The Ideas That Formed the Constitution, Part 21: Coke, Blackstone, and English Law

Portrait of Sir William Blackstone (1723-1780), circa 1755. National Portrait Gallery

Commentary

British institutions were important (although not controlling) models for the American Constitution-makers.

For example, the Constitution’s bicameral federal Congress had some similarities to the British Parliament. The Constitution built on the British concept of individual rights. The new U.S. postal system was a continuation of its British predecessor, with the Constitution borrowing its “Post Office and Post Roads” language (Article I, Section 8, Clause 7) from a 1767 parliamentary statute.

Further, the Constitution struck a balance of power between the federal government and the states similar to the balance existing before 1764 between the imperial government in London and the American colonies. To be sure, the Constitution did grant taxing authority to the new federal Congress although Americans had refused to concede such authority to Parliament (because they were unrepresented).

Adopting English Law

By the time of the Declaration of Independence, the legal system prevailing in England (although not in Scotland) had taken root in almost all of Britain’s American colonies.

There were exceptions: One colony, Québec, applied French law. And other colonies rejected England’s rules of aristocratic privilege and much of its ecclesiastical and land law. Still, American judges usually imported and followed English case precedents, and their courts were patterned loosely on English institutions.

Thus, by 1776, the English legal system had become Anglo-American in scope.

Americans Continue to Apply Anglo-American Law

After Independence, some Americans proposed breaking with Anglo-American jurisprudence. In general, however, Americans continued to apply it. There were several reasons:

First, Americans were used to the existing system. Radically altering it would have been very disruptive.

Second, Anglo-American jurisprudence incorporated Magna Carta (first adopted in 1215; final version in 1225). Magna Carta was probably the most significant secular constitutional document in human history. It served as the cornerstone for many of the rights of Englishmen and Americans. Likewise, Anglo-American jurisprudence incorporated other great documents fortifying individual liberties: the Petition of Right (1628), the Habeas Corpus Act (1679), and the English Bill of Rights (1689).

Another attractive feature of Anglo-American jurisprudence is that it was based on standing precedent—freely available in published law books—and the slow evolution of that precedent. This usually made the “right answer” in disputes fairly predictable.

On the other hand, Anglo-American jurisprudence could be flexible. When an old set of rules wasn’t equal to a task, a new one was fashioned. By 1776, Anglo-American jurisprudence encompassed several discrete fields—most notably:

• ecclesiastical law (used in America only for certain kinds of cases, such as divorce);
• “equity” for cases involving fiduciaries and for specialized remedies;
• the “law merchant” for regulating cross-border trade;
• and, most notably, the “common law” for handling routine crimes, injuries, contracts, and property disputes. The principles of the common law were based largely on individual freedom and resistance to arbitrary power.

Anglo-American judges generally were of high quality. To an extraordinary degree, they decided cases independently of politics or personal interest. This had not always been true, but by 1776 it was predominantly true.

In most cases, Anglo-American jurisprudence granted at least one party a right to trial by jury. Juries introduced common sense into decision making. They also protected somewhat against abuse of power.

Still another reason for retaining Anglo-American legal practice is that it almost always gave unhappy parties a right to appeal.

The founding generation’s decision to retain Anglo-American jurisprudence was a lasting one. Even today, most states have reception rules. These rules direct judges, in the absence of other authority, to follow the common law of England.

Coke and Blackstone

In 1788, the London publisher John Worrell issued a bibliography listing then-published books of English law. I have placed it on the internet (pdf). It’s merely a list of books, yet it consumes nearly 300 pages.

Obviously, no lawyer could own all those books. But many were generally available, at least in the larger cities.

They included (pdf) collections of statutes, collections of cases, multi-volume “abridgments” summarizing decided cases, law dictionaries, collections of forms for writing legal documents, and legal treatises. Treatises either focused on particular areas, such as commercial law or crimes, or were more general—purporting to discuss the law covering all important areas.

In both England and America, two general works stood out among the rest. The earlier was the “Institutes of the Lawes [sic] of England,” written by the great 17th-century judge and parliamentarian Edward Coke (pronounced “cook”). This book was tough going but served as a primary teaching guide for law students. Senior members of the founding generation, such as Edmund Pendleton of Virginia and John Dickinson of Delaware and Pennsylvania, learned their law from Coke.

The other popular general treatise was William Blackstone’s “Commentaries on the Laws of England.” Blackstone was a judge who became the first professor to teach the common law at Oxford University. His “Commentaries” were based on his university lectures. Published over the years 1766 to 1769, Blackstone’s work was both more up-to-date than Coke’s and easier to understand. After 1772 and throughout much of the 19th century, Blackstone’s treatise was the backbone of legal education in America.

Anglo-American Law and the Constitution

The framers wrote the Constitution with Anglo-American jurisprudence in mind. In a 2016 article, I listed 68 words and phrases in the Constitution that derive directly or indirectly from 18th-century English law. (Most are explained in my book, “The Original Constitution.”)

Many of the framers probably wanted the Constitution to be understood by the average educated person. So why did they insert so many legal terms?

In part, it was unavoidable: The Constitution is a legal document, and if the framers had tried to explain everything in ordinary language, the Constitution would have stretched from here to Cincinnati. (If you live in Cincinnati, read “here to Denver”). It would have been immensely long.

But the other reason was that—as I noted in the previous essay in this series—Americans of the founding generation were more legally literate than most Americans today. In a March 22, 1775, speech, Edmund Burke, perhaps the greatest British parliamentarian of his time, said of the American colonies:

“In no country perhaps in the world is the law so general a study. The profession itself is numerous and powerful; and in most provinces it takes the lead. The greater number of the deputies sent to the [First Continental] Congress were lawyers. But all who read, and most do read, endeavor to obtain some smattering in that science. I have been told by an eminent bookseller, that in no branch of his business, after tracts of popular devotion [i.e., religion], were so many books as those on the law exported to the Plantations [i.e., colonies]. ... I hear that they have sold nearly as many of Blackstone’s Commentaries in America as in England. General Gage [the British commander in Boston] ... states that all the people in his government are lawyers, or smatterers in law ....”

A Problem With Modern ‘Constitutional Law’

Most lawyers and legal educators are unaware that so many of the Constitution’s words and phrases arose from English practice. Students rarely learn about them in law school—a neglect characteristic of what Alan Watson, the noted Scottish scholar, called “The Shame of American Legal Education.”

Talk to any third-year law student, and he or she will tell you a professor assigned opinions authored by the great Chief Justice John Marshall. But examine the assigned versions, and you'll find they omit Marshall’s references to prior English and American cases and legal sources.

One reason for these omissions is editorial ignorance. But another, I think, is that most law professors are fans of liberal judicial activism, and omitting Marshall’s sources fosters the illusion that Marshall himself was a liberal judicial activist. Whatever the reason, the result is ignorance among lawyers and judges of the background for much of the Constitution’s language.

The Constitution’s framers wrote the document to be construed by judges who understand the Anglo-American precedents and adhere to English-style judicial standards of independence and probity. When judges don’t live up to those standards, they effectively subvert our constitutional structure.

Read prior installments here: first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, and 20th.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.