Natural law thinking profoundly shaped the way American and British leaders approached issues involving rights, sovereignty, and constitutional government. However, the imperial authorities and their colonial opponents often appealed to different, and even conflicting, strains of the natural law tradition.

This essay explores the role of natural law philosophy in the imperial crisis between Britain and the American colonies in the twelve years leading up to the Declaration of Independence in 1776.  Both the British governments and the colonial champions during the crisis were the inheritors of a complex tradition of natural law philosophy dating back centuries.  At its core, this tradition revolved around the proposition that there is a standard of natural justice that exists independently of human contrivance, and that acts as a measure for the legitimacy of civil laws and political institutions.  Natural law thinking profoundly shaped the way American and British leaders approached issues involving rights, sovereignty, and constitutional government.  However, the imperial authorities and their colonial opponents often appealed to different, and even conflicting, strains of the natural law tradition. The tension between the various understandings of natural jurisprudence involved in the imperial dispute would have serious implications for the evolving, and ultimately incompatible, British and American conceptions of the Empire.

In order to understand the intellectual context surrounding the imperial crisis, it is important to appreciate the pervasive influence of natural law philosophy in early-modern Europe and America.  Educated Britons and Americans were the products of a rich intellectual heritage spanning from medieval to modern times.  St. Thomas Aquinas founded the Christian natural law tradition in the 13th century by articulating a conception of natural justice rooted in reason and God’s rule over the created world.  By the 17th century, natural law philosophy had developed into a multifarious body of thought with distinct conservative and radical strains.^[1]  The conservative natural law school exemplified by such thinkers as Hugo Grotius, Thomas Hobbes, and Samuel Pufendorf drew decidedly authoritarian political implications from the natural law principles of natural liberty and equality.  They tended to emphasize a strong, and even absolute, version of political sovereignty and generally rejected popular self-government and the right of revolution.  For their part, radical natural law theorists such as John Locke, Benedict Spinoza, and Algernon Sidney built an argument for popular sovereignty on the bedrock principles of individual rights, especially the right to property and the right of conscience, as well as a natural right of revolution.  It was to this complex natural law inheritance that both Britons and Americans appealed in their quarrel during the imperial crisis.  However, their different interpretations of this philosophic tradition are what account in large measure for their divergent arguments and attitudes throughout the crisis.

Eighteenth-century Britain witnessed the emergence of conservative natural law principles adapted to the unique conditions of parliamentary rule.  In the decades following the Glorious Revolution, the British political nation adopted a conservative interpretation of the events of 1688–89, which emphasized continuity, the legal fiction of King James’s “abdication,” and most importantly asserted the institutional sovereignty of the tripartite Parliament including king, lords, and commons.  The radical principles of popular sovereignty and individual natural rights were for the most part rejected.  By the middle of the eighteenth century, the doctrine of parliamentary sovereignty was the dominant political and constitutional ideology in Britain.  This hardening of the orthodoxy of parliamentary sovereignty can be seen in the influential writings of Sir William Blackstone published at the start of the imperial crisis.  With clear echoes of the conservative natural law conception of sovereignty championed by Grotius, Hobbes, and Pufendorf, Blackstone insisted that in every constitution there had to be a “supreme, irresistible, absolute, uncontrolled authority in which . . . the rights of sovereignty reside.”^[2]  The implications of this commitment were obvious.  British efforts to tighten control over the colonies through taxation rested on the philosophical premise that Parliament is the highest law-making body in the empire and is thus in the legal sense absolute and irresistible inasmuch as colonial legislatures are subordinate vis-à-vis Westminster.  The depth of the British commitment to this conservative conception of sovereignty was crystallized in the Declaratory Act of 1766, which followed the repeal of the Stamp Act.  While the Ministry repealed the stamp tax on prudential grounds, the Parliament asserted its right in principle to legislate for the colonies “in all cases whatsoever.”^[3]  As parliamentary sovereignty was the governing philosophy of Britain, so too by extension must it logically be the organizing principle of the British Empire.

The colonial position in the imperial crisis was also informed by natural law philosophy; however, supporters of the American cause interpreted this tradition rather differently from the British.  Most importantly, the radical natural law theory of Sidney and Locke, long déclassé in Britain, flourished in the colonies alongside typically conservative philosophical commitments.  With the radicals, Americans insisted that some element of popular control over government was vital to secure liberty—a condition impossible in a distant parliament in which the colonies were not represented.  Thus, Americans defended the principle that only the colonial legislatures could legitimately tax the colonists.  However, in the early stages of the crisis most supporters of the colonial cause also expressed deep admiration for the British balanced constitution produced in the Glorious Revolution and its replicas in the colonial governments (in which the Crown appointed governors who shared rule with the elected assemblies). Moreover, many early colonial champions conceded the British point that Parliament is sovereign in the empire, although they disputed the rightness of its taxing the colonies directly as opposed to merely regulating imperial trade policy.  While accepting the theoretical principle of parliamentary sovereignty, Americans had not actually experienced their political life as being subject to Parliament in the century of benign neglect prior to 1764.  In practice, they felt that assertions of parliamentary sovereignty were a dangerous innovation in imperial relations.

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