INTRODUCTION. Section the Fourth. Of the COUNTRIES subject to the LAWS of ENGLAND.
In this section, Blackstone traces the jurisdiction of English law. A complicated map emerges on which the application of common law and legislation diverges and depends on the relationship between the state of England and the territory or state in question. So, for instance, Blackstone observes that Scotland is part of one United Kingdom with England but maintains a different system of common law, while Ireland, a separate, though “dependent,” country is governed by English common law. Meanwhile, acts of English parliament automatically apply to Scotland, but only to Ireland if the legislation specifically says so.
As for England’s “American Plantations,” like Ireland, they are subject to the will of parliament but not governed by English common law. Blackstone explains that if the American territories had been uninhabited and “discovered and planted by English subjects” English common law would automatically apply. But the colonies were established either by treaties or, as Blackstone darkly remarks, by “right of conquest and driving out the natives (with what natural justice I shall not at present enquire).” So, instead,”the antient laws of the country remain,” unless and until the king decides specifically to change those laws. It is striking that Blackstone places the American lands on the side of the conquered/uninhabited line that grants humanity — and even a legal system — to Native Americans, and more surprising still that he does not apply the exception for laws of conquered countries that “are against the law of God, as in the case of an infidel country” to smuggle in English common law. I actually had to read this page several times to be sure I was getting the bottom line right; it was so contrary to my expectations — the old, dumb assumption of ‘old-fashioned’ racism that reflects an equally false myth of progress.
Apart from this glimpse into Blackstone’s critical view of the American conquest, this whole section at first seemed oddly, and rather boringly, disconnected from the main theoretical project of the Commentaries — sort of like the ‘begats’ in the bible. Who cares that in the 18th century the islands of Jersey and Guernsey were governed by the ducal customs of Normandy? How is that going to help me think interesting thoughts about law today? But then I took another look and I decided I was wrong: this section is where Blackstone’s jurisprudential rubber really hits the road.
Because you cannot really think about the nature of law without thinking about the at once irrational and apparently necessary connection between law and space. As Paul Kahn says, it’s all about borders: “Morality may be without borders, but law’s rule always begins only with the imagination of jurisdiction.” The Cultural Study of Law (U. Chicago Press, 1999) at 55. At least the kind of state based, and state defining, law Blackstone talks about here. So much for the dream of a single, unbounded rule of law, based on humankind’s ‘sovereign’ reason. With every national/legal boundary Blackstone draws, he draws himself away from the whole natural law concept that he ostensibly (though ambivalently) championed in the second section.
As it turns out, this section is the first one to trouble my usual view of the law. Most of the time, after all, we assume — or act as though we assume — a kind of natural one-way connection between law and geography. I think, “I’m in New York, so New York law applies.” I don’t think, “New York is where the law of New York applies” — and of course, that isn’t always or entirely true, because sometimes in New York other law — most often federal U.S. law — applies and sometime New York law applies outside New York, just like English law reached across the ocean in Blackstone. But Blackstone’s intricate map of the 18th century reach of English common law brings out the sheer oddity of those boundaries. You see the way the map gives the law its meaning and, in a certain way, makes it nonsense — even as the legal boundaries make the map.
Most important, staring at Blackstone’s scheme, you can’t see jurisdictional boundaries as natural or absolute. They are a matter of power and imagination. So much imagination is involved that the same space may be divided legally more than one way: “The territory of England is liable to two divisions; the one ecclesiastical, the other civil.” Jurisdictional lines might sometimes follow natural features, but fundamentally they trace the limits of control of the creatures who inhabit and govern those spaces. Just as “A parish is that circuit of ground in which the fowls under the care of one parson or vicar do inhabit,” so New York is where the people who get stopped by New York state troopers for speeding do drive.
Jurisdictional lines constitute and reflect history, too. The tangled jurisdiction of federal, state, and Native law on American Indian reservations both creates and obscures the fate of the original subjects of those “antient laws” that, according to Blackstone, withstood the English conquest and its lack of “natural justice.” Just this week I got an email asking for donations of toys to “help Santa find” the children on the Rosebud Sioux Reservation. As Blackstone could have predicted, those children inhabit a legally troubled space that is often passed over when gifts are being distributed.