Sparks Commentary: The most serious crimes that anyone can commit (according to Blackstone)

“Of crimes injurious to the persons of private subjects, the most principal and important is the offence of taking away that life, which is the immediate gift of the great creator; and which therefore no man can be entitled to deprive himself or another of, but in some manner either expressly commanded in, or evidently deducible from, those laws which the creator has given us; the divine laws, I mean, of either nature or revelation. The subject therefore of the present chapter will be, the offence of homicide or destroying the life of man, in its several stages of guilt, arising from the particular circumstances of mitigation or aggravation which attend it.”

– William Blackstone’s “Commentaries on the Laws of England” (1769), Book 4, Chapter 14

So I recently finished reading William Blackstone’s “Commentaries on the Laws of England.” This is a four-volume work that influenced our Founding Fathers. For me, the most interesting of these volumes was the last one, which was entitled “Of Public Wrongs.” It contains a number of notable chapters, among them a chapter entitled “Of Homicide.” Like the rest of this volume, this chapter was first published in 1769.

Alexander Hamilton, a fan of Blackstone’s “Commentaries”

What kinds of homicides were considered justifiable in his time?

As is common in Blackstone’s work, the chapter spends a lot of time on taxonomy. In this context, he is simply doing a classification of different kinds of homicides. As with the laws of today, self-defense was considered “justifiable homicide,” and so were some other kinds of killings. For example, “justifiable homicide” included lawful executions, police officers killing people who resisted arrest (at least under certain conditions), and the prevention of crimes like robberies and rapes. In many respects, the laws of his time are thus quite similar to ours on this subject.

Sir William Blackstone

Just as today, there was some liability for accidental deaths caused by negligence

But later on, he gets into homicides for which one could be punished, which included accidental deaths caused by negligence. These were not as serious as deliberate homicides with no justification, but one could still be legally liable for the death of one killed accidentally.

Sir William Blackstone

Laws regarding suicide – or “self-murder,” as Blackstone calls it

He also speaks of laws regarding suicide – or “self-murder,” as he calls it. In his time, these laws could be used to punish the survivors of attempted suicides, for attempting to take their own lives. In the case of completed suicides, these laws (sadly) could also be used to prevent the family of the deceased from inheriting property from that person, even if that person was their spouse.

Sir William Blackstone

The more serious offenses of manslaughter and murder, and how they compare to treason

Eventually, he gets into more serious offenses, such as manslaughter and murder. He considers these to be “the highest crime against the law of nature, that man is capable of committing.” (Source: Book 4, Chapter 14) I should note that he made a distinction between the “law of nature” and the laws of the community. With this in mind, he had earlier said that treason was “the highest civil crime, which (considered as a member of the community) any man can possibly commit.” (Source: Book 4, Chapter 6) In contrast, homicide (again) is “the highest crime against the law of nature.”

Statue of Sir William Blackstone

Blackstone then offers a definition of murder …

In the context of this discussion, I also found it particularly interesting to hear the definition that Blackstone offered for “murder.” This definition comes from Sir Edward Coke, whom Blackstone acknowledges here as a source. Here is the definition:

Sir Edward Coke

… that he acknowledges to come from Sir Edward Coke

“Murder is therefore now thus defined, or rather described, by sir Edward Coke ; ‘when a person, of sound memory and discretion, unlawfully killeth any reasonable creature in being and under the king's peace, with malice aforethought, either express or implied.’” (Source: Book 4, Chapter 14)

Sir Edward Coke

Definitions of phrases like “malice aforethought”

Blackstone then adds that “The best way of examining the nature of this crime will be by considering the several branches of this definition.” (Source: Book 4, Chapter 14) He then defines relevant phrases such as “malice aforethought,” and what was considered to constitute premeditated murder in his time.

Title page of the original edition of the first volume of Blackstone’s “Commentaries”

The English laws regarding high treason are somewhat less sympathetic

Thus, this was one of the most interesting chapters of the book – up there with his chapter “Of High Treason” in its human interest value. But I should note that I do not always approve of his era’s English laws regarding “high treason.” Why? That is what I will discuss next.

Nathan Hale, who was hanged by the British for treason during the American Revolution

If our Founding Fathers had lost the Revolutionary War against Britain …

The relevant chapter is entitled “Of High Treason.” A lot of it is about what “counted” as treason in Blackstone’s time, which was actually fairly broad. Unfortunately, I do not have the time to treat it in detail here, although I have done so elsewhere. But there were also some dramatic passages where Blackstone described the harsh punishments for treason in his time. If our Founding Fathers had lost the Revolutionary War against Britain, they would likely have been punished for high treason in the manner that Blackstone describes here.

The British hang Nathan Hale in New York City (1776), in a way milder than the following

… they would have been punished in this most brutal manner (goriness warning here)

Thus, I will give an excerpt from this chapter, where he describes these cruel and unusual punishments. (If you don’t care to read any gory descriptions, you may want to skip this next part.)

Here is the excerpt:

“The punishment of high treason in general is very solemn and terrible. 1. That the offender be drawn to the gallows, and not be carried or walk; though usually a sledge or hurdle is allowed, to preserve the offender from the extreme torment of being dragged on the ground or pavement [footnote]. 2. That he be hanged by the neck, and then cut down alive. 3. That his entrails be taken out, and burned, while he is yet alive. 4. That his head be cut off. 5. That his body be divided into four parts. 6. That his head and quarters be at the king's disposal [footnote].” (Source: Book 4, Chapter 6)

Royal coat of arms of Great Britain, 1714–1800

Modification of the above punishment for counterfeiters and for female offenders

In Blackstone’s time, counterfeiting money was also considered “high treason.” Thus, Blackstone commented:

“In the case of coining, which is a treason of a different complexion from the rest, the punishment is milder for male offenders; being only to be drawn, and hanged by the neck till dead [footnote]. But in treasons of every kind the punishment of women is the same, and different from that of men. For, as the natural modesty of the sex forbids the exposing and publicly mangling their bodies, their sentence (which is to the full as terrible to sense as the other) is to be drawn to the gallows, and there to be burned alive [footnote].” (Source: Book 4, Chapter 6)

Burning of Catherine Hayes (1741), who was executed for petit treason for killing her husband

Obviously, these punishments were a little harsh (not to mention discriminatory)

This is the kind of punishment that the Founding Fathers were risking, when they fought to become independent from the mother country. Obviously, these laws were a little harsh, not to mention discriminatory.

George Washington, the military leader of the rebels in the American Revolution

These crimes are, in Blackstone’s opinion, the most serious that anyone is capable of committing

Thus, these crimes are (in Blackstone’s opinion) the most serious that anyone is capable of committing. He did not here mention rape, in part because one seldom published things about sexuality in his day. But other parts of Blackstone’s “Commentaries” do briefly mention it, giving only the amount of detail that was considered appropriate at the time. These parts make clear that Blackstone condemned rape as well. More about this in Book 4, Chapter 15 of the work, which is simply entitled “Of Offences Against the Persons of Individuals.”

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