the subject could be assumed to have entered into a social compact with the state could such a thing be allowed, but “who has ever willingly given up to others the authority to kill him?”

Capital punishment, Beccaria argued, like torture, was not only savage but “useless”: the same end could be achieved through incarceration. A rational state, like a rational individual, must choose the wisest course and not be guided by vengeance or bloodlust. Therefore all punishments meted out by the state must be proportional to the crimes committed: anything in excess “is not punishment, but abuse.” To those who argued that the death penalty was indeed useful as a deterrent, Beccaria had two responses: first, that a lifetime in prison was infinitely worse than a moment of pain; second, that any useful gains would be more than outweighed by “the example of savagery it gives to man.” While not going quite so far as his Italian contemporary, English jurist William Blackstone agreed in principle. Criminal law, he wrote, must “be conformable to the dictates of truth and justice, the feelings of humanity, and the indelible rights of mankind.”[23]

Yet it was liberty, not life or security, that came to dominate natural law discourse in the seventeenth and eighteenth centuries. Liberty was the most dangerous right of all: broadest to define, easiest to breach. A state could hardly take someone’s life or property, or cause them bodily harm, without it being instantly recognized for what it was. But what exactly constitutes a breach of liberty? This was particularly problematic as law abjures conduct seen as harmful to the community and may also require other conduct that is beneficial. These are limitations on choice or, if you prefer, freedom. The state’s “right” to restrain conduct rests on the perceived harm or benefit to the whole, but if that were the only basis it would be scarcely any different from Cicero’s conception of law as “the security of the people.” Instead, as scholars of the Enlightenment argued, the citizen-subject should enjoy as much freedom as possible except when their enjoyment impinges on the rights of another. But that balance is almost as impossible to find now as then.

Surely, however, any definition of the right to liberty would include freedom from slavery. Yet it was during the seventeenth and eighteenth centuries that the transport of slaves from Africa to the New World peaked, transforming the American continents and reshaping European economies. By the time Grotius wrote De Jure Belli et Pacis in 1625, the Spanish in the Americas had been enslaving the indigenous population for over a century and had recently begun importing African slaves to augment the labor force. Soon their example would be followed by the English colonies of St. Kitts and Barbados, which spread in turn to the Carolinas, until by the end of the century nearly every Atlantic colony had a captive population. In 1644, Grotius’s erstwhile employers, the Dutch West India Company, opened their first slave-trading post at Offra, in present-day Benin.

Grotius did not condemn slavery himself, taking refuge instead in Aristotle’s patronizing line that “certain persons by their nature are slaves.”[24] The implication was that even though they were nominally free, like all humanity, their culture and/or biology predestined they would “choose” slavery. This obvious fallacy was not lost on later scholars. The antislavery movement that emerged during the eighteenth century drew its inspiration partly from natural law and partly from Christian thought—indeed it might be considered the linear descendant of such long-dead voices as Francisco de Vitoria and Bartolome de las Casas. The precept that God instilled in each person a gift of divine reason never jibed well with slavery and conquest. By the end of the seventeenth century, Christian theology, like natural law philosophy, had largely come to reject slavery outright. Protestants and Catholics accepted equally that God created humanity in His image and instilled it with morality. One Protestant sect, the Quakers, developed this idea yet further, believing each person to be possessed of an Inner Light, “that of God within man.” This was not just a moral code but a fragment of the Divine Singularity that bound all humankind together in a single community. It should not be surprising, then, that Quakers were among the first to organize antislavery societies in England and the American colonies.[25]

There was also a rational, secular argument against the practice. Criminal reform was predicated on the idea of the relationship between the sovereign and the citizen. But what were the state’s obligations to noncitizens? They had entered into no social compact with the state. Was the state obliged to respect their natural rights as well? Of course it was, for two reasons. First, natural rights were universal, transcending government and nationality. Just as one individual could not violate another without offending the natural law, neither could the citizens of one state violate another. Second, states were proscribed from “barbarous” conduct: the state, as a reflection of the community, must at all times uphold that community’s law. Cruelty was not constrained by geographic boundaries. By denying their captives’ liberty, the European states debased themselves just as surely as if they had enslaved their own citizens. Francis Scott Key, appearing before the Supreme Court in a slave-trading case in 1825, argued forcefully that whether the practice was universally criminalized or not, it was universally criminal. “By the law of nature,” he declared, “all men are free.” Key lost the case. “The African slave trade is contrary to the law of nature,” Justice John Marshall wrote, “but it is not prohibited by the positive law of nations.”[26] The wide gulf between theory and practice ensured that it would be many decades before Western society came to accept the unlawfulness of slavery; as late as the 1860s Southern slave owners still thumbed through their Bibles to find justification in scripture. Nevertheless, the melding of Christian belief and natural rights provided the necessary foundation, without which it is difficult to imagine how the practice could have ceased.

The politicization of natural rights, especially liberty, had even more radical consequences. It began with an unanswered question nearly two thousand years old. In De Legibus, Cicero maintained that “if a state has no law, it is not for that reason to be reckoned a state at all,”[27] and underscored this idea with a copious list of “virtues” for a proper magistrate. As he would with all things, Cicero sought balance: the people required and deserved justice, while the magistrate required and deserved obedience. “We would not, however, limit ourselves to requiring from the citizens submission and obedience towards their magistrates; we would also enjoin them to by all means honor and love their rulers.” Minus the Orwellian overtones, Cicero’s model for an ideal state looks contractual: each side has responsibilities and expectations. If citizens broke faith by committing a crime, the state had the right to compel or punish them. Even social dissent was cancerous: “If anyone shall disturb the public harmony, and foment party quarrels, let him be punished as a criminal.”[28]

Yet Cicero’s contract seems curiously one-sided. While the penalties for citizens are clear, what would happen if the state ceased to uphold the law? Would its citizens have the right to declare it was no longer a state and refashion a new government in its place? It is tempting to say yes, but there is nothing in De Legibus to support this view. The closest Cicero ever comes to acknowledging the possibility is in an oblique reference to the lawless state of Rome under King Tarquin, when he argues that natural law nevertheless continued to exist even when it was not being followed. The implication, however slight, is that a tyrant is an aberration that must be borne until the natural and normal state of harmony inevitably returns. This Stoic forbearance would have been small consolation for Tarquin’s subjects, or indeed for Cicero himself under the dictatorships of Sulla and Caesar.

The emergence of natural-rights philosophy in the seventeenth century reanimated the old conundrum. Cicero’s contract was between two collective entities: the citizenry (civiae) and the magistracy (gubernacula). In an age of rights, however, the contract was between each individual and the sovereign. Could that contract ever be annulled? Who could do so, and how? The question took on an air of urgency in 1641, when relations between King Charles I and his recalcitrant parliament broke irrevocably. The English Civil War, fought between 1641 and 1649, saw king and parliament raise rival armies to settle on the battlefield the question of which had the ultimate authority to rule.

Charles I maintained his claim derived from divine right, customary law, and practical necessity. The sovereign was the embodiment of law, the safeguard of liberty. Without him the people had no law and no rights. At his execution in 1649, his last words conveyed a warning to his countrymen:

And truly I desire their Liberty and Freedom as much as any Body whomsoever. But I must tell you, that their Liberty and Freedom consists in having of Government: those Laws, by which their Life and their Gods may be most their own. It is not for having share in government that is nothing pertaining to them. A subject and a sovereign are clean different things, and therefore until they do that, I mean, that you do put the people in that liberty as I say, certainly they will never enjoy themselves.[29]

Thomas Hobbes agreed. Writing in support of the king, he saw the root of the problem in Grotius’s definition of liberty. Grotius had identified liberty as a right alongside life, security, and property; all were natural laws that must and should be reflected in the positive laws of the state. But, said Hobbes, liberty was not like the others. Liberty was not law but its antithesis, a kind of void that he defined as absence of restraint. “Natural liberty is a Right not constituted but allowed by the Laws; for the Laws being removed, our liberty is absolute.” States could not create laws to safeguard liberty, for every law constrained it still further: “Law is a Fetter, Right a freedom, and they differ like contraries.” [30]

Hobbes’s argument was subtler and more complex than it sounds. The right to liberty was indeed distinct from other rights; one could enjoy one’s life and limb to their heart’s content without disturbing anyone, but unfettered liberty was indistinguishable from anarchy. Something could not be a natural right, he reasoned, if its enjoyment threatened or nullified all other so-called natural rights. In natural law, liberty was not unrestrained freedom but “the liberty each man hath to use his own power, as he will himself, for the preservation of his nature, that is to say, of his own life.”[31] Self-preservation was for Hobbes the essential fount of natural law. It must be so, for “it is neither absurd, nor reprehensible, neither against the dictates of true reason for a man to use all his endeavors to preserve and defend his Body and the members thereof from death and sorrows…. Therefore the first foundation of natural right is this, that every man as much as in him lies endeavor to protect his life and members.”[32]

Human beings had a natural right to self-preservation, but human nature precluded its practice without some form of restraint. Man loved his liberty, but he loved exerting his authority as well. This logic led inexorably to Hobbes’s famous (and cynical) conclusion that the only way to preserve natural law rights was to surrender all authority to an artificial body, the state:

The final cause, end, or design in men (who naturally love liberty and dominion over others) in the introduction of that restraint upon themselves in which we see them live in commonwealths is the foresight of their own preservation…. For the laws of nature of themselves, without the terror of some power to cause them to be observed, are contrary to our natural passions, that carry us to partiality, pride, revenge, and the like. And covenants without swords are but words, and of no strength to secure a man at all.[33]

In some ways Hobbes’s argument is similar to Cicero’s; both recognized the necessity of a state to articulate the natural law and compel obedience. By translating justice to right, Hobbes was merely updating the old Stoic concept for a new and different age. He would have agreed with Cicero’s famous dictum that “the security of the people is the highest law.” And like Cicero, Hobbes left no escape clause from the social compact he envisioned. The state, once brought into being, could not be undone. If individuals were allowed to challenge its laws on the grounds that their “liberty” was breached, no state could exist at all, for every law was a restraint upon liberty. Only if the state wholly ceased protecting the security of life and person could it be construed to have ceased its function, and Hobbes could imagine no circumstance where a state would wish to annihilate its own people. In 1644 this was a practical impossibility anyway; it would take another three centuries for technology to make it feasible.

John Locke, writing several decades later in the aftermath of the “glorious revolution,” sought to reconcile abstract theory with political reality. His times were no less galvanic than Hobbes’s. Prompted by the birth of a Catholic heir presumptive in 1688, a cabal of lords and parliamentarians deposed King James II and invited William of Orange, stadtholder of the Netherlands, to take the throne. Despite its widespread popularity among the English people, the revolution could scarcely be described as a legal enterprise. An English Bill of Rights, passed by Parliament under the watchful gaze of King William III and Queen Mary in 1689, attempted to make it so ex post facto. The bill began by citing a long list of charges against James, “all [of] which are utterly and directly contrary to the known laws and statutes and freedoms of this realm,” before advancing the astonishing claim that James II had “vacated” the throne of his own will, forcing Parliament to appoint a successor.

The legal argument was twofold: the king had broken the law, and he had abandoned the kingdom. The state being effectively broken, the Bill of Rights reestablished it under a new contractual basis. William III and his successors would be pledged to uphold a list of “rights,” constitutional limitations on their power. In some aspects this was a reworking of the Magna Carta, pressed on King John by his rebellious barons in 1215. Both spoke of the king’s obligation to uphold “ancient rights and liberties.” But the Bill of Rights went much further, placing the king in a subordinate position to Parliament and effectively redefining the English “state” forevermore: “Now in pursuance of the premises the said Lords Spiritual and Temporal and Commons in Parliament…do pray that it may be declared and enacted that all and singular the rights and liberties asserted and claimed in the said declaration are the true, ancient and indubitable rights and liberties of the people of this kingdom, and so shall be esteemed, allowed, adjudged, deemed and taken to be…in all time to come.”[34]

No one could dispute that Parliament had the power to do as it did, but was it legal? Thomas Hobbes (and James II and presumably his late father, Charles I) would say no. Both the Magna Carta and Bill of Rights were essentially ransom notes forced upon the monarchy after a civil war. They were not “contracts” in the proper sense, as only one party had been obliged to sign them. John Locke, who had returned from exile to take up a position in William’s government, nevertheless claimed them valid. He began his analysis by restating the accepted truth, that superseding the laws of king and Parliament was another, higher law: “The State of Nature has a Law of Nature to govern it, which obliges every one: And Reason, which is that Law, teaches all Mankind, who will but consult it, that being equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions.” He even agreed with Hobbes, up to a point:

And that all Men may be restrained from invading others Rights, and from doing hurt to one another, and the Law of Nature be observed, which willeth the Peace and Preservation of all Mankind, the Execution of the Law of Nature is in that State, put into every Man’s hands, whereby everyone has a right to punish transgressors of that Law to such a Degree as may hinder its Violation. For the Law of Nature would, as all other Laws that concern Men in this World, be in vain, if there were no body that in the State of Nature had Power to Execute that Law.[35]

The temporal, corporeal state was necessary to constrain humankind’s passions and enforce the natural law. Locke rejected, however, Hobbes’s conception of freedom and law as opposites. Granted that freedom was not “a liberty for every man to do what he wants,” it nevertheless had a meaning beyond just preservation of the self, as Hobbes claimed. The individual under natural law must not be “subject to the arbitrary Will of another, but freely follow his own.”[36] The key word was “arbitrary.” Curtailment of action must be justified, and the only justification possible was in defense of natural laws, including the freedom of others. “The end of Law is not to abolish or restrain, but to preserve and enlarge Freedom,” Locke concluded, for “where there is no Law, there is no Freedom.”[37]

Locke also challenged the monolithic image of the sovereign portrayed in Hobbes’s Leviathan. For Hobbes, state and sovereign were one and indivisible; for Locke, they were two separate entities. The king was, ultimately, a man, and thus as prey to illogical passions as any other man. As head of state, his capacity for great good and great harm was magnified by his office. Therefore when an outraged citizenry rose up and deposed a tyrant, they set themselves against the man, not the state. “In transgressing the Law of Nature,” wrote Locke, “the Offender declares himself to live by another rule than of reason and common Equity…so he becomes dangerous to Mankind…. And in this case, and upon this ground, every Man hath a Right to punish the Offender, and be the Executioner of the Law of Nature.”[38]

This was political dynamite. Locke was finally and explicitly answering the question left by Cicero. The social contract between state and citizen was inviolable and insoluble, but it was maintained by fallible humanity. The people need not suffer a despot out of some blind deference to order, for a despotic king was merely another individual in a state of nature who had amassed more sharp sticks and stones than anyone else. “I shall desire those who make this Objection,” Locke declared,

to remember that Absolute Monarchs are but Men, and if Government is to be the Remedy of those Evils, which necessarily follow from Men’s being Judges of their own Cases, and the State of Nature is therefore not to be endured, I desire to know what kind of Government that is, and how much better it is than the State of Nature, where one Man commanding a multitude has the Liberty to be Judge in his own Case, and may do to all his Subjects whatever he pleases, without the least liberty to anyone to question those who Execute his Pleasure?[39]

Despite or perhaps because of their radicalism, Locke’s Two Treatises of Government went largely unremarked during his lifetime. It was only in the middle decades of the eighteenth century that they resurfaced, thanks to a new generation of natural law scholars led by Swiss philosopher Jean-Jacques Burlamaqui. Their work, along with the political tracts of Montesquieu, Diderot, Rousseau, and others, transformed the discourse on rights from retrospective to aspirational: coupled with Enlightenment ideas on the perfectibility of man, natural rights provide a blueprint for the ideal state.[40] This concept was both new and ancient. A progressive view of humanity had always been integral to natural law; as it comes to know the “mind of God” over millennia, human society moves closer to the celestial. But never before had this concept been employed to justify revolution.

The American colonies proved fertile ground for arguments of this kind. Protestant individualism was nowhere stronger than in Puritan Massachusetts, a colony which through its charter had attained a measure of independence from the English crown since its foundation. This was coupled with an equally strong streak of utopianism: Puritans had determined in the 1630s to create a “city on a hill” to serve as both refuge and beacon for their benighted brethren across the Atlantic. Whether the experiment was a success was a matter of debate, but the ideals remained. As historians Leonard Levy and Alfred Young have argued, “Puritan political theory, like Puritanism itself, left a lasting influence on American development…. The social compact theory and representative government…natural law and rights…and the exceptional importance of the individual—all may be found in Puritan political ideas.”[41]

This argument must not be taken too far. Puritanism was neither the largest nor the most dominant faith in the English Atlantic, and Massachusetts was something of an anomaly in its charter government. What was universal to every colony, however, was a melding of English and distinctively local law. Acts of Parliament, acts of King-in-Council, and directives from the Board of Trade arrived weekly in every colony, to be placed in the hands of the colonial governor for immediate implementation. What happened next was less certain. Governors often chose to ignore, dismiss, or deliberately misconstrue these instructions while assiduously claiming in reports to London to be following them to the letter. There is no question they saw their colonies as socially, economically, and legally distinct from the mother country. This distinction can best be seen during great political crises like the English Civil War and the Glorious Revolution. Following the latter, New England colonists eagerly arrested their crown-appointed governor, Edmund Andros, and demanded a return of their charter rights. The situation in New York descended into even greater anarchy as mutual claimants jockeyed for power. Even in times of relative placidity, the colonies guarded their legal autonomy. An act to create admiralty courts in the colonies in 1698, for example, provoked Rhode Island governor Walter Clarke to warn the colonial assembly that to recognize the admiralty commission was to surrender their charter rights and privileges, and that “we had better like men spend the one half of our Estates to maintain our privileges” sooner than be “brought into bondage and slavery.”[42] One year later his successor, Governor Samuel Cranston, was still refusing to acknowledge the commissions: “Let us not fall into the bonds of slavery. A word to the wise is sufficient.”[43]

At the heart of colonial law was a paradox. When colonists insisted on their rights “as Englishmen,” they referred to the so-called unwritten constitution: a body of codified and customary law stretching back centuries which included, though was not limited to, the Magna Carta and English Bill of Rights. Englishmen rightly viewed their legal system as the truest expression of natural law presently in existence. William Blackstone, writing at the mid-eighteenth century, wrote that all law derived from the law of nature, which translated into the rights to life, liberty, security, and property. But, he lamented, only England seemed to be aware of that fact: “These [rights] were formerly, either by inheritance or purchase, the rights of all mankind; but in most other countries of the world being now more or less debased and destroyed, they at present may be said to remain…the rights of the people of England.”[44] This was a harsh judgment on other nations’ law, but it had a kernel of truth. Englishmen and -women considered themselves the “freest” of all citizens of the world in the eighteenth century, the legacy of two convulsive revolutions and a constitutional monarchy.

American colonists shared this view. “Every British subject born on the continent of America, or in any other of the British dominions, is by the law of God and nature, by the common law, and by act of parliament…entitled to all the natural, essential, inherent and inseparable rights of our fellow subjects in Great Britain,” James Otis declared in 1764.[45] But to that body of customary law they also added their charters and whatever local law had been erected within the colony. Therein lay the paradox. Colonial law was not British law but an amalgam. On what foundation did local law rest, especially (as was often the case) when it conflicted with the mother country’s? If the colonies ignored the law being transmitted from London (as they often did), could they still lay claim to legal status as Englishmen?

Natural law filled the void. If local law had no basis under English jurisprudence, and indeed might contradict it, it could still be held valid if it reaffirmed natural rights, which were universal. “Thanks be to God,” Reverend Samuel Langdon told his Massachusetts brethren in 1775, “that he has given us, as men, natural rights independent of all human laws whatever, and that these rights are recognized by the grand Charter of British Liberties.”[46] Some of them, at any rate. Less than a year later, an anonymous pamphleteer suggested that this cherry-picking of English law was not only justified, but essential. Colonists “carry with them only so much of English laws as is applicable to their own situation,” he argued, and if “their native rights as freemen” were violated, they could and must assert their “natural rights.”[47]

More august voices lent their support. If the colonies had the right to create such local laws as did not offend the natural law, surely they also had the right to reject any British law that did. Philadelphia jurist James Wilson tackled the subject of parliamentary authority in 1774 in a brief but tightly argued essay. Of Parliament, he asked rhetorically: “Have they a natural right to make laws by which we may be deprived of our properties, of our liberties, of our lives?” Clearly not, as these were natural rights themselves. Wilson, a Scotsman by birth and well versed in both Grotius and Locke, grounded his argument in the familiar claim that all persons—colonist or Englishman or Chinese, for that matter—are born “equal and free: no one has a right to any authority over another without his consent.”[48]

From Boston, staunch patriot John Adams concurred. A lawyer himself, Adams had spent much of his adult life learning and arguing over Massachusetts law—an impenetrable morass of custom and local practice; acts of assembly; gubernatorial proclamations; cases; charter rights; residual Puritan iuris ecclesiastici; and, of course, British law. This was every bit as confusing as it sounds. Nor was it singular. In December 1697, the Board of Trade issued a formal request for a copy of all laws currently in effect in Rhode Island.[49] What came back was, according to a board member, “a blind copy of their laws,”[50] which was “full of incoherence and nonsense jumbled together and confused. The Government themselves cannot tell when they have the whole: how then can the people be supposed to know what is Law amongst them?”[51] For Adams, however, this was the source of the law’s strength. He granted that colonial law was a distinct and diverse genus whose only common ancestor was natural law. “How then,” he demanded, “do we New England men derive our laws? I say not from parliament, not from common law, but from the law of nature, and the compact made with the King in our charters.”[52]

The American pre-Revolutionary legal landscape was thus a hodgepodge of Protestant individualism, Puritan utopianism, Grotian philosophy, Lockian social contract theory, British ius gentium, and local practice, all bound up in a rather woolly but deeply felt adherence to natural law and rights. Nowhere was this curious admixture better expressed than in the Declaration of Independence. Thomas Jefferson freely admitted that he drew from numerous sources when drafting the declaration, not least his own Summary View of the Rights of British America.[53] In its first sentence the declaration pays deference to both Protestant and Enlightenment concepts when it speaks of the necessity “to assume among the powers of the earth, the separate and equal station which the Laws of Nature and of Nature’s God entitle them.” This was not a secular invocation; the rights to life, liberty, and the pursuit of happiness did not merely exist in nature but were “endowed by our Creator,” an idea that (as we have seen) traces itself back through Melanchthon to Aquinas and Cicero. Nevertheless, the subsequent passage was strikingly modern and illustrates just how far natural law concepts had evolved:

That whenever any Government becomes destructive to those ends, it is the Right of the People to alter or abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.[54]

The Declaration of Independence was galvanic, more so after it became clear the American Revolution was going to succeed. “I have lived to see the rights of men better understood than ever,” one patriotic clergyman exulted, “and nations panting for liberty, which seemed to have lost the idea of it.”[55] The Marquis de Condorcet echoed this theme of lost utopia, writing in 1789 that the Declaration of Independence was “a simple and sublime exposition of these rights that are at once so sacred and so long forgotten.”[56] Forgotten by whom? Never before had natural rights been the explicit basis for revolution. But the desire to link modern revolutions with “ancient rights and liberties” was understandable. The French revolutionary assembly underscored this predisposition by promulgating a Declaration of the Rights of Man and of the Citizen, which effectively forbade citizen and state alike from “forgetting” natural rights:

The representatives of the French people, organized as a National Assembly, believing that the ignorance, neglect, or contempt of the rights of man are the sole cause of public calamities and of the corruption of governments, have determined to set forth in a solemn declaration the natural, unalienable, and sacred rights of man, in order that this declaration, being constantly before all the members of the Social body, shall remind them continually of their rights and duties.[57]

By the end of the eighteenth century, natural law had irrevocably transformed into natural rights. The concept, which had once been an abstraction, now became the basis upon which all Western governments were founded and the test whereby all state law was judged. This seemed to bode well for a new body of laws grounded in the basic rights of life, liberty, security, and property. But there were crosscurrents. How could one speak of universal freedom when a significant part of the world’s population was enslaved? How could French revolutionaries continue to maintain the pretense of a natural law republic throughout the Reign of Terror? As a new century began, these questions remained unanswered. But the author of the Declaration of Independence, for one, was unperturbed. “The tree of liberty must be watered from time to time with the blood of patriots and tyrants,” he once remarked. “It is its natural manure.”

If so, the next century promised a deluge.