Blackstone and the Meaning of Law

Early in the introduction to the Commentaries Blackstone offers a general definition of law. “Law,” he writes, “in it's most general and comprehensive sense, signifies a rule of action … which is prescribed by some superior, and which the inferior is bound to obey” (Comm. I, 38). For Blackstone, law implies obedience, and upon this presumption he distinguishes between three categories of law: the natural law, the law of nations, and civil law. Only civil law ultimately conforms to his definition of law, because only in the civil law is compliance assured. Compliance with the civil law is certain because those subject to it are compelled by a superior power to obey. Moreover, Blackstone equates this superior power with the lawmaking power. The superior power that compels obedience also prescribes or dictates what action the inferior must comply with. Lastly, Blackstone suggests that the superior power cannot be subject to external constraints.Footnote ¹³ Consequently, law becomes simply the will of the superior power.

At the core of his conception of law, then, lies the idea of compulsion. Further, the obligation to obey the law is not derived from one's consent either to the law or to the lawmaker. Rather, people obey the law because they are compelled by a superior power.Footnote ¹⁴ Because the concept of law is inextricably linked to the idea of compulsion,

The fundamental difference between law and counsel is the implication of force in the former that is absent in the latter. Both law and counsel may in fact induce the same course of action. The impetus in each case, however, differs. Advice may lead to a particular course of action; law will produce a given course of action. Action which stems from advice is voluntary; action that results from law is mandatory.Footnote ¹⁶

Likewise, the absence of the imperative distinguishes compact or agreement from law.

Like action spurred by counsel, action which stems from compact also reflects personal choice. Our decisions to accept or reject counsel and to accept or refuse to compact are voluntary. Since each decision originates in consent, counsel and compact are equivalent.

Here we might object that while both advice and agreement originate in consent, only the latter connotes obligation. Advice is free from suggestions of duty and commitment. Even after we decide to act according to another's counsel, we still consider ourselves free to act otherwise. By contrast, compacts tend to evoke a strong sense of obligation. We usually associate compacts with notions of promise and responsibility. Typically, once we have consented to a compact, we consider ourselves bound to act accordingly. The imperative, then, appears to be a component of compact. Furthermore, if the imperative is a constituent part of both compact and law (but not of counsel), then of the two things, compact and counsel, compact bears the greater similarity to law.

For Blackstone, however, there is an essential difference between the obligation to comply with a compact and the duty to conform to law.

Because compactual and legal obligations originate in different sources, the nature of the obligation in each is essentially different. Compacts clearly impose a moral imperative upon those who are party to them. When we enter a compact, we create for ourselves a moral obligation which is (or should be) strong enough to compel us to fulfill our promise. To the extent that our moral compulsion to act is equivalent to the irresistible force of the lawmaker, both compact and law are equally obligatory.

Still, the obligation that arises from compact is similar to the duty created by law only “in point of conscience.” While compacts are morally compulsory, they are not legally enforceable.Footnote ¹⁷ The use of physical force to compel adherence to a compact raises particular problems for Blackstone. Compactual obligations are rooted in consent, and consent implies equality. Parties to a compact enter into agreement from an initial condition of equality. But the idea of compulsion implies a relationship of inequality between lawmaker and subject. We obey the law, Blackstone argues, because we are compelled to do so by a superior power. Our duty to obey the law, as opposed to our commitment to compact, is never self-imposed. Instead, an external force compels us to obey the law. Force implies involuntariness; and, as we have already demonstrated, law acts upon the unwilling as well as the willing.

If parties enter into a compact as equals, then who can claim the position of superior power required to compel obedience? Perhaps the terms of the compact itself might establish an authority to enforce the agreement. By definition, however, any such authority would be inferior to the compact itself. Its ability to compel obedience would be constrained by the agreement. Additionally, the compact—and hence the enforcement power—might be altered by mutual agreement of the parties. It makes sense, then, for Blackstone to consider the “law of nations” as a category separate from municipal or civil law. Whereas civil law implies a hierarchical relationship between lawmaker and subject, the law of nations implies equality among independent states. Consequently, while the law of nations aims to regulate the mutual intercourse between independent states, it remains unenforceable. Because “none of these states will acknowlege a superiority in the other, [the law] cannot be dictated by either; but depends entirely upon the rules of natural law, or upon mutual compacts, treaties, and agreements between these several communities” (Comm. I, 43). Since nations face each other as equals, they cannot be governed by the same type of law which governs subjects within a state. Lacking a superior power among them to dictate rules by which their relations will be governed, states ultimately police themselves. While they are morally obligated to adhere to the various accords to which they consent, it remains unclear how states in fact can be compelled to do so.Footnote ¹⁸

The same difference that exists between the law of nations and civil law also distinguishes natural law from civil law. Both the natural law and the law of nations are morally compelling; neither, however, can be legally enforced except by a superior power. In the case of the law of nations, no superior power exists. The natural law, on the other hand, may be enforced within a community through the civil law. The sovereign power may transform the natural law from a mere moral prescription into a legal one by incorporating its principles into the community's legal code. At the same time, however, Blackstone defines a law to be a rule dictated by a superior to an inferior who is bound to obey. As a result, while the sovereign power may choose to enforce the natural law upon its subjects, there is no civil authority capable of compelling the sovereign itself to comply with the natural law. Ultimately, Blackstone categorizes the natural law, like the law of nations, as morally compelling but legally unenforceable.Footnote ¹⁹

The Natural Law and Resistance to Government

While the natural law is legally compelling only through its incorporation into the civil law, Blackstone nonetheless gives the former greater moral weight. Moreover, he seems to suggest that in some way the natural law controls the civil law. The law of nature, he writes, “being co-eval with mankind and dictated by God himself, is of course superior in obligation 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” (Comm. I, 41). His charge appears to echo Locke, whose influence was still felt in the halls of Westminster. Lord Camden, for one, invoked Locke by name to argue against the Declaratory Act, declaring it “illegal, absolutely illegal, [because] contrary to the fundamental laws of nature.”Footnote ²⁰

But if Blackstone intended to make a similar claim, then an inconsistency arises in his theory of parliamentary sovereignty. A Lockean argument binds the civil to the natural law. When the civil law violates the natural law, it is, properly speaking, illegal and hence void. The people judge when violations of the natural law have occurred and when to dissolve government. The legislative power, then, is not sovereign or illimitable. It is ultimately controlled by the people (who are themselves bound by the natural law), who can lawfully dissolve it when they determine that it has invaded the natural law.Footnote ²¹ If Blackstone subscribes to this argument, he cannot simultaneously argue for legislative sovereignty, that is, unlimited civil power.

The question, then, is whether Blackstone embraces Locke's notion of rightful, that is, lawful, resistance to political authority that violates the natural law. “It must be owned,” Blackstone answers,

We cannot adopt Locke's theory, Blackstone explains, because the devolution of power to the people “includes in it a dissolution of the whole form of government.” Furthermore, it returns the people “to their original state of equality [and] by annihilating the sovereign power repeals all positive laws whatsoever before enacted.” Blackstone continues, “No human laws will therefore suppose a case, which at once must destroy all law, and compel men to build afresh upon a new foundation; nor will they make provision for so desperate an event, as must render all legal provisions ineffectual” (Comm. I, 157).

Blackstone's diction here warrants careful examination. He characterizes the act of resistance to civil authority as an act of desperation. People should not resist oppressive government; instead, they should seek to escape the natural state of war, a state to which we return when governments are dissolved. Blackstone admits that there have been times when the rights of Englishmen have been “depressed by overbearing and tyrannical princes.” Even so, there have been other times in which rights have been “so luxuriant as even to tend to anarchy, a worse state than tyranny itself, as any government is better than none at all” (Comm. I, 123). The civil state is necessary for freedom. Civil law “restrains a man from doing mischief to his fellow citizens” (Comm. I, 121–22), whereas in the natural state men act as they see fit, constrained only by their own sense of discretion and the law of nature. “[N]o man,” he concludes, “that considers a moment, would wish to retain the absolute and uncontroled power of doing whatever he pleases; the consequence of which is, that every other man would also have the same power. [For] then there would be no security to individuals in any of the enjoyments of life” (Comm. I, 121). Thus, while civil law diminishes natural liberty, it increases man's civil liberty. For Blackstone, anarchy or the dissolution of government is the most abject human condition.Footnote ²²

But does Blackstone actually reject the Lockean principle of resistance? At first glance it doesn't appear so. Locke's conclusion might be “just … in theory,” he acknowledges. Resistance is justified when it is the only means available to thwart tyranny. For example, when Blackstone insists that men must obey the king's prerogative “in the ordinary course of law,” he adds that he does “not now speak of those extraordinary recourses to first principles, which are necessary when the contracts of society are in danger of dissolution, and the law proves too weak a defense against the violence of fraud or oppression” (Comm. I, 243). Even in such cases, however, there are no stated rules, no “express legal provision” to which men may appeal. Instead, “the prudence of the times must provide new remedies upon new emergencies” (Comm. I, 238). Blackstone's objection is not to the idea of rightful resistance, but rather to efforts to locate and define this right in human laws.

Herein lies the apparent problem with Locke's argument. For when Locke and others ground the right to resist on the natural law and when they attempt to specify what governmental actions are beyond right, they endanger stable political order. Indeed, because the cases in which resistance is justified are so rare, it is impossible to state a rule to govern them. A rule presumes permanence, uniformity, and universality. The circumstances that surround such rare occurrences, however, are not reducible to stated rules. Because the conditions that surround civil unrest differ, and because they occur so rarely, they cannot be categorized into prescriptions for future conduct. Consequently, when people resist civil authority in the name of a universal (natural) law, they are likely to act imprudently and rashly. Encouraged by the belief that their resistance is lawful, people may resist civil authority in the name of law, incited by matters of personal rather than civic interest. They may apply the “rule” where it is not warranted and thereby undermine political stability.Footnote ²³

For example, though in rare cases resistance to the king may be required, “over-zealous republicans, feeling the absurdity of unlimited passive obedience, have fancifully … gone over to the other extreme: and, because resistance is justifiable to the person of the prince when the being of the state is endangered, and the public voice proclaims such resistance necessary, they have therefore allowed to every individual the right of determining this expedience” (Comm. I, 244). These “over-zealous republicans” thus endanger civil liberty as much as people who insist on the doctrine of passive obedience to the crown, for they voice a “doctrine productive of anarchy, and (in consequence) equally fatal to civil liberty as tyranny itself” (Comm. I, 244). Obedience “is an empty name, if every individual has a right to decide how far he himself shall obey” (Comm. I, 244). Authority is subverted when people justify their acts of resistance on alternative, noncivil authoritative sources of law. “[S]ociety cannot be maintained,” Blackstone concludes, “without obedience to some sovereign power” (Comm. I, 244).

It is no surprise, then, that Blackstone rejects Locke's account of the 1688 Revolution. The accession of William and Mary to the throne was not based upon an abstract right to resist one's rulers or to reconstitute the institutions of government. “[I]t is worthy [of] observation,” Blackstone remarks, “that the convention, in this their judgment, avoided with great wisdom the wild extremes into which the visionary theories of some zealous republicans would have led them” (Comm. I, 206). The Convention recognized “that memorable event” for what it was, namely, “an entirely new case in politics, which had never before happened in our history; the abdication of the reigning monarch, and the vacancy of the throne thereupon” (Comm. I, 204). Accordingly, the Convention Parliament “held that this misconduct of [K]ing James amounted to an endeavor to subvert the constitution, and not to an actual subversion, or total dissolution of the government, according to the principles of Mr. Locke: which would have reduced the society almost to a state of nature … and would have left the people at liberty to have erected a new system of state upon a new foundation of polity” (Comm. I, 206). Since the abdication did not signal a “defeazance of the right of succession,” the Convention was faced with the rather narrow task of replacing the person of the monarch and reestablishing the line of succession (Comm. I, 204).Footnote ²⁴ In a sense, the 1688 Revolution was not a revolution at all.Footnote ²⁵

Parliamentary Sovereignty and the Common Law

Blackstone rejects the natural law as a legal restraint on the legislative power for fear that appeals to it will inevitably foment political instability. But what if there existed rules or norms of conduct so well established in English legal thought and practice that they could be considered legally inviolable and thus provide a practicable means to limiting the exercise of political power? Could such rules restrain Parliament? Lord Camden evidently thought so, for he declared the Stamp and Declaratory Acts contrary to both natural law and “contrary to the fundamental laws of this constitution.”Footnote ²⁶ Similarly, William Beckford, an MP from London, objected to the Stamp Act on the grounds that it violated English common law, reminding the chamber that “[L]ord Coke says in Dr. Bonnoms Case 118 that the common Law in many cases controuls Acts of Parl[iamen]t.”Footnote ²⁷

The suggestion that Parliament is limited by the common law is significant, for it implies that certain laws claim legal precedence over parliamentary statutes. If, however, Parliament is legally bound by such fundamental laws, if its authority is constrained by a superior law, then its power is legally limited. This notion is at home in American constitutional theory but is contested in English jurisprudence.Footnote ²⁸ The claim that laws fundamental to the constitution limit Parliament's authority seems susceptible to the charge Blackstone levels against appeals to the natural law. How can one be certain that appeals to such fundamental laws do not merely reflect erroneous judgment or biased interest? Furthermore, who could be entrusted to identify and enforce these laws against parliamentary violation?

Indeed, what exactly is the common law? Blackstone identifies the common law as the lex non scripta, in contradistinction to the lex scripta, or written law. The common law is not literally unwritten; nevertheless, it is deemed lex non scripta “because their original institution and authority are not set down in writing, as acts of parliament are, but they receive their binding power, and the force of laws, by long and immemorial usage, and by their universal reception throughout the kingdom” (Comm. I, 64). Unlike statutory law, the common law is not instituted by acts of legislature, but rather emanates from established custom and practice.

The law judges are the principal arbiters of the common law. Through judicial determination, custom is transcribed into law. Still, judges do not adjudicate cases of common law with unlimited discretion. The common law is not judge-made law. Instead, judges are bound by oath to decide “according to the law of the land,” that is, according to precedent. Judges thus rely heavily upon their knowledge of the books and reports of prior judicial decisions in order to determine and apply the law in a particular case.

By adjudicating cases before them according to precedent, judges give to the customary or common law the attributes of law in general. Precedent ensures that the common law remains permanent, uniform, and universal. For this reason,

Judges are bound by precedent, and it is their adherence to precedent that transforms mere custom into law. If judges ignore precedent and instead base their decisions upon their own notion of what the law ought to be, then they might rule differently in cases that share “the same points.” In such cases judicial determinations could not be considered law, since they would lack the attributes that constitute all law.

It is of course conceivable that cases may arise in which precedent appears to be manifestly unreasonable or unjust. In such cases judges are not bound to adhere to the rule of precedent.

Note that even when judges ignore precedent, they do not presume to make new law. Rather, judges literally set free or deliver an established custom from a judicial ruling which contravenes it.Footnote ²⁹ In such cases judges may ignore precedent because the precedent itself is unreasonable or unjust. If, however, a judicial ruling is unreasonable or unjust, it cannot be considered law, since the common law conforms to reason. “[H]ence it is that our lawyers are with justice so copious in the encomiums on the reason of the common law; that they tell us, that the law is the perfection of reason, that it always intends to conform thereto, and that what is not reason is not law” (Comm. I, 70). It is equally true, then, that the custom whose “long and established usage” throughout the kingdom forms the basis for the common law also conforms to reason. Consequently, when a judge “erroneously” determines an established custom and issues a ruling contrary to it, he necessarily offers a ruling contrary to reason. The judge literally “wanders” from established custom and hence from reason itself.Footnote ³⁰ Since what is unreasonable is not law, the judge's determination in this case is not law.

Judges thus have some discretion in cases of common law. Still, their discretion is limited. Precedents ought to be followed, “for though their reason be not obvious at first view, yet we owe such a deference to former times as not to suppose they acted wholly without consideration” (Comm. I, 70). Furthermore, since it is impossible “that the particular reason of every rule in the law can at this distance of time be always precisely assigned … , it is sufficient that there be nothing in the rule flatly contradictory to reason, and then the law will presume it to be well founded” (Comm. I, 70). In short, only precedent which is “flatly absurd or unjust” is subject to judicial visitation.Footnote ³¹

Just as judicial discretion over the common law is strictly curtailed, so too is a judge's authority to uphold the common law over statute law. Blackstone is certainly aware that legislators are fallible. Parliament may very well enact laws which are unreasonable or unjust. In some such cases, judges may presume that Parliament did not intend the law to have unreasonable or unjust effects and may interpret the statute in order to make it conform to the common law. This exercise of judicial discretion, however, can be applied only in cases where a statute's language is imprecise. Vague language indicates that the law's unreasonable consequences were inadvertent. “[W]here some collateral matter arises out of the general words, and happens to be unreasonable; there the judges are in decency to conclude that this consequence was not foreseen by the parliament, and therefore they are at liberty to expound the statute by equity, and only quoad hoc [to this extent] disregard it” (Comm. I, 91). Blackstone continues: “Thus if an act of parliament gives a man power to try all causes, that arise within his manor of Dale; yet, if a cause should arise in which he himself is party, the act is construed not to extend to that; because it is unreasonable that any man should determine his own quarrel” (Comm. I, 91).Footnote ³² When faced with statutes that indirectly produce “absurd consequences, manifestly contradictory to common reason,” judges may consider the statutes, “with regard to those collateral consequences, void” (Comm. I, 91).

Conversely, judges are powerless to alter the effects of a statute when the language embodied in the statue is clear and intentional. It may be difficult to conceive Parliament purposely drafting a law that runs afoul of ancient law and practice and which aims deliberately to produce consequences patently unreasonable or unjust. Judges should presume that Parliament aims to produce law that conforms to reason and natural justice. Judges ought to impute honorable motives to members of the legislature. Accordingly, under certain conditions judges may apply rules of equity when interpreting statutes in order to make them conform to ancient practice and hence to reason and justice. “But if the parliament will positively enact a thing to be done which is unreasonable,” Blackstone writes, “I know of no power that can control it: and the examples usually alleged in support of this sense of the rule do none of them prove, that where the main object of a statute is unreasonable the judges are at liberty to reject it; for that were to set the judicial power above that of the legislature, which would be subversive of all government” (Comm. I, 91). It thus follows that “if we could conceive it possible for the parliament to enact, that he should try as well his own causes as those of other persons, there is no court that has power to defeat the intent of the legislature, when couched in such evident and express words, as leave no doubt whether it was the intent of the legislature or no” (Comm. I, 91).

In certain cases a judge can consider part of a statute void; but where the statutory language is deliberately drawn, the judge is rendered powerless to alter it. These two propositions are not contradictory. Blackstone proposes that judges may apply rules of equity to statutes—specifically, only to those parts of a statute—where the language can be shown to unintentionally produce an unreasonable outcome. When judges expound a statute according to equity, however, they do not nullify the legal effect of the law. Statutes adjudged according to equity do not render the law legally void. Rather, judicial rulings bring the statutes into conformity with reason. Again, judges should assume that the legislature enacts laws with the intent to benefit the governed. Through human error, however, statutes sometimes produce unforeseen consequences. In such cases, the judge may disregard the unintended outcome and by applying rules of equity simply permit the law to carry out the legislature's real intent. In other words, judicial decisions which employ rules of equity in expounding statutory law merely declare what the statute aimed to do but its inexact wording thwarted.

In summary, judges may apply rules of equity in cases where the statutory language is indefinite; they may not apply rules of equity to statutory language that is clear and precise. Moreover, when judges do alter statutory outcomes, their rulings are decisions of equity rather than decisions of law. Judges have discretion only in cases where the rules of equity apply, and the rules of equity do not apply in cases where legislative intent is evident. Judges cannot write law; they can only interpret statutes (in certain cases) in order to make them conform to precedent, that is, reason. In general, then, statutory law takes precedence over common law. “Where the common law and a statute differ, the common law gives place to the statute; and an old statute gives place to a new one” (Comm. I, 89).Footnote ³³ Certainly, Parliament ought to heed the common law, since through long usage it has proven to be prudent and just. Statute law that conflicts with the common law and rules of equity often proves to be imprudent and unjust.Footnote ³⁴ Still, Parliament may enact laws that are unreasonable and unjust. Such laws may not conform to the idea of law; they are, nevertheless, the law.

Parliament's “Omnipotence”

According to Blackstone, there is no alternative between obedience to the civil authority on the one hand, and anarchy on the other. The alternative to obedience to the laws of the community is a return to the state of nature, which as we have seen is a desperate state. Man thus enters society willingly, giving up “part of his natural liberty” in the process and obliging “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,” Blackstone explains, “than that wild and savage liberty which is sacrificed to obtain it” (Comm. I, 121). Moreover, because he identifies a constant tension between order and anarchy, and because he cannot conceive of order without unqualified obedience to a superior, Blackstone concludes that the lawmaking power (e.g., Parliament) in civil society is sovereign and hence can do what it likes. Consequently, questions regarding the origin of the sovereign political authority are irrelevant. Like his contemporaries Hume and Burke, Blackstone's political theory simply presumes that governments exist.

The origin of government is irrelevant not because its beginnings are not easily traced (though in the case of Parliament this is trueFootnote ³⁶), but rather because the power that the government wields does not depend on its origin, whatever it may be. “[P]olitical communities are made up of many natural persons, each of whom has his particular will and inclination,” which must be “tempered and disposed into a lasting harmony.” This harmony of wills can be produced only by political union; that is, “by the consent of all persons to submit their own private wills to the will of one man, or of one or more assemblies of men, to whom the supreme authority is entrusted: and this will of that one man, or assemblage of men, is in different states, according to their different constitutions, understood to be law” (Comm. I, 52).

Civil order depends upon law, since law comes from a superior power capable of compelling others to obey its will. But if the sovereign's will is law, then the sovereign's will must be absolute. It cannot be subject to the control of another power within the civil state and thus it cannot depend upon the consent of the governed. “[L]egislature … is the greatest act of superiority that can be exercised by one being over another,” he writes. “Wherefore it is requisite to the very essence of a law, that it be made by the supreme power. Sovereignty and legislature are indeed convertible terms; one cannot subsist without the other” (Comm. I, 46).

Passages like these have led some commentators to conclude that Blackstone embraced a pure doctrine of legislative sovereignty. It is a reasonable conclusion, given other contemporary assertions of the doctrine and given that Blackstone does at times speak explicitly in terms of Parliament's unlimited authority.Footnote ³⁷ “[S]ome have not scrupled to call [Parliament's] power, by a figure rather too bold, the omnipotence of parliament,” he writes, but then quickly adds: “True it is, that what they do, no authority upon earth can undo” (Comm. I, 156).Footnote ³⁸ It is in Parliament “where that absolute despotic power, which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms” (Comm. I, 156). Earlier he speaks of the “natural, inherent right that belongs to the sovereignty of a state, wherever that sovereignty be lodged, of making and enforcing laws” (Comm. I, 47). It is important to note that for Blackstone the sovereign power to make law inheres in government; furthermore, that power is one that does not reside in (or devolve to) “the people at large,” since to place sovereignty there would be to give the people the power to dissolve the government, an act that as we have seen returns the people to a state of nature (Comm. I, 157). The legislature thus “acknowledges no superior on earth” and the ordinances of one parliament cannot bind future parliaments (Comm. I, 90). Nor does the common law bind the legislature, for “by the express direction of … parliament” criminals are subject to exile as punishment, an act “unknown to the common law” (Comm. I, 133). In short, “So long … as the English constitution lasts, we may venture to affirm, that the power of parliament is absolute and without control” (Comm. I, 157).

It is not difficult to see, then, how American revolutionaries could find in Blackstone an enemy to liberty. In his hands Parliament necessarily “hath sovereign, uncontrolable authority in making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical, or temporal, civil, military, maritime, or criminal” (Comm. I, 156). In fact, Parliament “can change and create afresh even the constitution of the kingdom and of parliaments themselves; as was done by the act of union, and the several statutes for triennial and septennial elections” (Comm. I, 156). Thus it appeared that the Commentaries advanced a constitutionalism at odds with the constitutionalism then emerging in the American colonies. If all governments possess sovereign or unlimited power, then it is meaningless to charge a government with acting unconstitutionally. Instead, the terms constitutional and unconstitutional refer simply to the legal and illegal.

But as other commentators have shown, Blackstone's constitutionalism is in fact subtler. Consider in particular the following points. First, recall that Blackstone allows the “justice” of Locke's theoretical claim of an inherent right to resist tyrannical government. It is not a right authorized under civil law; rather, people faced with “unconstitutional oppressions, even of the sovereign power … will not be reasoned out of the feelings of humanity; nor will [they] sacrifice their liberty by a scrupulous adherence to those political maxims, which were originally established to preserve it,” including, presumably, the maxim of parliamentary sovereignty (Comm. I, 238). Indeed, natural law remains a standard against which the actions of government can be judged. “The absolute rights of every Englishman,” he writes, “are coeval with our form of government,” and while the enjoyment of these rights will “fluctuate and change: their establishment (excellent as it is) being still human,” the natural law provides a baseline that differentiates between legitimate (lawful) and illegitimate (tyrannical) government (Comm. I, 123).Footnote ³⁹ Indeed, he could not speak of unconstitutional oppressions without conceiving of some limits on power. “[N]o constitution, no contract, can ever destroy or diminish … the exertion of those inherent (though latent) powers of society” to resist efforts to “subvert the constitution” (Comm. I, 238).

Second, when Blackstone speaks of Parliament or the legislative power he usually means the king-in-Parliament, not exclusively the two houses (Lords and Commons).Footnote ⁴⁰ The difference is critical, for it points to a Montesquieuean constitutionalism that relies on the separation of powers and the constitution's balanced composition (i.e., the representation of different social estates in the two houses of Parliament and the king) to moderate legislative discretion.Footnote ⁴¹ “Like three distinct powers in mechanics, they jointly impel the machine of government … in a direction … which constitutes the true line of the liberty and happiness of the community” (Comm. I, 151). Additionally, the judiciary helps preserve public liberty by tempering the exercise of power by both Parliament and king. By working to reconcile statutory law with precedent, by preserving the continuity of law and custom, in short by observing “fundamental principles of law,” the royal judges help to promote the principles of civil liberty (Comm. I, 259).Footnote ⁴² “Very different from the modern constitutions of other states, on the continent of Europe … which in general are calculated to vest an arbitrary and despotic power of controlling the actions of the subject in the prince, or in a few grandees” (Comm. I, 122–23). Indeed, Blackstone adds, paraphrasing Montesquieu, “the English is the only nation in the world, where political or civil liberty is the direct end of it's constitution" (Comm. I, 141).Footnote ⁴³

Third, a closer look at his use of the word sovereignty reflects this more complex constitutional theorizing. In addition to his frequent references to Parliament's sovereignty, he also notes that the “law ascribes to the king the attribute of sovereignty, or pre-eminence” (Comm. I, 234). Elsewhere he writes, “in a democracy there can be no exercise of sovereignty but by suffrage” and concludes that “In England, where the people do not debate in a collective body but by representation, the exercise of this sovereignty consists in the choice of representatives,” namely, in the House of Commons (Comm. I, 164–65).Footnote ⁴⁴ In what sense could these disparate parts of the constitution simultaneously be sovereign? The answer lies in his understanding of sovereignty. Blackstone explains, “whenever the law expresses it's distrust of abuse of power, it always vests a superior coercive authority in some other hand to correct it; the very notion of which destroys the idea of sovereignty.” Sovereignty implies superiority. This is why the law assumes that “neither the king nor either house of parliament (collectively taken) is capable of doing any wrong; since in such cases the law feels itself incapable of furnishing any adequate remedy” (Comm. I, 237). Thus when describing the king's prerogative, including his power to make treaties with foreign states, Blackstone writes that “by the law of nations” such agreements are to “be made by the sovereign power: and in England the sovereign power, quoad hoc [to this extent], is vested in the person of the king” (Comm. I, 249). The king's authority is sovereign, or superior, insofar as his exercise of the prerogatives of the crown cannot be legally overruled.Footnote ⁴⁵ Similarly, the election of the Commons cannot be overturned (except by the voters in future elections).

Ultimately, then, Blackstone's argument regarding constitutional sovereignty is more complex than a simple, pure doctrine of legislative sovereignty. His nuanced use of sovereignty reflects his commitment to a balanced constitution, to maintaining “the equilibrium of power between one branch of the legislature and the rest” (Comm. I, 51) that he associates with the preservation of liberty. Parliamentary sovereignty remains a leading principle of the constitution, but it is tempered by other coequal principles (in particular, natural rights and equity) and by an institutional structure that preserves separation of powers and ensures the cooperation of the three social orders in making law. While his articulation of this complex constitutionalism is perhaps uneven (thereby allowing his critics to label him a proponent of absolute power), his effort to avoid (except in a formal sense) the question of “ultimate sovereignty” was in fact similar to constitutional theorizing that was beginning to blossom in the American colonies.

Parliament's Sovereignty and Personal Liberty

Blackstone, then, is no friend to tyranny. He can and does distinguish between tyrannical governments and free ones. All governments are absolute, but only tyrannical ones govern arbitrarily; and for Blackstone the difference between absolute and tyrannical government—between good government and bad—is the difference between due process of law and arbitrary rule. The English constitution aims at securing due process, and Blackstone's historical retelling of the development of this constitutionalism of due process is a dominant part of the Commentaries. This narrative component of his work, the historical emergence of the modern English constitution, is important because it highlights the role that he ascribes to Parliament—in this case the two houses—in thwarting the despotic ambitions of the king.

According to Blackstone it was the crown (the king and his ministers) that historically posed the greatest threat to liberty. The history of English liberty is thus largely the history of the reining in of an arbitrary king by a liberty-loving parliament.Footnote ⁴⁶ Restricting the discretion of the king has served the cause of liberty. “The limitation of the king's prerogative, by bounds so certain and notorious,” he writes, is one of the “auxiliary subordinate rights of the subject, which serve … as [a barrier] to protect and maintain inviolate the … great and primary rights” of the people (Comm. I, 136–37).Footnote ⁴⁷ Thus, for example, he declares that “the happiness of our constitution is, that it is not left to the executive power to determine when the danger of the state is so great, as to render” suspension of habeas corpus necessary (Comm. I, 132). It is not left to the executive because Parliament has inscribed this right into law. This right is a “natural inherent right” and is “co-eval with the first rudiments of the English constitution,” Blackstone writes, “handed down to us from our Saxon ancestors … and asserted afterwards and confirmed by the [Norman] conqueror himself” (Comm. III, 133). This fundamental right was “established on the firmest basis” with the “magna carta, and a long succession of statutes enacted under Edward III” (Comm. III, 133).

Even so, royal acknowledgment of this right proved unreliable. “[E]arly in the reign of Charles I,” Blackstone reports,

And yet this legislative response was not sufficient, for “when, in the following year, Mr. Selden and others were committed by the lords of the council, in pursuance of his majesty's special command, under a general charge of [sedition], the judges delayed for two terms (including also a long vacation) to deliver an opinion how far such a charge was bailable” (Comm. III, 134).

It was these “pitiful evasions” by the law judges that prompted Parliament to enact a statute (16 Car. I. c. 10. § 8) to require the court of the king's bench to respond within three days to a motion for a writ of habeas corpus. “Yet still in the case of Jenks,” Blackstone continues, “who in 1676 was committed by the king in council for a turbulent speech at Guildhall, new shifts and devices were made use of to prevent his enlargement [i.e., release] by law; the chief justice … declining to award a writ of habeas corpus ad subjiciendum in vacation, though at last he thought proper to award the usual writs ad deliberandum &c.” (Comm. III, 134–35). “Other abuses had also crept into daily practice,” Blackstone adds, “which … in some measure defeated the benefit of this great constitutional remedy” (Comm. III, 135).

The result of this “flagrant abuse of … power, by the crown” was a constitutional “struggle,” which ended with passage of the “famous habeas corpus act, 31 Car. II. c. 2.,” a statute that Blackstone says is “frequently considered as another magna carta of the kingdom” (Comm. III, 135).Footnote ⁴⁸ Blackstone then discusses in detail the “substance of [this] great and important statute” and notes its influence even on the court; for although this statute does not reach all “cases of unjust imprisonment”—others “being left to the habeas corpus at common law”—he points out that “even upon writs at the common law it is now expected by the court, agreeable to antient precedents and the spirit of the act of parliament, that the writ should be immediately obeyed” (Comm. III, 137).

This last remark brings us again to the role of judges in promoting justice. Blackstone applauds the myriad ways in which law judges have through “fictions of law” prevented “a mischief or [remedied] an inconvenience, that might result from the general rule of law” (Comm. III, 43). Actions of trover, the discountenance “by the courts … of actions of debt upon judgment in personal suits,” the judicial creation of the writ of ejectment, the disuse of “real actions” at law—all are examples of changes introduced by the courts for the benefit of the king's subjects in the recovery of personal and real property. The ancient forms of redress remain, Blackstone explains, but they exist in form only; “the judges … left them as they were, to languish in obscurity and oblivion, and endeavoured by a series of minute contrivances to accommodate such personal actions, as were then in use, to all the most useful purposes of remedial justice” (Comm. III, 267–68). These contrivances, “refined by the practice of more than a century … in general answer the purpose of doing speedy and substantial justice, much better than could now be effected by any great fundamental alterations” in statutory law. As Blackstone famously concludes, “We inherit an old Gothic castle, erected in the days of chivalry, but fitted up for a modern inhabitant” (Comm. III, 268).

But Blackstone reserves for Parliament an at least equal role in modernizing feudal institutions. Its role in modernizing the feudal common law fills the chapters in volume three of the Commentaries on injuries to real and personal property. The statute of Marlbridge, which improved the “tedious” writ of replevin in the recovery of an unlawful taking, the Statute of Frauds and Perjuries enacted under Charles II, the statute enacted under Henry VIII protecting widows from a discontinuance of estate, and the extension (under the reigns of Edward III and VI) of monstrans de droit in suits seeking restitution from the crown for real and personal property are just a few of the statutes that Blackstone discusses in his detailed historical review of the rules governing remedies at law for injuries to real and personal property (Comm. III, 147, 157, 172, 256). In addition, Parliament often expressed its approval of the judicial reform of the common law by authorizing such reform in statute, as was the case involving the serving of a summons (Comm. III, 287).

Most noteworthy in these pages, though, are those parliamentary statutes enacted to thwart and remedy injuries proceeding from the crown. It is Parliament that eased the process by which subjects can reclaim possession or obtain restitution in disputes with the crown over land ownership; it is Parliament that “at the revolution … declared, that all grants and promises of fines and forfeitures of particular persons before conviction … are illegal and void;” it is Parliament that responded to “a very large stride [taken by Charles II] towards establishing arbitrary power” by prohibiting the king from using his prerogative power to forfeit London's charter;Footnote ⁴⁹ it is Parliament that made the writ of mandamus “a most full and effectual remedy, in the first place for refusal of admission where a person is intitled to an office or place in any … city, borough, or town corporate … and, secondly, for wrongful removal, when a person is legally possessed” (Comm. III, 259, 263–64). In short, it is Parliament, first and foremost, that Blackstone credits for establishing as a matter of law those “absolute rights … [or] liberties [that are] founded on nature and reason” (Comm. I, 123).