Page:Cambridge Modern History Volume 7.djvu/221

1765] Laws of nature. Calvin s case. 189 men together in social relation. The State itself was nothing but a body of men in social relations, with power given to it, or created with power, to enforce the obligations arising therefrom. In other words, Americans contended that the chief rights of men arose from human nature. Instead of being created by municipal law, these rights themselves gave rise to all laws enforced by the State. This theory of legal right was put as English doctrine. American jurists, including loyalists, were in the habit of quoting Calvin's case, of the time of Coke. In that case all the authorities had been examined, and the judges had unanimously resolved, first, that the laws of nature are part of the law of England ; secondly, that the laws of nature cannot be changed; thirdly, that protection and government are due to the subject by the laws of nature ; fourthly, that neither " ligeance " nor protection is tied to municipal law, but is due by the laws of nature. Plainly then there was, at the time of the settlement of the colonies, a "law of nature" which was not derived from Parliament, a law which Parliament could not change. Indeed Americans believed that doctrine without regard to Calvin's case ; the doctrine did not rest on " musty records'"; it was sound in itself. So in effect it was put by all the leaders by Otis, Hopkins, Samuel Adams, John Adams, and Hamilton. "The sacred rights of mankind," said Hamilton, "are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature by the hand of the Divinity itself, and can never be erased or obscured." The rights referred to as derived from the laws of nature were generally spoken of, as Hopkins put them, as inherent and indefeasible ; they were Blackstone's "absolute rights" of individuals to life, liberty, and property, and his secondary, consequent rights of legislation. The term "birthright" was constantly applied to the first. But the doctrine that these or any other rights of the colonists were beyond the power of Parliament was denied in England and by loyalists in America. Discussion began with the rights of individuals. Howard, a Rhode Island loyalist and lawyer, said that, in speaking of the rights of free-born Englishmen, personal and political rights were confounded. He put the case, in substance, thus : 1. Political rights are not "natural"; these come from Parliament, and Parliament comes from the constitution of England, which was the common law. These rights, in the case of the colonists, are derived, immediately, from the charters. 2. Personal rights of life, liberty, and property, called "inherent, indefeasible" rights, are not "natural"; these come from the common law. These, too, in the case of the colonists, are derived, immediately, from the charters. 3. All the rights of the colonists therefore are derived immediately from the charters, ultimately from the common law 4. If then the colonists claim the common law, as they do, as the source of these personal rights, they must accept Parliament CH. VI.