Blackstone's Three Absolute Rights and Why Every Founder Owned His Book

Imagine a bestseller with no plot, no romance, no murder except the ones it classifies, four volumes long, written by an Oxford professor about the law of a country most of its readers were about to declare independence from. Now imagine it selling so well in the colonies that a leading member of Parliament stood up in 1775 and warned his colleagues about it.

That was Edmund Burke, in his speech on conciliation with America, and the book was William Blackstone's Commentaries on the Laws of England. Burke told the House of Commons he had heard that nearly as many copies had been sold in America as in England. His point was that a people who read law that closely would see a tyranny coming from far away and would not wait to feel it. He was right, and the Americans who read that book went on to write a Constitution full of its ideas, and full of corrections to it.

This is a profile of the man, the book, and the three rights he called absolute.

An unlikely professor

William Blackstone was born in London on July 10, 1723, the son of a silk merchant who died before the boy was born. His mother died when he was twelve. Relatives paid for his schooling at Charterhouse and then at Pembroke College, Oxford. He became a fellow of All Souls College in 1744 and was called to the bar in 1746.

His practice did not flourish. He was, by most accounts, a poor courtroom speaker and a superb organizer of ideas. So in 1753 he did something no one had done at Oxford: he began giving lectures on English common law. Until then the universities taught Roman law and canon law; the law actually used in English courts was learned by apprenticeship at the Inns of Court, from a jumble of case reports, statutes and Latin maxims. Blackstone's lectures were a success, and when a wealthy legal writer named Charles Viner left money to Oxford to endow a chair in the common law, Blackstone was elected the first Vinerian Professor of English Law in 1758.

The lectures became the book. Volume I of the Commentaries appeared in 1765 and volume IV in 1769. He later served in Parliament and as a judge, first briefly on the King's Bench and then on the Court of Common Pleas from 1770. He died on February 14, 1780.

The book that crossed the ocean

The Commentaries did something that sounds simple and was revolutionary: they made the whole of English law readable in one orderly work. Volume I covered the rights of persons, volume II the rights of things (property), volume III private wrongs (civil law and procedure), and volume IV public wrongs (criminal law). An apprentice in Virginia or a shopkeeper in Connecticut could now learn the law his courts used without sailing to London.

Americans bought it eagerly. A Philadelphia printer, Robert Bell, published an American edition in 1771 and 1772, paid for in advance by a long list of colonial subscribers. In 1803 the Virginia judge St. George Tucker published an American edition with extensive notes and appendices explaining where the law of the new United States differed from England's, including a long essay on the federal Constitution. For two generations, an American lawyer's education began with Blackstone. Abraham Lincoln studied the Commentaries as a young man in Illinois in the 1830s.

That is why the Supreme Court still reads him. In District of Columbia v. Heller (2008), the Court leaned heavily on Blackstone's description of the right of having arms as one of the auxiliary rights of Englishmen, the subject of Blackstone's fifth auxiliary right and how it shaped American thinking on arms. When the justices want to know what a phrase in the Bill of Rights meant to the people who ratified it, Blackstone is often the first book they open, because it was the first book those people opened.

The three absolute rights

The first chapter of volume I is titled "Of the Absolute Rights of Individuals". Blackstone begins with the purpose of law itself: the principal aim of society is to protect individuals in the enjoyment of the absolute rights vested in them by the immutable laws of nature. Then he names them:

the right of personal security, the right of personal liberty, and the right of private property.

He defines each.

Personal security is a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health and his reputation. Notice how far that reaches. The law protects your life against murder, your body against assault, your health against nuisance, and your good name against slander.

Personal liberty is defined in a sentence worth memorizing:

the power of loco-motion, of changing situation, or removing one's person to whatsoever place one's own inclination may direct; without imprisonment or restraint, unless by due course of law.

The heart of that definition is its last clause. Liberty, for Blackstone, is the freedom to go where you please unless a lawful process, through regular courts, says otherwise. That is why he praised the writ of habeas corpus and Magna Carta's promise that no free man shall be imprisoned except by the lawful judgment of his peers or the law of the land. The Fifth Amendment's "nor be deprived of life, liberty, or property, without due process of law" is that clause carried across the Atlantic.

Private property is the free use, enjoyment and disposal of all a person's acquisitions, without any control or diminution, save only by the laws of the land. And Blackstone stated the point about public need in words that still have teeth:

So great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community.

He immediately allows that the legislature may compel a man to give up his land for a public road, but only by giving him a full indemnification and equivalent for the injury. That is the principle the American framers made explicit in the Takings Clause.

Behind the three absolute rights stand five auxiliary rights that protect them: the constitution and powers of Parliament, the limitation of the king's prerogative, the right to apply to the courts for redress, the right to petition, and the right of having arms for defense. The first four are fences. The fifth is the last resort when fences fail.

Ten guilty men and one innocent

Volume IV, on public wrongs, contains the sentence for which Blackstone is most often quoted in American courtrooms. Discussing the rules of evidence in criminal trials, he writes:

it is better that ten guilty persons escape, than that one innocent suffer.

The maxim has older roots: Sir Matthew Hale had put the number at five, and the thought echoes Abraham bargaining over the righteous of Sodom in Genesis. Blackstone gave it the form that stuck. It is the moral foundation of the presumption of innocence, the requirement of proof beyond a reasonable doubt, the right to confront witnesses, and the unanimous jury.

Americans understood it before the volume was even in print here. In 1770, John Adams defended the British soldiers charged after the Boston Massacre and pressed on a Boston jury the same principle: that protecting the innocent matters more than punishing the guilty. It was among the least popular things a patriot lawyer could have done, which is precisely why it mattered. The long journey of the jury itself is traced in Twelve Strangers, How Trial by Jury Crossed the Atlantic to America, and its role in a modern town in Jury Duty Is the Rule of Law in Your Own Town, So Answer the Summons.

For a conservative, the ten-to-one ratio is not softness on crime. It is a statement about the power of the state. A government that convicts the innocent to be sure of catching the guilty has made every citizen a suspect. Conservatives who want order, and we should, want it through courts whose verdicts the public can trust, which means courts that would rather lose a case than convict the wrong man. You can follow how courts apply these principles on our courts page.

Natural law above human law

Blackstone did not think law was whatever the sovereign said. In the introduction to the Commentaries, he explains the law of nature, which God imposed on mankind and which reason can discover, and he ranks it above every statute:

This law of nature, being coeval 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.

He adds the law of revelation, the moral precepts of Scripture, as a further and more certain guide. Human laws, he says, must rest on these two foundations.

Read that passage beside the Declaration of Independence's appeal to "the Laws of Nature and of Nature's God", and you see why the colonists found Blackstone so useful. He gave them the theory to argue that some acts of government are void however regular their form. The line from the Stoics through Aquinas to that conviction is told in From Cicero to Aquinas to Jefferson, the Long Road of Natural Law, and the American lawyer who did most to build on it is profiled in James Wilson Lectured on Natural Law While Washington Was President.

What the Americans rejected

A profile that only praised Blackstone would misrepresent the Founders, who argued with him as much as they learned from him.

1. Parliamentary sovereignty. Blackstone taught that Parliament's power is absolute and without control, and he put it bluntly: what the Parliament doth, no authority upon earth can undo. His natural law passage and his sovereignty passage sit uneasily together, and when pressed he resolved the tension in Parliament's favor. The Americans resolved it the other way. They wrote a constitution that the legislature cannot change by ordinary law, enumerated the legislature's powers, and gave courts the duty to refuse to apply statutes that conflict with it. Marbury v. Madison (1803) is the answer to Blackstone's sovereignty.

1. The colonies' status. Blackstone taught that the American plantations were subject to the control of Parliament. Colonists who loved his chapters on liberty found that claim over them unacceptable, and the Declaration answered it.

1. The press. Blackstone defined the liberty of the press as the absence of previous restraint, no licensing before publication, while leaving publishers fully liable afterward for seditious libel. Americans began with that definition and outgrew it. After the Sedition Act of 1798, Madison's Virginia Report of 1800 argued that a free press must also be free from punishment for criticizing government.

1. An established church, a hereditary peerage, and the law of married women. Blackstone defended the Church of England's establishment and the House of Lords, and he described the doctrine by which, in law, husband and wife were one person and the wife's legal existence was suspended during marriage. The First Amendment rejected an established national church, Article I rejected titles of nobility, and the states over the nineteenth century, beginning with laws like New York's in 1848, gave married women control of their own property.

Thomas Jefferson went further than most: in a letter to Madison in 1826 he complained that Blackstone's polished pages had drawn American lawyers toward Toryism, and he preferred Sir Edward Coke. That is a fair criticism of the book as a substitute for thinking. It is not a criticism of the three rights.

The strongest objection, and the answer

The fiercest critic Blackstone ever had was his own former student, Jeremy Bentham, who heard the Oxford lectures as a teenager. In A Fragment on Government, published in 1776, Bentham attacked the Commentaries as a polished defense of every abuse in English law. Put fairly, Bentham's case is this: natural rights are a fiction, "nonsense upon stilts" as he later called them, because rights exist only when a sovereign enforces them. Blackstone's praise of the common law is complacency dressed as scholarship. The law should be judged by one standard only, whether it produces the greatest happiness of the greatest number, and reformed by rational legislation accordingly.

Three answers.

• Bentham's own standard licenses the injustice Blackstone forbade. If the greatest happiness of the greatest number is the only test, then convicting one innocent man to deter a hundred crimes can be justified by arithmetic. Blackstone's ten-to-one maxim, rooted in the dignity of each person, says no. That difference is not academic. It is the line between a criminal justice system and a terror apparatus.
• Rights that exist only when the sovereign grants them can be revoked when the sovereign changes its mind. The American experiment rests on the opposite premise: that rights are prior to government and that government exists to secure them. You cannot get from Bentham to the Declaration. You can get from Blackstone to it, as the Founders did.
• Blackstone was not a defender of every abuse. He criticized cruel and excessive punishment, observing that the multiplication of capital crimes in England was a defect, and he praised the jury as the glory of the English law. He was a reformer of the conservative kind: he wanted the law understood before it was changed, so that changes would fix what was broken without breaking what worked.

The case in brief

1. Blackstone, the first Vinerian Professor of English Law, turned scattered English law into the orderly Commentaries (1765 to 1769), which Americans bought in such numbers that Burke warned Parliament about it in 1775.
2. He named three absolute rights, personal security, personal liberty and private property, guarded by five auxiliary rights including the right of having arms.
3. His maxim that it is better ten guilty persons escape than one innocent suffer still anchors the presumption of innocence in American courts.
4. He placed natural law above human law, a principle the Declaration made the basis of a nation.
5. The Founders rejected his parliamentary sovereignty, his narrow press liberty and his established church, and they answered Bentham's utilitarian attack by grounding rights in the person rather than the state.

What you can do: answer your next jury summons rather than seeking an excuse, and before you serve, read the Fifth and Sixth Amendments on our Constitution page so you know exactly what the accused is owed.