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The Decline of Natural Law
The Decline of Natural Law
How American Lawyers Once Used Natural Law and
Why They Stopped
S T U A RT B A N N E R
1
1
Oxford University Press is a department of the University of Oxford. It furthers
the University’s objective of excellence in research, scholarship, and education
by publishing worldwide. Oxford is a registered trade mark of Oxford University
Press in the UK and certain other countries.
Published in the United States of America by Oxford University Press

198 Madison Avenue, New York, NY 10016, United States of America.
© Oxford University Press 2021
All rights reserved. No part of this publication may be reproduced, stored in

a retrieval system, or transmitted, in any form or by any means, without the
prior permission in writing of Oxford University Press, or as expressly permitted
by law, by license, or under terms agreed with the appropriate reproduction
rights organization. Inquiries concerning reproduction outside the scope of the
above should be sent to the Rights Department, Oxford University Press, at the
address above.
You must not circulate this work in any other form

and you must impose this same condition on any acquirer.
Library of Congress Cataloging-in-Publication Data

Names: Banner, Stuart, 1963–author.
Title: The decline of natural law : how American lawyers once used natural law
and why they stopped /Stuart Banner, UCLA School of Law.
Description: New York, NY : Oxford University Press, 2021. |
Includes bibliographical references and index.
Identifiers: LCCN 2020043255 (print) | LCCN 2020043256 (ebook) |
ISBN 9780197556498 (hardback) | ISBN 9780197556511 (epub)
Subjects: LCSH: Natural law. | Common law. | Religion and law.
Classification: LCC K450 .B36 2021 (print) | LCC K450 (ebook) | DDC 340/.112—dc23
LC record available at https://lccn.loc.gov/2020043255
LC ebook record available at https://lccn.loc.gov/2020043256
DOI: 10.1093/oso/9780197556498.001.0001
1 3 5 7 9 8 6 4 2
Printed by Sheridan Books, Inc., United States of America
CONTENTS
Acknowledgments  vii
INTRODUCTION  1
PART I: BEFORE THE TR ANSITION
1. THE LAW OF NATURE  11

2. THE COMMON LAW  46
PART II: CAUSES OF THE TR ANSITION
3. THE ADOPTION OF WRITTEN CONSTITUTIONS  71

4. THE SEPARATION OF LAW AND RELIGION  96
5. THE EXPLOSION IN LAW PUBLISHING  119
6. THE TWO-SIDEDNESS OF NATURAL LAW  137
PART III: THE TR ANSITION AND AFTER
7. THE DECLINE OF NATURAL LAW AND CUSTOM  167

8. SUBSTITUTES FOR NATURAL LAW  188
9. ECHOES OF NATURAL LAW  222
Index  251
v
ACKNOWLEDGMENTS
I’d like to thank Mark Greenberg, Dick Helmholz, Maximo Langer, Seana
Shiffrin, participants in colloquia at UCLA and SUNY Buffalo, and the readers
for Oxford University Press, who all offered extraordinarily helpful suggestions.
vii
Introduction
This book is about a fundamental change in American legal thought that took
place in the late 19th and early 20th centuries. Before the change, natural law
played an important role in our legal system. Lawyers believed that human affairs
were governed in significant part by laws of nature, laws that could be discov-
ered in much the same way as the natural laws governing the nonhuman realm.
These laws were understood to have an existence independent of human voli-
tion. They were not human creations. Before the change described in this book,
for example, the law forbidding murder was understood to be a natural principle
that regulated the behavior of human beings. It was a law that we found, not one
that we made. To be sure, nations might enact legislation forbidding murder, but
American lawyers before 1870 or so would have said, with virtual unanimity,
that murder would still be illegal even in a nation that had not enacted any such
legislation. It would be illegal because murder was contrary to the law of nature.
The law forbidding murder was like the law of gravity or the laws of optics. It was
a law that existed in nature, waiting to be discovered—not made—by humans.
This understanding of law almost completely disappeared from the legal
system in the late 19th and early 20th centuries. After the change, lawyers
believed that natural law plays no role in our legal system. Today, lawyers still
consider murder to be wrong, of course, and they would deplore as grossly defi-
cient the legal system of any nation that fails to prohibit murder. But they would
say that murder is not illegal in that nation. Lawyers once believed that some of
the rules of our legal system were not created by humans. They now believe that
all the rules of the legal system are created by humans. In 1850, when a lawyer
spoke in court, it would have been entirely normal for the lawyer to discuss the
law of nature alongside statutes and court decisions as acknowledged sources
of law. Today, if a lawyer tries to discuss natural law in court, the judge will look
puzzled, and opposing counsel will start planning the victory party. Natural law
is no longer a part of a lawyer’s toolkit.
The Decline of Natural Law. Stuart Banner, Oxford University Press (2021). © Oxford University Press.
DOI: 10.1093/oso/9780197556498.003.0001
2 Introduction
The decline of natural law was a fundamental change, because it caused lawyers
to think differently about whether, in difficult cases, law is something judges find or
make. When natural law provided a reservoir of principles for judges to draw upon
in deciding cases that existing human-made law did not easily resolve, judges were
understood to be finding the law. But when natural law was no longer available to
judges, the process of judging looked very different. Now, when existing human-
made law did not supply a ready answer, judges had nothing else to draw upon. Now
judges were understood to be making the law, not merely finding it.
The routine use of natural law in the legal system seems so strange to a modern
American lawyer that it raises some obvious questions. I began working on this
book because I wanted to figure out the answers.
The first group of questions concerns the “before” picture. How did natural
law work in practice? How did people ascertain its content? How did it relate to
the law made by humans? In what contexts was it frequently invoked? Why did
lawyers believe in it?
The second group of questions concerns the transition. When did lawyers
cease using natural law? Why did they stop believing that it should play a role in
the legal system?
The final group of questions concerns the “after” picture. When natural law
dropped out of the legal system, what took its place? That is, how did lawyers
adjust to the absence of natural law? What served the functions that natural law
had once served? To what extent did natural law survive within the legal system,
either explicitly or implicitly? To what extent did the change in the sources of law
produce a change in the content of the law?
These are the questions this book tries to answer.1 The book is divided into
three parts, corresponding to these three sets of questions.
1
The history of the use and decline of natural law in the American legal system has received very
little scholarly attention. The last two chapters of R. H. Helmholz, Natural Law in Court: A History of
Legal Theory in Practice (Cambridge: Harvard Univ. Press, 2015), discuss the status of natural law in
early American legal education and litigation. (Most of Helmholz’s book is about continental Europe
and England.) The first two chapters of the present book expand upon Helmholz’s indispensable
account, and the final seven chapters pick up where Helmholz left off, by charting the causes and
effects of natural law’s decline. Andrew Forsyth, Common Law and Natural Law in America: From
the Puritans to the Legal Realists (Cambridge: Cambridge Univ. Press, 2019), is a valuable study of
how natural law figured in early university curricula and in the thought of writers such as William
Blackstone and Joseph Story, but it says little about the use of natural law in the working legal system.
The topic received more attention in the early 20th century, when the use of natural law in the
legal system was still within living memory. See, e.g., Charles Grove Haines, The Revival of Natural
Law Concepts (Cambridge: Harvard Univ. Press, 1930); Benjamin Fletcher Wright Jr., American
Interpretations of Natural Law: A Study in the History of Political Thought (Cambridge: Harvard Univ.
Press, 1931); Edward S. Corwin, “The ‘Higher Law’ Background of American Constitutional Law,”
Harvard Law Review 42 (1928): 149–85, and 42 (1929): 365–409. In recent times the history of
Int roduc tion 3
Part I is about American legal thought before the late 19th century, when nat-
ural law was an important part of the legal system and when lawyers believed that
judges were finders, not makers, of law. This part demonstrates that natural law
was not as strange a concept as it may sound. When judges used natural law, they
were usually engaging in what today we call policymaking—the explanation of
why one rule makes the most sense, in situations where alternative rules are pos-
sible. In any judicial system there will be cases for which the existing rules do not
provide a clear answer. Judges today use a different vocabulary to describe what
they do in such cases, but the process itself is similar in many respects.
It is not exactly the same, however. One key difference is that in 1800, a judge
elaborating a new rule for the very first time could sincerely believe that he was
finding the law, not making it. This belief seems clearly mistaken to us today. We
wonder how the lawyers and judges of the past could have been so obtuse as not
to see the reality of what they were doing. But that is because we have a different
understanding of the grounding of our legal system. The task of c hapters 1 and
2 is to reanimate this now-defunct conception of the legal system—to explore
how it worked and to explain why it seemed like common sense to the lawyers
of the time.
Among lawyers of the 18th and 19th centuries, the term “natural law” had
a meaning different from two conceptions of natural law that are widely held
today. We need to clarify this difference at the outset, or else this book will be
hard to understand.
First, many people today, both lawyers and nonlawyers, think of natural law
as a set of Christian doctrines with origins in the Bible. Natural law in this sense
tends to yield conservative outcomes, such as the unlawfulness of abortion and
same-sex marriage. For this reason, today natural law is often viewed with favor
on the right and with suspicion on the left. But there was nothing conservative
about the natural law practiced by the lawyers of the 18th and 19th centuries.
Natural law had no political valence one way or the other. It was just one more
source of law, like statutes or court decisions, that all lawyers employed. Lawyers
used natural law to argue on all sides of an issue. To employ natural law did not
brand a lawyer as conservative; it merely branded him as a lawyer.
Indeed, much of the time there was not even anything particularly religious
about natural law. Natural law rested on a Christian foundation, but lawyers
did not believe that the Bible offered answers to most of the litigated questions
that arose in a complex commercial society like that of the United States. To the
natural law has received more attention from historians of philosophy than from legal historians. See,
e.g., Knud Haakonssen, Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment
(Cambridge: Cambridge Univ. Press, 1996); Brian Tierney, Liberty and Law: The Idea of Permissive
Natural Law, 1100–1800 (Washington, DC: Catholic Univ. of America Press, 2014).
4 Introduction
extent that religious belief was involved in the elaboration of natural law, it was
often nothing more than the belief that God had created humans with a power
of reason that enabled them to work out answers to difficult legal questions.
The version of natural law advanced by its religious proponents today scarcely
resembles the natural law that pervaded the legal system in the 18th and 19th
centuries.
The other widely held conception of natural law today is held by philosophers
and law professors. On this view, “natural law” means a view of law in which
what the law is depends at least in part on what it ought to be. It is conventionally
contrasted with “positivism,” the view that what the law is and what it ought to
be are two separate questions. As we will see, this use of the term “natural law”
arose only in the mid-20th century. It captures one feature of natural law as it was
understood by lawyers of the 18th and 19th centuries, but it lacks several of the
other features that lawyers would have recognized as essential to natural law. The
natural law discussed by a present-day philosopher of law would not have been
called by that name in the 19th century. Nor would 19th-century lawyers have
drawn a distinction between natural law and natural rights, as some philosophers
of law do today. Rather, 19th-century lawyers would simply have said that a nat-
ural right is one protected by natural law, as distinct from a right protected by
some other kind of law such as a constitutional provision or a statute.
“Natural law” today thus often has a meaning different from the one
it had to lawyers in the 18th and 19th centuries. I urge readers who are
familiar with natural law in either of these two present-day senses of the
phrase to put that knowledge aside for the moment. Do not suppose that
the lawyers of 1800 shared your understanding of the term. It is likely that
they did not.
Part I of the book presents the “before” picture. It includes two chapters.
Chapter 1, “The Law of Nature,” explores how natural law worked in the legal
system of the 18th and 19th centuries. It discusses how lawyers believed natural
law could be discerned, how natural law related to positive law, why natural law
seemed so plausible, and how natural law was used in practice.
Chapter 2, “The Common Law,” discusses 18th-and 19th-century lawyers’
understanding of common law, the law found in court opinions. Today lawyers
think of the common law as consisting of the opinions themselves, and they
think of judges as making the law when they write the opinions. Before the late
19th century, by contrast, lawyers believed that the common law had an exist-
ence independent of court opinions, and that the opinions were merely evidence
of the law rather than the law itself. Common law was understood in large part
as natural law applied to specific situations. It was considered to be something
found, not made, by judges.
Int roduc tion 5
Part II of this book is about the long-term causes of the transition from this
older way of thinking to the way lawyers think today. Why did lawyers recon-
sider the status of natural law within the legal system?
I had two expectations about this question when I began working on this
book, both of which, I am now persuaded, were wrong. I will explain them
briefly because I suspect some readers may share them.
One expectation was that the decline of natural law within the legal system
would be a product of lawyers’ declining belief in natural law more generally.
I expected to find that lawyers would have rejected the use of natural law in litiga-
tion because they came to doubt there was any such thing. The more I read, how-
ever, the more I realized that the primary change was not in how lawyers thought
about natural law. It was in how they thought about the legal system. Some
lawyers did indeed reject natural law in all domains of life, but most seem to have
made a smaller move: they merely came to conceive of natural law as a matter of
personal conscience rather than a tool to be used in litigation. They still believed
or at least recognized the possibility that natural law existed, but they came to
think that the courtroom was just not an appropriate venue for discussing it.
One could invoke natural law in political debate, or in conversations within a
religious congregation, or in thoughtful discussions among friends, but in court,
human-made sources of law were the lawyer’s only tools.
My second expectation was that the causes of the change would be some-
thing outside the legal system—perhaps a big event like the Civil War or the
Industrial Revolution, or perhaps a big intellectual rupture like Darwin’s ac-
count of evolution. Most legal history these days tends to be written this way,
by attributing outcomes within the legal system to causes external to the system.
I have followed this practice in my own prior writing, and I assumed I would
do so here as well. Indeed, historians sometimes consider the opposite strategy,
finding causes within the legal system, as a mark of unsophistication, because
it has often been done very poorly by lawyers with a myopic focus on court
opinions and an apparent lack of interest in the relationship between law and the
wider world. I certainly did not set out to write an “internalist” account of the
decline of natural law.
But that is what I ended up with, in large measure. The more I read, the less
I was able to tell a credible story in which some set of events or intellectual
trends outside the legal system caused lawyers to stop using natural law in lit-
igation. Rather, the shift was caused by a few changes in how lawyers thought
about the legal system itself. This dashed expectation, my second, is related to
my first. The thing I am trying to explain is not why lawyers stopped believing in
natural law, because it is not clear that most of them stopped believing in it. The
thing I am trying to explain is why they stopped using natural law in their work.
6 Introduction
It is a question about a change in lawyers’ argument style, a question about pro-

fessional technique. It is the kind of question most amenable to an internalist
explanation.
Part II consists of four chapters, each of which focuses on one reason American
lawyers of the 19th century began to doubt whether natural law should play any
role in the legal system.
Chapter 3, “The Adoption of Written Constitutions,” traces the effect of 19th-
century constitutional thought on the decline of natural law. Written constitutions
were an American innovation with no direct parallel in the English legal tradi-
tion. Natural law had long been understood as a constraint on legislation, but
constitutions served the same function, which raised the question whether
American judges had the authority to invalidate legislation that conflicted with
natural principles rather than written constitutional text. In the course of this
debate, American lawyers voiced their first sustained critiques of the use of nat-
ural law within the legal system. The adoption of written constitutions in the late
18th century thus lay the groundwork for the eventual disappearance of natural
law from the legal system.
Chapter 4, “The Separation of Law and Religion,” discusses an important
change in lawyers’ understanding of the relationship between the spheres of
law and religion during the 19th century. In the early Republic these spheres
substantially overlapped. Natural law was understood to have been created by
God. Christianity was considered to be part of the common law. Americans
may not have become any less religious in the 19th century, but they increas-
ingly came to think of religion as part of one’s private, personal life, separate
from the public sphere of law. As law and religion separated, the notion that
natural law should play a role in the legal system came to seem more and more
anomalous.
Chapter 5, “The Explosion in Law Publishing,” considers a more practical
development—the rapid proliferation of case reporting that took place in the
19th century. There were few published court opinions available to lawyers in
the early part of the century. Lawyers necessarily grounded their arguments on
broad principles, including principles of natural law. But by the century’s end,
lawyers complained that they were drowning in reported cases. It was a common
observation in the second half of the century that the glut of published opinions
had changed the nature of law practice. Precedents had pushed principles aside.
Chapter 6, “The Two-Sidedness of Natural Law,” examines several divi-
sive issues of the 19th century in which arguments based on natural law were
prominent—capital punishment, property rights, the role of women, and
slavery. These were highly salient political debates, and they were also issues that
often arose in litigation. Participants on both sides framed their arguments in
terms of natural law. By the later part of the century, lawyers began to wonder
Int roduc tion 7
whether, if natural law could be invoked to support both sides of such hotly
contested questions, it was too indeterminate to be used in court.
Because of these four developments, American lawyers of the late 19th century
were ready, to an extent they never had been before, to drop natural law from the
legal system. There had been arguments against the use of natural law all through
the 19th century, but they fell on deaf ears until near the century’s end, when they
became persuasive for the first time.
Part III of the book is about the transition itself and its aftermath.
Chapter 7, “The Decline of Natural Law and Custom,” takes a close look at how
natural law and custom disappeared from the legal system in the late 19th and early
20th centuries.
Chapter 8, “Substitutes for Natural Law,” offers a fresh perspective on some fa-
miliar aspects of the legal thought of the late 19th and early 20th centuries, by con-
necting them to the decline of natural law. Much of what we now call classical legal
thought can be understood as the profession’s attempt to replace natural principles
with principles located somewhere other than nature. At the same time, the decline
of natural law led to the emergence of the view that judges are makers, not finders,
of law.
Chapter 9, “Echoes of Natural Law,” examines the status of natural law in the
legal system over the past century. In law schools, natural law never ceased to be a
topic of study. This academic interest in natural law has had almost no effect on the
working legal system, where natural law has been relied upon by only the most idi-
osyncratic of judges and lawyers. The history of our use of natural law has neverthe-
less continued to exert influence on the legal system, which still contains doctrines
and practices that were once based on the law of nature.
There are a few points I should make at the outset, to avoid misunderstanding.
First, this book is about the role of natural law specifically in the American
legal system, not in political discourse. Natural law has always figured promi-
nently in American politics, from the Declaration of Independence, which relies
on “the Laws of Nature and of Nature’s God,” right up through our own era.
Martin Luther King famously cited natural law to explain why it was permis-
sible to violate southern segregation statutes. “There are just laws, and there are
unjust laws,” King explained in his 1963 Letter from Birmingham Jail. “A just law
is a man-made code that squares with the moral law, or the law of God. An un-
just law is a code that is out of harmony with the moral law.”2 More recently,
the 2016 Republican Party Platform declared that “man-made laws must be
2
King’s Letter from Birmingham Jail is widely available on the internet, including at https://www.
africa.upenn.edu/Articles_Gen/Letter_Birmingham.html.
8 Introduction
consistent with God-given, natural laws.”3 In 2018, after a gunman killed seven-
teen people at a high school in Florida, the chief executive officer of the National
Rifle Association insisted that the right to use firearms “is not bestowed by man,
but granted by God.”4 An interesting book could be written about how natural
law has been used in political argument throughout American history, but this
is not it.
Second, because this book is about natural law’s use and decline within the
legal system, it focuses primarily on lawyers, judges, and law professors. Most
of these people were not thinking about natural law in a systematic way. Most
were practitioners, not theorists, and even the theorists were often writing for
practitioners rather than fellow intellectuals. It may be helpful to think of this
book as an exercise in the history of thought at a middling level. It is about nei-
ther the thoughts of intellectuals nor those of “the people” broadly conceived,
but rather those of the members of a distinct professional culture, a set of
people who were more educated and literate than average but who, with a few
exceptions, were not self-consciously engaged in intellectual work. One could
write a worthy book closely analyzing the work of a small number of philosoph-
ical writers who had the time and the inclination to think more thoroughly about
natural law, but, again, this is not it. I do consider the work of such people where
there is evidence that it had some influence on conventional thought within the
legal profession, but the focus of this book is on practicing lawyers and judges.
Finally, this book is not about whether the use of natural law was good or
bad, or about whether natural law should or should not be reintroduced to
the working legal system. Today some wish for the revival of natural law, while
others consider natural law a superstition we have happily outgrown. Both sides
of this debate tend to misunderstand the way natural law was used in the legal
system in the 18th and 19th centuries. Both sides are mistaken, moreover, in as-
suming that reviving natural law would cause the substance of the law to revert
to what it was when lawyers used natural law. One of the lessons of this book is
that the content of the law does not depend on whether natural law is part of the
legal system, because the same results can be obtained with or without it. If we
could somehow flip a switch and once again treat nature as an accepted source of
law for purposes of litigation, I do not think the content of the law would change
much, if at all. Lawyers would use different words in their arguments, but the
substance of their arguments would remain largely the same.
3
Republican Platform 2016, at 9, https://prod-cdn-static.gop.com/media/documents/DRAFT_
12_FINAL[1]-ben_1468872234.pdf.
4
http://transcripts.cnn.com/TRANSCRIPTS/1802/22/cnr.04.html.
PA RT I
BEFORE THE TRANSITION

1
The Law of Nature
American lawyers of the late 18th and early 19th centuries had no doubt that
natural law played an important role in the legal system. “The law of nature,”
Supreme Court justice Joseph Story explained, “is that system of principles,
which human reason has discovered to regulate the conduct of man in all his
various relations.” Story was summarizing the fundamentals of American law
for the first American encyclopedia, the Encyclopedia Americana. “We call those
rights natural,” he continued, “which belong to all mankind, and result from our
very nature and condition; such are a man’s right to his life, limbs and liberty.”1
Lawyers and judges often made arguments based on natural law.2 “The law of
nature forms part of the municipal law,” noted the Supreme Court justice Henry
Baldwin. “There are certain great and fundamental principles of justice which,
in the constitution of nature, lie at the foundation and make part of all civil law,
independently of express adoption or enactment.”3 Law students read treatises
and heard lectures on natural law.4 American lawyers had to be familiar with nat-
ural law, observed the Maryland law professor David Hoffman, because “in the
decisions of courts” they would find “perpetual references to the elementary
principles of that science.”5
But what exactly was natural law? Where did it come from? What was its con-
tent, and how was it discerned? How did it relate to human-made law? And why
was it so firmly a part of early American legal thought? Why were lawyers so cer-
tain that natural law was a basic part of the legal system?
1
Valerie L. Horowitz, ed., The Unsigned Essays of Supreme Court Justice Joseph Story (Clark,
NJ: Talbot Publishing, 2015), 259, 261.
2
R. H. Helmholz, Natural Law in Court: A History of Legal Theory in Practice (Cambridge: Harvard
Univ. Press, 2015), 142–72.
3
United States v. Holmes, 26 F. Cas. 360, 368 (C.C.E.D. Pa. 1842).
4
Helmholz, Natural Law in Court, 127–42.
5
David Hoffman, A Lecture Being the Second of a Series of Lectures, Introductory to a Course of
Lectures Now Delivering in the University of Maryland (Baltimore: John D. Toy, 1825), 15.
The Decline of Natural Law. Stuart Banner, Oxford University Press (2021). © Oxford University Press.
DOI: 10.1093/oso/9780197556498.003.0002
12 Before the Transition
The Sources of Natural Law

If an American lawyer were asked, circa 1800, “Where does the law come from?”
his response would likely have begun with a distinction between positive or mu-
nicipal law, the law made by humans, and natural law, the law made by God. Both
were understood to govern human affairs. “The natural or moral law,” lectured
the Pennsylvania judge Jacob Rush in 1796, is “that law which is founded upon
the eternal reason and fitness of things, and enjoins those duties, which, as de-
pendent creatures, we owe to our Creator, and to each other.” Rush, like many
writers, cited murder as an example of an act contrary to natural law, in that
murder was “universally evil, in every age and nation.” Positive law, by contrast,
was a matter of human preferences. “By a positive law,” Rush continued, “is un-
derstood a law, which does not necessarily flow from the nature of things, but is
founded solely on the will of the law-giver.” He gave as an example “the human
law, which forbids the obstructing our high-ways, or navigable waters.”6 Different
jurisdictions might have different positive laws because the acts those laws pro-
hibited, such as obstructing a highway, were not wrong in themselves. They were
wrong simply because they had been made illegal by human legislation.
In understanding the law this way, Americans were following a long English
and continental European tradition.7 Early American legal thought in this re-
spect scarcely differed from contemporary thought across the Atlantic. Much
of what American lawyers wrote about natural law was remembered, or even
copied directly, from English and European books that circulated in the United
States. Because of this tradition, a few basic ideas quickly became accepted prin-
ciples of American legal thought.
One of these ideas was that the source of natural law was God. “The only
sure foundation of all right, is the will of the great Creator,” declared the Boston
lawyer Benjamin Oliver.8 Such had long been the conventional view among
English lawyers. Edward Coke, the most prominent English judge of the 17th
century, explained, in a case well known among American lawyers, that “the law
of nature is that which God at the time of creation of the nature of man infused
into his heart, for his preservation and direction.”9 William Blackstone, the
6
Jacob Rush, Charges, and Extracts of Charges, on Moral and Religious Subjects (New York: Jonathan
Weeden, 1804), 12–13.
7
Richard Tuck, Natural Rights Theories: Their Origin and Development (Cambridge: Cambridge
Univ. Press, 1979); Knud Haaknonssen, Natural Law and Moral Philosophy: From Grotius to the
Scottish Enlightenment (Cambridge: Cambridge Univ. Press, 1996); Tamar Herzog, A Short History of
European Law: The Last Two and a Half Millennia (Cambridge: Harvard Univ. Press, 2018), 152–64.
8
Benjamin L. Oliver, The Rights of an American Citizen (Boston: Marsh, Capen & Lyon, 1832), 9.
9
Calvin’s Case, 77 Eng. Rep. 377, 392 (1608).
The Law o f Nat ure 13
18th-century English judge and law professor whose four-volume Commentaries

was the standard reference work for American lawyers for a century, provided
a similar account of the source of natural law. “As god, when he created matter,
and endued it with a principle of mobility, established certain rules for the per-
petual direction of that motion,” Blackstone observed, “so, when he created
man, and endued him with freewill to conduct himself in all parts of life, he laid
down certain immutable laws of human nature.”10 In an era when belief that God
influenced human affairs was nearly universal, it was not a controversial proposi-
tion that the law of nature had been created by God.
Natural law was understood to be based on the nature of human beings (or
the nature of “man,” as writers of the period put it). Natural law was not a set of
arbitrary rules, but was rather, as Francis Lieber explained, “the body of rights,
which we deduce from the essential nature of man.”11 For example, people
needed food to survive, noted the lawyer-poet William Hosmer, so the law of
nature “evidently points to some exertion to procure food,” and people natu-
rally enjoyed the company of others, which suggested “that man was made for
society.” Such examples indicated that “at least in some things we are bound by
conditions—that is, laws—which we must abide, because it is not in our power
to set them aside. That is to say, physical existence acknowledges a higher law.”12
Because natural law was created by God and was based on human nature,
it followed that natural law, unlike positive law, was the same everywhere and
at all times. The Ohio lawyer John Goodenow published his 1819 treatise on
American jurisprudence to show how American law differed from the law of
England, but Goodenow began by acknowledging that “the law of nature is
common to all rational beings.”13 This too was a staple of transatlantic thought.
The Swiss philosopher Jean-Jacques Burlamaqui, whose Principles of Natural and
Politic Law was published in a few American editions, considered it an “essential
characteristic of the laws of nature . . . that they be universal.” As Burlamaqui
explained, “This is what distinguishes natural from positive laws; for a posi-
tive law relates only to particular persons or societies.”14 The French Baron de
Montesquieu, whose Spirit of Laws was also widely known in the early United
States, likewise emphasized the universality of natural law, which regulated
10
William Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press, 1765–
69), 1:39–40.
11
Francis Lieber, Manual of Political Ethics (Boston: Charles C. Little and James Brown,
1838–39), 1:65.
12
William Hosmer, The Higher Law, in its Relations to Civil Government (Auburn: Derby & Miller,
1852), 19–20.
13
John M. Goodenow, Historical Sketches of the Principles and Maxims of American Jurisprudence
(Steubenville, OH: James Wilson, 1819), 7.
14
J. J. Burlamaqui, The Principles of Natural and Politic Law (Boston: John Boyle, 1792), 1:116.
human affairs even before any group of humans had established positive laws to
govern their communities. “To say that there is nothing just or unjust but what is
commanded or forbidden by positive laws,” Montesquieu insisted, “is the same
as saying, that before the describing of a circle, all the radii were not equal.”15
American lawyers were still making the same point more than a century
later: Natural law did not vary across cultures or through time. “Of course, it
will be expected that the peculiar genius of a people will find expression in their
laws,” observed the Supreme Court justice Joseph Bradley in a lecture to law
students at the University of Pennsylvania, “but human nature and the great
mass of human actions are essentially the same amongst all peoples.” For that
reason, he concluded, at bottom the law “is not an arbitrary and empirical set of
rules; but is founded upon immutable and eternal principles.”16 Senator Thomas
Bayard, who had been a practicing lawyer before entering politics, spoke at Yale
Law School’s graduation in 1883. “The nature of mankind has not changed since
the lark first sang,” he declared. “There is a law of nature founded on the general
nature of human beings and not on the temporary and accidental situations in
which they may be placed.”17
How were these principles of natural law to be discerned? Lawyers answered
this question in two very different ways. On one hand, many cautioned that de-
termining the content of natural law was no easy matter. It required consider-
able study, because natural law, unlike positive law, was not written down in any
authoritative source. “In natural law, the principles upon which the science is
founded are not made known with that clearness and firmness, with which the
principles of positive law are promulgated; neither are its sources so obvious or
accessible,” lamented one reviewer in the American Jurist. “Its principles must
consequently be ascertained, by a laborious and painful investigation, which
the systems of positive law do not demand; and the results of this investigation
must necessarily be attended with a corresponding degree of uncertainty, which
can only be removed by further and more profound investigations.”18 James
Richardson, the president of the bar of Norfolk County, Massachusetts, in the
1830s, agreed that the law of nature could not be worked out “exclusively by
the unguided reflections of the individual.” Discerning the principles of natural
law instead required “the critical investigation of all questions of right, that have
Baron de Montesquieu, Spirit of Laws (Worcester, MA: Isaiah Thomas, 1802), 1:18.
15
Miscellaneous Writings of the Late Hon. Joseph P. Bradley (Newark, NJ: L.J. Hardham, 1901),
16
246–47.
17
Thomas F. Bayard, The Responsibilities of the Legal Profession in a Republic (New Haven: Yale
College, 1883), 29.
18
“Jouffroy on Natural Law,” American Jurist and Law Magazine 18 (1837): 12.
arisen in all states of society, in all stages of civilization and refinement.”19 The
New York judge James Kent, whose four-volume Commentaries on American Law
became the leading domestic legal reference work after its initial publication in
the 1820s, emphasized the importance of comparing legal systems in different
countries in determining whether a principle was truly part of natural law. “The
universality of the sense of a rule or obligation,” Kent observed, “is pretty good
evidence that it has its foundation in natural law.”20 Indeed, the very existence
of learned European treatises delineating the principles of natural law suggested
that it was no pursuit for amateurs.
On the other hand, it was often said—including in some of those very same
learned treatises—that the law of nature was something instinctual that could
be determined by anyone, simply by attending to one’s innate sense of justice.
Burlamaqui insisted that all people had a “natural bent or inclination which
prompts us to approve of certain things as good and commendable, and to con-
demn others as bad or blameable, independent of reflection.” Even “a child, or
untutored peasant, is sensible that ingratitude is a vice, and exclaims against per-
fidy, as a black and unjust action, which highly shocks him, and is absolutely
repugnant to his nature.”21 The Scottish jurist Lord Kames agreed that “we are
so constituted, as to perceive a right and wrong in actions.” Human beings had
“a peculiar sense of approbation or disapprobation, to point out to us what we
ought to do, and what we ought not to do.”22 Adam Smith likewise noted that
“the greatest part of what are called natural rights” could readily be discerned by
ordinary people. “That a man has received an injury when he is wounded or hurt
any way is evident to reason, without any explanation,” Smith observed, “and the
same may be said of the injury done one when his liberty is in any way restrain’d;
any one will at first perceive that there is an injury done in this case.”23
In the United States, perhaps the most widely read discussion of an innate
human ability to discern natural law came from Blackstone. If understanding the
law of nature “could not otherwise be attained than by a chain of metaphysical
disquisitions,” Blackstone reckoned, then few would make the effort, “and the
greater part of the world would have rested content in mental indolence, and ig-
norance its inseparable companion.” Fortunately, no metaphysical disquisitions
were required. God “has been pleased so to contrive the constitution and frame
19
James Richardson, An Address Delivered Before the Members of the Norfolk Bar (Boston: Torrey
& Blair, 1837), 9.
20
James Kent, Commentaries on American Law (New York: O. Halsted, 1826–30), 2:263.
21
Burlamaqui, Principles, 89–90.
22
Henry Home (Lord Kames), Essays on the Principles of Morality and Natural Religion
(London: C. Hitch et al., 1758), 37.
23
Adam Smith, Lectures on Jurisprudence, ed. R. L. Meek et al. (Oxford: Clarendon Press,
1978), 13.
of humanity, that we should want no other prompter to enquire after and pursue
the rule of right, but only our own self-love.” That was because “he has so inti-
mately connected, so inseparably interwoven the laws of eternal justice with the
happiness of each individual, that the latter cannot be attained but by observing
the former; and, if the former be punctually obeyed, it cannot but induce the
latter.”24 Natural law was what felt right to ordinary people.
Thomas Rutherforth, the Cambridge divinity professor whose Institutes of
Natural Law was one of the standard works on the topic in the early United
States, provided an even clearer account of how people were naturally inclined
toward the law of nature. “Whatever rules therefore are, by our own nature and
the constitution of things, made necessary for us to observe, in order to be happy,”
Rutherforth explained, “these rules are the law of our nature.” He did not mean
a selfish sort of happiness unconnected with the happiness of others. From the
perspective of any single individual, Rutherforth concluded, “Although his own
particular happiness be the end, which the first principles of his nature teach him
to pursue; yet reason, which is likewise a principle of his nature, informs him,
that he cannot effectually obtain this end without endeavouring to advance the
common good of mankind.”25 Happiness in this sense—collective well-being
rather than individual enjoyment—was the incentive that drove the instinctive
ability to follow the law of nature.
Ordinary people discerned natural law, on this view, by using the same
common sense they used to identify what was reasonable, what was fair, and
what was best for all concerned. Indeed, some suggested, natural law was nothing
more than what was reasonable and conducive to overall happiness. “There is
no general law of nature which opposes the happiness of man,” declared the
New York lawyer E. P. Hurlbut.26 David Hoffman borrowed the word utility from
Hume and Bentham to describe this relationship between natural law and the
collective good. “Natural rights consist in the liberty of doing and possessing
every thing not forbidden by rules drawn from general utility,” he lectured. “Our
individual rights are ascertained, in all states of society, by an appeal to the ge-
neral utility.”27 As another lawyer put it, the law of nature was simply “the doc-
trine of intrinsic reasonableness.”28
Blackstone, Commentaries, 1:40.

24
Thomas Rutherforth, Institutes of Natural Law, 3rd ed. (Philadelphia: William Young, 1799),
25
1:24–25.
26
E. P. Hurlbut, Essays on Human Rights and Their Political Guaranties (New York: Greeley &
McElrath, 1845), 16.
27
David Hoffman, Legal Outlines (New York: s.n., 1848), 107.
28
Le Baron Bradford Colt, Addresses (Boston: Little, Brown, 1906), 103.
American lawyers and judges often repeated that natural law was apprehended
intuitively. “It is implanted in us by nature itself,” affirmed the Philadelphia lawyer
William Rawle. “It is felt, not learned.”29 A South Carolina judge lauded the “natural
law that resides in the breast of the citizen.”30 A Missouri law professor explained
that principles of natural law “are so called because they are approved by the instinct
of justice, or the moral sense which is part of our being.”31 A New Jersey lawyer
insisted that the law of nature was simply “common consciousness.”32 As late as
1905, when the Georgia Supreme Court became one of the first courts to recognize
a right of privacy, the court declared that “the right of privacy has its foundation
in the instincts of nature. It is recognized intuitively.”33 Natural law was the subject
of a learned tradition, but it was also commonly said to be a subject for which no
learning was necessary.
These contrasting methods of discerning natural law were analogous to one of the
primary contrasting features of Catholicism and Protestantism, in that the former
tradition placed a greater emphasis than the latter on expertise as a path to deter-
mining correct doctrine. American lawyers of the 19th century were overwhelm-
ingly Protestant, particularly among the judiciary, so perhaps it is not surprising that
they tended to think of natural law as a field well within the competence of ordinary
people. Pointing in the same direction was the circumstance that the United States
had not yet developed an academic legal culture along European lines. Europe had
law professors who devoted much of their time to writing learned treatises, but the
19th-century United States did not.
The human instinct toward reasonableness provided one path to knowledge
of the law of nature; revelation provided the other. Some principles of natural
law were written down, in the Bible. “The doctrines thus delivered we call the re-
vealed or divine law, and they are found only in the holy scriptures,” Blackstone
explained. These precepts were “really a part of the original law of nature.”34 As the
New York lawyer Joseph Moulton put it, “The Bible, containing these revelations
is, therefore, the first law-book.”35 Interpreting the modern relevance of the Bible
was not always simple, because not every command in it was intended to en-
dure for all time. Much of the law stated in the Bible was specific to the ancient
29
William Rawle, A View of the Constitution of the United States of America (Philadelphia: H.C.
Carey & I. Lea, 1825), 252.
30
State v. Bailey, 1 S.C. 1, 6 (1868).
31
Philemon Bliss, “The Right to Disinherit Without Cause,” Southern Law Review 3 (1874): 444;
see also Philemon Bliss, Of Sovereignty (Boston: Little, Brown, 1885), 84.
32
E. L. Campbell, The Science of Law ( Jersey City, NJ: Frederick D. Linn, 1887), 96.
33
Pavesich v. New England Life Insurance Co., 50 S.E. 68, 69 (Ga. 1905).
34
Blackstone, Commentaries, 1:42.
35
Josephy W. Moulton, Analysis of American Law (New York: John S. Voorhies, 1859), 11–12.
Hebrews, and there could be difficult questions as to which parts were which.36
But whether natural law was discerned through instinct or by reading scripture,
it was within the power of ordinary people to comprehend, without engaging in
too much intellectual effort.
Natural law was thus sometimes characterized as hard and sometimes as easy
to grasp. These seemingly contradictory views were reconcilable in practice, be-
cause some propositions of natural law were simply more intuitive than others.
No reflection was needed to determine that murder, for example, was wrong.
“Every human being endowed with reason, knows that to take the life of a human
being is against the law of nature,” declared a New York judge.37 But other prin-
ciples of natural law were not so easily ascertained. It took some knowledge of
the commercial practices of disparate peoples before one could plausibly argue,
as one lawyer did, that “trade, or an exchange of values . . . is a part of the great
volume of natural law, which God has published for the inspection and govern-
ment of his creatures.”38 Was keeping the Sabbath required by the law of nature?
Some thought it was, based on the evident need of humans to rest every so often,
but it took some reasoning to arrive at this conclusion.39 Natural law could be
understood to encompass a wide range of doctrines. Some (like the prohibition
of murder) were universally accepted and thus amenable to discovery through
intuition, but others were more contestable and thus had to be supported by log-
ical argument from a premise about human nature.
The Relationship between Natural Law and

Positive Law
Natural law stood in a complex relation with the positive law made by humans.
To begin with, it was often said that human law was void if contrary to natural
law. Blackstone again provided the canonical statement: “This law of nature,
being co-eval 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.” Blackstone gave
36
Parsons Cooke, The Marriage Question (Boston: Samuel N. Dickinson, 1842), 4–5. On this
problem in England, see Richard J. Ross, “Distinguishing Eternal from Transient Law: Natural Law
and the Judicial Laws of Moses,” Past & Present 217 (2012): 79–115.
37
People v. Montgomery, 13 Abb. Pr. N.S. 207, 217 (N.Y. Sup. Ct. 1872).
38
“Commercial Legislation,” Hunt’s Merchants’ Magazine 7 (1842): 429.
39
A. Barnes, “The Sabbath is the Law of Nature,” Christian Register, 20 Oct. 1849, 1; Wilbur F.
Crafts, Addresses on the Civil Sabbath (New York: Authors’ Publishing, 1890), 48; State v. Baum, 33
La. Ann. 981, 990 (1881) (Todd, J., dissenting).
the example of murder. If any human law were to allow or require murder, “We
are bound to transgress that human law, or else we must offend both the natural
and the divine.”40 The axiom was repeated by American lawyers all through the
18th and 19th centuries. Statutes “contrary to natural right and justice, are, in
our laws, and must be in the nature of things, considered as void,” George Mason
argued in Virginia’s General Court. “The laws of nature are the laws of God;
whose authority can be superseded by no power on earth.”41 An oft-reprinted
textbook on American government instructed: “Men have no right to make a law
that is contrary to the law of God; and we are not bound to obey it.”42 When a
legal journal published a collection of maxims, one was “If ever the laws of God
and man are at variance, the former are to be obeyed instead of the latter.”43 The
point was made over and over again: If natural law and positive law were in con-
flict, it was natural law that would prevail.44
Stated this way, the relationship between natural and positive law may sound
like the present-day relationship between constitutions and statutes, in that stat-
utes are deemed void if they are contrary to constitutional provisions. And in-
deed, 19th-century American courts did sometimes refuse to enforce statutes they
found contrary to natural law. (These cases will be discussed in chapter 3, which
considers natural law and constitutional law in the 19th century.) But the relation
between natural and positive law had several other facets that cannot be comparably
analogized to the modern relation between constitutions and statutes.
To begin with, natural law was used much more often to interpret statutes
than to strike them down. Natural law formed a backdrop against which legis-
lation was enacted, a set of background principles from which the legislature
was presumed not to wish to deviate. A Missouri statute made it a crime to
“embezzle” property from another. Was it embezzlement if the defendant mis-
takenly believed the property was his own? The statute did not say. The court
interpreted the statute in light of “the universality of the natural law which
deems no one to merit punishment unless he intended evil,” and thus held that
a person committed embezzlement only when he knew the property was not his
own.45 A Texas statute made it unlawful to carry a pistol on Election Day within
40
Blackstone, Commentaries, 1:41, 43.
41
Robin v. Hardaway, Jeff. 109, 114 (Va. 1772).
42
Andrew W. Young, First Lessons in Civil Government, 10th ed. (Auburn, NY: H. and J.C. Ivison,
1843), 16–17.
43
“Legal Maxims,” Western Law Monthly 5 (1863): 222.
44
See, e.g., Page v. Pendleton, Wythe 211, 215 n.3 (Va. Ct. of Chancery 1793); Memorial of the
Agents of the New England Mississippi Land Company (Washington, DC, 1804), 54; Le Roy v. Marshall,
8 How. Pr. 373, 376 (N.Y. Sup. Ct. 1853); Overton Howard, The Life of the Law (Richmond, VA: J.W.
Randolph & English, 1889), 7.
45
State v. Reilly, 4 Mo. App. 392, 397 (1877).
a half mile of a polling place. A man grabbed a pistol from his store and ran into
the street, near a polling place, to defend his brother, who was being attacked
by a crowd armed with bludgeons. Did he violate the statute? “We cannot con-
ceive that it was the legislative intent . . . to deprive a person of the right of using
arms to protect himself, or even another, from death or serious bodily injury,”
the court held. “Such intent would be unreasonable, and in conflict with natural
law.”46 As one law professor summed up such cases, “Both judges and lawyers
have to interpret the law. In so doing they refer to that inward standard of jus-
tice we call Natural Law. They assume rightly that the lawgiver could not pos-
sibly mean to prescribe what is wrong in itself or injurious to the common weal;
and thus, in carrying out positive law, they always bear in mind, perhaps uncon-
sciously, the universal truths from which positive law has sprung.”47
To further complicate the picture, in some clashes between natural law and pos-
itive law, courts enforced positive law rather than natural law. In cases involving
slaves, courts often observed that slavery was contrary to natural law but that
courts nevertheless had to set aside the natural law and enforce the positive law
establishing property rights in slaves. (The application of natural law to slavery will
be considered in much more detail in c hapter 6, because disputes about slavery
played a role in natural law’s decline as part of the working legal system.) Judges also
sometimes privileged positive law over natural law in cases involving the rights of
Indians. “We will not enter into the controversy, whether agriculturists, merchants,
and manufacturers, have a right, on abstract principles, to expel hunters from the
territory they possess,” Chief Justice John Marshall explained in Johnson v. M’Intosh,
the case denying full property rights to Indians. “Conquest gives a title which
the Courts of the conqueror cannot deny, whatever the private and speculative
opinions of individuals may be, respecting the original justice of the claim which
has been successfully asserted.”48 Sometimes positive law was said to give way when
it conflicted with natural law, but sometimes it was the reverse.
The relationship between natural and positive law was even more complex
than that. It was often said that in enacting statutes, legislatures were enforcing
the law of nature. Connecticut, for example, had a statute that required children
to support their parents when the parents could not support themselves. Did
the statute require a son-in-law to support his wife’s parents? A Connecticut
court held that it did not, because the legislature’s intent was “merely to enforce
the law of nature,” which established a “mutual obligation of support between
parent and child” in their “natural relation to each other.”49 A Tennessee statute
46
Barkley v. State, 12 S.W. 495, 496 (Tex. Ct. App. 1889).
47
“Teleology,” Washington Law Exchange 2 (1890): 25.
48
Johnson v. M’Intosh, 21 U.S. 543, 588 (1823).
49
Mack v. Parsons, 1 Kirby 155, 156 (Conn. Super. Ct. 1786).
enacted in 1799 newly authorized courts to grant divorces for adultery. Did the
statute authorize divorces where the adultery had been committed before 1799?
Yes, the state’s supreme court decided, because “adultery by the law of nature is
an offence. It was so before the passage of this act,” which only put the natural
principle into statutory form.50 Where a statute regulated rights, one early 19th-
century pamphleteer insisted, it would be error to suppose “that the law creates
the right; and that the right would cease if the law was repealed. This is an unfortu-
nate mistake, for the right is self existent, and the law is intended only to specify
it, or paint it on paper.”51 When a legislature classified acts as crimes, William
Rawle agreed, “The legislature is employed, not in the discovery that these acts
are unlawful, but in the application of punishments to prevent them.” If the leg-
islature failed to enact statutes criminalizing theft, robbery, or murder, Rawle
pointedly asked, “Are theft, robbery, murder, no crimes? Opinions so monstrous
can be entertained by none.”52
This conception of positive law as expressing preexisting doctrines of natural
law was at its strongest with respect to the rights included in constitutions. Such
rights were not created by being listed in constitutions, Joseph Story explained.
Rather, declarations of rights were “a solemn recognition and admission of those
rights, arising from the law of nature.”53 The Fifth Amendment’s Takings Clause,
which bars the government from taking private property without compensating
the owner, “does not create or declare any new principle of restriction,” a Georgia
court reasoned, but rather recognized a “principle, founded in natural justice,
especially applicable to all republican governments, and which derived no ad-
ditional force, as a principle, from being incorporated into the Constitution.”54
A New Jersey judge agreed that “the familiar principle, that private property
shall not be taken for public use without just compensation, is a dictate of nat-
ural justice. It is founded in natural law.”55 The New Hampshire Supreme Court
observed that although the state’s constitution was unusual in containing no
double-jeopardy clause, the clause’s absence made no difference, because the
prohibition of double jeopardy “is recognized, independently of any constitu-
tional or statutory provision, as lying at the very foundation of human rights and
privileges—a law of nature, and of obvious common sense and common justice.”56
50
Jones v. Jones, 2 Tenn. 2, 5 (1804).
51
Sampson Against the Philistines, or the Reformation of Lawsuits (Philadelphia: W. Duane,
1805), 89.
52
Rawle, View of the Constitution, 251–52.
53
Joseph Story, Commentaries on the Constitution of the United States (Boston: Hilliard, Gray,
1833), 1:309.
54
Young v. McKenzie, 3 Ga. 31, 44 (1847).
55
In re Public Highway, 22 N.J.L. 293, 302 (1849).
56
Fay v. Parker, 53 N.H. 342, 389 (1872).
Lemuel Shaw, who served thirty years as the chief justice of the Massachusetts
Supreme Court, reflected that constitutional provisions were better understood
as reminders than as enactments. “Many of them are so obviously dictated by
natural justice and common sense, and would be so plainly obligatory upon the
consciences of legislators and judges,” Shaw recalled, “that some of the framers
of state constitutions, and even the convention which formed the Constitution
of the United States, did not originally prefix a declaration of rights.”57
But this understanding of positive law was not limited to constitutional
rights. It was also frequently applied to statutes, which were also said to be de-
claratory of preexisting natural law. “Legislation is not the law, but the expres-
sion of the law antecedently existing,” declared the South Carolina lawyer James
Walker. “The thought was already in the mind and the heart of the people.”58
The long-serving federal judge Ashur Ware affirmed that “the municipal law of
the country is founded upon and enforces the precepts of natural law.”59 “With
the exception of those comparatively few regulations, which are in their nature
positive and directory, the law of the land is, in general, but another name for the
law of nature,” Francis Hilliard observed in his 1835 treatise on American law.
“Municipal rules are founded upon the basis of equity, reason, and right.”60 On
this view, the job of a legislator was not to make new laws, but rather to create
mechanisms for enforcing old ones that already existed as principles of natural
law. “The true mission of the legislator is to discover the natural laws incident to
every condition and relation which can exist in society,” argued the New York
lawyer Joel Tiffany, “and to devise means by which such laws can have just sway
without interruption. For every individual being, as well as every atom of matter,
is the subject of natural law.”61 Indeed, another lawyer suggested, “If the princi-
ples of natural justice were everywhere well understood, . . . positive laws would
be wholly unnecessary.”62
This view of positive law as often declaratory of natural law can help explain
a few aspects of early American legal thought that would otherwise be puzzling.
Most obviously, it suggests one reason judges tended to use natural law to inter-
pret statutes rather than to invalidate them. Although in theory a statute con-
trary to natural law was void, in practice, because statutes were understood as
legislative efforts to enforce natural law, a statute could be contrary to natural
Jones v. Robbins, 74 Mass. 329, 340 (1857).

57
James M. Walker, A Theory of the Common Law (Boston: Little, Brown, 1852), 8.
58
59
The Etna, 8 F. Cas. 803, 806 (D. Me. 1838).
60
Francis Hilliard, The Elements of Law (Boston: Hilliard, Gray, 1835), vi.
61
Joel Tiffany, A Treatise on Government, and Constitutional Law (Albany, NY: W.C. Little,
1867), 156.
62
William O. Bateman, Political and Constitutional Law of the United States of America (St.
Louis: G.I. Jones, 1876), 2.
law only if legislators were seriously mistaken in ascertaining the law of nature.
For this reason, the Philadelphia law teacher William Porter could not think of
“a settled law of nature which the municipal law contravenes.” As Porter told his
students, “A good lawyer can show to be law what any other man can prove to be
right.”63 Because judges understood statutes as attempts to enforce natural law,
they were far more likely to use natural law as a guide to what the statute meant
than as a measuring stick for determining the statute’s validity. “When it is said
in the books,” James Kent explained, “that a statute contrary to natural equity
and reason . . . is void, the cases are understood to mean, that the courts are to
give the statute a reasonable construction. They will not readily presume, out of
respect and duty to the lawgiver, that any very unjust or absurd consequence was
within the contemplation of the law.”64
This declaratory view of positive law also helps explain why statutory inter-
pretation was much less literal in the 19th century than it is today. When a statute
is understood to express the will of the legislature, the precise words used by the
legislature assume paramount importance. But if the legislature is only trying
to enforce a preexisting natural right, the words of the statute matter less than
the nature of the right itself. “All the great lawyers, divines, and judges look be-
yond the written laws and precedents before them for something above these,”
explained the Baltimore lawyer Philip Friese. “With this view they appeal in
their arguments, to reason, to the law of nature,” because “there is an unwritten
law superior to all written law, and its original and exemplar; and of which the
written law is only a partial and imperfect expression.”65 The Massachusetts sen-
ator Rufus Choate expressed this view in a well-known address at Harvard Law
School in 1845. He declared that “the law is not the transient and arbitrary cre-
ation of the major will, nor of any will. It is not the offspring of will at all.”66
This passage is scarcely comprehensible today, when we understand the law as
embodying the will of a majority of the public, or the will of our elected repre-
sentatives. But it made perfect sense in the first half of the 19th century, when
statutory interpretation was a matter not of parsing statutory text but of rea-
soning back to the natural principles the text was supposed to enforce.
This declaratory view also offers insight into an aspect of early American trial
practice that has largely vanished today—the use of juries to decide questions of
law as well as questions of fact. Today, judges generally determine the law, while
juries are generally confined to finding the facts. This division of labor makes
63
William A. Porter, The Introductory Address Delivered Before the Law Academy of Philadelphia
(Philadelphia: Edmond Barrington & Geo. D. Haswell, 1849), 10.
64
Kent, Commentaries, 1:447.
65
Philip C. Friese, The Unconstitutionality of Congressional Action (Baltimore: Murphy, 1867), 11.
66
The Works of Rufus Choate (Boston: Little Brown, 1862), 430.
sense in a world in which statutes are interpreted literally as statements of the

law, because legally trained judges are better able to understand statutes than
untrained jurors. But in a world where the statutes are often said to be declar-
atory of natural law, and where ordinary people can use their intuition to per-
ceive the natural law, the gap in qualifications between judges and jurors shrinks
dramatically.
Of course, no one would have said that all statutes were declarations of pre-
existing natural law. Lawyers frequently spoke of natural law as governing only
the most fundamental aspects of life, with human law filling in the details.
Blackstone, for example, contrasted murder, which was forbidden by natural law,
with the “exporting of wool into foreign countries.” Natural law neither required
nor prohibited the export of wool. The law of nature simply had nothing to say
on the matter, so Parliament, which makes human laws, “has scope and oppor-
tunity to impose, and to make that action unlawful which before was not so.”67
The Ohio judge John Wilson Campbell drew the same contrast between crimes
that were “offenses against the law of nature” and “certain other acts, which for
reasons of State, are made criminal, not being so intrinsically; such, for instance,
as vending goods without license.”68 The California Supreme Court provided a
similar (although more politically freighted) contrast during the Civil War, in
affirming the validity of a state statute requiring attorneys, as a condition of prac-
tice, to swear their allegiance to the United States. Property rights, which were
fundamental, “are founded in the law of nature,” the court acknowledged. But
“the right to practice law is not an absolute right, derived from the law of nature.
It is the mere creature of the statute, and when the license is issued and the offi-
cial oath taken, which authorizes the attorney to exercise the right, it confers but
a statutory privilege, subject to the control of the Legislature.”69
This contrast between fundamentals and details was often noted regarding
issues that were said to be governed by both natural and positive law. Natural
law provided the general principles, while positive law supplied the specific
rules delineating how the natural principles would be implemented. Incestuous
marriage was contrary to natural law, noted Joseph Story, but positive law
differed from one jurisdiction to the next as to precisely how close the relation-
ship had to be before it would classified as an unlawful marriage.70 “The right to
67
Blackstone, Commentaries, 1:42–43. This was a distinction that went back to Aristotle.
See Richard McKeon, ed., The Basic Works of Aristotle (New York: Random House, 1941), 1014
(Nicomachean Ethics V:7).
68
Biographical Sketches; With Other Literary Remains of the Late John W. Campbell (Columbus,
OH: Scott & Gallagher, 1838), 143–44.
69
Cohen v. Wright, 22 Cal. 293, 325, 319 (1863).
70
Joseph Story, Commentaries on the Conflict of Laws (Boston: Hilliard, Gray, 1834), 104–7.
transmit property by descent, to one’s own offspring, is dictated by the voice of

nature,” James Kent reasoned, because “it is in accordance with the sympathies
and reason of all mankind, that the children of the owner of property, which he
acquired and improved by his skill and industry, and by their association and
labour, should have a better title to it at his death, than the passing stranger.”
But this general principle left many open questions about how exactly pro-
perty could be transferred to descendants, questions to which natural law did
not speak. Kent concluded that “the particular distribution among the heirs
of the blood, and the regulation and extent of the degrees of consanguinity to
which the right of succession should be attached, do undoubtedly depend es-
sentially upon positive institution.”71 The Texas Supreme Court drew the same
contrast. “The statutes of descents and distributions in all countries are mere
arbitrary rules,” the court explained, rules that were “established by society, or
civil government, for its own peace and tranquility, and not because any par-
ticular person or class of persons possess any natural right to the inheritance.”
But while the details of such rules varied, “It will be found that all governments
or legislatures, in prescribing determinate methods for the transmission of pro-
perty, have uniformly availed themselves of a law of physics, which is unerring in
its operations, and not fickle and capricious, like the passions and sentiments of
mankind, to render that transmission fixed and certain, and easily traceable by
the natural law.” This natural “law of physics” was “the law of consanguinity, or
of blood,” which provided that blood relatives should be the heirs.72 Natural law
painted with a broad brush, while positive law filled in the details.
Judges and commentators found this contrast pervasive. “It would be a false
and unreasonable conclusion, to infer, that natural reason is sufficient to furnish
a rule, in every particular case,” Lemuel Shaw observed. For instance, although
“it is an obvious dictate of natural justice, that an infant, of tender years, cannot
be bound by a contract,” natural law did not establish a precise age at which a
person became old enough to be bound by contracts. That was a matter for pos-
itive law. Likewise, natural law required a limitations period for the enforcement
of contracts, because “such is the loss of life, and memory, and other sources of
evidence, that it is obviously quite fit, that simple contracts, if enforced at all,
should be enforced within some limited time.” But natural law did not say ex-
actly how long that time should be, which was a question for positive law to
answer. Natural law required some form of established government, “But no
natural principle requires that there should be a President, a Senate, or House
of Representatives, or Supreme Court.” In all these examples, “Natural justice
71
Kent, Commentaries, 2:263–64.
72
Jones’ Heirs v. Barnett’s Heirs, 30 Tex. 637, 639–40 (1868).
furnishes the general principle, positive or conventional law the exact rule.”73 As
Shaw put it on another occasion, “Universal law and natural obligation, on the
one hand, and municipal law on the other, are not antagonistic to each other.
On the contrary, municipal law assumes the existence of moral duty, arising
from natural law, and regulates it, so that it may form a plain and practical rule,
adapted to the exigencies of a civilized community.”74 This was another sense in
which positive law could be said to “enforce” natural law—not just by restating
it, but by furnishing detailed provisions for its implementation.
This sense of positive law as regulating details not covered by natural law
provides additional insight into why it was so rare for judges to find legislation
inconsistent with natural law. Where a statute governed an area in which natural
law had no reign, as with statutes regulating imports or business licenses, there
could be no inconsistency between positive and natural law. Where a statute
governed an area to which natural law did apply, a judge who understood the
statute as an effort to enforce natural law or to supply detailed content to natural
principles would be motivated to use natural law to interpret the statute rather
than to strike it down. “It is clear, that statutes passed, against the plain and ob-
vious principles of common right, and common reason, are absolutely null and
void,” a South Carolina court explained. “In the present instance, we have an
act before us, which, were the strict letter of it applied to the case of the pre-
sent claimants, would be evidently against common reason.” But that was a reason,
not for finding the statute void, but rather for supposing that the legislature did
not intend the statute to apply to the case at hand. The court continued: “We
are therefore bound to give such a construction” to the statute “as will be con-
sistent with justice, and the dictates of natural reason, though contrary to the
strict letter of the law.”75 As Pennsylvania’s chief judge John Bannister Gibson put
it, “Where a court has to deal with a question of construction,” in close cases the
law of nature “must always turn the scale.”76 A judge in Maine explained that this
interpretive strategy was useful whenever a statute regulated a matter as to which
natural law had some bearing. Where a law “is calculated merely to enforce the
law of nature, and contains words of ambiguous or indefinite import, which re-
quire interpretation,” he explained, “we recur to the laws of nature, to the rules
and precepts of natural equity to explain them.” But resort to natural law was not
available to interpret a statute that “is purely arbitrary, if it does not command or
73
Lemuel Shaw, “Profession of the Law in the United States,” American Jurist & Law Magazine 7
(1832): 68–69.
74
May v. Breed, 61 Mass. 15, 32 (1851).
75
Ham v. McClaws, 1 S.C.L. 93, 95–96 (1789).
76
City of Philadelphia v. Commissioners of Spring Garden, 7 Pa. 348, 363–64 (1847).
prohibit what is right or wrong, in itself, intrinsically.” In such cases, “We look to
the will of the legislature itself.”77
Positive law was in this sense understood to fill gaps left unregulated by nat-
ural law, but there was also a sense in which the opposite was true—in which
natural law was understood to fill gaps left unregulated by the positive law. When
judges used natural law to decide a case, it was often because they reported
finding no positive law that was helpful. “We are placed in a singular situation,
in this state,” despaired New York’s Chancery Court, “since we have no statute
regulating marriage.” The court had to decide the validity of a marriage in which
one spouse had been insane at the time of the marriage, but New York had no
positive law addressing the question. The court accordingly turned to natural
law and held the marriage void.78 In North Carolina, the state supreme court had
to decide whether a person who received a counterfeit banknote could undo a
transaction where the party who gave him the note had been unaware that it was
counterfeit. “There are but few cases to be found on this subject, in the books
to which we usually resort, and these are by no means decisive of the question,”
the court noted. But there was a solution. “Where the positive laws are silent,”
the court explained, “all Courts must determine on maxims of natural justice,
dictated by reason; that is, according to the law of nature.” The court cautioned
that this resort to natural law would be improper where positive law supplied
the governing rule. “We cannot recur to primary principles of right and wrong,
where the municipal institutions are express,” the court explained, “for it is then
presumed that they are founded on the laws of nature, or contain nothing repug-
nant to it.”79 In this sense, the law of nature did not supersede positive law, but
was rather available as a guide where positive law ran out.
There are abundant examples of judges using natural law in this way. Did
a state governor have the right to imprison a defendant alleged to have com-
mitted a crime in Canada? “As the legislature have not determined that the in-
terest of the state required them to pass any law on this subject, and have not
passed any,” the Vermont Supreme Court observed, “we must look elsewhere
than to our code of municipal laws for any regulation authorizing the governor
to make the order in question.” The court accordingly embarked on a lengthy
survey of treatises discussing natural law.80 Who was entitled to unclaimed bales
of cotton that washed up on the Florida coast after a shipwreck, the finder or the
government? Because the court could find “no final disposition of the question
by the judicial decisions or the legislative enactments of our country,” the court
77
United States v. The William Arthur, 28 F. Cas. 624, 627 (D. Me. 1861).
78
Wightman v. Wightman, 4 Johns. Ch. 343, 347–51 (N.Y. Ch. 1820).
79
Hargrave v. Dusenberry, 9 N.C. 326, 326–27, 328 (1823).
80
Ex parte Holmes, 12 Vt. 631, 637–42 (1840).
resorted to natural law.81 If a father kicked his daughter out of the house, was he
still entitled to her services, as he would have been under the law of the era had
the family remained intact? “No authority in point has been stated, and perhaps
the like of this case cannot be found,” the court explained. But “the law of na-
ture teaches, that the father is neither to leave his own offspring to perish, nor
by abandoning it, is he to cast the burden of it upon others.” The father was thus
not entitled to his daughter’s services.82 There was always “a large class of cases
which are inevitably left unprovided for by every system of human legislation,”
observed the Boston lawyer Luther Cushing, “and it becomes an interesting in-
quiry to determine, what are the rules of conduct, and what is the measure of
justice, in reference to such cases.” The answer was that “the laws, applicable to
such cases, are those precepts of natural right, which have not been superseded
by express legislation. If a case is left wholly unprovided for by the positive law, it
is governed solely by the natural law.”83 As the Louisiana Supreme Court put it,
“When positive law is silent, an appeal must be made to natural law.”84
Such cases were common because life presented all kinds of unanticipated
questions for which positive law provided no answer. When a father was missing
and hadn’t been heard from in many years, could the mother make employment
arrangements for her minor children? “The right is not regulated by statute,” the
New Jersey Supreme Court found. The court accordingly turned to “the clear
principle of natural law,” that “a mother is not only authorized, but bound,” to
exercise authority over her children in this situation.85 Was a man born in Peru,
to an American father and a Chilean mother, a citizen of the United States? “The
case does not come within the provisions of any of the statutes of the United
States on the subject,” the court observed. The court thus resorted to what it
termed the natural law principle that “children, if legitimate, follow, in regard to
their political rights and duties, the condition of their fathers,” and deemed the
man an American citizen.86 Was it a crime to sell “unwholesome beef ”? “Can
any case be found in the books, in which the exact question arose?” asked the
judge. “I have not found one; and in the absence of precedent, we must resort to
general principles.” The judge found it a “plain dictate of reason, or natural law,”
81
Russell v. Forty Bales Cotton, 21 F. Cas. 42, 43–44, 46–48 (S.D. Fla. 1872). For a similar case,
also involving unclaimed cotton and a resort to natural law, see Peabody v. Proceeds of Twenty-Eight
Bags of Cotton, 19 F. Cas. 39, 45–48 (D. Mass. 1829).
82
Gary v. James, 4 S.C. Eq. 185, 195–96 (1811).
83
Luther S. Cushing, An Introduction to the Study of the Roman Law (Boston: Little, Brown,
1854), 17.
84
State ex rel. Kneeland v. City of Shreveport, 29 La. Ann. 658, 661 (1877).
85
Osborn v. Allen, 26 N.J.L. 388, 391, 393–94 (1857).
86
Ludlam v. Ludlam, 26 N.Y. 356, 360, 368 (1863).
that the knowing commission of an act that would cause injury was a crime.87
Positive law did not cover everything, so natural law was an indispensable back-
stop. “When the statutes are silent,” the Massachusetts Supreme Court declared,
judges should consult “the law of nature as generally recognized by all civilized
peoples.”88
In fact, one of the best-known cases of the 19th century is of this sort. In
Pierson v. Post, an early New York case studied by generations of law students,
while one hunter pursued a fox with hounds, a second hunter killed the fox. To
which hunter did the fox belong? New York had no positive law that could an-
swer the question. As Judge Henry Brockholst Livingston lamented, “We are
without any municipal regulations of our own.” The lawyers on both sides ac-
cordingly based their arguments on natural law. The judges did the same. The
majority determined that chasing a fox was not enough to claim ownership of
it, because natural law conferred ownership of the fox on the hunter who first
physically possessed it.89
In using natural law to decide such cases, courts often referred to principles
of morality and religion. For example, in 1834 the Vermont Supreme Court
considered a case in which a debtor had concealed his property from his creditors
and falsely claimed to be unable to pay his debts in full, to induce his creditors to
settle the debts for less than their true value. When the creditors found out, they
tried to recover the difference. The Vermont Supreme Court could not find any
positive law that governed this situation. “This application presents, it must be
confessed, a new case,” the court explained, “and we are not furnished with any
precedent of a decree such as the bill seeks, made under circumstances precisely
like the present.” The court accordingly determined to “resort to first principles,”
and in particular “the rule, which requires good faith and an adherence to truth
in human affairs.” That rule, the court reasoned, “is a part of the moral and mu-
nicipal code of every civilized people; and in every christian community is uni-
versally acknowledged as resting upon higher and more sacred authority than
mere human enactment.” The court used this principle of natural law to decide
in favor of the creditors.90
But natural law was not synonymous with morality, with religion, or even
with justice. There were many moral and religious obligations that were not legal
obligations, and natural law could produce unjust outcomes in individual cases.
In one early case, for example, the US Supreme Court decided a fundamental
commercial question: was it unlawful for a party with superior information to
87
People v. Parker, 38 N.Y. 85, 86 (1868).
88
Commonwealth v. Lane, 113 Mass. 458, 463 (1873).
89
Pierson v. Post, 3 Cai. R. 175, 182 (N.Y. Sup. Ct. 1805).
90
Richards, Truesdale & Co. v. Hunt, 6 Vt. 251, 253 (1834).
exploit his knowledge by buying or selling at a price different from the price
that would have been agreed to if the parties had the same knowledge? Such
exploitation might well be immoral, the better-informed party’s lawyer argued,
but that it did not make it illegal. “Human laws are imperfect in this respect,” he
suggested, “and the sphere of morality is more extensive than the limits of civil
jurisdiction.” The Supreme Court agreed.91 The law often diverged from morality
or good manners. Was a father obliged to pay his son’s debts? Yes in a moral
sense, the Massachusetts Supreme Court held, but not in a legal sense.92 Did
people always have to keep their promises? Keeping promises was “a moral ob-
ligation,” observed a treatise on the law of contracts, but not necessarily a legal
one. “Moral duties and legal obligations are not made coextensive,” the treatise
explained. The law “gives effect only to contracts that are founded on the mutual
exigencies of men, and does not compel the performance of any merely gratui-
tous engagements.”93
As many lawyers noted, one important difference between moral obligations
and obligations of natural law was that morality could be assessed case by case,
but natural law had to take the form of practical rules governing whole categories
of cases. It might be immoral in a particular case to exploit superior information
to get a better price, but commerce would grind to a halt if every contract had
to be preceded with a complete recitation of everything both parties knew. It
was immoral for an individual father to refuse to pay his son’s debts, but if every
father had to pay in these circumstances, improvident children might rack up
debts everywhere they went. The legal system needed general rules, one judge
explained, and “It is no objection to such general rules, that in some few instances
they will operate injustice.”94 Even equity jurisprudence, which was supposed to
temper the stricter rules of the common law, “left many matters of natural justice
wholly unprovided for,” Joseph Story acknowledged. It was simply not practical
“to give a legal sanction to duties of imperfect obligation, such as charity, grati-
tude, and kindness.”95
Positive and natural law were thus each understood to fill gaps in the other.
On one hand, natural law provided broad principles to govern certain matters,
while positive law supplied the finer-grained rules needed to put those princi-
ples into practice, as well as rules to govern the matters as to which natural law
was indifferent. On the other hand, where there was no positive law that applied
to a particular question, natural law provided a reservoir of first principles that
91
Laidlaw v. Organ, 15 U.S. 178, 193, 194 (1817).
92
Angel v. McLellan, 16 Mass. 28, 31–32 (1819).
93
Theron Metcalf, Principles of the Law of Contracts (New York: Hurd and Houghton, 1867), 161.
94
Stout v. Jackson, 23 Va. 132, 150 (1823).
95
Joseph Story, Commentaries on Equity Jurisprudence (Boston: Hilliard, Gray, 1836), 1:2.
could help decide a case. From today’s perspective, it may sound strange that
two bodies of law could each serve to fill gaps in the other. But there is no in-
dication that the lawyers who worked within this system found it strange. The
gap-filling was done in different ways and in different cases. Moreover, much of
the actual content of natural law (as we will see shortly) consisted of principles
so broad that they could plausibly relate to just about any litigated dispute for
which positive law provided no answer.
Why the Use of Natural Law Made Sense

to 19th-Century Lawyers
Why did this view of the law make sense? Today, we recognize the importance of
natural laws in the nonhuman realm, such as the laws of motion or of optics, but
natural law plays no role in the human realm governed by our legal system. Why
did Americans think differently in the 18th and 19th centuries?
Discussions of natural law often began with the observation that because
humans were part of nature just like other animals, they were governed by
the laws of nature as other animals were. “Looking around,” Kames remarked,
“we find creatures of very different kinds, both as to their external and internal
constitutions. Each species having a peculiar nature, ought to have a peculiar
rule of action resulting from its nature.” Kames observed “how accurately the
laws of each species are adjusted to the external frame of the individuals which
compose it, and to the circumstances in which they are placed, so as to procure
the conveniences of life in the best manner, and to produce regularity and con-
sistency of conduct.” For example, “A lion is made to purchase the means of life
by his claws. Why? because such is his nature and constitution. A man is made
to purchase the means of life by the help of others, in society. Why? because,
from the constitution both of his body and mind, he cannot live comfortably but
in society.”96 Indeed, noted Montesquieu, all physical objects were governed by
natural laws. “Man, as a physical being, is like other bodies, governed by invari-
able laws,” he argued. “All beings have their laws.”97
American commentators often made the same point. Henry St. George
Tucker, a law professor at the University of Virginia, began his introductory
lecture with the natural laws governing the crystallization of chemicals, before
proceeding to the growth of sunflowers and the law of gravity. Only then did he
turn to the laws governing human affairs. “If there be a law for all other created
96
Home, Essays, 27–28.
97
Montesquieu, Spirit, 19, 17.
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Library of Congress Cataloging-​in-​Publication Data

PART I: BEFORE THE TR ANSITION

1. THE LAW OF NATURE 11

PART II: CAUSES OF THE TR ANSITION

3. THE ADOPTION OF WRITTEN CONSTITUTIONS 71

PART III: THE TR ANSITION AND AFTER

7. THE DECLINE OF NATURAL LAW AND CUSTOM 167

It is a question about a change in lawyers’ argument style, a question about pro-

BEFORE THE TRANSITION

The Law of Nature

The Sources of Natural Law

18th-​century English judge and law professor whose four-​volume Commentaries

Blackstone, Commentaries, 1:40.

The Relationship between Natural Law and

Jones v. Robbins, 74 Mass. 329, 340 (1857).

sense in a world in which statutes are interpreted literally as statements of the

transmit property by descent, to one’s own offspring, is dictated by the voice of

Why the Use of Natural Law Made Sense

Updated editions will replace the previous one—the old editions

Creating the works from print editions not protected by U.S.

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Library of Congress Cataloging-in-Publication Data

1. THE LAW OF NATURE  11

3. THE ADOPTION OF WRITTEN CONSTITUTIONS  71

7. THE DECLINE OF NATURAL LAW AND CUSTOM  167

18th-century English judge and law professor whose four-volume Commentaries