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Sir William Blackstone blackstonian

William Blackstone (1723-1780), the great English jurist, did not cause the American Revolution. Had he not published his Commentaries on the Laws of England in the late 1760s, the American Revolution would have taken place. Blackstone did, however, represent certain trends in the law and in British society that, when combined with the evolving colonial situation of the 1760s led to American independence. Unrest in the empire took place at the junction of politics, culture, and ideas as Anglo-American nationalism, the transition to constitutional positivism, and the desire to reform colonial administration in the 1760s rendered the empire unworkable. After the Seven Years War, Blackstone’s doctrines made it difficult to finesse the tension that had always existed between the liberties of the colonial periphery and governance from the imperial center. [1]

In recent years legal scholars such as John Philip Reid have rediscovered the constitutional discourse of the second half of the eighteenth century.[2] In particular, they have demonstrated that the American colonists had a strong constitutional case against the imperial reformers in London. This essay will build upon that scholarship by exploring some of the underlying causes and implications of the constitutional controversy leading to American independence. America and Great Britain were divided by a common discourse and it is therefore fruitful to explore how a common sense of nationality, patriotism, and of higher purpose yielded division rather than consensus.

Nationalism waxed in the eighteenth-century British world. After the Act of Union of 1707 that brought England, Scotland, and Wales into a single kingdom, His Majesty’s subjects began to think of themselves as Britons. The outgrowth of more than a century and a half of fighting Catholics both at home and abroad, Britons drew strength from the idea that their nation had a role to play in providence for the liberation of the world from both political and ecclesiastical tyranny. James Thomson gave this idea perhaps its best known expression in his play Alfred:

When Britain first, at Heaven’s command,
Arose from out the azure main,
This was the charter of the land,
And guardian angels sung this strain:
“Rule, Britannia, rule the waves;
Britons never will be slaves.” [3]

Britons, as Linda Colley points out, regarded their nation as a new Israel, at the right hand of God, doing His work in the world.[4] The divine mission of the British people had an earthly dimension which glorified the rights of Englishmen that were enshrined in the British Constitution, and secured to Britons by the King in Parliament.

Anglo-Americans shared in that movement. According to Colley, the residents of Great Britain were torn between two conceptions of the colonists: “Americans as colonists subordinate to the mother country, [and] Americans as Englishmen abroad and consequently the brethren of those at home.”[5] Anglo-Americans instinctively accepted the latter interpretation, and believed that they shared in Britain’s destiny. The sermons heard in America upon the success of British Arms in Canada in 1759, the death of George II, and the coronation of George III in 1760 all drew upon and reinforced Anglo-American love and reverence for their mother country. Rev. Eliphalet Williams echoed the general sentiment, when he told the Anglo-Americans in East Hartford that they should thank the Lord for helping Britons to drive the Catholic French out of Canada. The Lord had, he said, “so far humbled the French and made his Protestant People, especially his English Israel, to triumph in his Goodness.”[6] Tributes to the monarch extolled the defender of the protestant cause and the British Constitution. Samuel Davies, President of the College of New Jersey, best summarized Anglo-American sentiment:

Can the British Annals, in the Compass of the Seventeen Hundred Years, produce a Period more favourable to Liberty, Peace, Prosperity, Commerce and Religion?…George the Great but Unambitious, consulted the Rights of the People, as well as of the Crown; and claimed no Powers but such as were granted to Him by the Constitution….His Parliament were his faithful Counselors; to whom He communicated His Measures….How different would have been our Situation under the baleful Influence of the ill boding Name of Stuart. [7]

Or, as John Adams wrote in 1766. “the difference between the [B]ritish Constitution and other Constitutions of Government . . . [is] that Liberty is its End.”[8] Such tributes abounded a mere fifteen years before Americans welcomed Thomas Paine’s polemic against the “Royal Brute of Britain,” and a call for independence.

Blackstone wrote during a time of rising nationalism on both sides of the Atlantic. A votary of the British Constitution, his Commentaries were a summa to help lawyers more easily digest and protect it. In his eyes, he merely described the constitutional system that grew out of the revolutionary settlement of 1688. in which the King in Parliament held the sovereign power. “There is and must be,” he wrote, “in all of them [states] a supreme, irresistible, absolute, uncontrolled authority in which the jura summi imperii, or the rights of sovereignty reside. . . By sovereign power, as was before observed is meant the making of laws.”[9] It was simple logic. Law was “that rule of action, which is prescribed by some superior, and which the inferior is bound to obey,”[10] and the sovereign power was that which made the laws. The greatness of the British Constitution, he thought, was the balance it achieved among monarchy, aristocracy, and democracy in law-making by locating sovereignty in the King, Lords, and Commons of the realm. That balance guaranteed liberty under law, and made Great Britain the freest and strongest nation of its age—as the Seven Years War had proved. According to Blackstone’s line of thought, Parliament’s sovereignty, and its consequent right to promulgate 1688’s Declaration of Rights, was the heart of England’s revolutionary heritage, and of her role in providence.

By 1763, Blackstone’s Britain was on the march, master of a greatly expanded empire in North America. Many thinkers in London began to contemplate how the government ought to bring that empire into the legal and constitutional framework of the Kingdom, and derive revenue from it. In the 1760s, the term “British Empire” first began to refer to the British polities on both sides of the Atlantic.[11] That linguistic turn suggests that the British polities in America had functioned for nearly a century and a half, greatly benefiting all concerned, without serious attention to explaining the true, rightful nature of the relations between the imperial periphery and the imperial center. It is probably no exaggeration to say that the empire functioned so well for so long precisely because no one had bothered to try to establish a clear relationship between mother country and the colonies.[12] With Royal, Charter, and Proprietary colonies, not to mention all of Canada and a plethora of islands, Parliament feared that its dearly bought empire would rapidly disintegrate unless they brought a clean line of command to its administration. The desire to generate revenue to cover the debt amassed in the late war brought immediacy to efforts at reform. Francis Bernard, Governor of Massachusetts. wrote to his superiors in 1764, “we cannot but be concerned for the stability of a fabric built on so disjointed foundations, and raised to so great a height; and must be convinced that it will require much political skill to secure its duration.”[13] If Britain failed to hold its new empire together, Parliament feared. Canada could be lost, and the Scarlet Whore of Babylon would again threaten North America.

Blackstonianism made a workable solution difficult to achieve. If Parliament’s will was law, and if Parliament legitimately had dominion over Anglo-America, then Americans had no sustainable rights. Reid has demonstrated at length that many Britons, even members of Parliament, came to accept Blackstone’s constitutional point of view only gradually in the last part of the 18th century.[14] But when Parliament considered its role in America, rather than at home, few of its members resisted the implications of constitutional positivism. Out of sight, meant out of constitutional mind. As a result, Parliament unwittingly threatened the freedoms which undergirded Anglo-American love for the mother country. Charles Andrews points out that, “no one in Great Britain wished to oppress the colonies and it is to be doubted if anyone in office thought that he was really doing so. Grenville had no other desire than to shape his measures so as to affront them as little as possible.” [15]

When Parliament passed a tax on British-America, it thought it did nothing extraordinary. J.C.D. Clark points out that the “evolving British (or English) national identity in the 1750s and 1760s had not compelled Englishmen to define Americans as ‘the other’: nor did Americans so define Britons.”[16] Because Americans were Britons, the constitutional means of taxing them was to do it through Parliament. Blackstonians did not believe that a tax passed by Parliament on Britons could be oppressive. It was not the belief that the colonists were an “other,” but rather the idea that they were England’s brethren that led Parliament to tax unrepresented colonists and think nothing of it. [17]

Americans drew upon a different understanding of the British Constitution. Although Blackstone drew strength from his position as a Whig legal theorist, consolidating the gains of 1688, he also represented a revolution in constitutional thought. In the seventeenth century, Edward Coke, the great jurist and parliamentarian, defined and defended the liberties of Britons as something beyond the actions of the King and Parliament. In his way of thinking, Magna Charta was not an Act of Parliament but a constitutional truism: “declaratory of the principle grounds of the fundamental laws of England.[18] Coke thought that the legislature lacked the legitimate power to alter the British Constitution. and that the constitution was an accumulation of legal traditions, developed gradually over time, which rested ultimately on the wisdom of experience, and upon natural law.[19] To him, the power to create fundamental laws belonged only to God and to the common law tradition.[20] He treated sovereignty as a mystical entity, not capable of full, reasoned explication. Unlike Blackstone, for whom law was the command of the (earthly) sovereign, to Coke, law was the formal rules under which people. corporations, and rulers interacted. Americans drew upon Coke’s constitutionalism.

The Whigs had split into two groups, with each side claiming to be the rightful heir of the legacy of Protestant, constitutional liberty. Both sides assumed that the enjoyment of rights and liberties was the glory of Britons. and both grounded that idea in the British Constitution as secured in the Glorious Revolution of 1688. For Parliamentarians. a Whig was a patriot who extolled the revolution of 1688 for bringing the King under law by placing him effectively under Parliament. To most Americans, a Whig upheld the right secured in 1688 to live under laws made by one’s own representatives. One of the more liberal imperial reformers, Thomas Pownall, the former governor of Massachusetts, expressed the perspective of London when he wrote, “I do suppose that it will not bear a doubt, but that the supreme legislature of Great Britain is the true and perfect representative of Great Britain. and all its dependencies.” [21]

Anglo-Americans would not stomach the idea that a Parliament 3,000 miles from their shores, in which none of their fellow colonists sat, could possibly be their “perfect representative.” Massachusetts Whig James Bowdoin upheld the American position when he protested taxation without representation as a violation of America’s English inheritance: “If this could be done .. . [it] would be Vassalage in the extreme; from which the generous Nature of Englishmen has been so abhorrent, that they have bled with Freedom in the Defense of this Part of the Consti-tution.”[22] For Anglo-Americans, a Briton’s liberty to be taxed only by his representatives was incompatible with the liberty to be taxed only by Parliament. As “Britannus Americanus” wrote in the Boston Gazette in 1766, “to talk of English subjects who are free, and of other English subjects, not so free,. .. appears to be absurd.”[23] Coke’s ideas were therefore a necessary appendage to Anglo-American patriotism. The full and equal status and liberty of His Majesty’s subjects outside Great Britain could only be secured and defended with a constitutional doctrine that dwelled upon the inherent limits of all earthly power, and thus made the existence of two legislative bodies in a single nation constitutionally feasible. [24]

The rift between Coke’s and Blackstone’s constitutionalism was the fault line of American independence. In America, unlike in Great Britain, Blackstonianism was incompatible with English liberty. By demystifying sovereignty, Blackstone forced to the surface the tension between Parliament’s role as the legislature of Great Britain and as the legislature of the empire, and thereby made the imperial constitution unworkable. Regarding Parliament as sovereign, most members of Parliament, and American Tories like Thomas Hutchinson of Massachusetts. did not think British liberties could be separated from government under Parliament. Hutchinson wrote: “I know of no Line that can be drawn between the supreme Authority of Parliament and the total Independence of the Colonies.”[25] To a Blackstonian, the Declaratory Act of 1766, which asserted Parliament’s right to legislate for the colonists in “all cases whatsoever,” was as much of a truism as Magna Charta had been to Coke. [26]

Blackstone therefore forced London to think of the American colonies as “dependencies.”[27] Dependency implied a subordination to Parliament and a diminution of rights. [28] According to Coke’s constitutionalism, Americans needn’t have been so treated. The loose imperial system that existed in the old empire depended implicitly upon Coke’s constitution. Parliament and the admittedly subordinate colonial legislatures could easily coexist as long as all parties regarded sovereignty as something beyond reason and understood the inherent limits on all power. In 1775, former Governor of East Florida, William Johnstone, tried to make Parliament understand that sovereignty in practice need not be so dear as Blackstone had made it in theory:

I say it demonstrates a perfect ignorance of the history of civil so-ciety to assert (which is the captivating argument used in this House, for the breaking down of all barriers of liberty in America) that two independent legislatures cannot exist in the same com¬munity, and therefore we are to destroy the whole fabric of those [American] governments which have sustained for so many years…. I say, a free government necessarily involves many clashing jurisdictions, if pushed to the extreme. [29]

Few in Parliament could any longer understand Johnstone’s way of thinking. When Parliament finally decided to bring some coherence and consistency to imperial organization and to lay out what Jack Greene calls the “as yet undefined, even unacknowledged, imperial constitution,” the most up to date thought indicated that it rightfully had final say on all matters constitutional.[30] Regarding the American colonies, few Parliamentarians could still grasp the virtues of the old system, with all its apparent chaos. Constitutional positivism therefore struck a mortal blow to Anglo-American patriotism by attacking its root premise of constitutional equality among Britons across the empire. [31]

Blackstone made colonists choose between being free and being British. The necessities of an empire run by Parliament from the imperial center became incompatible with the liberties of British subjects living on the imperial periphery. In his essay, “The Irrelevance of the Declaration,” Reid points out that once one gets past the first two paragraphs, the Declaration of Independence is nothing more than a common law indictment of King George.[32] In other words, declaring independence from Great Britain was a final act of devotion to the Whig constitutional principles that Anglo-Americans had imbibed since their settlement. Americans assumed a separate and equal station with their mother country so that they could enjoy the rights of Britons, and continue the mission of a free, protestant people in America.

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Notes:

1. This language is taken from Jack P. Greene, Peripheries and Center: Constitutional Development in the Extended Polities of the British Empire and the United States 1607-1788 (New York, 1986). For an argument that parallels the one given here, see Beverly Zweiben, How Blackstone Lost the Colonies: English Law, Colonial Lawyers and the American Revolution (New York, 1990).
2. The best summary of Reid’s work in his Constitutional History of the Amencan Revolution, 4 vols. (Madison, Wisc., 1986-1995). Another seminal piece in this field is Barbara Black’s “The Constitution of the Empire: The Case for the Colonists,” University of Pennsylvania Law Review 124 (1975-76), 1157-1211. Jack P. Green gives a somewhat dated but still useful overview of the recent constitutional literature in his essay, “From the Perspective of the Law: Context and Legitimacy in the Origins of the American Revolution,” South Atlantic Quarterly 85 (1986). 56-77.
3. James Thomson, Alfred, II:v, in Percy G. Adams. ed. The Plays of James Thomson, (New York, 1979). 227. The next verse of the ode (within the play) reads “The nations, not so blest as thee,/Must, in their turns, to tyrants fall:/ While thou shalt flourish great and free./ The dread and envy of them all.”
4. Linda Colley, Britons: Forging the Nation 1707-1837 (New Haven. Conn.. 1992). 30-33. Colley points out that Isaac Watts’s best-selling translation of the Psalms of 1719 replaced “Israel” with “Great-Britain.”
5. Colley, Britons. 135.
6. Eliphalet Williams, A Sermon. Preached at East-Hartford, March 6. 1760Being the Day of Public Thanksgiving. For the Finally Favourable Appearances of Almighty GOD, in prospering his Majesty’s Arms. . (New London, 1760), 24. In Portsmouth. Samuel Langdon told his parish. “We may also be assured by all which God had done in times past for Protestants, and by the wonderful things which he has lately been doing for Great-Britain and her allies against a grand confederacy of antichristian powers.” And that. “Divine Providence has seem’s to point out Britain from the beginning as a favorite nation.” Joy and Gratitude to God for the Long Life of a Good King. and the Conquest of Quebec. A Sermon Preached in the First Parish of Portsmouth(Portsmouth, 1760), 17, 23. In general. these sermons rely heavily on Old Testament texts, with the obvious implicit comparison of England to Israel. For a specific American reference to the English (or British) Israel. see Samuel Haven, A Sermon Occasioned by the Death of King George the Second, and the Happy Accession of His Majesty King George the Third… (Portsmouth, 1761), 17.
7. Samuel Davies, A Sermon Delivered at Nassau-Hall. January 14, 1761. On the Death of His Late Majesty King George II. . . . (New York, 1761). 10.
8. John Adams, Diary and Autobiography of John Adams (Cambridge, Mass., 1961). I.298.
9. William Blackstone. Commentaries on the Laws of England: A Facsimile of the First Edition of 1765-1769 (Chicago, 1979), 49.
10. Blackstone, Commentaries, 38.
11. Richard Koebner, Empire (Cambridge, Eng.. 1961). 86.
12. As Charles Andrews wrote, “England began her career as the greatest and most prosperous colonizing power that the world has ever known without any fixed policy, in fact, without any idea of what she and her people were doing.” Charles M. Andrews, The Colonial Background of the American Revolution: Four Essays in American Colonial History (New Haven, Conn.. 1924), 5. The imperial government made periodic sallies into colonial reform and organization, but concerns closer to home always kept such efforts from getting very far.
13. Francis Bernard, Select Letters on the Trade and Government of America (London, 1774), 67. This is a set of letters Bernard wrote his superiors on London in 1764.
14. “It was rapidly coming to be understood that the British constitution was whatever parliament said it was. That maxim had not yet been generally accepted.” John Philip Reid. ed., The Briefs of the American Revolution: Constitutional Arguments Between Thomas Hutchinson, Governor of Massachusetts Bay, and James Bowdon, for the Council and John Adams for the House of Representatives (New York, 1981). 51.
15. Andrews, The Colonial Background, 154.
16. J.C.D. Clark, The Language of Liberty 1660-1732: Political Discourse and Social Dynamics in the Anglo-American World (Cambridge. Eng., 1994), 61.
17. To King George’s subjects in Great Briton, refusal to pay taxes was rank ingratitude. Richard Bushman quotes an essayist in the London Chronicle (1/28/1766) who wrote. “I am equally grieved and surprised at the waywardness and ingratitude of the Americans.” in Bushman. King and People in Provincial Massachusetts (Chapel Hill. 1992), 34. Thomas Hutchinson saw colonial living as a temporary status open to all Englishmen, and argued that colonists need only return to Great Britain to exercise their right to vote for those who would tax them. Reid, ed. Briefs, 19.
18. Coke’s Institutes in Thomas C. Grey. “Origins of the Unwritten Constitution: Fundamental Law and American Revolutionary Thought.” Stanford Law Review 30 (1978), 852.
19. For most of his career. Coke emphasized the common law underlying English government, but in his ruling in Calvin’s Case, Coke also drew on natural law. American Whigs of the 1760s and 1770s drew heavily on both lines of Coke’s thought. See The Reports of Sir Edward Coke, Knt. in English. In Thirteen Parts Complete; with References to All the Ancient and Modern Books of Law (Dublin, 1793), IV, 1-56. Reid emphasizes the common law arguments that Americans made. But he points out that “if we look at the arguments of individual writers rather than official petitions and resolutions, natural law is the source most clearly identified as an authority.” Constitutional History, 1,11. He does not explain why historians ought to regard such petitions as normative in the study of what was ultimately a popular uprising.
20. Coke played on the tension between the inherent limits of all earthly power and the duty of subjects to obey the legitimate authority. Blackstone undermined that balance. In Calvin’s Case, Coke wrote, “Concerning ligeance: 1. That ligeance or obedience of the subject to the Sovereign is due by the law of nature: 2. That this law of nature is part of the laws of England: 3. That the law of nature was before any judicial or municipal law in the world: 4. That the law of nature is immutable, and cannot be changed.” Coke, Reports, part VII. p.8.
21. Thomas Pownall, Administration of the Colonies, 2nd ed. (London, 1765). 89.
22. Reid, ed.. Briefs, 36-37.
23. Charles Hyneman and Donald Lutz, eds., Britannus Anwricanus. in American Political Writing During the Founding Era, 2 vols., (Indianapolis, 1983), I,89.
24. David Lovejoy’s The Glorious Revolution in America (New York, 1974), suggests that political necessity was part of the reason for the direction of American constitutional discourse in the eighteenth century. From 1688 onwards, Anglo-Americans sought to secure for themselves the same rights enjoyed by His Majesty’s subjects in London. The only way to do that was to draw upon Coke’s constitutionalism, which allowed them to hold that the Glorious Revolution was the triumph of English liberties in all of His Majesty’s dominions. rather than merely the placing of the King under Parliament. Clark indicates that the differing constitutional doctrines between the imperial periphery and center grew out of the differing religions of the residents of the mother country and of the colonies. The overwhelming majority of Englishmen were Anglican, and the vast majority of Americans were dissenters in religion. He makes a strong case. but this essay shows that the imperial dimension of constitutional discourse also made a constitutionalism closer to Coke than Blackstone a necessity for Anglo-America to resolve its place in British empire with its liberties. Such an explanation also is more compatible with the strong Anglican leadership of the revolutionary movement in the colonial South.
25. Reid, ed., Briefs. 20.
26 The Declaratory Act is 6, George III, chap. 12. It asserted that the colonists have “passed certain Votes. Resolutions, and Orders, derogatory to the Legislative Authority of Parliament, and inconsistent with the Dependency of the said Colonies . [therefore be it declared] That the said Colonies and Plantations in America have been, are, and of Right out to be, subordinate unto, and dependent upon, the Imperial Crown and Parliament of Great Britain … [who] had. hath, and of Right ought to have, full Power and Authority to make Laws and Statutes … [for said colonies] in all Cases whatsoever.”
27. References to the “dependence” or “subordination” abounded in the literature that Anglo-American Whigs found repugnant. Pownall, Bernard and the bulk of the rest of the imperial reformers who were taken seriously in London instinctively referred to the colonies as “dependencies” of the Crown. See Pownall quoted earlier, and Bernard, Select Letters, 67.
28. In a notorious set of letters to his superiors in London in 1769, Thomas Hutchinson argued that a diminution of colonial liberties was necessary to keep the empire together. These letters came into the hands Massachusetts Whigs. See Copy of Letters Sent to Great-Britain, by His Excellency Thomas Hutchinson, the Hon. Andrew Oliver. and Several Other Persons, Born and Educated Among Us (Boston, 1773). Governor Bernard made the same point in the letters cited earlier.
29. Reid, ed., Briefs, 11, n.12,
30. Greene, Peripheries and Center, 68.
31. In the Liberty case, John Adams complained of “the contrast that stares us in the Face! The Parliament in one Clause guarding the People of the Realm, and securing to the Benefit of Tryal by the Law of the Land, and by the next Clause, depriving all Americans of that Privilege. What shall we say to this Distinction? Is there not in this Clause, a Brand of Infamy. of Degradation, and Disgrace. fixed upon every American? Is he not degraded below the Rank of an Englishman?” See Legal Papers of John Adams, (Cambridge. Mass., 1965) II,200. See also, David Lovejoy. “Rights Imply Equality: The Case Against Admiralty Jurisdiction,” William and Mary Quarterly,3rd ser. 16 (1959), 459-84.
32. “The Irrelevance of the Declaration.” in Hedrik Hartog. ed., Law and the Revolution in the Law: A Collection of Review Essays on American Legal History (New York. 1981), 46-89.

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