Posted on 09/14/2010 7:10:55 AM PDT by DariusBane
Bashing Blackstone: The Reconstructionists’ Attack in America’s Culture War [An initial version of this article was published in Rare Jewel Magazine, March-April 2005]
Sir William Blackstone, the eminent Eighteenth Century English law professor and author of Commentaries on the Laws of England, has wielded incalculable effects on law in America for the past 225 years. His Commentaries were the law textbook in Great Britain and the United States well after their initial publication. “Bashing Blackstone” is an invisible but critical dimension of the Reconstructionists (liberal/activist) attack in American’s Culture War. We Constitutionalists must therefore arm ourselves with a basic knowledge of Blackstone and his Commentaries.
I. Why Study Blackstone’s Commentaries?
Commentaries on the Laws of England (published between 1765 and 1769) by Sir William Blackstone (1723-1780) has been abandoned in the Humanistic jurisprudence (legal and constitutional philosophy) that permeates contemporary anti-Judeo-Christian judicial decisions.1 Blackstone also is virtually absent from American legal education today. What, then, is the significance of Blackstonian thought to today’s law?
The answer is simple. Blackstone’s Commentaries are one of the most complete, consistent, humanly authored expositions of the Judeo-Christian worldview of law ever written. Blackstone’s immeasurable influence on both English and American law was universally recognized until well into the Twentieth Century, although the “bashing of Blackstone” in America began after the Civil War. Christopher Columbus Langdell a militant evolutionist who became Dean of the Harvard Law School in 1870, thought Blackstonian principles had to be ripped from American law not because they were wrong, but because they were a bulwark of protection against the growing Humanistic movement headed by Langdell and other elitists.2
But Blackstone’s jurisprudential views were not quickly eliminated. In the views of distinguished observers, “The influence of Blackstone’s “Commentaries on the Laws of England . . . was phenomenal and as great in American as in England”; 3 and “Upon Blackstone’s Commentaries, United States Supreme Court Justice John Marshall and other early American jurists built the American legal system.”4 Indeed, in the most notable of Marshall’s decisions, he cited Blackstone several times to advance the concept of Constitutional supremacy over the power of judges.5 This fact is especially important today since judicial supremacists still cite Marbury as the source of judicial power. We must forcefully and consistently insist that these judges exercise judicial review only if they understand and apply this power within the entire context of Marshall’s – i.e., Blackstonian – philosophy.
Statistics also demonstrate Blackstone’s influence in America. Drs. Donald S. Lutz and Charles S. Hyneman analyzed the various sources read and cited by our Founding Fathers; Blackstone was by far the most-cited English/American scholar.6 The American Revolution was a revolt against the politics of English government, but not its legal foundations; the Commentaries, in fact, were cited nearly 10,000 times in the reports of American courts between 1789 and 1915.7
In the world of Humanistic scholarship today, these facts are ignored because history in general is scorned as central to the process of interpreting the US Constitution. But Humanists as well as the rest of us constantly cite history. The only question is whom they cite and when that which they cite occurred. The principles of
Blackstone's CommentariesBlackstone’s Commentaries infuse our Constitution, and their revival deserves our most careful attention today.
II. Who Was Sir William Blackstone?
William Blackstone was born in 1723, several months after his father’s death. His mother died when he was 12 years old. Considered a poor orphaned boy, he nonetheless received an excellent education, supported by prominent individuals, and did well in his studies. The legal profession eventually claimed him; he was entered as a student of law in the Inns of Court at the Middle Temple8 ; and in 1746 he joined the bar.
In 1750 Blackstone received the degree of Doctor of Civil Law and left the practice of law for academic life. In 1758 he was elected the first Vinerian Professor of Law at Oxford. Blackstone was highly regarded by his contemporaries who shared our Judeo-Christian worldview. Professor Frederic Maitland declared that “Bracton [“Father of Common Law”] 9 was rivaled by no English juridical writer till Blackstone arose five centuries afterwards. Twice in the history of England has an Englishman had the motive, the courage, the power to write a great readable, reasonable book about English law as a whole.”10 But his ideas drew some criticism, particularly from Jeremy Bentham, the empiricist whose views were antithetical to the Judeo-Christian worldview and significantly contributed to attacks on this worldview by later Humanists.
Blackstone wrote the Commentaries to organize and explain English law as it had come to exist by the late 1800s. He desired to reach not only “the Profession of the Common Law; but of such others also, as are desirous to be in some Degree acquainted with the Constitution and Polity of their own Country”11 and “to render the whole [of his analysis of the Common Law] intelligible to the uniformed minds of beginners . . . .”12 Blackstone first presented his material as lectures, but after students sold notes purporting to be his thoughts, he published his own edition, in four volumes.
III. What Are the Principles of the Commentaries?
Several foundational principles are expressed in both the Judeo-Christian worldview and Blackstone’s Commentaries. These principles, summarized below, reveal the extent to which American law has repudiated Blackstone.13
1. There are different types of law in the universe. Blackstone’s classification of law into six types is foundational to the rest of his philosophy and is consistent with the Judeo-Christian system of law: 1. Law as the order of the universe. “Thus when the Supreme Being formed the universe, and created matter out of nothing, He impressed certain principles upon that matter, from which it can never depart, and without which it would cease to be. When he put the matter into motion, He established certain laws of motion, to which all movable bodies must conform . . . .”14 2. Law as a rule of human action. “. . . the precepts by which man, the noblest of all sublunary beings, a creature endowed with both reason and free will, is commanded to make use of those faculties in the general regulation of his behavior.”15 3. Law of nature. “These are the eternal, immutable laws of good and evil, to which the Creator Himself in all His dispensations conforms; and which He has enabled human reason to discover, so far as they are necessary for the conduct of human actions.”16 4. Revealed law. “The doctrines . . . delivered [by an immediate and direct revelation] we call the revealed or divine law, and they are to be found only in the Holy Scriptures . . . . Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these.”17 5. Law of nations. [A]s it is impossible for the whole race of mankind to be united in one great society, they must necessarily divide into many . . . . [the regulation of their interaction] is the law of nations . . . [it] depends entirely upon the rules of natural law, or upon mutual compacts, treaties, leagues, and agreements . . . .”18 6. Municipal law. “[This is] a rule of civil conduct, prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong.19 But no human authority can act without limits.”20 2. God is the Creator of the universe, man, the very concept of law, and several universal laws; and his original Creation was ex nihilo (“out of nothing”). Blackstone was certainly not an evolutionist! But the evolutionistic fervor of later legal scholars was a major force in America’s abandonment of Judeo-Christian/Blackstonian jurisprudence in the Twentieth Century. 3. God has built into the universe fundamental laws that are fixed, immutable, and must be obeyed. 4. Man is a dependent creature who is not to disobey God’s fixed laws but is given free will and reason to discover and choose his actions within the limits of God’s laws. 5. Man’s reason is corrupt and cannot, by itself, discover and apply God’s law. 6. God is not only the Creator, but a Being of infinite power, wisdom, and goodness. 7. God created man and His fundamental laws in such a way that man can be happy only when he is obeying God’s law. 8. Revealed law, natural law, and human law exist in a clear and inseparable relationship to one another. 9. The purpose of human law is to “command what is right, prohibiting what is wrong.” 10. Human law is not to violate God’s law, but is to decide what are right and wrong in regard to “things in themselves indifferent” (i.e., actions that are not intrinsically right or wrong but are declared so by human lawmakers). 11. Human law’s most effectual tool for producing right conduct and preventing wrong conduct is sanctions – punishment. 12. At the time of Creation, God gave man dominion over all the earth, but changes in society ultimately necessitated the emergence of individual property ownership. 13. There are three primary personal rights:
* Personal security. The right …consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.21 * Personal liberty. This personal liberty consists in the power of locomotion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.22 * Right of private property: law of the land. [This right] consists in the free use, enjoyment, and disposal [by man] of all his acquisitions, without any control or diminution, save only by the laws of the land.23
14. Human judges are empowered to interpret the will of the legislature by certain distinct standards,24 including: * The usual meaning of words; * Context of the words being interpreted; * Subject matter of the law; * Effect of the interpretation—absurd meanings must be avoided; * The reason for the law—why it was promulgated
IV. The Dangers of Bashing Blackstone
The dangers of rejecting the principles of Blackstone’s Commentaries, and the Judeo-Christian worldview they reflect, are monumental. Two scholars of widely varying perspectives – Alexander Solzhenitsyn, the Russian dissident; and David Easton, the influential, secular American political scientist – agree on the dangers that America faces. Solzhenitsyn asserts that Western society, including American society, has suffered a critical decline and deterioration. A key contributor to this perilous situation has been the rise of a de-spiritualized and irreligious humanism, which presages the impending downfall of Western society absent a reversal of Western attitudes, including renewed faith in a Supreme Being.
Easton attempts to analyze and explain political systems with a model that emphasizes “stress.” He argues that “stress” is a major enemy of a political system that can lead to the system’s failing: “Major tendencies toward output failure [by the political system] are set in motion by internal dissension and conflict among members of the political system. Cleavages [diversity of opinions and attitudes] may so divide the members of the political system [including the judicial system] that they find themselves unable to cooperate, negotiate, or compromise their differences. Cleavage… is a central condition in inducing output failure by government and undermining support [for government] in other ways as well.25
The principles of Blackstone’s Commentaries are a bulwark against the “impending downfall” of our society, and the cement that prevents lethal cleavages from rending America in two. We can re-establish our Constitution and culture on Blackstonian/Judeo-Christian principles, or we can continue bashing Blackstone, and destroy America as we know it. There are no other options.
FOOTNOTES
1Blackstone, Sir William, Commentaries on the Laws of England, William Carey Jones, editor (Baton Rouge: Claitor’s Publishers, 1976). All citations of the Commentaries are to this edition. 2Herbert W Titus, “God, Evolution, Legal Education, and Law,” Journal of Christian Jurisprudence, 1980, 11 3Lee Cameron McDonald, Western Political Theory. (New York: Harcourt, Brace, Jovanovich, Inc, 1968), 360 4Herbert W Titus, “Moses, Blackstone and the Law of the Land,” Christian Legal Society Quarterly, vol. 1, no.4, Fall, 1980, 5 5Marbury v Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803) 6Donald S. Lutz, “The Relative Influence of European Writers on Late Eighteenth Century American Political Thought,” American Political Science Review, vol. 78 (1984), 184 7“Concerning the Commentaries,” in the Commentaries, xxvii 8“Inns of the Court” have existed for centuries as England’s agency for the legal education of barristers (England’s upper level of lawyers), calling candidates to the bar, disciplining the profession, and even disbarring barristers. They were originally lodging places for law apprentices but later came to occupy extensive districts. 9Henry Lord Bracton was a Thirteenth Century English jurist whose writings and fervent commitment to advancing the fledgling Common Law system earned him the title “Father of the Common Law.” “Common Law” has prevailed in England and much of the world influenced by English jurisprudence for more than 800 years, It is distinguished from the "Civil Law System," which is based in old Roman Law and which survives in some forms where the imperial nations of southern and southwestern Europe dominated. 10Frederic Maitland, quoted in the Commentaries, “Introduction,” xxvi. 11Commentaries, xv 12Commentaries, 35 13See also, by Virginia Armstrong: “The US Constitution and a ‘Trio of Truths,’” Rare Jewel Magazine, May/June 2004, pp 29-31; “Sodomy, Survival, and the Supremes,” Rare Jewel Magazine, July/August 2004, pp 27-29; “Curbing the Courts,” Rare Jewel Magazine, October/November 2004, pp 32-33 14Commentaries, “Introduction,” 38-39 15Ibid., 39 16Ibid., 40-41 17Ibid., 42-43 18Ibid., 43. But Blackstone certainly did not consider world government or a "global community" to be either possible or desirable 19Ibid., 44 20Ibid., 54. God-given rights and duties cannot be violated. 21Commentaries, Book I, 129. 22Ibid., 134 23Ibid., 138 24Commentaries, “Introduction,” 60-62 25David Easton, A Systems Analysis of Political Life. (Chicago: University of Chicago Press, 1965), 276-277
My favorite "take away":
There are three primary personal rights:
* Personal security. The right …consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.21 * Personal liberty. This personal liberty consists in the power of locomotion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.22 * Right of private property: law of the land. [This right] consists in the free use, enjoyment, and disposal [by man] of all his acquisitions, without any control or diminution, save only by the laws of the land.23
Good post.
I cite Blackstone in my legal breifings - people think I am nuts. But when you read Blackstone, you see threads of history that connect to nearly all parts of our laws. The clarity of Blackstone and the wisdom of the founders to embrace him set the foundation for American exceptionalism.
“I cite Blackstone in my legal briefings - people think I am nuts.”
Conservatives here on Free Republic have the same reaction. Most modern Americans don’t have the underpinnings of Natural Law. That’s why they can be talked into just about any new government power.
Jefferson's University (UVA) was to use Blackstone's Commentaries and "THE FEDERALIST" as texts for its law school, as the basis for teaching the U. S. Constitution.
The following essay from "Our Ageless Constitution" (see footnote)quotes Blackstone:
"Man ... must necessarily be subject to the laws of his Creator.. This will of his Maker is called the law of nature.... This law of nature...is of course superior to any other.... No human laws are of any validity, if contrary to this: and such of them as are valid derive all their force...from this original." - Sir William Blackstone (Eminent English Jurist)
The Founders DID NOT establish the Constitution for the purpose of granting rights. Rather, they established this government of laws (not a government of men) in order to secure each person's Creator endowed rights to life, liberty, and property.
Only in America, did a nation's founders recognize that rights, though endowed by the Creator as unalienable prerogatives, would not be sustained in society unless they were protected under a code of law which was itself in harmony with a higher law. They called it "natural law," or "Nature's law." Such law is the ultimate source and established limit for all of man's laws and is intended to protect each of these natural rights for all of mankind. The Declaration of Independence of 1776 established the premise that in America a people might assume the station "to which the laws of Nature and Nature's God entitle them.."
Herein lay the security for men's individual rights - an immutable code of law, sanctioned by the Creator of man's rights, and designed to promote, preserve, and protect him and his fellows in the enjoyment of their rights. They believed that such natural law, revealed to man through his reason, was capable of being understood by both the ploughman and the professor. Sir William Blackstone, whose writings trained American's lawyers for its first century, capsulized such reasoning:
"For as God, when he created matter, and endued it with a principle of mobility, established certain rules for the...direction of that motion; so, when he created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws."
What are those natural laws? Blackstone continued:
"Such among others are these principles: that we should live honestly, should hurt nobody, and should render to every one his due.."
The Founders saw these as moral duties between individuals. Thomas Jefferson wrote:
"Man has been subjected by his Creator to the moral law, of which his feelings, or conscience as it is sometimes called, are the evidence with which his Creator has furnished him .... The moral duties which exist between individual and individual in a state of nature, accompany them into a state of society . their Maker not having released them from those duties on their forming themselves into a nation."
Americas leaders of 1787 had studied Cicero, Polybius, Coke, Locke, Montesquieu, and Blackstone, among others, as well as the history of the rise and fall of governments, and they recognized these underlying principles of law as those of the Decalogue, the Golden Rule, and the deepest thought of the ages.
An example of the harmony of natural law and natural rights is Blackstone's "that we should live honestly" - otherwise known as "thou shalt not steal" - whose corresponding natural right is that of individual freedom to acquire and own, through honest initiative, private property. In the Founders' view, this law and this right were inalterable and of a higher order than any written law of man. Thus, the Constitution confirmed the law and secured the right and bound both individuals and their representatives in government to a moral code which did not permit either to take the earnings of another without his consent. Under this code, individuals could not band together and do, through government's coercive power, that which was not lawful between individuals.
America's Constitution is the culmination of the best reasoning of men of all time and is based on the most profound and beneficial values mankind has been able to fathom. It is, as William E. Gladstone observed, "The Most Wonderful Work Ever Struck Off At A Given Time By he Brain And Purpose Of Man."
We should dedicate ourselves to rediscovering and preserving an understanding of our Constitution's basis in natural law for the protection of natural rights - principles which have provided American citizens with more protection for individual rights, while guaranteeing more freedom, than any people on earth.
"The end of law is not to abolish or restrain, but to preserve and enlarge freedom." -John Locke
Footnote: Our Ageless Constitution, W. David Stedman & La Vaughn G. Lewis, Editors (Asheboro, NC, W. David Stedman Associates, 1987) Part III: ISBN 0-937047-01-5
here
Thank You!
“Under this code, individuals could not band together and do, through government’s coercive power, that which was not lawful between individuals.”
That assertion is the basis of so many debates here on Free Republic.
Because people really really want to use governments coercive power for, well, as a remedy for every pet aggravation. If a free-man dares to resist the unlawful law, he will be beaten, tasered, shot, and thrown in prison to the cheers of the Athenian rabble. That’s at “Free” Republic.
I hope to resurrect and old article that is worth the read; ping list?
This is a golden oldie from 2010 about Blackstone, the law and how it influenced our own system.
When it was published in 1803, part of it was made into a pamphlet and distributed by order of Congress so that the People, who were used to English law, could see how it functioned in American law.
“Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these.”
Great read. Thanks.
In law school you read treatises on each area of the law - horn books. Blackstone was the original horn book for American Lawyers.
I guess he finally won that killer cage match with Vattel ...
Thank you I had forgotten.
That’s true. I hope freepers will read the article and educate themselves
Thanks for the ping.
Thanks for the ping. A good reminder.
I thought it might be time to bring this old thread back since David Hogg is pushing so hard...
Thanks for the ping.
This information is timeless!
To DariusBane, I hope you are considering a series of posts on Blackstone. One isn’t enough.
I believe I will. Perhaps tonight or Sunday.
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