Recent scholarship in early American political and legal history places heavy emphasis on the idea of rights. Jack Greene argues that the colonial desire for English rights constituted a central cause of imperial disputes in the eighteenth century. John Philip Reid argues even more strongly for the salience of the colonial claim to English rights in the coming of the Revolution. Peter Hoffer also stresses the importance of English law in the forming of colonial society. According to these scholars, English law functioned as a central repository of values in early America. While the argument about the centrality of a legal culture of rights is important, this historiography has erred in overlooking the influence of the idea of natural law on the colonial understanding of common law rights. Seeing the two traditions as mutually exclusive, these scholars argue that the colonists were solely concerned with traditional, historical English rights, Reid even goes so far as to argue for the "irrelevance" of the kind of natural law claims found in the Declaration.

By contrast, this paper will argue that these two contemporary languages were closely connected. From Bracton to Coke, natural law concepts such as "right reason," consent and equality were seen as an integral part of the English common law, providing a normative underpinning for common law rights. The American colonists were heavily influenced by this "Cokean" or higher law tradition; and this influence gave a distinctive cast to colonial political and legal culture.

The paper proposes to examine the ways in which early Americans were influenced by natural law ideas. It will demonstrate that, from the early eighteenth century on, colonial elites frequently invoked natural law as the basis for their common law rights. By the mid-eighteenth century, common law legal rights were seen as an expression of underlying natural law norms. As a consequence, new rights such as freedom of expression and religious toleration began to be articulated. Having examined this mid-century intellectual development, the paper will raise the question of the importance of this "higher law" legal culture for an understanding of the coming of both revolutionary legal resistance and post-revolutionary legal reform.