The Rights of Persons (The Laws of England)

At the recommendation of Anna Von Reitz, I have explored the writings of Robb Ryder, at whose recommendation, I have decided to read the books “Sir William Blackstone, Commentaries on the Laws of England in Four Books”. They seem to be fantastic foundational books for learning about law as it exists today. In this post, I will cover the first book, which is about the rights of persons.

This was a university course that was first taught in England at the University of Oxford in the year 1753.

Here is a TOC for the book (and my blog post):

Section 1: Introduction (Pg 26)

I skipped this section. Seems to be the syllabus and meta-intro for the course. Also just a fun comment - English people of old structured ideas in written prose so differently than people do in written English today. Really tickles to read it.

Section 2: On the nature of laws in general (Pg 45)

This is a beautiful 15 pages. Simply beautiful.

This book defines two fundamental types of law:

All human laws are based upon these two laws, and should not contradict them.

If man lived alone, in nature, then only these two types of laws would apply to him. However, man lives not alone, but in society. This gives rise to the following two additional types of law:

This book defines municipal law as a “rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong”. Here are some very basic but profound qualities of municipal law:

Fundamentally, municipal law is something a man gives up, or a duty that he takes up, by subjecting himself to the will of the sovereign, for the benefit of civil society and his fellow man.

Government should be entrusted to one with the same qualities as the Supreme Being, which are wisdom, goodness, and power, as these are the natural foundations of sovereignty.

All forms of government can be distilled to three forms:

Every law consists of several parts:

Concerning the declaratory aspect of municipal law, municipal law does not strengthen or contradict natural law, which defines one’s rights, duties, and wrongs. However, where municipal law has an effect is in places of indifference. In such places, it defines what is right and wrong for the benefit of society and civil life. Additionally, it can define the particular circumstances and mode of natural law. For example, obedience to superiors is a natural law, but in areas of civil society, who one’s superiors are, and when and to what extent they should be obeyed can be defined by municipal law.

Concerning the vindicatory aspect of municipal law, municipal law can only compel or oblige certain behaviors, through incentives which can be reduced to punishments or rewards. Municipal law typically uses punishments instead of rewards, as they have a much lower cost. While wrongs governed both by natural law and municipal law have dual costs in the areas of conscience and punishment, wrongs governed only by municipal law solely have a cost of punishment.

Section 3: Of the laws of England (Pg 60)

Municipal laws can be defined by two categories:

Common law includes, in order of importance:

Blackstone takes much effort to make a specific distinction of categorizing as particular laws, civil or canon laws. Importantly, although these laws are nominally written, and declared by some authority in a specific jurisdiction, they are categorized as common (unwritten) law because they derive their power not from a sovereign, but by custom, by the consent of the governed.

Here are specific definitions for civil and canon law in this context:

In explaining why civil and canon laws are considered the third and most inferior category of common law, Blackstone talks about in which courts these laws can be applied, and how.

Civil and canon laws can be used in the following courts:

Now, Blackstone takes note of the following qualities of these courts:

And from those observations, Blackstone concludes that civil and common laws are subordinate and inferior to unwritten law and custom.

The second category of municipal law is the written laws, also known as statute law. These laws originate from the sovereign, whether that be a monarch, lords, parliament, etc. Statutes are either declaratory of the common law, or remedial of some defects therein. Here are when these two types of statute law may be applied:

Section 4: Of the countries subject to the laws of England (Pg 78)

I skimmed over this section. I’m sure there are valuable tidbits of information in here, but I’d rather cover the actual meat of the book. If I can, I will return to this section to read it.

Chapter 1: Of the absolute rights of individuals (Pg 93)

Another fantastic couple of pages.

Firstly, we need to define some things:

Rights of persons can further be divided into absolute rights, and relative rights. Absolute rights (and duties) are those that would belong to them in nature, and which every man is entitled to enjoy, whether in or out of society. Similarly, absolute duties are those which man is bound to adhere to as an individual, and it is not expected that any municipal law should explain or enforce such rights.

In principle, the scope of human (municipal) law when it comes to duties should only concern men so far as they are members of society, and the resulting social relationships, and thus municipal law should only govern relative and not absolute duties. For example, public sobriety is a relative duty, and thus enjoined by human law, but private sobriety may or may not be an absolute duty. However, when it comes to rights, human law should define and protect absolute rights as well as relative rights.

The first and primary use of human laws should be to protect the absolute rights of individuals. Relative rights are secondary as these only become relevant once man enters into society. Relative rights will be more complicated and take up more space in the law, as there is a great deal of complexity in society, but this does not mean that relative rights are more important than absolute rights, and they are not.

Man is born with natural liberty - the right to act as he sees fit. However, when man enters society, he naturally gives up some of his natural liberty, so that he may have security, and greater political, or civil, liberty. However, any wanton or causeless restriction of natural liberty of man is tyranny.

Now, there are some rights that are residual of natural liberty, that need not be sacrificed by the laws of society in exchange for civil liberty. These rights may be reduced to three primary rights, which are:

Concerning the right to life and security:

Concerning the right to personal liberty:

Concerning the right to private property:

Man has the following methods to secure the actual enjoyment of the previous rights:

Chapter 2: Of the parliament (Pg 107)

This seems to get into the weeds of England a bit. It may provide valuable historical context and useful information, but I would prefer to consume the most widely applicable information. So I will focus on the important parts.

The first topic Blackstone covers is separation of powers - in all tyrannical governments, the right to both make and enforce laws are vested in the same man. But in England, these powers are separated into the parliament and King respectively.

In this chapter, Blackstone covers the following aspects of parliament:

The parts of parliament

The parts of the parliament are as follows:

It is key that the executive power (the king) is a branch of the legislative. Obviously the executive power cannot be the whole legislative because there would be no separation of powers and this would lead to a tyranny. However, if the executive power were to be completely disjoint from the legislative, the legislative would also become tyrannical, by gradually encroaching its boundaries and gaining executive powers.

The extent of the king’s power in the legislative is to reject rather than create. This is the minimum sufficient power to create a separation of powers. The king has no power to do wrong in the legislative, only to prevent wrong. But even with this minimum power, the legislative cannot abridge the executive power of any of its current rights without the executive power’s own consent.

So the checks and balances are as follows:

The spiritual lords consist of archbishops and bishops, who are high-ranking members of the church.

The temporal lords are nobility - dukes, marquisses, earls, vicounts, or barons. These temporal lords are considered sovereign to commons, and there is a wonderful quote from the book which justifies this: “The distinction of rank and honours is necessary in every well-governed state, in order to reward such as are eminent for their services to the public in a manner the most desirable to individuals, and yet without burden to the community; exciting thereby an ambitious yet laudable ardour, and generous emulation, in others: and emulation, or virtuous ambition, is a spring of action, which, however dangerous or invidious in a mere republic, or under a despotic sway, will certainly be attended with good effects under a free monarchy, where, without destroying its existence, its excesses may be continually restrained by that superior power, from which all honour is derived. Such a spirit, when nationally diffused, gives life and vigour to the community; it sets all the wheels of government in motion, * which, under a wise regulator, may be directed to any beneficial purpose; and thereby every individual may be made subservient to the public good, while he principally means to promote his own particular views”.

The commons consist of all men of property in the kingdom who do not have a voice in the lords. Each of these men have a voice in parliament, either through their own voice, or through the representatives they have elected (this is where the House of Representatives originates from!). Blackstone justifies the representative system by saying that a proper democracy in a large nation is extremely hard to implement. Additionally, it can lead to voter fraud.

Counties are represented by knights, and citizens and boroughs are represented by citizens and burgesses.

The laws and customs of parliament

The power and jurisdiction of parliament is sovereign - it “is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds”.

However, there still remains inherent in the people a supreme power to remove the legislative, since the people gave the legislative this power in the first place. However, there can be no legal steps for such a process, for if people remove the legislative, how can they follow a law created by the same legislative to do such a thing? There is a chicken and egg problem. So, as long as the parliament exists, it has absolute power.

There are the following restrictions on sitting in parliament:

Members of parliament have the following privileges:

The customs of the house of commons

The house of commons has the sole power to create tax laws, although these still have to be approved by the other house. The reason is that theoretically, taxes are paid by the commons, and thus the commons should decide how to use them. There is one caveat that lords with tons of property are also taxed. However, since they are closer to the king, they are more susceptible to being influenced by the king, and so should not have power here. Lords still have the power to reject but not to resolve.

The members of the house of commons are elected by democracy. And it’s very important to regulate who is allowed to vote.

Concerning the qualifications of the electors:

Concerning the qualifications of the electors for the knights of the shire, which are supposed to represent the landholders of the country:

Concerning the qualifications of the electors of citizens and burgesses, who are supposed to be the mercantile or trading interest of the country:

Knights and citizens/burgesses get paid a salary.

Concerning the qualifications of those who are elected to sit in the house of commons:

Elections

Any undue influences upon the electors is illegal and prohibited. Obviously this includes corruption - electees cannot give any money to their electors.

Concerning the making of laws

Bills originate in one of the houses. They must be signed by both of the houses before they are presented to the king, who must sign off on them. For either house, the decision of the majority binds the whole. Amendments to bills are often made. Either house, or the king, can reject the bill.

Once a statute is placed into the records of the kingdom, it then has the force of law. At that point, every man in England has participated in the making of that law, by being present at parliament or by having one of their representatives present.

Such a statute is the exercise of the highest authority acknowledged by the kingdom of England on Earth. It has power to bind every subject on the land. And it cannot be altered or removed without going through the same process, requiring the same strength to destroy as was required to create it.

Chapter 3: Of the King, and his title (Pg 132)

This chapter talks about the logistics of who gets the crown. The interesting parts were that the crown is hereditary rather than elective because elections lead to infighting (many examples in history) through corruption or the suspicion of it. Also, the crown being hereditary can be compared to land being hereditary (gets passed on to kids when someone dies). And, the two houses of parliament have the power to change the successor.

The rest of the chapter is a bunch of history which I decided to skip. The chapter ends with a message about balance - elective succession will create infighting, while absolute hereditary succession will be “dreadful”. But the England government has checks and balances - a hereditary lineage with checks in the two houses.

Chapter 4: Of the King’s royal family (Pg 149)

The most important member of the King’s royal family is the queen.

The queen has powers to do things as an unmarried woman, which other married women cannot do, such as:

As usual, there is a very good justification for this, which is that the king should not have to spend cycles on his wife’s affairs.

The queen also some marginal exemptions and privileges such as not having to pay tolls.

However fundamentally, like any other subject, she is considered a subject of the king and not his equal.

The queen also gets a cut of any money that goes toward the king! A minimum of 10%.

Amusingly, although the queen is fundamentally a subject of the king, when it comes to the security of her life and person, she is put on the same footing as the king. So the woman benefits fully from the power of the king.

Another really interesting tidbit - a husband of a reigning queen does not face the same degree of crime if he commits adultery compared to when the wife of a reigning king commits adultery. This is because if a wife commits adultery, it can potentially tarnish the hereditary bloodline, but if a man commits adultery, that doesn’t affect the bloodline. Again, a very good reason.

Other than the queen, the most important members of the royal family are those in immediate succession. Other than such person, there are not necessarily significant privileges.

Chapter 5: Of the councils belonging to the King (Pg 155)

Chapter 6: Of the King’s duties (Pg 159)

The King is subordinate to God and the law.

Chapter 7: Of the King’s prerogative (Pg 161)

The whole idea is that the King has prerogatives such that he can do his job properly, and do not entrench any further on natural liberties, as is necessary to secure everyone’s civil liberties.

The King has direct and incidental prerogatives.

Direct prerogatives can be divided into those concerning his character, those concerning his authority, and those considering his income. His income is considered in the next chapter.

Concerning the King’s character

It’s clear to any rational person that the King is simply a person no different than you and I, who is serving in the position of King. But Blackstone talks about how it’s important to basically create propaganda selling the King’s character as superior in order for the people to revere him so he can more easily do his job.

Firstly, the King is sovereign. This part of the chapter is fascinating:

There are the following remedies against private injuries and public oppressions done “by the King”:

Secondly, the King is absolutely perfect. The King can do no wrong:

The two houses are still allowed to provide criticism, although they usually direct this criticism toward the King’s advisors. In the august assemblies, they tend to directly criticize the King, but only in the most deferential and respectful way possible.

Thirdly, the King is perpetual. The King never dies, although the people who are King may die.

Concerning the King’s authority

“He may reject what bills, may make what treaties, may coin what money, may create what peers, may pardon what offences, he pleases; unless where the constitution hath expressly, or by evident consequence, laid down some exception or boundary; declaring that thus far the prerogative shall go, and no further”.

There is a great many prerogatives in this chapter. I read through them but won’t bother writing all of them down.

The King has full power concerning military/war.

One interesting part was that the King is considered the greatest distributor (as opposed to creator) of justice. The King alone has the power to create courts, which aid him in the distributing of justice. And it is this relationship which explains that all courts get their power from the crown.

The King is considered the prosecutor (the person who was injured) in any court case. This is because “all offences are either against the king’s peace, or his crown and dignity”. By the same token, the King has the prerogative of pardoning offences, because only he who was injured can pardon.

An important point that Blackstone brings up here is that there is a separation of powers from the judicial with both the executive and legislative. This is because if the judicial is combined with the legislative, then the rights of subjects will be at the complete whims of whoever has both powers. And if the judicial is combined with the executive, then the legislative’s power is diminished (executive can interpret the law any which way). This is the reasoning for the three separation of powers in America!

The King also has dominion over commerce and church.

Chapter 8: Of the King’s revenue (Pg 186)

The King gets revenue from a ton of places. I don’t remember all off the top of my head, but various taxes, from the church, forfeited goods and lands, mines, shipwrecks, rents, etc.

Now, these are all the ordinary sources of revenue, but then Blackstone goes on to talk about extraordinary revenue, which is simply taxes. Blackstone argues that taxes are a preferable alternative to having the King have all his former lands, and take all the waifs, wrecks, estrays, deodands, etc. The idea is that subjects sacrifice some of their property to be able to enjoy the rest.

Grants, aids, subsidies, supplies; all synonymous with taxes.

There is a fascinating piece in here which talks about the origin of land-tax. Specifically, knights had to serve in the King’s army for 40 days per year. However, they first started sending people in place of them, but later, they chose to send money instead, which becomes a tax (And eventually the government extended this to landholders). So money in this example becomes a substitute for a service done. So in many ways, everyone who pays tax is actually working directly for the government. A 40% income tax rate is akin to having to work for the government, for free, for 40% of the working year. Incredible!

Perpetual taxes:

There is some amusing talk by Blackstone in this chapter about public debt and excessive taxation.

Chapter 9: Of subordinate magistrates (Pg 219)

There’s not that much transferable info from this chapter. It’s interesting to see that gradual progression by which new government positions are created (and never destroyed), gradually increasing the reach and scope of the government into all aspects of life, which also gradually creates a cost on the government which must be supported by the people. It is very parasitic.

The subordinate magistrates (ie government officials) covered in this chapter consist of sheriffs, coroners, justices of the peace, constables, surveyors of highways, and overseers of the poor. They of course can elect their own subordinates and increase costs for the government. Principal-agent problem! Agents can hack the system.

Chapter 10: Of the people, whether aliens, denizens, or natives (Pg 235)

So this chapter says that those born into the dominion of the King, are born into allegiance of the King also. Allegiance being that contract of binding the subject to the King, in return for the protection given by the King. This allegiance is implied by law and doesn’t need any oath to go into effect. Allegiance can be considered as a metaphorical debt because the King protected the subject when the subject was an infant and unable to protect themselves.

There is natural allegiance (upon birth) vs local allegiance (aliens traveling in the King’s lands).

Chapter 11: Of the clergy (Pg 241)

People are divisible into two kinds - the clergy (church-people) and laity (everyone else).

Mostly skimmed over this chapter, just talks about the different positions in church.

Chapter 12: Of the civil state (Pg 253)

The laity may be divided into three parts:

The civil state can be divided into two parts:

The nobility consists of dukes, marquesses, earls, viscounts, and barons. These titles originate from the King, who can create new titles. There isn’t much interesting here, except Blackstone makes a wise comment that dignity and duty should never be separated.

Peers have some privileges:

Commonalty also have names of dignity:

Commonalty also have names of worship:

The rest of the commonalty are tradesmen, artificers, and labourers.

Chapter 13: Of the military and maritime states (Pg 259)

The military state is the army.

Blackstone notes that it is dangerous, in a land of liberty, to make a distinct profession of being a soldier. This is because theoretically soldiers should be citizens first, and soldiers second, only when needed, to protect the country. And if instead, being a soldier were to be made a profession, then it would be looked upon with jealousy. And this is how it worked in England in the past (no perpetual standing soldier) but not at the time the book was written.

In the past, England was divided into “knight’s fees”, which were basically certain areas of land. And from each fee, a knight was supposed to serve the King for 40 days an year, ensuring that the King always had soldiers to go to war or defend the country with. As this eventually devolved into sending a double and eventually just money, this practice was eventually abolished.

Martial law is completely arbitrary and based on the sovereign. Martial law should only be allowed during times of war, and not during times of peace. Because in times of peace, the King’s courts are open for justice. So if any officer in the military, in time of peace, kills any man under martial law, this is murder. And in the past, it was against the law for a King to keep a standing army in times of peace. But as of the book, England had a standing army, justified by saying that it was necessary for the protection of England.

Here’s an interesting point - Blackstone notes that in order to prevent the executive power from being able to oppress the people, the armies should consist of the people, and have the same spirit with the people. So in a free state, it is key that the military power should not be too distinct from the people. It should be composed of natural subjects, be enlisted for a short period of time, and the soldiers should also live intermixed with the people rather than separately.

The maritime state is the navy.

Chapter 14: Of master and servant (Pg 268)

All the rights and duties of persons discussed thus far concern the public relations of magistrates and people, namely, the government. From this point forward, Blackstone discuss private relations, the three greatest of which are master and servant, husband and wife, and parent and child. Additionally, there is one more, which is guardian and ward.

There are some interesting tidbits in here for sure:

Chapter 15: Of husband and wife (Pg 274)

The law considers marriage no more than a civil contract.

By marriage, husband and wife are one person in law. And so the entire legal existence of the woman is suspended during the marriage, or rather, is consolidated into that of the husband, under whose wing, protection, and power she does everything.

Interestingly, the law supposes that the wife may perhaps have no will of her own, and act by her husband’s compulsion.

Chapter 16: Of parent and child (Pg 281)

Children are divided into legitimate and bastards.

Parents’ duties towards children are:

This is a very interesting chapter. This book in general dives into the intricacies of all the areas of law, and while it may be dry to most, is fascinating to me because it shows the reasoning behind all the laws and these relationships. For example, they use the justification of “natural justice and retribution” to say that the parents who protected us during the weakness of our infancy are entitled to our protection in the infirmity of old age. Or, that the civil and canon laws do not allow a child to remain a bastard if the parents afterwards intermarry, but for English law, the child must be born after wedlock to be legitimate, for a several number of practical reasons.

Chapter 17: Of guardian and ward (Pg 289)

Nothing much new here. Very similar to previous chapter.

Chapter 18: Of corporations (Pg 293)

This is another beautiful chapter. A corporation is, figuratively speaking, an artificial body, whose parts may be replaced by living flesh and blood humans, but which lives on perpetually.

Corporations can be aggregate or sole. Aggregate are the typical kinds of corporations we think of. Sole corporations are perpetual positions in society that are held by different people, such as the crown, or the archbishop, or the sheriff, etc. So even though the flesh and blood person in a sole corporation may die, the corporation lives on.

Closing Thoughts

Overall I’m surprised by how rational it all is. I’ve also learned a lot about the system(s) in the States, as evidently the US Constitution and government is modeled after England’s legislature.

After reading thus far, I am left with some confusion regarding the meanings of municipal law, civil law, and the law of England. I assume the following definitions for them:

Anyways, regarding the book… it’s simply pure wisdom, as far as I am concerned. Nuff said.