Book I: Chapter 3 – Of the King, and his Title

If there was one place in his book where Blackstone might have raised a royal eyebrow, it was Chapter Three, wherein he considers the tumultuous descent of the Crown of England.

The Crown of England is hereditary.  Contrary to popular American understandings, there is nothing of “divine right” in the English monarchy.  “While I assert [the Crown to be] hereditary, I by no means intend a jure divino, title to the throne.  Such a title may be allowed to have subsisted under the theocratic establishments of the children of Israel in Palestine: but it never yet subsisted in any other country.”  Blackstone is keen to heap scorn on the “wild and absurd” doctrine of divine right – so much so that one cannot help wondering whom he thought he was arguing against.  Bossuet had been dead for half a century and Robert Filmer was laid low by John Locke.  Blackstone was tilting at windmills.

Unlike divine right, “[t]he hereditary right, which the laws of England acknowledge, owes it’s origin to the founders of our constitution, and to them only.”  The first Englishmen could have made an elective monarchy but Blackstone is glad they did not because elective monarchies have a habit of dissolving into civil war.  The lottery of birth and death will deal a knave as soon as a jack but at least in a hereditary system it’s always perfectly clear who’s supposed to be running the country.

Except that isn’t what actually happened, is it?

Blackstone spends most of this chapter tracing the line of descent from William the Conqueror – who himself held the throne by “a pretended grant” – down to the reigning Hanoverian dynasty, though he impugns the claims of more than one king along the way and finally gives up the project somewhere around Henry VII, frankly admitting that the Tudor king had no right to the throne “at all.”

The one, great validating principle of the Crown is that Parliament may regulate its descent.  Although a man may claim the throne by blood “[i]t is unquestionably in the breast of the supreme legislative authority of this kingdom, the king and both houses of parliament, to defeat this hereditary right; and, by particular entails, limitations, and provisions, to exclude the immediate heir, and vest the inheritance in any one else.”

The beauty of the common law system is that it does not inquire into matters of primordial fogginess.  If a custom or usage goes back to that time “whereof the memory of man runneth not to the contrary,” we need look no farther.  Blackstone picks King Egbert of the Saxons, ca. 800, as his starting point: “His right must be supposed indisputably good, because we know no better.”

The first break in the chain comes with King St. Edward the Confessor, who refused to sleep with his wife to spite his father-in-law.  St. Edward “was not indeed the true heir to the crown” because there was another Edward – surnamed the Outlaw – wandering about in Hungary.  But “it was necessary that somebody on the spot should mount the throne” and Edward the Confessor was the nearest royal to hand.  Harold Godwinson briefly occupied the throne, calling himself Harold II, but he had to fend off Harald Hardrada in Yorkshire in 1066, then spin around to fight William the Conqueror at Hastings the same year.  And yet “all the time” the right to the crown was in “Edgar, sirnamed Atheling […] who was the son of Edward the outlaw.”

William the Conqueror – called the Bastard, before he upgraded his nickname – “claimed the crown by virtue of a pretended grant from king Edward the confessor; a grant which, if real, was in itself utterly invalid” because it had not been sanctioned by the Council of the Realm.  Blackstone freely admits that William took England “by right of war” which is “still the dernier [last] resort of kings.”

William’s throne should have eventually gone to a woman alternately called Matilda or Maud but she lost the throne to King Stephen.  Matilda got the best revenge possible by marrying Geoffrey of Anjou, who was rich and powerful and whose son, Henry, threatened to invade England unless Stephen named him his heir.  So at least that usurpation was short-lived.

As an added bonus, this Henry (II) was also descended from Edgar the Outlaw, the guy in Hungary.  He wasn’t actually Edgar’s heir – “that right subsisted in the sons of Malcolm [king of Scotland] by queen Margaret [Edgar the Outlaw’s daughter]” – but at least a descendant of the Saxon kings was back on the throne.

The Wars of the Roses undid all but the most pious pretense of hereditary descent.  The ultimate outcome of the struggle between York and Lancaster was that the throne actually went to a Welshman, Henry Tudor, who reigned as Henry VII.  Parliament sanctioned Henry as a pragmatic solution to their ongoing problem (his mother was a Lancastrian but his wife a Yorkist, which made him the perfect compromise) but in the Act legitimizing his reign they “carefully avoided any recognition of Henry VII’s right, which indeed was none at all.”  His wife had a much better claim to the throne than he did.

Henry VIII left a “jumble of acts for limiting the succession,” depending on his wife of the month.  Since none of his children left any heirs, the Crown was inherited by the Kings of Scotland, in whom “centered all the claims of different competitors from the conquest downwards,” even the Saxons.  This makes Blackstone very happy.

But then King Charles I got “wild and absurd” ideas about divine right into his head and the Civil Wars began.  Although the Crown was “a wise institution, it was clearly a human institution [… a]nd in this and no other light was it taken by the English parliament.”  Revolution ensued, the Protectorate of Oliver Cromwell and then the Stuarts were restored.

Disaster struck again in 1688, when the peers of the realm invited William, Prince of Nassau, to invade to remove the lawful king.  Blackstone – as always – insists on pretending that James abdicated his throne, which is like supposing that someone who has been mugged voluntarily gave up their wallet.  So Parliament intervened again and sanctioned the Dutch usurper, who left no children of his own.  Parliament then passed over more than fifty heirs to the exiled James in order to arrive at the first Protestant on the list: George, Elector of Hanover, a middle-aged German who couldn’t speak English.

(Technically Parliament chose his mother, Sophia, to succeed but she died before her turn.  George never did learn English – nor did his son, George II – and because he couldn’t talk to anyone, he had to rely on Robert Walpole to run the government for him, making Walpole the first Prime Minister in English history.  Walpole and George both spoke Latin, badly, and the tedium of their conversation encouraged the king to let the commoner get on with running the country.)

All of which only goes to show what Blackstone tried explaining at the start: Parliament calls the shots.  Hereditary descent is more of a default option than an absolute right.  And common law will eventually sanction anything, so long as you do it until you forget when it was you started in the first place.

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Book I: Chapter 2 – Of the Parliament (2/2)

On earth, and within reason, Parliament’s authority is absolute.  It can tear down tyrants and raise up kings; it can declare men guilty of crimes they never committed, and absolve the gravest atrocities.  It has, in fact, done all these things at one time or another in its history, because Parliament can “do everything that is not naturally impossible.”  There are only two ground rules in the English Constitution, two genuinely immutable principles: no Parliament may bind its successors; and, apart from this, Parliament may do anything that can be done.

William Cecil, an advisor to Queen Elizabeth I, was moved to remark that “the English could never be ruined but by a parliament.”  Blackstone, quoting Montesquieu, supposes that the liberty of England “will perish, whenever the legislative power shall become more corrupt than the executive.”

Two points should be noted, particularly in contrast to the American Constitution.  The American Constitution binds the ordinary operations of government such that, for example, no Congress can restrict free speech or restrain the press, with reasonable exceptions for emergencies.  But if Parliament were to pass an Act tomorrow, muffling all newspapers, there would be no legal grounds for protest, expect perhaps by an appeal to the European Union.  No fundamental laws undergird Parliament.  All laws in England are of equal authority and only yield to newer laws.  The American system of government is famous for creating two levels of laws, at the federal and state level.  But there is a third level of law: the federal constitution, which is superior to anything Congress may do by its own authority.  By contrast, the British Parliament holds all the authority that in America would require a constitutional convention.  The Prime Minister is, theoretically, free at any time to revise – or even to write down – the British constitution.

Secondly, Blackstone sites sovereign authority in Parliament itself, not in the people.  He recognizes that this runs contrary to the social contract theory of “Mr. Locke, and other theoretical writers,” who claim that “there remains still inherent in the people a supreme power to remove or alter the legislative.”  But society itself is defined against the state of nature, and the people posses all power only in the state of nature.  When they constitute the government, they surrender that power.  For Blackstone, once the people have done something so fundamental as to create a society, they have thrown the power to do such a thing beyond their own reach to recover.  Locke, by contrast, supposes that there lies always latent the opportunity for a genuinely popular veto.

Yet Blackstone, in practice, admits such a thing.  When the Lords and Commons summoned King Charles II out of exile at the Restoration, they did so against the old law that no Parliament could be summoned but by the king – a law which, although it had not been repealed, was meaningless, because there was no king.  They did so “for the necessity of the thing, which supersedes all law.”

No one born abroad may sit as a Member of Parliament, by 12 & 13 W. III c. 2, a statute which goes some way to explaining where the Americans got the idea of barring any foreign-born citizens from holding the Presidency.  Moreover, to “prevent crude innovations in religion and government, it is enacted by statute 30 Car. II st. 2 and 1 Geo. I c. 13 that no member shall vote or sit in either house, till he hath […] taken the oaths of allegiance […] and repeated the declaration against transubstantiation, and invocation of saints, and the sacrifice of the mass.”  In other words, Catholics could not sit in Parliament.  Neither could Jews, although Blackstone hardly thinks this bears mentioning.

The privileges of Parliament are many, the chief of which is this: it may define the scope of its privileges.  They have found it useful to refrain from issuing any definitive list.  “Some however of the more notorious privileges of the members of either house are, privilege of speech, of person,” and others.  That of speech is truly absolute: although there is a well-known ban on “un-Parliamentary language,” actions for libel will not run on account of anything said in Parliament.  As the United Kingdom has lately issued “super-injunctions” forbidding newspapers from printing embarrassing stories about celebrities and simultaneously forbidding those newspapers from even telling anyone they’ve been muzzled, several Members of Parliament have taken it upon themselves to discuss the problem in Parliament: which gets around the super-injunction, because the papers may always freely print what is published in the Record of the House.

Among the more obscure privileges of Parliament is this: any lord passing through the king’s forests on his way to Parliament “may, both in going and returning, kill one or two of the king’s deer without warrant; in view of the forester, if he be present; or on blowing a horn if he be absent, that he may not seem to take the king’s venison by stealth.”  Lords, also, may designate other lords to vote in their place, although Members of the House of Commons must appear in person.

The Commons, for their part, are tax-masters: “it is the antient indisputable privilege and right of the house of commons, that all grants of subsidies or parliamentary aids do begin in their house.”  This privilege was expressly copied into the American Constitution, which bestows such powers on the House of Representatives.

Those who elect the Commons must hold clear title to property worth “forty shillings annual value; because that sum would then, with proper industry, furnish all the necessaries of life, and render the freeholder, if he pleased, an independent man.”  As an aside, Blackstone seems to understand the concept of inflation – I am never quite sure, when reading historical authors, how much they knew of economics – and realizes that when this requirement (40 shillings) was set in the reign of King Henry VI, it was equivalent to £20 in the 1760s, when Blackstone wrote the Commentaries.  Nonetheless, this law was not indexed to inflation, and the 40-shillings requirement stood.  Electors must also be 21 years of age, free of convictions of perjury, and “only one person shall be admitted to vote for any one house[hold], to prevent the splitting of freeholds.”

Electors reside either in the countryside or in cities, and are therefore supposed to represent either the landholders or merchants of the kingdom.  Members of Parliament from the countryside are technically called “knights of the shire,” although they need not actually be knights, merely rich enough to be knights (an estate worth £600 per annum would do).  The Universities of Oxford and Cambridge were empowered to send Members of Parliament, after the old Scottish custom of universities sending delegations to the Scottish Parliament. This tradition was brought to England by King James VI of Scotland, who was also King James I of England.  Each university elects two members, “to protect in the legislature the rights of the republic of letters.”  Intriguingly, clergymen were barred from sitting in the Commons, although they are not so barred under the later American constitution.  Members ought also “in strictness […] to be inhabitants of the places for which they are chosen : but this is intirely disregarded.”

When the Houses sit and both a pass a bill in the same language, it is presented to the King for assent, at which time his answer is returned in Norman-French, “a badge, it must be owned, (now the only one remaining) of conquest; and which one could wish to see fall into total oblivion; unless it be reserved as a solemn memento to remind us that our liberties are mortal, having once been destroyed by a foreign force.”  “Yes,” is either “Le roy le veut,” or “Soit fait come il est desiré,” and “no” is “Le roy s’avisera,” – literally, “The King wills it,” or “Let it be as desired,” and, “The King shall take the matter under consideration.”  That last was the most polite way of saying, “Over my dead, royal body.”

“Because every man in England is, in judgment of law, party to the making of an act of parliament, being present thereat by his representatives,” the newly-minted law need not be formally promulgated.  (Note that this runs directly contrary to what Blackstone said “On the Nature of Laws” in Section 2 of his Introduction.)  Nonetheless, it is the custom that such a law shall be printed, or, formerly, that the sheriffs should read the laws in the county courts.  “An act of parliament, thus made, is the exercise of the highest authority that this kingdom acknowledges upon earth.”  It may bind “even the king himself, if particularly named therein.”

Parliaments may be adjourned, prorogued and dissolved.  The Houses adjourn individually and may do so on their own authority.  They resume their business precisely where it left off.  Prorogation is done by royal authority and has the irritating consequence of ending the session, meaning that bills being discussed are then deleted (after a manner of speaking) and must be reintroduced all over again when Parliament next sits.  Dissolution, finally, requires all the Members of the House of Commons to seek re-election.  This again is a royal prerogative but dissolution may also be triggered by the death of the king (in formal language, “the demise of the Crown,”) or the Parliament may be dissolved by a pre-set temporal trigger, i.e., every five years.  When Blackstone wrote, Parliament had to dissolve at least every seven years.  Note that before Parliaments sat for seven years they used to sit for three – which means that there was some Parliament which, having been elected to a three year term, chose to stay in office for another four years.  This “is an instance of the vast authority of parliament[; that] the very same house, that was chosen for three years, enacted it’s own continuance for seven.”

At any time, the Prime Minister may ask the King to exercise the royal prerogative and to dissolve Parliament.  This is usually done to get a new lease on life when the Prime Minister and his/her party are particularly popular.  The term Prime Minister itself  appears nowhere in Blackstone’s Commentaries.  It did not come into common use until the Victorian Era and was not officially recognized until the twentieth century.

“This, Blackstone writes, “is the spirit of our constitution: not that I assert it is in fact quite so perfect as I have here 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.”

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Book I: Chapter 2 – Of the Parliament (1/2)

England is governed by a conversation.

Parliament is related to the French parler, meaning “to speak.”  At some time, this colloquium became the ruling body of England, although “the original or first institution of parliaments is one of those matters that lie so far hidden in the dark ages of antiquity, that the tracing of it out is a thing equally difficult and uncertain.”  Nonetheless, we may descry some vague shapes in the historical dark, whose tenebrous outlines bear comparison with distinctly modern institutions.

Americans, at least, seem often to think that the trend of democracy in Western history is a more or less smooth, upward slope: from the dark swamps of medieval despotism through the Enlightenment and republican democracy, into the sunlit uplands of women’s suffrage and the Civil Rights Act.  The real history of democracy looks more like an inverted parabola.

Absolutist kings were a Renaissance invention, not some medieval nightmare that stumbled, zombie-like, into the modern period.  Medieval kings, like modern prime ministers, governed by coalition-building.  They needed the support of local men of influence – bishops, bankers, and barons – to get things done.  At least since the Norman Conquest and probably well before, Kings of England did not pretend to rule without a Curia Regis, or King’s Council.  A similar situation prevailed on the Continent.  Italy, in particular, was a hotbed of outright republicanism, where the aristocracy was thin on the ground and the bourgeoisie (in the literal sense of that word) was all-powerful.

To be sure, some medieval political philosophers pushed notions of “priestly kings” that would engender future remarks about “divine right to rule,” but these latter theories were only fully elaborated in the 1600s, well after Charlemagne or Barbarossa could have availed themselves of their use.  King Henry VIII marks the high-water mark of English royal authority.  King Charles I got his head chopped off in the 1600s precisely because he thought kings were “little gods on earth.”

The earliest Anglo-Saxon royal council was called the witenagamot or wittena-gemote, as Blackstone gives it, meaning “assembly of wise men.”  This was a predecessor of parliaments but not itself a parliament.  King William the Conqueror preferred to call his advisors the King’s Council, naming them in Latin as the Curia Regis.

It was not until the 1260s that a recognizable “parliament” was called, and this by someone other than the king: Simon de Montfort, Earl of Leicester, the French nobleman who invented English democracy.

Despite his title, Leicester was in every practical respect a fully French aristocrat, who led the Second Barons’ War against King Henry III in the 1260s.  The barons believed the king should answer to his inferiors – namely, them – and believed that they were fighting for the preservation of the historic English constitution.  Simon de Montfort took their line of reasoning to its logical conclusion and, while briefly ruling England in the early 1260s, summoned commoners and townsfolk from every corner of the kingdom to a great council, where they might sit with the noblemen to pass laws.

Betrayed by his own party – the barons, that is – Simon fell at the Battle of Evesham and with him the nearest thing to universal suffrage until the Great Reform Act of 1832.  But his scheme of a general council, representing the clergy, nobility, and commoners, was revived in 1295, by none other than old King Henry’s son, Edward I.  He needed cash to subjugate the Welsh and the Scots.  To fund his imperialist ventures, he reintroduced a sort of primitive republicanism, famously declaring that “what touches all, should be approved by all.”

Frederick Maitland, the English legal historian, dubbed this “the Model Parliament.”  Ironically, the commoners actually had greater power at the Model Parliament than would be the case in succeeding centuries, because initially they sat with the nobility in unicameral legislature.  Since the commoners outnumbered the aristocrats, they could outvote them.  In 1341, for the first time, the commoners and lords sat separately, and it was understood that bills would have to receive the approval of both chambers before being sent on for royal approval.  For the first time in English history, the aristocrats had an outright veto on legislation.

It is commonly supposed that Parliament is merely the Houses of Lords and Commons, but the King (or Queen) is really one “of the three constituent parts.”  It is the royal prerogative to call a Parliament, since it is “highly becoming [Parliament’s] dignity and independence that it should be called together by none but one of it’s own constituent parts [and this must be the king because] he is a single person, whose will may be uniform and steady.”  If the Commons or Lords were to summon themselves, Blackstone supposes, they couldn’t even agree where to meet.

Blackstone does concede that the Restoration Parliament of the 1660s summoned itself; and, in 1688, the Lords and Commons met at the summons of William, Prince of Orange.  Blackstone pretends that this was because King James II had abdicated the throne, rather than being chased out of the kingdom by a foreign invasion: “The vacancy of the throne was precedent to their meeting without any royal summons, not a consequence of it.”  Thereafter, the balance of power was clear: the Lords were in the driver’s seat and the Commons were riding shotgun.  The King and Queen were restricted to giving a royal wave from the back of the car.

Americans tend to assume that the separation of powers is a self-evident good but Blackstone thought it “highly necessary for preserving the balance of the constitution, that the executive power should be a branch, though not the whole, of the legislature.”  If the executive were not a branch of the legislative then Blackstone supposes that the legislature would simply withhold funds until it micro-managed every aspect of administration.  Note that by referring to the executive as a branch of the legislative, Blackstone is not referring to the Prime Minister – as Sir Walter Bagehot did, in his book The English Constitution – but to the King.  It is still the case that executive authority is vested in a member of Parliament, but today this is meant quite literally: Mr. David Cameron, M.P.

In contrast to twenty-first century prime ministers, the Hanoverian kings of Blackstone’s era had “not any power of doing wrong, but merely of preventing wrong from being done.  The crown cannot begin of itself any alterations in the present established law; but it may approve or disapprove of the alterations suggested and consented to by the two houses.”  This veto insulates the king from any further loss of authority, although even by Blackstone’s time the royal veto was an anachronism.  It was last used by Queen Anne in 1708.

The Lords are led by the Lords Spiritual, i.e. the two archbishops and twenty-four bishops.  (More dioceses have since been created in the Church of England, but the number of bishops in the House of Lords remains the same and is determined partly by the seniority of the bishops and partly by the prestige of the diocese.  Bishops from Wales and Scotland never sat in Parliament.)  Before the Reformation, abbots and priors sat in the Lords as well, “equal in number to the temporal nobility.”

After the Lords Spiritual come the Lords Temporal, that is to say the dukes, marquises, earls, viscounts, and barons (in descending order).  Because the King could create as many lords as he liked there was a danger that they should be swamped and that the King would thereby control the Upper Chamber.  To this end a bill was introduced during the reign of King George I (r. 1714-27) to set a cap on the number of peers.  But, Blackstone tells us, “the bill was ill-relished and miscarried in the house of commons, whose leading members were then desirous to keep the avenues to the other house as open and easy as possible.”

The Commons is, simply put, everybody else.  It consists in “all such men of any property in the kingdom as have no seats in the house of lords,” at least indirectly, because they there find representation.  “In a free state, every man, who is supposed a free agent, ought to be, in some measure, his own governor” – note the qualification, in some measure.  Poor persons must be excluded from voting because “[i]f these persons had votes, they would be tempted to dispose of them under some undue influence or other.”

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Book I: Chapter I – Of the Absolute Rights of Individuals

The American Constitution left the rights of individuals to the Amendments section, but Blackstone – after his introduction – begins with the rights of individuals under the laws of England.

Blackstone speaks of the rights of “person” but writes that these are “such as are due from every citizen [and] such as belong to him.”  Our author seems unperturbed by the flip “persons” and “citizens.”  I do not think he meant to be cosmopolitan; I think he was either being careless or that we should read “person” to mean “Briton.”

Persons may be natural or artificial: that is to say, real people or corporations, the latter of which are recognized as persons for many legal purposes.  (Medieval lawyers were much taken with corporations, whose intellectual ancestry is entangled with theological speculation about angels.  Some medieval lawyers had to be reminded that corporations could not be decapitated, because they possessed no bodies; nor excommunicated, because they possessed no souls.)

The “absolute” rights of individuals are “such as would belong to […] persons merely in a state of nature, and which every man is intitled to enjoy whether out of society or in it.”  It is “the principal aim of society […] to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature.”

The business of human laws is to regulate persons insofar “as they are members of society.”  The law passes over private vices in silence, although Blackstone has a somewhat expansive view of what constitutes a “public” wrong: “Let a man therefore be ever so abandoned in his principles, or vitious in his practice, provided he keeps his wickedness to himself, and does not offend against the rules of public decency, he is out of the reach of human laws.  But if he makes his vices public, though they be such as seem principally to affect himself, (as drunkenness, or the like) they then become, by the bad example they set, of pernicious effects to society; and therefore it is then the business of human laws to correct them.”

To apply Blackstone to contemporary questions: a person who violates American drug laws in the 2010s could do so in a way which violates “public decency.”  That depends on whether the violation is “public.”  In modern language, Blackstone really exempts action which is secret, not private, from legal correction.

Law is essential to liberty.  Locke is cited as observing that “where there is no law, there is no freedom.”  Liberty naturally consists “in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature,” (emphasis added).  Simon Schama has said that Englishmen of the mid-eighteenth century worshiped liberty as a kind of religion, and that cult is on full display here.  Waxing Mansfieldian, Blackstone writes that the “spirit of liberty is so deeply implanted in our constitution, and rooted even in our very soil, that a slave or a negro, the moment he lands in England, falls under the protection of the laws, and with regard to all natural rights becomes eo instanti [at that moment] a freeman.”

The primal document of English liberties is, of course, “the great charter of liberties, which was obtained, sword in hand, from king John,” – that is to say, the Magna Carta.  It contained “very few new grants” but was “for the most part declaratory,” and by statute was “allowed as the common law.”  Startlingly, violators are subject not to the temporal punishments of the state but to “sentence of excommunication.”

The three “principal” rights of Englishmen are these: personal security, personal liberty, and private property.  It doesn’t sound in the ear quite as well as “life, liberty and the pursuit of happiness,” does it?

By “life” Blackstone means also “limbs,” which are “of such high value, in the estimation of the law of England, that it pardons even homicide if committed se defendendo, or in order to preserve them.”  Threatening a person’s limbs is technically referred to as “mayhem,” which may be more loosely defined as “maiming.”  Mayhem is worse than battery, which is mere beating.  Upon fear of battery or “having one’s house burnt, or one’s goods taken away and destroyed” a man may not commit homicide, but he may to save life and limb, because “no suitable atonement can be made for” their loss.

More surprisingly, the law not only “regards” life and limb, it “also furnishes [a person] with every thing necessary for their support.  For there is no man so indigent or wretched, but he may demand a supply sufficient for all the necessities of life.”   Who knew the Hanoverians were keen on social security?   Blackstone notes with some pride that in this respect the laws of England stand on a higher moral ground than those of Justinian, who undid the earlier Constantinian guarantee that all poor children would be fed and sheltered at state expense.

“These rights […] can only be determined by the death of the person; which is either a civil or natural death.”  The latter is obvious.  The former means banishment – which is quite rare – or becoming a monk, which in Blackstone’s era was itself illegal.  Before the Reformation, when Englishmen became monks they were quite literally regarded as dead, in that their last wills and testaments took effect.  Blackstone recounts the entertaining anecdote of a man indebted to a monastery who became a monk at the same monastery and rose to become abbot thereof, at which time he inherited his predecessor’s legal struggles against his own estate.

On the subject of maiming and mayhem, torture is absolutely out of bounds under common law.  “Our laws are strangers” to it, writes Blackstone.  This is not, strictly speaking, true.  There was one instance in which the common law sanctioned torture: the peine forte et dure.  If a man – or woman – refused to enter a plea of “guilty” or “not guilty,” having been charged with a crime, they could be pressed beneath a great mass of stones, in order to force a plea.  Death sometimes resulted, as in the case of St. Margaret Clitherow, who was killed by this method at York during the reign of Elizabeth I.

Blackstone defines personal “liberty” in a straightforwardly physical manner: it is “the power of loco-motion, of changing situation, or removing one’s person to whatsoever place.”  If a man is restrained he may have the famous writ of habeas corpus, the only common law writ mentioned by name in the American Constitution.  This only guarantees that a subject may move about within the kingdom.  The King, it is true, may issue a writ of ne exeat regnum, which arbitrarily prevents a subject from leaving England.  But there is no equivalent arbitrary writ of exile.  Even criminals may not be banished, unless “by the choice of the criminal himself, to escape a capital punishment.”  This seems a hair-splitting distinction, much as when Aristotle supposes that to throw one’s goods overboard from a ship in a storm is a “voluntary” act.  Blackstone has already recognized that threat to life may justify a man in committing homicide; and yet the threat of capital punishment is supposed to leave a criminal with a “choice” about whether to seek refuge in a penal colony?

Blackstone will have more – much, much more – to say on the subject of property in Book II.  Let us here merely observe his remarks on eminent domain.  It is repugnant to the common law, even when it “might perhaps be extensively beneficial to the public,” but can be extraordinarily authorized by an Act of Parliament, on payment of full indemnification.

These rights – to personal security, liberty and property – are secured by various means, among them the right of petitioning the king or either house of parliament, the right to bear arms “suitable [to the subject’s] condition and degree, and such as are allowed by law.”  Lastly, these rights are secured by statutes retraining the royal prerogative, chief among them Magna Carta.

Most of Magna Carta looks like the Republican Party platform, liberally salted with medieval weirdness.  By example of the former: no more death duties, and tax relief for the landed classes; by way of the latter, widows shall not be compelled to remarry; and – from the mouth of King John – “If we have deprived any Welshman of his lands or liberty we shall return these to him at once.”  If there was ever a time when King John crossed his fingers behind his back, it was here.

The two living clauses of Magna Carta are these: that the City of London shall possess “all its ancient liberties and free customs, both on land water,” and that

No free man will be seized or imprisoned, dispossessed or outlawed, exiled or otherwise destroyed, nor shall we proceed against him nor send force against him, except by the lawful judgement of his peers or by the law of the land.  We shall sell to no man, deny to man, and delay to no man right or justice.

This is the “Due Process clause” of the English Constitution.  For all its wretched, half-French, inscrutable Latin style, these words can be enforced in any English court of law and were indirectly assumed into the patrimony of American jurisprudence at Independence.  They are the foundation and surest bulwark of English liberty.

Blackstone closes by rebuking any gentleman of leisure who does not give these words the study they are due.  He quotes Baron Montesquieu, who wrote in his De l’Esprit des Lois that “the English is the only nation in the world, where political or civil liberty is the direct end of it’s constitution.”

ESTO PERPETUA!” Blackstone cries, echoing the dying words of Fr. Paolo Sarpi, the great Venetian patriot.  May it last thus forever.

Postscriptum: the words of Magna Carta quoted above are, literally, “[39] Nullus liber homo capiatur, vel imprisonetur, aut disseisiatur, aut utlagetur, aut exuletur, aut aliquo modo destruatur; nec super eum ibimus, nec super eum mittemus, nisi per legal judicium parium suorum vel per legem terre.  [40]  Nulli vendemus, nulli negabimus, aut differemus rectum aut justiciam.”

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Introduction: Section IV – Of the Countries Subject to the Laws of England

The laws of England have force, naturally, in England, but also in other places, which raises a question that most foreigners find very vexing: what, exactly, is England?

At the time of the Norman Conquest – ground zero for English history – England was a kingdom sharing the island of Britain with two other political entities: Wales and Scotland.  Wales was ruled by independent princes, Scotland by one king.  William the Conqueror conquered England, in 1066.  During the 1200s, his successor, King Edward I, conquered Wales.  In the early 1600s, the Kings of Scotland inherited England – contrary to all appearances – and yet these two continued as separate countries sharing one monarch until 1707, when they were legally combined into the Kingdom of Great Britain, which is as much as Blackstone knew.

(Thereafter, in 1801, the Kingdom of Great Britain was combined with the Kingdom of Ireland to make the United Kingdom of Great Britain and Ireland.  During the 1920s, most of Ireland broke away and the old political entity became the United Kingdom of Great Britain and Northern Ireland, which still exists as of 2012.)

So “the kingdom of England […] includes not, by the common law, either Wales, Scotland, or Ireland, or any other part of the king’s dominions,” begins Blackstone.  Wales was conquered by King Edward I (the guy in Braveheart) who annexed Wales by the Statute of Rutland (10 Edw. 1), which provided that “terra Walliae cum incolis suis […] totaliter […] coronae regni Angliae […] annexa et unita.”  The land of Wales, with its inhabitants, is completely annexed and united to the Crown of the Kingdom of England.  Note the word Crown: although Edward made his son the titular “Prince of Wales” – this was meant to be demeaning – Wales retained its local usages.  These were not abolished until 27 Hen. VIII c. 26, which provided that “the laws of England, and no other, shall be used in Wales.”    34 & 35 Hen. VIII c. 26 divided Wales into twelve shires, completing its Anglicization, with the exception of a separate circuit of Welsh courts sitting in Wales itself, administering English law but independent of the mother-court at Westminster.  (Note that these statutes were all passed by Henry VIII, which is ironic, because the Tudors were a Welsh dynasty.)

When King James VI of Scotland inherited England, the first thing he did was to pretend what he united had once been whole.  1 Jac. I c. 1 (that is to say, the first chapter of the law passed by the Parliament sitting in the first year of the reign of Rex Jacobus or King James) declares that “these two, mighty, famous, and antient kingdoms were formerly one,” as Blackstone puts it in paraphrase.  This is ahistorical nonsense.  One is reminded of Thomas More’s objection in A Man for All Seasons that Parliament cannot declare the Earth to be flat: nonetheless, they did.

James continued to rule as King James VI of Scotland while simultaneously running his southern realm as King James I of England.  This parallel structure – the technical term is “personal union” – continued until 1707, when by the Act of Union, England and Scotland became truly and really one state, effective 1 May 1707.  The Act was comparatively brief –especially given its import – and established only 25 points of law, among them that 16 Scottish peers should be elected by their brethren to represent Scotland in the House of Lords sitting at Westminster, and 45 Scottish Members should likewise be admitted to the House of Commons.  Regarding the Act, Blackstone writes briefly that these “two kingdoms are now so inseparably united, that nothing can ever disunite them again.”

It is odd that Blackstone of all people should think this, because he knew perfectly well that no Parliament could bind its successors (see #9 in his list of rules for legislative interpretation).  The only thing Blackstone can see that would “endanger the union” would be alteration in the constitutions of the Churches of Scotland or England.

Ireland was still a “distinct kingdom” when Blackstone wrote, “though a dependent, subordinate kingdom.”  It was a “dominion” until near the end of the reign of Henry VIII, who assumed the title King of Ireland.  Ireland originally used what Blackstone calls “Brehon law” and as of the time of Queen Elizabeth I, “the wild natives” retained these usages.  Blackstone was under the – wildly erroneous – impression that by the 1700s “the inhabitants of Ireland are, for the most part, descended from the English,” who hold it “in right of the dominion of conquest.”  Ireland had an independent parliament, representing English colonists, which could only veto laws handed down to them by the royally-appointed Lord Lieutenant.  Blackstone is admirably straightforward about why the English were there: “the original and true ground of this superiority [of the English king over Ireland] is the right of conquest: a right allowed by the law of nations, if not by that of nature.”

The American colonies stood in a similar situation.  “If an uninhabited country be discovered and planted by English subjects,” Blackstone allows, then “all the English laws are immediately there in force.  For as the law is the birthright of every subject, so wherever they go they carry their laws with them.”  But if a country is conquered, then the local laws remain in force by default.  The American colonies were “principally of this latter sort, being obtained in the last century either by right of conquest and driving out the natives (with what natural justice I shall not at present enquire) or by treaties.  And therefore the common law of England, as such, has no allowance or authority there” (emphases added).

Then there are the weird cases: the Isle of Man and the Channel Islands.  King Henry IV conquered Man and gave it to the Earl of Northumberland, who was attainted; Henry gave it away again, the inheritance was disputed, and it eventually came to the Dukes of Atholl.  They sold it back to King George in 1765, the year Sir William Blackstone published this first volume of his Commentaries.  To this day, Man is governed as a separate dominion, whose Parliament is the House of Keys.

Jersey, Guernsey, Sark and Alderney are the rump remnants of the old Duchy of Normandy, and so their legal structure predates even the Norman Conquest itself.  They are governed separately and retain “the ducal customs of Normandy, being collected in an antient book of very great authority, entituled, le grand coustumier.”  They can be bound by the Parliament sitting in Westminster only if they are specially named in the Act.

Of similar weirdness are the counties palatine: Chester, Durham and Lancaster.  Chester and Durham were counties palatine “by prescription, or immemorial custom,” Lancaster was created such at the Norman Conquest.  Being a county palatine meant that  writs ran in the name of the local lord, who, although he was a vassal of the King of England, functioned like a local king in his own domain.  Felons were charged in his name, the property of traitors accrued to him, he maintained his own courts, pardoned murders, appointed judges, “and all offences were said to be done against [his] peace, and not, as in other places, contra pacem domini regis.”  The Earldom of Chester and the Duchy of Lancaster both passed into the Crown of England, the former of these two being habitually granted out to the Prince of Wales for his personal use, the latter retained by the King as a private source of income.  (Both continue to this day as corporations sole, and still function much as they ever did.)  The Bishops of Durham ruled County Durham, far to the north, as a petty kingdom until the 1800s when their local authority was abolished.  Durham was the only example of a prince-bishopric in England, a governmental structure otherwise unheard of in the British Isles but very common in the Holy Roman Empire.

England itself is divided into counties, or shires, which are divided into hundreds, which are divided into towns (also, confusingly, called “tithings”).  A town was defined by the presence of a church and a priest, so we may consider it analogous to a parish, which tracks neatly with the notion of civil parishes, found in Louisiana and other ex-French colonies. “A city is a town incorporated, which is or hath been the see of a bishop […] a borough is now understood to be a town, either corporate or not, that sendeth burgesses to parliament.”  Attached to some towns are “small appendages […] called hamlets.”  Supposedly, ten households once constituted a town – which explains why an old synonym for “town” was “tithing” – and ten towns made a “hundred,” which is a subdivision of a shire or county governed by a “high constable or bailiff.”  In the North of England, hundreds are sometimes called “wapentakes,” a truly bizarre word for which Blackstone does not even hazard an etymology.  Yorkshire, on account of its size, was divided into thirds between the level of the shire and the hundreds.  These thirds were called trithings, a word which corrupted into riding, which is why Yorkshire has a North Riding, a West Riding and an East Riding.

With which, at last, we have completed our Introduction to the laws of England and may at last consider their substance.

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Introduction: Section III – Of the Laws of England

The laws of England are of two kinds: written and unwritten.

Blackstone takes it that during the Dark Ages, “in the profound ignorance of letters which formerly overspread the whole western world, all laws were intirely traditional,” that is, unwritten, preserved sola memoria et usu (“only by memory and usage”).  Since then, most of Europe has adopted the Roman civil law tradition, founded on the books of Justinian, and England has to a large degree written down her own common law.

Although the common law was originally unwritten, “at present the monuments and evidences of our legal customs are contained in the records of the several courts of justice, in books of reports and judicial decisions, and in [legal] treatises.”   They are, nonetheless, “leges non scriptae, because their original institution and authority are not set down in writing.”  They receive “their binding power […] by long and immemorial usage, and by their universal reception throughout the kingdom.”

Without having inquired into the matter closely, I am led to believe that some of Blackstone’s primitive history is rather fanciful: as, for example, when he gives the evolution of English common law from the time of King Alfred, a man who attracts legends like lodestone attracts iron.  There is a brief survey of the laws of Mercia, West Saxon, and the Danelaw, the last of which is a fully historical phenomenon under which most of England was ruled by Danish law during the pre-Conquest era.  King Edward the Confessor is supposed to have extracted from these varying sources “one uniform law or digest of laws, to be observed throughout the whole kingdom.”  Where would the common law be without its own Justinian?

Perhaps because this account makes the common law seem rather Roman-like, Blackstone then launches into an unusual attack on the civil law, “which established in the twelfth century a new Roman empire over most of the states on the continent: states that have lost, and perhaps upon that account, their political liberties.”  He refers here to the recovery of the Corpus Juris Civilis in the 1000s and its subsequent spread from the University of Bologna in the 1100s.  The University of Bologna itself began as a law school for the study of the Corpus, and because Bologna is the first of all universities we may reasonably suggest that the Roman law gave birth to modern learning.

The Roman or civil law is “the civil or municipal law of the Roman empire, as comprized in the institutes, the code, and the digest of the emperor Justinian, and the novel constitutions of himself and some of his successors.”  Blackstone refers here to the elements of the Corpus Juris Civilis or “Body of the Civil Law,” a set of works whose influence in Western history is second only to the Bible.

In the early 500s, the Emperor Justinian, sitting at Constantinople, ordered several eminent jurists to summarize Roman law.  They first compiled for him the Codex or Code, which was a compilation of existing Roman statutory law.  Another commission was appointed to summarize legal treatises into a Digest, also called the Pandects.  This too was given the force of law.  An introductory legal textbook, called the Institutes, was based on these two preceding works.  Finally, Justinian’s own statutes, issued after the former three books had already been promulgated, were compiled after his death into the New Constitutions, or Novels.  These four books were all given force of law and collectively known as the Corpus.

In the civil law traditions, the best argument to make was that Justinian said so, by reference to an entry in the Corpus.  In England, by contrast, “the goodness of a custom depends upon it’s having been used time out of mind; or, in the solemnity of our legal phrase, time whereof the memory of man runneth not to the contrary.”

“But here,” Blackstone concedes, “a very natural, and very material, question arises: how are these customs or maxims to be known[?  ….] The answer is, by the judges in the several courts of justice.  They are the depositary of the laws; the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land.”  This is a very old model of study, learning one’s trade by close apprenticeship to one’s forebears and thus conveying, in a human chain, centuries of accumulated tradition.  But unlike in a game of “telephone,” the judges are buttressed by written accounts of prior decisions.

Judges are “sworn to determine, not according to [their] own private judgment[s], but according to the known laws and customs of the land; [they are] not delegated to pronounce a new law, but to maintain and expound the old one.”  Ironically, Blackstone wrote during the tenure of Lord Mansfield, a hyper-active Lord Chief Justiceknown for his wildly inventive decisions.  It was Lord Mansfield who famously declared, in Somersett’s Case, that slavery could not exist in England because the air was so pure that it freed all men who breathed it; such was not, of course, the usual line of reasoning in the common law.

For Blackstone – as opposed to Mansfield – “the law, and the opinion of the judge are not always convertible terms, or one and the same thing; since it sometimes may happen that the judge may mistake the law.”  This is to some extent a legal fiction: the law which will be enforced is what the judges say it is.  But when a judge overturns an earlier decision, the usage is to say that the earlier judge erred in applying the law, not that the law has changed.  But since “precedents and rules must be followed, unless flatly absurd or unjust,” Blackstone evidently does not think this will be a subject of much practical concern (with all due respect to Lord Mansfield).

Blackstone believes that the Roman law once worked in a similar manner, being more founded on custom than statute (which belies the Twelve Tables) but by the time of the emperors this spirit of liberty had ceased to animate Roman jurists.  Sir William cites Ulpian’s infamous maxim “quod principi placuit legis habet vigorem,” or, “That which pleases the prince has the force of law.”  This is the very antithesis of the common law, which is the most democratic form of legislation.  Common law is fashioned by the common practice of everybody.  (By this logic we could say that jaywalking is no crime according to “the common law of New York.”)

But although the law derives its authority from the people, the courts derive their authority from the Crown.  “An appeal lies from all these courts [of common law] to the king,” which “proves that the jurisdiction exercised in them is derived from the crown of England, and not from any foreign potentate, or intrinsic authority of their own,” (emphases added).  Note that we are speaking of the courts, not the common law itself, which narrowly saves Blackstone from sliding into Ulpian’s ultra-royalist territory.

Statute law may be “declaratory of the common law, or remedial of some defects therein.”  An example of the former is the statute of treasons, 25 Edw. III. Cap. 2., which only lists what was already treason, the better to preserve the common law.  This statute did not, strictly speaking, criminalize treason, but only codified the existing unwritten prohibition.  (A note on legislative citation: the method is Year-of-Reign Monarch’s-Name Chapter.  All the laws passed by “one session of parliament taken together make properly but one statute.”  So the treason law was passed in the 25th year of the reign of King Edward III, and will be found in the second chapter of the long statute enacted by the parliament which sat in that year.)

Blackstone gives rules for the interpretation of statutes, a matter which has been of some controversy in modern America.  All these rules are assumed to apply to remedial statutes, which are, after all, the only sort of statutes since the nineteenth century at least, on either side of the Atlantic:

  1. Judges must consider “the old law, the mischief, and the remedy.”  That is, they must consider what the law said before the statute was enacted, what problem was perceived, and what remedy was given.  “It is the business of the judges so to construe the act, as to suppress the mischief and advance the remedy.”
  2. Statutes flow down, but not up: that is, if a statute treats of “deans, prebendaries, parsons, vicars, and others having spiritual promotion,” it does not reach as high as bishops, although the last entry in the list would seem to encompass them.  The prior terms limit the general reach.
  3. Penal statutes are to be “construed strictly” – by which Blackstone means very strictly.  There was a law of Edward VI against stealing “horses,” which was held not to extend to a man who stole “one horse.”  (This might appear to contradict the first canon of interpretation above.)
  4. Statutes against frauds, by contrast, are to be “liberally and beneficially expounded.”
  5. Statutes should be taken as a whole, so as not to contradict themselves, unless…
  6. If the only way the statute can be salvaged is by interpreting it in some manner which plainly defeats the purpose of its enactment, then the statute should be “of no effect.”
  7. Statutes override common law.
  8. If Statute 2 repeals Statute 1, then if Statute 3 repeals Statute 2, Statute 1 springs back into life.  In other words, when a statute is repealed, it actually lies dormant.
  9. No parliament can bind its successors.
  10. “Acts of parliament that are impossible to be performed are of no validity; and if there arise out of them collaterally any absurd consequences, manifestly contradictory to common reason, they are, with regard to those collateral consequences, void.”  Moreover “it is generally laid down more largely that acts of parliament contrary to reason are void […] but if the parliament will positively enact a thing to be done which is unreasonable, I know of no power that can control it.”  Even though absurd statutes are of no force, Blackstone will not admit that “judges are at liberty to reject it; for that were to set the judicial power above that of the legislature, which would be subversive of all government.”  So judges may not strike down laws of Parliament, but they may refuse to enforce them, which amounts to the same thing.  And yet if the legislature makes explicitly clear that, for example, a man should serve as the judge of his own case, “there is no court that has power to defeat the intent of the legislature, when couched in such evident and express words” as can leave no doubt of Parliament’s intention.
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Introduction: Section II – On the Nature of Laws in General (2/2)

Having considered laws generally and those universal precepts revealed by divine agency or discovered in the light of natural reason, we now take up the matter of merely human laws.

Since it is “impossible for the whole race of mankind to be united in one great society,” there exists above all kingdoms a “law of nations.”  But we may doubt whether this is really law at all, for as Blackstone says, “a law always supposes some superior who is to make it.”  He allows, according to the civil law maxim, quod naturalis ratio inter omnes homines constituit, vocatur ius gentium: that which natural reason has instituted among all men is called “the law of nations,” which depends upon the natural law, this being “the only [law] to which both communities are equally subject.”

The law of nations seems more a species of contract than of law generally.   Sir William tries to rescue its status as “law” by subordinating it to “the law of nature,” but the laws of Parliament are also subordinate to the law of nature.  They, however, are handed down by a superior – Parliament – to Englishmen.  Natural law, although discovered by reason, is “laid down” by God, in Blackstone’s phraseology.  (I avoid committing him to some particular interpretation of the Euthyphro dilemma.)  The law of nations seems like a type of contract, and an unenforceable one at that.

“Municipal” law is a term reserved by Blackstone for the laws of a particular jurisdiction: a town or nation.  It is what we regularly mean by inquiring, “Is that against the law?”  It is “a rule; not a transient sudden order […] but something permanent, uniform, and universal.”  By “universal,” Blackstone means that municipal laws are not directed to some specific person; so if Parliament should declare a man guilty of a crime (what was referred to as an “act of attainder,” a practice explicitly prohibited by the American Constitution) that is not a municipal law because it refers not to all persons in the jurisdiction.

The laws, although they are not counsels – “counsel acts only upon the willing, law upon the unwilling also” – are also not compacts or agreements, for “a compact is a promise proceeding from us, law is a command directed to us.”  Blackstone rejects social contract theory.  Quite refreshingly, he prefers not to toy with imaginary states of nature, in a departure from the usual habit of Enlightenment philosophers.  He cannot believe “that there ever was a time when there was no such thing as society […it is a notion] too wild to be seriously admitted.”  And “when society is once formed, government results of course.”

This last formulation is a good English translation of Aristotle’s much-quoted remark: ho anthropos physei politikon zoon; or, “The human being is, by its nature, a creature of the city-state.”  Politikos refers to both society and government, being the adjectival form of polis, or city-state.  By his very nature, then, man is both social and political.  Although Blackstone will not take seriously any fables about primitive constitutional conventions, he does believe that there is some kernel of truth in the story: “though society had not it’s formal beginning from any convention of individuals […] yet it is the sense of their weakness and imperfection that keeps mankind together; that demonstrates the necessity of this union; and that therefore is the solid and natural foundation, as well as the cement, of society.”

Municipal laws, though they differ by jurisdiction, are generally defined thus:

A rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong.

It is, firstly, a rule, “not a transient sudden order.”  But it is also a rule of “civil conduct,” which distinguishes it from the natural and revealed laws, “the former of which is the rule of moral conduct, and the latter not only the rule of moral conduct, but also the rule of faith.”   These regard man “as a creature” and give his duty “to God, to himself, and to his neighbor.”  But the municipal law considers man “also as a citizen.”

It is, moreover, a rule prescribed.  Laws must be promulgated – and not in the manner of Caligula, “who (according to Dio Cassius) wrote his laws in a very small character, and hung them up upon high pillars, the more effectually to ensnare the people.”  Yet if they are publicly promulgated, “it is then the subject’s business to be thoroughly acquainted therewith,” for if ignorance of the law were a valid excuse, “the laws would be of no effect.”

Municipal laws are issued by the supreme power.  For this reason, “sovereignty and legislature are indeed convertible terms,” a matter which will be of some significance when we consider judicial review, a practice wholly rejected by Blackstone.  And the laws must command what is right and prohibit what is wrong, so “it is first of all necessary that the boundaries of right and wrong be established and ascertained by law.”

It might seem natural to desire some expansion upon this point, but Blackstone seems to think he dispenses with it by an account of the declaratory, directory, remedial, and vindicatory aspects of law.   This is, of course, inadequate.  The magnitude of the task – to establish “the boundaries of right and wrong” – seems totally to escape Blackstone.  Other than a rudimentary account of natural law theory – which is neither defence nor explication of method – he blithely assumes that there will be little difficulty in completing ethics and then enforcing them at law.  The size of this gap in his account of municipal laws beggars belief.  He doesn’t even make the half-hearted gesture of reassuring his readers, “The Church of England – or the common law – has already finished our project.”  Did he really not think there might be some argument about “the boundaries of right and wrong”?

Rather than taking this problem further, he lists aspects of municipal laws: they are declaratory, in that they declare what is right and wrong (sometimes they make the thing wrong – do not import from France – sometimes they identify what is already wrong – i.e. do not murder).  They are directory in that they command, “thou shalt not steal.”  This seems redundant, and Blackstone admits as much: “this [aspect of the law] virtually includes the former.”  They are remedial in that they offer remedies for wrongs, and vindicatory in that they punish malefactors.  The remedial factor seems a matter of torts, vindicatory of criminal law.

In Britain, the legislature – the body that generates new laws – is the Crown-in-Parliament, or King, Lords, and Commons acting in unison.  Blackstone’s treatment of the British constitution is deeply conventional.  He takes it as the perfect mixed state.  The Greek philosophers thought all governments were monarchical, oligarchic or democratic.  The British constitution involves all three elements: the King, the House of Lords, and the House of Commons.  The executive power is strong, the judicial power is wise (the Lords, until 2009, had an appellate judicial function) and no legislation can be enacted without the approval of all branches, guaranteeing support from all elements of society.  In practice, by the mid-1700s it must have been obvious that the royal veto was a reserve power, to be invoked only in crisis or as a defence against the further erosion of royal power.   It had not been invoked since 1708, under Queen Anne.  The King still chose the Prime Minister, which was the real source of his effective control.   Today, of course, all practical authority – and most theoretic strength – resides in the House of Commons, a development that Blackstone would have mourned.

Somewhere, Augustine writes (more or less) that it is inconceivable that there should be a body of publicly revealed truth without an equally public body – the Church – competent to interpret that revelation.  It would seem cruel to give a book delineating right from wrong without a corresponding voice to answer further questions.   Somebody has to interpret the law.  Under the common law, interpretation is the province of judges.  But it may seem more natural to repose it in the legislature.

In ancient Rome, “the usage was to state the case to the emperor in writing, and take his opinion upon it.”  But this, Blackstone baldly says, “was certainly a bad method of interpretation.   To interrogate the legislature to decide particular disputes, is not only endless, but affords great room for partiality and oppression [and] contrary to all true forms of reasoning, they argue from particulars to generals.”

Blackstone did not need to look so far afield for an example of reposing judicial functions in the legislature.  When the Commentaries were written, the House of Lords was the final court of appeal in the United Kingdom, actively exercising both judicial and legislative functions.  (During the Victorian Era, the judicial appellate function was restricted to a committee of the House of Lords, the Lords of Appeal in Ordinary, who were qualified jurists.  The Lords of Appeal retained this authority until 2009, when the Supreme Court of the United Kingdom was created.)

It is the habit of the natural sciences to argue from particulars to generals and they have enjoyed some spectacular successes by inductive reasoning.  It is also the habit of moral philosophy: all those thought experiments about manslaughtering trolley cars are meant to illuminate general principles by way of particular examples.  I do not see why this should defeat the idea of appealing to the legislature to interpret its own muddied laws.  As for “partiality and oppression,” this follows easily from Blackstone’s preferred example about the rescripts of the Roman Emperors (“rescripts” were their answers to legal questions, “edicts” their general, unprompted pronouncements) but it does not seem to apply to contemporary, democratic legislatures.  If we trust the British Parliament to make the laws it seems only logical to refer back to them for explanation when those laws are confusing.  The entire problem of judicial review would be neatly resolved by making the legislature itself the apex of the judicial branch.  The only serious objection I can see is the magnitude of the time involved, superadded to their usual duties.

Blackstone thinks that “the fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made.”  On Blackstone’s view, a judge in 1769 trying to interpret a statue from 1692 must interpret the will of the Parliament of 1692, which is collectively the author of the Act.  But since the Parliament of 1769 could just as easily repeal or modify the original statute, then why must the judge go through the laborious process of imagining himself back into the previous century?  Why not merely refer the statute to the legislative body, which can just as easily amend as interpret its meaning?

We might observe that this would open the laws to frequent fluctuation, which would be an undesirable outcome; but the legislature may, at any time, repeal any statute it has previously made.  It is not even bound by prudential habits like stare decisis.  In America, laws are generally harder to modify than to enact – once a law has leaped the three hurdles of House, Senate and Presidential veto, it is very, very difficult to  reopen the matter – but in Britain, the House of Commons rules without any serious checks and few constraints.  I do not find any of Blackstone’s counter-arguments convincing upon this point.

Having forced the judge to go through with this imaginative exercise, it seems only fair that our author should offer some interpretative advice, which he does.

“Words are generally to be understood in their usual and most known signification [according to] general and popular use.”  Blackstone says nothing about archaic legislation – of which England, even in the 1760s, had ample supply – in which the meaning of the words may be not only unclear but forgotten.  He does at least allow for “terms of art,” which must be interpreted according to their rarified and technical use.

Failing this first test – and it is, for Blackstone, the primary method of interpretation – we look to context.  He prefers consulting the preamble, or comparing the “law with other laws, that are made by the same legislator, that have some affinity with the subject, or that expressly relate to the same point.”

Words must next be taken according to their subject matter: there was a law of King Edward III forbidding all ecclesiastics from purchasing “provisions” at Rome, which did not bar them from buying “grain and other victual” but rather nominations to vacant benefices.

Considering “effects and consequences” allows much wider scope for interpretation, and is the next method.  For “the rule is, where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them.”  Blackstone cites Pufendorf who recounts a Bolognese law which enacted “that whoever drew blood in the streets should be punished with the utmost severity.”  This was held not to apply to a surgeon who, on a public road, offered medieval medical assistance to a man suffering from seizures.  (They probably would have done better to censure the surgeon.)

Lastly of all, Blackstone would have us consider “the reason and spirit” of the law “or the cause which moved the legislator to enact it.”  He even suggests that “when this reason ceases, the law itself ought likewise to cease with it.”  He recounts a story told by Cicero, of a law which provided that any man who forsook a ship in a storm relinquished all claim to any property he left behind.  It so happened that there was a ship in a storm, abandoned by all its sailors, but for one very ill passenger who had not the strength to escape.  The ship survived the storm and the passenger his disease, after which he claimed all the cargo by the terms of the law.  But since the purpose of the law was to encourage sailors to risk their lives to save their ships, the ill man was thought to be outside the meaning of the law, and his suit was denied.

Thus much for municipal laws and their interpretation: now we may consider the laws of England.

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