"The observations of the judicious Blackstone,1 in reference to the latter; are well worthy of recital: 'To bereave a man of life,' says he, 'or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore A MORE DANGEROUS ENGINE of arbitrary government.' And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas-corpus act, which in one place he calls 'the BULWARK of the British Constitution.'2"
- Alexander Hamilton, in the Federalist Papers (Federalist No. 84)
Blackstone was on the other side of the Revolutionary War from our Founding Fathers ...
When the United States declared independence from Britain, it was not breaking with its British heritage to the degree that you might have expected then. The Magna Carta, the Petition of Right, and the English Bill of Rights remained influential in the thirteen states, you see. Ironically, one of the prior philosophers that most influenced our Founding Fathers was on the other side of the Revolutionary War from them, and he remained loyal to the British side even until his death in 1780 (five years into the War of Independence which had not yet ended). He had once received the patronage of Prince George, who later became "King George III" - the nemesis of the Revolution.
William Blackstone
... but his name still appears in the Federalist Papers no less than five times
This great philosopher was William Blackstone (of Blackstone's "Commentaries"), and he wrote his "Commentaries on the Laws of England" in 1765 - ten years before the first shots of the Revolution were fired at Lexington and Concord. The four volumes of Blackstone's "Commentaries" were virtually required reading for students of the law in English-speaking countries. They thus had a powerful influence on these countries' legal traditions, and they were sometimes the only law books that lawyers on the frontier could read. In a young republic without a long-standing legal tradition of its own, they were the most influential description of these laws of the mother country. Mr. Blackstone was a powerful influence on the Founding Fathers even despite his being on the other side of the war from them, and his name actually appears in the Federalist Papers no less than five times. He continues to be quoted in Supreme Court decisions in America, and he influenced several generations on the American frontier (including a country lawyer named Abraham Lincoln). But it is his influence on the founding of our country - and specifically, on the writers of the Federalist Papers - that I will be discussing here.
The British monarchy could then declare war, which the proposed presidency could not do
At the time that the Federalist Papers were written, the ratification debates were still going on; and the Constitution's opponents charged that the president would be more powerful than a king. Alexander Hamilton gave a number of responses to this claim, when he proceeded to debunk it. Among other responses, he noted that "The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.1" (Source: Federalist No. 69) The number "1" in this quote - which I have transcribed here in a smaller font - is a reference to Hamilton's source in the footnote. This "Footnote 1" said that "A writer in a Pennsylvania paper, under the signature of TAMONY, has asserted that the king of Great Britain owes his prerogative as commander-in-chief to an annual mutiny bill. The truth is, on the contrary, that his prerogative, in this respect, is immemorial, and was only disputed, 'contrary to all reason and precedent,' as Blackstone vol. i., page 262, expresses it, by the Long Parliament of Charles I. but by the statute the 13th of Charles II., chap. 6, it was declared to be in the king alone, for that the sole supreme government and command of the militia within his Majesty's realms and dominions, and of all forces by sea and land, and of all forts and places of strength, EVER WAS AND IS the undoubted right of his Majesty and his royal predecessors, kings and queens of England, and that both or either house of Parliament cannot nor ought to pretend to the same." (Source: Federalist No. 69) Thus Hamilton cited Blackstone in the footnote to bolster his case that the king was more powerful than any president would be.
King Charles I of England (who is mentioned in the quote above)
King Charles II of England (likewise mentioned in the quote above)
The king could make treaties alone, while the president would require the Senate's consent
Hamilton offered another response to the charge that the president would be more powerful than a king. In the Federalist Papers, he noted that "The President is to have power, with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur. The king of Great Britain is the sole and absolute representative of the nation in all foreign transactions. He can of his own accord make treaties of peace, commerce, alliance, and of every other description. It has been insinuated, that his authority in this respect is not conclusive, and that his conventions with foreign powers are subject to the revision, and stand in need of the ratification of Parliament. But I believe this doctrine was never heard of, until it was broached upon the present occasion." (Source: Federalist No. 69) Hamilton used Blackstone as a source in the next sentence, by saying that "Every jurist2 of that kingdom, and every other man acquainted with its Constitution, knows, as an established fact, that the prerogative of making treaties exists in the crown in its utmost plenitude; and that the compacts entered into by the royal authority have the most complete legal validity and perfection, independent of any other sanction." (Source: Federalist No. 69) The number "2" in this quote - which I have transcribed here in a smaller font - is a reference to Hamilton's source in the footnote again. This "Footnote 2" says "Vide Blackstone's 'Commentaries,' vol. i., p. 257" (Source: Federalist No. 69). Thus Hamilton again cites Blackstone to bolster his case that the king was more powerful than the president would be.
King George III of the United Kingdom
The consent of Parliament was not necessary for treaties, as Hamilton's arguments can show
Expounding on this point, Hamilton noted that "The Parliament, it is true, is sometimes seen employing itself in altering the existing laws to conform them to the stipulations in a new treaty; and this may have possibly given birth to the imagination, that its co-operation was necessary to the obligatory efficacy of the treaty. But this parliamentary interposition proceeds from a different cause: from the necessity of adjusting a most artificial and intricate system of revenue and commercial laws, to the changes made in them by the operation of the treaty; and of adapting new provisions and precautions to the new state of things, to keep the machine from running into disorder. In this respect, therefore, there is no comparison between the intended power of the President and the actual power of the British sovereign. The one can perform alone what the other can do only with the concurrence of a branch of the legislature." (Source: Federalist No. 69) Thus Hamilton concluded his point that he had earlier cited Blackstone to support.
Parliament of Great Britain
Hamilton argued that the Constitution didn't need a bill of rights, because it already had one ...
During the ratification debates, one of the biggest charges against the Constitution was that it contained no Bill of Rights. Hamilton responded to this in the Federalist Papers by saying that "the Constitution proposed by the convention contains, as well as the constitution of this State, a number of such provisions" in favor of individual rights (Source: Federalist No. 84). He named a number of these provisions in a list that he offered, and then said that "It may well be a question, whether these are not, upon the whole, of equal importance with any which are to be found in the constitution of this State. The establishment of the writ of habeas corpus, the prohibition of ex-post-facto laws, and of TITLES OF NOBILITY, TO WHICH WE HAVE NO CORRESPONDING PROVISION IN OUR CONSTITUTION, are perhaps greater securities to liberty and republicanism than any it contains. The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny." (Source: Federalist No. 84) Thus, Hamilton argued, the Constitution didn't need a bill of rights; because these provisions already amounted to one in his view. There were a number of other Founding Fathers who disagreed with him on this issue; and so Hamilton's arguments on this subject were - and still are today - somewhat unpopular. Nonetheless, I might add, it is well that the public has forgiven Hamilton by now, since many of the other things that he said in the Federalist Papers are invaluable and still relevant. Even in this passage that I have quoted here, he was correct that the Constitution already protected some of the people's rights (which is the point that he had cited Blackstone to support); even if it did not yet protect enough of them.
Alexander Hamilton
Hamilton quoted "the judicious Blackstone" to show that some rights were already protected
In the next part of the paragraph, Hamilton continued by citing Blackstone's "Commentaries" and praising Blackstone himself. He said that "The observations of the judicious Blackstone,1 in reference to the latter, are well worthy of recital: 'To bereave a man of life,' says he, 'or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore A MORE DANGEROUS ENGINE of arbitrary government.' And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas-corpus act, which in one place he calls 'the BULWARK of the British Constitution.'2" (Source: Federalist No. 84) The numbers "1" and "2" in this quote - which I have transcribed here in a smaller font - are again references to Hamilton's sources in the footnotes. Footnote 1 is "Vide Blackstone's 'Commentaries,' vol. i., p. 136" (Source: Federalist No. 84), and Footnote 2 is "Vide Blackstone's 'Commentaries,' vol. iv., p. 438" (Source: Federalist No. 84). Thus Hamilton cited Blackstone's "Commentaries" twice in this paragraph, and referred to the author himself as "the judicious Blackstone" to boot - a high praise from a Founding Father. Hamilton also noted here that "Nothing need be said to illustrate the importance of the prohibition of titles of nobility. This may truly be denominated the corner-stone of republican government; for so long as they are excluded, there can never be serious danger that the government will be any other than that of the people." (Source: Federalist No. 84)
William Blackstone
Conclusion: Blackstone influenced the Founding Fathers more than most people realize
So the influence of William Blackstone can be seen quite clearly in the Federalist Papers, and even on the finished product of the United States Constitution. Along with Locke and Montesquieu, he was one of the major influences on the Philadelphia Convention, since the men present there were disproportionately lawyers that were well-versed in Blackstone's "Commentaries." As the modern political scientist Donald Lutz put it, "The prominence of Blackstone would come as a surprise to many, and he is the prime candidate for the writer most likely to be left out in any list of influential European thinkers. His work is not readily available in inexpensive form, but like Montesquieu he was cited frequently by all sides. A trenchant reference to Blackstone could quickly end an argument. Such a respected writer deserves a much closer look by those studying American political thought." (Source: The American Political Science Review, Vol. 78, No. 1, March 1984, p. 195-196) Perhaps because of his influence on the Founding Fathers, his "Commentaries" are still cited today as evidence of the Constitution's "original intent," and are thus still shedding light onto the various controversies about the meaning of the document. The fact that the Federalist Papers quoted from the "Commentaries" extensively would thus seem to be evidence that they are indeed deserving of this special status in our legal system, and the Supreme Court is likely to continue quoting them for many years into the future.
Statue of William Blackstone, in front of a federal court in Washington, D. C.
Additional thoughts on Hamilton's opinions about the Bill of Rights
Since Hamilton's opinions on a bill of rights have necessarily entered into this discussion here, I might also note one other point on this subject before closing this discussion. As the ratification debates dragged on for month after month, Hamilton realized that the Constitution could not be adopted unless more people were assured that their demands for a bill of rights would be satisfied. The movement for a bill of rights was so strong that Hamilton could not dismiss it, in short, and his collaborator on the Federalist Papers - James Madison - was among its ever-growing number of supporters. Elsewhere in the Federalist Papers, his co-author James Madison had expressed his support for a "bill of rights" by asking rhetorically if "a bill of rights [is] essential to liberty," and then noting that "The Confederation has no bill of rights" (Source: Federalist No. 38) - thus pointing out the irony of opposing the Constitution for having no "bill of rights," when its predecessor did not have one, either.
With his collaborator (and other Founding Fathers) among the supporters of this concept, Hamilton knew - and recognized - that he would be forced to compromise on this issue. Hamilton thus changed his tactics somewhat, and moved from arguing against a "bill of rights" to instead trying to reassure people that it would be easier to obtain a "bill of rights" by first ratifying the Constitution, and then amending it afterwards. This, as it turned out, is exactly what happened; and his famous collaborator on the Federalist Papers (James Madison) was the one who authored this new "Bill of Rights." (More on that subject here.)
If you liked this post, you might also like:
The influence of Thomas Hobbes and John Locke on the Constitution
The influence of the Declaration of Independence on the Constitution
The influence of Baron de Montesquieu on the Constitution
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