Angilbert (fl. ca. 840/50), On the Battle Which was Fought at Fontenoy

The Law of Christians is broken,
Blood by the hands of hell profusely shed like rain,
And the throat of Cerberus bellows songs of joy.

Angelbertus, Versus de Bella que fuit acta Fontaneto

Fracta est lex christianorum
Sanguinis proluvio, unde manus inferorum,
gaudet gula Cerberi.

Tuesday, May 17, 2011

Pursuit of Happiness: Sir Edward Coke and the Declaration of Independence

THE LAST SOURCE FOR JEFFERSON'S DECLARATION OF INDEPENDENCE we will review is Sir Edward Coke. Educated as a lawyer, Jefferson would have been exposed to Edward Coke's magisterial Institutes of the Laws of England. Indeed, Jefferson himself, in a letter to James Madison dated February 17, 1826, stated that the first volume of Coke's Institutes "was the universal elementary book of law students," and, moreover, "a sounder Whig never wrote, nor of profounder learning in the orthodox doctrines of the British constitution, or in what were called English liberties."*

Sir Edward Coke

Jefferson, of course, was not the only Founding Father raised on Coke. Patrick Henry, James Madison, John Adams, John Quincy Adams, John Jay, Daniel Webster, George Mason, and a whole host of others would have been familiar with Coke. The American Founders learned constitutional principles from Coke. Joseph Story, appointed by Jefferson to be Supreme Court Justice, wrote: "When I had completed the reading of the most formidable work, I felt that I breathed a purer air and that I had acquired a new power." As Bernard Schwartz, the American constitutional historian, summarized it: "The influence of Coke may be seen at all of the key stages in the development of the conflict between the Colonies and the mother country."***

We shall focus in particular upon Coke's Calvin's Case. Jefferson would have been familiar with this opinion of Coke's. Indeed, he referenced it in his Reports of Cases Determined in the General Court of Virgina, From 1730-1740 and from 1768-1772, citing to it as being part of an argument by George Mason in the case of Robin et al. v. Hardway et al. to support the following notion:

Now all acts of legislature apparently contrary to natural right and justice, are, in our laws, and must be in the nature of things, considered as void. The laws of nature are the laws of God; whose authority can be superseded by no power on earth. A legislature must not obstruct our obedience to him from whose punishments they cannot protect us. All human constitutes which contradict his laws, we are in conscience bound to disobey. Such have been the adjudications of our courts of justice.†

The summary of the natural law, its participation in the eternal law of God, and its role in justifying and limiting human law is particularly well-summarized in the language of Sir Edward Coke:
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; and this is lex aeterna, the Moral Law, called also the Law of Nature.
. . . .

And by this Law, written with the finger of God in the heart of man, were the people of God a long time governed, before that Law was written by Moses, who was the first Reporter or Writer of Law in the world. . . . .

The Apostle in the second Chapter to the Romans saith, Cum enim gentes quae legem non habent naturaliter ea quae legis sunt faciunt. . . . . [As the Gentiles who do not have the law, natural do those things which are of the law, a citation to St. Paul's letter to the Romans, 2:14-15]

. . . . And Aristotle, Nature’s Secretary, Lib. 5. Aethic. saith, That jus naturale est, quod apud omnes homines eandem habet potentiam. [The law of nature is that which has the same power among all men.] . . . .

And herewith doth agree Bracton, lib. 1. cap. 5. and Fortescue, cap. 8, 12, 13, and 16. Doctor and Student, cap. 2. and 4. And the reason hereof is, for that God and Nature is one to all, and therefore the Law of God and Nature is one to all.

. . . . This Law of Nature, which indeed is the eternal Law of the Creator, infused into the heart of the creature at the time of his creation, was two thousand years before any Laws written, and before any Judicial or Municipal Laws.
Calvin’s Case 7 Coke Reports 1a 77 ER 377 (1608).

One would be hard pressed to find any such thought coming from our modern advocates before the Supreme Court or from the opinions issued by that Court. That is a testament about how far we have strayed from the philosophical foundations in the Declaration of Independence.

Summarizing, then, our prior postings, it is undeniable that the "common sense" of the subject in the Declaration of Independence, informed by the likes of Aristotle, Cicero, Locke, Sidney, St. Germain, and Coke, is that the Declaration of Independence's notion of "pursuit of happiness" is one that is firmly established with the traditions of natural law. It was based upon an Aristotelian eudaimonistic ethic, one that required man to act in accordance with virtue, and one that referenced an objective moral law outside of man, one which governed both his individual acts and this political acts, his governance of his fellows, and the passing of his laws. It was, ultimately, a law that was found within man, based upon reason, a reason not autonomous from God, but one given to him, and therefore under and not opposed to, the God who was its author. Indeed, this natural law, informed by God's reason and discovered by man's reason, was nothing other than a participation into the reason of the cosmos, the eternal law, the rational order of existence and of being, itself a gift of the God who created the world and who saw to its governance in his continuing Providence.

*See Letter to Madison, Feb. 17, 1826
**Charles Warren, History of the Harvard Law School and of Early Legal Conditions in America (Clark, N.J.: The Lawbook Exchange, 2008), 138-142, 140 (quoting from Story's letter to his son dated Feb. 9, 1841).
***Bernard Schwartz,
A History of the Supreme Court (Oxford: Oxford University Press, 1993), 5.
†Thomas Jefferson, Reports of Cases Determined in the General Court of Virgina (Charlottesville: F. Carr & Co., 1829), 114.

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