Foundation for the Common Law
by Herbert W. Titus
In his introduction to Book I of the University of Chicago’s facsimile of Blackstone’s Commentaries on the Laws of England, the late Stanley N. Katz, professor of law at Chicago, dismissed Blackstone’s chapter “On the Nature of Laws in General” as “a brief and unconvincing essay on the natural law background of the English legal system … [and as] an obligatory eighteenth-century exercise, in which Blackstone accords to natural and revealed law about the same importance as Newton accorded God in the operation of the physical universe.”81
Calling Blackstone’s view of law a “modern positivist one,”82 in which God’s revelation played no real part, Katz simply ignored large chunks of the Commentaries which were laced with references to God’s revelation. Nowhere was this oversight more significant than in Blackstone’s section on the common law of property.
In the opening chapter of his second book, addressing “the Rights of Things,” Blackstone devoted fifteen full pages to exploring the origin and foundation of the right of property, namely “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.”83 Without hesitation or apology, Blackstone began his search by quoting Genesis 1:28: “In the beginning of the world, we are informed by holy writ, the all-bountiful creator gave to man dominion over all the earth; and over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth.'”84
Blackstone chose to begin with the Biblical mandate to exercise dominion, not because he had no other possible source, but rather, he began with Genesis because he believed that book to be “the only true and solid foundation of man’s dominion over external things, whatever airy metaphysical notion may have been started by fanciful writers upon this subject.”85 While Blackstone did not identify these “fanciful writers” by name, America’s Blackstone, Chancellor James Kent of New York, did in the introduction to the common law of property in his Commentaries on American Law:
To suppose a state of man prior to the existence of any notions of separate property … when men throughout the world lived without law or government, in innocence and simplicity, is a mere dream of the imagination. It is the golden age of the poets which forms such a delightful picture in the fictions, adorned by the muse of Hesiod, Lucretius, Ovid, and Virgil.86
And what were these “dreams” of a “golden age” in which man lived in “innocence and simplicity?” Hesiod, the Greek poet mentioned first by Kent, lived in the Eighth Century before Christ. In his epic poem, Works and Days, he imagined a golden age of history in which all human beings lived happily upon a fruitful earth that spontaneously satisfied all men’s needs. Hesiod bemoaned the loss of this age of innocence. He blamed this loss on the gods who had failed to create mankind in such a way as to prevent man from falling into evil. Because evil had entered into the world, Hesiod claimed, men were condemned to hard work to exercise dominion.87
As for Lucretius, this Roman poet who lived in the First Century before Christ claimed that the earth, not gods, had given birth to mankind through a process of natural selection of species. He hypothesized a time when men lived communally
after the roving fashion of wild beasts. No one then was a sturdy guider of the bent plough or knew how to labour the fields with iron or plant in the ground young saplings or lop with pruning-hooks old boughs from the high trees. What the sun and rains had given, what the earth had produced spontaneously, was guerdon sufficient to content their hearts.88
Only later did man invent laws and government as he evolved from a state of nature to a civilized creature with a spoken language. According to Lucretius, “mankind, tired out with a life of brute force, lay exhausted from its feuds; and therefore the more readily it submitted of its own freewill to laws and stringent codes.”89
Ovid, like Lucretius, staked man’s origin in “Mother Nature,” personified by the goddess “Venus … the spirit of desire, mating, fertility.”90 In his Metamorphoses, Ovid “recounted in engaging hexameters the renounced transformations of inanimate objects, animals, mortals, and gods . . . and range[d] through the whole realm of classical mythology from the creation of the world to the deification of Caesar.”91
Virgil, in the Aeniad, also wrote a “sacred scripture for Rome.” Although “he oscillates between Jove and an impersonal Fate as the ruler of all things,” he repeated the same “mythological background” as the Greek poets before him. In earlier works he predicted the coming of a utopia that, in reality, was simply a wishful forecast of a return to a mythological golden age.92
Kent dismissed all of these poetic musings with a brief, but telling, reference to the Genesis account of Cain’s murder of Abel following the fall of man in the Garden of Eden: “It has been truly observed, that the first man who was born into the world killed the second; and when did the times of simplicity begin?”93 The significance of this citation cannot be overestimated. With it Kent not only dismissed the possibility of some utopian past, but he rejected the poet’s anthropological speculations and evolutionary hypotheses as well. No wonder Kent, after citing Genesis 4, proceeded to endorse that entire book as the only authentic account of the origin of the world and of mankind. This endorsement came as he turned from his critique of the Roman and Greek poets to a similar critique of their historians and philosophers.
Claiming that the works of Homer, Herodotus, and Livy rivalled that of their poetic compatriots in “their descriptions of some imaginary state of nature,” Kent found these men attempting to know the impossible and, therefore, to have spent their energies in conjecture.94 Kent’s appraisal of these three men’s work have proved remarkably prescient. In his monumental work on The Story of Civilization, Will Durant came to similar conclusions. On Homer, Durant wrote that no one can be sure that he even existed and that Homer’s work contained but “legends of an Heroic Age” in which gods and men interacted with each other, even in acts of sexual intercourse to sire those who were destined to rule on the earth.95 As for the Greek historian, Herodotus, Durant found “much nonsense” in his work, including the claim that “Nebuchadnezzar was a woman.”96 Durant also observed that the Roman historian, Livy “accepts almost any superstition,” and “litters his pages with omens, portents, and oracles … .[so that] as in Virgil the real actors are the gods.”97 So zealous to establish the absolute righteousness of Rome, Durant finally noted that Livy “ceases to distinguish legend from history.”98
Having dismissed this Roman and Greek heritage, Kent proceeded to endorse God’s revelation in the Book of Genesis as the only true account of the origin of the universe, and. consequently. of the origin of private property. “No such state [of man prior to the existence of any notions of separate property] was intended for man in the benevolent dispensation of Providence; and in following the migrations of nations, apart from the book of Genesis, human curiosity is unable to penetrate beyond the pages of genuine history ….”99
Having identified Genesis as his starting point, Kent, for reasons unknown. shifted his focus from God’s revelation in the Holy Scriptures to God’s revelation in every man’s heart: “The sense of property is inherent in the human breast …. Man was fitted and intended by the [A]uthor of his being … for the acquisitions and enjoyment of property. It is, to speak correctly, the law of his nature.”100 Perhaps Kent believed that this “sense of property” was so self-evident it needed no support from Scripture. Perhaps he believed that Scripture’s endorsement of private property was so clear that it needed no exegesis. After all, had not Cain owned the land that he tilled and the crops that he grew?101 And had not Abel owned the land upon which he grazed his sheep and the sheep as well?102 And were not Cain and Abel the first generation after Adam and Eve, so there was no room for any wandering nomads or communal property in between?103
Blackstone, however, was not so sure. First, he was uncertain that Cain and Abel owned the land because there was so much of it and so few to claim it. It was not until the population of the world increased that conflicts over land arose. Even so, Blackstone stuck with Genesis as he cited the controversies between Abraham and Abimilech and Abraham and Lot as the earliest examples of how such conflicts were resolved. For he, like Kent, considered the Book of Genesis “the most venerable monument of antiquity, considered merely with a view of history.”104
Even before Blackstone, other apologists for the institution of private property, most notably John Locke, also found Genesis to be the beginning of any effort to justify any man’s right to exercise exclusive dominion over things. Locke began his discussion of the subject by referring not only to God’s revelation in nature but also to His revelation in the Scriptures:
Whether we consider natural reason, which tells us, that men, being once born, have a right to their preservation, and consequently to meat and drink, and such other things as nature affords for their subsistence: or revelation, which gives us an account of those grants God made of the world to Adam, and to Noah and his sons.105
Locke, unlike Kent, did not believe, however, that the right of private property was self-evident. So he, like Blackstone, sought to explain how, and to justify why, an individual human being could claim exclusive right to a piece of land or to a thing. And Locke, like Blackstone, relied upon the Genesis creation story and utilized the Genesis accounts of Cain and Abel, Abraham and Lot, and Esau and Jacob to support his theory of private property.106
Other common law scholars followed suit. But their common starting point in Genesis and their affirmation of Genesis as the authoritative account of the early history of mankind did not result in agreement in the foundational principles of the common law of property.
Blackstone and Locke inferred from the Holy Scriptures that in the beginning God had given the earth and all it contains to all mankind in common. While Blackstone rested his case upon Genesis 1:28,107 Locke based this first principle upon Psalm 115:16: “[I]t is very clear, that God, as [K]ing David says, has given the earth to the children of men;’ given it to mankind in common.”108 From this foundational principle Blackstone and Locke sought to demonstrate how the institution of private property came about. Both claimed that it had arisen out of necessity, in that as people multiplied upon the earth there was not enough land and things to meet every person’s need. To illustrate this historical process, both cited passages from the book of Genesis dealing with conflicts over property.109
While Blackstone and Locke agreed that “necessity begat property,”110 they did not agree upon the justification for an individual human being to claim exclusive right to a plot of land or a thing to the exclusion of all others. Drawing on the Genesis history, Blackstone determined that exclusive ownership began with first possession and that the system of laws protecting private property were designed to keep the peace by preserving possessory interest from claims of those who came later. In effect, Blackstone simply accepted as fact that the “first taker” had a superior right to the property possessed and that anyone with a contrary claim had the burden of proving that his claim was better. Because Blackstone found nothing inherently right in the first taker’s claim, he concluded that the common law of property was a matter of societal convention, not a matter of natural right. He favored a system of private property partly because it best met men’s needs and partly because it was clearly practiced in the book of Genesis. But he did not believe that the system of private property portrayed in Genesis had been specifically prescribed by God; it was one of those areas of “indifference” where man had freedom to choose a variety of rules depending upon his assessment of their efficacy.111
Locke thought otherwise. While God gave “the world to men in common,” He also gave each man “reason to make use of it to the best advantage of life and convenience.”112 This ability to reason and, thereby, to exercise dominion was each individual man’s property in which “nobody has any right to but himself. The labor of his body and the work of his hands, we may say, are properly his.”113 From this God-given right, Locke reasoned that whatever a man, by his labor, “removes out of the state that nature has provided” he has, by mixing his labor with the thing removed, made the thing “his property.”114 To ensure that all men would have opportunity to mix his labor with some external thing, Locke claimed that a man’s claim of ownership could not exceed the bounds of reason; i.e., could not go beyond what he could use to the advantage of life. To be sure, no one could claim ownership to anything if he did not work for it, but no one could claim so much that it kept others from having opportunity to own things for his use and enjoyment.115
While Blackstone’s view allowed that man could adopt any system of property ownership so long as it proved efficacious, Locke’s view required a system of private property governed by rules that protected claims based upon one’s work tempered by rules that limited those claims to reasonable use and enjoyment. Both came to their positions because of their first proposition that God had given to all mankind in common the earth and all that it contains.
Kent disagreed with this first postulate. He emphatically denied that there ever was time when man owned all things in common. To the contrary. he claimed that God fitted and intended each individual man from the beginning to acquire and to enjoy separate property. Kent did not bother to support this proposition with a careful Scriptural account; he was content to state it as self-evident: “There is no person. even in his rudest state, who does not feel and acknowledge … the justice of this title” of the one who occupies something first.116 It was occupancy, not labor, which gave rise to a claim of title, Kent claimed, because God “graciously bestowed [the sense of property] on mankind for the purpose of rousing them from sloth, and stimulating them to action.”117 He further asserted that private property rights “ought to be sacredly protected,” not subordinated to claims of injustice whether they are based upon inequalities of wealth or upon unreasonable use and enjoyment:
A state of equality as to property is impossible to be maintained, for it is against the laws of our nature; and if it could be reduced to practice, it would place the human race in a state of tasteless enjoyment and stupid inactivity, which would degrade the mind, and destroy the happiness of social life.118
Who was right, Blackstone, Locke, or Kent? Or were any of them right? Had Kent bothered to examine the Holy Scriptures carefully, he would have found ample evidence to refute both Blackstone and Locke. As for their first postulate, that God had given the earth and all it contains to mankind in common, neither Genesis 1:28 nor Psalm 116:16 or any other verse in Scripture supports that proposition. Rightfully understood, Genesis 1:28 along with Genesis 1:26, is a grant of authority, not a conveyance of title. True, the language of each verse is in the form of a command-man must “rule”-but the operative word, “rule,” is not one that connotes an “immediate gift” as Blackstone contended. Rather, “rule”, literally “rule ye” (the command to man as male and female), is not a possession word or an ownership word, but an authority word, meaning to “have dominion, rule, dominate.”119
As for Psalm 115:16, it must be read in context of the whole of Scripture. It cannot be read in isolation from Genesis 1:26-28, nor from the Genesis account of property ownership as evidenced in the lives of real people.
The grant of authority contained in Genesis 1:28 is not to mankind in general, but to mankind through the family unit. The command to exercise dominion is linked directly to the command for man, male and female, to multiply and replenish the earth. By conferring authority upon the family, God chose the one human institution uniquely suited to meet the terms of the dominion mandate. Given the vastness of the earth and its contents, the mandate could not possibly be fulfilled without the multiplication of human beings through the natural reproductive method prescribed by God. Thus, God placed Adam and Eve in the Garden of Eden, thereby conveying title and ownership to the “first family farm” with the expectation that from this humble beginning with one family the earth and all its contents would be “kept and tilled.”120
This grant of family authority sets the norm as chronicled by Moses in the book of Genesis. Family ownership begins with Adam and Eve, continues with their offspring and begins again with Noah and his sons, interrupted only by Pharaoh, who obtained all the land and property of his Egyptian subjects, thereby placing them in slavery.121 Significantly, Jacob and his progeny escaped this enslavement only to be enslaved later by a “Pharaoh who knew not Joseph.”122 By the opening of Exodus we are introduced to this Pharaoh’s “final solution” to the Jewish problem – a systematic extermination of all new-born sons.123 The enslavement of the Israelites began with the taking of their labor and their property but it could only be completed by abolition of the Jewish family units. Providentially, God led the people of Israel out of slavery and into the promised land where property ownership was restored family by family.124
This Old Testament normative view of family free enterprise is affirmed propositionally by the writer of Proverbs: “Houses and riches are the inheritance of fathers ….”125 It is also confirmed by one of the teaching parables wherein Jesus drew upon the family free enterprise system to illustrate a certain basic principle in the kingdom of God. In the parable of the vineyard owner who leased out his vineyard, the right of the son to inherit his father’s property is utilized to demonstrate the right of Jesus as the Father’s Son to inherit the whole of creation.126
This right of a son or other child to inherit the property of the father or parent was considered by Locke, Kent, and other common law authorities to be God-given.127 This follows from the foundational proposition that God authorized the family through the generations to exercise dominion. But with the right of inheritance comes also the duty to meet the needs of one’s parents. Jesus confirmed this by condemning the pharisaical practice of “Corban,” i.e., of dedicating property to God but neglecting to honor one’s father and mother by meeting their needs in their old age.128 Paul followed this teaching with one of the most severe rebukes that one can find in his many letters to believers: “But if any provide not for his own, and especially for those of his own house, be bath denied the faith, and is worse than an infidel.”129 Of course, this passage applies not only to the duty of sons and daughters to aged parents but also to fathers and mothers to their children. Paul illustrates this point with his reminder to the church at Corinth that as their spiritual father, it was his responsibility to meet their needs, not vice versa: “[F]or the children ought not to lay up for the parents, but the parents for the children.”130
In short, God selected the family as the primary economic unit of society, not the individual, not the state, not the corporation, and not the church. The common law was designed to foster and protect the family, not only through rules protecting private property ownership and facilitating its voluntary transfer, but also through criminal sanctions prohibiting adultery, fornication, sodomy, and bigamy.
Since the Darwinian revolution, however, this understanding of the common law bas deteriorated. In the late 19th century the system of family free enterprise was first eroded by the selfish, individualist capitalist who, invoking Darwin’s theory of the survival of the fittest, disclaimed any responsibility for the welfare of the poor and claimed immunity from all state regulation.131 In reaction to this perverted view of free enterprise and private property came the cry for socialism, or short of that, for redistribution of wealth by the state for the benefit of the less fortunate.132
The most extreme reaction to individualistic capitalism came from Karl Marx in his Communist Manifesto: “Aboli[sh] … Private Property …. Aboli[sh] … the family!”133 While these communist ideals have never triumphed, these ideas still claim the imaginations of scholars, fuel the visionary schemes of utopian reformers, and undergird various government entitlement programs that have dominated American national polities since the New Deal. With the advent of social security in the 1930’s, the God-ordained responsibility of children for the care of their aged and infirm parents has slowly eroded to the point where parents claim with pride that they are not a burden to their children in their old age. This erosion of family responsibility has also created a generational conflict of significant proportion as younger workers pay the bill for an ever escalating social security benefit system that is being exhausted by a retired generation whose life span continues to lengthen.
No longer the cornerstone of economic prosperity, the family has become increasingly viewed as a place for retreat and pleasure away from the work place. With the sexual revolution of the 1960’s and 1970’s, the family has become even more irrelevant because young people are lured into sexual activity outside of the marriage commitment, which is seen by many experts as the antithesis of pleasure.134 This change of sexual mores has been accompanied by the systematic failure of the state to enforce the criminal sanctions against adultery, fornication, sodomy, and bigamy. Such laws are considered to be relics of an outmoded “Victorian morality”135 rather than essential to protect the primary economic unit of society, the family.
Having divorced the family from the economy, America’s leaders, both Republican and Democrat, have placed the social issues on the back burner to concentrate on the economic issues. But the issues of abortion and homosexual behavior, to name just two, are keys to the economic future of the nation. Activities designed to destroy America’s posterity by ridding her of her so-called “unwanted children,” and by protecting the unproductive lifestyle of homosexual couples, are already devastating America’s work force, so essential to America’s continuing economic prosperity. By elevating a woman’s selfishness to choose death for her baby to the level of a constitutional right, America has endorsed the unnatural use of the woman over that ordained by nature.136 If America elevates the homosexual’s right to similar heights, and many of America’s leaders are doing everything they can to do just that, then we will see the enactment into law of policies that encourage men to elevate the unnatural use of their bodies over the natural. The Apostle Paul warned the readers in his letter to the church at Rome that this exchange the unnatural for the natural-would introduce an avalanche of ungodly behavior, including covetousness and covenant-breaking.137
Respect for the property of others and the keeping of one’s promises are foundational moral principles essential to the economic health and prosperity of a nation. The common law protection of the monogamous family reflected a Biblical understanding that family free enterprise protected by the law of private property was the only economic system sanctioned by God. Given this Biblical endorsement of private property ownership through the family, America’s founders included “the pursuit of happiness” or “property” along with life and liberty as one of the three major God-given rights to be “secured” by civil government.138 To secure a right granted by God does not mean that the civil ruler may define what that right is. A God-given right is defined by revelation in nature and in the Holy Scriptures; the duty of the civil ruler is to discover that right and to enact rules that facilitate its exercise and protect it from wrongful acts of others.139
Thus, James Kent denied to the civil ruler any authority to enact “sumptuary laws,” that is, rules dictating to property owners how they should use and dispose of that property. He also objected to any legislative enactment limiting “the extent of the acquisition of property.”140 Such laws, along with policies designed to redistribute the wealth, did not belong to the civil realm, but to “Providence.”141 In drawing this jurisdictional line, Kent endorsed another common law principle, the law that limited civil authority to, duties that are by nature and by Scripture enforceable by civil sanction. It was that law of jurisdiction, well-developed in the common law, that ultimately led to the constitutional protection of freedom of religion in America.
81. Stanley Nider Katz, Introduction to 1 William Blackstone, Commentaries on the Laws of England at vi (Facsimile ed., Univ. of Chicago Press 1979).
83. 2 William Blackstone, Commentaries *2.
84. Id. at *2-3 (quoting Genesis 1:28 (King James)).
85. Id. at *3.
86. 2 James Kent, Commentaries on American Law *317.
87. See, Will Durant, The Life of Greece 102 (1939).
88. Lucretius, On the Nature of Things, reprinted in Man and the Universe: The Philosophers of Science, at 27 (Sax Commins & Robert N. Linscott eds., Random House 1947).
89. Id. at 33.
90. Will Durant, Caesar and Christ 61 (1944); see also Lucretius, supra note 88, at 28-29.
91. Durant, supra note 90, at 256.
92. Id. at 236-42.
93. Kent, supra note 86, at *317-18.
94. Id. at *318.
95. Durant, supra note 90, at 38-39.
96. Durant, supra note 87, at 431-32.
97. Durant, supra note 90, at 251.
99. Kent, supra note 86, at *318.
101. Genesis 4:2-3.
102. Genesis 4:2-4.
103. Genesis 4:1.
104. 2 Blackstone, supra note 83, at *5-6.
105. John Locke, Second Treatise of Government 18 (C.B. Macpherson ed. 1980)(1690).
106. Id. at 24-25.
107. “The earth … and all things therein, are the general property of mankind, exclusive of other beings, from the immediate gift of the Creator.” 2 Blackstone, supra note 83, at *3.
108. Locke, supra note 105, at 18 (quoting Psalm 115:16).
109. 2 Blackstone, supra note 83, at *5-6; Locke, supra note 105, at *23-24.
110. 2 Blackstone, supra note 83, at *8; Locke, supra. note 105, at *27-30.
111. 2 Blackstone, supra note 83, at *3-15.
112. Locke, supra note 105, at *18.
113. Id. at *19.
116. Kent, supra note 86, at 319.
118. Id. at 328.
119. William Gesenius, A Hebrew and English Lexicon of the Old Testament 921-22 (Francis Brown, et al. ed. & Edward Robinson trans., 1907).
120. See generally, Genesis 1:26-28; 2:7-10, 15.
121. See generally, Genesis 4; 9:18-20; 13:1-6; 26:12-32; 31: 47:11, 27.
122. Genesis 47:11, 27.
123. Exodus 1:8-16.
124. Numbers 26:1-56; 27:1-11: 33:53-54; See, e.g., Joshua 15:1, 20.
125. Proverbs 19:14.
126. Luke 20:9-16.
127. Locke, supra note 105, at 98; Kent, supra note 86, at “‘326. St. George Tucker, Virginia lawyer and professor of law at The College of William and Mary, wrote in a footnote in his edition of Blackstone’s Commentaries that he disagreed with Blackstone’s view that family inheritance was a matter of societal convention. 3 William Blackstone, Commentaries 10 n* (Philadelphia, William Birch Young & Abraham Small, St. George Tucker ed. 1803).
128. Mark 7:10-13.
129. 1 Timothy 5:8.
130. 2 Corinthians 12:14.
131. See, Richard Hofstadter, Social Darwinism in American Thought 3-66 (rev. ed. 1959).
132. See, e.g., Upton Sinclair, The Goose Step 15-18, 486-40 (rev. ed. 1922).
133. Karl Marx, Communist Manifesto (1848), reprinted in The Portable Karl Marx, at 219, 223 (Eugene Kamenka trans., Viking Press 1983).
134. See Melvin Maddocks, Brave New Marriage, 230 Atlantic Monthly 66-69 (1972); see also Harry D. Krause, Family Law, Cases, Comments, and Questions 123-72 (3d ed. 1990).
135. See American Law Institute, Model Penal Code and Commentaries Part 2, Vol. 1 at 430 (1980).
136. Romans 1:26; 1 Timothy 2:15.
137. Romans 1:27-32.
138. Amos, supra note 18, at 128-29.
139. See 1 Blackstone, supra note 12, at *39-43.
140. Kent, supra note 86, at 328-29.
141. Id. at 330.