COPYRIGHT AND USE OF THIS THESIS This thesis must be used in accordance with the provisions of the Copyright Act 1968. Reproduction of material protected by copyright may be an infringement of copyright and copyright owners may be entitled to take legal action against persons who infringe their copyright. Section 51 (2) of the Copyright Act permits an authorized officer of a university library or archives to provide a copy (by communication or otherwise) of an unpublished thesis kept in the library or archives, to a person who satisfies the authorized officer that he or she requires the reproduction for the purposes of research or study. The Copyright Act grants the creator of a work a number of moral rights, specifically the right of attribution, the right against false attribution and the right of integrity. You may infringe the author’s moral rights if you: - fail to acknowledge the author of this thesis if you quote sections from the work - attribute this thesis to another author - subject this thesis to derogatory treatment which may prejudice the author’s reputation For further information contact the University’s Director of Copyright Services sydney.edu.au/copyright NATURAL LAW AND NATURAL RIGHTS IN NINETEENTH CENTURY BRITAIN by Graham J Costello, MA A thesis submitted in fulfillment of the requirements for the degree of Doctor of Philosophy School of Philosophical and Historical Inquiry, Faculty of Arts and Social Sciences University of Sydney 2014 i ii Natural Rights and Natural Law in Nineteenth Century Britain Page Declaration i Contents ii Abstract iv Acknowledgement v Dedication vi Introduction: Issues of Natural Law and Rights 1 Chapter One: The Nineteenth Century British Natural Law and Rights Ambiguity 11 Definitional Issues of Natural Law and Rights 12 Historian’s Perspective on Nineteenth Century Natural Law 17 Conflicting formative influences on Nineteenth Century Natural Law 24 Law of Nations – International Law 37 Section A: Jurisprudence and Natural Law Chapter Two: Charles James Foster 40 Chapter Three: James Lorimer 66 Chapter Four: Denis Caulfeild Heron 128 Section B: International Law and Natural Law Introduction 140 Chapter Five: Robert Phillimore 145 Chapter Six: Travers Twiss and George Bowyer 161 Chapter Seven: James Lorimer and the Law of Nations 190 iii Section C: Natural Law and Spiritual Life Chapter Eight: Henry Drummond 206 Chapter Nine: George Combe 262 Chapter Ten: John Seeley 309 Conclusion 327 Bibliography 328 iv ABSTRACT This thesis challenges the view of many historians that the natural law and natural rights tradition, while flourishing in the Enlightenment period, disappeared in nineteenth- century Britain with the expansion of the role of positive law, only to reappear post- World War II in human rights discourse. The focus of historians of political thought on canonical figures, Jeremy Bentham, John Austin, and John Stuart Mill, all of whom were antagonistic to the natural law and rights tradition has led them to fail to appreciate not only the continued role of natural law and rights but its development of a post- Enlightenment accommodation with positive law, resulting in a more pragmatic understanding of natural law. The examination of non-canonical figures who were nevertheless important in their time reveals the continued role of natural law as positive law expanded. The thesis is developed through the analysis of figures in areas where natural law was significant: Jurisprudence; the Law of Nations or International Law; and Spiritual Life. Jurisprudence was the area in which theorists of natural law mounted direct opposition to the theories of Jeremy Bentham, John Austin, and John Stuart Mill. The writers investigated include Charles Foster, an early nineteenth century proponent of natural law through his writings and lectures; the Scotsman, James Lorimer, writer and lecturer on jurisprudence and law of nations; and the Irish Catholic lawyer Denis Caufeild Heron. In International Law the advocates of natural law theory were Robert Phillimore, judge of the High Court of Admiralty; Travers Twiss and George Bowyer as civil lawyers; and James Lorimer. Writers on Natural Law in Spiritual Life, included Henry Drummond, lecturer and ecclesiast; George Combe, phrenologist; and John Seeley, historian; who were in conflict with churchmen over the church’s exclusive right to interpret religious teaching and the appropriate relationship between natural law and religion. v ACKNOWLEDGEMENT I would like to express my enormous gratitude to my Supervisor Assoc. Professor Andrew Fitzmaurice for all his guidance, enthusiasm, advice and patience throughout my candidature. His constructive advice, wide knowledge of sources and regular meetings helped to keep me on track and challenged me to develop a keen interest in intellectual history. Thanks also to Assoc. Professor Chris Hilliard for his input and moral support during difficult times, along with help and advice from many members of the History Department of the University of Sydney. I would also like to thank my wife Sally for her editing, along of course with her support throughout my thesis writing. I would also like to thank my family who have encouraged me along the way and put up with my preoccupation with researching and writing. vi I dedicate this thesis to the memory of my father, John Joseph Costello, who saw much of its preparation but sadly passed away in 2012 before its completion. 1 SECTION A: ISSUES OF NATURAL LAW AND RIGHTS INTRODUCTION My thesis uncovers a vibrant natural law discourse in nineteenth-century Britain. It uncovers this nineteenth century natural law tradition through an examination of a spectrum of non-canonical jurists, philosophers, and religious thinkers. While now often ignored, these figures had an important role in Victorian society. In evaluating the intellectual tenor of the nineteenth century, historians have tended to focus on canonical figures such as Jeremy Bentham (1748–1832), John Austin (1790–1859), and John S. Mill (1806–73), writers who were hostile to the natural law tradition. In so doing they have obscured the presence of a more broadly based continued acceptance of the role of natural law and natural rights theories. My focus on non-canonical figures leads to a very different understanding of Victorian thought concerning natural law and natural rights.1 The figures I consider were by no means insignificant and have generally been examined for reasons of jurisprudence, international law or their social or religious influence. The study of British natural law is of particular interest because it addresses a considerable degree of controversy over the nature and development of the growth of British law in general, particularly in the nineteenth century. Many historians have argued that, in the nineteenth century, the natural law theories which reached their peak in the Enlightenment weakened during a period of high nationalism and positivism, only for them to reappear after the reaction to the Second 1 Duncan Bell also observes that many historians of political theory ‘have tended to focus on canonical figures’, see Duncan Bell, Victorian Visions of Global Order : Empire and International Relations in Nineteenth-Century Political Thought, Ideas in Context ; 86 (Cambridge ; New York: Cambridge University Press, 2007). 3. 2 World War and the Holocaust in the form of the 1948 Declaration of Universal Human Rights. Where historians such as Anthony Pagden, Jeremy Waldron and Sankar Muthu subscribe to this claim, Mark Mazower and Samuel Moyn now question the argument that the human rights discourse post-World War Two was a reaction to the Holocaust, although they too subscribe to the view that natural law was buried by nineteenth-century nationalism and positivism,2 I will challenge this narrative and argue that natural law and rights not only survived the nineteenth century in Britain but, that evidence reveals a new discourse based on a meld of high enlightenment ideals and a far more prudent and pragmatic understanding of natural law and natural rights, Britain is the most challenging context within which to test this hypothesis because it was in Britain that positivist philosophers such as Bentham and Austin and historicists such as Henry Sumner Maine and John Westlake made the most strident attacks on the natural law and rights tradition. The perception that the idea of natural rights was all but extinguished from the early nineteenth century to World War Two leads us to a view of the 1948 Declaration of Human Rights as a sudden and transforming event, whereas it could be perceived to have been built on a long nineteenth-century tradition. Moreover, the complexity of that tradition may change our understanding of twentieth-century rights. A failure to take account of this nineteenth-century natural law tradition results in an incomplete understanding of the basis on which historical choices were made, and equally 2 See Samuel Moyn, The Last Utopia: Human Rights in History. (Cambridge, Mass. : Belknap Press of Harvard University Press, 2010); Mark Mazower, “The Strange Triumph of Human Rights, 1933-1950” in The Historical Journal, 47, 2 (2004), pp. 379-398. 3 importantly, were not made.3 The natural law tradition which I uncover in nineteenth- century Britain drew upon medieval, Enlightenment, and ‘modern’ theories of natural law but was, at the same time, a new formulation and melange of what natural law had been, incorporating nineteenth-century influences including positivism and the historical school. The argument of my thesis draws on a variety of natural law theorists from three areas in which natural law played a significant role in nineteenth-century British thinking: ‘Jurisprudence’; ‘International Law’; and ‘Spiritual Life’. While each area provided controversies, those of Jurisprudence and International Law were primarily jural, while Spiritual Life was almost exclusively focussed on moral and ecclesiastical issues. Each area is rich in evidence of non-canonical figures who, throughout the century, believed in the relevance of natural law to their field of influence.