Yes, Blackstone was a monarchist – but not an absolute monarchist

“All regal governments must be either hereditary or elective : and, as I believe there is no instance wherein the crown of England has ever been asserted to be elective, except by the regicides [or “king-killers”] at the infamous and unparalleled trial of king Charles I, it must of consequence be hereditary.”

– William Blackstone’s “Commentaries on the Laws of England” (1760’s), Book 1, Chapter 3

Blackstone’s hero was Sir Edward Coke, a nemesis of King Charles the First

Sir William Blackstone was a great fan of Sir Edward Coke (whose last name is pronounced “Cook”). But Sir Edward Coke was one of the enemies of King Charles the First. Thus, it might seem strange that Blackstone condemned those who executed his hero’s nemesis (as shown above). But it’s not as strange as you might think, if you consider some of the context. This post will show some of this sometimes-missing context. Thus, it will help to explain some parts of Blackstone’s “Commentaries” that have not aged well today. For example, it will help to explain why Blackstone was a monarchist – albeit a constitutional monarchist.

Sir William Blackstone

How did Sir Edward Coke influence Sir William Blackstone?

In 1481 or 1482, Sir Thomas de Littleton wrote a then-famous work called “A Treatise on Tenures.” More than a century later, Sir Edward Coke commented on this work, by writing “The First Part of the Institutes of the Lawes of England, or a Commentary on Littleton” in 1628. More than a century after that, Sir William Blackstone discussed Coke’s work in the first volume of his “Commentaries on the Laws of England” in 1765. Coke is the person that Blackstone cited the most in the “Commentaries.” In this great work, Blackstone thus wrote a brief summary of Sir Edward Coke’s writings, to set up his esteemed source (whom he would use often throughout his work). He prefaced this summary with the following praise:

Sir Edward Coke

Lord Chief Justice Coke was “a man of infinite learning in his profession”

“Some of the most valuable of the ancient reports are those published by lord chief justice Coke; a man of infinite learning in his profession, though not a little infected with the pedantry and quaintness of the times he lived in, which appear strongly in all his works. However his writings are so highly esteemed, that they are generally cited without the author's name [footnote].” (Source: Blackstone’s “Commentaries,” Introduction, Section 3)

Sir Thomas de Littleton

Blackstone's summary of Sir Edward Coke ...

Blackstone then gave his brief summary of Sir Edward Coke's writings:

“ … the same learned judge we have just mentioned, Sir Edward Coke; who hath written four volumes of institutes, as he is pleased to call them, though they have little of the institutional method to warrant such a title. The first volume is a very extensive comment upon a little excellent treatise of tenures, compiled by judge Littleton in the reign of Edward the fourth. This comment is a rich mine of valuable common law learning, collected and heaped together from the ancient reports and year books, but greatly defective in method.” (Source: Blackstone’s “Commentaries,” Introduction, Section 3)

Sir Edward Coke

The Petition of Right influenced the United States Bill of Rights

“The history of Great Britain is the one with which we are in general the best acquainted, and it gives us many useful lessons. We may profit by their experience without paying the price which it cost them.”

– John Jay, in the Federalist Papers (Federalist No. 5)

It sounds ironic to say it now, but a number of the Founding Fathers of the United States were actually against including a “Bill of Rights” within our Constitution. Some of them thought that it would be dangerous to do so, because they argued that any right not listed there would be construed “not to be protected” by the Constitution. They were partially wrong on this score, of course, and it would fall to other Founding Fathers to make sure that a “Bill of Rights” was later passed. But this early objection to the “Bill of Rights” may have been the reason that it eventually included a Ninth Amendment when it was passed, which said that “The enumeration [or “listing”] in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” (In other words, rights may not be withheld merely because they aren't listed in the Constitution.) This addressed the concern of those Founding Fathers who had objected to a bill of rights because of this.

Parliament of England

Some Founding Fathers were against having a “bill of rights” in the Constitution …

Nonetheless, when Alexander Hamilton listed examples of a “bill of rights” in one of the Federalist Papers, he was not endorsing them, but slamming them. He was holding them up as bad examples which should be avoided to avert danger from having a “comprehensive” list. Specifically, Hamilton said that “It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the PETITION OF RIGHT assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants.” (Source: Federalist No. 84)

Alexander Hamilton

… while others were for it

Other Founding Fathers disagreed, and held them up as models of good laws that should be emulated to protect rights. Because of their well-deserved popularity, these laws had a great influence on the first ten amendments to the Constitution (the amendments that later became known as our “Bill of Rights”). They are thus deserving of our attention despite Hamilton's objections to them, and were positive influences on our Constitution once the “Bill of Rights” was passed. I plan to cover all of these documents in this series (plus a few others); but in this post, I shall focus exclusively on the “Petition of Right,” written by Sir Edward Coke. Two decades before King Charles the First was beheaded in the English Civil War, he was forced to sign this document. (And he wasn't too happy about signing it … )

Petition of Right, 1628