Blackstone condemned the execution of Algernon Sidney for high treason

“Treason, proditio, in its very name (which is borrowed from the French) imports a betraying, treachery, or breach of faith. It therefore happens only between allies, faith the mirror [footnote] : for treason is indeed a general appellation, made use of by the law, to denote not only offences against the king and government, but also that accumulation of guilt which arises whenever a superior reposes a confidence in a subject or inferior, between whom and himself there subsists a natural, a civil, or even a spiritual relation ; and inferior so abuses that confidence, so forgets the obligations of duty, subjection, and allegiance, as to destroy the life of any such his superior or lord.”

– Sir William Blackstone’s “Commentaries on the Laws of England” (1769), Book 4, Chapter 6

Algernon Sidney

Algernon Sidney was executed some four decades before Sir William Blackstone was born

Algernon Sidney was executed some four decades before Sir William Blackstone was born. Specifically, our subject Algernon Sidney was executed in 1683, and Sir William Blackstone would not be born until 1723. (But I’m getting ahead of myself here.) Blackstone was in his forties when he wrote his “Commentaries on the Laws of England.” This was a four-volume work, which gave a general overview of its chosen subject. Its fourth and final volume was published in the year 1769. This is the volume that I will be quoting from here. (Incidentally, all quotations from Blackstone’s “Commentaries” in this particular blog post will be from Book 4, Chapter 6 – a chapter entitled “Of High Treason.”)

Statue of Sir William Blackstone

The Constitution of Massachusetts influenced the Bill of Rights

“All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.”

– The original Constitution of Massachusetts (ratified 1780), Part 1, Article 1 – as written by John Adams

“A Declaration of the Rights of the Inhabitants … of Massachusetts”

The United States Constitution shows the influence of several American state constitutions. But the one that influenced it the most was undoubtedly the Massachusetts Constitution. The original text of the Massachusetts Constitution was principally written by John Adams. It influenced many of the provisions in the original United States Constitution, as I show in a previous post. In this post, I will instead show how it influenced the amendments in the United States Bill of Rights. It has a lengthy section entitled “A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts” (Source: Part the First). This section makes for very interesting reading.

John Adams, the principal author of the Constitution of Massachusetts

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”

Some thoughts from Blackstone about punishing criminals

“I proceed in the next place to consider the general nature of punishments : which are evils or inconveniences consequent upon crimes and misdemeanors ; being devised, denounced, and inflicted by human laws, in consequence of disobedience or misbehaviour in those, to regulate whose conduct such laws were respectively made.”

– Sir William Blackstone’s “Commentaries on the Laws of England” (1769), Book 4, Chapter 1

Why do we punish small crimes differently from big ones? For that matter, why do we punish criminals at all? Many have asked these questions throughout history. There has been a great variety of answers from all kinds of people. Blackstone’s answers were not new even then, but they were solid answers, and they’re still relevant today.

Thus, I will examine some enlightening passages from his magnum opus, the “Commentaries on the Laws of England.” The fourth and final book of that work is entitled “Of Public Wrongs.” “Public wrongs” is just another way of saying “crimes.” Thus, this is Blackstone’s treatise on criminal law – and specifically, the criminal laws of England at this time. I should mention that all quotations in this particular blog post are from Book 4, Chapter 1. Thus, I will not note this every time. (Incidentally, this particular volume was first published in 1769.)

Coat of arms of Great Britain, 1714-1800

A review of “12 Angry Men” (1957 movie)

“You've listened to a long and complex case, murder in the first degree. Premeditated murder is the most serious charge tried in our criminal courts. You've listened to the testimony, you've had the law read to you and interpreted as it applies in this case. It's now your duty to sit down and try to separate the facts from the fancy. One man is dead, another man's life is at stake. If there's a reasonable doubt in your minds as to the guilt of the accused – uh, a reasonable doubt – then you must bring me a verdict of ‘Not Guilty.’ If, however, there's no reasonable doubt, then you must, in good conscience, find the accused ‘Guilty.’ However you decide, your verdict must be unanimous. In the event that you find the accused ‘Guilty,’ the bench will not entertain a recommendation for mercy. The death sentence is mandatory in this case. You're faced with a grave responsibility.”

– The judge in “12 Angry Men” (1957), in one of the earliest scenes of the movie

Some comments on this movie, and how I personally prefer it to the 1997 remake …

In 1954, the screenwriter Reginald Rose wrote a teleplay that was to debut on CBS. The teleplay was “Twelve Angry Men,” and it would soon become a classic. It aired on September 20th, 1954, and was soon adapted for the stage in 1955. But the most famous adaptation of the play was the 1957 movie, starring Henry Fonda in the lead role. There was another movie that updated it somewhat in 1997, forty years after the original film came out. The remake has many positive virtues, including a more ethnically diverse cast. The original film has an all-white cast, although both films had an all-male cast (at least for the twelve jurors). Both films have superb acting, and I think the acting quality is just about neck-and-neck for these two movies. But in some ways, I still tend to prefer the earlier version, because it had much less profanity. The 1957 version had maybe two swear words in the entire movie. The 1997 version is filled with profanity, and earned a PG-13 rating for this reason. This is not really my cup of tea, and makes me want to avoid the remake for the most part.

A brief overview of the plot (warning: may contain spoilers) ….

Every version of this story seems to work well as a drama – at least, for those versions that I have seen. But the movie is also philosophically interesting in many ways. It is not just about twelve characters who happen to be thrown together for a few hours of intense debate – the movie also tries to profile our jury system as a whole. The movie is an interesting character study, because the characters bounce off of each other throughout the movie, debating the complex details of this particular case. But the movie also shows that what can seem “cut-and-dried” at first is seldom quite as straightforward as it seems. (I must give a spoiler alert for this next part, for those who have not seen this film.) Testimony that seemed credible at first is thrown into serious question later on, and witnesses that seemed reliable no longer seem to be such in the end. At first, eleven of the jurors think that the boy really is guilty, and only one of them initially votes “not guilty.” But eventually, this lone juror converts all of the others to his point of view, and convinces them to vote for the defendant’s acquittal. Before the movie finishes, issues of prejudice, incompetent legal counsel, and the default presumption of innocence all come into play. The movie makes the point that the jury system was supposed to be impartial, and is not supposed to be based on charm or demographics – or any other ultimately irrelevant factor.

What is “corruption of blood, or forfeiture” from an attainder of treason?

“The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.”

– Article 3, Section 3, Paragraph 2 of the United States Constitution

The Constitution prevents Congress from “extending the consequences of guilt” beyond those who have actually committed the crimes …

In the Federalist Papers, James Madison once quoted a portion of the Constitution saying that the Congress shall have power “To declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attained.” (Source: Federalist No. 43) He then commented upon this section, saying that “As treason may be committed against the United States, the authority of the United States ought to be enabled to punish it. But as new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other, the convention have, with great judgment, opposed a barrier to this peculiar danger, by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it, from extending the consequences of guilt beyond the person of its author.” (Source: Federalist No. 43) Corruption of blood just meant impeding someone from inheriting, or passing on property to their own descendants as heirs, on account of a crime that they had committed (usually treason). It thus punished others besides the person guilty of the crime.

James Madison

The Habeas Corpus Act and the English Bill of Rights influenced our Constitution

“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.”

– Article 1, Section 9, Paragraph 2 of the United States Constitution

It might come as a surprise to say this, but the British have a real “Constitution,” even if it isn't all written down in one document like ours might seem to be. Rather, it would seem to be a constitution built out of multiple documents, such as the Magna Carta and the Petition of Right (both of which I have covered in prior posts). No less important are the Habeas Corpus Act and the English Bill of Rights, which were foundational for the rights of English-speaking countries. Like the other documents mentioned here, they would both have an enormous influence on the United States Constitution. I have covered the other documents mentioned here in some other posts of this series, so I will instead focus my attention here on the Habeas Corpus Act and the English Bill of Rights (both vitally important).

Parliament of England

How did the Massachusetts Body of Liberties influence the Bill of Rights?

“No man shall be put to death without the testimony of two or three witnesses or that which is equivalent thereunto.”

– The Massachusetts Body of Liberties (1641), Section 47

The Massachusetts Body of Liberties codified many of the basic rights and privileges that we enjoy today. It had an early form of freedom of speech, and a right to petition the government with a “complaint.” It listed several rights of the accused; such as a protection from double jeopardy, a protection from forced confessions, and a protection from excessive bail. It gave them rights to a trial in criminal cases, and the right to an attorney to represent them in these trials. It gave them protections of life and property (as well as the right to challenge jurors), and some potent protections against any “inhumane Barbarous or cruel” bodily punishments. All of these things influenced the United States Bill of Rights, and it is hard to imagine life in this country without them. Our country would be in a much worse shape, if we didn't have these things. Thus, an examination of these rights would seem to be appropriate here. (I have decided to preserve the original spellings of its passages when quoting them, to give the reader something of their style and flavor.)

When King John signed the Magna Carta, it was like signing a surrender document …

“No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.”

– The original Magna Carta (1215), Section 39 – using the translation (from the Latin into English) that was offered by Yale Law School's “Avalon Project”

When King John of England signed the Magna Carta in 1215, it was tantamount to signing a surrender document, and was just as humiliating for him. Before, the authority of the king had been almost (if not completely) absolute. Now, it was limited, and his nobles had the king's signature to prove it. Why did the king agree to sign this document in the first place? If he wanted to continue to have absolute power (and he did), why would he agree to such limits upon his power?

King John of England

The short answer for this is that he had no choice – he was forced to sign this document by angry men wielding a sword at him. But how did these noblemen manage to force him to do this at sword-point? How is it that King John lost his grip on absolute power at this time, with his descendants having very little chance of recovering it later on?

The Magna Carta

How did the Virginia Declaration of Rights influence the Bill of Rights?

“That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety … That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.”

– George Mason, in the “Virginia Declaration of Rights,” Sections I and II

George Mason actually refused to sign the Constitution of the United States …

George Mason was present at the Constitutional Convention, but he refused to sign the finished document. When the final draft was approved, he said that he “would sooner chop off [his] right hand than put it to the Constitution as it now stands.” Why, you might be wondering? Because the original Constitution didn't have a Bill of Rights; and having authored the Virginia Declaration of Rights earlier on in his career, he knew the importance of a Bill of Rights in a country's constitution.

George Mason, author of the Virginia Declaration of Rights

He wrote the Virginia Declaration of Rights in May 1776 (ratified June 1776)

Specifically, he had authored the “Virginia Declaration of Rights” in May 1776 – a document that was later approved in June 1776. It not only influenced the United States Declaration of Independence (passed in July 1776), but the United States Bill of Rights (which was passed in 1791). It drew upon influences from both American and British history, but it also made some original contributions of its own, as well as some improvements on previous ideas. It was also amended somewhat by Robert C. Nicholas and James Madison.

James Madison

It influenced our federal Bill of Rights in many ways, as I will show with some relevant quotes

The Virginia Declaration of Rights influenced 7 out of the 10 amendments in the United States Bill of Rights (which is 70% of them), and was thus a major influence on our Constitution. This post will show the most influential parts of the Virginia Declaration of Rights, and the parts of the United States Constitution that they influenced as well.

United States Bill of Rights

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

The tyrannical police state: The worst nightmare of the Founding Fathers

"A person charged in any state with treason, felony, or other crime, who shall flee justice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime."

- Article 4, Section 2, Paragraph 2 of the Constitution

Headquarters of the United States Department of Justice, or "DOJ"

Although the president enforces the laws, they can't punish people without the courts ...

In our Constitution, it says that the president "shall take care that the laws be faithfully executed, and shall commission all the officers of the United States" (Source: Article 2, Section 3). This includes prosecutors and police officers. Many of these laws to be "faithfully executed" authorize particular punishments for various actions, from fines to imprisonment to being executed (depending on the seriousness of the offense, as perceived by the Congress). If the president had carte blanche to enforce these laws passed by Congress, with no limits to this power, he could carry out these punishments anytime that he said these laws were violated - or even at times when they were not. (If, that is, there were no judicial branch to check this power, and require him to prove that these violations actually happened as he claimed they did.) Thus the Constitution created a judicial branch that was as independent as possible from the President and the Congress, so that no one group would possess the power to enforce these laws at their own whim or fancy. This is one of the real bulwarks of our Constitution, and is one of the true guarantees of our liberties. Thus, I wish to spend some time on it in this post, and educate us all about our constitutional rights as American citizens - particularly those found in the Bill of Rights.

Supreme Court of the United States

... so the very existence of the court system is itself a check on the presidency

Specifically, the Constitution said that "The judicial power of the United States, shall be vested in one supreme court, and in such inferior courts as the Congress may, from time to time, ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office." (Source: Article 3, Section 1) The courts have a certain power to strike down laws passed by the Congress, which is another important power that I should note (at least in passing) before moving on to my main topic, which is judicial restraints on the president and the police force. (I discuss striking down laws in some detail in one of my other blog posts, if you're interested in that subject. This post, by contrast, will be more focused on the Bill of Rights, and on the judicial checks on the executive branch.)

U. S. Ninth Circuit Court of Appeals (an influential appeals court) - Pasadena, California

Actually, the death penalty IS constitutional (as the Fifth Amendment makes clear)

"The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law."

- Coffin et al v. United States (1895), the Supreme Court case which codified the presumption of innocence for people accused of crimes

People are innocent until proven guilty, and do not have to "prove" their innocence

There's a saying in America that is often quoted in these contexts, which is that people are "innocent until proven guilty." This saying is so familiar to Americans that we often take it for granted, I think. We may not always realize how rare it is in the world to have this kind of default assumption. In this country, the burden of proof is on the prosecution - or in civil cases, the "plaintiff" - rather than the defendant. The defendant is not even required to open his or her mouth to "prove" his or her own innocence. This is not written explicitly into our Constitution, but it is implied by a number of amendments, and was codified by the Supreme Court case quoted above. Moreover, a jurist from a previous century named Sir William Blackstone - a man who is quoted in the Federalist Papers - proclaimed that "the law holds, that it is better that ten guilty persons escape than one innocent suffer." (Source: Blackstone's "Commentaries," Book IV, Chapter 27) This doctrine is sometimes known as "Blackstone's formulation" or "Blackstone's Ratio."

William Blackstone

William Blackstone thought it "better that ten guilty persons escape than one innocent suffer"

John Adams expounded on "Blackstone's Ratio" in the "Boston Massacre" trial, when he said that "We are to look upon it as more beneficial, that many guilty persons should escape unpunished, than one innocent person should suffer. The reason is, because it’s of more importance to community, that innocence should be protected, than it is, that guilt should be punished; for guilt and crimes are so frequent in the world, that all of them cannot be punished; and many times they happen in such a manner, that it is not of much consequence to the public, whether they are punished or not. But when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, it is immaterial to me, whether I behave well or ill; for virtue itself, is no security. And if such a sentiment as this, should take place in the mind of the subject, there would be an end to all security what so ever." (Source: Adams' Argument for the Defense, 3-4 December 1770) When a person really is guilty of a crime (as sometimes happens), this can still make it somewhat difficult to bring criminals to justice, of course. Thus, the police force and prosecutors have to possess a high degree of skill to provide the necessary proof of these actions. But if these protections are not in place (and many countries don't have them), then innocent people are vulnerable to an arbitrary tyranny that can punish them at will; and there are few things that Americans fear more than an absolute government with unlimited power. Thus, there must be a balancing act in any free country between individual protections and criminal justice, where the people are protected against both unlimited government and violent criminals. Thus, it might be helpful to go over some of these constitutional protections from our Bill of Rights.

John Adams, the defense attorney in the "Boston Massacre" trial

Even presidents are not above the law in the United States

"Therefore, I shall resign the presidency effective at noon tomorrow. Vice President Ford will be sworn in as President at that hour in this office."

- President Richard Nixon, in the Oval Office at the White House, on August 8, 1974

The executive and judicial branches can have conflicts of interest at times ...

If the government makes the laws, is the government itself above those laws? Or in other words, can the laws be made not to apply to the people in those governments? In the United States, the answer to this question is a resounding "no," because there are mechanisms in place to punish officials who break the laws. These laws apply to everyone universally, including the President of the United States himself (or herself). This is not so much a problem for members of Congress, because when members of Congress break the laws, they can be prosecuted by the executive branch in the courts of the judicial branch (with certain exceptions for when the legislature is in session) just like anyone else can. When lesser judges break the law, they can be prosecuted by the executive branch in courts presided over by higher-ranking judges; so there are mechanisms in place to prevent this as well.

White House

... so all branches of the government are subject to impeachment and removal from office

But if the judges of the Supreme Court break the laws, there is a conflict of interest coming from the ability to be the judges in their own cases, which allows them to avoid negative judgments against themselves even when they're guilty. A similar situation applies when the President of the United States breaks the law, because the President can refuse to allow himself (or herself) to be prosecuted. (With control over federal prosecutions, they would thus also have a conflict of interest in their own cases.) Thus, all members of the government are subject to impeachment and removal from office, and that includes members of the executive branch. Most importantly, it includes the President of the United States himself (or herself); so a review of constitutional impeachment procedures would seem appropriate here. I will first show how the process of impeachment works in this country, and then talk about particular instances of attempts at removal.

Supreme Court of the United States

The Bill of Rights: historical context and strict construction

"The enumeration [or "listing"] in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

- Ninth Amendment to the United States Constitution (ratified 1791), a sometimes-forgotten amendment in the Bill of Rights

It's the most familiar part of the Constitution - the one that the most people can quote. It's the most disputed part of the Constitution - the one whose meaning is most debated. And it's the most tangible part of the Constitution - the one that writes into stone the rights we use every day, and which is thus easiest to apply to everyday life.

The Constitutional Convention

The original Constitution didn't have a Bill of Rights

The portion is, of course, the Bill of Rights; but it was not a part of the original Constitution at all. The United States Bill of Rights was the first ten amendments to the Constitution. For those who don't know, an amendment is just another word for a change. The Constitution has been amended (or changed) 27 times since its adoption, and the first ten amendments written into it were the ones we today call our "Bill of Rights." They can today be seen in the context of the ratification debates, or the debates over whether or not to ratify the Constitution as the "supreme law of the land". The Constitution did not become law until it was approved by nine of the original thirteen states, and the states fiercely debated about whether or not we should have this Constitution.