William Blackstone and the Founding Fathers

Social conservatives, advocates of "morals legislation" and Christian Nation apologists have a habit of quoting William Blackstone on the essentially moral nature of the law. For a good example, see this article by Brannon Howse. Ignore the fact that he amusingly calls Blackstone "America's foremost legal scholar at the time of the Founders" (Blackstone was British, not American; Howse might have been tipped off to that when he quoted from Blackstone's Commentaries on the Laws of England). They love to cite Blackstone because he famously argued that there are two laws, the laws of man and the laws of "nature", which he took to mean the laws of God as expressed in the bible. And he further argued:

This law of nature, being coeval with mankind and dictated by God himself, is of course superior in obligation to all 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.

Voila! Justification for imposing the Biblical law as the civil and criminal law of the land. But the reality is that Blackstone, himself a failed attorney in Britain, is hardly the first and last word on the subject and his views were highly controversial among the founders. Certainly his Commentaries were highly influential because they set out in great detail the laws of England in both their common law and statutory law components. But his argument that the common law traditions were based directly in the bible were the subject of much controversy and dispute among the founders. Thomas Jefferson, for instance, rejected entirely the argument that Christianity was a part of the common law, while Joseph Story, an early Supreme Court justice and legal authority, strongly argued that Christianity was incorporated into the common law.

The common law was, literally, judge-made law - a collection of customs and principles that were developed by judges in the British colonies over the course of several centuries - as opposed to statutory law, the specific legal rules passed by the legislature (the Parliament in England, Congress in America). To some extent, the two types of law live side by side even today. The legislature passes statutory laws, but the courts generally interpret them when controversies arise, and the collection of judicial rulings forms a common law counterpart alongside the statutes themselves (to some extent, administrative rules meant to enforce statutory law, which come from the executive branch, are also a part of the common law in this sense). Many of those common law traditions carried over to the United States (except in Louisiana, which adopted the French Napoleonic Code as a former French colony), but statutory law obviously takes precedence over common law.

After we declared independence and the colonies no longer had a governing legal code, many of them quickly passed constitutions that included some reference to common law. New Jersey, for example, passed a new constitution in 1776 that said that the common law of England would remain in force until replaced by statutory laws, with the exception of those common law traditions that conflicted with the rights and privileges stated in that Constitution. Blackstone's Commentaries set out the various sources of common law as follows:

This unwritten, or common, law is properly distinguishable into three kinds: 1. General customs; which are the universal rule of the whole kingdom, and form the common law, in its stricter and more usual signification. 2. Particular customs; which for the most part affect only the inhabitants of particular districts. 3. Certain particular laws; which by custom are adopted and used by some particular courts, of pretty general and extensive jurisdiction.

But in part 3, he included, for example, the entire Justinian code, a collection of Roman law from the days when Rome was an officially Christian empire:

The third branch of them are those peculiar laws, which by custom are adopted and used only in certain peculiar courts and jurisdictions. And by these I understand the civil and canon laws...By the civil law, absolutely taken, is generally understood 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.

Included in the canon laws were also the ecclesiastical laws that came down through various papal decrees and, later, Anglican doctrines. All in all, English law was quite a mess. But as I said, modern social conservatives love to cite common law and Blackstone's work on it in particular because of those church laws that were based upon Biblical injunctions. A great example of this is the infamous Judge Roy Moore, a genuine theocrat who thinks that judges should enforce Biblical commandments as the civil and criminal law of the land. In a 2002 case (the same case where he urged imprisonment and even the death penalty for homosexuals), he engaged in a long rant about the evils of homosexuality - and in a case where the fact that one party was a lesbian had no bearing on the legal question before the court. And he drew directly on English common law and Blackstone to justify his position:

American law derives its principles from the common law of England, clearly explained in Commentaries on the Laws of England by Sir William Blackstone...

Natural law forms the basis of the common law. Natural law is the law of nature and of nature's God as understood by men through reason, but aided by direct revelation found in the Holy Scriptures:

"The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the Holy Scriptures. These precepts, when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man's felicity."...

Homosexuality is strongly condemned in the common law because it violates both natural and revealed law. The author of Genesis writes: "God created man in His own image, in the image of God He created him; male and female He created them.... For this reason a man shall leave his father and his mother, and be joined to his wife; and they shall become one flesh." Genesis 1:27, 2:24 (King James). The law of the Old Testament enforced this distinction between the genders by stating that "[i]f a man lies with a male as he lies with a woman, both of them have committed an abomination." Leviticus 20:13 (King James).

From the passage in Leviticus 20:13, the early western legal tradition garnered its laws on homosexuality. The Corpus Juris Civilis is the sixth-century encyclopedic collection of Roman laws made under the sponsorship of Emperor Justinian. "It is Justinian's collection which served as the basis of canon law (the law of the Christian Church) and civil law (both European and English)." (9) The following is a statement in Law French from Corpus Juris:

"'Sodomie est crime de majeste vers le Roy Celestre,' and [is] translated in a footnote as 'Sodomy is high treason against the King of Heaven.' At common law 'sodomy' and the phrase 'infamous crime against nature' were often used interchangeably."

Of course, the Justinian code justifed its prohibition on homosexuality to the fact that it caused earthquakes, so that gives you some idea of how rational that law was. But more importantly, I am going to argue that this conception of Biblical injunctions being enforcable through the common law tradition is entirely inconsistent with our nation's founding principles. There were state constitutions after 1776 and before the passage of the U.S. Constitution that utilized common law, but they generally stated that the common law was in force only so long as it was consistent with constitutional principles, and that it was voided by the passage even of state statutory law. Thus, common law is the lowest type of law and the least enforcable; the existence of statutory or constitutional language that conflicts with any common law concept renders it void and irrelevant.

First, it should be noted that there was some opposition among the founding fathers on the question of whether the common law included Christianity or church law. Thomas Jefferson, in particular, took the position that Christianity was not a part of the common law and should not be. In an 1814 letter to Thomas Cooper, he quoted from his own earlier work, his Commonplace Book, on this question.

A question was, How far the Ecclesiastical law was to be respected in this matter by the common law court?...

Finch mistakes this in the following manner: "To such laws of the church as have warrant in Holy Scripture, our law giveth credence," and cites the above case, and the words of Prisot on the margin. Finch's law. B. 1, ch. 3, published 1613. Here we find "ancien scripture" converted into "Holy Scripture," whereas it can only mean the ancient written laws of the church. It cannot mean the Scriptures, 1, because the "ancien scripture" must then be understood to mean the "Old Testament" or Bible, in opposition to the "New Testament," and to the exclusion of that, which would be absurd and contrary to the wish of those |P1323|p1 who cite this passage to prove that the Scriptures, or Christianity, is a part of the common law...

For we know that the common law is that system of law which was introduced by the Saxons on their settlement in England, and altered from time to time by proper legislative authority from that time to the date of Magna Charta, which terminates the period of the common law, or lex non scripta, and commences that of the statute law, or Lex Scripta. This settlement took place about the middle of the fifth century. But Christianity was not introduced till the seventh century; the conversion of the first christian king of the Heptarchy having taken place about the year 598, and that of the last about 686. Here, then, was a space of two hundred years, during which the common law was in existence, and Christianity no part of it. If it ever was adopted, therefore, into the common law, it must have been between the introduction of Christianity and the date of the Magna Charta. But of the laws of this period we have a tolerable collection by Lambard and Wilkins, probably not perfect, but neither very defective; and if any one chooses to build a doctrine on any law of that period, supposed to have been lost, it is incumbent on him to prove it to have existed, and what were its contents. These were so far alterations of the common law, and became themselves a part of it. But none of these adopt Christianity as a part of the common law. If, therefore, from the settlement of the Saxons to the introduction of Christianity among them, that system of religion could not be a part of the common law, because they were not yet Christians, and if, having their laws from that period to the close of the common law, we are all able to find among them no such act of adoption, we may safely affirm (though contradicted by all the judges and writers on earth) that Christianity neither is, nor ever was a part of the common law.

In a letter to Horatio Spafford in 1814, Jefferson noted that the English common law served a government given to arbitrary and oppressive actions and that if we were to continue to use those oppressive aspects of the law here we would risk our entire system of unalienable rights:

I join in your reprobation of our merchants, priests, and lawyers, for their adherence to England and monarchy, in preference to their own country and its Constitution...With the lawyers it is a new thing. They have, in the Mother country, been generally the firmest supporters of the free principles of their constitution. But there too they have changed. I ascribe much of this to the substitution of Blackstone for my Lord Coke, as an elementary work. In truth, Blackstone and Hume have made tories of all England, and are making tories of those young Americans whose native feelings .of independence do not place them above the wily sophistries of a Hume or a Blackstone. These two books, but especially the former, have done more towards the suppression of the liberties of man, than all the million of men in arms of Bonaparte and the millions of human lives with the sacrifice of which he will stand loaded before the judgment seat of his Maker. I fear nothing for our liberty from the assaults of force; but I have seen and felt much, and fear more from English books, English prejudices, English manners, and the apes, the dupes, and designs among our professional crafts.

One of Jefferson's correspondents on the subject of Blackstone and the common law was John Tyler, who was governor of Virginia, a state judge, and the father of our 10th president. As the governor of Virginia, Tyler had given an address decrying the influence of the English common law and noting that it was designed to govern a system quite different from our own:

Shall we forever administer our free republican government on the principles of a rigid and high tone monarchy?...Let a stranger go into our courts, and he would almost believe himself in the Court of the King's Bench.

We often hear today from the same people who cite the Christian nature of the common law that they oppose judges "legislating from the bench", but common law is, quite literally, judge-made law. And to add to the irony, Jefferson condemned the combination of Christianity with the common law in English tradition as "the most remarkable instance of judicial legislation that has ever occurred in English jurisprudence or perhaps in any other."

Another prominent founder who opposed Blackstone's views was James Wilson, one of only 6 men to sign both the Declaration of Independence and the Constitution, a justice on the first Supreme Court and the first professor of law at the University of Pennsylvania. As early as 1774, Wilson had publicly denied that the English common law had any authority in the American colonies. Yes, even before our Constitution was written and before we had our independence.

More importantly, even if Christianity was a part of the common law and enforcable as such, it was so only to the extent that it was not in conflict with the founding of this nation. Remember, this is English common law we are discussing here and it was England's rule that we overthrew by revolution. And England had what was explicitly forbidden of our own government, an official state church, not to mention the concept of the divine right of kings. Clearly, then, the revolution and the setting up of a new, secular government was a repudiation of the rule of ecclesiastical law. The father of the Constitution, James Madison, made this clear in declaring our Constitution the first revolt against the imposition of such laws and hoping for that trend to continue:

Every new and successful example, therefore, of a perfect separation between the ecclesiastical and civil matters, is of importance; and I have no doubt that every new example will succeed, as every past one has done, in showing that religion and Government will both exist in greater purity the less they are mixed together

The American system of government, for the first time in history, declared that the duty that each man owes to God is up to each person alone to decide and is not a matter for the government to decide. In his Memorial and Remonstrance, perhaps the most eloquent and influential defense of this separation ever written, Madison began with this simple premise:

Because we hold it for a fundamental and undeniable truth, "that religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence." The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.

This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men...

We maintain therefore that in matters of Religion, no man's right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true that the majority may trespass on the rights of the minority...

The preservation of a free Government requires not merely, that the metes and bounds which separate each department of power be invariably maintained; but more especially that neither of them be suffered to defend the rights of the people. The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves nor by an authority derived from them, and are slaves...

Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?

This is the very cornerstone of our Constitutional republic; without it, the entire system crumbles into tyranny. Our entire Constitutional system may be seen as an explicit rejection of the rule of church law in the common law. Thus, those who continue to cite Blackstone and English common law in this regard, as justification for the imposition of Biblical injunctions as the civil and criminal law of the land, are missing the most crucial lesson of the Declaration of Independence and America's founding. The right to liberty is unalienable and may not be violated even by those who claim to know the will of God.

It should also be noted that at the time of the founding, this was not merely an abstract argument. In very practical terms, the dispute over whether Blackstone's authoritarian conceptions of the law were to hold sway in America was crucially important. The defenders of the Sedition act, a Federal law that punished newspaper and magazine editors who published anything critical of the new government (including Ben Franklin's grandson, who was thrown in jail), quoted Blackstone extensively to the effect that the law only required that the government not engage in prior restraint of publication.

Under Blackstone's way of thinking, the government could still punish someone for what they published as long as they didn't prevent them from publishing it and this view was cited even by Supreme Court Justice James Iredell as the proper view of the first amendment's free speech and free press clauses. The election of 1800 was in some ways a referendum on this idea, with John Adams defending the Sedition law as legitimate based upon Blackstone's work and Thomas Jefferson, ever the advocate of the unalienable right to freedom of conscience, promising to pardon everyone convicted under that law and repeal it. Jefferson won, the Sedition act expired, the men punished under that law were indeed pardoned, and the more expansive view of free speech won the day in America.

I think the bottom line is this: there are elements of common law that are binding in American courts in many instances. In some areas of the law, where statutory law has not been written to codify things, the common law is important and necessary. This is particularly true in civil law and torts. But this is only true insofar as the traditions of the common law do not conflict with A) any other type of law (statutory, constitutional, judicial rulings or even administrative directives) created within the confines of our system of government, and B) the Republican principles of our founding.

P.S. Let me add that this is a new area for me. I've done a fair bit of research over the last few days on the subject, but it's not an issue that I was previously knowledgable about. So I'm interested in hearing any substantive critiques that might sharpen my thinking on this issue, particularly from Sandefur, Rowe and Kuznicki. And I want to thank them for pointing me to some resources on the subject, and Sandefur in particular for faxing me a long law review article on the subject.