Blackstone’s Commentaries on the Laws of England

by

Jack W. Brown, Ph.D.

July, 2003

   Sir William Blackstone’s Commentaries is viewed as the preeminent display of legal reasoning and writing of the previous two hundred years. The clarity of the work so inspired the “founding fathers” of the United States that a plethora of the ideals formulated and solidified in Blackstone’s text traveled freely into the bosom of the United States Constitution, penned a mere two decades following the emergence of Sir William’s publications. The breadth of research and simplicity of reasoning displayed by Blackstone as he earnestly constructed his work to aid the English population in comprehending their immense legal system is revered for the realization that not only did his work allow for the preservation of the freedom of English citizens, but for Americans as well.

     Blackstone’s Commentaries cover a vast range of legal ground. He separated the law as he saw it into four specific volumes. “Book The First” focuses on the ‘rights of persons.’ He specifically addresses the “absolute rights” of individuals, the relations between husbands and wives, masters and servants, parents and children, corporations and the rights and duties of the royal family. “Book The Second” focuses on the “rights of things.” Here he discusses the rules of titles, tenancy, and devotes a large portion to the idea of ‘property.’ “Book The Third” focuses on “private wrongs.” It is in this volume that one finds the designation of “civil injuries.” Blackstone defines these as “an infringement or privation of the private or civil rights belonging to individuals; considered individuals…”[1] “Book The Fourth” details rules of law governing “public wrongs.” This book is an in-depth view into the means and motivations of crimes and their punishments as they apply to the citizens of England. The first and fourth books, as concerns criminal justice, have traditionally been accorded special merit. Therefore, the majority of this analysis is centered on the intricacies and applicability of the information presented in these two volumes.

     England’s common law, which, until Blackstone’s codification, had been solely handed down from one generation to the next via tradition, existed at the time in the form of lex non scripta. Basically, nothing was written down in a universally recognized, understood and accepted format. The Commentaries, Sir William imagined, would change this precarious situation and allow for the positive development of the securing of freedoms for his fellow citizenry. Sir William held the opinion that the law is “a science, which distinguishes the criterions of right and wrong;…”[2] It “is universal in its use and extent, accommodated to each individual, yet comprehending the whole community.”[3] He also echoes a stern historical warning by informing the reader that one would be very wise to trace the origins of law to their rightful places, notably “the codes of the northern nations on the continent, and more especially to those of our own Saxon princes; to the rules of the Roman law …left here by Papinian or imported by Vacarius.”[4] 

     Blackstone solidified the point that law is a rule of action prescribed by a superior which an inferior is bound to obey. Instilling the dominant religious beliefs of his time, Sir William specifically addressed the idea that mankind

           “must necessarily be subject to the laws of his Creator, for he is entirely a dependent being. A being, independent of any other, has no rule to pursue, but such as he prescribes to himself; but a state of dependence will inevitably oblige the inferior to take the will of him on whom he depends as the rule of conduct;…”[5]

     The importance of this passage is that it addresses the behavior of citizens on an individual as well as a collective basis, such as in society. Blackstone continues to develop this line of reasoning when he puts forth that God “has laid down only such laws as were founded in those relations of justice that existed in the nature of things antecedent to any positive precept.”[6] Therefore, all positive (man-made) law must conform to the law of nature, or it is found to be invalid. Sir William further relates that God has “graciously reduced the rule of obedience” to one “paternal” precept, which is “that man should pursue his own true and substantial happiness.”[7] It is here that one finds the line of reasoning that any human act that hinders man’s pursuit of happiness is unreasonable in the eyes of the Creator; therefore, such acts are afoul of nature and said to be mala in se.

     In order to correct, for lack of a better term, the behavior of God’s creatures once gathered into society, the emergence of positive law was necessitated. Blackstone addresses this issue by succinctly stating that “legislature…is the greatest act of superiority that can be exercised by one being over another.”[8] It is here that Blackstone saw the foundation of the state, commonly referred to as sovereignty. The power held by the sovereign allows for the ‘making of laws- commanding what is right and prohibiting what is wrong.’ Sir William, at this point in his writings, begins to delve into laws designated as lex scripta, or “written law.”

     Sir William saw the main strength of positive law as two-fold: First, law is the perfection of reason; therefore, anything unreasonable is not law. Second, and of extreme importance, the force of a law is only viable in the reasonableness of the penalty affixed to it. Without reason in the creation and viability in its enforcement, laws are rendered mute and powerless. Blackstone further annotates positive law when he writes that “statutes are either declaratory of the common law, or remedial of some defects therein.”[9]

Here Blackstone reiterates the importance of legal precedent while simultaneously acknowledging that common law needs to be developed and molded to the societies within which God’s creatures presently find themselves to dwell. Logic denied is happiness proscribed.

     Blackstone identified ‘public wrongs’ as “crimes and misdemeanors.” The principal direction of society, Sir William believed, was to assure “the protection of individuals in the enjoyment of…absolute rights, which are vested in them by the immutable laws of nature; but which could not be preserved in peace without that mutual assistance and intercourse, which is gained by the institution of … social communities.”[10] Continuing his discourse on rights, Sir William covers what Americans know as some of their most coveted constitutional rights, those of “due process,” “Habeas corpus,” and the prohibition of the imposition of “excessive bail” and “cruel and unusual punishments.”

     As regards the aforementioned “protection of individuals,” Sir William writes that “in proportion to the importance of the criminal law ought also to be the care and attention of the legislature in properly forming and enforcing it.”[11] Once again Blackstone is subtly addressing “reason” and its importance in the development and success of positive laws. Although subtle in some instances, Sir William is definitive in others, as when he distinctly states: "When the reason ceases upon which a law was founded, it should be done away with.”[12] For any law to stand the test of reasonableness, as well as the coveted ‘test-of-time,’ Sir William is adamant in stating that it “should be founded upon principles that are permanent, uniform, and universal; and always conformable to the dictates of truth and justice, the feelings of humanity, and the indelible rights of mankind…”[13]

      Just as the creation of a law which is found to be based upon unreasonable principles is found to be of no merit, the deliverance of punishment for violating valid law is afforded no less degree of scrutiny. For punishment to be lawful, notes Sir William, it must withstand scrutiny from the society upon which it is consistently inflicted. Sir William confirms the basic reasoning behind a sovereign inflicting punishment (harm) on citizens when he states: “The lawfulness, therefore, of punishing such criminals is founded upon this principle, that the law by which they suffer was made by their own consent, it is a part of the original contract into which they entered, when first they engaged in society.”[14]  Similar to a discussion on basic parenting concepts, Sir William flatly states that “punishments are intended chiefly for the prevention of future crimes.”[15] 

     Crimes and misdemeanors against private subjects, notes Sir William, fall into three distinct, yet equally important classifications: “against their persons, their habitations, and their property.”[16]  He goes on to detail that “of crimes injurious to the persons of private subjects, the most principal and important is the offence of taking away that life which is the immediate gift of the great Creator; and of which therefore no man can be entitled to deprive himself or another.”[17]  In this passage, Sir William touches on one of, if not the, greatest continuing legal debate in American jurisprudence- that of the legality, to say nothing of deterrent reliability or expedience, of capital punishment as a result of conviction for the killing of another human being.

     The beauty of the English law, as Sir William saw it when he took to composing the Commentaries, as compared to law of foreign countries, is that “the species of punishment is ascertained for every offence; and that it is not left in the breast of any judge, nor even of a jury, to alter that judgment, which the law has beforehand ordained,…”[18] In other words, the public is provided a ‘level’ playing field. There are no wicked punishments awaiting the unwary or the unwise who might find themselves at the mercy of a system of law that knows no favorite.

     Sir William’s personal all-encompassing logic, as to the benefit and therefore beauty of the universal applicability of law to his fellow Englishmen, is possibly best displayed when he writes:

From the whole of this detail we may collect, that however in times of ignorance and superstition that monster in true policy may for a while subsist, of a body of  men, residing in the bowels of a state, and yet independent of its laws; yet, when  learning and rational religion have a little enlightened men’s minds, society can  no longer endure an absurdity so gross, as must destroy its very fundamentals. For by the original contract of government, the price of protection by the united force of individuals is that of obedience to the united will of the community. This united will is declared the laws of the land: and that united force is exerted in their due and universal execution.[19] 

In this passage one gets a glimpse of the fire and fortitude that possessed one man to compose such a universally revered work of research and philosophy. Indeed, one does not reach too far to say, especially as concerns the ‘Introduction,’ that Sir William’s writing, when viewed from afar, stands as a truly beautiful display of the power of the human mind to communicate over distances measured by time and between peoples measured by the success of the continuing freedom of generations.

     Sir William Blackstone’s Commentaries on the Laws of England covered such vast legal wilderness that multiple centuries have passed and still learned scholars investigate and debate the meanings of his four volumes. The quantity of the work in itself is enough to humble even the most advanced scholar. Indeed, his work can easily be classified as a legal revolution. His “books” were more than a mere overview of legal possibilities. Blackstone, in distinct language, issued the “rules” of the game. He logically developed the players (mankind and his Creator), he carefully explained the boundaries (reason and its part in the creation and removal of laws), he freely revealed the object of attention (the books of law), he explicitly detailed the penalties for exceeding the boundaries (punishment, both its means and its ends), and he displayed the beauty of winning and the terror of losing to the winner and the loser (civil society, along with its duties, rights and liberties; and the removal of life, via capital punishment). Sir William Blackstone’s work stands, and will continue to stand, as one of the most important contributions to civil society in the history of mankind.       

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