People v. State

I’m finally getting around to reading Blackstone’s Commentaries, in a $1.99 app for the iPhone (the very first app I’ve actually paid $ for; I looked into also installing Black’s Law Dictionary, but it’s 54.99 freaking $$$) that I can recommend for its readability. (An app search turned up only this one app, created by SunScroll, containing the Commentaries, so it’s not hard to find if you’re so inclined.)

A few motives inspired this recent sally:

1. My recent inquiry into whether Scalia’s view of the original meaning of the Double Jeopardy Clause is justified called my attention to the fact that the SCOTUS cites Blackstone about 10 times a year to support their notions of the Constitution’s original meaning. It occurred to me that it might be useful to see for myself what the law was when the Constitution was first proclaimed by its partisans to be the law of the land.

2. The Commentaries are all about the common law, and my view, borrowed from John Hasnas, is that an evolved and depoliticized common law would constitute the most promising and viable foundation for a justice “system” in a free (i.e., anarchic) society. I thought I might come across some old ideas that were better than today’s old ideas. (I’ve been somewhat disappointed to see, therefore, that Blackstone was also, in his Commentaries, a big cheerleader for the prerogatives of King and Parliament.)

3. Being prone to romanticize the Old West, it interested me to learn that Blackstone was pretty much the only law school and the only law library lawyers and judges had on the frontier. If four volumes of law sufficed then, maybe it would suffice now.

Thomas Jefferson, on the other hand, wasn’t a fan of Blackstone, writing in a letter to Judge John Tyler in 1810:

I have long lamented with you the depreciation of law science. The opinion seems to be that Blackstone is to us what the Alcoran is to the Mahometans, that everything which is necessary is in him, and what is not in him is not necessary. I still lend my counsel and books to such young students as will fix themselves in the neighborhood. Coke’s institutes and reports are their first, and Blackstone their last book, after an intermediate course of two or three years. It is nothing more than an elegant digest of what they will then have acquired from the real fountains of the law. Now men are born scholars, lawyers, doctors; in our day this was confined to poets. You wish to see me again in the legislature, but this is impossible; my mind is now so dissolved in tranquillity, that it can never again encounter a contentious assembly; the habits of thinking and speaking off-hand, after a disuse of five and twenty years, have given place to the slower process of the pen. I have indeed two great measures at heart, without which no republic can maintain itself in strength.

1. That of general education, to enable every man to judge for himself what will secure or endanger his freedom.
2. To divide every county into hundreds, of such size that all the children of each will be within reach of a central school in it.

But this division looks to many other fundamental provisions. Every hundred, besides a school, should have a justice of the peace, a constable and a captain of militia. These officers, or some others within the hundred, should be a corporation to manage all its concerns, to take care of its roads, its poor, and its police by patrols, &c., (as the select men of the Eastern townships.) Every hundred should elect one or two jurors to serve where requisite, and all other elections should be made in the hundreds separately, and the votes of all the hundreds be brought together. Our present Captaincies might be declared hundreds for the present, with a power to the courts to alter them occasionally. These little republics would be the main strength of the great one. We owe to them the vigor given to our revolution in its commencement in the Eastern States, and by them the Eastern States were enabled to repeal the embargo in opposition to the Middle, Southern and Western States, and their large and lubberly division into counties which can never be assembled. General orders are given out from a centre to the foreman of every hundred, as to the sergeants of an army, and the whole nation is thrown into energetic action, in the same direction in one instant and as one man, and becomes absolutely irresistible. Could I once see this I should consider it as the dawn of the salvation of the republic, and say with old Simeon, “nunc dimittas Domine.” But our children will be as wise as we are, and will establish in the fulness of time those things not yet ripe for establishment.

I myself have three great measures at heart, without which no man’s freedom is secure:

1. To divide every county into hundreds.

2. To replace all taxes with a single tax on the unimproved value of land.

3. To replace all legislators and judges with a common law system whose decisions and evolution are determined by juries educated in the law.

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