Property, commerce, and the common law

In eighteenth–century commentary on the nature and condition of law in England, the topics of “property” and “commerce” figured conspicuously. The first term was especially prominent, given the established understanding of the distinctive moral excellence of the English legal system. As Sir William Blackstone enthusiastically explained at mid-century, “The idea and practice of … political or civil liberty flourish in their highest vigour in these kingdoms, where it falls little short of perfection.” This political or civil liberty, itself, comprised “no other than natural liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the public.” The core of natural liberty was constituted by the “absolute rights of man” which represented “one of the gifts of God to man at his creation, when he endued him with the faculty of free will.” In England such divine benefactions had been preserved in the weighty body of legal provisions that secured to each individual “the right of personal security, the right of personal liberty, and the right of private property.” ¹ Thus, if it was found, for example, that the English legal system was more complex and more intricate than others, and seemed almost embarrassed by a singular “multiplicity of law,” this was due to the law’s proper concern to provide a full and particular remedy to every injury that might harm the subject’s liberty and property. ² And if such complexity and multiplicity, in turn, led to a no less intricate and time-consuming process of legal redress, this too was “the genuine offspring of that spirit of equal liberty which is the singular felicity of Englishmen.” Quick judicial deliberations, as Montesquieu demonstrated, characterized the legal systems of despotic states, whereas “in free states, the trouble, expense and delays of judicial proceedings are the price that every subject pays for his liberty.” And “from these principles” it naturally followed that justice in England ought to be slower than anywhere else, since the courts “set a greater value on life, on liberty, and on property.” ³