william blackstone and commentaries on the laws of england and john locke

William Blackstone was, without question, the premier source of the common law for three generations of American lawyers after the Revolutionary War. His four-volume Commentaries on the Laws of England (1765-69) was the first attempt to systematize the vast case and statutory law of England. Even to this day the categories he chose to divide law have been picked up by case book editors and law teachers. Nowhere is this clearer than the broad categories he employed to describe the common law homicide doctrine. This and the next essay describe that doctrine, paying attention not only to the categories Blackstone used but also to the particular verbal felicities which served to emblazon the form and content of his work on the early American mind.

Dividing Homicide

After explaining that criminal cases are pursued in the name of the king, who has the ius gladii (power of the sword), he turns to the crime which is most injurious to persons: homicide. He divides his treatment of homicide into three broad categories: justifiable homicide, excusable homicide and felonious homicide. I will get to the specifics of each broad category below. It suffices to describe the broad contours here. Within these broad categories are the following: (1) Justifiable homicide is further divided into three situations or sub-categories, namely (a) homicide owing to an unavoidable necessity; (b) killing for the advancement of public justice; and (c) homicides committed for the prevention of some atrocious crime which cannot otherwise be avoided. A justifiable homicide is one for which there is no penalty, either by way of fine or imprisonment, for one who does it.

An excusable homicide, on the other hand, is one in which some culpability inheres, even though it is less than that for a felonious homicide and more than for a justified homicide. Excusable homicides may be divided as either per infortunium (by misadventure) or se defendendo (in self-defense). The former concerns lawful acts performed which inadvertently lead to the death of someone, like a head flying off the axe and killing a bystander. The latter touches on the what is called the "sudden affray"--which can further be denominated either a "casual affray" (the so-called chance medley) and the "hot affray" (the so-called chaud-medley). Blackstone is aware that he may have trouble distinguishing the latter category from "heat of passion" crimes which are adjuged to be manslaughter, but distinguish he will.

Finally, a felonious homicide is defined as the killing of a human creature, of any age or sex, without justification or excuse. The two categories falling under this definition are killing oneself and killing another. The former is taken very seriously by Blackstone, and post-mortem punishment is exacted on the corpse of the suicide as well as confiscation of all his earthly goods. Killing of another may be divided into manslaughter and murder. Manslaughter is the unlawful killing of another without malice either express or implied, and it may be done either voluntarily or involuntarily. Finally, murder (he also calls it "deliberate and wilful murder") is defined, following Coke, as "when a person, of sound memory and discrtion, unlawfully kills any reasonable creature in being and under the king's peace, with malice aforethought either express or implied."

I think that had I been exposed to Blackstone in my basic criminal law class I could have mastered the catgories in about a day before understanding how the Model Penal Code had refined and changed some of these categories and terminology.

Blackstone's Language

One of the things that would have enriched me immensely had I been exposed to Blackstone in that environment are the memorable examples or turns of phrases that Blackstone uses in expositing his concepts. Here are three. (1) When he discusses justifiable homicide he stresses the importance of proportional response to the threatened evil. That is, only an action against us that seems to put us in imminent danger of death justifies allows us to repel that action with death. In this he contrasts himself rather surprisingly with John Locke. I say "surprisingly" because one would have thought that Locke was more "liberal" than Blackstone. But, hear Locke:

"All manner of force without right upon a man's person, puts him in a state of war with the aggressor; and, of consequence, that, being in such a state of war, he may lawfully kill him..."

This "Lockean" approach to punishment seems disproportionally severe to Blackstone. In fact, his disagreement with Locke affords Blackstone the opportunity to wax eloquently about the glory of England's law:

"yet the law of England, like that of every other well-regulated community, is too tender of the public peace, too careful of the lives of the subjects, to adopt so contentious a system."

And this was written about the time that England was multiplying the number of crimes punishable by death.

(2) Blackstone can use euphemism when he wants to do so. After justifying the killing of an attacker in order to protect one's wife or daughter from rape (though if a husband comes upon his wife in flagrante and, in a fit of passion, kills the man sleeping with his wife, he would be guilty of manslaughter, a felonious homicide), he then speaks in veiled terms:

"And I make no doubt but the forcibly attempting a crime, of a still more detestable nature, maybe be equally resisted by the death of the unnatural aggressor."

I think we hear echoes here of the "infamous crime against nature," which was not really spelled out in statutes or common law jurisprudence until the 20th century (it could have meant anal or oral sex).

(3) Riveting also is his description of the punishment faced by one who commits suicide. What can the society do after a person commits suicide?

"They can only act upon what he has left behind him, his reputation and fortune: on the former, by an ignominious burial in the highway, with a stake driven through his body; on the latter, by a forfeiture of all his goods and chattel to the king."

These two expedients are meant to deter a man from "so desperate and wicked an act." What is as significant as the principle of forfeiture is the notion that assets are measured from the time just before the act of suicide. This prevents a wife who may own property in joint tenancy with her husband from having the property pass by operation of law to her at his death.

"[T]he land shall be forfeited to the king, and the wife shall not have it by survivorship. For by the act of casting himself into the water (to drown) he forfeits the term; which gives a title to the king, prior to the wife's title by survivorship..."

The next essay probes some of Blackstone's categories in more detail.

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