Diving into Blackstone
Sir William Blackstone
Still on the "I got it free for my Kindle" reading jaunt, I have turned away from the Klan and other disturbing forces to Blackstone's Commentaries on the Laws of England . It is a soothing exercise. The law appears to be so logical, so neat, a subject in which everything follows from simple premises to form an architecture that is pleasing to the mind. The action of law, the practices of judges and lawyers, do not match the architecture of the law as a subject of study, but I don't really have to worry about that either as Blackstone is speaking from a temporal and geographical distance.
William Blackstone was an English barrister, teacher, and judge born in Cheapside, London, July 10 1723. In politics he was a Tory: a conservative monarchist. He attended Pembroke College and was a fellow at All Souls, which he exited November 2, 1743, a Bachelor of Civil Law. He went before the Middle Temple Bar in 1746. He practiced law while a university administrator--accountant, treasurer and bursar. In 1753 he gave up his law practice and began a lecture series, publishing in 1756 An analysis of the laws of England . In 1756 he was appointed the first Vinerian Professor of English Law and wrote A discourse on the study of the Law . He then returned to the practice of law. In 1761 he was elected Member of Parliament for Hindon as a Tory candidate. In 1766 the first volume of his Commentaries on the laws of England was published. In 1770 he served as Justice of the Court of King's Bendch from Feb to June, then as a Justice of the Common Pleas, where he remained until his death February 14, 1780.
Not a very exciting man. Not a hero in arms, nor a demagogue with a huge popular following. Rather a plodding academic and notable bureaucrat. But Blackstone's 4 volume Commentaries , published in 1770, and put into a working version by Henry John Stephen in 1841, reprinted until after the Second World War, influenced the interpretation of common law and the practice of law in the domains of the United Kingdom and in the United States. It is still cited in Supreme Court decisions. Blackstone's ratio, 'better that ten guilty persons escape than that one innocent suffer', influences the traditional view of justice in the United States, appearing in such maxims as 'innocent until proven guilty' and influencing attitudes regarding proper search and seizure, fruit of the poisoned tree, and the penalties for tampering with evidence. Not bad for the work of a plodding bureaucrat.
To Be More Fully English
I am not a lawyer, nor do I play one on tv. I have interest in the law as a citizen of the United States. All of us should have some basic knowledge of the law: our rights before policing authorities, our duties as jurors, the protections afforded to all citizens, etc. An orderly government is distinguished from a tyranny, after all, by the nature of its laws--public, readily accessible, consistent, proceeding from rule rather than from the whim of a select few. Regardless of how much we might bemoan the influence money has on the course of justice, our system of justice, the manner in which our laws operate, is not tyrannical. It is merely, at times, corrupt.
But to return to Blackstone, the Commentaries grew out of his initial lectures as the first Vinerian Professor of English Law, that is professor of the common law, the customs and practices of England, both embodied in statute and outside of it. Before the establishment of this professorship, the study of law in English universities had consisted of studies of the civil law, that body of law imported from the continent and playing a large role in the government of the church as canon law. The study of law in the academies had become wholly divorced from the practice of law in the courts. A variety of historical events and tendencies are cited by Blackstone to show why this was: the Norman conquest, the resurrection of Roman law on the continent and the power of the Roman Catholic Church, etc. The study of English law, of common law, of great importance in the courts and the benches of England, had been relegated to the inns of court and the chancery, resulting, finally, in a situation in which the training at law lacked logical coherence, existing without a plan and without attention to principles. Competence was only guaranteed by genius, or a great quantity of luck. The importance of law, as a subject of study, had not been matched by attention to its study, by the organization of a practical and informed course of such studies.
The Commentaries are a text book, a collection of lectures and discourses on the principles and practice of British common law. Textbooks, as a rule, have the power to make every subject dull, but I do not find the Commentaries dull at all. They have in their favor the aesthetic of order, the appearance of coherence and simplicity, which, at this time, I find comforting. They have, also, an historical interest, especially section IV: "Of the Countries subject to the Laws of , England", applying to the histories of the United States and of Ireland, both of which attract my interest. Here, Blackstone writes, the American colonies resulting from conquest or cession, "therefore the common law of England, as such, has no allowance or authority there; they being no part of the mother country, but distinct (though dependent) dominions", subject to parliamentary controls. In order for a given law to apply to the American colonies, they must be specifically named in an act of parliament as being subject to that law, or gaining the privileges that law allows. In this position lies the justification for all the administrative abuses, the "taxation without representation" that so angered some colonists. The American Revolution is, therefore, connected to a desire not to escape English law, but to live fully under it, albeit without the mother country which refused colonists that privilege.
Interpretation, interpretation, interpretation
The passage in section II: "Of the nature of Laws in General" dealing with the interpretation of law is interesting as well, especially in a nation in which the decisions of the Supreme Court are of such vital importance. The interpretation of law has a determinative power in this country, but many of us do not understand how it is properly done and find the disagreements over a law's interpretation obscure or impenetrable. It is in our interest to understand what is happening in the court, but most of us do not have the tools ready to do so, and must rely on politicians, the worst of witnesses, and journalists, only slightly better, to explain it to us. Blackstone writes: "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, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law". Ah, a difficulty tamed by logical constructions: huzzah!
But what does Blackstone mean? To interpret what a law meant we must begin with the words the lawmaker used, assuming them to be, unless clearly otherwise or jargon with specialized meanings, conveying the common definition they held in the time they were written. In the first place, you assume the legislator wrote to be understood and used words as they were typically used in order to convey his meaning. Fair enough. So much squabbling in constitutional questions concerns what words meant then, despite those same words conveying a different meaning now. Think of the Second Amendment and its use of the word 'militia' fighting against our modern concepts of "militia".
We have examined the words, and yet are still unsure of the meaning of the law. Then, we must move on to context: the social and political order surrounding the law. Was the law written in response to civil disorder, which brought with it specific evils not mentioned in the general law but might help in revealing its meaning? Context reminds us to honor the time and place of a law's production. We must remember as well the subject of the law itself: what is it speaking to? Is it a law about property rights? then we expect property and property transfer to have some place in it. The subject of a law confines it. It is the subject of a law that structures its applications; laws are universals, they are written as general rules to apply in multiple situations, and it is the subject of the law that confines it in category to a particular type of situation. Very good. The effects and consequences of a law may help us with its interpretation. As Blackstone explains, the words of law are not to be taken literally if they lead into an absurdity or paradox. Fine, that requires a specific law and set of consequences to elucidate, but given that, can become clear.
Now the zinger: what is the spirit or reason of the law? In a law which was formed by one man, this might be easily gained by reference to his, or her, letters and explanations in other formats outside the statute itself, but the U. S. Constitution is not a single-author document. The differing 'spirits' of its authors are a major cause of present day controversy over the meaning of the document, especially in thorny issues like the separation of church and state and the implied right to privacy. According to Blackstone, once the cause of a law ceases, the law should cease as well; certainly this was true regarding the 3/4 clause and the forcible end of slavery in the United States. Other elements of the Constitution, like the Bill of Rights, have as their cause the interests of free citizens, which cannot say to properly end in a democratic nation, and so will not be subject to this test at all. The spirit or reason of the law will guide its application by the rule of equity, which Blackstone takes from Grotius to mean 'the correction of that, wherein the law (by reason of its universality) is deficient'. The law can tell one what to do in a particular type of case, but it is not written to deal with the particulars of any given case in their full specificity. If it was so written, the result would be a farce. I would have a law written for me, you would have your own very different law, being I assume a very different person in very different circumstances, and so on.
The law is a blunt instrument if it is a cold application of a particular set of words to relevant facts alone. One of the most tragic elements of our current 'war' on drugs is the extent to which jurists gave up, or had taken from them, the ability to apply equity to sentencing. As a nation we turned to the idea of "mandatory sentencing" without weighing the consequences of that word mandatory. We tried to make justice a computation in which we plugged in defendant x, and, regardless of the person of x or the circumstances surrounding him/her, and came to result y, a fixed sum, a single answer. We are now paying the penalty for our lack of foresight and for our fear in the filling of our jails and prisons with relatively harmless, though misguided, people, serving sentences out of all proportion with their real crimes.
I have not finished the Commentaries. It is not something I have the need to speed through, and I find myself thinking my way away from its pages to present day realities and back again too frequently to attempt it. No, this is a book I dive into, surface to breathe and play, then climb to the board to dive again. Not a bad waste of time, this diving.