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Blackstone, William

Blackstone, William

WORKS BY BLACKSTONE

WORKS ABOUT BLACKSTONE

William Blackstone’s Commentaries on the Laws of England (1765–1769) was the first attempt since Bracton’s, in the thirteenth century, to put the whole of the laws of England into one, albeit four-volume, book and in readable form.

Blackstone (1723–1780) was born after the death of his father, a London merchant. Family connections were able to gain him admission to the Charterhouse School, and after the death of his mother he was able to complete his education because of a special provision in the school’s charter for the orphans of gentlemen. In 1738 he entered Oxford, concentrating on the classics, and in 1740, under an arrangement not uncommon in his day, he enrolled in the Middle Temple while continuing his Oxford studies. His interests were wide, ranging from architecture to the works of Shakespeare. He was elected a fellow of All Souls in 1744 and took the bachelor of civil laws degree in 1745.

It is often said that Blackstone turned to academic work after failure to establish a successful law practice in London. It is more probable that the reverse is true. After his admission to the bar in 1746, he continued to maintain his close connections with the university, particularly through a series of administrative positions that included an intensive effort to reform the Clarendon Press. In 1752 he was the leading candidate for the professorship of civil laws and was passed over for purely political reasons. Part-time barristers were apparently unpopular in London, and his devotion to Oxford duties made it impossible for Blackstone to cultivate a practice successfully. Thus, when he began to offer a course of lectures on the laws of England at Oxford, he was following a natural academic bent that culminated in his appointment to the newly created Vinerian chair. The Commentaries was derived directly from his lectures.

In 1761, Blackstone returned to the practice of law and was elected to Parliament. In the 1760s his law practice flourished, and in 1766 he resigned his professorship to devote full time to it. Although he did serve as solicitor general to the queen for part of this period, he declined the chief justiceship of common pleas in Ireland and the solicitor generalship. In 1770 he was appointed a justice of the Court of Common Pleas, where, except for a brief period on King’s Bench, he served until his death.

In A. V. Dicey’s much-quoted phrase, the Commentaries “live by their style.” Dicey meant by style not only Blackstone’s flowing prose but his literary discretion, his ability to select and arrange material so as to seize the reader’s attention and carry it from point to point. The Commentaries is not advanced critical scholarship but an attractive and methodologically daring elementary text. Blackstone, to be sure, borrowed the outlines of his system from an earlier work by Sir Matthew Hale (1713), but his attempt to present the law in terms of substantive areas and in the light of underlying principles was a radical departure from the professional thought of his day. English lawyers tended to deal with the law as an armory of writs, statutes, and procedures, and the fledgling lawyer learned to thrust and parry with each of these without any particular concern for the legal system they were designed to implement.

Blackstone’s principal concern was to select the interesting and instructive. His eminently readable work therefore has the weaknesses of its strengths. It deliberately avoids difficult details and often emphasizes not what is most important but rather what is most colorful or most intriguing. Although in some areas it offers a perceptive picture of what is actually going on in the law, in others it follows the majority of texts and expounds what is formally or theoretically, rather than actually, true.

Blackstone belongs to the intellectual tradition of the common lawyers. Indeed, his aim in the Commentaries was to present the common law in the literary and philosophical garb acceptable to the educated man of the eighteenth century. The dominant tone of self-satisfaction in the Commentaries was undoubtedly due largely to a unique conjunction in that period of the vocabulary and modes of thought of the common law with a broader moral and intellectual outlook: Burkean conservatism and the common-sense school of philosophy shared an ideology with the professional successors of Sir Edward Coke. Little wonder that Blackstone, both a lawyer and a gentleman–scholar, should feel content when he found that the prejudices and rationales of each of his intellectual bailiwicks were confirmed by those of the other.

It is this basic contentment, primarily, that has made Blackstone the butt of much latter-day criticism. But he has been criticized, and even maligned, for other reasons as well. The Commentaries appeared near the end of a long period of judge-made law and just prior to a period of statutory reform. Blackstone therefore summed up a body of case law that was not otherwise readily available, and it became convenient to loose all the reformist barbs at the law as summed up in the Commentaries. Dicey, for instance, simply uses Blackstone as a symbol of the chaotic state of the common law immediately before the utilitarian crusade. It was rhetorically easier to condemn Blackstone for what, in fact, he was only describing than to cite a gaggle of incomplete law reports. It is probably because Blackstone was such a convenient target that Bentham’s first work was directed specifically against the Commentaries and that his attacks on Blackstone became increasingly vitriolic through the years. Bentham’s polemics have created the traditional image of Blackstone as a bumbling antiquarian, an image that tends to be uncritically absorbed along with Bentham’s more substantial contributions to jurisprudence.

Blackstone is, of course, frequently illogical and nearly always inconsistent and thus falls an easy victim to Bentham’s systematic attack. The illogic and the inconsistencies stem from Blackstone’s efforts to describe the law as it was and to give reasons for it that might be understandable, interesting, and convincing to the average reader. These reasons were designed not as units in a critical and coherent legal philosophy but as instructional devices for leading the reader to a grasp of commonlaw methods of thought. Blackstone was, moreover, largely unaware of and unconcerned with the numerous philosophic inconsistencies that pervaded the body of contemporary thought and his own work (Boorstin 1941, passim).

The principal target of the attack on Blackstone has been not his inconsistency but his excessive satisfaction with the state of things and his alleged role as conservative apologist. However, Blackstone was not a thoroughgoing conservative. As a member of Parliament and a barrister, he moved in Tory circles and owed his judgeship in part to Tory connections, but he never seems to have been a trusted party man. His political philosophy was Old Whig, and since the Old Whigs were trying to conserve a revolutionary settlement and a Lockean philosophy, their outlook necessarily consisted of a mixture of conservative and liberal ideas. The major theme in Blackstone’s work is the preservation of the rights and liberties of Englishmen. Giving broad limits to the royal prerogative while supporting parliamentary sovereignty (itself a neat trick), he also emphasized that a mixed constitution and separation of powers were in principle England’s grandest defense against oppression. He admitted that the possibility of oppression was not entirely precluded and conceded, albeit vaguely, a right of revolution.

Blackstone was a leader of the prison-reform movement, further evidence that his conservatism was qualified. He borrowed many of his ideas of punishment from Beccaria; characteristically, he was not as consistent in his dependence on Beccaria as was Bentham. While Parliament in his day was busily adding to the list of capital offenses, there was a strong countermovement in the courts, which Blackstone supported, to mitigate the harshness of the criminal law by various devices of pleading and statutory interpretation. Clearly, Blackstone did not always defend the existing law: he was critical of the poor laws, for example, and in his treatment of statutory devices and his search for a general theory of contract he was ahead of his time (Plucknett 1929, pp. 555–556 and 583 in the 1936 edition).

It is true that Blackstone was basically satisfied with the polity of England, but in the middle of the eighteenth century Great Britain was generally acknowledged to be the freest and most advanced nation of Europe. Moreover, Blackstone lived and wrote before the French Revolution had hardened British conservatism into complete resistance to change. Blackstone’s conservatism tends to be exaggerated by juxtaposition with the radicalism of his utilitarian attackers. The Commentaries is basically a defense of the existing legal order, and it often seems to avoid or ignore necessary criticisms, but the purpose of an elementary text has generally been to explain and rationalize rather than to attack the material it presents.

The extent to which Blackstone’s use of natural law is conservative has long been a subject for discussion. The traditional view was that the passages espousing natural law in the Introduction to the Commentaries were simply borrowings from—or, indeed, direct copying from—Pufendorf, Grotius, and especially Burlemarque and had no real connection with the main body of the work, which constantly contradicts natural-law tenets. However, it has recently been asserted that Blackstone’s natural-law references were more than decorative asides (Hart 1956, passim). Blackstone acknowledged a natural law to which no positive law can be contrary and remain law. However, he also stripped natural law of most of its content by holding that the commands of natural law are few and simple and that, consequently, most positive laws deal with questions on which the natural law is silent. Thus, Blackstone turned natural law from a revolutionary instrument into a conservative one by asserting that the bulk of positive law can never be invalidated by natural law because most human (or positive) law deals with matters to which the natural law is indifferent.

Although Blackstone did rely heavily on Continental natural-law writers, he did not copy directly from them, and indeed he modified their pronouncements rather markedly to make them more compatible with his own work (Lucas 1963; McKnight 1959). A strong Hobbesian, positivist strain runs throughout the Commentaries, but the work is no more consistently Hobbesian than it is consistently anything else. It is true Blackstone did not specifically follow Coke’s teaching that any offense against the common law is an offense malum in se (evil in itself) and thus did not specifically equate common law with moral law. It is also true that when he borrowed the scholastic definition of positive law as a right or just ordinance commanding what is right and forbidding what is wrong, he consciously struck out the “right” and “just” before “law.” In so doing he moved away from the natural-law notion that positive law is really law only insofar as it is “right,” that is, in accord with natural law, and moved toward the positivist position that human law itself defines what is right and wrong. Then again, Blackstone did occasionally lapse into natural-law language when describing the common law (1765–1769, vol. 3, p. 162); his view of pre-Norman England as a golden age of pure law embodying the wisdom of the ancestors was closely akin to natural law in that it suggested a body of higher law against which existing law must be tested, and his search for foreign analogies to English law suggested universal-law notions. He even went so far as to say that the “legislature, and of course the laws of England” (1765–1769, vol. 1, p. 127), was designed to protect Englishmen in “those absolute rights, which were vested in them by the immutable laws of nature … summed up in one general appellation, and denominated the natural liberty of mankind” (vol. 1, pp. 124–125).

Obviously, his semischolastic definition of positive law is a neat piece of fence straddling: if law is an ordinance commanding what is right and forbidding what is wrong, does this mean that whatever the law commands is by definition right —that there is no standard of right and wrong except the law itself? Or does it mean that the positive law adds social sanction to the dictates of morality? Blackstone, who adopted every contradictory concept of his day, naturally accepted the traditional equation of common law with natural law. The crucial question dividing positivists from believers in natural law, whether the law creates rights or defends pre-existing rights, was for Blackstone only a chicken-and-egg problem. For him an Englishman had only those rights acknowledged by law, but Englishmen have formed the law to acknowledge their rights. Because Blackstone resolutely refused to recognize that the positivist and natural-law positions on rights are mutually exclusive, he cannot finally be neatly labeled as belonging to one philosophical school or the other.

Blackstone saw himself not as a legal philosopher but as an educational reformer. In the eighteenth century the Inns of Court had ceased to be a quasi university and had largely ceased to give real legal instruction; most lawyers felt that law was best learned by apprenticeship and practice, not through academic instruction. Blackstone gave the first regular lectures on English law at Oxford and later held the first chair of English law there, although he was thwarted in his attempt to establish what would have been the first university-connected college of law in England. The Commentaries was designed not only to teach aspiring lawyers but also to present the principles of English law as part of the liberal education of English gentlemen—and incidentally to show that only gentlemen should practice law. Thus, the Commentaries contains a good deal of what purports to be history, comparative law, and political philosophy, much of it in fact more nearly anecdote, curiosity, and political fiction. Although the Commentaries is a precursor of the historical school of law, it is only with Sir Henry Maine, a century later, that real historical scholarship came to English law.

Blackstone undoubtedly raised the tone of English legal education, but it was a revival of the Inns themselves and not university training that largely accounts for improved legal training at the beginning of the nineteenth century. In the United States, however, the examples of Blackstone’s teaching at Oxford and of the didactic quality of the Commentaries contributed significantly to the early founding of academic law schools and to the weight of his disciples James Kent and Joseph Story in legal scholarship. And although in English courts Blackstone’s Commentaries has never had the authority of Bracton, Coke, and Hale, it was for many years the principal authority for English law in American courts. In revolutionary and post-revolutionary America the Commentaries was often the sole source of a lawyer’s scholarly training.

It is, in the end, impossible accurately to assess Blackstone’s influence on the development of either the law or legal education. He introduced so few original ideas that when we find putative traces of Blackstone we are never sure whether we are faced with the impact of the author of the Commentaries or with the influence of the common law itself, which might have evolved in the same way whether Blackstone had written or not. There is almost nothing in Anglo-American law that we can point to as uniquely Blackstonian. Blackstone is considered today, as he was in his own time, a teacher and elementary-text writer of great clarity rather than an influential legal philosopher.

Martin Shapiro

[For the historical context of Blackstone’s work, seeLegal systems, article oncommon law systems; Natural law; the biographies ofBeccaria; Burke; Coke; Grotius. For discussion of subsequent reactions to Blackstone’s ideas, see the biographies ofBenthamandDicey.]

WORKS BY BLACKSTONE

(1765–1769) 1922 Commentaries on the Laws of England. 4 books in 2 vols. Edited by William Draper Lewis. Philadelphia: Bisel. → Originally published in four volumes.

(1781) 1828 Reports of Cases Determined in the Several Courts of Westminster-Hall From 1746 to 1779. 2 vols. 2d ed., rev. & corrected. Edited by Charles H. Elsey. London: Sweet.

WORKS ABOUT BLACKSTONE

Barker, Ernest (1945) 1960 Blackstone on the British Constitution. Pages 120–153 in Ernest Barker, Essays on Government. 2d ed. Oxford: Clarendon. → Still the best introductory study.

Bentham, Jeremy (c. 1774–1775) 1928 A Comment on the Commentaries: A Criticism of Blackstone’s Commentaries on the Laws of England. Oxford: Clarendon.

Boorstin, Daniel J. 1941 The Mysterious Science of the Law: An Essay on Blackstone’s Commentaries. Cambridge, Mass.: Harvard Univ. Press. → The book struggles under an excessive weight of hypothesis, and in placing Blackstone firmly in the eighteenth century it fails also to place him firmly in the tradition of the common law.

Dicey, Albert V. (1905) 1962 Lectures on the Relation Between Law and Public Opinion in England During the Nineteenth Century. 2d ed. London and New York: Macmillan. → A paperback edition was published in 1962 by Macmillan.

Dicey, Albert V. 1930 Blackstone’s Commentaries. Cambridge Law Journal 4:286–307.

Hale, Matthew (1713) 1716 The History of the Common Law, With an Analysis of the Civil Part of the Law. 2d ed. London: Walthoe.

Hanbury, Harold G. 1958 The Vinerian Chair and Legal Education. Oxford: Blackwell. → Devotes three excessively apologetic chapters to Blackstone.

Hanbury, Harold G. 1959 Blackstone as a Judge. American Journal of Legal History 3:1–27. → An excessively apologetic article.

Hart, H. L. A. 1956 Blackstone’s Use of the Law of Nature. Butterworth’s South African Law Review 3: 169–174.

Holdsworth, William S. 1938–1952 A History of English Law. Vols. 11–13. London: Methuen. → Devotes long passages to Blackstone, but Holdsworth was an Old Whig himself and he brought almost no perspective to his material.

Lockmiller, David A. 1938 Sir William Blackstone. Chapel Hill: Univ. of North Carolina Press.

Lucas, Paul 1962 Blackstone and the Reform of the Legal Profession. English Historical Review 77:456–489.

Lucas, Paul 1963 Ex Parte Sir William Blackstone, “Plagiarist”: A Note on Blackstone and the Natural Law. American Journal of Legal History 7:142–158.

McKnight, Joseph 1959 Blackstone, Quasi-jurisprudent. Southwestern Law Journal 13:399–411.

Plucknett, Theodore F. T. (1929) 1956 A Concise History of the Common Law. 5th ed., enl. & entirely rewritten. London: Butterworth.

Warden, Lewis C. 1938 The Life of Blackstone. Charlottesville, Va.: Michie.

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