After the Civil War, in 1866, Ralph Waldo Emerson received the honorary degree of Doctor of Laws from Harvard. Nearly thirty years after his address on the American Scholar, he appeared for the second time as the orator at Phi Beta Kappa, once again preaching his liberal ideals, praising and presenting the correspondence between the material and the spiritual, and the common centrality of the physical and the ethical worlds. But Emerson's philosophy of law had become intermingled with a jurisprudential idea of natural law and natural rights in his later conception of the “higher law”. Emerson could never forgive the diplomatic Unionist Daniel Webster, for having helped to pass the Fugitive Slave Law. The main fault with Senator Webster was, according to both Emerson and Theodore Parker, that he lacked faith in the “higher law”. Webster refuted that notion, which was reckoned as a good joke at some courts. In his argument against the Fugitive Slave Law in 1851, Emerson referred to the Higher Law and to the Bible, when he stated that immoral laws are void. His approach was explicitly juridical, however. The “great jurists, Cicero, Grotius, Coke, Blackstone, Burlamaqui, Vattel, Burke, Mackintosh, Jefferson, do all affirm this”, namely, that no human laws are of any validity, if they violate the law of Nature, among whose principles are, according to Blackstone, “that we should live on, should hurt nobody, and should render unto every one his due”. We are “bound to transgress” such a human law; or else we must offend “both the natural and the divine.” It is not only contrary to “the laws of God”. Natural laws of the human mind, and of human existence — laws of our existential and social nature — are violated.
Hugo Grotius, and after him Samuel Pufendorf, developed a theory of international legislation based upon “natural law”. The rules of the human reason are, according to Grotius and Pufendorf, as immutable as the laws of the universe: they are but expressions of the same force. Their ideas paved the way for clearing the law concept from theology in an age when higher mathematics was developed and cosmic laws were discovered by Kepler and Newton. Not even to God it is granted to upset infinitesimal calculus. The new idea of “natural rights”, but also Deism and Determinism, would accordingly follow. Grotius, however, did not think that an equal certainty can be found in ethics and in mathematics. His successor Pufendorf did, and John Locke, the foremost spokesman of natural rights, preferred the latter. Emerson does not refer to Pufendorf or to Locke in his argument. But he does refer to Grotius. He is cited in the early lectures, even in the sermons. He hardly ever read him, however.
From the good authority of his extant notebooks, Emerson's most important sources can be determined with certainty. From excerpts written late in 1850, we can see that he drew heavily for his statement from William Blackstone's influential Commentaries on the Laws of England (1765). Emerson used a New York edition, printed in 1843. He also used John Lord Campbell's recent The Lives of the Chief Justices of England (1849). Emerson's quotations from Blackstone in the Fugitive Slave Law Address, are from the Commentaries. In both works Emerson met with the standpoint taken by Edward Coke (1552-1634), who attracted Emerson as much as the views of Blackstone did. Of special importance to Emerson, was the event of November 10, 1608, when the judges and the Exchequer Barons in England accused — and tried — James I at Hampton Court. Emerson copies the King's words from Baron Campbell: “King James said to Coke C[hief] J[ustice:] ‘My lord, I always thought, & by my soul I have often heard the boast that your English law was founded upon reason. If that be so, why have not I & others reason, as well as judges?’” The King maintained his sovereignty. Why should he be under the law? Coke answered that God and Law are sovereign, that the law does command the King. Emerson knew Coke's reply to His Majesty, in Archbishop Bracton's words, by heart. It is still visible in the golden motto above the portal at Harvard Law School, marking the ideological abode of the doctor of laws. Coke replied: Quod Rex non debet esse sub homine, sed sub Deo et lege. Indeed, the divine right of kings died when Charles I was beheaded in 1649. The English jurists also inspired the revolt of the colonies against British rule, the reign of George III. In America, Law became King.
Ralph Waldo Emerson, Natural Law, Civil Law, William Blackstone, John Lord Campbell, Edward Coke
“Transatlanticism in American Literature”, Oxford University, July 13-16, 2006.