Sparks Commentary: What is “Blackstonian property”?

“There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.”

– Sir William Blackstone's “Commentaries on the Laws of England” (1760's), Book 2, Chapter 1

When William Blackstone wrote his “Commentaries on the Laws of England,” he dedicated the entire second volume of this work to property law. He titled this volume “Of the Rights of Things” – that is, the right to own things as property. One of the very first things that he says in the opening chapter of that volume is that “There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” (Source: Book 2, Chapter 1) This is one of the most famous passages in the “Commentaries.” Today, this definition is sometimes referred to as “Blackstonian property.” But right after that, Blackstone said something else that some might take to contradict that. Does it really do so? I shall examine this question below.

Sir William Blackstone

Did Blackstone question the general right to private property?

In the next sentence, Blackstone says: “And yet there are very few, that will give themselves the trouble to consider the original and foundation of this right. Pleased as we are with the possession, we seem afraid to look back to the means by which it was acquired, as if fearful of some defect in our title; or at best we rest satisfied with the decision of the laws in our favour, without examining the reason or authority upon which those laws have been built.” (Source: Book 2, Chapter 1) He then said that “We think it enough that our title is derived by the grant of the former proprietor, by descent from our ancestors, or by the last will and testament of the dying owner; not caring to reflect that (accurately and strictly speaking) there is no foundation in nature or in natural law, why a set of words upon parchment should convey the dominion of land; why the son should have a right to exclude his fellow creatures from a determinate spot of ground, because his father had done so before him; or why the occupier of a particular field or of a jewel, when lying on his death-bed and no longer able to maintain possession, should be entitled to tell the rest of the world which of them should enjoy it after him.” (Source: Book 2, Chapter 1)

Coat of arms of Great Britain, 1714-1800

Probably not …

But the next passage is the key to the enterprise. This critical passage says that “These inquiries, it must be owned, would be useless and even troublesome in common life. It is well if the mass of mankind will obey the laws when made, without scrutinizing too nicely into the reasons of making them. But, when law is to be considered not only as matter of practice, but also as a rational science, it cannot be improper or useless to examine more deeply the rudiments and grounds of these positive constitutions of society.” (Source: Book 2, Chapter 1) Thus, he thought of the “rudiments and grounds” of property law as a “rational science”; and endeavored to explain it in the “Commentaries.”

Statue of Sir William Blackstone

The law will not suffer private property rights to be violated for the good of the community

But the most general discussion of property rights in the “Commentaries” is probably the one found in the very first chapter of the very first volume. The rest of the quotations from Blackstone's “Commentaries” in this particular blog post are thus all from Book 1, Chapter 1. Therein, Blackstone argued that “So great moreover is the regard of the law for private property, that it will not authorize the least violation of it ; no, not even for the general good of the whole community.” (Source: Blackstone's “Commentaries”) As an example, he said that “If a new road, for instance, were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public ; but the law permits no man, or set of men, to do this without consent of the owner of the land. In vain may it be urged,” he said, “that the good of the individual ought to yield to that of the community ; for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or no.” (Source: Blackstone's “Commentaries”)

Expansion of the United States “Interstate Highway System” (1972)

Even eminent domain requires government to compensate the previous owner in some way

But what about the Constitution’s explicit exceptions for cases of this kind? On this subject, Blackstone did admit that “In this, and similar cases the legislature alone, can, and indeed frequently does, interpose, and compel the individual to acquiesce. But how does it interpose and compel ?” he asked. “Not by absolutely stripping the subject of his property in an arbitrary manner ;” he said, “but by giving him a full indemnification and equivalent for the injury thereby sustained. The public is now considered as an individual,” he continued, “treating with an individual for an exchange. All that the legislature does is to oblige the owner to alienate his possessions for a reasonable price ; and even this is an exertion of power, which the legislature indulges with caution, and which nothing but the legislature can perform.” (Source: Blackstone's “Commentaries”)

Sir William Blackstone

This influenced the Fifth Amendment to the United States Constitution about eminent domain

Thus, even in this exception, the government is not really violating the individual’s rights to private property as much as we might think it is. Rather, it is just taking away one kind of that person’s property, in order to compensate them with another. The United States Bill of Rights followed this same logic, when it said that “nor shall private property be taken for public use without just compensation” (Source: Fifth Amendment to the United States Constitution)

United States Bill of Rights

A person is actually consenting to a tax, if they are represented in the government taxing them

And what about the Constitution’s other explicit exceptions for taxation, you might be wondering? On this subject, Blackstone said that “no subject of England can be constrained to pay any aids or taxes, even for the defence of the realm or the support of government, but such as are imposed by his own consent, or that of his representatives in parliament.” (Source: Blackstone's “Commentaries”) Thus, even if the person voted against this particular tax (or helped to elect representatives who would do so for him), that person is still considered to have consented to it, if he or she is represented in the government whose majority has agreed to that tax. On this subject, Blackstone is agreeing with John Locke’s “Second Treatise on Government,” which I describe in a separate post for anyone who is interested. Suffice it to say here that this is not an exception to private property, either, because taking someone’s property as taxes is generally done with the previous owner’s consent – that is, if they are represented in the government that is taxing them.

John Locke

Conclusion: The right of private property can only be alienated under certain conditions

Thus, Blackstone believed that private property was one of the basic rights of humanity, which could only be alienated under certain conditions when the owner consented to it. Although he did acknowledge that property rights are not “unalienable” in the sense that life and liberty are unalienable, because they can be transferred or sold as the owner pleases; he nonetheless counted them as basic rights, and dedicated an entire volume to this subject in his “Commentaries on the Laws of England.” As mentioned earlier, this is the second volume, titled “Of the Rights of Things” – or, in other words, the right to own things as property.

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