By Kent Schmidt
One of the greatest ironies of American history is the influence of Sir William Blackstone on the American War for Independence. Blackstone, though most famous for his Commentaries on the Laws of England, also enjoyed a distinguished career as a prominent member of Parliament, faithfully supporting the Crown and stingingly criticizing the Colonies for their insurrection and disloyalty to their mother country.1 Contemporaneous with his tenure in Parliament (1761–1770), Blackstone put the finishing touches on the Commentaries, which ironically served to defeat the cause of British sovereignty for which he so loyally fought. Little did Blackstone realize that his project to systemize the English common law2 would fuel the American flames of desire for independence from the Crown.
It is interesting to speculate how Blackstone would have refined his writings had he known that they would be devoured so heartily by the Colonists3 and utilized to encourage their rebellion against the Crown to which his loyalties belonged. The Commentaries were so well received by the Colonists that Edmund Burke noted in 1775 that nearly as many of Blackstone's Commentaries had been sold in America as in England.4 At least one thousand copies of the English edition had been sold in the United States by 1771, prompting printer Robert Bell of Philadelphia to propose a domestic edition. Fifteen hundred of these sets were ordered by lawyers, judges, public officers, and interested laymen throughout the Colonies.
While much has been written regarding the influence of Blackstone on the formation and development of various aspects of early American law from legal education to the common law, this thesis probes specifically into the contribution which Blackstone made in the areas of natural law which became the foundation of America's two primary founding documents: the Declaration of Independence and the Constitution.
I. the influence of blackstone on the declaration of independence
A. The Source of Law
While Blackstone was certainly not the first to set forth a concept termed “natural law,” his philosophy was distinguishable from others by his identification of the source of natural law. Cicero and Grotius, for instance, believed that the law of nature, which is binding upon all humans just as surely as gravity affects all of nature, is nothing more than the voice of reason.5 In sharp contrast to this humanistic view of natural law, Blackstone believed that the law of nature is not only binding on all men, but that it is dictated by God Himself.6
These precepts [in the Bible] when revealed, are found upon comparison to be really a part of the original law of nature. . . . But we are not from thence to conclude that the knowledge of these truths was attainable by reason, in its present corrupted state since we find that, until they were revealed, they were hid from the wisdom of the ages.7
Thomas Jefferson reflected Black-stone's view when he used the phrase “law of nature and of nature's God” in the Declaration. This phrase indicates that Jefferson understood the difference between Blackstone's theory and that of Grotius and Cicero. The law of nature refers to the will of God observable in creation while the law of nature's God refers to the divine law which is revealed through the Scriptures. While Jefferson affirmed Blackstone's view of natural law, he abhorred the influence of Blackstone in the adoption of the English common law in the Colonies. Because of Jefferson's significant role in the founding of America, it is necessary to discern precisely where he agreed with Blackstone as well as where he disagreed.
B. The Origin and Nature of Rights
The philosophy of the Declaration states that man is endowed by his Creator with the independence to which he is entitled by the law of nature. It also states that certain rights are unalienable because they are founded in the human nature, having their source in the Creator of the human race, and that governments are originated to secure these rights among men.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by the Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.8
The concept of Creator-endowed rights, which accords with Blackstone,9 is best understood by contrasting it with the beliefs of the Greeks and Romans who believe in state-created rights. As one scholar has noted:The Greeks could not conceive of “rights” which were God-given.The Greeks believed that “rights” were a product of society and state. Only free men had rights, because free men were able to participate in the government of polis, the “city.” Slaves, women, and children did not share those rights because they had no political voice. What rights men had were created by the state and could be ended by the state. Rights were politically given and were subject to the political process, rather than God-given.10
C. The Morality of Insurrection
It is important to note that the Colonists were a very conscientious people. As the Declaration was disseminated to the common patriots of New England, it solidified their commitment to the principles of independence and resolved whatever doubts they had regarding the morality of a war for independence. More specifically, as American writers, including Thomas Paine,11 began to speak of the duty of self-preservation—the idea of a law that was higher and superior to the law of England—the spirit of the revolution began to spread.
This law of nature, being co-eval with mankind and dictated by God himself, is of course superior to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.12 (Emphasis added.)
History demonstrates that the Colonists, unlike their counterparts in France, were not anarchists desiring to shed every shackle of legitimate government, but were rather conscientious and methodical in coming to the decision that they must separate from Britain. In essence, the Colonists believed that, in spite of what Blackstone stated in Parliament,13 what he wrote in reference to the effect which laws contrary to the law of nature have on their subjects justified their cause.
D. Life, Liberty, and the Pursuit of Happiness
It is axiomatic that the right to life is foundational to all other rights. On this subject, Blackstone stated:The right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. Life is an immediate gift from God, a right inherent by nature in every individual. . . .14
Jefferson's use of the term “pursuit of happiness” has been distorted to justify a philosophy which borders on anarchy. The Founding Fathers' understanding of the concept of happiness was much closer to that of Blackstone, who stated that the Creator has so intimately connected, so inseparably interwoven the laws of eternal justice with the happiness of each individual that the latter cannot be attained but by observing the former; and if the former be punctually obeyed, it cannot but induce the latter. In consequence of which mutual connection of justice and human felicity, he has not perplexed the law of nature with a multitude of abstract rules and precepts, referring merely to the fitness or unfitness of things . . . but has graciously reduced the rule of obedience to this one paternal precept, “that man should pursue his own true and substantial happiness.”15
It is not at all surprising that Thomas Jefferson used the phrase “life, liberty, and the pursuit of happiness” to describe unalienable rights.
II. the influence of blackstone on the constitution
A. No Taxation Without Representation
In a sense, the Declaration was a document listing grievances against a government which the Signers believed had failed to operate in accordance with the laws of nature. Chief among the grievances listed in the Declaration was the fact that King George violated the “laws of nature and of nature's God” by “imposing taxes on us without our consent.” Colonies were taxed but denied representation in Parliament.In contrast, the Constitution documents how the Founding Fathers believed that an ideal government, in submission to the law of nature, should operate. Accordingly, the Constitution sought to remedy the taxation problem by requiring in Article I, Section 7, that bills for revenue originate in the House of Representatives, the body of government closest to the American people.16
B. The Unalienable Right to Property
An understanding of Blackstone's beliefs on property rights is impossible apart from an understanding of his beliefs on happiness, for he believed that the latter depended on the former. Blackstone stated that a right to property “tends to man's real happiness, and therefore justly concluding that . . . it is a part of the law of nature.”17 Likewise, according to Blackstone, the converse is true—denial of property rights is “destructive of man's real happiness, and therefore the law of nature forbids it.”18
Richard A. Huenefeld has noted the following concerning Blackstone's influence on the Founding Fathers' view of property rights:
The influential Blackstone said that the right of private property “consists in the free use, enjoyment, and disposal of all [personal] acquisitions.” While he spoke of the “sacred and inviolable rights of private property,” he equivocated concerning the origin and nature of property rights. He indicated that the “origin of private property is probably found in nature,” but that much of this natural liberty was sacrificed in order to enjoy society's protection of it. Apparently he was uncertain whether to adopt a law of nature position or a social compact theory. Blackstone turned to the revealed law of God for “the only true and solid foundation of man's dominion over external things.” He referred to Genesis chapter one wherein the Creator gave man “dominion over all the earth.” From this, Blackstone considered this common ownership sufficient for only a short time as the growth of population led to conflicts over the subject of dominion. He adopted a social compact theory, asserting that “[n]ecessity begat property,” meaning that civil laws recognizing the institution of property were needed for beneficial resolution of conflicts. He modified his social compact theory by holding that “bodily labour, bestowed upon any subject which before lay in common to all men, is universally allowed to give the fairest and most reasonable title to an exclusive property therein.”19
When the Framers engrafted the right to property into the Constitution—with all of its complexities and exceptions—the theories of Blackstone were, without a doubt, of paramount influence.
C. The Unalienable Right of Self-Defense
Blackstone's view of the right to bear arms is stated in the following quote:
The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defense . . . which is also declared by the same statute 1 W. & M. st. 2, C. 2, and it is indeed, a public allowance under due restrictions, of the natural right of resistance and self-preservation.20
The Second Amendment of the United States Constitution provides that a “well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.”21 The question of the source of this principle is difficult because of the extensive history of debate in England and virtually every other society which has attempted to maintain a balance between anarchy and oppressive government. However, it is safe to say that the American belief in the right to bear arms has its roots in “civil jurists of the period who had specifically dealt with the question of self-defense as a natural right.”22 It has been noted that their doctrine stemmed essentially from the traditional view of suicide as a sin and perhaps as the ultimate sin. To them a failure to defend yourself against an unlawful aggression amounted to suicide by inaction. If a person's life is a gift of the Creator and he cannot destroy it by action, he cannot destroy it by inaction or negligence. If life is not the private property of the person living, then it is not his to destroy or allow to be destroyed: you may voluntarily acquiesce to robbery; you may not voluntarily acquiesce to murder.23
It is not coincidental that the ideas in the Declaration of Independence and Constitution were espoused less than a decade after Blackstone's Commentaries first appeared in print in England. The correlation between the philosophy of America's founding documents and the Commentaries is worthy of careful exploration.
1. One scholar has gone so far as to say that “Blackstone was very extreme in his anti-American bias, and he appeared among the most vociferous advocates of a harsh and uncompromising attitude. . . . It was this narrow and uncompromising outlook which led to the break with the American colonies.” Chroust, Blackstone Revisited, 17 U. Kan. City L. Rev. 24, 28–29 (1948).
2. Blackstone's purpose in writing the Commentaries was much narrower in scope than the influence which they actually had. See I.G. Doolittle, Sir William Blackstone and His Commentaries on the Laws of England (1765–9): A Biographical Approach, 3 Oxford J. Legal Stud. 99, 108 (1983), citing Holdsworth, History of English Law xii, 745–6. “[T]he `Proposals' advertising his first course of lectures in 1753 spoke of his attempt `to lay down a general and comprehensive plan of the laws of England, to deduce their history, to enforce and illustrate their leading rules and fundamental principles, and to compare them with the laws of nature and of other nations, without entering into practical niceties, or the minute distinctions of particular cases.'”
3. Dennis R. Nolan, Sir William Blackstone and the New American Republic: A Study of Intellectual Impact, 51 N.Y. Univ. L. Rev. 731, 737 (1976), citing F. Hicks, Men and Books Famous in the Law 126 (1921) and P. Hamlin, Legal Education in Colonial New York 64–65 (1939).
4. Address by Edmund Burke, Speech on Moving His Resolutions for Conciliation with the Colonies, Mar. 22, 1775, in 2 The Works of the Right Honorable Edmund Burke 101, 125 (6th ed. 1880).
5. Tom N. McInnis, Natural Law in the American Revolutionary Struggle, 16 Legal Studies Forum 41, 44 (1992).
6. 1 William Blackstone, Commentaries 41.
8. The Declaration of Independence para. 2 (U.S. 1776).
9. Blackstone, supra note 6 at 129.
10. Gary T. Amos, Defending the Declaration, 112 (1989).
11. McInnis, supra note 5 at 41.
12. Blackstone, supra note 6.
13. See note 1 and corresponding text.
14. Blackstone, supra note 6 at 129.
15. Blackstone, supra note 6 at 40–41.
16. U.S. Const. art. I, § 7, “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments on other Bills.”
17. Blackstone, supra note 6.
19. Richard A. Huenefeld, The Unalienable Right of Property: Its Foundation, Erosion and Restoration, 8 J. Christian Jurisprudence 147, 167–168 (1990), citing 1 William Blackstone, Commentaries at 138, 140, 2 William Blackstone, Commentaries at 3, 8.
20. Blackstone, supra note 6 at 144.
21. U.S. Const. amend. II.
22. David T. Hardy, The Unalienable Right to Self-Defense and the Second Amendment, 8 J. Christian Jurisprudence 87, 97 (1990).
Kent J. Schmidt is a trial lawyer practicing in Irvine, California.