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Sovereignty and Liberty in William Blackstone's Commentaries on the Laws of England

Published online by Cambridge University Press:  09 June 2010

Howard L. Lubert
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Abstract

In this reading of William Blackstone's Commentaries the jurist is neither a conservative promoter of arbitrary power nor a modern liberalizer of the common law. He is a proceduralist who emphasizes due process of law as the way to reconcile political liberty with parliamentary sovereignty. Blackstone's jurisprudence reflects a particular reading of political history, one that sees Parliament at the forefront of the protection of English liberties. While the legislature is capable of tyranny, it is in the king and the courts that historically he finds the greatest examples of arbitrary rule. And it has been the exercise of parliamentary sovereignty that has reinstated and guarded due process—in particular, habeas corpus—thereby preserving and facilitating public liberty.

Type
Research Article
Information
The Review of Politics , Volume 72 , Issue 2 , Spring 2010 , pp. 271 - 297
Copyright
Copyright © University of Notre Dame 2010

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References

1 See Lutz, Donald, “The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought,” American Political Science Review 78 (1984): 189–97CrossRefGoogle Scholar.

2 Glendon, Mary Ann, Rights Talk: The Impoverishment of Political Discourse (New York: Free Press, 1991), 23Google Scholar. See also Alschuler, Albert W., “Rediscovering Blackstone,” University of Pennsylvania Law Review 145 (November 1996): 4–19CrossRefGoogle Scholar; Nolan, Dennis, “Sir William Blackstone and the New Republic: A Study of Intellectual Impact,” Political Science Reviewer 6 (Fall 1976): 283–322Google Scholar; Boorstin, Daniel, The Mysterious Science of the Law (Cambridge, MA: Harvard University Press, 1941), 3Google Scholar.

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5 References to Blackstone's Commentaries on the Laws of England will be made parenthetically and abbreviated as Comm. References are based on the first edition (University of Chicago Press, 1979) and retain the original spelling. Citations are to volume and page number. Italicized quotations are in the original unless otherwise noted. Readers might compare his view of the dominion status of the American colonies with that of John Adams. See, e.g., Novanglus, nos. 7 and 8, in The Works of John Adams, ed. Charles Francis Adams, vol. 4 (Little and Brown, 1851).

6 Thomas Jefferson to Horatio G. Spafford (17 March 1814), in The Writings of Thomas Jefferson: being his autobiography, correspondence, reports, messages, addresses, and other writings, official and private (Washington, D.C.; Taylor and Maury, 1853–1854), 6: 340.

7 Wilson, James, “Of the General Principles of Law and Obligation,” in The Works of James Wilson, ed. McCloskey, Robert G. (Cambridge, MA: Harvard University Press, 1967), 1:105Google Scholar, and his opinion in Chisholm v. Georgia at 2 U.S. (2 Dall.) 419 (1793). But compare Alexander Hamilton, who quotes Blackstone on natural law. See The Farmer Refuted (1775), in The Papers of Alexander Hamilton, ed. Henry Cabot Lodge, vol. 1 (New York: G. P. Putnam's Sons, 1904).

8 Hart, H. L. A., “Blackstone's Use of the Law of Nature,” Butterworths South African Law Review 3 (1956): 169–74Google Scholar; Lucas, Paul, “Ex Parte Sir William Blackstone, ‘Plagiarist’: A Note on Blackstone and the Natural Law,” American Journal of Legal History 7 (April 1963): 156CrossRefGoogle Scholar. See also Lucas, Paul, “Blackstone and the Reform of the Legal Profession,” English Historical Review 77 (July 1962): 456–89CrossRefGoogle Scholar for the argument that Blackstone was motivated to write the Commentaries in order to help recruit English gentry to the study of law and ultimately into politics in order to preserve the social and political institutions of his day.

9 Stourzh, Gerald, “William Blackstone: Teacher of Revolution,” Jahrbuch für Amerikanstudien 15 (1970): 198Google Scholar. Another sympathetic treatment of Blackstone's use of the natural law is found in Finnis, John N., “Blackstone's Theoretical Intentions,” Natural Law Forum 12 (1967): 163–83Google Scholar.

10 Lieberman, David, “Blackstone's Science of Legislation,” Journal of British Studies 27 (April 1988): 142CrossRefGoogle Scholar. But in Lieberman's view, Blackstone's desire to protect the constitution from “incautious” legislation did not detract from his goal of promoting legal reform. Michael Lobban also finds Blackstone to be less conservative in his intentions, arguing that his effort to reconcile the common law with Roman (Institutional) jurisprudence was ultimately unsuccessful and led commentators to misconstrue his project as fundamentally conservative. “Blackstone and the Science of Law,” The Historical Journal 30, no. 2 (1987): 311–35; see also Cairns, J. W., “Blackstone, an English Institutist: Legal Literature and the Rise of the Nation State,” Oxford Journal of Legal Studies 4 (1984): 318–60CrossRefGoogle Scholar; Kennedy, Duncan, “The Structure of Blackstone's Commentaries,” Buffalo Law Review 28 (1979): 209–382Google Scholar; Watson, Alan, “The Structure of Blackstone's Commentaries,” Yale Law Journal 97 (April 1988): 795–821CrossRefGoogle Scholar.

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12 Carrese, Paul O., The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial Activism (Chicago: University of Chicago Press, 2003), 134, 150CrossRefGoogle Scholar.

13 One may object that Blackstone assumes the natural law would impose a moral constraint upon government. As I will explain shortly, however, Blackstone acknowledges that government might legislate in a manner contrary to natural law, and he argues that even laws contrary to natural justice are binding on subjects.

14 In liberal theory, of course, a distinction is drawn between the consensual basis of one's obligation to obey the law and the practical question of one's compliance with that law. At times this distinction is blurred in Blackstone's work. Compare Burke, Edmund, Reflections on the Revolution in France, ed. Pocock, J. G. A. (Indianapolis: Hackett, 1987), 15, 18Google Scholar.

15 James Wilson traces Blackstone's distinction to Samuel Pufendorf's Of the Law of Nations. See Wilson, “Of Municipal Law,” in The Works of James Wilson, 1:179. On Blackstone's use of Pufendorf, see Lucas, “Ex Parte Sir William Blackstone,” 150–51.

16 Blackstone additionally ascribes to law the attributes of permanence, uniformity, and universality. Properly speaking, the difference between a mere order and a law can be determined according to whether the prescribed rule of action incorporates these three attributes. A law must operate upon the community in general; by contrast, a rule prescribed by the sovereign to a particular subject is simply an order, or command. See Commentaries I, 44.

17 Alternatively, a contract is legally binding and enforceable, for it presumes the existence of a superior prior to the act of agreement.

18 According to Blackstone, the natural law is the only law to which all communities “are equally subject.” As I will demonstrate shortly, Blackstone's juxtaposition of the natural law with the idea of unlimited political power makes sense when we remember that because we are all equal before the natural law, that law, while morally binding, is legally unenforceable (but by God). Comm. I, 43.

19 According to Blackstone, natural law, in theory, resembles civil law, since it is prescribed by a superior (God) to mankind. Properly speaking, the rights we derive from God are inviolable. By granting man free will, however, God made man's enjoyment of rights tenuous. Man's free will, combined with his imperfect and corrupt reason as well as his natural condition of equality, reduces the natural law to a “rule of moral conduct” (Comm. I, 39, 40, 45, 54, 121).

20 Hansard Parliamentary Debates, 1st ser., vol. 16 (1813), 178.

21 See Locke's, Second Treatise, ed. Laslett, Peter (New York: Mentor Books, 1960), chaps. 11 and 19Google Scholar. Ernest Barker explains Blackstone's apparent inconsistency by arguing that Blackstone simply “allowed himself to be led by his reading of Pufendorf and Burlamaqui—and especially the latter—into the enunciation of a political philosophy which quarrelled sadly with his own later exposition of the actual law of the British constitution.” See Barker, , “Natural Law and the American Revolution,” in Traditions of Civility (Cambridge: Cambridge University Press, 1948), 278Google Scholar; Gough, J. W., Fundamental Law in English Constitutional History (Oxford: Oxford University Press, 1955), 188–91Google Scholar. Compare with Storing, Herbert J., “William Blackstone,” in Toward a More Perfect Union: Writings of Herbert J. Storing, ed. Bessette, Joseph M. (Washington, D.C.: AEI Press, 1995), 224–29Google Scholar.

22 Elsewhere, when Blackstone explains the nature of England's “mixed” constitution and the changes that would occur should the equilibrium of power between king, Lords, and Commons be lost, he writes that “such a change, however effected, is according to Mr. Locke (who perhaps carries his theory too far) at once an entire dissolution of the bands of government; and the people would be reduced to a state of anarchy, with liberty to constitute to themselves a new legislative power” (Comm. I, 52). Alternatively, Locke speaks of tyranny (tyrannical government) as “a worse condition than the state of nature” (Second Treatise, § 137).

23 At the same time, Blackstone is confident that the people will not be demeaned into a condition of servility (Comm. I, 238). See Storing, “William Blackstone,” 228–29.

24 Blackstone rejects the notion that the Convention could have eliminated the monarchy altogether. Moreover, while he suggests that the Convention “might have vested the regal dignity in a family entirely new,” he concludes that a strong adherence to custom dictated that the Convention not “depart any farther from the antient line than temporary necessity and self-preservation required” (Comm. I, 207).

25 It was a revolution in the original sense of the word. That is, it was an act of restoration. For an analysis that links Blackstone to an idealized pre-Norman constitution, see Richard Posner, “Blackstone and Bentham,” Journal of Law and Economics 19 (October 1976): 582–83. On the changing meaning of revolution, see Arendt, Hannah, On Revolution (New York: Viking Books, 1965), 13–52Google Scholar.

26 Hansard Parliamentary Debates, 1st ser., vol. 16 (1813), 178.

27 Hull, C. H., “Debates on the Declaratory Act and Repeal of the Stamp Act, 1766,” American Historical Review 17, no. 3 (1912): 568Google Scholar. The reference is to Coke's opinion in Dr. Bonham's Case (1610), from Coke's The Reports of Sir Edward Coke … of Divers Resolutions and Judgments … of Cases in Law…, volume 8, at 118. The citation would have been recognized by most members present. See Gough, Fundamental Law in English Constitutional History, 104–5, 111, 192–94.

28 While it is contested, it is also an idea that is increasingly common. Critics of the doctrine of parliamentary sovereignty reject the doctrine for historical and philosophical reasons. For criticisms of the doctrine on historical grounds (more relevant to this study), see Allan, T. R. S., Law, Liberty and Justice: The Legal Foundations of British Constitutionalism (Oxford: Oxford University Press, 1993)Google Scholar; Edwards, R. A., “Bonham's Case: The Ghost in the Constitutional Machine,” Denning Law Journal (1996): 63–90Google Scholar. For a comprehensive defense of the doctrine on historical grounds, see Goldsworthy, Jeffrey, The Sovereignty of Parliament: History and Philosophy (Oxford: Oxford University Press, 1999Google Scholar). For a brief summary of his argument, see Goldsworthy, , “The Myth of the Common Law Constitution,” in Common Law Theory, ed. Edlin, Douglas E. (Cambridge: Cambridge University Press, 2007), 204–29CrossRefGoogle Scholar.

29 Though obsolete by the middle of the eighteenth century, Blackstone was not alone in using the phrase “to vindicate … from” to mean “to set free” or “to deliver or rescue.” Both Burke and Hume, for example, used the phrase in a similar manner. See The Oxford English Dictionary, 2nd ed., s.v. “vindicate.”

30 Samuel Johnson's dictionary first defines “erroneous” to mean “wandering from the right road,” in addition to “mistaken.” Samuel Johnson, A Dictionary of the English Language, vol. 2 (London: 1765), s.v. “erroneous.”

31 For a response to Bentham's charge that in Blackstone's hands the hold of precedent became wholly subjective, see Cross, Rupert, “Blackstone v. Bentham,” The Law Quarterly Review 92 (October 1976): 518–20Google Scholar. See also Posner, “Blackstone and Bentham,” 589–606.

32 Blackstone explicitly refers to Coke's remarks in Bonham's Case, citing “8 Rep. 118.” Though the reference is to The Reports of Sir Edward Coke, Blackstone might well have used an extract of the case found in Viner, Charles, A General Abridgment of Law and Equity, Alphabetically Digested, 23 vols. (Aldershot: 1741–1751)Google Scholar.

33 Because judges can presume that legislators intend to pass reasonable and just laws, judges likewise should presume that statutes are reasonable (Comm. I, 86). Elsewhere Blackstone offers a tautological explanation in defense of statutory law over the common law. See Commentaries I, 76–77; Boorstin, The Mysterious Science of the Law, 109–36.

34 See Commentaries I, 70; Boorstin, The Mysterious Science of the Law, 25–30.

35 For a discussion of Burke and the idea of prescription, see Strauss, Leo, Natural Right and History (Chicago: University of Chicago Press, 1950), 296–300Google Scholar. See also Dickinson, H. T., “The Eighteenth-Century Debate on the Sovereignty of Parliament,” Transactions of the Royal Historical Society, 5th ser., vol. 26 (1976): 198–99CrossRefGoogle Scholar and the sources listed there at note 34.

36 See Commentaries I, 143.

37 See, for example, Dr. Samuel Johnson, “Taxation no Tyranny” (1775). For an illuminating discussion of the growth of the doctrine at this time, see Goldsworthy, The Sovereignty of Parliament.

38 “It can,” he writes, “in short, do everything that is not naturally impossible” (Comm. I, 156).

39 Elsewhere he refers to “the natural right of resistance and self-preservation,” which is invoked “when the sanctions of society and laws are found insufficient to restrain the violence of oppression” (Comm. I, 139). This right is one of the five auxiliary rights that “serve principally as barriers to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property” (Comm. I, 136, 139). See also Comm. I, 41, quoted above at page 9 and Comm. I, 206 (discussing “the rights of human nature” in the context of the Glorious Revolution).

40 See for example Comm. I, 50–51 where he refers to the three branches (or powers) of the legislature. See also Comm. I, 143 and 155.

41 In other words, the exercise of sovereignty is controlled by the checks and balances which the representation of distinct social orders provides. See Comm. I, 142–51. Indeed, Blackstone highlights the “three principal ingredients of good polity” which only the three estates combined can bring to legislative action (Comm. I, 50–51).

42 For the case that emphasizes the central importance of an independent judiciary to Blackstone's constitutionalism, see Carrese, Cloaking of Power.

43 The reference is to Montesquieu's Spirit of the Laws. Blackstone used the Nugent translation of 1750. See Montesquieu, Baron de, The Spirit of the Laws, trans. Nugent, Thomas (New York: Hafner, 1949), 1:151Google Scholar. Blackstone refers to this passage early in his text as well (Comm. I, 6).

44 “[E]very man in England,” he writes, “is, in judgment of law, party to the making of an act of parliament, being present thereat by his representatives” (Comm. I, 178). Thus in contrast to his earlier implication, consent does operate in the constitution, not in establishing the authority to govern but in its daily operation (and arguably thereby moderating it). For an acknowledgment that representation in the House of Commons is imperfect, see Comm. I, 166, quoted below at note 51.

45 Blackstone writes that “in the exertion of lawful prerogative, the king is and ought to be absolute; that is, so far absolute, that there is no legal authority that can either delay or resist him.” The prerogative, however, is limited, and he adds that “AFTER what has been premised in this chapter, I shall not (I trust) be considered an advocate for arbitrary power” (Comm. I, 243).

46 Although Blackstone usually means the king-in-Parliament when referring to Parliament, there are times when he uses the term in reference to the Lords and Commons alone. Typically this usage appears when he is describing efforts to rein in the king's power. See for example Comm. I, 123 and 249.

47 By placing such “reasonable checks and restrictions” on the prerogative, “our free constitution has … curb[ed] it from trampling on those liberties, which it was meant to secure and establish.” He continues, “The enormous weight of prerogative (if left to itself, as in arbitrary government it is) spreads havoc and destruction … but, when balanced and bridled (as with us) by it's proper counterpoise it's operations are then equable and regular, it invigorates the whole machine, and enables every part to answer the end of it's construction” (Comm. I, 233).

48 See also Comm. I, 123–24, where Blackstone again uses the term “struggle” to describe clashes between Parliament (Lords and Commons) and the king. In each case, even where the king assented (e.g., the Petition of Right assented to by Charles I), the implication is that the two houses forced the king to accept constitutional change.

49 For a brief discussion of the government's efforts to pressure various boroughs as well as London to surrender their charters, see Miller, John, James II (New Haven: Yale University Press, 2000), 111–13Google Scholar.

50 See Comm. I, 259, where he writes, “In this distinct and separate existence of the judicial power, in a peculiar body of men, nominated indeed, but not removeable at pleasure, by the crown, consists one main preservative of the public liberty; which cannot subsist long in any state, unless the administration of common justice be in some degree separated both from the legislative and also from the executive power.”

51 Although Blackstone speaks of the constitution's perfection at Comm. I, 257, earlier he admits that it is not “in fact quite so perfect as I have … endeavoured to describe it; for, if any alteration might be wished or suggested in the present frame of parliaments, it should be in favour of a more complete representation of the people” (Comm. I, 166).

52 It is important to note that Blackstone points to examples of legislative tyranny. When the Long Parliament acted “with the royal concurrence,” it “redressed many heavy grievances and established many salutary laws. But when the two houses assumed the power of legislation, in exclusion of the royal authority, they soon after assumed likewise the reins of administration; and, in consequence of these united powers … established a worse oppression than any they pretended to remedy” (Comm. I, 150). See also Comm. I, 155. But as I've tried to show, Blackstone overall looks to the king and his ministers as (historically) the most likely source of arbitrary rule.

53 On the limits to the scope of the common law, see Goldsworthy, Sovereignty of Parliament and “Myth of the Common Law Constitution.” See also Comm. I, 155, where Blackstone explains that “not only the substantial part, or judicial decisions, of the law, but also the formal part, or method of proceeding, cannot be altered but by parliament: for if once those outworks were demolished, there would be no inlet to all manner to innovation in the body of the law itself.”

54 Blackstone suggests that prior to the constitution's perfection the law judges were in effect royal ministers, serving as “the medium by which … the person of the king … administers the laws” (Comm. III, 23–24). See note 50 above.