Sparks Commentary: The primary function of government is to protect our most basic rights

“And these [rights] may be reduced to three principal or primary articles ; the right of personal security, the right of personal liberty ; and the right of private property : because as there is no other known method of compulsion, or of abridging man's natural free will, but by an infringement or diminution of one or other of these important rights, the preservation of these, inviolate, may justly be said to include the preservation of our civil immunities in their largest and most extensive sense.”

– Sir William Blackstone's “Commentaries on the Laws of England” (1765), Book 1, Chapter 1

Sir William Blackstone believed that the most important function of government was to protect our basic rights, especially our three most basic rights. “The rights themselves thus defined by these several statutes ,” he said, “consist in a number of private immunities.” (Source: Book 1, Chapter 1) These immunities, he said, were formerly, “either by inheritance or purchase, the rights of all mankind ; but, in most other countries of the world being now more or less debased and destroyed, they at present may be said to remain, in a peculiar and emphatical manner, the rights of the people of England.” (Source: Book 1, Chapter 1)

Sir William Blackstone

Our most important rights are personal security, personal liberty, and private property

Blackstone added that these rights “may be reduced to three principal or primary articles ; the right of personal security, the right of personal liberty ; and the right of private property” (Source: Book 1, Chapter 1). Furthermore, “the preservation of these, inviolate, may justly be said to include the preservation of our civil immunities in their largest and most extensive sense.” (Source: Book 1, Chapter 1) Thus, an examination of these most basic rights would seem to be in order here. The very first chapter of the very first book of the “Commentaries” is called “Of the Absolute Rights of Individuals.” In it, he sets forth his theory of human rights. All quotations from the “Commentaries” in this particular blog post are from this first chapter of the first book. This volume was first published in 1765. This first chapter gives great insight into how he viewed human rights.

Coat of arms of Great Britain, 1714-1800

“Personal security” includes rights to life and limbs …

First, Blackstone talked about the “right of personal security” (Source: Blackstone’s “Commentaries”). He wrote that it consists in “a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.” (Source: Blackstone’s “Commentaries”) Commenting on the “life” and “limbs” part, he added that “Both the life and limbs of a man are of such high value, in the estimation of the law of England, that it pardons even homicide if committed … defendendo, or in order to preserve them. For whatever is done by a man, to save either life or member, is looked upon as done upon the highest necessity and compulsion. Therefore if a man through fear of death or mayhem is prevailed upon to execute a deed, or do any other legal act ; these, though accompanied with all other the requisite solemnities, are totally void in law, if forced upon him by a well-grounded apprehension of losing his life, or even his limbs, in case of his non-compliance [footnote].” (Source: Blackstone’s “Commentaries”) This is known as law in “duress,” and has a similar meaning in the American legal system.

Sir William Blackstone

… body and health …

“Besides those limbs and members that may be necessary to man,” Blackstone continued, “in order to defend himself or annoy his enemy, the rest of his person or body is also entitled by the same natural right to security from the corporal insults of menaces, assaults, beating, and wounding ; though such insults amount not to destruction of life or member.” (Source: Blackstone’s “Commentaries”) Blackstone also added that the right to personal security includes “The preservation of a man's health from such practices as may prejudice or annoy it” (Source: Blackstone’s “Commentaries”). Thus, practices like air pollution and secondhand smoke may violate the rights of others whose health is threatened by them, to use two modern examples.

Statue of Sir William Blackstone

… and reputation (meaning there cannot be libel or slander)

Finally, Blackstone commented on the right of reputation. “The security of his reputation or good name from the arts of detraction and slander,” he said, “are rights to which every man is entitled, by reason and natural justice ; since without these it is impossible to have the perfect enjoyment of any other advantage or right.” (Source: Blackstone’s “Commentaries”) Blackstone deferred the development of this point to a later book of the “Commentaries” – namely, Book III: “Of Private Wrongs.” Suffice it to say here that this is why slander and libel are considered crimes even in this country, where the Constitution otherwise protects “freedom of speech, or of the press” as a general rule. In short, these are recognized by the Supreme Court case law as exceptions to the First Amendment that are consistent with its original intent, which are thus permissible as grounds for a lawsuit – at least, when the attacks upon the other person’s reputation can be shown to be false.

United States Bill of Rights

“Unjust attacks” upon liberty are often more dangerous than attacks upon security itself

Blackstone also had much to say about the preservation of personal liberty. He said that “if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper, there would soon be an end of all other rights and immunities. Some have thought, that unjust attacks, even upon life, or property, at the arbitrary will of the magistrate, are less dangerous to the commonwealth, than such as are made upon the personal liberty of the subject.” (Source: Blackstone’s “Commentaries”)

United States Penitentiary, Alcatraz Island

Alexander Hamilton actually quoted Blackstone on this subject in the Federalist Papers

The next passage in this chapter is one of the most famous in the “Commentaries.” It said that “To bereave a man of life, 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 secretly hurrying him to gaol [jail], where his sufferings are unknown or forgotten ; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.” (Source: Blackstone’s “Commentaries”) Alexander Hamilton quoted this passage of the “Commentaries” in the Federalist Papers (Source: Federalist No. 84). This may be part of the reason that it is so famous.

Alexander Hamilton

Habeas corpus should only be suspended in cases of “extreme emergency”

But the next part of this passage is not as often quoted, because Blackstone then said that “when the state is in real danger, even this may be a necessary measure.” (Source: Blackstone’s “Commentaries”) There were times when the government could throw people in prison without trial, and thus suspend the “privilege of habeas corpus” that would otherwise be honored in this circumstance. But Blackstone added that “this experiment ought only to be tried in case of extreme emergency ; and in these the nation parts with it's liberty for a while, in order to preserve it for ever.” (Source: Blackstone’s “Commentaries”) This is why the Habeas Corpus Clause of our Constitution says that “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” (Source: Article 1, Section 9, Paragraph 2). In my book, cases of “rebellion” and “invasion” are textbook cases of “extreme emergency,” and are thus adequate grounds for the exceptions to habeas corpus discussed here. Those who criticize Abraham Lincoln for suspending “habeas corpus” during certain parts of the Civil War might do well to remember this explicit exception for “cases of rebellion,” like the kind found during our Civil War.

Abraham Lincoln

Private property is the subject of a later post in this series

In this post, I have developed Blackstone's theories regarding personal security and personal liberty in some detail. I have thus saved my discussion of Blackstone's theory of private property for a separate blog post, which is available here.

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