Blackstone, William

Born in 1723, the third but posthumous son of a financially troubled silk-draper and a mother who died before he reached adolescence, the orphaned William Blackstone attended London's prestigious Charterhouse School as a scholarship boy. An academic prodigy, he entered Oxford University at the age of fifteen and won a prized All Souls College fellowship in 1743, after changing his undergraduate studies from Arts to Law. As Oxford then taught only Roman (or civil) law, Blackstone was called to the bar at the Middle Temple ( one of London's four inns of court ) in 1746. After failing to establish a legal practice in London, he offered a private lecture course on English common law to Oxford's undergraduates.

With the success of this truly pioneering venture, Blackstone was appointed to inaugurate the university's recently endowed Vinerian Chair in English Law. After returning to the London bar, he married and gained a seat in Parliament, thanks to the patronage of an aristocratic former student and possibly King George III himself. His reworked Oxford lectures were published in four volumes between 1765 and 1769 as Commentaries on the Laws of England. The acclaim they won on both sides of the Atlantic facilitated his knighthood and promotion to the judiciary in 1770. A conscientious, hardworking, and respected judge, Sir William Blackstone also encountered attacks on his book, not least from his former student Jeremy Bentham ( 1748–1832 ), the English philosopher of utilitarianism. But when their author died in 1780, the Commentaries had already appeared in eight English, four Irish, and the first of many American editions.

The enduring impact of Blackstone's magnum opus—which was an instant classic and has never subsequently gone out of print—reflects its unique style and substance. Providing an authoritative, comprehensive, and engagingly written overview of English law and governance on the eve of the American Revolution, the Com-mentaries were primarily aimed at general readers and beginning law students rather than practicing lawyers. Despite asserting an overall congruence with the law of nature and divine ordinance, England's legal and political institutions are explained and justified largely in terms of the lived experience of the English people over many centuries. Although Blackstone does offer some occasional criticisms (for example, of electoral corruption, obsolete legal procedure, and excessive reliance on the death penalty), his overall approach is affirmative and often eulogistic. Furthermore, whereas the views on the constitution of the earlier jurist Sir Edward Coke must be inferred from scattered pronouncements in parliamentary debates, his own Reports, and other legal writings, Blackstone's constitutional ideas are set down in a single methodical, coherent, and wide-ranging treatise.

THE ENGLISH CONSTITUTION ACCORDING TO BLACKSTONE

The first book of the Commentaries expounds the nature and origins of law in general and of the laws of England in particular. This introduces an extensive account of England's largely unwritten “constitution, or frame of government” (i.122), by which Blackstone meant not a framing or founding document but simply the country's main legal and political institutions. The essential function of human laws and political institutions is said to be that of protecting the rights or “liberties” of those who live under them, “leaving the subject entire master of his own conduct, except in those points wherein the public good requires some direction or restraint” (i.122). In eighteenth-century England, Blackstone maintained, this goal had been better achieved than anywhere else, thanks to a “spirit of liberty … deeply implanted in our constitution, and rooted even in our very soil,” as also to the limited influence of Roman law, which had given Continental rulers “arbitrary and despotic power” (i.123).

Yet following the political philosophy of Thomas Hobbes ( 1588–1679 ), in this respect at least, Blackstone further claimed that in all states there must be one sovereign or supreme law-making authority. For England that sovereign consisted of the King-in-Parliament, a compound body combining the best qualities of the three distinct forms of government recognized by classical writers (monarchy, aristocracy, and democracy). Reflecting the influence of Newtonian physics, together with the emphasis placed by the French political philosopher Montesquieu on the separation of powers and the traditional concept of “mixed monarchy,” Blackstone depicts the Crown, the House of Lords, and the House of Commons as operating “like three distinct powers in mechanics” (i.151). They thus checked and balanced each other on a common mission to protect the rights “of every Englishman” (i.123)—the apparent gender-specific term reflecting near-universal contemporary assumptions.

These rights, absolute natural rights, once enjoyed by all humankind but now preserved only in England, are also said to be three in number: personal security (of life, limbs, health, and reputation); personal liberty (freedom of movement “without imprisonment or restraint, unless by due course of law” [i.130]); and private property, similarly protected. Those three are secured by five “auxiliary subordinate rights” unique to England. These comprise the constitution and powers of Parliament; a bounded and defined royal prerogative; the subject's legal recourse for redress of injuries; the right of petitioning both King and Parliament; and finally the right to bear arms “for their defense, suitable to their condition and degree, and such as are allowed by law …” ( i.136–39 ).

Having expounded these abstract propositions, Blackstone provides a detailed account of the main institutions of “our excellent constitution” (i.12), notably Parliament and the monarchy. His detailed if somewhat formalistic portrait of Parliament's composition, procedures, and unbounded powers (“absolute, and without control” [i.157]) ignored the recently emerged realities of parties, cabinet government, and loyal opposition. Considerably more space is devoted to the monarch as executive organ of government, including a long chapter on the intricacies of public finance and another on the various branches of the royal prerogative, among them the distribution of justice (which, however, originates from “society at large” [i.257], not the Crown). Blackstone emphasizes the importance of maintaining judicial independence from both the executive and legislative powers, even if his warning against “uniting the provinces of a judge and a minister of state” (i.260) ran counter to persistent blurring of these roles in his time and later by successive lord chancellors and chief justices. But whereas in the previous century Sir Edward Coke had conceived of the common law and its judges as constitutional arbiters




William Blackstone (1723–1780), English jurist whose writings influenced the American Founders.





William Blackstone (1723–1780), English jurist whose writings influenced the American Founders.
© LIBRARY OF CONGRESS PRINTS AND PHOTOGRAPHS DIVISION (LC-USZ6243798)

between monarch and Parliament, empowered to review and overrule “unreasonable” statutes, Blackstone bluntly dismissed such notions as “subversive of all government” (i.91).

BLACKSTONE IN AMERICA

Although the Commentaries continued to be read by law students in England, Ireland, and the British Empire well into the twentieth century, Blackstone's influence in the United States has been still more profound and prolonged. Defending the concept of absolute natural rights as enjoyed by all Britons, including colonists, the colonial Massachusetts lawyer James Otis ( 1725–1783 from 1801 to 1835 ). Dennis R. Nolan ( 1976 ) indicates six of the subscribers to Bell's first edition were delegates to the 1787 Constitutional Convention. Blackstone was the second-most cited secular author (after Montesquieu) in American constitutional and political debates of the founding era ( 1760–1805 ) ( Lutz 1984 ). Addressing delegates to the 1787–1788 Virginia convention on ratification of the federal Constitution, James Madison referred to “a book which is in every man's hand—Blackstone's Commentaries” ( Dippel 2014, 201 ). That Blackstone is frequently both cited by name and quoted verbatim in these and similar debates points to the widespread use of the Commentaries in the early Republic.

Yet their author was no republican. In 1766 he had opposed repeal of the Stamp Act in the House of Commons, firmly rejecting the colonists' claims that they were illegally taxed by a legislature in which they were unrepresented. Later that same year a second edition of the Commentaries reinforced this position by stressing the subordination of all colonies to the metropolitan legislature. American readers also objected to an amendment stating that they had inherited not the whole body of English law but only such elements as were appropriate to their colonial status. More fundamental concerns were voiced by the future Supreme Court justice James Wilson ( 1742–1798 ), who challenged Blackstone's lack of reference to the sovereign people and their consent as the necessary basis of government. In Federalist No. 53 James Madison expressed similar reservations, highlighting the crucial distinction between “a Constitution established by the people and unalterable by government, and a law established by the government and alterable by the government” —the former being unique to America. For “even in Great Britain, where the principles of civil and political liberty have been most discussed … it is maintained that the authority of the Parliament is transcendent, and uncontrollable….” Whereas Thomas Jefferson had once urged law clerks and students to read Blackstone, in later years he lamented the antidemocratic “toryism” with which (as he claimed) Blackstone had infected the legal profession.

But notwithstanding Blackstone's own political sympathies, and his failure to endorse the doctrine of popular sovereignty, the virtues of the Commentaries as an accessible, systematic, intellectually coherent, and more or less comprehensive overview of English private and public law remained. Wilson, as inaugural Professor of Law at the College of Philadelphia, noted that, though Blackstone was no “zealous friend of republicanism,” his work “possesses uncommon merit” ( Waterman 1933, 650 ). It was indeed by facilitating the study and practice of the common law that the Commentaries achieved their greatest and most enduring American success.

Blackstone had plausibly presented the common law as a branch of the law of nature—hence of universal validity, no less in the United States than in its country of origin. And because the Commentaries provided a relatively compact outline of legal doctrine, they could serve practicing attorneys as an elementary work of reference, readily packed in the saddlebag, besides introducing would-be practitioners to the rudiments of their trade, whether in law offices, private law schools, or academic colleges. In 1803 the Republican lawyer St. George Tucker ( 1752–1827 ) initiated a long stream of Americanized and updated editions in his five volumes of Blackstone's Commentaries with notes of reference, to the Constitution and Laws, of the Federal Government of the United State; and of the Commonwealth of Virginia. Throughout the nineteenth century all American lawyers continued to be exposed to Blackstone in one form or another; indeed tangible traces of his influence within that uniquely powerful professional culture persist even to the present.

SEE ALSO British Constitution ; Coke, Edward ; Common Law ; Constitutional Government ; Constitutionalism ; Limited Government ; Mixed Regime ; Parliament ; Rule of Law ; Sovereignty .

BIBLIOGRAPHY

Allen, Jessie. “Reading Blackstone in the Twenty-First Century and the Twenty-First Century through Blackstone.” In Re-interpreting Blackstone's Commentaries: A Seminal Text in National and International Contexts, edited by Wilfrid Prest. Oxford, UK, and Portland, OR: Hart Publishing, 2014.

Alschuler, Albert W. “Rediscovering Blackstone.” University of Pennsylvania Law Review 1, no. 45 (1996): 1–55.

Blackstone, William. Commentaries on the Laws of England. 4 vols. Oxford: Clarendon Press, 1765–1769. Variorum ed., Oxford Edition of Blackstone series, general editor Wilfrid Prest, volume editors Tom Gallanis, David Lemmings, Ruth Paley, and Simon Stern. Oxford: Oxford University Press, 2015.

Blackstone, William. An Analysis of the Laws of England. Oxford, UK: Clarendon Press, 1756.

Dippel, Horst. “Blackstone's Commentaries and the Origins of Modern Constitutionalism.” In Re-interpreting Blackstone's Commentaries: A Seminal Text in National and International Contexts, edited by Wilfrid Prest. Oxford, UK, and Portland, OR: Hart Publishing, 2014.

Hoeflich, Michael. “American Blackstones.” In Blackstone and His Commentaries: Biography, Law, History, edited by Wilfrid Prest. Oxford, UK, and Portland, OR: Hart Publishing, 2009, 2014.

Krafter, Craig. “The Americanization of Blackstone's Commentaries.” In Essays on English Law and the American Experience, edited by Elisabeth A. Cawthon and David E. Narrett. College Station: Texas A&M University Press, 1994.

Lieberman, David. The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain. Cambridge, UK, and New York: Cambridge University Press, 1989.

Lutz, Donald S. “The Relative Influence of European Writers on

Late Eighteenth-Century American Political Thought.” American Political Science Review 78, no. 1 (1984): 189–97.

Nolan, Dennis R. “Sir William Blackstone and the New American Republic: A Study of Intellectual Impact.” New York University Law Review 51 (1976): 731–68.

Prest, Wilfrid. William Blackstone: Law and Letters in the Eighteenth Century. Oxford and New York: Oxford University Press, 2012.

Stourzh, Gerald. “William Blackstone: Teacher of Revolution.” Jahrbuch für Amerikastudien 15 (1970): 184–200.

Waterman, Julian S. “Thomas Jefferson and Blackstone's Commentaries.Illinois Law Review 27 (1933): 629–59.

Wilfrid Prest
University of Adelaide