The Source of Law and Order
What did America's Founding Fathers mean when they spoke of "the Laws of Nature and of Nature's God?"
John Locke (1632-1704) was a Christian philosopher who had a great influence in America. He said:
[T]he Law of Nature stands as an eternal rule to all men, legislators as well as others. The rules that they make for other men's actions must . . . be conformable to the Law of Nature, i.e., to the will of God.
[L]aws human must be made according to the general laws of Nature, and without contradiction to any positive law of Scripture, otherwise they are ill made.
Locke, Two Treatises on Government, Bk II sec 135. (quoting Hooker's Ecclesiastical Polity, 1.iii, § 9 )
William Blackstone (1723-1780) was cited more frequently than Locke by America's Founding Fathers. In 1810 Thomas Jefferson wryly commented that American lawyers used Blackstone's Commentaries on the Laws of England with the same dedication and reverence that Muslims used the Koran.
Blackstone described the Laws of Nature and of Nature's God in a chapter in his Commentaries entitled, "Of the Nature of Laws in General." An excerpt is found here. Among the highlights:
Man, considered as a creature, must necessarily be subject to the laws of his Creator, for he is entirely a dependent being. And consequently, as man depends absolutely upon his Maker for everything, it is necessary that he should, in all points, conform to his Maker's will.
This will of his Maker is called the law of nature.
This law of nature, being coeval [existing at the same time - ed.] with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force and all their authority, mediately or immediately, from this original. The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures. These precepts, when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man's felicity [happiness].
Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. [more]
The Chief Justice of the Alabama Supreme Court recently had an occasion to describe the influence of Blackstone and further explain the meaning of the phrase "the Laws of Nature and of Nature's God":
American law derives its principles from the common law of England, clearly explained in Commentaries on the Laws of England by Sir William Blackstone. In 1799, Associate Justice of the United States Supreme Court, James Iredell, charged the grand jury of the Circuit Court for the District of Pennsylvania as follows:
"[F]or near 30 years [The Commentaries on the Laws of England] has been the manual of almost every student of law in the United States, and its uncommon excellence has also introduced it into the libraries, and often to the favourite reading of private gentlemen; so that [Sir William Blackstone's] views of the subject could scarcely be unknown to those who framed the Amendment to the Constitution, ...."
Claypoole's American Daily Advertiser, April 11, 1799, Philadelphia, 3 The Documentary History of the Supreme Court of the United States, 1789-1800, at 347 (Maeva Marcus, ed., Columbia University Press 1990) (emphasis added).
Because Blackstone's Commentaries was the manual for law students in the United States during and after the revolutionary period and the drafting of the United States Constitution, we should consider his interpretations of common law not only as influential but also as authoritative for applying the common law today.
Blackstone's explanation of the common law is important because of the influence it has had upon the American legal system. In 1993, Justice Antonin Scalia stated:
"The conception of the judicial role that [Chief Justice John Marshall] possessed, and that was shared by succeeding generations of American judges until very recent times, took it to be 'the province and duty of the judicial department to say what the law is,' Marbury v. Madison, 1 Cranch 137, 177 (1803) (emphasis added) -- not what the law shall be. That original and enduring American perception of the judicial role sprang not from the philosophy of Nietzsche but from the jurisprudence of Blackstone, which viewed retroactivity as an inherent characteristic of the judicial power, a power 'not delegated to pronounce a new law, but to maintain and expound the old one.' 1 W. Blackstone, Commentaries 69 (1765)."
Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 107 (1993) (Scalia, J., concurring).
Natural law forms the basis of the common law. (7) Natural law is the law of nature and of nature's God as understood by men through reason, but aided by direct revelation found in the Holy Scriptures:
"The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the Holy Scriptures. These precepts, when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man's felicity." (8)
1 William Blackstone, Commentaries 42.
Blackstone's Commentaries explain that because our reason is full of error, the most certain way to ascertain the law of nature is through direct revelation. The ultimate importance of this law and its influence upon our law cannot be understated.
"Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. There is, it is true, a great number of indifferent points, in which both the divine law and the natural leave a man at his own liberty; but which are found necessary for the benefit of society to be restrained within certain limits. And herein it is that human laws have their greatest force and efficacy; for, with regard to such points as are not indifferent, human laws are only declaratory of, and act in subordination to, the former."
1 Blackstone, Commentaries 42.
There are impeccable American sources for the above proposition. James Wilson, Associate Justice on the first United States Supreme Court and signer of both the Declaration of Independence and the United States Constitution, said:
"Human law must rest its authority ultimately upon the authority of that law which is divine .... Far from being rivals or enemies, religion and law are twin sisters, friends, and mutual assistants. Indeed, these two sciences run into each other."
James Wilson, "Of the General Principles of Law and Obligation," in 1 The Works of the Honourable James Wilson, 104-06 (Bird Wilson ed., Bronson and Chauncey 1804).
John Jay, first Chief Justice of the United States Supreme Court and coauthor of the Federalist Papers, declared:
"[N]o sovereign ought to permit those who are under his Command to violate the precepts of the Law of Nature, which forbids all Injuries ...."
"John Jay's Charge to the Grand Jury of the Circuit Court for the District of Virginia, May 22, 1793, Richmond, Virginia." 2 The Documentary History of the Supreme Court of the United States, 1789-1800, at 386 (Maeva Marcus, ed., Columbia University Press 1988).
Our own Declaration of Independence refers to "the laws of nature and of nature's God":
"When, in the course of human events, it becomes necessary for one people to dissolve the political bonds 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." (Emphasis added.)
It would be an odd logic to assert that the American colonies could use the law of God "to dissolve the political bonds 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," but not to decide the fundamental basis of their laws.
http://kevincraig.us/religion/nature.htm
