The King Is Dead, Long Live the Law

Jessie Allen, School of Law, University of Pittsburgh

Book the First.  Of the RIGHTS of PERSONS.  Chapter the Third.  Of the King, and his Title.

In this chapter you really see how Blackstone both inspired and pissed off the American founders.  It’s a hymn to the hereditary right of kings whose main theme is that the representative legislature gets to decide everything — including who gets to be king.  Of course, in Blackstone’s world that legislature included not only the unelected lords but the king, who had veto power, but still . . . . It’s a long way from the kind of divine right of  royalty that often gets opposed to the idea of elected democracy.  Is there anything that isn’t more complicated than we think it is?

Blackstone’s England is all about compromise. The British ship of state steers between the extremes of an elected sovereign, which “may sound like the perfection of liberty, and look well enough when delineated on paper, but in practice will be ever productive of tumult, contention, and anarchy” and a monarch with a “divine indefeasible hereditary right,” which “is surely of all constitutions the most thoroughly slavish and dreadful” (p. 211).  In the government the Commentaries celebrates (and to some extent instantiates), the sovereign’s hereditary right is limited by the absolute individual rights that every Englishman inherits. Id.

This stuff must have driven Jefferson insane.  On the one hand, here’s the blueprint for representative government, based on “the natural liberty of mankind” (p. 121), in which legislators — and legislation — reign supreme.  That’s good.  On the other hand here is an equally well-articulated condemnation of elected sovereignty.  That’s bad.  Plus, Blackstone’s got some serious rhetorical skill.   Making the British monarchy look like the modest middle ground between two wacko polarities is a strategy known to every good negotiator:  The more persuasively you can situate that bailout plan, brand of panty hose, political ideology you’re trying to sell as a compromise between risky extremes, the more likely you are to make that sale. And then there’s the part where Blackstone claims elections are a primitive survival of our less civilized past:  “in the infancy and first rudiments of almost every state, the leader, chief magistrate, or prince, hath usually been elective” (p. 186).  Finally there’s the argument from experience:  as “history and observation will inform us” only hereditary monarchy  prevents “periodic bloodshed and misery.”  Id.

The funny thing is, though, after all those canny rhetorical moves, the chapter’s argument that hereditary succession is necessary to stabilize society fails.  At least for this reader.  And I have to think it probably misfired for a number of 18th century readers, too, which may be part of how Blackstone wound up more revered in the new world he reviled than in the old one he celebrated. What’s more, the defense of sovereignty by birthright falls apart so slowly and obviously that I actually wonder if it wasn’t part of Blackstone’s plan all along to sacrifice this point in order to shore up another idea that was way more important to him:  that it’s laws that ultimately secure successful societies.

The whole long middle portion of the chapter is devoted to a blow by blow chronology of the passage of the English crown down from King Egbert in 800 to “our present gracious sovereign, king George the third,” and it is just really hard to see how anyone confronting this twisted saga of intrigue, accident, insurrection and compromise could come away with the idea that hereditary succession is a good way to decide who gets to govern.  It’s just one royal mishap after another.  Queens die “without issue,” princes get deposed by interloping uncles who “usurp[] the royal dignity,” and every time you turn around there’s another exception being made to an already incredibly complex (but still apparently hopelessly indeterminate) set of rules for sorting out where the crown lands when the music stops. The one constant, really, is the legitimating authority of parliament — which is always having to step in and declare that the current reigning monarch is actually the right one.  Which is what makes me just a little bit suspicious that Blackstone, who I must say I am really starting to think of as someone with a rather subtle sense of humor, may have wanted his readers to have this reaction.

If there is an institution here that looks solid and dependable it is — surprise, surprise — the law.  In the monarchy Blackstone describes, laws don’t come from the king — the king comes from the laws. Hereditary succession to the English crown is a choice that “laws have created and vested in the royal stock” (p. 211).  And these aren’t natural — or divine — laws, either.  Blackstone mocks the idea that “the finger of providence was visible” in the king’s title, insisting that “it was clearly a human institution” and “no natural, but a positive right” (p. 202).  What makes this all the more remarkable is the fact that, to the contrary, Blackstone contends that the basic rights of human beings do come from God. (See, e.g., pp. 119-123).   So we wind up with a complete flip of the regal appeal to divine intervention with god on the side of the monarch’s subjects who are ultimately in charge — through the laws their representatives enact — of who gets to be king.  In the end, it seems a very short distance, if any, from Blackstone’s vision of the government that “it is is the duty of every good Englishman to understand, to revere, to defend” (p. 211) and Thomas Paine’s avowal, in the tract that urged rebellion against that very government, that “so far as we approve of monarchy, . . . in America the law is king.”