i start by digressing.—
a witticism widely observed at law schools, to the effect that “a” students make professors, “b” students make judges and “c” students make money, while perhaps intended more as a salve to cure the hurts of poor students, has some merit, and application to the real world of law practice. the challenges of law practice and trial work are not primarily intellectual, and are more akin to the stratagems of a military campaign than the application of pure reason: thus, in great civil affray, it is not uncommon that lawyers make competent generals, though seldom great ones. and, the talents of those who expound the law are not generally the talents of great practitioners, as the demands of intellectual rigor and detachment, of weighing and judging, are not the demands of the partisan adversary seeking to advance the needs and desires of his client, nor particularly suited to such a task.
thus it was that sir william blackstone, a great compiler and communicator of the law, was apparently neither a very accomplished lawyer nor a particularly competent judge, working as both at various times in his career. nor did he advocate advancements or novel applications of the law. he was, however, a quite brilliant communicator, compiler and exponent of the virtues of the system of laws whose developments and doctrines he undertook to summarize and describe in the early 1760’s in england. his particular genius was to see the common threads and connections that ran through the law, the policy considerations that had developed it that far, and the ability to discern how history and its values and demands had shaped that law.
he was, in short, a brilliant exponent of that which had gone before him.
he was not novel. he was not a creator. he was not a great philosopher. he was a person who looked at what his fore bearers had wrought before him, at the privilege it had conferred on some and the opportunity it offered most and balanced that against the want that some suffered, and pronounced himself pleased. there is no disguised criticism in that summation, as the same can be said of hegel, who after describing the operation of the dialectic as applied to the actual workings of societies and history, pronounced that the then existing german state was the final and best expression of the workings of the historical dialectic, looked at the result, and pronounced himself pleased as well.
people should be proud of their epochs, and their place in them.
the above is simply to prepare you for the reality that in reading the considerable material below set forth from blackstone, that all of it is subject to intellectual and historical criticism, and that all of it reflects blackstone’s comfort and familiarity with certain world views and philosophical assumptions which you may not share, and with which you may hold some antagonism. you may not share blackstone’s view, common enough in the mid-1700’s and bulwarked by the writings of locke and rosseau, that the rights of man devolved from rights held in a “state of nature” precedent to the creation of societies and states, but you should understand that these views held great sway, and that they are fundamental to the system of law and politics which governs this country to this day.
these views may be under attack by latter day adherents to the marxist and socialist sentiments of marcuse and allinsky, and other “community organizers” of our times, but they have yet to be displaced, and you should understand how they were espoused and expressed by blackstone, who was concerned with the foundations, philosophies and assumption girding and supporting the operation of government in england.
for england was a nation of laws. and, the proper end of the application of law, in blackstone’s view, was the pursuit of liberty, personal and political. says blackstone, in commentaries on the laws on england, at the end of chap. 1, of the absolute right rights of individuals, book 1, of the rights of persons:
“so that this review of our situation may fully justify the observation of a learned french author, who indeed generally both thought and wrote in the spirit of genuine freedom; and who hath not scrupled to profess, even in the very bosom of his native country, that the english is the only nation in the world, where political and civil liberty is the direct end of its constitution.” sir william blackstone, commentaries on the laws of england, vol. 1, of the rights of persons (1765), the university of chicago press, chicago & london, pub. 1979, pages 140-141.
that monsieur montesquieu should so opine seemed cogent and persuasive to blackstone: in his view english law, society and constitution was the salutary result of a social compact between persons, and between persons and sovereign, designed to assure that by the entry into same each person was to retain as much of his natural freedom existing prior to the compact as possible, and that the proper aims of government should be to impose upon and regulate the residuum of natural right as little as possible. odd as it may seem to the contemporary mindset, which wants to see the “vigourish” in all situations, blackstone saw nothing sinister or inherently exploitive in this relationship, and saw it conferring mutual benefit upon all concerned.
blackstone saw this compact as follows, and note that the compact is “renewed” upon the “entry” of each new participant into the compact:
“the absolute rights of man, considered as a free agent, endowed with discernment to know good from evil, and with power of choosing those measures which appear to him to be most desirable, are usually summed up in one general appellation, and denominated the natural liberty of mankind. this natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature: being a right inherent in us by birth, and one of the gifts of god to man at his creation, when he endued him with the faculty of free-will. but every man, when he enters into society, gives up a part of his natural liberty, as the price of so valuable a purchase; and, in consideration of receiving the advantages of mutual commerce, obliges himself to conform to those laws, which the community has thought proper to establish. and this species of legal obedience and conformity is infinitely more desirable, than that wild and savage liberty which is sacrificed to obtain it. for no man, that considers a moment, would wish to remain the absolute and uncontrolled power of doing whatever he pleases; the consequence of which is, that every other man would also have the same power, and then there would be no security to individuals in any of the enjoyments of life. political therefore, or civil, liberty, which is that of a member of society, is no other than natural liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the publick. hence, we may collect that the law, which restrains a man from doing mischief to his fellow citizens, though it diminishes the natural, increases the civil liberty of mankind: but every wanton and causeless restraint of the will of the subject, whether practiced by a monarch, a nobility, or a popular assembly, is a degree of tyranny.” commentaries, pages 121-122.
to blackstone the proper aim of government and law (they are the same, my use is redundant) is the preservation of each person’s maximum quantum of liberty: this is as inimically apposite to the obedience of a muslim to the tenants of islam. for blackstone posits a political system designed to foster the expression of each person’s free will, in absolute contrast to the obedience demanded of each muslim to the strictures as set forth by mohammed. says blackstone:
“for the principle aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature; but which could not be preserved in peace without the mutual assistance and intercourse, which is gained by the institution of friendly and social communities. hence it follows, that the first and primary end of human laws is to maintain and regulate these absolute rights of individuals. such rights as are social and relative result from, and are posterior to, the formation of states and societies: so that to maintain and regulate these, is clearly a subsequent consideration.” commentaries, page 120.
we may consider that to blackstone those absolute rights referred to exist before the formation of states and societies, and this shall be commented upon latter.
it should be understood that in blackstone’s conceptualization of things, such rights while serving to confer considerable benefit were not without commensurate burden, e.g., with almost every right conferred there is associated a duty which is imposed upon another. blackstone sets the matter out in this manner, and the notion expressed in this particular passage is a notion that i intend to visit and expand upon in the posts that follow. says blackstone of the reciprocity involved between duties and rights:
“both may indeed by comprised in this latter division; for, as all social duties are of a relative nature, at the same time that they are due from one man, or set of men, that must also be due to another. but, I apprehend it will be more clear and easy, to consider many of them as duties required from, rather than rights belonging to, particular persons. thus, for instance, allegiance is usually, and therefore most easily, considered as the duty of the people, and protection as the duty of the magistrate; and yet they are, reciprocally, the rights as well as duties of each other. allegiance is the right of the magistrate, and protection the right of the people.” commentaries, page 119.
i am going to interject some personal opinion in here, quite overtly, as i am old, and crotchety, and feel just like i have earned the right to do so, … , so there. by trade, craft and experience, lawyers tend to be rather pragmatic, empirical and tolerant of changing circumstances. lawyers do not tend to be ideologues, at least not old ones, or at least not old ones who were educated in the liberal arts: the new smartsy fartsy one tend to be raging ideologues, but maybe they will grow out of it.
lawyers tend to be anglo saxon types, as the common law is anglo saxon, with some norman overtones.
continental theorists & jurists, on the other hand, have tended towards being highly ideological, slavishly adhering to definition, and maxim and theorem, and worshipping upon the alter of theory and postulate. when given or having seized the opportunity to exercise power, these ideologues have tended to try and force physical reality to conform to the theory as found in the tome. it has been thus since the french revolution, and it was thus that joseph stalin, when confronted with the reality of kulaks, e.g., “middle class” peasants who were unaccounted for, and unaccountable under, marxist/lenist economic theory, simply had the kulaks shot, dispersed, exterminated and otherwise eliminated: no ideological inconsistencies from that source any more. this was a little brutal, but a simple and straightforward way, much in keeping with stalin’s personality, to get rid of doctrinal inconsistency.
and, very european. eropeans seem comfortable with societies and legal systems established by definition, imposed by this or that regime or government.
by contrast, in my view, lawyers (and hence, legislators) in the anglo saxon tradition seem comfortable seeing things as given to flux, imperfection, change and free from determination by intellectual definitions, and do not expect things to be always and entirely rational. lawyers raised and matured in the anglo saxon tradition, if running a country, would never consider eliminating an entire class of people, the kulaks, for example, just to tidy up the organizational chart: just not done, old fellow. they would slap a tax of some ridiculous sort or another upon such a group, especially if it looked profitable to the exchequer, but would never consider “liquidation” just to keep things tidy.
they tend to look to history for validation of their theoretical views, to the extent that they hold them.
in short, lawyers do not expect things to be static over time, nor do they expect them to conform to definitional norms.
this, very english. or, at least it used to be, until generations after generation of intellectuals received their intellectual rearing at oxford in continental doctrinarism, of one sort or another, usually marxist/leninism.
so, we find in blackstone, no sense of irony or contradiction that absolute human rights are subject to manipulation by social and historical forces, but only a friendly appreciation of the fluid nature of the determination of the content of the “absolute” human rights which he talks about in chapter one, “of the absolute rights of individuals.” further, we find no abhorrence in his view that these “absolute” rights quite often were “defined” by conflict and strife, up to and including war, nor does he seem perturbed that their content quite often represented accommodations between factions of the most expedient nature, rather than the work of rarified intellect.
this, of course, comes from a thoroughly english and thoroughly non-doctrinaire appreciation of the events and personalities of history: it is, for the most part, the kind of acceptance of actual fact and occurrence which the continental theorist is entirely incapable of bringing himself to. it is an elevation of human nature to levels entirely unacceptable to europeans, especially frenchmen, placing far too much emphasis upon actual events as opposed to turgid theorizing.
if you have the least concern with what i have just said, i have two responses: 1.)so?, and 2.)compare the first ten amendments to the united states constitution, commonly referred to as the bill of rights, and the declaration of the rights of man, approved august 26, 1789 by the national assembly of france. hint: the bill of rights has withstood the tumult of time, and remains a serviceable device for the restraint of governmental actions, probably because of its clarity and simplicity, while the declaration of the rights of man did absolutely nothing to restrain the imposition of the french “terror” soon to follow under monsieur robespierre, in spite of its elevated and highfalutin language.
so we have this, from blackstone, on the realities of the malleability of absolute right given the realities of political strife and conflict in a living constitution and society (hint, the two are the same in blackstone’s perception):
“the absolute rights of every englishman (which, taken in a political* and extensive sense, are usually called their liberties) as they are founded on nature and reason, so they are coeval with our form of government; though subject at times to fluctuate and change: their establishment (excellent as it is) being still human.** at some times we have seen them depressed by overbearing and tyrannical princes; at others so luxuriant as event to tend to anarchy, a worse state than tyranny itself, as any government is better than none at all. but the vigour of our free constitution has always delivered the nation from these embarrassments, and, as soon as the convulsions consequent on the struggle have been over, the balance of our rights and liberties has settled to its proper level; and their fundamental articles have been from time to time asserted in parliament, as often as they were thought to be in danger.
first, by the great charter of liberties, which was obtained, sword in hand, from king john; and afterwards, with some alterations, confirmed in parliament by king henry the third, his son. which charter contained very few new grants; but, as sir edward coke observes, was for the most part declaratory of the principal grounds of the fundamental laws of england. afterwards by the statuette called confirmatio cartarum, whereby the great charter is directed to be allowed as the common law; all judgments contrary to it are declared void; copies of it are ordered to be sent to all cathedral churches, and read twice a year to the people; and sentence of excommunication is directed to be as constantly denounced against all those that by word, deed, or counsel act contrary thereto, or in any degree infringe it. next by a multitude of subsequent corroborating statutes, (sir edward coke, I think, reckons thirty two,) from the first edward to henry the fourth. then, after a long interval, by the petitions of right; which was a parliamentary declaration of the liberties of the people, assented to by king charles the first in the beginning of his reign. which was closely followed by the still more ample concession made by that unhappy prince to his parliament, before the fatal rupture between them; and by the many salutary laws, particularly the habeas corpus act, passed under charles the second. to these succeeded the bill of rights, or declaration delivered by the lords and commons to the prince and princess of orange 13 february 1688; and afterwards enacted in parliament, when they became king and queen: which declaration concludes in these remarkable words: “and they do claim, demand, and insist upon all and singular the premises, as their undoubted rights and liberties.” and the act of parliament itself recognizes “all and singular the rights and liberties asserted and claimed in the said declaration to be the true, antient, and indubitable rights of the people of this kingdom.” lastly, these liberties were again asserted at the commencement of the present century, in the act of settlement, whereby the crown is limited to his present majesty’s illustrious house, and some new provisions were added at the same fortunate aera for better securing our religion, laws, and liberties; which the statute declares to be “the birthright of the people of england;” according to the antient doctrine of the common law.” commentaries, pages 123-124.
gentle reader, you have a lame and deaf ear indeed if you do not hear the violence, tumult and conflict set forth in the above paragraph, as crown and nobility and emerging classes and even perhaps peasantry struggled for ascendency or equal status in the formation of these acts. these are not mere pieces of legislation, but these acts are the strife of centuries giving rise to the dimensions of rights, privileges and prerogatives of a vital and fluid society.
and, gentle reader, you have not much apperception of attitude and stance, if you do not note blackstone’s approval, intellectually, historically and legally, of the role that human personality, will, desire and fortitude play in the shaping of the dimension and vitality of the law, of the content of right and privilege, in the shaping of a constitutional history in the great country in which he was born and in which he flourished, as a great exponent and defender of that history.
this history, gentle reader, is written in the blood of its protagonists, and more than one person gave his life to this process on the thrust of the wrong end of a sword, or swung on the loser’s side of the gibbet.
this history, the rights devolving from it, issued from the gouts of blood given by its protagonists, born of struggle.
armed struggle. not intellectual parsing.
lest there be any doubt on this score, we have this last observation from blackstone on the great protections available to englishmen of their rights and liberties:
“the fifth and last auxiliary right of the subject, that i shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. which is also declared by the same statute 1 w. & m. st. 2 c.2 and is indeed a public allowance, under due restrictions, of the natural right of resistance and self preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.” commentaries, page 139.
from all of the above, it is abundantly clear that sir william blackstone regarded if not with favor, then at least historical acknowledgement, the role of the armed citizen in shaping the context, content and expression of the rights of free men in the political and social history of england. inherent is this perception of english history is an appreciation for recourse to violence, armed conflict and even civil war on the part of groups and individuals to shape their destinies, their rights and their liberties.
and, for my purposes, we find in blackstone a theme which i will be developing in the subsequent posts, and that is the result of the recognition of the play of reciprocal duties and rights owed by and to ruler and subject. blackstone observed that while the right of the ruler to receive allegiance from his subjects was the reciprocal of the duty of his subjects to observe their allegiance to him, so is the duty of the sovereign to protect his subjects the right of his subjects or his citizenry to receive his protection.
in future posts we shall explore that notion, and explore the further question of what happens when the sovereign fails to protect his citizenry.
what then are the citizens’ rights?
while blackstone might not approve of a citizenry defining the context and dimension of these rights by violence, he would certainly appreciate the historical truth that sometimes this is a necessary and proper way to delineate or define their context and dimension.
english of him, you know.
--john jay
*in other words, when grounded in an empirical and not theoretical way of perceiving and comprehending them
**this phrase, distinguishing blackstone from every ideologue ever conceived by regretting parents
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