Blackstone has now been dead more than a century, but neither lawyers
nor laymen have yet made up their minds whether he was an intellectual
giant, or only a second-rate man of letters, with a little learning
and a pretty style, who acquired popularity because he flattered the
English constitution. His friends have pitched high their eulogy.
Sir William Jones, speaking to the freeholders of Middlesex, who had
little reason to love Blackstone, called him the pride of England,
and in a grave legal treatise referred to the _Commentaries_ as the
most correct and beautiful outline that ever was exhibited of any
human science. Hargrave, fresh from annotating Coke upon Littleton,
described him as an almost second Hale, and that as it were in the very
presence of Hale, in a volume of tracts half filled with Hale’s legal
lore. “To me,” said Mr. Justice Coleridge, the nephew of the poet, and
one of Blackstone’s many editors, “the _Commentaries_ appear in the
light of a national property, which all should be anxious to improve
to the uttermost, and which no one of proper feeling will meddle with
inconsiderately.” And a distinguished German jurist, exaggerating
only a little, has said that Englishmen regard the _Commentaries_ as
“_ein juristisches Evangelium_.” The history of the work is in itself
remarkable. If we except the Institutes of Justinian, and the _De
Jure Belli ac Pacis_ of Grotius, perhaps no law book has been oftener
printed. Not to speak of the many adaptations, more or less close,
or of the many abridgments of the _Commentaries_ (one of these was
“intended for the use of young persons, and comprised in a series of
letters from a father to his daughter,”) they have, in their original
form, gone through more than twenty complete editions in England since
the publication of the first volume in 1765. Nor has the homage of
parody—in the shape of a “Comic Blackstone”—been wanting to place them
among the classics. In America they have attained at least an equal
fame. In the speech on Conciliation, delivered in 1775, Burke said
that he had heard from an eminent bookseller that nearly as many copies
had been sold there as here. Two years later, one of the five members
appointed to frame the laws of Virginia seriously proposed that, with
suitable modifications, the _Commentaries_ should be taken as their
text. There is reason to believe that they are now held in higher
esteem in America than among ourselves. The American editions, already
nearly as numerous as the English, still continue to multiply,[9] while
forty years have passed since we have had an English Blackstone with
an unmutilated text. His own countrymen are now content to know him
through the medium of condensed and often lifeless versions, though
it is not so far back since, for those who aspired to the amount of
legal knowledge which a gentleman should possess, Blackstone was the
very voice of the law. If on many sides Blackstone received the meed
of excessive praise, his critics, it must be allowed, did not spare
him. They have not been many, but they have spoken so emphatically,
and, within certain limits, so unanswerably, that they have aroused
suspicion whether, after all, Blackstone may not have been a charlatan.
He was naturally regarded with distrust by lawyers of the rigid
school, who felt that legal learning was gone if such primers as the
_Commentaries_ were to displace the venerable Coke. The book was not
many years old before the phrase “Blackstone lawyers” came to be
used as synonymous with smatterers in law. But such criticism had a
professional ring, and perhaps in the end did the assailed author more
good than harm.
[9] A second edition of Professor Cooley’s _Blackstone_ was published
in Chicago last year.
If nowadays the name of Blackstone is held in diminished respect, the
fact is mainly due to the contempt poured upon him by Bentham and
Austin. They mercilessly exposed his shallow and confused philosophy.
Bentham, reviewing one by one his opinions on government, maintained
that they were not so much false as wholly meaningless; and Austin
declared that neither in the general conception, nor in the detail of
his book, is there a single particle of original and discriminating
thought. It is tainted throughout, said the one, with hostility to
reform; it was popular, said the other, because it “truckled to the
sinister interests and mischievous prejudices of power.” Austin found
nothing to praise even in its style, which, though fitted to tickle the
ear, seemed to him effeminate, rhetorical, and prattling, and not in
keeping with the dignity of the subject.
So long as his admirers could see no defects in his work, and his
critics were blind to its merits, judgments of Blackstone kept moving
along parallel lines, and never met. Standing at this distance of time,
when the _Commentaries_ have long lost the glitter of novelty, when we
have not Bentham’s cause for anger, and when nobody retains a belief in
the infallibility of Austin, it should be possible to treat Blackstone
more fairly than either his friends or his enemies have done. There are
signs that a juster estimate is now being formed, and the clearest of
these is the testimony of one who must know by his own experience what
were the difficulties which Blackstone surmounted. Sir James Stephen
admits that he was neither a profound nor an accurate thinker, that
he is often led to speak of English law in terms of absurd praise,
and that his arrangement of the subject is imperfect. But “the fact
still remains,” he says, “that Blackstone first rescued the law of
England from chaos. He did, and did exceedingly well, for the end of
the eighteenth century, what Coke tried to do, and did exceedingly ill,
about 150 years before; that is to say, he gave an account of the law
as a whole, capable of being studied, not only without disgust, but
with interest and profit.... A better work of the kind has not yet been
written, and, with all its defects, the literary skill, with which a
problem of extraordinary difficulty has been dealt with is astonishing.”
Few authors ever had a clearer field. Long before his day, indeed, the
immense growth of the law had been regarded as a heavy burden. Lawyers
groaned, just as they groan now, over the increasing accumulation
of statutes and reports. And yet Coke upon Littleton remained the
beginner’s chief guide. Coke called his work the _Institutes of the
Laws of England_; but, whatever its other merits, it lacks every
quality which the title would suggest. It is unsystematic, undigested;
it makes no pretence of leading its reader from principles to rules;
and it spares him the details of no curious anomaly. It is like an
overgrown treatise on the subjunctive mood. The need had long been
felt for a better work; and the broad outlines had been sketched by
Hale in his admirable _Analysis of the Civil Part of the Law_, which
Blackstone followed in every essential feature. Some treatises too had
appeared written with a purely educational purpose. Of these the most
successful, long recommended as an elementary text-book for students,
was the _Institutes_ of Wood, a Buckinghamshire clergyman. It was a
praiseworthy attempt to present the law in a methodical form, but it
lacked literary merit, and had all the dulness of an epitome. It is
memorable only as the book which the _Commentaries_ displaced.
Blackstone saw his opportunity. Perhaps no one else in his time
combined in the same degree the qualities which the work required;
nor was there any one so capable of writing a law-book, which could
be read with interest by educated laymen, and at the same time be
accepted as almost authoritative by practising lawyers. Blackstone’s
training enabled him to gain the ear of both; for he was not only a
lawyer, but a man of letters. His love of literature developed early,
and along with it a desire to win literary fame. He does not seem to
have read widely, but the pleasure which in his school days he derived
from Shakespeare and Milton, Pope and Addison, was dulled neither by
advancing years nor by the absorbing demands of the law. “The notes
which he gave me on Shakespeare,” said Malone, who used them in his
edition, “show him to have been a man of excellent taste and accuracy,
and a good critic.” He was something of a poet himself; but the
“Lawyer’s Farewell to his Muse,” the “Lawyer’s Prayer,” and the “Elegy
on the Death of the Prince of Wales,” though they have occasionally
been unearthed as curiosities, have long been swept away with other
rubbish of the kind. The following lines, which are his best, and in
which we feel the very spirit of the _Commentaries_, will not tempt
further even the most diligent seeker after neglected poets. Their
historical audacity would amaze Professor Freeman.
‘Oh, let me pierce the secret shade
Where dwells the venerable maid!
There humbly mark, with rev’rent awe,
The guardian of Britannia’s Law,
Unfold with joy her sacred page
(Th’ united boast of many an age,
Where mix’d yet uniform appears
The wisdom of a thousand years)...
Observe how parts with parts unite
In one harmonious rule of right;
See countless wheels distinctly tend
By various laws to one great end;
While mighty Alfred’s piercing soul
Pervades and animates the whole.’
The Pope who was lost in Blackstone we can as easily spare as the
Ovid who was lost in Murray. Yet it was from that love of literature
to which his poetical compositions bear witness, perhaps in some
degree also from the enforced measure and restraint of verse, that he
acquired a style, which though it has not the freshness and variety of
Addison’s, its most direct model, has the same singular clearness and
almost the same ease and flow. By education, not by accident, did he
come to deserve Bentham’s one compliment that he it was who first, of
all institutional writers, taught jurisprudence to speak the language
of the scholar and the gentleman.
Beyond keeping up a certain interest in architecture, on which in early
youth he is said to have composed a treatise, Blackstone seldom allowed
himself to be diverted from a persevering and varied study of law. He
divided his time between Westminster and Oxford, and long remained
undecided whether he should finally settle in the law-courts or among
his books. While, with hardly any practice of his own, he was training
himself with unusual diligence, as his reports of cases testify, in the
practical part of his profession, he had it clearly before him that
law is not to be mastered by any one who neglects its history. “In my
apprehension,” he said, when he was a student, “the learning out of
use is as necessary as that of every day’s practice;” and he carried
out this belief by making the _Commentaries_ as much a history as an
exposition. Even more plainly than in his great work we can see in his
edition of _Magna Charta and the Charter of the Forest_ how unflagging
were his zeal and patience, and how minute his investigations. His
knowledge of general history may have been superficial, as Hallam said
it was; he may have had old-fashioned notions about Alfred the Great,
even though he does warn his readers against the tendency to ascribe
all imaginable things to that king; yet the _Commentaries_ contain
what, on the whole, is still the best history written in English of
English law.
The plan of the book had long been in his mind; he was indirectly
led to carry it out through an attempt of the Duke of Newcastle to
corrupt him. Lord Mansfield (then Mr. Murray) recommended him to the
chair of civil law at Oxford, which was vacant in 1756, but he lost
the appointment, according to report, because he was not hearty enough
in promising the duke support “whenever anything in the political
hemisphere is agitated in the university.” Murray, hearing of his
disappointment, advised him to lecture on his own account upon English
law. He took the advice; the novelty of the lectures and their ability
made them successful; and when the Vinerian chair of common law was
founded in 1758 he was appointed the first professor. Making hardly
any change in form, arrangement, or mode of treatment, as appears from
his notes which are still extant written in the neatest of hands, he
expanded the lectures into the _Commentaries_. But while he never
deviated from his original plan, his store of knowledge grew steadily
throughout the fourteen years which elapsed between his first private
lectures and the appearance of his work. When the question of _ex
officio_ informations was debated in the House of Lords in 1812, Lord
Ellenborough spoke of him as follows:—“Blackstone, when he compiled
his lectures, was comparatively an ignorant man; he was merely a
fellow of All Souls’ College, moderately skilled in the law! His true
and solid knowledge was acquired afterwards. He grew learned as he
proceeded with his work. It might be said of him, at the time he was
composing his book, that it was not so much his learning that made the
book, as it was the book that made him learned.” The _Commentaries_
were not, however, the work of a merely book-learned man; besides
his attendance in the courts as a spectator, Blackstone had enjoyed
several years of good practice before the first volume appeared; but
Ellenborough’s opinion is substantially sound. It is indeed one of
the striking facts about Blackstone that while as years went on his
mind gained little in breadth, and his fundamental ideas underwent no
change, he was able, by simple hard work and with abilities not by any
means the highest, to make himself at length one of the really learned
lawyers of his time. Several names might be mentioned which on special
lines of law stand far above his; but there was no one who rivalled
him in that extent of general knowledge which an institutional writer
must possess. The _Commentaries_ have won the peculiar distinction
of being quoted and of carrying weight in every political discussion
which raises questions of constitutional importance, and also of being
cited in our courts (though under protest from some rigid judges) as
only a little lower than that small group among our law-books which
have an inherent, and not merely a reflected, authority. We should do
Blackstone grievous wrong if from his popularity we assumed that his
knowledge was superficial.
Thus, both as lawyer and as man of letters, he was peculiarly fitted
for his work. Written with less literary skill, the _Commentaries_
would long ago have been forgotten; if his learning had been more
minute he would never have written them at all. A work which, partly
through favoring circumstances, but mainly through its merits, has
effected a real revolution in legal studies, is not to be dismissed by
saying that its philosophy is weak, and that it is hostile to reform.
There is certainly no profound nor much original thought in
Blackstone’s four volumes. Nobody was ever made better able to
comprehend a difficulty in English law by means of the notions on laws
in general to be found in that famous chapter, which, as Sir Henry
Maine puts it, may almost be said to have made Bentham and Austin into
jurists by virtue of sheer repulsion. They lead to nothing, and explain
nothing. They are rather the obeisances made by a polite professor to
his subject, or a lawyer’s invocation of his muse, than the necessary
foundations of a system. Blackstone repeats the venerable doctrine that
human laws depend on the law of nature and the law of revelation, and
that no laws are valid which conflict with these; but he never dares
to apply it to any rule of English law. And when he comes to speak
of parliament and monarchy, he has forgotten that odd proof of the
perfection of the British constitution, with its divine combination
of power, wisdom, and goodness, of which Bentham made such easy fun.
He does not so much as pretend to be original. He is so dependent on
others that he adopts not only their opinions but even their language,
and by no means always does he let us know that he is quoting. He
does not refer to Locke when he is stating, practically in Locke’s
words, the theory of the right of society to inflict punishment;
he never mentions the name of Burlamaqui, who was his guide, most
faithfully followed, in the analysis of laws in general; and he fails
to acknowledge half his obligations to Montesquieu.[10] Indeed, the
free use he makes of Montesquieu’s famous chapter on the English
constitution would be appalling, did we not remember that he was only
following a professional custom of appropriation, which legal authors
have not yet wholly abandoned. There is, in fact, scarcely a single
sentence of that chapter which has not, somewhere or other, found its
way into the _Commentaries_; and, as often as not, the Commentator
leaves us to infer that the reflections are his own.
[10] Blackstone does not seem to have read either Burlamaqui or
Montesquieu in French. He invariably uses the words of Nugent’s
translations, which had then been recently published.
In estimating the value of Blackstone’s work, however, we should not
make too much of the fact that his general theories are either weak or
borrowed. The truth is that when we have got rid of them we have not
touched the substance of the work itself; his exposition of English
law remains unaffected, whether they be true or false. Moreover,
these same theories of his have a considerable indirect interest; for
as they afford us an opportunity of observing how, at a turning-point
in the history of modern thought, certain important ideas acted
upon an intellect, which, from its very want of independence and
courage, all the better reflected the common opinions of the time. His
philosophy exhibits the doctrine of the social contract in a state of
decay, and enables us to watch the English mind preparing itself for
utilitarianism.
Blackstone refuses to accept the social contract in its naked form; he
ridicules the notion of individuals meeting together on a large plain
to choose the tallest man present as their governor; and he traces the
growth of society upwards from the family living a pastoral life to the
settled agricultural community. His conception of social development
comes as near the current modern theories as that of any thinker of his
century, save Mandeville. But the social contract was too tempting to
be altogether abandoned. He speaks of it as a tacit agreement between
governor and governed, of protection on the one side and submission
on the other, and from this implied agreement he draws conclusions as
freely as if it were a historical fact. Stating Locke’s theory without
any qualification, he bases upon the contract (for he recurs to the
word) the right of society to punish crime. The laws under which
thieves suffer were made, he tells us, with their own consent. So he
says that the oath of allegiance is nothing more than a declaration
in words of what was before implied in law. And he justifies the
Revolution on the ground that King James had endeavored to subvert the
constitution by breaking the original contract. Believer as he is in
the law of nature, Blackstone is more than half a utilitarian. True,
he has based all law on both the natural and the revealed law; but by
a fortunate coincidence everything that tends to man’s happiness is
in accordance with the former. Except where the revealed law applies,
the actual rule of life is that man should pursue his own true and
substantial happiness. “This,” he says, “is the foundation of what
we call ethics or natural law.” Throughout the whole of his work
his tests are purely those of utility, and with his broad principles
of unbending orthodoxy he mingles theories, some of which the most
thoroughgoing utilitarian would think too bluntly stated. Repudiating
the notion of atonement or expiation, he maintains that punishment is
only a precaution against future offences. He treats property as an
adventitious right, unknown in the natural state; and to the amazement
of some of his editors he has the courage to face the logical result,
that theft is punished, not by any natural right, but only because it
is detrimental to society. It is a _malum prohibitum_, not a _malum
in se_. He goes so far as to say that where the law prohibits certain
acts under pecuniary penalties, the prohibition does not make the
transgression a moral offence, or sin, and that the only obligation in
conscience is to submit to the penalty. He affirms as a thing beyond
doubt that human laws have no concern with private vices. And he
professes to defend the measures which placed Catholics and Dissenters
under disabilities, not upon theological grounds, but simply because
all dissent is subversive of civil government. We may be sure that
Blackstone would not have spoken as he did if he had believed that
average men in his time would consider his doctrines offensive; and
taking him as an index of contemporary opinion, we can see that the
field was ready for Bentham.
Blackstone’s hostility to reform has a special interest. There
is, perhaps, no better example to be found in our literature of
the typical Englishman, who loves his country, who considers its
constitution the best constitution, its laws the best laws, and the
liberty which its citizens enjoy the completest liberty which the
world has known. He was conservative by circumstances and profession,
as well as by temperament. His opinions were formed at a time when
men lived politically at a lower level than they ever did before or
have done since. No bold reforming spirit could have grown up in the
Jacobite unrest of half a century, with the Whigs, to all appearance,
permanently seated in power, and desirous of showing that the party
of the Revolution was capable of moderation. There was no party of
progress. No clear line of principle divided Whigs from Tories; so
that it became a plausible thesis that they had exchanged positions.
There were, in short, no great ideals in the air, which could stimulate
to movement such a sluggish man as Blackstone. Perhaps some of his
conservatism was due to his profession. The instances are probably
rare of an English lawyer, with either extensive practice or great
learning, who, on questions of personal liberty, whether of religion or
of speech or of trade, has stood far in advance of the average opinion
of his age. The profession tends to foster conservatism. The habit of
deciding by precedents and usage is not to be shaken off when the mind
turns from law to politics; and the men who declared that the common
law is the perfection of reason, and who thought that it savored of
profanity to speak disrespectfully of common recoveries, could not be
expected to doubt the excellence of the British constitution or the
necessity of Catholic disabilities. Something, too, must be allowed for
the influence of a training which both narrows the scope of reasoning,
and within the narrower limits makes it close and unbroken. A mind so
schooled will naturally shrink from the gaps in evidence which the
innovator must boldly face and overstep. May we not in the same way
explain the alleged conservatism of men of science?
The main theme of Blackstone’s teaching is that of contentment with
a constitution which to him seemed as nearly perfect as any work of
man can be. “Of a constitution,” he says, “so wisely contrived, so
strongly raised, and so highly finished, it is hard to speak with
that praise which is justly and severely its due: the thorough and
attentive contemplation of it will furnish its best panegyric. It has
all the elements of stability; for by a graduated scale of dignity
from the peasant to the prince, it rises like a pyramid from a broad
foundation, diminishing to a point as it rises. It is this ascending
and contracting proportion” he says, with the law of gravitation in
his mind, “that adds stability to any government.” “All of us have it
in our choice,”these are Blackstone’s words, “to do everything that
a good man would desire to do; and are restrained from nothing, but
what would be pernicious either to ourselves or our fellow-citizens.”
He does not, however, mean us to accept this statement too literally.
He allows that the constitution has faults—“lest we should be tempted
to think it of more than human structure”—and he is careful to tell us
what he means when he says that this or that institution is perfect.
As the expounder and historian of English law, he uses words of higher
praise than he would do if he wrote as a politician. He feels that he
is dealing with the spirit of laws, and that it is not his business to
consider every change of circumstances which may have impaired their
efficiency. To point out each defect, or to suggest ways of amendment,
would, moreover, have been alien from the purpose of a work in which
he sought to interpret the laws and to teach respect for them; and
therefore he does not guard himself against exaggeration, sharing the
opinion of Burke, that we only lessen the authority of the constitution
if we circulate among the people a notion that it is not so perfect
as it might be, before we are sure of mending it. He has in his mind
the idea of a theoretical perfection not incompatible with practical
injustice. In a well-known passage he says that _by the law_ as it
stood in the time of Charles II., “the people had as large a portion
of real liberty as is consistent with a state of society,” naming the
year 1679 as the point of time at which he would fix what he calls
the _theoretical_ perfection of our public law; and yet he observes
that “the years which immediately followed it were times of great
_practical_ oppression.”[11] This is in substance the view of Burke
when he says that the machine is well enough for the purpose, provided
the materials were sound. Indeed there is scarcely one of Blackstone’s
thoughts on politics and government which may not be paralleled
in the writings and speeches of Burke. They were agreed that our
representative system was practically perfect; that religious dissent
is subversive of civil government; and that the people were bound by
their original contract to a scheme of government fundamentally and
inviolably fixed on king, lords, and commons. Burke was among the first
to read and admire the _Commentaries_; and had Blackstone lived ten
years longer he would have read the _Reflections on the Revolution in
France_, and applauded every word. We might describe him, in fact, as a
Burke with the genius left out.
[11] This is Fox’s comment on the passage:—“How vain, then, how idle,
how presumptuous is the opinion that laws can do everything! and how
weak and pernicious the maxim founded upon it, that measures, not men,
are to be attended to!”
Over Blackstone’s mind the antiquity of the constitution exercised a
potent spell. The retrospective imagination, as it has been called,
made him regard with reverence institutions that reach back to a time
whereof the memory of man runneth not to the contrary. The parliament
and the monarchy, the sheriff, the corner, and trial by jury, seemed
to be less the work of man’s hands than to partake of the dignity and
immutability of the laws of nature; and the sense of trivial anomalies
was lots in the veneration which he felt for a system of laws embodying
in unbroken continuity the wisdom of a thousand years. It is not an
unworthy emotion. There are few, let us hope, who have never been
stirred by reflecting on the growth of that English liberty, which
finds splendid voice in the prose of Milton, and whose presence, with
“its gallery of portraits, its monumental inscriptions, its records,
evidences, and titles,” glows in every line of Burke. On its practical
side the emotion may be healthy or may be baneful. We call him the
crudest of politicians who never reflects that our laws have grown with
the people, that they contain the experience of a nation, and are not
the paper schemes of clever theorists, and that they are surrounded
by traditions which no convulsion ever swept away and which give them
half their strength. It is this that a greater lawyer than Blackstone
meant when he said that time is the wisest thing in the inferior world.
But to timid natures antiquity becomes the proof, and not merely the
evidences of excellence; so that the mind is led to make a severance
between the past and the present, and while respecting the constitution
as a thing of gradual growth to forget that the growth continues.
Blackstone’s whole nature was affected by this illusion of distance. It
distorted alike his historical beliefs and his practical judgments. It
made him maintain, as Bolingbroke did, that our liberties are but the
restoration of the ancient constitution of which our Saxon forefathers
were deprived by the policy and force of the Normans. To Montesquieu’s
opinion that as Rome, Sparta, and Carthage lost their liberties, so
those of England must in time perish, it made him give the naïve reply
that Rome, Sparta, and Carthage, at the time when their liberties
were lost, were strangers to trial by jury. It made him spend all his
ingenuity in defending the rule of descent which excluded kinsmen of
the half-blood. And it was the chief cause of the contempt which,
like Coke, he had for statute law. Though he never ventures to say
so in plain terms, as his predecessors did with something more than
rhetorical belief, yet at heart he is convinced that the common law is
the perfection of reason.
Yet to represent Blackstone’s mind as absolutely stationary would
be unjust; for now and again he puts forward a gentle suggestion of
improvement. He draws attention to defects in the system of trial
by jury, and makes several excellent proposals for its amendment.
He even anticipates the legislation of our own day when he points
out that our laws are faulty in not constraining parents to bestow a
proper education on their children. He recognises the possibility of
a change in political representation, which would admit the people to
a somewhat larger share; and it is doubtless on the strength of that
mild admission that Major Cartwright included him in the list of men
conversant with public affairs who had expressed themselves in favor
either of a fair representation or of short parliaments. The criminal
law seemed to him very far from perfect. Within his own lifetime it
had been made a capital crime to break down the mound of a fish-pond
whereby any fish should escape, or to cut down a cherry-tree in an
orchard. These laws would never have been passed, he says, with a
confidence which it is not easy to share, if, as was usual with private
bills in his days, public bills had been first referred to some of
the learned judges for their consideration. It was still felony
without benefit of clergy to be seen for one month in the company of
the persons called Egyptians. He believed that this would not have
continued, if a committee were appointed at least once in a hundred
years to revise the criminal law—a proposal which his friend Daines
Barrington made about the same time and worked out in some detail.
His conservatism, or, to give it the harsher name, his hostility to
reform, was in great part due to timidity and insufficient knowledge
of the world. He was a shy and reserved man, whose life was divided
between one kind of narrowness at Westminster, and another kind of
narrowness at Oxford. He was shut off from the real life of England.
Among his books, which taught him that the state should foster trade,
he could know only by hearsay of the new industrial movement then
beginning to transform the country, and destined soon to sweep away the
absurdities which he upheld, such as the innumerable attempts to fix
the rate of wages, the navigation laws, and the statute of Charles II.,
commanding the people to bury their dead in wool. The very fact that
he does not suggest a compromise between restriction of trade and its
freedom, leads one to infer that he had never seriously thought about
the question. Only with regard to apprenticeship does he mention that
a doubt could exist, and then he refrains from giving a clear opinion.
Amid the Toryism of Oxford, where he had seen students expelled for
Methodists, Blackstone was hardly likely to understand what toleration,
much less what religious freedom, meant. He deprecated persecution,
once indeed he uses with unwonted energy the phrase “dæmon of
persecution,”[12] but it is rather under the impulse of a mild humanity
than from any trust in the people or any large love of liberty.
When a strong protest was raised by Dr. Priestley and Dr. Furneaux
against his account of the laws relating to Protestant Dissenters,
whom almost in so many words he called dangerous citizens, he seems
to have been quite surprised at the attack. He wrote a pamphlet in
reply to Priestley, explaining that his aim had been to expound the
law not justify it, which was not quite accurate, and declaring that
he was all for tolerance; and he went so far as to expunge the most
obnoxious sentence, and to give in subsequent editions a fuller and
somewhat fairer account of the law. Even in its final form the passage
is not worthy of one who was speaking from a position of really high
authority, which should have induced judicial calmness. “They have
made him sophisticate,” said Bentham, referring to Priestley’s and
Furneaux’s attack; “they have made him even expunge; but all the
doctors in the world, I doubt, would not bring him to confession.”
Yet it is not so much utter illiberality of nature that the passage
suggests as simple inexperience, and his fixed belief that truth must
always be a compromise. He was but echoing the opinion commonly held by
churchmen in his time, an opinion which he had never tested by contact
with the people.
[12] He is referring, however, to persecution on the Continent and by
the Pope.
He had an opportunity of gaining experience as a politician, but
in the House of Commons he learned nothing, and succeeded only in
tarnishing his legal reputation. He entered it in 1762, and sat first
for the rotten borough of Hindon, and afterwards for Westbury till
1770. For the first six years his name scarcely ever occurs in the
debates. The only fact, indeed, known of this part of his political
life, is a proposal which he made when the repeal of the Stamp Act was
carried, that “it should not be of force in any colony where any votes,
resolves, or acts had passed derogatory to the honor or authority
of Parliament, until such votes, etc., were erased or taken off the
records,” The second stage of the Wilkes case, after the elections
of 1768, raised him to an unfortunate notoriety. Every circumstance
combined to make Blackstone the most bitter of Wilkes’s opponents. He
had committed himself to strong opinions on the absolute supremacy
of Parliament; he was solicitor-general to the Queen; he was shocked
at Wilkes’s blasphemy; and Lord Mansfield had been maligned. He
had only one moment of merely formal hesitation. When De Grey, the
Attorney-General moved that the comments on Lord Weymouth’s letter were
an insolent, scandalous, and seditious libel, Blackstone argued that
the courts were open, and that the House of Commons was not the place
to try the question. The other acts of the persecution had his complete
approval. He himself took the lead in moving that the charge against
Lord Mansfield was “an audacious aspersion on the said Chief Justice;”
he advocated the expulsion of Wilkes; he supported the motion which
declared that Wilkes being expelled was incapable of sitting in the
existing Parliament; and he delivered an able speech, in which he put
forth all his strength, in favor of the validity of Colonel Luttrell’s
election. He was rash enough in that speech to give it as his firm and
unbiassed opinion that the law and custom of Parliament on a matter of
privilege is part of the common law, that the House had acted according
to that law and custom, and that Wilkes was therefore disqualified by
common law from sitting as a member of Parliament. He paid heavily for
his “firm and unbiassed opinion.” In the _Commentaries_ he had given
what was, no doubt, intended to be a complete list of the causes of
disqualification; and none of them applied to Wilkes. Twice during
the remainder of the debate, first by Mr. Seymour and afterwards by
Grenville, “the gentle shepherd,” was this passage effectively turned
against him. “It is well known,” according to Junius, “that there was
a pause of some minutes in the House, from a general expectation that
the doctor would say something in his own defence; but it seems, his
faculties were too much overpowered to think of those subtleties and
refinements which have since occurred to him.” A paper war ensued in
which Junius, Sir W. Jones, Dr. Johnson, and Blackstone himself took
part. In an anonymous pamphlet, betraying its author, as Junius said,
by “its personal interests, personal resentments, and above all that
wounded spirit, unaccustomed to reproach, and, I hope, not frequently
conscious of deserving it,” Blackstone clung tenaciously and almost
angrily to his opinion, which he stated even more emphatically than he
had done in the House of Commons. There he expressly refrained from
saying whether expulsion necessarily involves incapacity; in his reply
to “the writer in the public press, who subscribes himself Junius,”
he said as expressly that incapacity is the necessary consequence of
expulsion. He retracted nothing. Sincere, no doubt, in his belief
that it was Wilkes the blasphemer, not Wilkes the demagogue, whom he
had helped to expel and incapacitate, he still held that the House of
Commons had acted not only legally but wisely. He gave a pledge of his
conviction by repairing the omission in his book. In its subsequent
editions appears, as if it were a well settled rule, the statement that
if a person is made a peer or elected to serve in the House of Commons,
the respective Houses of Parliament may upon complaint of any crime in
such person, and proof thereof, adjudge him disabled and incapable to
sit as a member. His earlier statement of the law, however, was not
forgotten, and “the first edition of Dr. Blackstone’s _Commentaries
on the Laws of England_” is said to have become a toast at Opposition
banquets. Nobody has now any doubt that Blackstone was in the wrong,
confounding, as was pointed out at the time, the independence of the
several parts of the legislature with the authority of the whole.
His tenacity and the prestige of his name gave him the support of
his party; but before long, had he lived, he would have suffered the
mortification of seeing the House of Commons expunge from its journals
all the declarations, orders, and resolutions respecting the election
of John Wilkes, Esquire, as “subversive of the rights of the whole body
of the electors of this kingdom.”
Having failed as a politician, he was made a judge. He sat on the bench
from 1770 till his death in 1780, and he left behind him the reputation
of having striven to administer justice with scrupulous care. He was
certainly not a great judge. He was cursed with indecision; he was
diffident of his own opinion, and never strenuous in supporting it; and
in consequence, if we can trust Malone’s account of him, “there were
more new trials granted in causes which came before him on circuit than
were granted on the decisions of any other judge who sat at Westminster
in his time.” The habit of mind which in private life produced in him
almost a mania for punctuality made him as a judge a strict observer of
forms; and he would not have consented, even if he had been able, to
make and modify law as did his contemporary, Lord Mansfield. The time
was pre-eminently favorable for earning a great judicial reputation;
the law, impeded by fictions, formalities, and obsolete statutes,
lagged behind a nation whose commerce had increased more than tenfold
within living memory; and public opinion would have dealt leniently
with a judge who shaped the old rules to satisfy the new needs. But
Blackstone had not the courage for such work; and, save for the case of
_Perrin_ v. _Blake_, one might well tell the legal history of the ten
years which he spent on the bench and never mention his name. _Perrin_
v. _Blake_ is too technical to be here described; enough to say that it
maintained inviolate the venerable rule in Shelley’s case, with which
Lord Mansfield had been profanely tampering. The case excited great
interest in the profession, partly from its own importance and partly
from some personal controversies to which it gave rise. Lord Campbell,
indeed, writing more than seventy years after it had been decided, says
that when conversation flags amongst lawyers the mention of _Perrin_ v.
_Blake_ never fails to cause excitement and loquacity!
The politician and the judge are forgotten now, and only the
commentator remains. But his life was consistent throughout. He had a
reverence for authority and a respect for formalities; his mind turned
more readily to apology than to criticism; and destitute of ideals
he lived in a narrow groove, contented with himself and the world.
When he and Serjeant Nares were calling for the expulsion of Wilkes
because he was a blasphemer, Burke described their arguments as “solid,
substantial, roast-beef reasoning.” The phrase paints to the life the
worshipper of the constitution, who staked the fate of England upon
trial by jury.—_Macmillan’s Magazine._