Richard Cumberland and Natural Law

Source: Richard Cumberland, A Treatise of the Laws of Nature, translated, with Introduction and Appendix, by John Maxwell (1727), edited and with a Foreword by Jon Parkin (Indianapolis: Liberty Fund, 2005).

FOREWORD BY JOHN PARKIN

The seventeenth century witnessed what has been called the “heroic” period in the development of modern natural law theory.1 Beginning with Hugo Grotius, Protestant thinkers began to experiment with scholastic natural law ideas to produce a distinctive and highly successful tradition of natural jurisprudence that would come to dominate European political thought. Viewed from the eighteenth century, the success of the tradition could be, and often was, taken for granted, but such retrospective views could often conceal the extent to which the early pioneers faced real challenges in their attempts to reconcile natural law ideas with the rigors of Protestant theology. In this context, Richard Cumberland is perhaps one of the great unsung heroes of the natural law tradition. Cumberland’s De Legibus Naturae constituted a critical intervention in the early debate over the role of natural jurisprudence at a moment when the natural law project was widely suspected of heterodoxy and incoherence.

Hugo Grotius’s work undoubtedly generated a great deal of interest among Protestant thinkers, but it also occasioned a critical response that threatened to undermine the whole project. The most dangerous writer in this respect was Thomas Hobbes. Hobbes simultaneously adapted and subverted the new jurisprudence, producing a theory that would become notorious for its apparent atheism and absolutism. As a result, early natural law writers were dogged by accusations of Hobbism, the charge that behind their attempts to forge a new tradition lay the reduction of moral and political obligation to self-interest alone. Cumberland’s De Legibus Naturae, with its sustained assault on Hobbes’s ideas, constituted one of the most important and influential responses to this damaging accusation. Cumberland not only produced one of the most effective critiques of Hobbes’s ideas, but he also used the opportunity to propose a new and distinctively scientific approach to questions of moral and political obligation. Cumberland’s achievement was to provide a much-needed defense of the natural jurisprudential project while laying important theoretical foundations for the work of such later writers as Clarke, Shaftesbury, and Hutcheson.2

Richard Cumberland (1632–1718)3

Cumberland was born in London, the son of a Salisbury Court tailor. He attended St. Paul’s School, and in June 1649, barely five months after the execution of Charles I, he entered Magdalene College, Cambridge. At Magdalene, Cumberland supplemented his regular studies with a rich diet of natural philosophy, developing the scientific knowledge that informs almost every page of the De Legibus. Cumberland’s interest in the new science was crucial to his natural law theory; the union of natural philosophy and natural theology created the basis for his science of morality and his logical demonstration of divine obligation.

Cumberland left Cambridge after receiving his master of arts in 1656, becoming rector of the small Northamptonshire parish of Brampton Ash in 1658. This rural posting might have marked the end of Cumberland’s significance, but in 1667 he became a client of, and possibly domestic chaplain to, Sir Orlando Bridgeman, formerly lord chief justice of the Common Pleas and now in 1667 newly appointed lord keeper of the Great Seal.4 An ex-Magdalene man himself, Bridgeman employed a number of Cumberland’s colleagues, including Cumberland’s friend Hezekiah Burton. It is likely that Burton’s recommendation secured Cumberland’s new and politically important patronage.

The connection with Bridgeman placed Cumberland at the center of English politics in the later 1660s and led directly to the publication of De Legibus Naturae. During this period, Bridgeman sponsored Hezekiah Burton and another of Cumberland’s friends, John Wilkins, in their attempts to construct a religious compromise with Presbyterian nonconformists. Although the negotiations ultimately failed, the discussion of the role of natural law in such a settlement formed the immediate political context to Cumberland’s work on the subject. In 1670, Bridgeman established the newly married Cumberland in comparatively affluent livings in Stamford, enabling him to complete De Legibus Naturae. Burton supervised the publication of the work, which was dedicated to Bridgeman. The book was published in the spring of 1672.

The same year would see Bridgeman resign in protest at Charles II’s decision to issue the Declaration of Indulgence, suspending the penal laws against Catholic and Protestant dissenters. Cumberland appears to have survived his patron’s fall, devoting himself to his parochial duties. In 1680 he proceeded to a doctorate at Cambridge University. His thesis maintained (against the Roman Catholic position) that St. Peter had no jurisdiction over the other apostles and (against the nonconformist position) that separation from the Anglican Church was schismatic.5 In the 1680s, Cumberland produced two works. The first was a pamphlet dedicated to his school friend Samuel Pepys, by this time president of the Royal Society, entitled An Essay Towards the Recovery of Jewish Measures and Weights (1686). The Essay, originally designed as an appendix to a new edition of the Bible, was widely respected for its scholarship. During the same time, Cumberland also produced Sanchoniatho’s Phoenician History in manuscript. This work claimed to find the sources of Roman Catholic idolatry in the Phoenician corruption of sacred history. The anti-Catholic bias of the work was such that, on the eve of the Glorious Revolution of 1688, Cumberland’s publisher felt that the manuscript was too inflammatory to be released. The book appeared posthumously, in 1720.

In the wake of the revolution, Cumberland was called upon to replace the nonjuring bishop of Peterborough, Thomas White.6 Cumberland was consecrated in July 1691, at age fifty-nine. From this time until his death, Cumberland administered his diocese diligently but with declining efficiency as old age took its toll. He attended the House of Lords regularly until 1716, a loyal Whig supporter of Archbishop Tenison. Intellectually, Cumberland busied himself with studies in ancient chronology. He died after suffering a stroke on October 9, 1718.7

De Legibus Naturae

De Legibus Naturae was a theoretical response to a range of issues that came together during the later 1660s. The immediate political circumstances were English debates over the toleration of religious dissent. Cumberland’s Latitudinarian friends sought to reach an accommodation with moderate nonconformists based upon an appeal to natural law ideas.8 If the nonconformists could accept that the magistrate had a natural right to regulate adiaphora (religious ritual not prescribed by Scripture), intractable theological disputes might be avoided, which would open the way for accommodation within the church. The negotiations failed, resulting in the rise of more strident demands from dissenters for a pluralist, toleration-based settlement. For some Latitudinarian Anglicans, notably Samuel Parker, such demands were unacceptable. For Parker, natural law required nonconformists to submit to the legal requirements imposed by the sovereign for the common good. Parker’s illiberal use of the natural law argument soon attracted accusations that he was following the arguments of Thomas Hobbes. Notoriously, Hobbes’s political theory had appeared to pay lip service to the obligations imposed by natural law, whereas in practice vesting all practical authority in the hands of an arbitrary and absolute sovereign. Although Parker and others attempted to demonstrate that they were not Hobbists, their attempt to justify extensive sovereign power appeared to undermine their avowed commitment to natural obligation. By the time Cumberland began to write De Legibus Naturae, there was a clear need to separate the Anglican use of the natural law argument from Hobbes’s account. Such a project required a decisive attack upon Hobbes’s subversive natural law theory, but it also provided an opportunity to demonstrate the character of the obligation to natural law. Cumberland sought to do both in De Legibus Naturae.

The question of moral obligation lies at the heart of Cumberland’s treatise, and it was a question that created profound difficulties for Protestant natural law theorists.9 Protestant thinkers were skeptical about Grotius’s appropriation of scholastic ideas. John Selden in particular was scathing about the Dutchman’s apparent assumption that conclusions of reason alone could have the force of law. A law was properly the command of a superior, in this case God. How, then, could it be shown naturally that the conclusions of reason or empirically observed norms were the will of God and thus properly obligatory laws? Hobbes made the same criticism: If the laws of nature are simply rational theorems, then they are not properly laws at all and need the command of a superior to give them obligatory force. Hobbes’s deeply skeptical answer was that providing such obligatory force was the role of the sovereign, a position that potentially ruled out the possibility of divine moral obligation altogether.

Cumberland accepted the force of this critique but rejected Hobbes’s destructive conclusion, turning instead to a solution in dicated by Selden. Selden preferred to sidestep the problem by arguing that God had spoken directly to Adam and Noah; the natural law precepts delivered were handed down within the rabbinical tradition. His second, rather underdeveloped, suggestion was that individuals might be capable of apprehending God’s will more directly, but he was understandably reluctant to develop a theory that blurred the distinction between reason and command. Like many readers of Selden, Cumberland was less convinced by the first solution, but he saw the potential in the second argument.10

Cumberland’s optimism about Selden’s hint derived from two related sources. The first was the revaluation of man’s rational capacity encouraged by such Cambridge thinkers as Benjamin Whichcote and Nathaniel Culverwell, both of whom sought an enhanced role for reason and empirical observation in Protestant natural law discourse.11 The second major influence was Cumberland’s conviction that science might offer a more effective means of demonstrating both the contents and the obligatory force of the law of nature. At a time when Hobbes’s work appeared to suggest that the appliance of science undermined rather than supported the idea of obligatory natural law, Cumberland’s De Legibus would recover a godly role for natural philosophy.12

To this end, Cumberland deployed the latest scientific evidence to reject Hobbes’s narrow emphasis upon self-preservation as the beginning and end of natural obligation. Cumberland used evidence from “the nature of things” to show that an awareness of self-preservation is merely the starting point in developing an awareness of the natural duty of sociability. The logical consequence of such evidence is to reinforce the idea that individuals are bound, both by their limitations and their potentiality, to a common social good. Given that the pursuit of the common good results in a greater fulfillment of human nature than the narrow pursuit of individual self-interest, the pursuit of the common good presents itself as the logical priority for individuals, given that their own interests will be best served as a result. Such a proposition offered the prospect of a handy summary of the law of nature in one universal formula: Man’s proper action should be an endeavor to promote the common good of the whole system of rational agents.

Although Cumberland had derived this practical proposition from a scientific examination of the nature of things, he still needed to demonstrate that such a proposition could be considered the will of God. His solution to this problem, discussed at length in chapter 5 of De Legibus, is Cumberland’s most distinctive theoretical move. Cumberland argued that it was possible to identify the sanctions attached to the law of nature, namely the structures of reward and punishment that God had ordained for the observance and dereliction of the law of nature. Punishments take various forms, ranging from the traditional scourges of conscience through to the state of war, a natural punishment for unreasonable, Hobbesian behavior. Rewards include simple happiness through to the benefits of peace, prosperity, and security. Cumberland stressed that such sanctions are not in themselves the causes of moral obligation. They are merely clues indicating that the practical proposition concerning the common good is indeed the basic principle of God’s justice. The knowledge that such a proposition is God’s will gives the proposition the force of law. Cumberland’s theory of obligation risked the suggestion that God himself is bound by the laws of nature, but Cumberland avoided the implication by arguing that an essentially free God binds himself to the observance of the regularities in his creation. Although not an unproblematic solution, Cumberland’s scheme allowed a reconciliation between natural law and the requirements of Protestant theology, one of the many reasons for Cumberland’s profound in fluence upon later writers in the tradition.

The practical implications of Cumberland’s solution are scattered throughout the book but particularly in chapter 9, where the political implications of his argument are made clear. Having clarified the differences between Hobbes’s natural law theory and his own, Cumberland attempted to show that his position sustains a more durable account of sovereignty justified by the common good. The magistrate’s competence extends “universally to things divine and human, of foreigners and fellow-subjects, of peace and war.”13 Cumberland’s sovereign possesses extensive civil and ecclesiastical jurisdiction, all warranted by divinely ordained natural law. Paradoxically, one of Cumberland’s majorachievements was to demonstrate that an almost Hobbesian sovereignty could be part of an orthodox natural law theory.14

Reception

The reception of De Legibus gives some indication of its impact upon the natural law tradition. Cumberland’s thesis was particularly important for Samuel Pufendorf, whose De Jure Naturae et Gentium was published in the same year. Pufendorf was accused of Hobbism and in response deployed Cumberland’s arguments in his own defense. The second edition of De Jure Naturae (1684) included no fewer than forty references to De Legibus, reinforcing Pufendorf’s anti-Hobbesian credentials but also adding weight to his theory of obligation.15 In England it is perhaps no surprise to find Samuel Parker freely adapting the central argument of De Legibus in his Demonstration of the Divine Authority of the Law of Nature (1681). James Tyrrell, who had urged John Locke to publish something similar, produced an English abridgement of the work (with Cumberland’s approval) under the title A Brief Disquisition of the Law of Nature (1692). Cumberland’s combination of positive theory and anti-Hobbesian critique ensured that the work would continue to find an audience until the early eighteenth century. After that time, Cumberland’s ideas were developed by writers like Samuel Clarke; Anthony Ashley Cooper, third earl of Shaftesbury; and Francis Hutcheson; but the waning of the Hobbesian threat and Cumberland’s outmoded science made the book itself less urgent and rather dated to an audience that had become used to more sophisticated treatments of natural law.16

Editions

The original Latin edition was published by the Little Britain bookseller Nathaneal Hooke and seen through the press by Hezekiah Burton; but as Burton admitted in his address to the reader, the job was not well done.17 The text is littered with transcription errors allegedly perpetrated by an unnamed youth who did the typesetting. The first edition was licensed by Samuel Parker on July 25, 1671, and the work was advertised in the term catalogues in February 1671/72. As Linda Kirk has established, there are two variants of this edition, with slightly different definitions of the law of nature at the beginning of chapter 5.18 The possible significance of these differences is discussed in this edition in the notes to that chapter. A second edition of the Latin text was published in Lϋbeck and Frankfurt a.d.O. by Samuel Otto and Johann Wiedermeyer in 1683, followed by a third in the same places in 1694. A fourth edition of the Latin text, based upon the 1672 edition, was published in 1720 by James Carson in Dublin.

In terms of translations, Cumberland’s text was, as we have seen, adapted by Samuel Parker and James Tyrrell, whose Brief Disquisition went into a second edition in 1701. Cumberland’s work would have to wait until 1727 for a full translation into English, by John Maxwell, the text used in this edition. Maxwell was prebendary of Connor and chaplain to Lord Carteret, then lord lieutenant of Ireland. Maxwell’s preface makes it clear that his intention was to produce a full translation for the first time, given that Cumberland’s original Latin text was both difficult to acquire and complicated to read. Cumberland’s anti-Hobbism may have appealed at a time when Bernard Mandeville’s Fable of the Bees (1714, 1723) appeared to revive central Hobbesian arguments. Maxwell’s project was probably also occasioned by discussions of natural law inspired by Francis Hutcheson’s work. Hutcheson headed a private academy in Dublin during the early 1720s and developed his own natural law position in his Inquiry into the Original of Our Ideas of Beauty and Virtue (1725), a work critical of some aspects of Cumberland’s project but with clear debts to the argument of De Legibus. Maxwell was familiar with Hutcheson’s work and saw the latter’s project as a supplement to Cumberland’s own.19

Whatever the gains Maxwell hoped for, his Treatise of the Laws of Nature also registers considerable anxieties about the text. The translation comes with two introductory essays and lengthy appendixes by Maxwell, all of which are designed to head off wayward readings of Cumberland’s work.20 The opening essays, in particular, qualify Cumberland’s use of pagan philosophy, both by rejecting deist assumptions that might flow from such sources but also by asserting the importance of revelation in guiding the use of natural reason. The appendices carry out the same task with lengthy extracts from Samuel Clarke’s defenses of the immateriality of a thinking substance and Maxwell’s own essay on obligation, which reinforces the orthodox character of Cumberland’s theory of obligation. Cumberland’s work, so advanced for its own time, contained rather too many hostages to fortune to be published on its own in the very different world of the 1720s.

The next major translation of Cumberland’s work produced what is undoubtedly the best edition of De Legibus, Jean Barbeyrac’s Traité Philosophique des Loix Naturelles, published in Amsterdam in 1744. Barbeyrac was able to obtain a transcript of Cumberland’s manuscript alterations, together with Richard Bentley’s corrections,21 and these were incorporated into extensive notes, together with commentaries on the text and even on Maxwell’s English translation. As a critical edition, Barbeyrac’s work is an astonishing feat of scholarship, an essential starting point for a modern editor.

The last edition of Cumberland’s work was produced in Dublin in 1750 by John Towers. Towers produced a new but rather wayward translation and annotation inferior to Maxwell’s earlier attempt. Towers also included considerable ancillary material, including translations of prefatory addresses that Maxwell had left out. These pieces have been included in appendixes 1 and 2 of this edition.

[1. ]For discussion of the “modern” theory of natural law, see Tuck, Natural Rights Theories: Their Origin and Development (1979), and also his “The ‘Modern’ Theory of Natural Law” (1987), 99–122. For more recent discussions of the same tradition, see Haakonssen, Natural Law and Modern Philosophy (1996); and Hochstrasser, Natural Law Theories in the Early Enlightenment (2000).

[2. ]For Cumberland’s contribution to the natural law tradition, see Parkin, Science, Religion and Politics in Restoration England: Richard Cumberland’s “De Legibus Naturae” (1999), especially ch. 7; Kirk, Richard Cumberland and Natural Law (1987); Haakonssen, “The Character and Obligation of Natural Law According to Richard Cumberland” (2001), pp. 29–47; Schneider, Justitia Universalis (1967), pp. 166–75; Darwall, The British Moralists and the Internal “Ought” (1995), pp. 80–108; and Schneewind, The Invention of Autonomy (1998), pp. 101–17. For Cumberland’s influence upon Scottish Enlightenment thought, see Forbes, “Natural Law and the Scottish Enlightenment” (1982), pp. 186–204. See also Forbes, Hume’s Philosophical Politics (1975), pp. 18–26; Moore and Silverthorne, “Gerschom Carmichael and the Natural Jurisprudence Tradition in Eighteenth-Century Scotland” (1983), pp.73–88.

[3. ]The main source for Cumberland’s life is a short biography written by his sonin-law Squire Payne: “Brief Account of the Life . . . of the Author,” prefaced to Cumberland’s Sanchoniatho’s Phoenician History (1720). Linda Kirk has produced the best modern account in “Richard Cumberland (1632–1718) and His Political Theory,” Ph.D. diss., University of London, 1976. Kirk’s discussion forms the basis for ch. 1 of her Richard Cumberland and Natural Law. Some additional information is provided in Parkin, Science, Religion and Politics, Introduction.

[4. ]The lord keeper of the Great Seal was the judicial officer appointed in lieu of the lord chancellor. As well as being the head of the legal side of the government and the senior judge in the Court of Chancery, the lord keeper authorized grants of offices, privileges, and royal charters. Virtually in distinguishable from the office of lord chancellor in theory and practice, the post was abolished in 1760. See G. E. Aylmer, The Crown’s Servants (2002), p. 18.

[5. ]Squire Payne, “Brief Account,” p. ix; Cambridge University Library Grace Book, Supplicats 1677–80.

[6. ]The nonjurors were the eight bishops and some four hundred priests who, because of their belief in the divine right of kings, continued to see the Stuarts as the legitimate monarchs and hence refused to take the oath of allegiance to William and Mary.

[7. ]Payne, “Brief Account,” p. xxvi.

[8. ]For a discussion of the political context, see Parkin, Science, Religion and Politics, ch. 1.

[9. ]Ibid., ch. 2.

[10. ]See below, Cumberland’s “Introduction,” sect. III.

[11. ]Parkin, Science, Religion and Politics, ch. 2, especially pp. 72–87; see also Haakonssen, “Moral Philosophy and Natural Law: From the Cambridge Platonists to the Scottish Enlightenment” (1988), pp. 97–110.

[12. ]For discussion of Cumberland’s science, see Parkin, Science, Religion and Politics, chs. 4–6; Forsyth, “The Place of Richard Cumberland in the History of Natural Law Doctrine,” pp. 23–42; Stewart, The Rise of Public Science: Rhetoric, Technology and Natural Philosophy in Newtonian Britain 1660–1750 (1992), pp. 37–39.

[13. ]Ch. 9, sect. VIII.

[14. ]Kirk, Richard Cumberland, ch. 4; Parkin, Science, Religion and Politics, ch. 1, pp. 48–55.

[15. ]For discussion of Pufendorf’s critics, see Palladini, Discussioni Seicentesche su Samuel Pufendorf (1978), pp. 99–122, and Haakonssen, Natural Law and Modern Philosophy, pp. 43–46. For Cumberland’s influence, see Kirk, Richard Cumberland, ch. 5; and Parkin, Science, Religion and Politics, ch. 7. For another view, see Palladini’s discussion in Samuel Pufendorf: Discepolo di Hobbes (1990).

[16. ]For Cumberland’s impact upon these writers, see Kirk, Richard Cumberland, chs. 5 and 6. For Cumberland’s place in the wider tradition, see Darwall, The British Moralists and the Internal “Ought”; and Schneewind, The Invention of Autonomy.

[17. ]A translation of Burton’s “Alloquium ad Lectorem” (Address to the Reader) is reproduced as an appendix to this edition.

[18. ]Kirk, Richard Cumberland, ch. 2.

[19. ]Ibid., ch. 6.

[20. ]Maxwell borrowed most of this material from Richard Brocklesby’s An Explication of the Gospel—Theism and the Divinity of the Christian Religion (1706). On some copies Maxwell acknowledged his debt to the obscure Brocklesby on the title page, but the most common state of the work lacks any reference to the earlier writer.

[21. ]Cumberland’s son Richard had supplied Bentley with his father’s interleaved copy (Trinity College, Cambridge, MS. adv.c.2.4), containing Cumberland’s own revisions for future publication of a corrected Latin edition. The project never came to fruition. For Barbeyrac’s account of how he came by this material, see his Traité Philosophique des Loix Naturelles (1744), pp. v–viii.

SELECTED BIBLIOGRAPHY