“If you will follow my advice, there still may be hopes of your reformation. Apply yourself, without delay, to the study of the law of nature. I would recommend to your perusal, Grotius, Puffendorf, Locke, Montesquieu, and Burlemaqui. I might mention other excellent writers on this subject; but if you attend diligently to these, you will not require any others.”–Alexander Hamilton, The Farmer Refuted [1774]
Jean-Jacques Burlamaqui [1747]:
“Moral instinct I call that natural bent or inclination which prompts us to approve of certain things as good and commendable, and to condemn others as bad and blameable, independent of reflexion. Or if any one has a mind to distinguish this instinct by the name of moral sense, as Mr. Hutchinson has done, I shall then say, that it is a faculty of the mind, which instantly discerns, in certain cases, moral good and evil, by a kind of sensation and taste, independent of reason and reflexion.
Examples.II. Thus at the sight of a man in misery or pain, we feel immediately a sense of compassion, which prompts us to relieve him. The first emotion that strikes us, after receiving a benefit, is to acknowledge the favour, and to thank our benefactor. The first disposition of one man towards another, abstracting from any particular reason he may have of hatred or fear, is a sense of benevolence, as towards his fellow-creature, with whom he finds himself connected by a conformity of nature and wants. We likewise observe, that without any great thought or reasoning, a child, or untutored peasant, is sensible that ingratitude is a vice, and exclaims against perfidy, as a black and unjust action, which highly shocks him, and is absolutely repugnant to his nature. On the contrary, to keep one’s word, to be grateful for a benefit, to pay every body their due, to honour our parents, to comfort those who are in distress or misery, are all so many actions which we cannot but approve and esteem as just, good, honest, beneficent, and useful to mankind. Hence the mind is pleased to see or hear such acts of equity, sincerity, humanity, and beneficence; the heart is touched and moved; and reading them in history we are seized with admiration, and extol the happiness of the age, nation, or family, distinguished by such noble examples. As for criminal instances, we cannot see or hear them mentioned, without contempt or indignation.”
This is what separates man from the mere beasts. Man knows what is good and what is not-good when he sees it. “Natural law” is rooted in man’s nature, not the Bible, nor in arbitrary positive law.
13 comments:
Hamilton was less than 20 years old in 1774.
And Locke's philosophical commitment to natural law is questionable. But what this tells us ABOUT is the prevailing wisdom on the topic--natural law is a Founding principle, much more than other philosophical abstractions.
What is also interesting in "Farmer Refuted" is Hamilton's accusation that Seabury is a follower of [ick] Thomas Hobbes!!
FARMER REFUTED FROM "HAMILTON": https://www.youtube.com/watch?v=IRImIezjxRg
One thing to ponder though is whether the natural law and at other times God connected (or unconnected) to the NL was invoked -- whether sincere or not -- for instrumental purposes.
On positive law grounds, arguably GB was right for one reason: However you interpret the positive legal case for the American revolution, extant positive law said "Parliament" gets the final say over how to interpret and apply it.
Even if -- and I'm not convinced this is the case -- America had the better positive legal case that it was entitled to do what it did -- the positive authority belonged to GB settle the matter. It would be like having the better argument in a dissenting opinion. The majority still wins the case.
Unless of course you could appeal to a higher authority and that's where your Brooding Omnipresence in the Sky comes in.
Aside from his lengthy case for liberty as a matter of natural law, in the "Farmer Refuted" Hamilton [validly, IMO] argues that the colonies' charters were from the king [before Parliament achieved primacy in the Glorious Revolution of 1688]. The colonies had no legal duty to parliament in the least, a sentiment echoed by Jefferson in the D of I.
So that, to disclaim, the authority of a British Parliament over us, does by no means imply the dereliction of our allegiance to British Monarchs. Our compact takes no cognizance of the manner of their accession to the throne. It is sufficient for us, that they are Kings of England.
The most valid reasons can be assigned for our allegiance to the King of Great-Britain; but not one of the least force or plausibility for our subjection to parliamentary decrees.
We hold our lands in America by virtue of charters from British Monarchs; and are under no obligations to the lords or commons for them: Our title is similar and equal to that, by which they possess their lands; and the King is the legal fountain of both: this is one grand source of our obligation to allegiance.
Jefferson later completes the case, that the British crown
has abdicated Government here, by declaring us out of his Protection and waging War against us.
The deal is off.
Yes that's what I was referring to; it's a clever argument. But the way in which the system worked -- the positive law of GB to which America was subject -- it was parliament's decision on how the conflict ultimately resolves, not America's.
Thus Hamilton' case in the Farmer Refuted for the natural right to liberty, and that Parliament does not have the consent of the Americans governed by it.
When I say, that the authority of parliament is confined to Great-Britain, I speak of it, in its primitive and original state. Parliament may acquire an incidental influence over others; but this must be by their own free consent. For without this, any power it might exercise, would be mere usurpation, and by no means a just authority.
"Usurpation." Nice touch. One of the first cracks in the divine right of kings [and, I suppose, Romans 13] was against usurpers, whose authority is illegitimate.
...
That the existence of the house of commons depends upon the people’s right to a share in the legislature; which is exercised, by means of electing the members of that house. That the end and intention of this right is, to preserve the life, property and liberty of the subject, from the encroachments of oppression and tyranny.
That this end is accomplished, by means of the intimate connexion of interest, between those members and their constituents, the people of Great-Britain.
That with respect to the people of America, there is no such intimate connexion of interest; but the contrary. And therefore that end could not be answered to them; consequently the end ceasing, the means must cease also.
That the house of commons derives all its power, from its own real constituents, who are the people of Great-Britain, and that therefore, it has no power, but what they originally had in themselves.
That they had no original right to the life, property, or liberty of Americans; nor any acquired from their own consent, and of course could give no authority over them.
That, therefore, the house of commons has no such authority.
Consent of the governed is a natural law. As the Schoolmen argued, power comes from God, who gives it to the people, who entrust it in a sovereign [be it a monarch or a republic]. Tyrants cross that natural law.
Mayhew:
Thus, upon a careful review of the apostle’s reasoning in this passage, it appears that his arguments to enforce submission, are of such a nature, as to conclude only in favour of submission to such rulers as he himself describes; i.e. such as rule for the good of society, which is the only end of their institution. Common tyrants, and public oppressors, are not intitled [sic] to obedience from their subjects, by virtue of any thing here laid down by the inspired apostle.
...
Suppose God requires a family of children, to obey their father and not to resist him and inforces [sic] his command with this argument; that the superintendence and care and authority of a just and kind parent, will contribute to the happiness of the whole family; so that they ought to obey him for their own sakes more than for his: Suppose this parent at length runs distracted, and attempts, in his mad fit, to cut all his children’s throats: Now in this case, is not the reason before assigned, why these children should obey their parent while he continued of a sound mind, namely, their common good, a reason equally conclusive for disobeying and resisting him, since he is become delirious, and attempts their ruin?
Yes you need the higher source of law as a trump or else Great Britain wins because the positive law says GB has the final say over how to interpret "rights of Englishmen" and how far Parliament's authority reaches.
I think Gary North accurately captured it.
Of Parliament's power, Blackstone famously noted:
"It can, in short, do every thing that is not naturally impossible; and therefore some have not scrupled to call it's power, by a figure rather too bold, the omnipotence of parliament. True it is, that what they do, no authority upon earth can undo."
Gary North: "Blackstone was wrong: beginning eleven years later, the American colonies undid a lot of what Parliament had done."
We had an interesting discussion with Mr. Pappas on this in 2011. That led me back to the original quote from Blackstone. There's more
https://tinyurl.com/y7pe6agl
He's saying that Locke's theory (which America later ended up adopting) sounded nice; that is Blackstone didn't dismiss it out of hand. But that it's only applicable if Parliament ends up adopting it.
Blackstone says if one uses Locke's teachings to throw off Parliament it would in effect destroy all of the positive law and usher in revolutionary anarchy, where you had to start again from step one. This does seem to be a risk inherent in revolutions.
“Government is founded not on force, as was the theory of Hobbes; nor on compact, as was the theory of Locke and of the revolution of 1688; nor on property, as was the assertion of Harrington. It springs from the necessities of our nature, and has an everlasting foundation in the unchangeable will of God.”--early American Founder James Otis, 1764
“Must our rights be removed from the stable foundation of nature, and placed on the precarious and fluctuating basis of human institution? Such seems to be the sentiment of Mr. Burke: and such too seems to have been the sentiment of a much higher authority than Mr. Burke — Sir William Blackstone.”--American Founder James Wilson, Of the Natural Rights of Individuals
There were a number of things that were "never before in history" about America. I've seen both sides argue the religiosity or lack thereof of the political institutions claimed (at the nation-state level all Western nations were in some way more formally connected with a church than America which gave us a more genetic theism in the DOI and a "Godless" Constitution; that's as far as I will go).
What does seem to be one of the few remarkably special things about America at the time was how America defied Blackstone's law/dicta.
We're looking at Hobbes and Cromwell, as well as the Church of England as the standard, as well as the Vatican's often-cozy relationships with the crown in the Catholic countries like France and Spain. The line between church and state is a blur.
With no king or Catholicism, separation of church and state was already halfway there in America, and since one state's dominant sect was a minority in another, and Protestantism being as theologically quarrelsome as it is--even with each other--the possibility of cobbling together a national church was zero.
"Church" means ekklesia, not faith or theologia. It is the church establishments--usually the clergy, though Cromwell was an exception--who were the enemy.
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