Joseph Story was one of the great legal scholars of Madison's day. He was a chaired professor at the Harvard Law school and wrote famous Commentaries on the Constitution which served as the textbook for his course on Constitutional law. One area that Story spent much time developing was the relationship between natural law and positive law. Natural laws, are those laws that exist in nature without being authored by man, where as positive law are those laws which are authored by man, such as laws passed by Congress and interpreted by the Supreme Court. Joseph Story defined natural law as “that system of principles, which human reason has discovered to regulate the conduct of man in all his various relations”. Thus, natural laws are not subject to man's reason or interpretation of his surroundings. These laws according to Story do not change, they were fixed in place by God. Natural law is universally binding on mankind, just as those unalienable rights of "Life, Liberty, an the Pursuit of Happiness". Positive law, or man-made law derives from natural law and is subordinate to it. Any man-made law that is in conflict with natural law and as is with the teaching of St. Augustine is no law at all. Joseph Story's philosophy of law followed in this manner. An example of this would be "slave-trafficking". Story believed this to be in contrast to the principles of Christianity and morality, and therefore in violation of natural law.
With this philosophy, Joseph Story was an advocate of expanding federal jurisdiction. Joseph Story had a long relationship with Jefferson's Republican party serving in the state House of Representatives from 1805 to 1811 and then in the U.S. Congress form 1808 to 1809. In 1811, President James Madison appointed Joseph Story to the Supreme Court. During his tenure, Justice Joseph Story worked with Chief Justice John Marshall on establishing in plain view the powers which the Constitution had given the Supreme Court over the state courts and state legislation. In particular he argued that the Judiciary Act of 1789 authorized the federal courts to define and punish common law or natural law offenses. In 1816, Joseph Story enlisted the help of Representative Daniel Webster of Massachusetts to draft a Crimes Act that would give the Courts a more comprehensive jurisprudence over laws against nature. Story's original intent was to provide the courts with a common law approach, where crimes were would not have to be strictly enumerated. Joseph Story's original draft would have provided a fairly comprehensive criminal code but it failed to pass in the house. One of the main objections was the extension of the death penalty to crimes other than treason, rape and murder. Finally, in 1825 a Crimes act was passed but it was a very crippled version of the original draft posed by Joseph Story. The 1825 act did expand federal jurisdiction by providing it with exclusive jurisdiction over laws such as arson and crimes on federal property. It also defined crimes on the high seas, and crimes of public corruption. But it failed to give the federal courts the power to punish natural law offenses.
Like Story and Webster President James Madison wanted to grant the courts expanded jurisdiction. In his 1816 annual address, Madison encouraged Congress to investigate what legislation might be necessary to expand the federal jurisdiction in defining penalties for offenses that are defined in the constitution but without designated penalties, and to redefine those penalties which may require a more lenient penalty. It is not clear that Madison was encouraging Congress to consider Joseph Stories work on defining such an act, but given the relations between James Madison, Joseph Story and Daniel Webster, it is quite likely. Here is an excerpt from James Madison's 1816 State of the Union address on the topic.
"Occurrences having taken place which shew that the statutory provisions for the dispensation of criminal justice are deficient in relation both to places and to persons under the exclusive cognizance of the national authority, an amendment of the law embracing such cases will merit the earliest attention of the Legislature. It will be a seasonable occasion also for inquiring how far legislative interposition may be further requisite in providing penalties for offenses designated in the Constitution or in the statutes, and to which either no penalties are annexed or none with sufficient certainty. And I submit to the wisdom of Congress whether a more enlarged revisal of the criminal code be not expedient for the purpose of mitigating in certain cases penalties which were adopted into it antecedent to experiment and examples which justify and recommend a more lenient policy."
Natural Law and Slavery
One of the areas that could fall under the expanded jurisprudence of the federal courts was the institution of slavery. Early on, Webster argued that humility before God and honoring justice would require men to oppose slavery. Webster and Story seemed to have the common belief that Congress did not need to create laws to end slavery, but since slavery was opposed to natural law, it could be abolished without Congress lifting the pen. James Madison, himself was a slave owner, yet had come to see slavery as a dirth on society and against natural law. Like Joseph Story and Daniel Webster, he did not urge Congress to take any action to legislate against it. That is with the exception of the slave trade which had already been outlawed by Great Britain. Nevertheless, the world itself was changing and America had to change with it. America had to abolish slavery, that was not a question, but how, that was the question. Perhaps, like Joseph Story and Daniel Webster, James Madison believed that some day the court system could do away with slavery through the enforcement of natural laws. Unfortunately, this way of thinking led to a belief in the gradual and incremental eradication of slavery and many compromises between the opponents and proponents of Slavery, and Daniel Webster himself would become a key player in them.
http://www.heritage.org/research/reports/2014/02/joseph-story-the-natural-law-and-modern-jurisprudence
http://www.pbs.org/wnet/supremecourt/personality/robes_story.html
https://en.wikipedia.org/wiki/Joseph_Story
https://en.wikipedia.org/wiki/Crimes_Act_of_1825
http://americanrtl.org/daniel-webster-slavery-and-compromised-incrementalism
http://lexchristianorum.blogspot.com/2010/03/st-augustine-of-hippo-on-natural-law.html
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