Blackstone and His Critics

Anthony Page, Wilfrid Prest, Anthony Page, Wilfrid Prest

• Publisher: Hart Publishing
• Year: 2018
• ISBN:
  9781509910465
• Edition: 1
• Topic: Law
• Subtopic: Legal History
• Index: Law

William Blackstone's Commentaries on the Laws of England (1765-69) is perhaps the most elegant and influential legal text in the history of the common law. By one estimate, Blackstone has been cited well over 10, 000 times in American judicial opinions alone. Prominent in recent reassessment of Blackstone and his works, Wilfrid Prest also convened the Adelaide symposia which have now generated two collections of essays: Blackstone and his Commentaries: Biography, Law, History (2009), and Re-Interpreting Blackstone's Commentaries: A Seminal Text in National and International Contexts (2014). This third collection focuses on Blackstone's critics and detractors. Leading scholars examine the initial reception of the Commentaries in the context of debates over law, religion and politics in eighteenth-century Britain and Ireland. Having shown Blackstone's volumes to be a contested work of the Enlightenment, the remaining chapters assess critical responses to Blackstone on family law, the status of women and legal education in Britain and America. While Blackstone and his Commentaries have been widely lauded and memorialised in marble, this volume highlights the extent to which they have also attracted censure, controversy and disparagement.

1

Rationalising the Common Law: Blackstone and His Predecessors

MICHAEL LOBBAN

Sir William Blackstone’s Commentaries have long been recognised as a landmark in English legal thought. Blackstone was the first man to put English law, hitherto learned in the courtroom or chambers, into the university classroom, where its broad principles could be taught to future legislators and magistrates. As Edmund Burke explained, Blackstone’s work was not that of the ‘mere jurisconsult’, for he united ‘the historian and politician with the lawyer’, tracing the first establishment of the laws, developing the principles on which they were grounded, examining their propriety and efficacy, and recommending reforms.¹ Even his fiercest critic, Jeremy Bentham, wrote that he had taught law to speak ‘the language of the Scholar and the Gentleman’.² Besides providing an elegant overview of the law for the edification of England’s future rulers, it was also a work which was seen to be of use to law students beyond Oxford.³ As Thomas Ruggles put it, it was ‘the first and best book to be put into the hands of the Student’ of the law.⁴ Besides facilitating the study of law, Blackstone’s work has also been seen to have had a significant impact on the law itself, as other writers began to compose treatises in particular areas of law organised around clear substantive principles, and with little reference to the technical forms of procedure through which they were enforced.⁵

Alongside lavish praise, Blackstone’s work also attracted severe criticism. His brief jurisprudential discussion in the introductory chapters elicited Bentham’s anonymously published attack in the Fragment on Government (1776), as well as prompting Bentham to develop his own legal theory in a lifetime’s dialectic.⁶ His constitutional writings also provoked much criticism, particularly among American jurists who contested his views about parliamentary sovereignty.⁷ English writers, such as Joseph Priestley, were equally offended by Blackstone’s views on the constitutional position of the Anglican establishment, and responded in print.⁸ Although his outline of the doctrines of English private law in Books II and III dealt with material which offered far less room for controversy, lawyers were not slow to point out the limitations in Blackstone’s treatment. According to one critic, ‘it may instruct a country gentleman, but lawyers receive no benefit from it’.⁹ Even law students were apt to complain. Resuming his law studies in 1811, Henry Crabb Robinson observed that the Commentaries was ‘a book of no practical importance, and hardly of a kind to be considered as a study’. Much of its content, he complained, was ‘inapplicable to real business’.¹⁰

As shall be seen, Blackstone’s great work certainly merited the praise it received. His great achievement was to put a mass of disparate material into a coherent order, explaining complex areas of English law clearly and carefully, in a way which had never been done before. At the same time, there was much to criticise. The originality of Blackstone’s work lay in its form, rather than in its content. He was not an original or sophisticated theorist: rather than working out a coherent theory of law of his own, he borrowed from a variety of disparate theorists in order to make a particular argument about the nature of the English constitution. He did not develop a theory to explain the content of English law. Nor was he an original thinker when it came to doctrine, but was at his strongest when putting together material which had already been digested and rationalised by earlier writers (as in the law of real property). In those areas of the law where the English literature was sparse, and required the insights of a theorist to put it in order, Blackstone’s formulations were often less robust. In many areas of law which were essential for both the lawyer and the gentleman to know—such as the law relating to commercial property or trusts—the Commentaries offered little guidance. It would be left to other authors (such as Sir William Jones) to seek to emulate his efforts to put the law into a coherent and elegant structure, but they could not use Blackstone’s work as a starting point for their own.

I.English Legal Literature before Blackstone

Legal literature in the era before the Commentaries is often characterised as being dominated by practitioners’ books, based on the forms of action and remedies offered by courts,¹¹ and by abridgments of cases, which appeared to be printed models of the kind of commonplace books students were expected to make for themselves, structured around alphabetical headings. Books aimed at the student or practitioner often did not take the form of narrative treatises, but were rather repositories of practical information and example. Nevertheless, they were not entirely devoid of useful definitions. For example, Robert Gardiner’s 1701 Enchiridion Clericale, which was designed to guide clerks in drawing up contracts, offered a brief general definition of contracts at the outset before providing the reader with practical guidance and simple model forms.¹² John Lilly’s two part Practical Conveyancer explained the rules for drawing and interpreting deeds in one volume—with topics covered in alphabetical order—and gave a collection of examples of conveyances in the second.¹³ Moreover, not all treatises took this form. One of the most influential, William Sheppard’s Touchstone of Common Assurances, first published in 1648, discussed the law relating to conveyances in a narrative treatise, which dealt first with conveyances by matter of record (that is, by fines and common recoveries) before turning to deeds (covering such topics as the exposition or interpretation of deeds, and the nature of conditions and covenants). Sheppard did not simply list or digest cases, but set out general rules, such as those ‘universally observed’ in the construction of deeds.¹⁴ The continuing relevance of Sheppard’s work was seen from the fact that a sixth edition was produced by Edward Hilliard in 1791.

Sheppard’s work was designed primarily for a legal readership, but there were also other general works which aimed at a wider public.¹⁵ One of these was The Tenant’s Law (first published in 1666) which proclaimed itself to be a work ‘very useful for tenants and farmers of all kinds’. This work set out the nature of different kinds of tenures, including fee simple and fee tail, tenancies for life, dower and curtesy. It discussed leases, covenants and conditions, all in straightforward non-technical language. The book was clearly popular: by the time it reached its seventeenth edition in 1777, the original 181 pages of text had grown to 448 pages. The discussion also got more sophisticated over the years. For instance, in the earlier editions, the discussions on waste simply set out examples of tenants committing waste. By contrast, the 1760 edition began its chapter on waste, for the first time, with a more general definition: ‘Waste (Vastum à Vastando, to waste) is a Spoil or Destruction in Houses, Gardens or Orchards, Dove-houses, Parks, Warrens, Fish-ponds, Trees, Woods, Lands, &c. to the Prejudice of the Heir, or of him in Remainder or Reversion’. The editor then proceeded to explain that there are two kinds of waste, ordinary and permissive (by which he meant waste by action or inaction).¹⁶ This formulation is strikingly similar to that used by Blackstone, in his brief discussion of waste in Book II, which was not published until 1766 (though it can be found in the 1761 manuscript copy of his lectures).¹⁷ Both texts drew on (and developed) Coke’s formulation in his commentary on Littleton. Whether either author was influenced by the other in this case is not clear; but for our purposes, it suffices to note that before the publication of the Commentaries, writers were already seeking to put law into a readable, rational form, aimed at a general audience, and were sharpening the formulation of their material. Blackstone was not working in an intellectual void.

For those who wanted general knowledge about the law, three kinds of literature were available. The simplest, and most accessible for the general reader, was the law dictionary, such as Thomas Blount’s Nomolexicon, first published in 1670 (3rd edition 1717), Giles Jacob’s 1729 New Law Dictionary (aimed at ‘Barristers, Students, and Practisers of the Law, Members of Parliament, and other Gentlemen, Justice of Peace, Clergymen &c.’)¹⁸ or Timothy Cunningham’s A New and Complete Law-Dictionary of 1764–5. These works sought to give clear definitions of legal terms and concepts, but did not provide an overview of the law. Such overviews were provided by some works dating from the seventeenth century, including Sir Henry Finch’s Law, Or A Discourse Thereof (first published in English in 1627 and republished in 1759), and Sir Matthew Hale’s posthumously published Analysis of the Law (1713), which aimed to put the common law ‘into a narrower compass and method, at least for ordinary study’.¹⁹ Eighteenth-century writers before Blackstone sought to produce similar works. They included Thomas Wood, who published an Institute of the Laws of England in 1720,²⁰ which followed the kind of institutional method suggested by Hale.²¹ However, such works did not descend into detail: those who wanted comprehensive detailed doctrinal information resorted to general abridgments. This form of literature had a long pedigree dating back to the sixteenth century single-volume abridgements of Year Book cases by Robert Brooke and Anthony Fitzherbert, and the influential two-volume seventeenth century Abridgment of Henry Rolle.²² Though efforts continued to be made to produce manageable abridgments, the abridgment form suffered from the fact that the volume of material to digest was so extensive that they took long to produce, and generated unwieldy volumes.²³ The third volume of Knightley D’Anvers’s project to update Rolle—which only reached as far as the letter ‘E’—appeared in 1737, a full thirty-two years after the first volume. Charles Viner’s twenty-two volume privately-printed behemoth—which was to generate the wealth to fund Blackstone’s chair—was perhaps the apogee of this trend to produce ever more detailed abridgments.

By 1751, when Viner’s complete opus was available, a new hybrid form of abridgment had appeared, testament to a new appetite for more principled works. Between 1736 and 1740, the first three volumes (of five) of Matthew Bacon’s New Abridgment of the Law were published. This work was significantly different from earlier abridgments. Although structured around alphabetical headings, its entries were much more in the style of organised treatises, starting with general definitions and parcelling out the material in more logical subheadings, which themselves began with general propositions. Charles Viner, who saw the new work as a spoiler designed to put booksellers off his work, claimed that Bacon’s work was not really an abridgement at all, but was only branded as such to make it sell. It was in fact, he said, ‘an Ingenious System or Treatise of Law’.²⁴ Much of Bacon’s Abridgment was not his own work, but derived from manuscripts left unpublished by Sir Jeffrey Gilbert at the time of his death in 1726. Gilbert had intended them to form part of a comprehensive general treatise of English law, of the kind sketched out by Hale; and one which would be aimed at lawyers seeking detailed information, rather than university students seeking a general introduction. However, the grand project remained unfinished, and many of the component parts were published separately.²⁵ Gilbert had left strict instructions that none of his work be published; but in an era when legal education at the Inns had collapsed, and the law booksellers were looking for new texts to satisfy the growing demand for printed texts, Gilbert’s executor proved powerless to stem the flow of pirated editions of his work. Nor was Gilbert the only writer looking for principle. Another example can be seen in Sir Martin Wright’s Introduction to the Law of Tenures, published in 1729, which sought to explain the ‘main Principles, Qualities, and Rules of TENURE’ by tracing their feudal origins.²⁶ A third writer looking to arrange according to principle was John Comyns, whose Digest of the Laws of England, written in Law French, was translated and published by his son in 1762, more than twenty years after his father’s death. The entries in this work sought to begin with a principle of law, illustrated by examples which were then elaborated further: ‘By this Means, each Head or Title exhibits a progressive Argument upon the Subject, and one Paragraph … follows another in a natural and successive Order, ‘til the Subject is exhausted’.²⁷

When Blackstone commenced work on the Commentaries, he was therefore entering into a field in which there was already a considerable body of literature, both detailed and general, and in which there was a growing appetite for works which would be more p...

Table of contents

• Cover
• Title Page
• Contents
• Contributors
• Introduction—Anthony Page and Wilfrid Prest
• 1. Rationalising the Common Law: Blackstone and His Predecessors
• 2. The ‘Least Repulsive’ Work on a ‘Repulsive Subject’: Jeremy Bentham on William Blackstone’s Commentaries on the Laws of England
• 3. Blackstone, Expositor and Censor of Law Both Made and Found
• 4. William Blackstone, Edward Gibbon and Thomas Winchester: The Case for an Oxford Enlightenment
• 5. Rational Dissent and Blackstone’s Commentaries
• 6. Blackstone, Parliamentary Sovereignty and his Irish Critics
• 7. Blackstone, Family Law and the Exclusion of the Half Blood in Inheritance
• 8. Blackstone and Women
• 9. Professing Law in the Shadow of the Commentaries
• 10. Hammond’s Blackstone and the Historical School of American Jurisprudence
• 11. ‘A Very Narrowing Effect Upon Our Profession’: A Progressive Jurist Confronts Blackstone
• 12. Blackstone’s Posthumous Reputation
• Acknowledgements
• Index
• Copyright Page