Sir William Blackstone

The famous English jurist Sir William Blackstone (1723-1780) is remembered for his Commentaries on the Laws of England, the first attempt since the 13th century to provide a comprehensive treatment of English law.

William Blackstone was born in Cheapside, London, on July 10, 1723, the posthumous son of Charles Blackstone, a merchant. He was educated at the Charterhouse School and at Oxford and entered the Middle Temple in London in 1740. He was elected a fellow of All Souls, Oxford, in 1744 and received the bachelor of civil law degree in 1745. Although he was admitted to the bar in 1746, he had limited success in practicing law and continued to hold several university posts and to lecture on English law. Shortly thereafter, Blackstone was appointed to the newly created Vinerian chair. In 1761 he was elected to Parliament and also received a patent of precedence giving him the rank of king's counsel. He resigned from his chair in 1766 due to his success at the bar that year, and in 1770 he was appointed a judge in the Court of Common Pleas, where he served, with no special distinction, until his death.

Commentaries on the Laws of England

Blackstone was the first since Henry de Bracton in the 13th century to present an encompassing treatment of English law. The Commentaries (1765-1769), which grew out of Blackstone's university lectures, is a very readable elementary text. Although its scheme of organization is borrowed from an earlier work by Sir Matthew Hale, Analysis of Law, it represents a radical departure from contemporary legal thought, which tended to treat the law as a catalog of unrelated writs and statutes. In Commentaries, Blackstone blended the intellectual traditions of the common law with those of 17th-and 18th-century English political philosophy.

Blackstone had only a vague grasp of systematic conceptions of law, and he was in fact frequently illogical, inconsistent, and uncritical. His purpose, however, was simply to provide literate men with entertaining and persuasive explanations of the existing legal order rather than to construct a critical and consistent jurisprudence. Commentaries performed a service for society and should be regarded more as a handbook for the layman than as a legal treatise.

In his treatment of law Blackstone argued a division between natural and positive (municipal) law by insisting on the existence of a natural law and maintaining that positive law which is not in accord with the principles of natural law is not law at all. But he held that there are few such principles and that most positive law concerns matters on which natural law is silent. Rights and wrongs are objects of law; rights are of persons or things, while wrongs are either public or private. Evidently, he regarded the law of gravitation, the law of England, and the law of nature as examples of the same principle, that is, the imposition of rules by a superior power on its subjects.

Blackstone's lack of precise terminology and use of loose phraseology result in contradictions. When he borrowed the scholastic definition of positive law, "a right or just ordinance commanding what is right and forbidding what is wrong," he deliberately struck out "right or just." Thus it is not clear whether he meant that whatever the law commands is right or that only laws that command what is morally right are really laws. He also reasserted the traditional equation of natural law with common law. Thus he did not directly face up to the problem of whether men only have those rights which the law gives them or whether law is simply the acknowledgment by the state of the natural rights inherent in each individual. According to Blackstone, Englishmen enjoyed only those rights which the common law proclaimed, but in fact Englishmen had created the common law to proclaim their rights.

Areas of Influence

Blackstone was active in the prison-reform movement, worked against the tendency to extend the list of capital offenses, and was critical of the poor laws. In some technical areas, such as contract laws, his thinking was in advance of that of most of his contemporaries.

He conceived his task as being educational reform rather than the building of a philosophic system. In the 18th century the Inns of Court had practically ceased to play their traditional role in legal education, and apprenticeship had largely replaced academic training. Blackstone gave the first regular university lectures on English law and sought not only to provide formal instruction for prospective lawyers but to present the basic elements of common law as an integral part of the academic education of English gentlemen.

In the United States, Blackstone's example contributed significantly to the development of law schools, and during the Revolutionary and postrevolutionary periods the Commentaries was the most widely read law text in America. After 1850 United States lawyers no longer tried to copy Blackstone, for living law was being shaped by the local institutions. By the middle of the 20th century few Americans had read Blackstone, even as a classic, but he remains a symbol for American lawyers.

Further Reading

There are two biographies of Blackstone: David A. Lockmiller, Sir William Blackstone (1938), and Lewis C. Warden, The Life of Blackstone (1938). The major critical treatments are A. V. Dicey, Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century (1905; 2d ed. 1914); Daniel J. Boorstin, The Mysterious Science of the Law: An Essay on Blackstone's Commentaries (1941); and "Blackstone on the British Constitution," in Ernest Barker, Essays on Government (1945; 2d ed. 1951). See also Theodore F. T. Plucknett, A Concise History of the Common Law (1929; 5th ed. 1956). □

BLACKSTONE, SIR WILLIAM

The groundwork for U.S. jurisprudence lies in a four-volume eighteenth-century publication by British legal commentator Sir William Blackstone. Blackstone's Commentaries on the Laws of England provided a systematic analysis of English common law. Published between 1765 and 1769, the treatise was an exhaustive compilation of Blackstone's Oxford University lectures on law. Commentaries was unprecedented in scope and purpose, and profoundly influenced the development of common law and legal education in England and the United States.

Born July 10, 1723, Blackstone was the son of Mary Blackstone and Charles Blackstone, of London. Blackstone's father, a silk merchant, died before Blackstone was born; his mother died while he was a young boy. Raised by an older brother and tutored by an uncle, Blackstone attended Charterhouse and Pembroke College, at Oxford University, where his education included a thorough exposure to mathematics and logic. Blackstone entered All Souls College, Oxford, in 1743, and became a fellow in 1744.

In preparation for a law practice, Blackstone received a civil law degree in 1745, and became a barrister in 1746. In 1750, he became a doctor of civil law. One year later, he was selected as an assessor (judge) of Chancellor's Court.

In 1755, after three years of a lusterless law practice, Blackstone decided to devote all of his time to teaching law at Oxford. His first book, published in 1757, was titled An Analysis of the Laws of England. In 1758, Blackstone was named Oxford's Vinerian Professor of english law, receiving the first chair of common law ever established at the university. Blackstone's lectures were well received, providing students with a comprehensive introduction to the laws of England.

The success of his lectures enhanced Blackstone's career. In 1761 he became a bencher (supervisor and lecturer) at Oxford's Middle Temple. The same year, he was elected to Parliament, where he served for seven years—although, according to most historians, he was not an especially ambitious or effective politician. Also in 1761, Blackstone married Sarah Clitherow, with whom he had nine children.

"It is better that ten guilty persons escape than one innocent suffer."
—Sir William Blackstone

In 1765, Blackstone published the first of his four volumes of Commentaries. The treatise discussed the cases, rules, and legal principles outlined in his popular Oxford lectures. Each volume concentrated on a particular area of law—personal rights, property rights, torts, or criminal law. As Blackstone analyzed the laws,

he also revealed their relationship to a higher power. Throughout his Commentaries, Blackstone wove the concept of "natural law,"or God's laws imposed on humankind.

Some critics maintain that Blackstone's view of British law was misleading because a logical, cohesive legal system simply did not exist at the time he was writing. Also, they argue that although Blackstone's writing style was graceful, he sometimes treated legal terms loosely. Yet even his harshest critics concede that Blackstone's effort to synthesize English law was indeed impressive, as was the effect of his treatise in his country and beyond.

Blackstone's Commentaries was particularly influential in the United States as the new nation sought to establish its own laws and legal system. Although Blackstone is no longer cited by practicing attorneys—his importance in the United States decreased dramatically during the twentieth century—he remains a revered figure in U.S. law. Over thirty editions of Commentaries have been printed in the United States and England.

In 1770, Blackstone became judge of the Court of common pleas and was knighted. He died on February 14, 1780, at age fifty-seven.

further readings

Carrese, Paul O. 2003. The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial Activism. Chicago: Univ. of Chicago Press.

cross-references

Blackstone's Commentaries.

Blackstone, Sir William (1723–80). Blackstone is acknowledged as one of the greatest writers on the common law. He was both a practising barrister and an academic—an unusual combination at the time—and in 1758 was appointed as the first Vinerian professor of law in the University of Oxford. It was not yet possible in the 18th cent. to study the common law in the universities of Oxford and Cambridge and his lectures in Oxford, designed to enlighten undergraduates, were a masterly survey of the subject. His Commentaries have been one of the most authoritative and revered sources of English law and have frequently been acknowledged as such in the courts (e.g. his description of the prerogative). Like a number of distinguished lawyers, he was not quite at home in the House of Commons, where he sat from 1761 until 1770, when he was appointed to the bench of Common Pleas.

Maureen Mulholland