Reflections on Blackstone’s Commentaries: The Natural Liberty of Mankind

James A. Dorn

As we celebrate the 250th anniversary of the Declaration of Independence, it is an opportune time to reflect on the intellectual climate that preceded its signing on July 4, 1776. In the Declaration, Thomas Jefferson referred to the “laws of nature”; “unalienable rights” of “life, liberty, and the pursuit of happiness”; the duty of government to protect those rights; and the right of individuals to abolish governments that fail to do so.

Similar language is found in the Virginia Declaration of Rights, drafted by George Mason and ratified by the Virginia Convention of Delegates on June 12, 1776. According to that document, “all men are by nature equally free and independent, and have certain inherent rights … namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”

Both Jefferson and Mason and other Founding Fathers were familiar with William Blackstone’s Commentaries on the Laws of England, published in four volumes between 1765 and 1769. Of particular interest is Blackstone’s discussion of “the absolute rights of individuals” in the first chapter of Book 1, where he argues that “the principal aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature”—namely, “the right of personal security, the right of personal liberty, and the right of private property.”

Drawing on the Magna Carta (“the great charter of liberties”), Sir Edward Coke (1552–1634), and Enlightenment thinkers like John Locke (1632–1704), Blackstone examines the higher-law foundation of common law and holds that “the principal view of human laws is, or ought always to be, to explain, protect, and enforce such rights as are absolute, which in themselves are few and simple.” Moreover,

The absolute rights of man, considered as a free agent, endowed with discernment to know good from evil, and with power of choosing those measures which appear to him to be most desirable, are usually summed up in one general appellation, and denominated the natural liberty of mankind. This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature: being a right inherent in us by birth.

These ideas resonated with those brave Americans who were willing to give their lives and fortunes to declare independence from tyrannical British rule under King George III, in the name of freedom. 

Blackstone’s Influence

Sir William Blackstone (1723–1780) studied at Oxford and later became its first chair in English law. His lectures provided the basis for his Commentaries. After he left Oxford in 1766, he practiced law, was a Tory in the House of Commons, and served as a judge.

It is ironic that Blackstone’s writing on “the natural liberty of mankind” clashed with his general adherence to the sovereignty of Parliament. It is clear that Blackstone was concerned with limiting the power of government and protecting fundamental, natural rights in order to achieve a harmonious civil society—as were the Founders. As such, they could draw from Book 1, Chapter 1, to support their cause. As Wilfrid Prest, an eminent Blackstone scholar, has noted:

Blackstone was no friend to the American Revolution. But Blackstone’s clearly-stated emphasis on the authority of the law of nature and the absolute rights of individuals was of particular importance in formulating and defending the case for armed resistance to King George and his parliament [quoted by Lisa Gold in Bauman Blog].

Likewise, American legal scholar Richard A. Posner has argued: “Had the appearance of the last volume of Blackstone’s Commentaries been delayed until 1776, posterity might have placed the Commentaries alongside the other revolutionary works of that year.” Posner recognizes the inconsistencies in the Commentaries, but concludes that “numerous as are the … shortcomings, they pale into relative insignificance once the nature and achievement of the work are understood.” Most importantly, “Blackstone’s conception of a free society is close to that of Adam Smith and other ‘liberals’ in the original and nearly forgotten sense of that term: people should be free to behave as they please so long as they do not invade other people’s freedom.”

Law, Liberty, and Justice

Blackstone, like Locke, held that “where there is no law, there is no freedom.” Thus, in Book 1, Chapter 1, he adhered to the doctrine “that laws, when prudently framed, are by no means subversive but rather introductive of liberty.” They are meant “to maintain civil liberty, which leaves the subject entire master of his own conduct, except, in those points wherein the public good requires some direction or restraint.” The “spirit of liberty,” writes Blackstone, is “deeply implanted in our constitution, and rooted even in our very soil.”

To protect the absolute rights of individuals is to ensure justice. Thus, Blackstone argues that when fundamental rights and liberties are “actually violated or attacked, the subjects of England are entitled” to (1) “the regular administration and free course of justice in the courts and law”; (2) “the right of petitioning the king and parliament for redress of grievances”; and (3) “the right of having and using arms for self-preservation and defense.”

Blackstone’s adherence to “the right of personal security, the right of personal liberty, and the right of private property,” which he viewed as “sacred and inviolable,” were shared by America’s patriots, but his loyalist sympathies and general acceptance of the absolute power of Parliament clouded his vision for American independence and freedom.

Although Blackstone has been criticized for his adherence to parliamentary sovereignty, it should be duly noted that he qualified Parliament’s absolute power, stating:

All these rights and liberties it is our birthright to enjoy entire; unless where the laws of our country have laid them under necessary restraints. Restraints in themselves so gentle and moderate, as will appear upon farther inquiry, that no man of sense or probity would wish to see them slackened. For all of us have it in our choice to do everything that a good man would desire to do; and are restrained from nothing, but what would be pernicious either to ourselves or our fellow citizens.

The Future of Liberty

The future of liberty in America rests with the Declaration and Constitution designed to limit the power of government and protect fundamental rights to life, liberty, and property. The words of James Madison in his 1792 essay on “Property”—influenced, no doubt, by reading Blackstone—still ring true:

• “Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.”
• “That is not a just government, nor is property secure under it, where the property which a man has in his personal safety and personal liberty, is violated by arbitrary seizures of one class of citizens for the service of the rest.”
• “That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called.”
• “A just security to property is not afforded by that government, under which unequal taxes oppress one species of property and reward another species: where arbitrary taxes invade the domestic sanctuaries of the rich, and excessive taxes grind the faces of the poor; where the keenness and competitions of want are deemed an insufficient spur to labor, and taxes are again applied, by an unfeeling policy, as another spur; in violation of that sacred property, which Heaven, in decreeing man to earn his bread by the sweat of his brow, kindly reserved to him, in the small repose that could be spared from the supply of his necessities.”
• “If there be a government then which prides itself in maintaining the inviolability of property; which provides that none shall be taken directly even for public use without indemnification to the owner, and yet directly violates the property which individuals have in their opinions, their religion, their persons, and their faculties; nay more, which indirectly violates their property, in their actual possessions, in the labor that acquires their daily subsistence, and in the hallowed remnant of time which ought to relieve their fatigues and soothe their cares, … such a government is not a pattern for the United States.”

The Declaration of Independence reaffirmed what Blackstone called the “natural liberty of mankind.” The rights and liberties inherent in mankind are self-evident; the role of government in a free society is to safeguard those natural rights, including what Jefferson, in his Summary View of the Rights of British America (1774), called the “natural right” to free trade.

Today, the federal government has moved far from the spirit of liberty and limited government the Founding Fathers envisioned. To restore our birthright means less government and more freedom under a just rule of law safeguarding persons and property. As Madison, the chief architect of the Constitution, warned in 1792:

If the United States mean to obtain or deserve the full praise due to wise and just governments, they will equally respect the rights of property, and the property in rights: they will rival the government that most sacredly guards the former; and by repelling its example in violating the latter, will make themselves a pattern to that and all other governments.

That message is one that should not be forgotten as we celebrate the 250th anniversary of the Declaration.

Source: https://www.cato.org/blog/reflections-blackstones-commentaries-natural-liberty-mankind