Blackstone and His Critics 9781509910458, 9781509910489, 9781509910472

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BLACKSTONE AND HIS CRITICS William Blackstone’s Commentaries on the Laws of England (1765–69) is p ­ erhaps 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.

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Blackstone and His Critics

Edited by

Anthony Page and Wilfrid Prest

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2018 Copyright © The editors and contributors severally 2018 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2018. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Page, Anthony, 1969- editor.  |  Prest, Wilfrid R., editor. Title: Blackstone and his critics / edited by Anthony Page and Wilfrid Pest. Description: Oxford [UK] ; Portland, Oregon : Hart Publishing, 2018.  |  Includes bibliographical references and index. Identifiers: LCCN 2017052331 (print)  |  LCCN 2017055283 (ebook)  |  ISBN 9781509910465 (Epub)  |  ISBN 9781509910458 (hardback : alk. paper) Subjects: LCSH: Blackstone, William, 1723–1780. Commentaries on the laws of England.  |  Law—England—History. Classification: LCC KD660 (ebook)  |  LCC KD660 .B483 2018 (print)  |  DDC 348.42/02—dc23 LC record available at https://lccn.loc.gov/2017052331 ISBN: HB: 978-1-50991-045-8 ePDF: 978-1-50991-047-2 ePub: 978-1-50991-046-5 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

CONTENTS

Contributors������������������������������������������������������������������������������������������������������������� vii Introduction—Anthony Page and Wilfrid Prest������������������������������������������������������� ix

1. Rationalising the Common Law: Blackstone and His Predecessors��������������1 Michael Lobban 2. The ‘Least Repulsive’ Work on a ‘Repulsive Subject’: Jeremy Bentham on William Blackstone’s Commentaries on the Laws of England�������������������23 Philip Schofield 3. Blackstone, Expositor and Censor of Law Both Made and Found���������������41 Jessie Allen 4. William Blackstone, Edward Gibbon and Thomas Winchester: The Case for an Oxford Enlightenment��������������������������������������������������������59 Ian Doolittle 5. Rational Dissent and Blackstone’s Commentaries�����������������������������������������77 Anthony Page 6. Blackstone, Parliamentary Sovereignty and his Irish Critics������������������������97 Ultán Gillen 7. Blackstone, Family Law and the Exclusion of the Half Blood in Inheritance������������������������������������������������������������������������������������������������117 Tim Stretton 8. Blackstone and Women��������������������������������������������������������������������������������133 Carolyn Steedman 9. Professing Law in the Shadow of the Commentaries�����������������������������������153 David Lieberman 10. Hammond’s Blackstone and the Historical School of American Jurisprudence������������������������������������������������������������������������������������������������173 David M Rabban

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Contents

11. ‘A Very Narrowing Effect Upon Our Profession’: A Progressive Jurist Confronts Blackstone�����������������������������������������������������������������������������������193 John V Orth 12. Blackstone’s Posthumous Reputation����������������������������������������������������������209 Wilfrid Prest

Acknowledgements��������������������������������������������������������������������������������������������������222 Index�����������������������������������������������������������������������������������������������������������������������223

CONTRIBUTORS

Jessie Allen is an associate professor in the Law School, University of Pittsburgh. Ian Doolittle, formerly a Junior Research Fellow at Christ Church, Oxford, is a consultant with the law firm Trowers and Hamlins LLP. Ultán Gillen is a senior lecturer in European history at Teeside University. David Lieberman is the James W and Isabel Coffroth Professor of Jurisprudence, School of Law, University of California, Berkley. Michael Lobban is Professor of Legal History in the Law Department at the London School of Economics. John V Orth holds the William Rand Kenan Jr Chair of Law at the University of North Carolina, Chapel Hill. Anthony Page is a senior lecturer in History at the University of Tasmania. Wilfrid Prest is Professor Emeritus of History and of Law at the University of Adelaide. David M Rabban holds the Dahr Jamail, Randall Hage Jamail and Robert Lee Jamail Regents Chair in the Law Faculty, University of Texas at Austin. Philip Schofield is Professor of the History of Legal and Political Thought, and Director of the Bentham Project in the Faculty of Laws, University College London. Carolyn Steedman is Emeritus Professor of History at the University of Warwick.  Tim Stretton is a professor in the History Department of Saint Mary’s University, Halifax, Nova Scotia.

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INTRODUCTION ANTHONY PAGE AND WILFRID PREST

… a bigotted or corrupt defender of the works of power, becomes guilty, in a manner, of the abuses which he supports: the more so if, by oblique glances and sophistical glosses, he studies to guard from reproach, or recommend to favour, what he knows not how, and dares not attempt to justify. —Jeremy Bentham1 Bentham … don’t you feel now and then some compunction at the thought of the treatment your Fragment gives to Blackstone? Of all men that ever sat on a Westminster Hall bench, he is perhaps the only one that ever attempted any thing that had the good of the people or the improvement of the law for its object, independently of professional interest or party politics. —George Wilson2

From the first appearance of its four volumes between 1765 and 1769, William Blackstone’s Commentaries on the Laws of England was a best-seller, among lawyers and laymen alike. Presenting the notoriously complex common law and ­England’s idiosyncratic political constitution as a rational system of government and ­jurisprudence, the Commentaries also stands as a significant manifestation of ‘conservative Enlightenment’.3 Yet however widely lauded, then and later, Blackstone and his Commentaries have never escaped adverse comment, censure, and disapproval. Adding to recent scholarship on Blackstone’s life and writings, the following chapters introduce and discuss some of the leading critics and criticisms. Here we survey Blackstone’s early career and its implications for his later reputation, examine initial reactions to the Commentaries, and outline the ground covered by the contributors to this volume.

1 

J. Bentham, A Fragment on Government, ed. JH Burns and HLA Hart (Cambridge, 1988) 9. J Bentham, A Comment on the Commentaries and A Fragment on Government, ed JH Burns and HLA Hart (London, 1977) 543. 3  Under the general editorship of Wilfrid Prest Oxford University Press published a modern ­scholarly edition of Blackstone’s Commentaries in 2016. JGA Pocock ‘Clergy and Commerce: The Conservative Enlightenment in England’ in RJ Ajello (ed), L’età dei Lumi: Studi Storici sul Settecento Europeo in Onore di Franco Venturi, 2 vols (Naples, 1985) vol 1, 523–62 and idem ‘The Re-­Description of Enlightenment’ (2004) 125 Proceedings of the British Academy 101–17; for an early claim that the Commentaries was ‘a work of the Enlightenment’ see I Doolittle, ‘Sir William Blackstone and his Commentaries on the Laws of England (1765–69): A Biographical Approach’ (1983) 4 OJLS 108. 2 

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I. Before the Commentaries Today Blackstone’s standing, and that of his Commentaries, may seem essentially one and the same. But while the Commentaries now constitutes Blackstone’s major claim to our attention, the final volume of that work did not appear in print until 1769, when its author had reached the age of 46. He was by then a Crown law officer and member of Parliament; well-published, with a national and international readership, he had previously held the world’s first common law professorship, and made his name as academic administrator, politician, and reformer. So there is good reason to begin with a discussion of Blackstone’s early reputation.4 For all his youthful academic triumphs, including the silver medal won before leaving school for his verses on Milton, his scholarship to Oxford’s Pembroke College, and his All Souls College fellowship, Blackstone only began to acquire a profile visible beyond his immediate family, colleagues, and friends after reaching his mid-twenties and attempting to establish a practice at the London bar. His leadership within All Souls became evident in the later 1740s as he supervised completion and furnishing of the massive new Codrington Library, even installing its book stock ‘according to a systematical method’ of his own devising.5 At the same time he played a major role in the College’s persistent if unsuccessful attempts to overturn the provision mandated in its foundation statutes favouring fellowship candidates descended from the family of its fifteenth-century founder. But Blackstone’s detailed statement of that case, in An Essay on Collateral Consanguinity (1750), was published anonymously, as three years before had been his poem The Pantheon: A Vision. According to an admiring college contemporary, this work was likewise ‘less noticed than it deserved’.6 The two architectural treatises he had also compiled in the 1740s still remain in manuscript. Not until after mere effluxion of time enabled him to take out the higher degree of doctor of laws in April 1750, thereby gaining admission to Convocation, the university’s legislative assembly, did Blackstone begin to cut a figure in academic affairs beyond the walls of his own college. He began by managing Sir Roger Newdigate’s successful campaign for election as one of the university’s two representatives in the House of Commons. Newdigate stood for the ‘Old Interest’, as Oxford’s opponents of the Whig administrations which had held power since the first Hanoverian monarch came to the throne in 1714 were known. Thanks both to his connection with Newdigate over the next thirty years and personal involvement in subsequent electoral contests,

4  Unless otherwise noted, biographical details here and below are derived from W Prest, William Blackstone: Law and Letters in the Eighteenth Century (Oxford, 2008). 5  R Graves, The Triflers (London, 1806) 56. 6  ibid 54.

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Blackstone’s political coloration was henceforth firmly identified as Tory. This party-political label very likely prevented his subsequent appointment to a vacant chair in civil or Roman law, and hence led indirectly to the private lecture course on the laws of England which he began to offer undergraduates from 1753. That said, the precise significance of the label ‘Tory’, and his relationship to it, became increasingly unclear during his lifetime. More immediately, besides continuing to busy himself with the administration of his own college, sit as judge of the vicechancellor’s court, and organise the university’s reception of a collection of classical marble statuary presented by the Countess of Pomfret, Blackstone now turned his formidable energies to the task of reforming the university’s printing and publishing house. This last agenda soon brought him into direct conflict with the oligarchic gerontocracy of college heads which constituted the university’s governing executive. The reaction of one of their number is captured in his account of a ‘troublesome dispute’ over the powers of the vice-chancellor, brought on (as he claimed) by Blackstone, ‘an active, enterprising Genius of this place. … If that Genius be not suppress’d, there’s an end of Government here!’7 In ensuing controversies over the administration of the university press, the foundation of the Vinerian chair in English law to which Blackstone was eventually elected unopposed (although it was ‘thought advisable by his friends, to guard against a surprise’ from ‘his ­supposed [and ‘sullen’] opponents’),8 and the discharge of his professorial responsibilities, such resentments were by no means confined to his academic superiors. Further antagonism was aroused by Blackstone’s devious role in a disputed election for the university’s chancellorship. Ill-feeling swelled so far that Blackstone suffered defeat in a contested election within his own college. Hence an informed correspondent could claim that All Souls was split between two parties distinguished by the names of Blacks and Whites. The First of these will convey no very good Idea to you; nor indeed ought you to conceive a very good one of the Leader, since he has made himself from the Darling to the most disliked of the University, by his so greedily assuming to himself (as Professor) almost the whole Income of Viner’s Foundation.9

Whatever the extent of Blackstone’s fall from academic grace, his reputation outside Oxford showed no such decline. On the contrary, the success of his lectures and associated publications, especially the expanded syllabus which had first appeared in print as An Analysis of the Laws of England in 1756 (with five further Oxford editions, a pirated Dublin edition and a later French translation), spread Blackstone’s name very widely. So did the Discourse on the Study of the Law, an

7 

Northamptonshire Record Office, D (F) 88: Theophilus Leigh to Sir William Dolben, 21 May 1756. Letters of Richard Radcliffe and John James … 1755–83, ed M Evans (Oxford, 1888) xxx. 9  Morrab Library, Penzance, MOR/Bor/2E: Peter Sherwin to William Borlase, 3 June 1759. 8 

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‘introductory lecture’ delivered in October 1758 as his first official presentation in the capacity of Vinerian Professor, which was extolled in the Annual Register as ‘a solid, judicious and elegant oration’. Across the Atlantic a future US President viewed ‘the first copy of Blackstone’s Inaugural Oration and Analysis, which ever appeared in America … It was much admired’.10 Closer to home the courtier and future Prime Minister John Stuart, earl of Bute, then tutor to the Prince of Wales, commissioned Blackstone to provide copies of his lectures for the royal pupil’s benefit, an initiative very likely encouraged by favourable reports from aristocratic undergraduates like William Petty, Lord Fitzmaurice, who as an Oxford student reportedly ‘attended Blackstone’s lectures with great care’.11 Two further publications of 1759 addressed very different audiences. The Treatise on the Law of Descents in Fee-Simple, which appeared in an English, an Irish and an American edition (thus becoming Blackstone’s first American imprint) was a brief and inexpensive student guide to a fundamental element of land law, prefaced by a disarming authorial avowal: ‘Perspicuity and precision are the only things endeavoured at: the subject is incapable of ornament.’ Nevertheless this pamphlet was also greeted with remarkable enthusiasm: according to one review, ‘Notwithstanding the learned author assumes, in this performance, no higher character than compiler, the reader will easily trace the hand of a master.’12 Also published that year was his critical scholarly edition of Magna Carta, The Great Charter and Charter of the Forest, where for the first time King John’s original charters were clearly distinguished from all subsequent versions.13 On the strength of this finely-printed scholarly volume, Blackstone was elected to fellowship of the Society of Antiquaries, despite having rejected as inauthentic a charter owned by Charles Lord Lyttelton, one of the society’s leading lights. Even before that elevation he was characterised by the poet William Shenstone (a fellow alumnus of Pembroke College) as ‘having raised himself to a very eminent figure indeed in the world of letters’.14 Quite apart from his books and lectures, in the five years before the first volume of the Commentaries appeared Blackstone came to public notice as putative appointee to the chief justiceship of Ireland,15 solicitor-general to Queen Charlotte, the holder of a royal patent of precedence at the bar (equivalent to a KC’s silk gown) and a member of Parliament brought in by Bute’s administration, with at least the ‘approbation’ of King George himself.16 By any reckoning

10  The Annual Register, 1758 (London, 1759) 453; The Diary and Autobiography of John Adams ed LH Butterfield (Cambridge MA, 1961) vol 3, 286; from the 3rd (1758) edition, the Analysis included Blackstone’s introductory Vinerian lecture. 11  E Fitzmaurice, Life of William, Earl of Shelburne (London, 1875) vol 1, 19. 12  Critical Review (October 1760) vol 10, 326; see also Monthly Review (January 1760) vol 22, 35–38. 13  W Prest, ‘Blackstone’s Magna Carta’ (2016) 94 North Carolina Law Review 1497–1500. 14 W Shenstone, The Works in Verse and Prose … Containing Letters … 1739 to 1763 2nd edn (London, 1769) vol 3, 315. 15  London Chronicle, 28–31 March 1761. 16 Shenstone, Works vol 3, 324–25.

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his reputation had already spread well beyond the groves of academe, seemingly untouched by the antagonism he had lately encountered there.17

II. First Reactions to the Commentaries The ‘liberal and judicious method’ of Blackstone’s law lectures and associated publications, ‘unit[ing] the study of polite Learning and Antiquity with that of Law’, had aroused high expectations.18 These were not disappointed by the successive appearance of the four books of the Commentaries, which received extensive attention in the rival literary journals of the day, Ralph Griffiths’s Monthly Review and Tobias Smollett’s Critical Review. The barrister Owen Ruffhead took some 17 pages of the Monthly Review to ‘give our Readers such an abstract of so able a performance as, we think, must necessarily induce them to peruse the work at large’.19 Even further inflated by the customary inclusion of long passages of direct quotation, an anonymous notice in the Critical Review, extending over more than 25 pages, characterised Book I as ‘learned, elaborate, spirited, and judicious’, while disavowing ‘minute examination of its merits or demerits’, which would require ‘more knowledge in the law than we possess’.20 Edmund Burke’s Annual Register for 1767 included an encomiastic 21-page summary of Books I and II combined, drawing liberally on Ruffhead’s Monthly Review notice.21 Other metropolitan journals printed occasional extracts bearing on issues of the day, as for example the discussion in Book II of literary property or copyright, reproduced by the London Magazine ‘[f]or the satisfaction of all gentlemen who have any regard for learning or ingenuity, as well as for all honest booksellers’.22 Blackstone’s name was sufficiently synonymous with didactic legal learning for him to be credited with An Introduction to the Knowledge of the Law and Constitution of England (1771), which had first appeared seven years before as the work of an anonymous ‘Gentleman of the Middle-Temple’. Writing from New York a future loyalist bishop of Nova Scotia even attributed the current shortage of clergy both in England and

17 In a satirical depiction of Oxford University politics, John Wilkes’s famous anti-ministerial journal even depicted Blackstone as the honest ‘lawyer Keene’, who singlehandedly brought financial mismanagement of the university press to public notice: The North Briton, 29 (18 December 1762). 18  T Phillips, The History of the Life of Reginald Pole (Oxford, 1764) vol 1, 17. 19  Monthly Review (February & May 1766) vol 34, 107–110 at 108, 378–92; see also vol 35 (November 1766) 356–63; vol 36 (January 1767) 29–36; vol 39 (November–December 1768), 329–44, 461–68; vol 41 (October 1769) 292–304. 20  Critical Review (December 1765) vol 20, 425–36 & (January 1766) vol 21, 1–13; see also vol 22 (October–November 1766) 241–49, 321–30; vol 25 (June 1768) 401–10; vol 26 (July 1768) 29–36. 21  Annual Register for the Year 1767 (London, 1768) 286–307; see also Annual Register for the Year 1768 (London, 1769) 269–72. 22  London Magazine, vol 35 (1766) 544–45; ibid, 3; see also London Chronicle, 24–26 March, 14–16 April, 12–14 May, 2–4 June 1768.

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America to Blackstone’s Commentaries having ‘made the Study of the Law easy and agreeable, instead of being dry, disgusting & intricate as formerly. So that Numbers of young Gentlemen at the Universities chuse to study the Law instead of going into Orders.’23 Yet while the fame of the Commentaries spread rapidly on first publication, even the most eulogistic reviewers tempered their plaudits with occasional caveat or criticism. Thus Ruffhead questioned Blackstone’s definition of ‘law’ in Book I, as likewise his treatment of the relationship between natural law and human laws, and rejection of Locke’s insistence on the peoples’ right to dissolve a tyrannical government. His notice of Book IV began by asserting ‘The reputation of this work is so well established … that it is altogether unnecessary, at present, to add anything to the praises already bestowed upon it’, but then took strong exception to Blackstone’s treatment of Protestant Dissenters, as well as his ‘attachment to what are called High Church principles’. Ruffhead also drew readers’ attention to the ‘very pertinent and spirited observations’ of Joseph Priestley on Blackstone’s text, to Blackstone’s published reply to Priestley’s Remarks, and to Priestley’s response.24 Dissenters were not the only objectors to Blackstone’s ecclesiastical politics. The obscure if prolific low-church Anglican clergyman John Jones published a number of tracts on religious topics, both under his own name and anonymously. Among the latter was An Objection Drawn from the Act of Union, Against a Review of the Liturgy and other Ecclesiastical Reforms Considered … The whole now submitted to the impartial After-thoughts of William Blackstone, Esq.25 Evidently compiled soon after the first book of the Commentaries appeared, although not published until 1770, this work disputed Blackstone’s claim that any alteration to the constitution of either the Church of England or the Church of Scotland would imperil the union of the two kingdoms, a point also addressed by Priestley. Jones maintained that Blackstone had misrepresented the purpose of the original treaty and 1707 Act of Union, which sought only to preserve the independence of each national church. Blackstone’s version, according to Jones, ‘so egregiously defaulted’ as to constitute ‘a slur upon his character as professor in so reputable a station’; indeed ‘it is generally thought, by knowing and disinterested persons, that party-views and connections’, together with other unspecified ‘attachments’, were responsible for perverting his judgment.26 In a postscript dated October 1769, Jones noted

23  Library of Congress, Manuscripts Division: Charles Inglis to Sir William Johnson, 28 March 1770; thanks to Jeffrey M Flannery for this reference. 24  Monthly Review, vol 41, 295, 298–301; see also Anthony Page’s Ch 5 in this volume. Further instances of reviewers’ criticisms are cited in the volume editors’ introductions to the 2016 Oxford edition of the Commentaries. 25  For Jones, see Oxford Dictionary of National Biography and JCD Clark, English Society 1660–1832 (Cambridge, 2000) 370; his responsibility for An Objection Drawn is established by a notice of his death in the Public Advertiser, 13 August 1770. 26  An Objection Drawn ‘Advertisement’, 4, 9, 20–21, 31, 78–80.

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that Blackstone’s Reply to Dr. Priestley’s Remarks still sought to maintain that the liturgy could not be altered, despite admitting Parliament’s capacity to remodel both national churches. Yet while seemingly endorsing the suggestion that ­Blackstone’s apparent concessions were mere ‘equivocation, or playing upon words’, Jones’s final paragraph marked something of a retreat, welcoming Blackstone’s ‘candid ­declarations’ of error as doing ‘more to retrieve and recommend his ­character … to impartial judges, than any less justifiable passages in his commentaries’.27 During the following decade such critical responses to Blackstone’s religious stance were echoed by a young Cambridge freethinker and James Burgh, the better-known Dissenting schoolmaster and publicist. Burgh raised several further issues, including the relationship of MPs to their constituents, while castigating Blackstone’s tendency ‘to persuade, that everything is right, when there is so much requiring redress’.28 Other specific points on which various writers disputed the Commentaries included the legality of impressing seamen, the omnicompetent sovereignty of Parliament, and the attorney-general’s power of filing informations ex officio.29 Such criticism had limited resonance, as compared to more general and radical indictments. Drafted after ‘a third perusal of Blackstone’s Commentaries’, Edward Gibbon’s ‘copious and critical abstract’ remained in manuscript until 1814; while welcoming Blackstone’s ‘rational System of the English Jurisprudence’, the studious Gibbon deprecated his ‘metaphysical enquiry into the nature of laws in general’ and ‘uncommon respect’ for ‘the old common law’, wishing ‘Mr Blackstone has talked a little less of Egbert, and of a right suspended from Edward the Confessor to James I’.30 Gibbon later saw Blackstone as a quasi-comic figure, ‘[t]he elderly lady in a male habit … one Sir William Blackstone, whose name you may possibly have heard’.31 Little if any levity characterised Jeremy Bentham’s exposure of his former teacher’s intellectual and moral failings. Even his first sallies in the facetious

27  ibid 95–97. A favourable review of Jones’s book appeared in the Monthly Review, vol 42 for February 1770, 124–31. 28  C Crawford, Letters from Academicus to Eugenius on Various Subjects (London, 1772, 1773) 19–24; J Burgh, Political Disquisitions (London, 1774–5) vol 1, 185–86, 371; vol 2, 39; vol 3, 285–86, 303. 29 [‘Nauticus’], The Rights of Sailors Vindicated (London, 1772); J Lind, Remarks on the Principal Acts of the Thirteenth Parliament of Great Britain (London, 1775) 61–63; C Sheridan, Observations on the Doctrine Laid Down By Sir William Blackstone, Respecting the Extent of the Power of the British Parliament, Particularly in Relation to Ireland (Dublin, 1779); [D.], An Interesting Address to the Independent Part of the People of England, on Libels … and a Candid Refutation of the Doctrine of Informations, as laid down in Blackstone’s Commentaries (1777); W Osgoode, Remarks on the Laws of Descent (London, 1779). The Monthly Review, vol 42 (March 1770) 245–46 briefly notices an anonymous Letter to Dr Blackstone, occasioned by a Passage in his Commentaries concerning the Character of the Ecclesiastics of the present Age, rebutting Blackstone’s optimistic portrait of the Anglican clergy, as ‘unblemished in their lives and conversation’; no copy of this work has been located. 30  The Miscellaneous Works of Edward Gibbon, Esq. ed J Holroyd, Lord Sheffield (London, 1814) vol 1, 214, vol 5, 545–57. 31  ibid vol 1, 301 (letter to John Holroyd, Lord Sheffield, 9 September 1789).

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preface to The White Bull have a sharp edge: thus ‘Dr Blackstone seems to think, so far as he allows himself to think, it’s the worst trick a man can get when he reads law. For which reason he has done all he can to break us of it.’32 Two years later Bentham’s Fragment on Government spent five chapters dissecting seven of Blackstone’s introductory pages, after a prefatory ‘Critique on the Work at Large’. Contemporary reaction was both mixed and muted. The Inner Templar Manasseh Dawes referred to ‘Judge Blackstone, whose name must be handed down to posterity with honor, as illustrated involuntarily by the superingenuous writer of a fragment on government’, characterised in an accompanying footnote as ‘a very labor’d pamphlet lately publish’d’.33 Another critic assumed that the anonymous author ‘will make but few converts to his way of thinking’. Yet the Monthly Review believed the attack was supported by ‘proper authority’ and ‘remarks sufficiently shrewd and severe’, while regretting that it had not appeared before, since ‘the reputation of Blackstone’s commentaries is now so generally established that, whatever reason or argument he [Bentham] may have on his side, they will hardly get the better of the prejudice and preposition, that have so powerfully got hold on the public.’34 During and after Blackstone’s lifetime the reputation of the Commentaries was inevitably influenced by readers’ perceptions of its author’s character, as well as by more obvious qualities of the text itself. This was not solely a matter of party and sectarian politics. Blackstone’s prominence within Oxford University during the 1750s had generated conflicting public images; so he was both hailed as an energetic reformer and opponent of institutional corruption, but also condemned for the devious and avaricious promotion of his own interests. During the 1760s his tenure of a Crown law office and a seat in the House of Commons tended to strengthen the latter view, which gained further reinforcement from his stance in the heated Middlesex election controversy of 1768–69 centring on the controversial figure of John Wilkes. Publication of the Commentaries also made it possible to identify apparent inconsistencies between printed statements on the page and subsequent public pronouncements by their author, creating opportunities famously exploited by the politician George Grenville, the anonymous writer ‘Junius’ and like-minded attackers of his resistance to Wilkes’s return as MP. Back

32  [J Bentham and F-M Voltaire], The White Bull, An Oriental History (London, 1774) vol 1, xxxiv; see also xli–xlii, lxii–lxiii. 33  M Dawes, A Letter to Lord Chatham, on American Affairs, And Wherein the Doctrine of Judge Blackstone, in his Celebrated Commentaries on the Laws of England, is opposed to the present System of Politicks (London, 1777) 16 [misnumbered 61]; the passage quoted occurs on the same page of the first (1776) edition, which has a slightly different title. See also M Dawes, An Essay on Intellectual Liberty (London, 1780) 83–85 for a more comprehensive attack on Bentham’s Fragment, contesting Blackstone’s alleged championship of religious intolerance and opposition to ‘civil reform’. 34  Morning Chronicle and London Advertiser, 6 July 1776. The London Review of English and Foreign Literature (July 1776) 1–7. See also [Anon.], An Interesting Address … on Libels (London, 1777) 51: ‘Judge Blackstone … against whose errors the author of the fragment on government properly warns the admiring student’.

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in Oxford, where Blackstone still continued to dabble in university politics, one partisan protested that I cannot understand his conduct. He was once a leader of a party here … His influence now reaches no further than the gates of All Souls, and is not general even there. His books shew that he is not a Tory in principle, and what the object is to which he thinks it worth his while to sacrifice truth and honour, I am at a loss to conceive.35

Promotion to the judiciary in 1770 brought further accusations of double-­dealing, insincerity, and subservience to court interests. Even before his ­appointment to the bench became public, a London newspaper nominated ‘The Time-Server, Memoirs founded on facts, by W. B—k—ne, Esq’ among a fictitious list of books and pamphlets ‘to be sold in Westminster-Hall’.36 An orphan and very much a selfmade man, lacking the independence that went with broad acres, while displaying little ease or grace in social situations, Blackstone was peculiarly vulnerable to such imputations.

III. Blackstone’s Critics The chapters in this volume discuss in detail some of the ways Blackstone and his Commentaries attracted both praise and criticism during his lifetime and beyond. Michael Lobban begins with an analysis of the Commentaries in the context of other law books. It was the ‘form of the work and its style’ that was original rather than its content, he observes, as Blackstone aimed to provide ‘a new narrative form which explained both the shape and working of the law as a whole’ (6–7). In doing so, Blackstone cited and distilled material from existing technical guides to the common law. Yet while he succeeded in providing an elegant and accessible introduction to the general structure of English law, Blackstone’s work was of less use on particular ‘tricky or developing areas of law’ (22). Blackstone was no original theorist, and Lobban notes that in his efforts to make the English legal system appear coherent he drew on a mix of theoretical ­positions that were in tension, if not contradictory. At times praising John Locke’s Two Treatises of Government and notions of natural law, Blackstone also made ­Hobbesian declarations about Parliament’s ‘sovereign and uncontrolable authority’ and ‘despotic power’. In his eclectic use of theory, Blackstone was very much a man of his times, when it was common to assume a happy alignment between English rights, natural rights and utility.37 So while the Commentaries generally

35  British Library, Additional MS 38457 fo 122, William Markham to Charles Jenkinson, 5 February 1768. 36  Gazeteer and New Daily Advertiser, 26 January 1770. 37  See, eg, I Hampsher-Monk, ‘British Radicalism and the Anti-Jacobins’, in M Goldie and R Wokler (ed), The Cambridge History of Eighteenth-Century Political Thought (Cambridge, 2006) 660.

xviii 

Introduction

bolstered a conservative reading of the constitution in church and state, Blackstone could also be selectively cited in support of political reform.38 This naturally left him open to criticism for inconsistency, not least by his Irish critics, as discussed by Ultán Gillen in Chapter 6 of this volume. Famously, the young Jeremy Bentham tore into Blackstone’s efforts to provide a systematic and rational account of the English laws for enlightened readers. While his contemporary impact was limited, Bentham’s subsequent fame has cast a lingering shadow over the Commentaries. Bentham figures prominently in Chapters 2 and 3 of this volume. The youthful Bentham’s anonymous preface to The White Bull (1774) and A Fragment on Government (1776) launched a life-long attack on his former teacher as an influential champion of the established constitution in church and state; the latter text claimed that the progress of reform and ‘the welfare of mankind’ required the ‘downfall of his works’.39 Philip Schofield casts further light on this campaign in discussing a neglected essay written by the elderly Bentham. Having become a democrat in the early years of the nineteenth century, this work (which still remains in manuscript) was intended to further the goal of discrediting England’s legal system in the eyes of the people. Bentham aimed to show how Blackstone and common lawyers generally ‘pretended that the law was different from what it really was and what it ought to be’ (28). Jessie Allen takes a fresh approach to this criticism in Chapter 3, drawing on scholarship about the nature and significance of ritual. She argues that Blackstone did not believe the common law was underpinned by ‘some transcendent master plan’, but rather that judges should nevertheless pretend to be ‘finding’ as distinct from ‘creating’ law—‘for Blackstone the performative means a court used to reach its results were as important as the substantive result’ (55). Allen’s thesis gains support from the pervasive importance of ritual in eighteenth-century society, as attested by ­scholarship on crowds and electoral behaviour.40 While the rationalist Bentham saw corruption everywhere crying out for reform, Blackstone saw reason in the rituals of law and society. Chapters 4 and 5 examine the theme of religion and politics in the context of Blackstone’s Oxford and English Protestant Dissent. Following JGA Pocock’s ­concept of multiple enlightenments, Ian Doolittle argues that Blackstone was part of an ‘Oxford Enlightenment’. Discussing Thomas Winchester, the Oxford tutor famously maligned in Edward Gibbon’s Memoirs, Doolittle emphasises similarities between Gibbon, Winchester and Blackstone as supporters of an established national Church.41 Developments at Oxford, and the popularity of the 38  RJ Smith, The Gothic Bequest: Medieval Institutions in British Thought, 1688–1863 (Cambridge, 1987) 94. 39  J Bentham, A Fragment on Government, ed J H Burns and HLA Hart (Cambridge, 1988) 4. 40  EP Thompson, Customs in Common (London, 1991); F O’Gorman, Voters, Patrons, and Parties: The Unreformed Electorate of Hanoverian England 1734-1832 (Oxford, 1989). 41 See also JGA Pocock, ‘Anglican Enlightenment and Christian Revelation: The Reception of Gibbon’s Decline and Fall’, Centre for Intellectual History, University of Sussex, 2 March 2010, .

Introduction

 xix

Commentaries were part of the rise of a ‘new right’ that culminated in the nineteenth-century Conservative Party.42 Vigorous defence of the privileges of the established Church of England was an important part of that process, and so it is not surprising that Protestant nonconformists were quick to sense danger in Blackstone’s influential exposition and justification of England’s discriminatory religious laws. According to Book IV of the Commentaries, first published in 1769, failure to conform to the Church of England remained a crime, since the Toleration Act of 1689 had only suspended penalties for orthodox Protestant nonconformists—it was effectively an act of indulgence that could be withdrawn at any time. In light of Dissenting criticisms Blackstone revised his language in subsequent editions, but did not change his fundamental interpretation and defence of England’s legal limits to religious toleration. Anthony Page argues that the clash with Blackstone played an important role in motivating Dissenters to campaign for greater religious liberty in the late eighteenth century. This early argument between a leading figure of the conservative ‘Anglican Enlightenment’ and a ‘Rational Dissenting Enlightenment’ prefigured the 1790s debate between Edmund Burke and radical reformers over the French Revolution. Blackstone’s Commentaries were also seen as a formidable defence of the status quo in Ireland. There, as Ultán Gillen shows in Chapter 6, Catholics took the lead in criticising Blackstone’s defence of the penal laws on religion. Yet the primary focus of criticism, from a variety of writers, was directed at Blackstone’s support for the sovereignty of the Westminster Parliament over Ireland. Once the Irish Parliament gained independence in 1782, however, there were fewer references to Blackstone until after the failed rebellion of 1798, when the Commentaries again became a source selectively cited by both sides of the debate leading up to the Act of Union in 1801. Our focus then shifts to family matters. In Chapter 7, Tim Stretton discusses the medieval exclusion of ‘half bloods’ from inheritance, which persisted until 1833. That antiquated provision did not cause widespread problems in the eighteenth century, if only because most propertied families prepared wills. ­ Blackstone, however, ‘fully endorsed the half blood rule’ and groped for ‘a unifying logic that simply did not exist’ (118, 131). This has puzzled some, and can provide evidence that Blackstone was a rigid apologist for all established laws. Stretton observes, however, that the Commentaries were so named because they aimed to comment ‘on the law as it was, not as it should be’ (129). Moreover, Blackstone did occasionally praise legislation that had improved obsolescent ­common law doctrines. On the half-blood rule he went so far as to provide some specific points for parliamentarians to consider, but stopped short of advocacy: ‘how far a private inconvenience should be submitted to, rather than a long ­established rule should be shaken; it is not for me to determine’ (129).

42 JJ Sack, From Jacobite to Conservative: Reaction and Orthodoxy in Britain, c. 1760–1832 (Cambridge, 1993).

xx 

Introduction

Blackstone formulated a strong definition of the law of coverture, whereby ‘the very being and legal existence of the woman is suspended during marriage, or at least incorporated and consolidated into that of her husband’.43 Viewed as an agent of England’s patriarchal establishment, Blackstone’s definition has been widely cited by feminists and other scholars as evidence of the depressed status of women under the common law. In Chapter 8 Carolyn Steedman criticises these critics, however, through a careful analysis of Blackstone in context: his definition of coverture was more nuanced than is often represented, the Commentaries was not widely cited on marriage until the twentieth century, and the actual experience of women in the eighteenth century was far more varied than Blackstone’s account of the law might suggest. As she concludes, although Blackstone on coverture has been highlighted by modern historians and campaigners for women’s rights, he ‘may be no good guide at all, to uncovering ordinary people’s criticism of the law in the past’ (152). Whatever Blackstone’s impact on the legal status of women, his broader influence on the training of lawyers in the common law countries is hard to overstate. David Lieberman’s Chapter 9 focuses on the role of Blackstone in debates over the academic teaching of law. As inaugural Vinerian Professor, Blackstone was also the first official university lecturer on England’s common law. A century after his death, however, his efforts to promote England’s universities as the best place to study law could be judged to have failed to overcome the prevailing view that the law was best learned in courts and chambers. Blackstone was variously cited by admirers and critics in the course of debate over legal education, while the Commentaries remained in use as an introductory text for trainee legal practitioners. Blackstone had a much larger impact in North America, and especially the US, where it is estimated that his Commentaries have been cited in over 10,000 judicial opinions.44 Our volume draws to a close with two chapters on late nineteenthcentury American responses to Blackstone. David Rabban in Chapter 10 discusses the influential historical school of American jurisprudence through an exploration of the extensive critical annotation included in William Gardiner Hammond’s innovative 1890 edition of the Commentaries. Hammond advocated a ‘science of law inductively obtained by studying the facts of history’, and left behind a very large but unfinished manuscript history of the common law that, if completed and published, would have outshone any similar volume of its time. Yet all was not lost, as much of this material informed the ‘copious notes’ of his edition of the Commentaries. In this form, Rabban observes, more readers may have been exposed to the historical school and its findings … than through the works of any other

43 W Blackstone, Commentaries on the Laws of England, Book I: Of the Rights of Persons, ed D Lemmings and W Prest (Oxford, 2016) vol 1, 284. 44 M Hoeflich, ‘American Blackstones’, in W Prest (ed), Blackstone and his Commentaries: Biography, Law, History (Oxford, 2009) 171.

Introduction

 xxi

American scholar’ (191). As John Orth notes in Chapter 11, ‘Blackstone’s Commentaries formed part of the mental furniture of American lawyers’. And for this reason, Walter Clark, a Progressive judge on the North Carolina Supreme Court from 1889–1924, blamed Blackstone for fostering conservatism among American lawyers. His ‘silken smoothness’ had ‘thrown a glamour around the common law’, and Clark was enraged that Americans continued to study ‘so inaccurate a writer whose views are so entirely at variance with the equality of all ranks’ (197–98).45 Yet while Judge Clark railed against the influence of Blackstone in various publications, Orth shows that he frequently cited the Commentaries in court. It was Blackstone’s complacent tone and opposition to radical reform that enraged this Progressive jurist, while at the same time he found the Commentaries a clear exposition of the common law for a working judge. Wilfrid Prest’s survey of the ebbs and flows of Blackstone’s posthumous reputation in Chapter 12 brings this volume to a close. Multiple editions of the Commentaries were published in England and Ireland in the half-century ­following Blackstone’s death, but that publishing activity waned with the flood of new legislation in the decades following the Great Reform Act of 1832. Hence Blackstone’s work entered a phase of relative neglect, caricatured as rigidly conservative and obsolete, and to a large extent supplanted by Henry Stephen’s New Commentaries on the Laws of England (partly founded on Blackstone). It was the reverse case in the US, where few new editions appeared before 1830, but 15 were published in the following two decades—owing in part to the far more prominent role of universities and private law schools in American legal training. In the ­twentieth century the Commentaries lost their former place in legal education, but gradually gained much more careful and respectful attention from scholars. Today the Commentaries continue to be cited as an authority in the courts of common law jurisdictions, by discussants, journalists and conservative polemicists, and by scholars pursuing various lines of academic research. Among the latter, historians of the eighteenth century often find themselves correcting distorted depictions of ‘unreformed Britain’ handed down by reforming Victorians—and this has ­certainly been the case for William Blackstone, one of England’s leading voices in the Age of Reason.

45 Like other Southern Democrats, Clark’s concern for equality did not extend to AfricanAmericans—born into a slave owning family, as a teenager Clark served in the Confederate army ­during the Civil War.

xxii 

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

1 

Annual Register for the Year 1767 (London, 1768) 287. J Bentham, A Fragment on Government, ed JH Burns and HLA Hart (Cambridge, 1988) 23. 3  See D Lemmings, ‘Editor’s Introduction to Book I’ in W Blackstone, Commentaries on the Laws of England, Book I: Of the Rights of Persons, ed D Lemmings and W Prest (Oxford, 2016) xvii. In this chapter, references to Blackstone’s Commentaries appear either in footnotes or text thus: (II, 135 [200]). In both cases, the Roman numeral indicates the volume number, the following Arabic number refers to the pagination of the 2016 Oxford edition and the final number in square brackets refers to the pagination of the original (1765–69) edition. 4  T Ruggles, The Barrister: or Strictures for the Education Proper for the Bar (London, 1818) 201. 5  SFC Milsom, ‘The Nature of Blackstone’s Achievement’ (1981) 1 OJLS 12; AWB Simpson, ‘The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature’ (1981) 48 ­University of Chicago Law Review 632–79. 2 

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Michael Lobban

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

6 

JH Burns, ‘Bentham and Blackstone: a Lifetime’s Dialectic’ (1989) 1 Utilitas 22–40. Albert W Alschuler, ‘Rediscovering Blackstone’ (1996) 145 University of Pennsylvania Law Review 10–11. 8  J Priestley, Remarks on Some Passages in the Fourth Volume of Dr Blackstone’s Commentaries on the Laws of England, Relating to the Dissenters (London, 1769), discussed in Ruth Paley’s introduction to W Blackstone, Commentaries on the Laws of England, Book IV: Of Public Wrongs, ed R Paley and W Prest (Oxford, 2016) xviii–xx; see also Ch 5 of this volume. 9  A Treatise on the Study of Law (London, 1797) 62n. See further, M Lobban, The Common Law and English Jurisprudence 1760–1850 (Oxford, 1991) 48–50. 10  Dr William’s Library, Gordon Square, London: Diary of Henry Crabb Robinson, 6 March 1811, 22 April 1811, Contrast Sir George Stephen’s view that Blackstone’s summaries were too general, and so presumed a legal knowledge to make sense of them: ‘nobody can take up Blackstone and read it through a first or second time and understand it’: Select Committee on Legal Education, Parliamentary Papers 1846 (686) X I, p 155 (q 2020). 7  See

Rationalising the Common Law

 3

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

11 

See, eg, G Booth, The Law of Real Actions (London, 1704). Contract or Agreement is the Mind or Intent of the Parties, which ought to be Reciprocal, Mutual or Equal on both sides, so that each of them may have of the other Quid pro quo, that is, an Equivalent, or what is Tantamount to a valuable Consideration’: [R Gardiner], Enchiridion C ­ lericale: Or, a Manual of proper and useful Presidents In Clerkship, Relating to Contracts and Agreements, ­Obligations, Recognizances and Statutes (London, 1701) 13. 13  J Lilly, The Practical Conveyancer (London, 1719). 14  W Sheppard, A Touchstone of Common Assurances (London, 1648) 86–88. 15  Eg, [Anon.], The Tradesman’s Lawyer (London, 1703), which was aimed at ‘the Commonality and ordinary Tradesmen’ who did not have the learning and leisure which men of the higher rank had, to read law. Much of this work was about the law of contract, and in particular the rules relating to sales effected by verbal contracts. See also Thomas Goodinge, The Law against Bankrupts (London, 1695). 12  ‘A

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Michael Lobban

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

16  Tenants Law, 15th edn (London, 1760), 236. ‘There are two Kinds of Waste, voluntary and permissive. Voluntary, by Commission or by pulling down, &c. Permissive, by Negligence or Omission, as in not repairing. Both are equally injurious to him that hath the Inheritance’. 17  W Blackstone, Commentaries on the Laws of England, Book II: Of the Rights of Things, ed S Stern and W Prest (Oxford, 2016), 191–92 [281-82]. Cf. British Library, Additional MS 36097 fo 67 (notes from Blackstone’s lectures in 1761–62 by John Edwards): ‘The seventh and last species of Forfeiture is by Waste, vastum a vastando, which is spoil or destruction in any corporeal Hereditaments, as Houses, Gardens, Lands, Trees, Meadows, &c to the disherison of him in the Reversion or Remainder in Fee Simple or Free Tail. l Co Lit 53: Waste is either voluntary or permissive voluntary is by commission, as pulling down a house. Permissive is by omission, as suffering a house to fall whatever does lasting damage to the Freehold or to the Inheritance is Waste, as removing wainscot, floors or other things fixed to the Freehold. But damage done by a Tempest or other Act of God, is no Waste’. 18  TE Tomlins produced an edition of this work in 1797, and continued to produce editions of it in the nineteenth century under his own name.

Rationalising the Common Law

 5

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

19  M Hale, ‘Preface’ to H Rolle, Un Abridgment des Plusiers Cases et Resolutions del Common Ley (London, 1668). 20  This work, published by the assignees of the law patent, continued to be popular, reaching a final tenth edition in 1772, the same year that the law printer William Strahan bought the copyright in Blackstone’s works, and so had no further need for a rival, inferior text. See T Baloch, ‘Law Booksellers and Printers as Agents of Unchange’ (2007) 66 CLJ 404. 21  This was a method with which Wood was familiar, having published A New Institute of the ­Imperial or Civil Law (London, 1704). 22  R Brooke, La Graunde Abridgement, collecte & escrie per le tresreuerend Sir Robert Brooke (­London, 1586); A Fitzherbert, La Graunde Abridgement collecte par le iudge tresreuerend monsieur Anthony ­Fitzherbert (London, 1565). 23  See W Nelson, Abridgment of the Common Law (London, 1725–6) and J Lilly, The Practical ­Register, or a General Abridgment of the Law (London, 1719), derived from W Style’s Regestrum ­Practicale, or the Practical Register (London, 1657).

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Michael Lobban

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, G ­ ilbert’s executor proved powerless to stem the flow of pirated e­ ditions 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 principled and discursive. Blackstone did aim to do something new, however. As was amply testified by the fact that his prime audience was one of university students, his ambition was not to write the kind of detailed and comprehensive work on the law of England of the kind Gilbert had in mind. Instead of descending to the kind of detail found in the new abridgments, he wanted to present clear explanations and definitions of doctrine for the general reader, and in a coherent theoretical structure. It was to present the kind of information which different readers might hitherto have found in the dictionaries, institutes or abridgments, but in a new narrative form which explained both the shape and

24  C Viner, A General Abridgment of Law and Equity (Aldershot, 1743) vol 1, preface (this volume, which commenced with ‘Factor’—to take up where D’Anvers had left off—was renumbered as vol 11 once all the volumes had been printed, to follow the alphabetical order). 25  On the project, see M Macnair, ‘Sir Jeffrey Gilbert and his Treatises’ (1994) 15 Journal of Legal History 252–68; and M Lobban (ed), Jeffrey Gilbert on Property and Contract (London, Selden Society, forthcoming). 26  [M Wright], An Introduction to the Law of Tenures (London, 1729) 1–2. 27  J Comyns, A Digest of the Laws of England (London, 1762) vol 1, iii.

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 7

working of the law as a whole. However, as shall now be seen, in p ­ utting together his narrative, Blackstone drew heavily on the work of his antecedents, often distilling information from other sources, so far as suited his purposes. Indeed, at a number of points, readers who wanted more specific information were advised to ‘refer to such authors as have treated the matter in detail’ (II, 15 [24]).

II.  The Content of the Commentaries It was not the content of the Commentaries which made for its originality, but rather the form of the work and its style. Blackstone’s work was a very w ­ ellorganised compendium of material drawn out of other sources, and r­ e-presented in a way which made it clear and comprehensible to generalist readers. This can be seen particularly in his discussion of real property law in Book II, where he was covering very well-trodden legal ground. Blackstone structured his material in a very clear and logical way: after an introduction to the various kinds of tenure, he turned to analyse ‘estates’—that is, the interest a person could have in lands or tenements (II, 103).28 This material was divided into two general parts. The first of these discussed the nature of estates, which were analysed under three different aspects: the quantity of interest a person had in an estate, the time in which it was to be enjoyed, and the number of parties involved. When dealing with the quantity of interest a person had in land, he began with freehold property (including that which was inheritable either in fee simple or in fee tail, and interests which were not inheritable, such as estates for life or dower), and then moved to nonfreehold property (such as estates for years or estates at will such as copyholds). After mapping out the kinds of estates one could have, he turned to the time in which the interest commenced, allowing him to discuss remainders and reversions, before turning to joint and several interests. Having described the nature of estates, he turned in the second part to discuss how they were gained and lost. Here Blackstone set out the rules of descent at common law, and then the other ways in which property was passed, such as escheat, devise and alienation (which included the transfer of property by deed or by legal acts such as the devices of fines and recoveries). While the way Blackstone laid out these complex topics was beautifully logical, it was not strikingly innovative. The second part of Wood’s Institute, on Estates, also began with a discussion of the nature of estates (covering freehold estates in fee simple and fee tail, estates for particular terms, including curtesy and dower, tenures at will such as copyholds, joint tenancies and remainders and reversions) before turning to how they could be acquired and lost. Furthermore, when it

28  G Jacob, A New Law Dictionary (London, 1756) tit. Estate: ‘that Title or Interest which a Man hath in lands or Tenements’.

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came to the detail, there were also structured models for Blackstone to draw on. This can be seen, for instance, in his discussion of alienation by deed, the most important vehicle for conveying property in his era. Once again, his structure was logical and clear: he began by defining deeds in general (setting out the formal requisites for a deed, and noting how they could be avoided) before discussing different kinds of conveyances (such as grants or leases). This chapter sought to digest a very extensive body of learning, but Blackstone was able to draw heavily on earlier writers who had also sought to make sense of these rules. For instance, Sheppard’s Touchstone devoted considerable space to discussing the requirements of deeds, and set out the rules in clear numbered paragraphs.29 Sheppard’s discussion of the rule that all deeds had to have a ‘good foundation’ was—as might be expected from a longer treatment—rather more nuanced than Blackstone’s brief coverage and included material not covered in the Commentaries (such as the absence of duress).30 ­Similarly, Blackstone’s elaboration of the rules relating to fines—another ‘very usual species of assurance’—was again clear and logical (II, 236–40 [348–53]); but again had plentiful models to draw on. Thus, the five aspects and four kinds of fine described by Blackstone were clearly set out in other specialist works dating from the seventeenth century, such as William Brown’s Treatise of Fines.31 Blackstone’s discussion of the construction of deeds, at the end of the chapters on real property, were also a model of clarity, but here again he was treading on ground already covered methodically by writers on deeds such as Sheppard.32 When it came to matters of detail, there were also older sources to draw on. Prime among these for Blackstone—as for all lawyers—was Coke upon Littleton, that great repository of largely unstructured learning which all law students had to master. For instance, Blackstone’s definitions of corporeal hereditaments in the second chapter were largely taken from the early pages of Coke upon Littleton.33 He drew on other classic seventeenth century sources, such as Charles Calthorpe’s reading on copyhold.34 Blackstone was also prepared to direct readers to more recent material. Having discussed leases, he referred the reader to the entry in Bacon’s Abridgment, ‘where the subject is treated in a perspicuous and masterly manner; being supposed to be extracted from a manuscript of Sir Geoffrey ­Gilbert’ (II, 220 [322–23]).35 Work published in Gilbert’s own name was also drawn on by

29 Sheppard, Touchstone

56–68. Blackstone, Commentaries Book II, 203–204 [296–98] with Sheppard, Touchstone 60–66 on the issue of consideration. 31  W Brown, A Compendious and Accurate Treatise of Fines (London, 1693) 6–9; cf R Manby, The Law and Practice of Fines and Recoveries (London, 1738) 9–10. 32  Compare Blackstone, Commentaries vol 2, 257–59 [379–83] with Sheppard, Touchstone 86–87. 33 Blackstone, Commentaries vol 2, 11 [17–18], following Coke upon Littleton 19a. 34  C Calthorpe, The Relation between the Lord of a Manor and the Copyholder his Tenant (London, 1650), drawn on in Blackstone, Commentaries vol 2, 99–100 [147–48]. 35  Blackstone referred to the discussion of ejectment in M Bacon’s New Abridgment of the Law, vol 2 (London, 1736) 160 as ‘Gilbert of ejectment’: Blackstone, Commentaries vol 3, 290 [441]. 30 Compare

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Blackstone at a number of points in Books II and III, both for matters of detail and for matters of interpretation. Blackstone’s originality in discussing the rules of real property in Book II did not therefore come from any novel recasting of the actual rules: for many of his definitions and descriptions were to be found in specialist treatises36 or even ­dictionaries.37 What made Blackstone’s work so much more compelling was that he tried to bring it to life, by explaining the reasons and presuppositions behind the rules. For instance, when discussing rights of common, Blackstone explained that it was a universal right originally permitted not only to encourage agriculture but also from the necessity of maintaining the beasts that ploughed the lands granted by the lord. This notion of necessity also explained the distinction between rights of common appurtenant (a right which related to smaller animals such as goats) and rights of common appendant (a common right relating to larger beasts): since the smaller beasts were not necessary to plough the lands, their right had to be prescribed for (II, 20–21 [33–34]). Blackstone derived this explanation from Coke’s discussion in the second volume of the Institutes, but he wove it into his description in such a way as to link the description and explanation in a manner which would clarify the sense of it to the reader. Blackstone’s discussion of the bases of feudal tenures also set out the theory and practice in basic steps, which explained to the reader how feudal grants were effected (including acts of homage), and what interests in the property passed. Blackstone took nothing for granted, but explained the working of the system step by step. All real property, he noted, was ‘holden’ of some superior who was supposed to have granted it: ‘[t]he thing holden is therefore stiled a tenement, the possessors thereof tenants, and the manner of their possession a tenure’ (II, 39 [59]). Having set out the feudal basis of the fee (including the way in which grants were made with homage and livery of seisin) Blackstone went on to explain that (with the decline of military tenures), the word ‘fee’ had come to be used in a second sense, to mean an estate of inheritance, the highest kind of property a person could have.38 He then proceeded to explain how real property held in fee could be transferred, and how it could be in abeyance. He explained the highly complex rules about reversions and remainders in equally straightforward terms. Noting that the common law did not allow for the creation of entirely future interests, he pointed out that ‘at common law, no freehold in lands could pass without livery of seisin, which must operate immediately, or not at all’. This meant that no remainder could be created, without a precedent particular estate being created. Blackstone explained this with simple examples: ‘As, where one leases to A for three years, with remainder to B in fee, and makes livery of seisin to A, here by the livery the freehold is immediately created, and vested in B, during the continuance of A’s term of years’ (II, 111–112 [165–66]). 36  cf Blackstone, Commentaries vol 2, 17 [28] with J Godolphin, Reperorium Canonicum: or an Abridgment of the Ecclesiastical Laws of this Realm (London, 1678) 392–93. 37  cf Blackstone, Commentaries vol 2, 20 [32] with Jacob, New Law Dictionary, tit. Commons. 38  Compare Wright, Tenures, 148.

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Blackstone’s great skill was to reduce familiar complexities to comprehensible outlines, and to explain—albeit in simple terms—exactly how the system was meant to work. His style and capacity to explain reaped very rich rewards. He made it plain to his readers that his ‘elementary disquisitions’ did not seek to enter into ‘the particular subtleties and refinements’ into which doctrines such as remainders had been ‘spun out and subdivided’ (II, 116 [172]). One drawback of this approach, however, was that it might leave not only the lawyer but also the gentleman with only a superficial knowledge of the workings of the law. ­Furthermore, because he was giving an overview of the entire law of real property, his picture was unrepresentative of the legal system his readers would encounter in the world in which they lived. This was most evident in his cursory treatment of trusts, which were covered in Chapter 20 (on alienation by deed). By the 1750s, English landed families were used to making forms of settlements, involving complex remainders, in which property was vested in trustees. However, in contrast to the common law of real property, whose literature was both extensive and very well-established, there was relatively little work on the nature of trusts and the duties of trustees. Blackstone’s cursory treatment of the topic may therefore have reflected the fact that the sources were lacking. However, it is noteworthy that he did not seek to fill the gap by explaining the actual operation of trusts for eighteenth-century gentlemen. Most of his treatment of this topic was devoted to tracing the origin of uses (which he described as a transplantation of the Roman notion of the fidei commissa by medieval clerics seeking to avoid the rules of mortmain) and to the Tudor legislative response.39 The trust itself was seen simply as another form of conveyance, and the trust estate was described as ‘equivalent to the legal ownership’ (II, 229 [337]; cf III, 288–89 [439–40]). Once on unfamiliar grounds, Blackstone’s treatment was not simply inadequate, but positively misleading. When it came to the law of contract, the existing treatise literature was also much thinner than was the case for the law of real property. No treatise had yet been published which sought to put the law of contract in general on principled foundations, though Jeffrey Gilbert had drafted such a treatise in manuscript. The law relating to contract was generally discussed in the existing literature in terms of the forms of action used to remedy contractual breaches: notably the actions of assumpsit, covenant and debt.40 Blackstone followed this model in his chapter ‘Of Injuries to Personal Property’ in Book III, in which he discussed the actions of debt, covenant and assumpsit. In this chapter, Blackstone was setting out familiar material, though he did incorporate some of the more recent formulations (such as Lord Mansfield’s description of the action of money had and received in Moses 39  This idea was borrowed from J Gilbert, The Law of Devises, Revocations and Last Wills (London, 1756) 6–7 (cited at Blackstone, Commentaries vol 2, 254 [375]); cf The Law of Uses and Trusts (London, 1734) 3. 40  The Law of Obligations and Conditions (London, 1693); The Law of Covenants (London, 1711); [F Buller], An Introduction to the Law relative to Trials at Nisi Prius (London, 1767) ‘Of Actions founded upon Contract’ 119–69. In his Institute, Wood treated these topics in Ch 4 ‘Of Proceedings in suits or civil causes’ of Book 4 ‘Of the Courts of Justice or Jurisdiction of Courts’.

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v Macferlan).41 Blackstone was more innovative in seeking to describe the various kinds of contracts which could be entered into, which he did in Book II (dealing with the ‘rights’ created by contract), though even here there were some models to draw on. He divided contracts into four different ‘species’: sale, bailment, hiring and borrowing, and debt. In mapping out these topics, he borrowed partly from the model of Roman law, three of whose four consensual contracts—emptio ­venditio, mandatum and locatio conductio—covered topics analogous to his. He also drew on Roman law in his discussion on sale, arguing for instance that the common law followed the civil law model of implying a warranty of the seller’s title to goods (II, 306 [452]). When it came to more modern matters of commercial law, he drew on more recent sources, including the well-known commercial texts of Malynes and Molloy.42 Furthermore, for the law of bailment, Blackstone acknowledged that the law had been ‘settled upon a much more rational footing’ by the decision of Coggs v Bernard.43 The discussion of the various kinds of contract in Book II—which touched on insurance and bills of exchange—certainly provided a useful (albeit very general) introduction to important modern forms of contract. However, Blackstone’s discussion of these topics was cursory, something which might be accounted for as much by the fact that (as with trusts) he had relatively little literature to draw upon44 as by an editorial choice to emphasise landed rather than commercial property.45 Furthermore, as shall now be seen, Blackstone did not put forward a coherent theoretical vision which could explain the content of English private law. If his bifurcation between rights and wrong made for organisational elegance, it lacked an underpinning theory and so left much doctrine unexplained.

III.  Blackstone’s Theoretical Explanations Blackstone’s aspiration to make the legal system as a whole appear coherent led him to attempt theoretical explanations of his material. The tensions in B ­ lackstone’s

41 

Moses v Macferlan (1760) 2 Burr 1005 at 1012, cited in Blackstone, Commentaries vol 3, 109 [162]. Malynes, Consuetudo vel Lex Mercatoria, or the Ancient Law Merchant, 3rd edn (London, 1686); C Molloy, De Jure Maritimo et Navali, or a Treatise of Affairs Maritime and of Commerce, 6th edn (­London, 1707). 43  Coggs v Bernard (1703) 2 Ld Raym 909, noted in Blackstone, Commentaries vol 2, 306 [453]. 44  This may explain Blackstone’s comment that the law of insurance was ‘not easy to reduce’ to general heads ‘being founded on equitable principles, which chiefly result from the special circumstances of the case’. Blackstone, Commentaries vol 2, 311 [461]. The first systematic insurance treatise in ­English is generally taken to be J Weskett, A Complete Digest of the Theory, Laws, and Practice of Insurance (London, 1781). In other areas, however, there was some literature: see, eg, T Cunningham, The Law of Bills of Exchange, Promissory Notes, Bank-Notes, and Insurances (London, 1760). 45  As Simon Stern explains, ‘[g]reater attention to emerging forms of property would have forced him to replace the broad lines of his “general map” with a more fragmented and kaleidoscopic picture’: Commentaries vol 2, xv. 42 G

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theorising—which spoke of the law in terms of command, nature and custom at various points—have long been evident to his critics. Blackstone was in many ways flattered to have attracted the amount of attention his theoretical writings received from major jurists, for he was by no means a sophisticated theorist.46 Much of his theoretical discussion was derived from a variety of sources, which he sought to digest for his readers. Moreover, much of Blackstone’s theoretical digesting was intended not to set out a coherent theory of the nature of law, or of the content of law, but rather to present a particular vision of the English constitution. As Sir Henry Maine pointed out as early as 1861, the command-centred concept of law set out in Blackstone’s section on ‘the nature of laws in general’ was heavily indebted to Jean-Jacques Burlamaqui’s Principles of Natural Law.47 ­Blackstone’s definition of law in general as a ‘rule of action, which is prescribed by some superior, and which the inferior is bound to obey’ had very strong affinities with ­Burlamaqui’s views as set out in the chapter ‘Of Law in General’. Burlamaqui began by discussing the dependent nature of man, and argued that ‘that as soon as [man] acknowledges a superior, to whose power and authority he is naturally subject, […] he must acknowledge likewise the will of this superior to be the rule of his actions’. When it came to municipal law, Blackstone defined it as ‘the rule of civil conduct, prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong’. Burlamaqui defined law as a ‘rule prescribed by the sovereign of a society to his subjects’.48 Blackstone’s argument that God commanded the ‘eternal, immutable laws of good and evil’ (encapsulated in J­ ustinian’s the ‘three general precepts’), which were to be discovered through the pursuit of happiness, also had strong echoes of Burlamaqui.49 The same may be said of Blackstone’s discussion of the origins of civil society. Blackstone rejected the idea of a state of nature as ‘too wild to be seriously admitted’ (I, 47), and argued instead that men’s sense of their weakness and imperfection was the ‘natural foundation’ of society. Once society was formed, government followed of course, requiring a superior governor; and a society of equals could naturally agree that the governing power should be conferred on those who possessed ‘the three grand requisites … of wisdom, of goodness, and of power’ (I, 48). Burlamaqui’s longer treatment similarly rejected the notion of a state of nature and argued that man’s natural inclinations were to seek society, the essential character of which was ­subordination to

46  Besides Bentham’s critiques, see, eg, HLA Hart, ‘Blackstone’s Use of the Law of Nature’ (1956) 3 Butterworth’s South African Law Review 169–74. 47  H S Maine, Ancient Law (London, 1861) 114. Subsequent scholars have debated the exact nature of Blackstone’s debt to Burlamaqui: see P Lucas, ‘Ex parte Sir William Blackstone, “Plagiarist”: a Note on Blackstone and the Natural law’ (1962) 7 American Journal of Legal History 142–58; JM Finnis, ‘Blackstone’s Theoretical Intentions’ (1967) 11 Natural Law Forum 163–83. 48 Blackstone, Commentaries vol 1, 33, 36 [38–39, 44]; JJ Burlamaqui, Principles of Natural Law (London, 1748) 77–78. 49  Indeed, Burlamaqui’s focus on happiness was an innovative feature of his theory, distinguishing it from Grotius and Pufendorf. R Douglass, ‘Rousseau’s Debt to Burlamaqui: the Ideal of Nature and the Nature of Things’ (2011) 72 Journal of the History of Ideas 212.

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supreme authority, whose ‘right of sovereignty arises from a superiority of power, accompanied with wisdom and goodness’.50 Alongside these positivist passages, Blackstone introduced notions which bore a close affinity to Locke’s arguments in the Second Treatise of Government, such as the notion that society rested on an implied original contract, and that the King’s power and position derived from a contract entered into with the coronation oath. Equally, his discussion of absolute rights as being those which were vested in individuals ‘by the immutable laws of nature’ and which it was the primary end of human laws to maintain, and his identification of the rights to personal security, personal liberty and private property as absolute rights (I, 120, 125) had a L ­ ockean flavour. By contrast, Blackstone’s discussion of the laws of England, in section 3, which stressed its foundation in an unwritten, customary law, drew largely on English legal writers, including Coke, Selden and particularly Hale, whose ­History of the Common Law was very heavily used.51 When drawing on this variety of ­writers, Blackstone was not developing a theory of his own as much as putting together a rhetorical argument, which would serve to provide a political defence of the British constitution rather than to explain the law and its operation. Blackstone’s positivist conception of law found its most practical articulation in his argument that parliament had ‘sovereign and uncontrolable authority’ so that it could ‘do every thing that is not naturally impossible’ (I, 107 [156]). He rejected the idea that Parliament was bound by natural law, or by any original compact or trust, and so rejected the Lockean position that the people had the right to rebel against a sovereign legislature which violated their natural rights. He also argued that the ‘absolute’ rights to life, liberty and property which existed in a state of nature could not simply be translated into society: in giving up the absolute liberty man had in the state of nature for the political liberty he obtained in society, he subjected himself to the rule of law, which both ‘established’ and enforced the rights men now had.52 As legal theory, this had a Hobbesian flavour, in which ­natural law was subsumed to the laws emanating from the sovereign power. H ­ owever, the vision of law which Blackstone wished to present in these pages was also influenced by Montesquieu’s vision of the rule of law. M ­ ontesquieu’s vision of the French constitution saw a sovereign King who was supreme lawmaker, unbound by any higher legislature, but who was nonetheless guided by a ‘fundamental law’ reflected in a body of laws and institutions developed over time. In Montesquieu’s view, political liberty through the rule of law could only be secured by a careful arrangement of the institutions of government, such as had

50 Burlamaqui, Principles

of Natural Law 42, 89–90. Compare Blackstone’s discussion of the leges non scriptae at Commentaries vol 1, 48 [63–4] with M Hale History of the Common Law (London, 1713) 25, or the discussion of general custom at vol. 1, 51 [68], with History 25. 52 Blackstone, Commentaries vol 1, 44, 85–6 [56, 122]. At Commentaries vol 2, 142 [ 211], Blackstone argued that since all rules of succession to property derived from positive law, there could be no injustice to individuals, whatever the path mapped out by descent. 51 

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been achieved in England.53 However, it was not the mere mechanical arrangement of institutions which secured the rule of law for Montesquieu: it was rather an animating spirit. B ­ lackstone had of course read the Frenchman’s famous text and drew on it. H ­ aving acknowledged Parliament’s despotic powers, he invoked Montesquieu to argue for vigilance in guarding against the political corruption of parliament (I, 97, 107 [140, 157]). Much of Blackstone’s discussion in the first chapter of Book I of the ‘absolute rights’ to life, liberty and property, was also concerned with showing how in English history, a culture of the rule of law had been entrenched, so that no man could be deprived of his life, liberty or property, save by law.54 This was a theme he returned to in the last chapter, when he argued that the passing of the Habeas Corpus Act in 1679 saw the ‘theoretical perfection of our public law’, a time when ‘by the law … the people had as large a portion of real liberty, as is consistent with a state of society’ (IV, 283 [431–33]). If this political vision could explain the constitutional importance of the body of the common law as it had evolved over time, it did little to explain the content of the common law. In a brief passage which attracted Bentham’s censure, ­Blackstone noted that the most important source for the rules of the common law was the judiciary, the ‘oracles of the law’, whose decisions were ‘evidence’ of what the common law was (I, 52 [69]). As with much else in the Commentaries, this was not a novel idea but reflected a mainstream view that the ‘customs’ which made up the common law were articulated by the judges.55 However, this in turn begged the question of how the judges were to know what this law was. What principles underlay the common law? This was a question which other eighteenth century writers had wrestled with, and they had come up with different answers, depending on the area of law in question. When it came to land law, a number of writers looked to the history of feudalism for explanatory underlying principles.56 When it came to the law of obligations, they looked to rational principles based on a theory of natural law. A number of Blackstone’s antecedents sought to explain the principles of real property law by reference to feudal history. The most prominent was Sir Martin Wright, whose 1729 treatise on Tenures described the rise of the jus feodale in Europe, its reception in England, and how modern rules derived (and differed) from this source. Wright argued that feudal tenures had not existed prior to the Norman conquest, but had been introduced by a law of the Commune Concilium of the nation, as part of a new military policy which recognised a fiction that the King

53 Montesquieu, The Spirit of the Laws, trans T Nugent (London, 1793) 12 (Book 2, Ch 4) 112–20 (Book 11, Ch 6). 54  On Blackstone’s ‘political project’ in which the rule of law played a central role, see further the introduction by David Lemmings to W Blackstone, Commentaries, ed D Lemmings and W Prest (Oxford, 2016) xxxviii–xxix. 55  See Hale’s less elaborate articulation of the point: History 68. 56 They drew on the extensive seventeenth-century debates first analysed in JGA Pocock, The Ancient Constitution and the Feudal Law (Cambridge, 1957).

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was universal lord of all lands. Although feudalism was introduced by consent, the English lords did not fully understand the ‘extent and consequences’ of the law which was ‘probably penned by some Norman feudist’ and which was soon turned to their disadvantage by Norman lawyers.57 Although many of the rules associated with feudal tenures had been removed by medieval statutes, Wright noted that ‘the seeming Hardships in our Rules or Laws of Discent’ which persisted—such as primogeniture or the exclusion of the father and of the half blood—were feudal in origin.58 Jeffrey Gilbert also wrote extensively on the feudal nature of English property law, seeking to explain the rules of tenure by reference to the military systems of the northern nations which conquered the Roman empire. Unlike Wright, Gilbert argued that the feudal system was integral to the social structure of the northern nations, of which Anglo-Saxon England was a part, and that feudal tenures were known in England before the conquest. The entire system was rooted in military practices: The Feudal Succession came in this Manner: the Lords gave Lands to such Persons as behaved themselves well in the War, for their Lives only: Sometimes they also married their Daughters to them. Then by their Feudal Donations, they limited the Lands to go not only to the Feudary himself, but also to the Issue of that Marriage.59

Blackstone, who drew heavily on these authors, also laid stress on the feudal framework of English property law. Unlike Thomas Wood, for instance, he discussed tenures and estates in separate sections, allowing him to explain the feudal origins of the law of tenure more clearly. Borrowing his categories from ­Bracton,60 he mapped out two kinds of free tenure—knight service and socage tenure— which were distinguished by whether they had uncertain or certain services; and two kinds of unfree tenure—villeinage and villein-socage—which were similarly distinguished. From these origins were derived the two species of modern tenures—‘free tenure in common socage; and base tenure by copy of court roll’ (II, 101). The feudal origin of knight service explained not only the incidents of freehold estates which had been abolished in 1660, but also the rules of descent which persisted, such as primogeniture or the rule that estates should never lineally ascend.61 ­Similarly, an historical analysis explained the origin of copyholds as descended from villeinage. From Coke’s Complete Copyholder, he took the notion that ­copyhold derived from Saxon folkland, which was land granted to

57 Wright, Tenures

53–86. 174. Similarly, the writ of cessavit, by which a lord might ultimately recover land of a tenant who failed to perform services, had feudal roots, ibid 202. 59 Gilbert, Tenures 8–9. 60 Blackstone, Commentaries vol 2, 40–41 [61–62], following Bracton: see Bracton on the Laws and Customs of England, ed SE Thorne and G Woodbine (Cambridge MA, 1968–77) vol 3, 127, 131–32. 61  In Blackstone’s view, this was because the fee had either already passed through the ancestor (in the case of a feudum antiquum) or (in the case of a feudum novum) had to go to a younger and fitter vassal. But it was also defended as being ‘founded on a principle of natural reason’. Blackstone, Commentaries vol 2, 140–42 [210–12]. Cf, Wright, Tenures 182, which explained the second branch more logically. 58 Wright, Tenures

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the meaner sort for villein services.62 From Wright’s brief treatment, he took the idea that villeinage was not wholly feudal, for the Normans had simply added the notion of fealty to an existing status of Saxon bondage.63 In Blackstone’s summary, copyholders were ‘no other but villeins, who, by a series of immemorial encroachments on the lord, have at last established a customary right to those estates’— preserved on the record of the court roll—‘which before were held absolutely at the lord’s will’ (II, 95). Blackstone also drew occasionally on these authors for explanations of particular doctrines.64 For instance, he used Gilbert’s work when explaining the rule that a person who had been disseised of his land could assert his continuing right of possession by ejecting the disseisor, but could not do so if the disseisor’s heir came into possession on the latter’s death (whereupon he had to go to law). The doctrine arose, Blackstone noted, ‘from the principles of the feodal law, which, after feuds became hereditary, much favoured the right of descent’ so that there would always be someone to perform the services.65 However, he did not attempt to get inside the feudal ‘mind’ in explaining the law in the way that Gilbert had, in part because he was sceptical about the nature of the feudal inheritance, seeing it as an alien importation, rather than as something which was in the very DNA of English law. Blackstone preferred Wright’s view that the feudal system was only introduced by common consent, a view which he repeated very closely (II, 33 [51]; IV, 269–70 [411]). Moreover, his own understanding of the impact of feudalism was inconsistent. On the one hand, he appeared to share Wright’s view that there was a core of properly feudal incidents which had been adopted in 1066, which underpinned the additional impositions and exactions made by the crafty Normans (II, 33, 42 [51, 64]).66 According to this view, the corrupt encrustations could be removed (in 1660), leaving a system some of whose fundamental doctrines (such as escheat) continued to rest on feudal principles.67 On the other, Blackstone at times suggested that the entire feudal system was an alien imposition of ‘slavish tenures, the badge of foreign dominion’, whose abolition was necessary to restore the purity of the ancient Saxon constitution (IV, 282 [431]). In many ways, Blackstone’s use of the feudal history was designed more to make a political point about the nature of the English constitution rather than a

62 

E Coke, ‘The Compleat Copyholder’ in Three Tracts (London, 1764) 3 (§ 5). Tenures 216–17, from which Blackstone also took his reference to Sir William Temple’s An Introduction to the History of England (London, 1695); Blackstone, Commentaries vol 2, 61 [92]. 64  As John Cairns and Grant McLeod have noted, ‘Wright provided a general historical and dogmatic framework into which Blackstone could fit the detailed learning he derived from Coke, Littleton, and the law reports’: JW Cairns and G McLeod, ‘Thomas Craig, Sir Martin Wright, and Sir William Blackstone: the English Discovery of Feudalism’ (2000) 21 Journal of Legal History 58. 65 Blackstone, Commentaries vol 2, 132 [197], following Gilbert, Tenures, 18. 66 Wright, Tenures, 86: ‘I shall now proceed to show, that Wardship and Marriage, Relief, Aid and Escheat, the Concomitants of Tenure, were not mere Norman Inventions coined for us, but that they were either properly feudal, or were for the most part entertained as such in Normandy’. 67  Hence the incidents of socage tenure described at Blackstone, Commentaries vol 2, 57–59 [86–89]. 63 Wright,

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legal point about the nature and operation of English land law. According to this ­political argument, it was the military tenures introduced after 1066 (and abolished in 1660) which brought the badge of slavery, whereas the remaining ­freehold socage tenures represented ancient Saxon liberty. He consequently needed to explain how socage tenures could be both feudal and ancient. He therefore qualified his argument that feudal tenures had been introduced after 1066, by suggesting that ‘something similar’ (II, 30–31 [48]) had been in use in Anglo-Saxon England. Blackstone’s source for this comment was Sir William Temple’s Introduction to the History of England. This was selective borrowing, for Temple (like Gilbert, but unlike Blackstone) had been of the view that the military system of feudalism had not been introduced by the Conquest, but had come to England as part of a general Gothic movement of which the Saxons were a part.68 Blackstone used this source to make an argument that ‘feuds were not unknown among the Saxons, though they did not form part of their military policy’, and that ‘socage tenure existed in much the same state before the conquest as after’ (II, 57 [85]). Indeed, these tenures were ‘sprung from the same feodal origin as the rest’ (II, 52 [78]). For Blackstone, the hallmark of socage tenures was that (unlike villeinage) they were free and that (unlike knight-service) they carried certain services. He therefore sought to prove their high status in a way which was different from Wright and Gilbert. When dealing with socage tenures, Wright followed the traditional common lawyers’ view that it represented the ‘husbandman’s or ploughman’s fee’, rejecting William Somner’s view that the word derived from the Saxon soc, which denoted a liberty, privilege or immunity from uncertain services.69 In his unpublished work, Gilbert similarly spoke of socage tenures as tenures designed ‘as a support and provision for the military men, for they could not have attended the service of the wars at their own charge, unless their socmen laid them in the necessary provisions’.70 However, Blackstone adopted Somner’s etymology, and argued from thence that it was a ‘free or privileged tenure’, adding that ‘nothing sure could be a greater liberty or privilege, than to have the service ascertained, and not left to the arbitrary calls of the lord’ (II, 53 [80]). In Blackstone’s view, socage tenures had never been servile, but were rather ‘the relicks of Saxon liberty’, retained by those who had neither forfeited them to the King (at the Conquest) or been forced to exchange them for knight service. In his view, the ancient form of socage tenure had also left its traces in the Kentish custom of gavelkind. Where Gilbert regarded gavelkind as a residual form of allodial tenure—and consequently quite distinct from feudal holdings—and Wright described it as ‘a kind of socage tenure … as really feudal as any other’71—Blackstone saw it as a certain form of tenure (‘being holden by suit of court and fealty, which is a service in it’s nature certain’) which could not possibly have been ‘conferred upon mere ploughmen, or peasants’ (II, 57 [85]). 68 Temple, An

Introduction to the History of England 171–72. 143–4; W Somner, A Treatise of Gavelkind (London, 1660) 133–38. 70  British Library, MS Hargrave 196, fo 51: ‘History of the Feud’. 71  This was on the grounds that it escheated to the lord: Wright, Tenures 211. 69 Wright, Tenures

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Blackstone also followed Somner in his distinction between pure villeinage and villein-socage, describing the latter as a privileged species of copyhold. This was the kind of tenure which other writers discussed under the heading of ‘ancient demense’: a particular form of tenure under which were held all manors belonging to the crown in 1066 (and as recorded in the Domesday book).72 Blackstone laid stress on their original villein status73—and on the idea that these tenants performed services for the king’s household—to make his broader political point: that this service, while being certain (and hence ‘socage’, as privileged), was also base (and hence ‘villein’), since it was plainly founded on ‘services of the plough’. The fact that it was a socage tenure (he suggested) might have confused other thinkers to imagine that all socage tenure was base. Blackstone’s invocation and use of the phrase ‘villein-socage’ was unusual, and was perhaps included to bolster his wider political point about the English constitution.74 Blackstone’s political typology suggested that modern tenures did not rest on the uncertain system of military tenures granted by the crown after 1066, but on an older form of socage tenure. Yet this did not account for the fact that (as Wright put it) knight service was ‘not altogether uncertain, as in proper feuds; they being with us restrained, as in Normandy, to 40 days’—a point acknowledged by ­Blackstone himself (II, 40 [61]).75 Nor did it explain the feudal nature of ­socage tenure. Since he did not (like Gilbert) take the view that such tenures derived from part of the feudal military policy which antedated the conquest, he could not explain them to be part of the military system which (in Chapter 4 of Book II) he described feudalism to be: yet he did not explain exactly why they came to follow the same rules relating to descent and tenure which appeared to be derived from the military system. Blackstone realised that, in order to understand the complex rules of tenure and descent, the well-educated gentleman would need to understand some of its feudal foundations. But he did not probe deeply into feudal ­history to uncover and explain the roots and rationales of English land law. Indeed, he perhaps had no more need of a detailed excursus into doctrine of tenures in order to explain property law than did Thomas Wood, who had not given tenures distinct treatment. Instead, the role of history as an explanatory model in Book II (as in the final chapter) was to reiterate the political story he had laid

72  See Jacob, New Law Dictionary, tit. Ancient Demesne, Wood, Institute 141; Bacon, Abridgement (1736) vol 1, 110. 73  This was a point he found not only in Bracton but also in Gilbert’s History of the Exchequer, where they were described (in a passage relating to revenue) as ‘the King’s Villeins’ who were ‘free from all Suit and Service to any Court whatsoever except their own, that so they might mind the Business of the King’s Husbandry, and be the better able to supply the King’: A Treatise on the Court of Exchequer (London, 1738) 16. Chief Justice Holt noted that ‘it seems they are free as to their persons, not as to their estates’: Hunt v Burn (1700) 1 Salk 57. 74  Other writers who referred to the distinction between free socage (liberum socagium) and base socage (villanium socagium) made the distinction between those socage tenures where corporal services were required and those in which it had been commuted to money: Coke, Copyholder 56; E Chambers, Cyclopaedia, or a Universal Dictionary or Arts and Sciences (London, 1738), tit. Socage. 75 Wright, Tenures 140–41.

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out in the first volume, of the progressive history of English liberty. In constructing this history, Blackstone did not simply digest the work of his antecedents, but refashioned selectively for his own distinct purposes. When it came to discussing the rules relating to the transfer of property by contract or will, feudal explanations were of little use, since such transfers were not allowed by the jus feodale. Moreover, as Blackstone well knew, in the modern age, ‘the most usual and universal method of acquiring a title’ even of real property was not by the descent determined by feudal rules, but by ‘free and u ­ nrestrained’ transfers by deed or testament (II, 196–98 [287–90]). In addition, much of that which was transferred was personal property of a commercial nature, for which feudal rules were irrelevant. To explain the principles judges should use in elaborating contracts and wills, eighteenth-century jurists increasingly looked to ­natural law or reason as foundations for their theories. This was the golden age of the natural law tradition, in which European political philosophers steeped in the ius commune tradition developed sophisticated theories which sought to explain the details of contractual behaviour, as well as the grander problems of the foundations of political society. In England, a number of jurists were also beginning to attempt to write more general contract treatises, which started from the base of how men in the state of nature would transfer property. One pioneer in this area was Jeffrey Gilbert, who drafted both a theoretical work on the foundations of personal property and contract in the state of nature and an extensive manuscript treatise on contract. Though unaware of Gilbert’s English work, Blackstone was very familiar with the works of writers such as Grotius and Pufendorf. However, he did not draw on these works to develop a theory of the law of obligations. When it came to the law relating to the transfer of real property by deeds and wills, Blackstone had familiar models (such as Sheppard’s Touchstone) to draw on, both for detail and for general explanation.76 However, when it came to other kinds of contracts, where there was no English model to draw on, Blackstone struggled to find a coherent explanation. Instead of treating contract as an obligation—a vinculum iuris—he treated it as a particular form of property, since this chimed best with the organisational structure of the Commentaries which divided between rights (primarily of property) and wrongs to those rights. The law of ‘contract’, he suggested, was primarily concerned with a particular kind of property: it dealt with property in action, that is, the right to have property transferred in future, through executory contracts. It was not concerned with property in possession, title to which might have been obtained by gifts or grants (akin to the deeds dealt

76  eg, J Godolphin, The Orphan’s Legacy: or, a Testamentary Abridgment (London, 1701); J Gilbert, An Historical Account of the Original and Nature as well as the law of Devises and Revocations (London, 1739). Blackstone did not explain the principles behind testamentary disposition in theoretical terms. He argued that the power to devise by will ‘was a creature of the civil state’ rather than being a natural right, though such a right was ‘coeval with the first rudiments of the law’ in England (Blackstone, Commentaries vol 2, 331 [491–92]). The right to bequeath land, which was lost with the introduction of feudal tenures, had been revived thanks to the development of uses and Tudor Statute of Wills.

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with when discussing transfers of land). According to his formulation, the actual property in question might be quite remote: If a man promises, or covenants with me, to do any act, and fails in it, whereby I s­ uffer damage; the recompense for this damage is a chose in action … it depends upon an implied contract, that if the covenantor does not perform the act he engaged to do, he shall pay me the damages I sustain by his breach of contract (II, 397).

This notion of contracts as a form of property (borrowed from Hale’s Analysis)77 was not well framed to elucidate the principles of contract law: on Blackstone’s own explanation, this right to property ‘in action’ ultimately rested on the contract ‘necessarily implied by the fundamental constitution of government’ whereby ‘every person is bound and hath virtually agreed to pay such particular sums of money, as are charged on him by the sentence, or assessed by the interpretation, of the law’ (III, 158; cf, II, 443). That is, the property right in question was only realised when a judge ordered its payment, which the citizen was obliged by the social contract to obey. The flaw in this reasoning was that Blackstone’s propertybased concept of contract itself rested on the conception of a social contract which could not be explained in such proprietary terms. Where much of Blackstone’s exposition of real property law was a model of clarity, young students reading his work on contract might have had good r­ eason to be confused. He certainly began, conventionally enough, with a definition of contract as an agreement—‘a mutual bargain or convention’ in which there had to be ‘two contracting parties, of sufficient ability to make a contract’ (II, 299 [442]). But he immediately followed this with a reiteration of his point that property transferred by such agreements was only a property in action ‘recoverable by suit at law’. This was followed by a compressed explanation of the (rather technical) law on whether a chose in action could be assigned. Nor was his argument c­ onsistent. Having insisted on the character of contracts as conveying property in action, he conceded that ‘a contract executed (which differs nothing from a grant) conveys a chose in possession (II, 299–300 [443]). Indeed, many of the contracts he discussed in Books II and III were executed contracts. For instance, discussing implied contracts in Book III, he explained that if ‘one takes up goods or wares from a tradesman, without expressly agreeing for the price’, the law implied that the parties had agreed to pay the real value of the goods (III, 109 [161]). Furthermore, he mentioned contracts which could not be seen to convey property: ‘as if a builder promises, undertakes, or assumes to Caius, that he will build and cover his house within a time limited, and does not’, Caius could recover damages for the harm suffered by the delay (III, 106 [157]). Blackstone’s model of contract as transferring property in action hardly served as an explanation of these cases. If English writers lacked the theoretical sophistication found in European works on the law of obligations—the most influential of whom would be

77 

M Hale, The Analysis of the Law (London, 1713) 121.

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Robert Joseph Pothier, whose Traité des Obligations was published in 1761— there were nonetheless some sources available even in the familiar literature, on which B ­ lackstone might have built. For instance, both John Comyns and Giles Jacob drew on Plowden’s Commentaries for his definition of agreement as ‘a joining together of two or more Minds in any Thing done, or to be done’.78 Bacon’s Abridgment, which cited the same source, defined agreement as ‘the Consent of two or more Persons concurring, the one in parting with, and the other in receiving some Property, Right or Benefit’, and followed this with a discussion of cases involving contractual capacity and vitiating factors such as fraud.79 Bacon’s formulation may have been influenced by Gilbert’s definition of contract in his unpublished treatise on contract, a work in which he placed the notion of contract as an act of the parties’ wills at the centre.80 Similar ideas of contractual obligations being derived from the freely expressed assent of the parties were to be found both in English works (such as Ballow’s Treatise of Equity) as well as civilian ones, such as Thomas Wood’s New Institute.81 However, Blackstone could not simply draw on and digest these works in the way he could with the settled works on real property: they required a much fuller elaboration on the author’s part, and might have called for a conceptualisation of obligations which did not fit the structure he had mapped out for the work as a whole.

IV. Conclusion Blackstone’s Commentaries were to remain a starting point for students. Even Henry Crabb Robinson continued to read through his Blackstone, notwithstanding his doubts about their practical value. Subsequent authors did not shy away from including his definitions, even of contract law.82 For instance, Joseph Chitty the Younger, author of the most influential contract treatise of the first half of the nineteenth century, quoted Blackstone’s distinction between express and implied contracts, as well as Blackstone’s entire passage outlining the four species of ­consideration in Roman terms.83 Similarly in the case law, judges and jurists often

78 Comyns, Digest, tit. Agreement A (1); Jacob, New Law Dictionary, tit. Agreement, following ­Reniger v Fogossa (1550) Plowd 1 at 17. 79 Bacon, New Abridgment (London, 1736) vol 1, 67. 80  See M Lobban, ‘Positivism, Natural law and Conjectural History in Seventeenth- and EighteenthCentury English Legal Thought’ in M Del Mar and M Lobban (ed), Legal Theory and Legal History: A Neglected Dialogue (Oxford, 2016) 206–29. 81  T Wood, A New Institute of the Imperial or Civil Law (London, 1704) 161–67; John Ayliffe, A New Pandect of Roman Civil Law (London, 1734) 424–25. 82  See, eg, JJ Powell, A Treatise upon the Law of Mortgages, 3rd edn, 2 vols (London, 1791) vol 2, 347 (on promises to make gifts being contracts requiring consideration). 83  J Chitty, A Practical Treatise on Contracts not under Seal, 2nd edn (London, 1834) 16, 25 (quoting Blackstone, Commentaries vol 2, 300–301 [444–45]).

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found in the Commentaries an elegant and useful articulation of the rule which was the subject of discussion.84 At the same time, however, the work was not seen as perfect. While criticised for being too general for the law student or practitioner, it simultaneously attracted criticism on points of detail. Treatise writers were not slow to correct inaccuracies. Thus, John Joseph Powell was critical of Blackstone’s comment that the rule on nuda pacta did not apply ‘where such promise is authentically proved by written documents’, pointing out that the exception related only to formal contracts.85 Chitty similarly questioned Blackstone’s assertion that the law implied a warranty of title in sellers.86 Other authors also pointed out that Blackstone’s broad definitions omitted important nuances.87 Blackstone was an excellent source to resort to for a clear expression of familiar rules, but in tricky or developing areas of law, he was less reliable, and offered no theory for the judge or jurist to take the law forward. Perhaps the most pointed criticism of this nature came from Sir William Jones, whose own Essay on the Law of Bailments has often been seen as one of the elegant treatises inspired by Blackstone’s example. Although the Commentaries were ‘the most correct and beautiful outline, that ever was exhibited of any human science’, they could no more make a lawyer than a general map of the world would make a geographer. More worryingly, Blackstone’s three paragraphs on bailments were the ‘least satisfactory part’ of the whole work, for they were not grounded on any clear understanding of the topic at hand: For he represents lending and letting to hire, which are bailments by his own definition, as contracts of a distinct species; he says nothing of employment by commission; he introduces the doctrine of a distress, which has an analogy to a pawn, but is not properly bailed; and, on the great question of responsibility for neglect, he speaks so loosely and indeterminately, that no fixed ideas can be collected from his words.88

Blackstone attracted the severest criticism in exactly those areas of the law of ­obligations which did not comfortably fit his propertied model, and where his antecedents had left him least to work on.

84 eg, Taylor v Whitehead (1781) 2 Doug 745, Williams v Bosanquet (1819) 1 Br & B 238, Doe d ­Rawlings v Walker (1826) 5 B & C 111, Cadell v Palmer (1832–3) 1 Cl & F 372. 85 Blackstone, Commentaries vol 2, 301 [446], discussed in Powell, Essay upon the Law of Contracts (London, 1790), vol 1, 340. Blackstone’s formulation may have been influenced by Lord Mansfield’s views as expressed in Pillans v Van Mierop (1765) 3 Burr 1663. Other writers also alighted on these ­passages of Blackstone, with particular criticism reserved for his comment that promissory notes required no consideration: See J Fonblanque’s note in his edition of A Treatise of Equity (London, 1793) vol 1, 334–35n and Chitty, Contracts (1834) 23. 86 Chitty, Contracts (1834) 355. 87 See, eg, his editor Edward Christian’s correction to Blackstone’s general point that 60 years’ uninterrupted possession gave title: Commentaries (1800) vol 3, 196; followed in EB Sugden, Practical ­Treatise of the Law of Vendors and Purchasers (London, 1805) 169–70. 88  W Jones, An Essay upon the Law of Bailments (London, 1781) 3.

2 The ‘Least Repulsive’ Work on a ‘Repulsive Subject’: Jeremy Bentham on William Blackstone’s Commentaries on the Laws of England PHILIP SCHOFIELD

Jeremy Bentham’s A Fragment on Government, which appeared in April 1776 and constituted his first major published work,1 was ostensibly a critique of a short passage on the nature and origin of government that had appeared in William Blackstone’s Commentaries on the Laws of England.2 Bentham took a paragraph or set of paragraphs in turn and highlighted the contradictions, ambiguities, and ambivalences in Blackstone’s prose, before informing the reader what, as he inferred, Blackstone had meant to say, before going on to offer substantive criticism and outlining some of his own alternative views. Bentham made three main criticisms of Blackstone’s account.3 First, he criticised Blackstone’s methodology. Blackstone had failed to distinguish between the role of the expositor and that of the censor, and had, therefore, confused the question of what the law is with the question of what the law ought to be. Bentham picked up on Blackstone’s statement, concerning the law of heresy, that ‘[e]verything is now as it should be’

1  J Bentham, A Comment on the Commentaries and A Fragment on Government, ed JH Burns and HLA Hart (London, 1977) Editorial Introduction, xxx. A Fragment on Government was one part of a more extensive critique of Blackstone entitled ‘A Comment on the Commentaries’, which, in the event, Bentham did not publish. 2 W Blackstone, Commentaries on the Laws of England, Book I: Of the Rights of Persons, ed D ­Lemmings and W Prest (Oxford, 2016) 38–42 [47–54]; here and below, pagination of the original (1765–69) edition is given in square brackets. 3 Bentham’s criticisms of Blackstone in ‘Comment on the Commentaries’ and Fragment on ­Government have been explored by, among others, D Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (Cambridge, 1989) 228–30, 244–45, 258–63; GJ Postema, Bentham and the Common Law Tradition (Oxford, 1986) 243–50, 268–74, 304–08; MJ Lobban, The Common Law and English Jurisprudence 1760–1850 (Oxford, 1991) 169–73; and P ­Schofield, Utility and Democracy: The Political Thought of Jeremy Bentham (Oxford, 2006) 51–57, 112–14.

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(usually rendered by Bentham as ‘every thing is as it should be’),4 and took it to be characteristic of Blackstone’s whole approach, and, therefore, as an appropriate sobriquet for his antagonist. As far as Bentham was concerned, Blackstone’s mistake had been to adopt a nonsensical moral theory, the natural law, which, through its doctrine that lex iniusta non est lex (an unjust law is no law), led to the ultra-conservative view that if something was a law, then it must be just. Second, following David Hume,5 Bentham criticised Blackstone’s support for the theory of the social contract on the grounds that it failed to provide both an adequate explanation of the actual foundation of government, and any adequate justification for it. In Bentham’s view, ‘natural society’ and ‘political society’ co-existed in varying degrees in all societies, and hence it made no sense to posit the notion of a natural society being transformed into a political society by means of a social contract. Even if there had been some form of contract in the past, it could not bind persons who had not agreed to it, and, moreover, like any promise, it could never have any moral authority in and of itself, but only by reference to some external standard. Third, Bentham criticised Blackstone’s theory of sovereignty, which claimed that in every state there must exist ‘a supreme, irresistible, absolute, uncontrolled authority, in which the jura summi imperii, or the rights of sovereignty, reside’.6 Bentham pointed out that there were examples of states where sovereign power was limited, otherwise it would be as much as to say that there was ‘no such thing as government’ in the German Empire, the Dutch Provinces, or the Swiss ­Cantons.7 In A Fragment on Government, Bentham did not restrict himself to mere criticism.8 He outlined a number of themes which he would go on to develop in later writings: the habit of obedience as the foundation of lawmaking power; a ‘natural arrangement’ of offences (that is one based on the harm caused by the act in question), instead of the ‘technical arrangement’ (that is one without any principled basis) that characterised the common law and Blackstone’s account of it, as the appropriate structure for a legal system; the principle of utility as the standard by which to ascertain the point at which resistance to government became justified; and ‘paraphrasis’ (the relating of abstract terms to entities in the real, physical world) as the correct method for the exposition of fundamental legal terms. As David Lieberman notes, Bentham’s ‘preoccupation with Blackstone was to survive throughout [his] long career in legal theory’,9 a view echoed by JH

4  See W Blackstone, Commentaries on the Laws of England, Book IV: Of Public Wrongs, ed R Paley and W Prest (Oxford, 2016) 32 [49]. 5 At Comment/Fragment 439 n., Bentham cites the third volume of Hume’s Treatise on Human Nature: see D Hume, A Treatise of Human Nature, eds DF Norton and MJ Norton (Oxford, 2007) Book 3, Pt 2, §§ 7–10, vol 1, 349–62. 6 Blackstone, Commentaries vol 1, 39 [49]. 7 Bentham, Comment/Fragment 488–89. 8  As Bentham himself explained, his chief task had been ‘to overthrow’, but he had also taken the opportunity ‘to set up’: ibid 420–21. 9 Lieberman, Province 221.

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 25

Burns when describing Bentham’s engagement with Blackstone as ‘A Lifetime’s ­Dialectic’.10 This engagement began in December 1763, when, aged 15, ­Bentham attended Blackstone’s lectures at Oxford,11 and continued for the remaining nearseven decades of his life through to what has been described as his ‘last work’, namely ‘Auto-Icon: or, Of the Farther Uses of the Dead to the Living’.12 Here ­Bentham imagined Blackstone’s auto-icon (appropriately articulated, with its limbs being moved by a small boy hidden behind its robes) reading from the Commentaries, and then, with the auto-icons of several other jurists, including Justinian, ­Bracton, and Coke, engaging in conversation with Bentham’s auto-icon, and no doubt being upbraided for their errors.13 To follow in detail Bentham’s ‘Lifetime’s Dialectic’ with Blackstone would require a volume. So what will be attempted here is a comparison of his engagement with Blackstone in A Fragment on Government and in a body of contemporaneous material entitled ‘Preparatory Principles’ on the one hand, with an apparently unfinished essay composed fifty years later in 1828 under the proposed title of ‘Blackstone familiarized’ on the other hand.14 This latter work was intended for a periodical, would have appeared anonymously in three instalments, and would have given a succinct account of the evils of English law, as expounded by Blackstone, by contrasting it, through the medium of universal jurisprudence, with a system of law founded on the greatest happiness principle. A comparison of these earlier works with ‘Blackstone familiarized’ will reveal not only an extraordinary consistency, in that the criticisms advanced in the earlier writings reappear in the later, but also a striking development in terms of their being put to political use, a development which in turn may be related to the emergence of the notion of sinister interest in Bentham’s thought in the first decade of the nineteenth century and his subsequent commitment to democracy.15 The provenance and purpose of ‘Blackstone familiarized’ are specifically related to Bentham’s efforts in the late 1820s to promote law reform. He was working on a ‘Petition for Justice’ in the hope that a mass popular movement, led both outside and inside the House of Commons by Daniel O’Connell, would pressure Parliament into a significant measure of codification.16 More generally, the work belonged to his attempt to undermine the whole political, legal, and

10 

JH Burns, ‘Bentham and Blackstone: A Lifetime’s Dialectic’ (1989) 1 Utilitas 22–40. 526 n. See ‘Auto-Icon; or, Of the Farther Uses of the Dead to the Living’ (printed for, but excluded from J Bowring (ed), The Works of Jeremy Bentham, 11 vols (Edinburgh, 1843), Note by Editor, i). 13  ibid 12, 13. 14  See University College London Library (hence UC), Bentham Papers box 31, fo 75 (23 July 1828): ‘Title understood to be proposed: A familiar View of Blackstone: or say, Blackstone familiarized: or else, Blackstone and Law familiarized.’ This work has never been printed, and has remained almost unnoticed. 15 Schofield, Utility and Democracy 109–36. In 1809 Bentham began to write on parliamentary reform, and from 1822 to work on a ‘Constitutional Code’, his own blueprint for a democratic constitution: ibid 137–40, 244–49. 16  ibid 319–20. 11 Bentham, Comment/Fragment 12 

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ecclesiastical establishment of the UK, and replace it with a representative democracy or, in his terminology, a republic. He distinguished between the oppressing ‘­ruling few’, whom he identified with the non-productive classes, consisting of the ­monarcho-aristocratic establishment on the one hand, and the oppressed ‘subject many’, the productive classes consisting of the disenfranchised mass of the people on the other hand.17 It was to the latter group that ‘Blackstone familiarized’ was addressed.

I.  Why (Still) Blackstone? In the 1770s in ‘Preparatory Principles’, Bentham explained that he ‘attacked’ Blackstone’s Commentaries, and not works by other authors, in the first place because of its ‘giving Law to men’s opinions’—in other words, because the degree and extent of its influence was greater than that of any other work—and in the second place because of its lack of ‘sincerity and openness’. He explained that, ‘the opinion which it seems to be the constant and almost universal scope of the work to inculcate is that that ought ever to be, which is.’ The Commentaries would ‘­produce an epidemic debility in the moral department of men’s intellects. A state of listless and abject quietism’.18 Both themes were taken up in A Fragment on ­Government. In relation to the latter point, Bentham referred to Blackstone’s ‘antipathy to reformation’ as the ‘grand and fundamental’ blemish in the Commentaries, and of his own aim of ‘laying open and exposing the universal inaccuracy and confusion which seemed … to pervade the whole’. Bentham linked Blackstone’s ‘antipathy to reformation’ to his ‘obscure and crooked reasoning’, for ‘so intimate is the connexion between some of the gifts of the understanding, and some of the affections of the heart’.19 In relation to the former point, Bentham admitted that Blackstone’s works had been more widely read, had received greater praise, and had enjoyed more influence than any other writer on English law, but this merely made it all the more important to counter them. As an ‘Author of great name’, who had ‘avow[ed] himself a determined and persevering enemy’ of reform, ‘the interests of reformation, and through them the welfare of mankind’ required ‘the downfall of his works’.20 In 1769, having tentatively begun his career at the bar,

17  J Bentham, First Principles preparatory to Constitutional Code, ed P Schofield (Oxford, 1989) 136–37, 155–67. 18 J Bentham, Preparatory Principles, ed DG Long and P Schofield (Oxford, 2016) 291–92. cf ­Comment/Fragment 498, where Bentham refers to ‘that spirit of obsequious quietism that seems constitutional in our Author’. 19  ibid 394. 20 ibid.

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 27

Bentham had quickly committed himself to the reform of the law,21 and, given his reaction to hearing Blackstone’s lectures and reading the Commentaries,22 it no doubt seemed to him that Blackstone represented a major obstacle to his project. Bentham complimented Blackstone on his ‘style’, which was ‘[c]orrect, elegant, unembarrassed, ornamented’, and confessed that he had ‘taught Jurisprudence to speak the language of the Scholar and the Gentleman’, had ‘decked her out … from the toilette of classic erudition’, and ‘enlivened her with metaphors and allusions’. He continued: The merit to which, as much perhaps as to any, the work stands indebted for its reputation, is the enchanting harmony of its numbers: a kind of merit that of itself is sufficient to give a certain degree of celebrity to a work devoid of every other. So much is man governed by his ear.23

In Bentham’s eyes, the Commentaries represented a victory of style over substance. Bentham’s efforts in A Fragment on Government and in his writings in the intervening fifty years had, by his own admission, made little impact on Blackstone’s general reputation.24 In ‘Blackstone familiarized’, Bentham acknowledged the great influence still being exercised by the Commentaries and confessed that it remained the best account of English law. In one of several drafts of the ‘Introduction’, he gave three reasons for inserting Blackstone’s name in the title. First, the word ‘law’ and the name of Blackstone were inextricably associated in the minds of anyone who wished to know the state of the law. Second, in his own short work, B ­ entham could only cover a ‘small portion of the immense and absolutely unmeasurable mass’ of English law, and so, for further detail, he would refer the reader to the Commentaries, revised as it had been by various editors, and ‘from which … more satisfaction is derivable than from any other single work’. Third, Blackstone’s was the ‘least repulsive’ work ‘on this repulsive subject’.25 Elsewhere in ‘Blackstone familiarized’, Bentham noted that the Commentaries had for sixty years formed the standard account of English law not only for the layman, but for the profession

21 Bentham, Works, vol

10, 51, 54. See Bentham, Comment/Fragment, Editorial Introduction, xix–xxii. 23  ibid 413–14. Bentham did acknowledge that some parts of Blackstone’s An Analysis of the Laws of England (Oxford, 1756) were based on ‘a sort of method, which is, or comes near to what may be termed a natural one’ (Comment/Fragment 418–19), and that in the Commentaries there were several passages in which good reasons had been given for beneficial institutions and some criticisms and suggestions for reform offered for mischievous ones, but ‘so plainly adverse to the general maxims’ of the work as a whole were these passages, that ‘[o]ne would think some Angel had been sowing wheat among our Author’s tares’ (ibid 420). Bentham more characteristically states (ibid 438–39) that ­Blackstone’s ‘tinsel-work’ consists ‘partly of self-evident observations, and partly of contradictions; partly of what every one knows already, and partly of what no one can understand at all’. In ‘Blackstone familiarized’, as we will see, Bentham did not spare Blackstone’s Analysis from criticism. 24  For a brief account of the immediate popularity and enduring influence of the Commentaries see W Prest, ‘General Editor’s Introduction’, in Blackstone, Commentaries vol 1, xii–xv. 25  UC Bentham Papers box 31, 106 (31 August 1828). 22 

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as well,26 containing as it did ‘the clearest explanation capable of being found any where’ of ‘Law as it is’, albeit in ‘technical’ language.27 Bentham not only referred to Blackstone’s Commentaries as the most popular and attractive work on the subject, but also to its justificatory role in showing that ‘every thing is as it should be’. In order to counter the complacency induced by the Commentaries, Bentham’s intention was to expose those matters on which Blackstone, together with the lawyers who followed and admired him, pretended that the law was different from what it really was and what it ought to be, so that readers would avoid ‘the snares into which they are thus in danger of falling’, and thereby reduce ‘to its smallest dimensions the quantity of the suffering, to which, by Law as it is, they are, at every step they take, in this thorny and cloudy region, so unhappily exposed’.28 If his purpose was to give an account of English law, Bentham asked himself, then why not simply give an abridgment of the Commentaries? The answer was that Blackstone’s work, despite all the efforts that had been made to render it comprehensible to non-lawyers, and despite its four large volumes, remained ‘in but a very imperfect degree intelligible’. Hence, it was unlikely that any abridgment, in the form of the three ‘small numbers’ into which Bentham’s work would be compressed, would be any less unintelligible than the Commentaries. The solution was to give an account of law as it ought to be, thereby giving ‘some conception … of law as it is taken in large masses’.29 ­Bentham explained that it would be ‘through the instrumentality of Universal Jurisprudence’ that the reader would see what the law ought to be, and thereby have a standard of reference with which to compare law as it is, and to see how the latter could be brought closer to the former,30 the desideratum that Bentham had announced in A Fragment on Government.31 The point was to demonstrate to the subject many that the laws of England were an instrument of oppression in the hands of the ruling few.32

II.  A Dream In the hope of rendering ‘Blackstone familiarized’ as appealing as possible to its intended readership, the subject many, the general mass of the people, Bentham had the idea of presenting it in the form of a theatrical performance that had

26 

ibid 93 (9 August 1828). 75 (23 July 1828). On the relationship of law as it is, law as it ought to be, and law as it ­pretends to be, see section III of this chapter below. 28  ibid 105 (30 August 1828). 29  ibid 76 (23 July 1828). 30  ibid 104 (30 August 1828). 31 Bentham, Comment/Fragment 415–18. 32  cf Bentham, First Principles 130–32. 27  ibid

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appeared to him in a dream. One version of Bentham’s dream begins as follows: ‘Once upon a time—no matter when—it can not have been long ago—I—no matter who I am—dreamed a dream.’ The scene was set ‘in the Lecture Room of the London University’:33 The forms were filled with Scholars. At the upper end, on an elevated station before a long Bench, were placed four desks or boxes similar to those which, in the Westminster Hall Courts, are placed before the Judges. At a lower elevation, under one of the four boxes, was a seat with another such box before it.

Through a door behind the upper bench there entered four females wearing ceremonial robes. The train of one of them was borne by a man ‘clad in the sort of robe worn by a Doctor of Law in the University of Oxford’. This man, as ­Bentham revealed later in the dialogue, was Blackstone. The eldest lady sat at the seat equivalent to that taken by the chief justice in the courts of Westminster Hall. One of the younger ladies sat on her right, and the two others on her left. The Doctor of Law sat at the lower box, underneath the lady immediately to the left of the eldest lady.34 The eldest lady rose and, ‘in a voice that sounded as if it came from heaven’, addressed the audience, whom she called her ‘Disciples’. She explained that she was Astræa, Goddess of Justice,35 and introduced the other three ladies as her ­daughters. From the four of them, the disciples (presumably representing the subject many) would receive all the instruction that they needed. Astræa herself would ‘explain … that which belongs to all the nations upon earth. It has been stiled Universal Jurisprudence: it consists of the language of law, and nothing more.’ She then introduced her daughters. On her right was Felicia (ie Happiness), who would, by applying the greatest happiness principle, explain ‘what the law ought to be’. Immediately on her left was Gubernia (ie Government), who would deal with ‘what the law is, or at any rate is, by those who have the power, likely to be declared to be’, and beyond her was Dolosa (ie Deceitful), who would explain ‘that which the law, in a case in which it is not so, is pretended to be’. Dolosa held two masks, each resembling one or other of her sisters, and either one or other of which she would wear whenever she was delivering instruction.36 In this version

33  The fact that Bentham describes a University of London lecture room is circumstantial evidence that he may have visited the new University. The passage was written on 30 September 1828, the very same day on which a General Meeting of the Proprietors (or shareholders) was held in one of the new University’s lecture rooms—see HH Bellot, University College London 1826–1926 (London, 1929) 75. Bentham was a proprietor, and so may have attended the meeting, though his name does not appear in the list of persons present recorded in the official minute book: see UCL Records Office, ‘University of London Minutes of General Meetings 1826 to 1834’, not paginated. 34  UC Bentham Papers box 31, 200 (30 September 1828). 35  Bentham made reference to Astræa’s appearance in Ovid’s Metamorphoses, where she fled the world during the Iron Age. According to legend, she would one day return to Earth and instigate a new Golden Age. 36  UC Bentham Papers box 31, 201 (30 September 1828).

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of the dream, Blackstone sat immediately beneath Gubernia, the Goddess of law as it is. In another version, Blackstone’s seat was placed below and between the Goddess of law as it is and the Goddess of law as it is pretended to be. The dreamer noted that Blackstone ‘appeared a great favorite with both’.37 In A Fragment on Government and related writings, including An Introduction to the Principles of Morals and Legislation, Bentham had discussed universal jurisprudence, law as it is, and law as it ought to be, and the relationship of each with the other.38 In ‘Blackstone familiarized’, consistently with his earlier account, ­Bentham explained that universal jurisprudence dealt with what, in relation to law, was common to all nations. This did not, therefore, apply to particular ordinances or enactments, since they were different in different nations, but to ‘­certain of the ideas’ that law ‘is composed of ’. Different languages had, of course, adopted different words to signify these ideas, but to the extent that the same ideas were being expressed, it could be claimed that, ‘of the language of law, there is a portion which is common to all nations’.39 The new element introduced in 1828, or rather by 1828,40 was law as it pretends to be. The emergence of this notion, personified in Dolosa, was, as noted above, perhaps related to the emergence of Bentham’s political radicalism in the first decade of the nineteenth ­century. ­Bentham had come to recognise that the state of the law was not the product of complacency and deference to the authority of the past, but due to rulers, and in particular lawyers in the form of ‘Judge & Co.’, having a sinister interest in maintaining and promoting abuses.41 The problem did not lie, as Bentham had thought, in a failure of the understanding, but in the corruption of the will.42 The legal establishment feared that merely to describe law as it is might result in the exposure of its shortcomings, and so needed to present it as a system of perfection in order to continue to delude the subject many.43 Bentham aimed to present Blackstone as the stooge, the willing collaborator, of the ruling few in this exercise of deception. The distinction between law as it is and law as it pretends to be drew attention to what Bentham conceived to be the gap between actual legal practice and the account presented in Blackstone.44 Bentham’s ­critique of 37 

ibid 202a: fragment in copyist’s hand glued to a sheet dated 11 December 1828. ie, J Bentham, An Introduction to the Principles of Morals and Legislation, ed JH Burns and HLA Hart (London, 1970) 293–300. 39  UC Bentham Papers box 31, 56 (30 August 1828). 40  The distinction appears in the title (but not in the text) of ‘Truth versus Ashhurst; or, Law as it is, contrasted with what it is said to be’, which, though written in 1792, was not published until 1823, when the sub-title was perhaps added: see Bowring (ed), Works of Bentham vol 5, 231–37. 41  See W Twining, Theories of Evidence: Bentham and Wigmore (London, 1985) 75–79. 42  In the unpublished ‘Preface’ for the second edition of Fragment on Government of 1823, he explained his naivety at the time of original publication in 1776 in relation to the reasons that lawyers had for their disapproval of both the work and Bentham himself. See also the footnote added for the second edition at Comment/Fragment 499 n: in the text, Bentham had complained of ‘legislative indolence’ as the cause of the lack of reform, but in the note stated that he should have said ‘corruption’. 43  For Bentham on the use of delusion by lawyers, see First Principles 184–85. 44 JH Langbein, ‘Blackstone on Judging’, in W Prest (ed), Blackstone and his Commentaries: Biography, Law, History (Oxford, 2009) 65–77, looking at the way that judges actually operated in the 38  See,

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Blackstone’s p ­ resentation of English law was not, therefore, necessarily identical with his critique of English law itself.45 The point is taken up in another of the dialogues that Bentham composed involving the four Goddesses and Blackstone. Having spoken about ‘Wrongs’, the dialogue moved on to the subject of ‘Remedies’. Astræa explained that, were it not for remedies, there would be no point in having knowledge of the wrongs that might be committed. She first asked Felicia to comment on the relationship between wrongs and remedies. Felicia responded that ‘every wrong ought to have its remedy’. Astræa then turned to Gubernia, who stated that it did not matter whether the wrong had a remedy or not: ‘I deal them out, all or none of them, as I please.’ Thereupon Dolosa interjected: ‘Oh yes, every wrong has its remedy. Ask Blackstone else: and for every wrong, one remedy is quite sufficient. Ask ­Blackstone else.’46 Gubernia resumed: ‘My Judges give remedies for whatever wrongs they and I please to give: and they deny remedies for whatever wrongs they and I please they should be denied.’ In general, Gubernia explained, they gave no remedy for breach of trust, and there was no restitution of a thing unlawfully taken, but instead they gave a sum of money which might be to any amount below the value of the thing taken.47 Dolosa pointed out that the equity judges gave a remedy in both cases: ‘Ask Blackstone else.’ The conversation proceeded as follows: Astræa. Yes, a remedy which is worse than the disease. If, by the wrong, you have lost to the amount £10 paid, they first make you lose £100, and then, for a great number of Years, they have great doubts what to do about the matter, and when you are ruined or dead of a broken heart, they give you either nothing or something which goes to pay your lawyer. Gubernia. In some cases, the wrongdoer puts me in such a passion that I do not know what I am about: I then kill the man: and if he has any money I can get at, I put it into my own pocket. Sister Felicia would, I warrant her, give it to the party wronged: in case of a murder, to the widow and children of the party murdered. That is because she is such a simpleton. What need I care about the party wronged? What should I get by giving him the money? What matters it to me what he suffers? Not a straw: does it, Professor Blackstone? Blackstone from below. No, indeed, Madam, as you say, not a straw: the satisfaction you give to yourself by seeing the other man suffer being so very great.

e­ ighteenth century, supports Bentham’s criticism of Blackstone’s account of judging, and in so doing lends credence to Bentham’s criticism of Blackstone as presenting an account of law as it pretends to be. See also Postema, Bentham and the Common Law Tradition 268, 298. 45  This is to add a nuance to the view expressed in Postema, Bentham 312, that Bentham’s attack was not restricted to Blackstone, but was directed against the whole system of thought that underpinned the common law, and aimed to shift the paradigm of law away from customary rules and practices to statute law and codification. 46 See W Blackstone, Commentaries on the Laws of England, Book III: Of Private Wrongs, ed TP Gallanis and W Prest (Oxford, 2016) 73 [109]: ‘For it is a settled and invariable principle in the laws of England, that every right when with-held must have a remedy, and every injury its proper redress.’ 47  UC Bentham Papers box 31, 209 (28 September 1828).

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Dolosa. Blackstone, you do not know what you are saying—satisfaction to the public, you should have said. Blackstone. Madam, I stand corrected: the press shall be corrected accordingly. Felicia. Would the public be the less satisfied, if the individual wronged were satisfied too?48

Bentham was drawing attention to the gloss that Blackstone had put on the common law, and suggesting that he had understood perfectly well the way in which the law in fact operated, but had been so naively convinced of its excellence, and so oblivious to its inherent injustice, that he had been prepared to describe it without a second thought as to whether he might inadvertently be exposing the whole sham. At this point, the knowing and corrupt ruler in the person of Dolosa had to intervene, and prod Blackstone into changing his terminology in such a way that it appeared that the community as a whole, rather than the legal and political establishment alone, benefited from the ‘satisfaction’ extracted from the wrongdoer.

III.  The Greatest Happiness Principle In another dialogue, Bentham took the opportunity to explain the proper end or purpose of a legal system, and hence to draw a contrast with the actual, corrupt end or purpose of the English legal system.49 Astræa asked Felicia to ‘inform our disciples what in this country law ought to be’. Felicia explained that, ‘Law as it ought to be has for its end the greatest happiness of the greatest number: that is to say of the members of the community in question’.50 Astræa pointed out that F ­ elicia had made ‘an error in expression’, and that, instead of ‘the greatest happiness of the greatest number’, she should have said ‘the greatest happiness of the whole community’. The point was that the greatest happiness of the greatest number did not equate with ‘the greatest happiness of the whole number together’, in that the happiness of a majority might be promoted at the expense of that of a minority, and overall happiness be diminished. Suppose, said Bentham, a community of 2,001 persons, where 1,001 were masters and 1,000 slaves: the community of which the masters are members made as happy as it is in the power of the best laws to make them: but the slaves as ill-treated and thence as unhappy as it is possible for them to be, consistently with their remaining slaves. Is it credible that, in this state of things, the quantity of happiness in the 2,001 taken together would be as great as if, still under the best system of laws possible, all were free, none slaves, none masters of slaves?51

48 

ibid 210 (28 September 1828). For the distinction between the proper and the actual ends of government in general see ­Bentham, First Principles 232. 50  UC Bentham Papers box 31, 214 (18 November 1828). 51  ibid 215 (18 November 1828). 49 

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At some point, possibly in the mid-1820s,52 Bentham had come to recognise that he had to make it clear that the promotion of the greatest happiness did not simply involve counting the number of individuals who benefited or suffered from a certain law, measure, policy, or action, but the degree to which each such individual benefited or suffered.53 In response to Astræa’s exposition of the greatest happiness principle, Dolosa stated: ‘Madam, it is all theory: it is a dangerous doctrine: it is innovation: manifest innovation.’ Gubernia then said that she and Dolosa were not concerned with the happiness of the community: ‘The Law of England has for its all-comprehensive end the giving on all occasions execution and effect to the pleasure of its Sovereign Lord the King. Is it not, Dr Blackstone?’ Blackstone. To be sure, Madam. The King can do no wrong. So I have said in my ­Commentaries. This having been universally affirmed[?] by us and acted upon, never contested, and accordingly incontestable, what other can be a so unerring guide: what need we trouble ourselves about other people’s happiness. He is all perfection. So I have said in my Commentaries. Our Laws, are they not the King’s laws? He being all perfection, let us be but obedient—then his laws will like him be all perfect—law as it is and law as it ought to be will be one and the same thing: and, as I have said, speaking of the Church, is actually the case, every thing would be as it should be. Dolosa. The Law is the perfection of reason. Is it not, Dr Blackstone? Blackstone. Madam, to be sure it is. I have said so in so many words.54 … Yes: and to make it, if possible, still clearer—‘Reason is the life of the Law.’55 Dolosa. Then why need you—Disciples—why need you set off upon a wild-goose chase after other people’s happiness?56

According to Dolosa, the distinction between law as it ought to be and what the law was in England was ‘no better than a fanciful one: mere theory, nothing ­better: neither Grotius nor Puffendorf knew of any such distinction’.57 Given that the English law was ‘the perfection of reason’, any arrangement which ought to be established was necessarily established. Conversely, once it was established, it was ‘exactly that which ought to be established’. The law ought to [be] so and so: therefore, so it is: the law is so and so: therefore, so it ought to be. Such is our logic. This being admitted, it follows that, when applied to the law of England, the is and the ought to be are interconvertible terms. 52  There is no mention of this ‘error in expression’ in, for instance, the footnotes concerning the greatest happiness principle added to the second editions of An Introduction to the Principles of Morals and Legislation (14–15 n.) and Fragment on Government in 1823 (Comment/Fragment 446 n). 53 Schofield, Utility and Democracy 38–40. 54  For the relevant passage see Blackstone, Commentaries, vol 1, 52 [70]. 55  ‘Blackstone’ is quoting Coke, I Institutes 97b. 56  UC Bentham Papers box 31, 216 (18 November 1828). 57  Bentham was making ironic allusion to the authoritative status, in the natural law tradition, of the works of Hugo Grotius and Samuel Pufendorf. According to Bentham, Grotius and Pufendorf ‘make as many Laws of Nature, at a minute’s warning, as they have occasion for’: see Preparatory Principles 131. Neither they, nor Blackstone, had any interest in distinguishing censorial from expository jurisprudence.

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This was more particularly true of the common law, which was wholly the product of the judges. As for statute law, the judges ‘take it in hand and mould it into proper form, as if it were so much common law’, just as Mansfield had declared that it was his practice ‘to mould the law’. ‘Equity is but an improved modification of the Common Law: Lord Eldon, when he was Chancellor, was seen practising this ingenious art on the Chancery Bench for the instruction of his learned spectators.’58 Three themes emerge from this dialogue. The first is the condemnation of the greatest happiness principle as ‘theory’, reiterating a point that Bentham had made, for instance, in The Book of Fallacies, in the context of arguments that were used in order to thwart reform, and where Bentham denominated such an argument as the ‘practical-man’s, or blind-horse’s, or thought-condemner’s, or reason-abjurer’s argument’.59 The second is the familiar allusion to Blackstone’s identification of law as it is with law as it ought to be—the confounding of the roles of the expositor and censor—a product of his commitment to the natural law. The third is the subversion of the legislative process by judges. All three themes were linked by the ‘antipathy to reformation’ with which Bentham, as we have seen, had charged Blackstone in A Fragment on Government.

IV.  The Structure of a Legal System In the mid-1770s in ‘Preparatory Principles’, Bentham pointed out that it was necessary to explain the nature of private rights before public rights could be understood. Laws which concerned public interests, establishing public powers, duties, and restraints, were ‘not intelligible’ but by reference to those regulating private interests, establishing private powers, duties, and restraints. Hence, in order to describe clearly a legal system, it was necessary to deal first with the private before dealing with the public. ‘Many writers’, Bentham claimed, had begun with the latter, ‘and in proceeding thus they are obliged to take up with the gross conceptions that men have of them from habit without instruction’. A man best understood the interest he had in what he called his own, and it was through comparing his interest in his own things with the interests that corporate bodies and public trustees had in the things under their charge that these latter interests could be most clearly explained. The more simple idea of private powers over things was the key to understanding the more complex idea of public powers.60 In short, in 58 

UC Bentham Papers box 31, 217 (18 November 1828). Bentham, The Book of Fallacies, ed P Schofield (Oxford, 2015) 204–12. As might be expected, Blackstone is criticised at several points in The Book of Fallacies, but in particular for claiming (in Bentham’s view), at Blackstone, Commentaries vol 1, 70–71 [97–98], that the Act of Union of 1707 presented ‘an insurmountable bar’ to the reform of the Church of England, which Bentham categorised as an example of ‘the posterity-chainer’s device’ (254–56, 444–46). 60 Bentham, Preparatory Principles 96–97. 59  J

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order to provide a clear explanation, it was necessary to begin with that which was ­simple and could be comprehended by itself, and proceed to that which was more complex. In ‘Blackstone familiarized’, Bentham applied this criticism explicitly to ­Blackstone’s organisation of English law in the Commentaries, which began with the rights of government officials instead of the rights of private individuals. ­Bentham now offered two reasons for dealing with private rights before public: one was the logical point that he had put forward in the 1770s, namely that the more simple should be explained before the more complex, and it was, therefore, impossible to understand the nature of public rights and duties before the nature of private rights and duties had been explained; the other was a political point, not advanced in the 1770s, that to follow the reverse order was to insinuate that the rights of rulers were more important than those of subjects. Astræa combined both points when announcing the rule dealing with the order of explanation: ‘The course meant to be pursued on this occasion is this: those things which are at the same time most extensively interesting and most easily intelligible first.’ She went on to explain that law was not only necessary to the well-being, but to the existence, of human beings in a social state, and that in order to achieve this purpose, it created rights and their correspondent obligations. The rights of which a person had the most immediate need to be aware were those from which he received the most obvious benefit, and the obligations those by the non-fulfilment of which he was in most danger of being subjected to punishment. Of less importance to the individual, and less immediately intelligible, were the rights and obligations that made up the machinery of government, and which in turn, apart from protecting the community against foreign enemies, were only valuable insofar as they created and secured the rights of individuals.61 At this point, Gubernia complained that ‘this is not the order pursued by Doctor Blackstone’. Astræa retorted that Blackstone’s object was ‘to recommend his work to the favour of the constituted authorities’, whereas her object was ‘to instruct, and by the instruction serve and benefit, those for whose sake they have been or ought to have been so constituted’. For the politically radical Bentham, the two elements of the choice of arrangement and the corrupt purpose of the Commentaries were intimately linked: ‘Public is to Private what plural is to singular. [Blackstone] sets about explaining plurals before any explanation given of the singulars of which they are composed. He speaks of the few considered as governors, before speaking of the many considered as governed.’ It was far more important to a person to know what rights he himself had rather than those which the King had, especially when he realised that the latter could only be understood once the former had been explained. The right which an individual has to the hat he has on his head, is of more immediate and certain importance to him than the right which the King has to his crown. The machinery by which the individual’s right is created and conferred is more simple than that by

61 

UC Bentham Papers box 31, 219 (19 November 1828).

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which the King’s right is created and conferred: the operation, when explained, will be found more easily intelligible.62

In the arrangement adopted in the Commentaries, Blackstone, as the mouthpiece of rulers, had elevated the rights of the King above those of the people. Bentham continued his attack on the overall structure of the Commentaries through a consideration of Blackstone’s discussion of rights as it appeared in An Analysis of the Laws of England (in essence an abridgment of the Commentaries). Referring to Blackstone’s arrangement of the work into rights of persons, rights of things, private wrongs, and public wrongs, Bentham remarked: In this arrangement may be seen a semblance of apt method and expression: but the ­reality … is wanting. By this method of his, clear conceptions not capable of being afforded, hence the necessity of another, by which such conceptions may be afforded, and by reference to which the clouds in which his method is involved may be dispelled.

Bentham took in hand the fourth chapter of the first Book of Analysis,63 where Blackstone stated that the objects of the laws of England were first rights, and second wrongs, and went on to divide rights into the rights of persons and the rights of things. Blackstone noted that ‘Wrongs are the Privation of Rights’, but, complained Bentham, the word ‘privation’ was obscure. No one talked about the privation of a right. Had Blackstone said ‘violation’ or ‘infringement’, then ‘clearness, instead of obscurity, would have been the result’. Bentham pointed out that Blackstone, in order to explain ‘the conception attached by him to the word Wrongs’, had referred to ‘the conception attached by him to the word right’, but he had neither given, nor had attempted to give, any such explanation. In Blackstone’s interpretation of law as it is, ‘at the very first step’ there was ‘confusion’, for he had then referred to the rights of persons and the rights of things, and seemed to think that, because he had used the same preposition of in both cases, that he had conveyed the same idea, ‘but in reality no such thing has he done’. The word of denoted ‘the idea of possession’, and while it made sense to say that persons possessed things, both corporeal and incorporeal, it did not make sense, except figuratively, to speak of a thing possessing something. You possess your coat, but your coat does not possess anything, except properties such as being made of a certain sort of cloth and being of a certain colour, and such qualities were not ‘real beings—parcels of matter—as your coat itself is: they are but so many fictitious beings—fictitious entities—spoken of as if they were really existing—spoken of in this way of necessity for the purposes of discourse’. When applied to persons, the word right, continued Bentham, indicated the possession of the right; when applied to things, it indicated the subject-matter of the right.64 62  ibid 220 (19 November 1828). For an insightful statement of Bentham’s mature views on the logical structure of a legal system see ‘Letters to Count Toreno’, Letter V, in Of the Liberty of the Press, and Public Discussion, ed C Pease-Watkin and P Schofield (Oxford, 2012) 186–229. 63 Blackstone, Analysis 6–8. 64  UC Bentham Papers box 30, 110–12 (25 August 1828). N Graham, ‘Restoring the “Real” to Real Property Law: A Return to Blackstone?’ in Prest (ed), Blackstone and his Commentaries 150–67 at

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Bentham advanced a further criticism—that Blackstone had confounded rights with duties. Blackstone had written that ‘when the Person to whom [rights] are due is regarded, they are called (simply) Rights; but when we consider the Person from whom they are due, they are then denominated Duties’. Bentham retorted that a right was a benefit, while a duty was a burden, and while benefits and burdens were ‘necessarily concomitant to each other’, they were ‘essentially different and ever opposite’. You had a right to wear your coat, while everyone else was laid under the obligation of not meddling with it. It would have made as much sense for Blackstone to have said ‘that Husband and Wife are one and the same person, because a Husband can not be such unless he has a Wife, nor a Wife such unless she has a Husband’. Bentham was, of course, picking up on Blackstone’s loose expression, though his point was that ideas such as rights and duties were too important to be left in obscurity and confusion.65 Instead of the term ‘duty’, ­Bentham explained that he preferred the term ‘obligation’. The word duty was more likely to convey the idea of a moral as well as a legal duty, than the word obligation that of a moral as well as a legal obligation. Bentham speculated that ­Blackstone, whether aware of it or not, had used the word duty in order ‘to inculcate the persuasion that, whatever it is made a man’s legal obligation or say duty to perform, it is thereby also made the same man’s moral duty to perform’. To admit this would be as much as to say that it was ‘the duty of every subject to pay absolute obedience to whatsoever mandate should emanate from the ruling one or ruling few, and that, by absolute obedience on the one part, create and confer absolute power on the other’.66 In other words, this was a further example of the familiar criticism that Blackstone had confounded expository with censorial jurisprudence, with a view to serving the interests of rulers. Even though Bentham gave Blackstone credit for presenting English law in a more coherent manner than any other writer, there remained a great deal of incoherence within the structure adopted by Blackstone. As Bentham had stated in A Fragment on Government, Blackstone had arranged ‘the elements of Jurisprudence, as wants little, perhaps, of being the best that a technical nomenclature will admit of ’, but the problem was that ‘a technical arrangement, governed … by a

152, describes Bentham’s definition of property as ‘metaphysical’ and, therefore, problematic in that ‘it detaches land use practices from the physical capacities of the property itself ’. Such a view would have made no sense to Bentham. His point was not to detach land from property, but on the contrary to link the abstract notion of property (the name of a fictitious entity) to the land or other substances and services (names of real entities or names of fictitious entities more nearly related to real entities) that formed the subject-matter of property. In other words, Graham’s account fails to appreciate that Bentham’s point was to distinguish between the notion of property and the physical matter that constituted the subject-matter of property. Physical matter was what existed, while the term property denoted the fact that there existed certain rights and obligations in relation to that matter. See ­Schofield, Utility and Democracy 9–27. 65  For Bentham’s sustained critique of such a confusion in the French Declaration of Rights of 1789 see ‘Nonsense upon Stilts’, in Rights, Representation, and Reform: Nonsense upon Stilts and other writings on the French Revolution, eds P Schofield, C Pease-Watkin, and C Blamires (Oxford, 2002) 317–401. 66  UC Bentham Papers box 30, 112–13 (25 August 1828).

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technical nomenclature can never be otherwise than confused and u ­ nsatisfactory’.67 In ‘Blackstone familiarized’, Bentham continued the theme of criticising in minute detail the vagaries of Blackstone’s expression by reference to Blackstone’s horse. Having given his own exposition of the notion of the ‘legal possession’ of an object which was under the physical control of another person, and in particular addressed the notion of ‘recaption’,68 Bentham went on, in the fashion of A ­Fragment on Government, to criticise in detail Blackstone’s account of recaption in the Commentaries, which he had exemplified, under the head of ‘Private Wrongs’, by reference to his horse. According to Blackstone, this natural right of recaption shall never be exerted, where such exertion must occasion strife and bodily contention, or endanger the peace of society. If, for instance, my horse is taken away, and I find him in a common, a fair, or a public inn, I may lawfully seise him to my own use: but I cannot justify breaking open a private stable, or entering on the grounds of a third person, to take him, except he be feloniously stolen; but must have recourse to an action at law.69

Bentham’s first point was that, had Blackstone merely referred to ‘bodily contention’, his explanation would have been clearer, although further elucidation of these words would be required. The insertion of ‘strife’ and ‘the peace of society’, however, produced uncertainty. The raising of ‘doubts upon doubts’ was typical of everything that Blackstone said, reflecting ‘the property of whatever is said under the name of Common Law to make us believe that we know what, in case of our doing so, would be done to us by the Judge—though that same knowledge is essentially impossible’. The common law had no determinate form of words. While one party in a case might say that such and such were the words of the common law, his adversary might deny this and say that some other set of words were the words of the common law. Insofar as each party claimed that what the other party said was false, they were speaking the truth; but insofar as each party claimed that their set of words was the common law, what they said was false.70 As for ‘Blackstone’s horse’, it was impossible to know ‘who, in the several cases put by its master, would with propriety, and with correspondent legal effect, in the event of a suit at law, be said to be in possession of it’.71 Here, perhaps, Bentham saw Blackstone as representing law as it pretends to be: the reality was much messier and much less certain. Another case, explained Bentham, ‘which, under Law as it is, is richly pregnant with doubts is that of distress’, where certain persons had the right to take goods from the possession of some other persons, the ‘principal example’ being that of landlords at the charge of their tenants. Blackstone had considered distress ‘in near

67 Bentham, Comment/Fragment

415. See UC Bentham Papers box 30, 77–78, box 31, 23–29 (21, 23, 26–28 August 1828). vol 3, 3 [5]. 70  UC Bentham Papers box 31, 30 (28 August 1828). 71  ibid 31 (28 August 1828). 68 

69 Blackstone, Commentaries

The ‘Least Repulsive’ Work on a ‘Repulsive Subject’

 39

neighbourhood with the case of the horse’.72 Having thus discussed redress by the act of the party without recourse to a judge, that is recaption and distress, ­Blackstone ‘flies off from the topic of wrongs, and proceeds to tell us of the ulterior mode of redress, to wit by recourse to the Judge’, leaving further consideration of wrongs to some future unspecified point in the work.73 Bentham’s point was that, having discussed wrongs in the first two chapters of Book III, Blackstone confusingly devoted the following four chapters to a discussion of the histories and jurisdictions of the various English courts. A further related inconsistency in Blackstone’s arrangement noted by Bentham was that ‘his exposition of the functions and functionaries [of the] Legislative and Administrative Departments’ appeared under the ‘Rights of Persons’, while those of the Judiciary appeared under ‘Private Wrongs’, even though they dealt with public wrongs as well as private ones.74 Bentham’s purpose in these passages of ‘Blackstone familiarized’ was to contrast what he considered to be his own clear and concise account of the nature of fundamental legal terms, explained through the medium of universal jurisprudence, with the confused and incoherent account of English law given by Blackstone, resulting from his concern to show that ‘every thing is as it should be’.75 The wider purpose in the essay as a whole was to undermine the legitimacy of the English legal establishment in the eyes of the subject many, by showing how it worked in the interests of the ruling few, and not, as was often pretended, in the interests of the whole community. ‘Blackstone familiarized’ was, therefore, just one more contribution to Bentham’s campaign to introduce representative democracy into Britain.

V.  New Ideas In material written in October and November 1814 for a chapter entitled ‘J.B.’s new ideas derived from Logic’ and intended for his essay on ‘Logic’, Bentham made a list of fourteen such ‘new ideas’.76 The eighth point in the list was ‘Conditions to the accomplishment of any object, in so far as depends upon human means.’ B ­ entham explained that, for any agent to perform any action, including ‘the due execution of any public trust’, both will and power were necessary. Power was either ab intrà, that is to say proportionate to the degree of knowledge or

72 

See Blackstone, Commentaries vol 3, 4–9 [5–15]. UC Bentham Papers box 31, 59 (28 August 1828). 74 ibid. 75  According to Bentham, the qualities desirable in any body of law were clearness, correctness, completeness, conciseness, compactness, and consistency: see ‘Legislator of the World’: Writings on Codification, Law, and Education, ed P Schofield and J Harris (Oxford, 1998) 180. 76  See British Library, Additional MS 33550, fos 4–47. 73 

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‘­intelligence’ and active talent (that is the willingness to perform an appropriate action) possessed by the actor, or ab extrà, that is to say proportionate to ‘the extent and degree of compliance on the part of those over whom it is considered as being exercised’. Where a person had a moral duty to perform an act, the person who possessed ‘the appropriate will or inclination’ thereby possessed ‘the virtue of probity’.77 Hence, the three requisites were probity, intelligence, and active talent, which Bentham had, by 1822, renamed and to some extent recast, as moral aptitude, intellectual aptitude, and active aptitude. The securing of official aptitude became the principal theme of Bentham’s later writings on representative democracy, and in particular of his ‘Constitutional Code’, the major endeavour of the final decade of his life.78 He explained that he had derived the threefold division from Blackstone: Wisdom, probity and power, of these three—on attending Blackstone’s Lectures, and afterwards reading them when in print under the name of Commentaries on the Laws of England—I observed the concurrent existence laid down by him as a condition necessary and at the same [time] sufficient to ensure, in any given political community, the ­existence of good government.79

In the Commentaries, Blackstone had referred to ‘the three grand requisites … of wisdom, of goodness, and of power’ as ‘the requisites that ought to be found in every well constituted frame of government’.80 Bentham complained that ­Blackstone had restricted his analysis to ‘government in the highest stations’, and had not showed how the qualities were related to each other, nor whether the division was ‘exhaustive’. Bentham had recognised, however, that ‘the enumeration and division’ could be applied to all political offices, and indeed to all actions whatsoever.81 Hence, the central organising principle of ‘Constitutional Code’, the implementation of which would have seen the overthrow of every institution that Blackstone cherished—the balanced constitution, the common law, the established church, and even the University of Oxford—had emerged from his ­engagement with Blackstone. Bentham’s experience of attending Blackstone’s lectures had not, therefore, from his perspective, been entirely fruitless. It also emphasises the point that, had there been no Blackstone, there would have been a very different Bentham.

77 

ibid fo 35 (25 October 1814). See Schofield, Utility and Democracy 142–45, 272–303. BL Additional MS 33550, fo 35 (25 October 1814). 80  See Blackstone, Commentaries vol 1, 39 [48]. 81  BL Additional MS 33550, fo 36 (25 October 1814). 78  79 

3 Blackstone, Expositor and Censor of Law Both Made and Found JESSIE ALLEN

To the province of the Expositor it belongs to explain to us what, as he supposes, the Law is: to that of the Censor, to observe to us what he thinks it ought to be. ––Jeremy Bentham1

Blackstone’s great contemporary antagonist Jeremy Bentham charged the ­Commentaries with mixing up finding and making. Blackstone purports to be an ‘expositor’ of common law as he finds it, but, says Bentham, by giving ‘reasons in behalf of it’ he justifies and remakes law as he thinks it ought to be.2 At a more substantive level, Bentham complains that Blackstone’s account of judicial decision making confuses law making with law finding. According to Bentham, Blackstone costumes judicial invention as discovery, obscuring the way judges make new law while pretending to uncover legal meaning that was there all along.3 Bentham’s critique of judicial phoniness resounds today in sceptical attacks on judges as ‘politicians in robes’.4 And Blackstone is either dismissed as a stodgy formalist or variously, and weakly, defended as a true believer in transcendent natural law,5 a pragmatist bent on rationalising ‘judicial creativity in adapting the common law to contemporary social needs’,6 a ‘historically minded’ proponent of gradual legal reform,7 or an erudite legal idealist unwilling, or unable, to accept that ‘law in practice did not fit into his neat theories’.8

1 

J Bentham, A Fragment on Government, ed JH Burns and HLA Hart (Cambridge, 1988) 7. ibid 9. 3  J Bentham, A Comment on the Commentaries, ed JH Burns and HLA Hart (Oxford, 2008) 192–206. 4  See, eg, L Greenhouse, ‘Law in the Raw’, New York Times 12 November 2014; DF O’Scannlain, ‘Politicians in Robes: The Separation of Powers and the Problem of Judicial Legislation’ (2015) 101 Virginoia Law Review Online 31. 5 KL Vick, ‘Sir William Blackstone’s Commentaries on the Laws of England: A Rebuttal of the ­Criticism Leveled against them by Jeremy Bentham and John Austin’ (1966) 13 Loyola Law Review 85–87. 6  RA Posner, ‘Blackstone and Bentham’ (1976) 19 Journal of Law & Economics 583. 7  WS Holdsworth, ‘Gibbon, Blackstone, and Bentham’ (1936) 52 LQR 53; Vick n 5 supra at 90–92. 8  E Kadens, ‘Justice Blackstone’s Common Law Orthodoxy’ (2009) 103 Northwestern University Law Review 1605. 2 

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I want to take a different approach. Picking up on Bentham’s comparison of Blackstone to a religious practitioner, I read the Commentaries’s account of judicial interpretation as a kind of ritual in which Blackstone participates. Bentham might respond that I have just proved his point. In the mainstream modern view, ritual is quintessentially false and irrational—empty ceremony that distracts us from reality, the polar opposite of reasoned discourse. If legal decision making is like ritual, in Bentham’s eyes that just goes to show the fallaciousness of common law. After all, ritual deploys or embodies a kind of fiction, which to Bentham is anathema: ‘By the priest and the lawyer, in whatsoever shape fiction has been employed, it has had for its object or effect, or both, to deceive.’9 But there is another way to think of ritual. On this account, ritual’s fictional performance is not intended to deceive. Rather, as Seligman et al put it, ‘ritual creates a subjunctive, an “as if ” or “could be” universe’.10 Ritual practitioners ‘act as if the world produced in ritual were in fact a real one. But they do so fully conscious that such a subjunctive world exists in endless tension with an alternate world of daily experience’.11 So, while practitioners of the ritual of judicial discovery act as if they are finding objectively determined outcomes, they—and we—understand and acknowledge that subjective creativity is involved in producing those results. Taken as this kind of conscious practice, ritual is more like a play than a deception or delusion. Ritual participants’ commitment to acting as if they were part of an unconflicted world is directed not to finally resolving social conflicts or pretending that those conflicts do not exist. Rather, ritual is a response to real conflict and disorder that is seen as effectively endless and so must be met with the endlessly repetitive work of artful, temporary reconciliation. Reconsidering the judicial work described in the Commentaries as ritual undercuts Bentham’s depiction of Blackstone as a proponent of legal deceptions. (And it explains why Bentham inconsistently casts Blackstone as both a credulous dupe and a corrupt purveyor of those deceptions). On the contemporary front, a ritual approach offers a new way to understand judges’ continued practice of acting as if legal authorities dictate legal results even when those authorities are manifestly indeterminate. Importantly, a ritual view of adjudication need not entail legal stasis. Ritual is often associated with maintaining traditional social structures. Bentham saw judges’ performance of law finding as a way to justify the status quo, and in the US today Blackstone continues to be claimed by conservative ‘originalists’.12

9  J Bentham, Fragment on Ontology 199, in Works, ed. J Bowring (Edinburgh, 1838–43) vol 8, quoted in RA Yelle, ‘Bentham’s Fictions: Canon and Idolatry in the Genealogy of Law’ (2005) 17 Yale Journal of Law & the Humanities 151, 161. 10  AB Seligman, R P Weller, M J Puett, and B Simon, Ritual and its Consequences: An Essay on the Limits of Sincerity (Oxford, 2008) 7. 11  ibid 25–26. 12  J Allen, ‘Reading Blackstone in the Twenty-First Century and the Twenty-First Century through Blackstone’, in W Prest (ed), Re-Interpreting Blackstone’s Commentaries: A Seminal Text in National and International Contexts (Oxford, 2014) 224–25.

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But ritual need not always preserve a static social reality. Later in this chapter, I ­discuss a recent US federal appeals court decision that deployed the ritual of judicial discovery to expand protection for the rights of LGBT Americans.13

I.  Bentham’s Contradictory Critique There is a curious ambiguity in Bentham’s criticisms of the Commentaries. According to Bentham, Blackstone has taken an incoherent common law system and ‘decked her out … to advantage, from the toilette of classic erudition: ­enlivened her with metaphors and allusions’ to create an illusion of rationality.14 But Bentham cannot make up his mind whether Blackstone is the perpetrator or the victim of this falsely tricked out law. Sometimes he paints Blackstone as a conscious manipulator, a dissembling common law partisan who ‘chuckles over the supposed defeat of the Legislature with a fond exultation which all his discretion could not persuade him to suppress.’15 But at other times, Blackstone appears to be in thrall to his own wishful fantasies of common law perfection, caught up in a ‘design’ that is ‘scarce recognised perhaps by our Author: but not the less likely to have governed him.’16 For Bentham, something either is or is not law. Judicial decisions ‘are themselves among the ingredients of this same Common Law … or they are nothing’.17 ­Treating judicial opinions as ‘evidence’ of common law is for Bentham simply fallacious. Blackstone’s famous characterisation of judges as living ‘oracles’18 is ‘an apposite similitude’, Bentham observes, because it confers a mysterious power on both the law and the judges who declare it. It makes law, just ‘like certain Tyrants of the earth’ inaccessible to ordinary humans and ‘perceivable only by means of its ­delegates: these judicial decisions’.19 We are left to wonder, however, whether Blackstone is a false prophet or deluded victim of this mystifying tactic. Bentham derides Blackstone’s assertion that judges who overrule precedents ‘do not pretend to make a new law, but only to vindicate the old one from misrepresentation’.20 But it is unclear whether Bentham views this as deliberate hypocrisy, or pathetic credulity, or both. It reminds Bentham of the way religious believers rationalise sacrilegious behaviour. The judge who insists that by contradicting

13 

Hively v Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir 2017) (en banc). on Government 413. 15  ibid 411. 16 Bentham, Comment on the Commentaries 195. 17 ibid. 18 ibid. 19 ibid. 20  ibid, quoting W Blackstone, Commentaries on the Laws of England, Book I: Of the Rights of P ­ ersons, ed D Lemmings and W Prest (Oxford, 2016) 52 [70]; here and below, pagination of the original (1765–69) edition is given in square brackets. 14 Bentham, Fragment

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precedent he is correcting old law, rather than making new law, is like a Jew with ‘a Christian relish for Westphalia Hams’ who called the hams ‘stock-fish; and with the said stock-fish (retaining always his aversion for the flesh of swine) did fill his belly’.21 Likewise, ‘many a good Mussulman, who abhors the very name of wine, finds means to amuse himself with brown water’.22 Just so, says Bentham, a judge who disagrees with some prior decision ‘may overthrow it at his pleasure’, so long as he does not say the previous ruling made bad law. Instead, ‘let him call it no law, and everything is as it should be’.23

II.  Common Law and the Commentaries as Ritual Bentham’s ambivalent characterisations of Blackstone as at once a fraud and a fanatic recall anthropologists’ struggle to make sense of ritual participants’ combination of knowledge and faith. The Victorian founders of the academic discipline of anthropology regarded ritual magic as definitionally false, and their perplexed reports echo Bentham’s ambiguous critique. Thus, EB Tylor asserts that a ritual practitioner is ‘at once dupe and cheat’, and ‘combines the energy of a believer with the cunning of a hypocrite’.24 The field anthropologists of the twentieth century viewed the double consciousness of ritual practitioners in a less judgmental but still somewhat mystified light. EE Evans-Pritchard, in his classic study of magic among the Ndembu, notes that the subjects and witnesses of ritual healing are well aware that the witch doctor palms and plants the charcoal bits he ostensibly extracts from his patient’s body, yet remain convinced of the value of the ritual.25 Likewise, Franz Boas observes that among the Kwakiutl of the Pacific Northwest, ‘It is perfectly well known by all concerned that a great part of the shamanistic procedure is based on fraud; still it is believed in by the shaman as well as his patients and their friends’ and exposures of shamanistic sleight of hand ‘do not weaken the belief in the “true” power of Shamanism’.26 Reflecting on this apparent psychological contradiction, Michael Taussig concludes that such exposures are far from mistaken. Instead, ‘the success of such ritual lies not in concealing but in revealing trickery’.27 21 Bentham, Comment

on the Commentaries 201, fn e. ibid. Gibbon likewise used religious comparisons to criticise Blackstone’s ‘uncommon respect’ for common law, observing that legal rules developed through judicial opinions ‘acquire a prolixity and an uncertainty which will at last render the priests of Themis the sole interpreters of her oracles’ and that ‘Clergy of all religions have as constantly preferred the traditional to the written law’. Gibbon quoted in Holdsworth, ‘Gibbon, Blackstone, and Bentham’ 51. 23  ibid Bentham, Comment on the Commentaries 201. 24  EB Tylor, The Origins of Culture (New York NY, 1958 [1871]) 134. 25  EE Evans-Pritchard, Witchcraft, Oracles, and Magic Among the Azande, abridged edn (Oxford, 1976) 107. 26  F Boaz, Kwakiutl Ethnography, ed H Codere (Chicago IL, 1966) 121. 27  M Taussig, ‘Viscerality, Faith and Skepticism: Another Theory of Magic’, in Near Ruins: Cultural Theory at the End of the Century, ed NB Dirks (Minneapolis MN, 1998) 221. 22 

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If such revelations of illusion do not destroy the meaning of the ritual, it must be because no one is fooled in the first place. Of course, this raises the question of how and why rituals are ‘successful’, but however rituals ‘work’, it is not a matter of fraud or self-delusion. The crucial point is that within a ritual framework acting as if something is the case is not the same thing as believing, or trying to persuade others, that one’s performance is a transparent reflection of fact-based reality. Consider the rites that accompany Trobriand Islanders’ annual building of storehouses for the yam harvest, described by Bronislaw Malinowski. The complex spells performed to ‘anchor’ and secure the yam houses are grammatically addressed to the storehouses and yams themselves. But Malinowski observed that Trobrianders ‘have not the slightest doubt that the magic does not act directly on the substance of the food but on the human organism’.28 The ritual acts as if it renders the yams impervious to human invasion. But the villagers understand the rite’s effect as restraining hunger. Though a form of make-believe, ritual has the capacity to generate ‘an irreducible change in quality of experience or situation of the participants’.29 The yam house ritual works to improve the security of the yam houses, not because of false beliefs in its ability to alter physical reality but because through the ritual ­villagers commit themselves to the inviolability of the storehouses. In this view, ritually created order is not a sham. Like theatrical performers, ritual participants partake of what Joseph Roach calls ‘double consciousness, the self-reflexive interaction of identity and role’.30 Indeed part of what separates and defines a particular action as a performance or ritual is this doubled quality. In short, ritual’s presentation of a smooth, univocal reconciliation of conflict is a creative act. Ritual work is never finished but needs to be renewed endlessly, through repeated performances according to a prescribed schedule. That repetition is necessitated by the persistently broken and inharmonious real world. Cultures that take ritual as central therefore ‘understand the world as fundamentally fractured and discontinuous, with ritual allowing us to live in it by creating temporary order.’31 Of course, Bentham would not be convinced by my attempt to vindicate common law’s authenticity as a kind of ritual. From his instrumental perspective, it must be either true or false that judges find legal outcomes by applying preexisting legal principles. Judges who act and speak as if they are being guided by pre-­existing doctrines are either deliberately deceiving the public or they are themselves caught up in a fantasy. Attacking Blackstone’s description of judges’ reliance on precedent, Bentham pounces on what he sees as an exception that swallows the rule. A judge, says Blackstone, is ‘sworn to determine, not ­according

28 

B Malinowski, Coral Gardens and Their Magic (Bloomington IN, 1965) vol 1, 226. Schieffelin, ‘On Failure and Performance: Throwing the Medium Out of the Séance’, in The Performance of Healing, ed C Laderman and M Roseman (London, 1995) 64. 30  J Roach, Cities of the Dead: Circum-Atlantic Performance (New York NY, Columbia University Press, 1996) 1. 31  Seligman et al., Ritual and Its Consequences (Oxford, 2008) 11. 29 E

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to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one’.32 Nevertheless, a judge may diverge from precedent if the prior decisions are ‘most evidently contrary to reason’.33 But how, Bentham asks, can a judge know when a prior decision is ‘contrary to reason’? The judge ‘cannot go round the world and count suffrages’, and so must resort to his own judgment.34 Blackstone’s rule of judicial interpretation, then, boils down to a command to follow precedent, ‘unless it is most evidently contrary to what you like’.35 As if that were not bad enough, after Blackstone gives judges a licence to pick the legal outcomes they personally prefer, he proceeds ‘to teach a Judge that is self-willed, by what sophistry he may varnish over his presumption’, explaining that when judges diverge from an unreasonable precedent, they ‘do not pretend to make a new law, but to vindicate the old one from misrepresentation’.36 When a precedent is rejected as ‘absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law’.37 ­Bentham is practically apoplectic at what he regards as sheer hypocrisy: a judge is free to disregard precedent, so long as ‘he does not say it was bad law: let him call it no law, and everything is as it should be’.38 From the ritual perspective I have been expounding, however, treating a divergence from precedent as finding the law’s true meaning is not a way to hide or shirk responsibility for law making. It can be viewed instead as a creative enactment of the judge’s sublimation of her own will to the direction of the law, ‘making, not faking’ a commitment to impartial judgment.39 The judge acts as if pre-existing law determines the outcome, as ‘a means of performing the way things ought to be in conscious tension with the way things are’.40 And in the rigorous, repeated performance of that ‘ought to be’, the judge performs his commitment to make every effort to reason impartially. Like the Trobrianders, who act as if their harvest rituals change the nature of the yams and their storehouses to protect the harvest, we might see judges as acting as if doctrinal reasoning actually determines outcomes, all the while conscious of their performance as an imaginative creation that works, if it works, to affect their own outlook. From the ritual perspective, then, Bentham’s criticism of common law as ‘a thing merely imaginary’ misses the point.41 As a ritual, common law is indeed a product of imagination; that is the source of its power. 32 Blackstone, Commentaries 33 ibid.

34 Bentham, Comment 35 ibid. 36 

vol 1, 52 [69].

on the Commentaries 198.

ibid 200, quoting Blackstone, Commentaries vol 1, 52 [70].

37 ibid. 38 

ibid 201. Conquergood, ‘Performance Theory, Hmong Shamans, and Cultural Politics’ in JG Reinelt and JR Roach (ed) Critical Theory And Performance (Ann Arbor, 1992) 41, 51, quoting V Turner, From Ritual to Theatre: The Human Seriousness of Play (New York NY, 1982) 93. 40 Seligman et al, Ritual and Its Consequences 27, quoting JZ Smith, Imagining Religion: From ­Babylon to Jonestown (Chicago IL, 1982) 63. 41 Bentham, Comment on the Commentaries 119. 39  D

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III.  Blackstone Celebrates Legal Invention But does Blackstone recognise the creative ‘as if ’ nature of the judicial practices and legal doctrines he describes?42 Or does he, as Bentham suggests, naively take them for objective reality or deceitfully attempt to conceal their artifice? Bentham chose to focus his critique entirely on Blackstone’s Introduction to the Commentaries, the most abstract part of the work’s four volumes. Reading just that text, it is hard to tell whether Blackstone means to describe judicial decision making as a process in which judges somehow really escape their subjective limits, or a practice of acting as if judges find rather than make law. In other parts of the Commentaries, however, Blackstone comments directly on the ingenious inventions of common law’s creative practitioners. Bentham probably would regard these acknowledgments of legal creativity as further demonstrations of the fundamental falsehood of the judicial performance of law finding. Indeed, Bentham viewed the fictions common law judges employed in altering common law doctrines as sheer mendacity, ‘a wilful falsehood, having for its object the stealing [of] legislative power’.43 Be that as it may, it is virtually impossible to read the main body of the Commentaries and maintain a belief that Blackstone himself believes that common law materialises according to some transcendent master plan or that he is trying to convince his readers that judges’ legal reasoning is a simple matter of following preexisting rules.44 Consider the discussion of the law of future estates, which Blackstone explains ‘contains some of the nicest and most abstruse learning in the English law’.45 The shift from feudal land grants in exchange for personal service to a relatively free market in real estate is not presented as the result of some shadowy common law divination or a natural evolution of social custom. Blackstone is very clear that

42  Frederick Schauer draws attention to another sort of ‘as if ’ thinking in legal theory, embodied in Kelsen’s concept of the Grundnorm, and in hypothetical analysis in general, and traceable to the work of the German philosopher Hans Vaihinger. F Schauer, ‘Legal Fictions Revisited’ in M Del Mar and W Twining (ed) Legal Fictions in Theory and Practice (Cham, Switzerland, 2015) 115–117. As Schauer points out, ‘we are highly familiar with the idea of assuming something for the sake of argument, or presuppose the truth of one proposition in order to make sense of some other proposition’ (115). Schauer distinguishes this sort of hypothetical thinking in which we ‘act and speak as if something were true’ but ‘do not want the truth or falsity of the assumption to matter’, from situations more commonly called legal fictions, in which ‘what we assume to be true is false’ (117). The ‘as if ’ thinking I am attributing to Blackstone and to judges is of the latter more clearly fictional sort and is often described in ritual theory. See Seligman et al. 43  Bentham, ‘From the Preface to the second edition’, A Fragment on Government, ed Burns and Hart 117. 44  Nevertheless, scholars continue to characterise Blackstone as maintaining this naive view of common law. See, eg, E Kadens, ‘Justice Blackstone’s Common Law Orthodoxy’ (2009) 103 Northwestern University Law Review 1601, describing Blackstone as ‘firmly convinced that a single, guiding rule could be found through diligent searching of the authorities’ that ‘bore a single correct interpretation’. 45  W Blackstone, Commentaries on the Laws of England, Book II: Of the Rights of Things, ed S Stern and W Prest (Oxford, 2016) 110 [163].

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changes in legal structures are the human handiwork of individual practitioners whose skill at legal artifice should inspire both respect and suspicion. For instance, Sir Orlando Bridgman and Sir Geoffrey Palmer are credited with the ‘invention’ of doctrine of remainders.46 And Blackstone is almost gleeful when he explains how ‘a method was invented’ to get around the rule that only direct descendants of the original purchaser could inherit property.47 The legal fiction of the feudum novum to hold ut feudum antiquum treats newly purchased real estate as if it has been in the purchaser’s family for centuries. That way distant cousins can inherit it ‘because they might have been of the blood of, that is descended from, the first imaginary purchasor’.48 In other words, Blackstone presents the legal structure of hereditary descent, ‘the principal object of the laws of real property in England’, as based on imaginary history.49 Or take Blackstone’s description of the ‘common recovery’, an elaborate court procedure undertaken when legal restrictions would otherwise bar a property transfer. This proceeding is so twisted that Blackstone is ‘greatly apprehensive that it’s form and method will not be easily understood’, and he spends three full pages detailing its choreography.50 In a nutshell, two people who want to transact a legally prohibited sale of land go to court and act out a pretend collusive lawsuit. Note that although there is no real adversity between the parties, nobody is fooled by the charade. Everyone—judges, witnesses, and the public at large—recognises this as a performance. Indeed, the broad hyper-artificial style of this legal theater is a little much for Blackstone’s taste: ‘such awkward shifts, such subtile refinements, and such strange reasoning’, he exclaims.51 There is no ‘mask of Mystery’ here.52 It is perfectly clear that the imaginary ancestral estates and pretend collusive lawsuits Blackstone describes are the deliberate creations of real live human lawyers. Moreover, the frankly invented nature of the common law doctrines and procedures Blackstone describes gives their results a provisional quality. Formalising the steps for legal ritual creates a road map for undoing it, a pathway that can be retraced. What’s done is done, but if we know how it was done it can be undone, too. Blackstone offers a concrete example in his description of the 500-year battle of institutional wits waged between ­Parliament

46 

ibid 115 [172]. ibid 149 [221]. 48 ibid. 49  ibid 135 [201]. It is true that Blackstone sometimes suggests that such innovations were necessary to undo the policies of bad old feudalism and return to the more just legal system he associates with ancient Saxon society. But he nevertheless presents them as innovations created, not as legal antecedents found. 50  ibid 242–44 [357–61]. 51  ibid 244 [361]. Nancy Knauer describes Blackstone’s endorsement of legal fictions in general as ‘mild’ and chooses his treatment of common recoveries as an example: NJ Knauer, ‘Legal Fictions and Juristic Truth’ (2010) 23 St Thomas Law Review 14. But Blackstone’s approval of other doctrinal fi ­ ctions is far less equivocal: see J Allen, ‘Law and Artifice in Blackstone’s Commentaries’ (2014) 4 Journal of Law, No 3, Ch 1, 202–05. 52 Bentham, Fragment on Government 21. 47 

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and the church to, respectively, collect and avoid taxes. Once again creative lawyers are celebrated, especially the lawyers for the churchmen, ‘who, Sir Edward Coke observes, in this were to be commended, that they ever had of their counsel the best learned men that they could get’.53 After reading Blackstone’s account of how property law doctrines were developed, his introductory text on judicial interpretation looks different. The description of judges’ reliance on precedent reads less like an ontological claim about the metaphysical status of law and more like an account of a conventional practice. After all, Blackstone does not write that judges never use their own judgment in determining legal outcomes, but rather that a judge is ‘sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land’.54 Nor does he say that judges who overrule precedent do not make new law, but that they ‘do not pretend to make a new law.’55 Rather than a claim that judges do not make law, this may be an observation that even when judges do make new law, they (and we) say, or ‘pretend’ that they are correcting a mistaken view of what the law has always been. Doubtless Bentham would view this equivocal language as further evidence of Blackstone’s duplicity or confusion. But one can also read these ambiguous passages as careful descriptions of a practice that partakes of ritual’s ambiguous, doubled nature, an account that mirrors a practice in which judges act as if making were finding, and in so doing perform the sublimation of their individual will to the direction of law.56

IV.  Ritual and Violence But why should Blackstone promote a dicey, ambiguous ritual approach to law? After all, like Bentham, he championed Enlightenment rationality and science. The great project of the Commentaries is to show how traditional common law embodies modern liberal political rights. The problem that both Blackstone and Bentham face is that liberal rights sometimes conflict with government’s mono­ poly on legitimate violence. Moreover, there is a built-in contradiction in a ‘rule of law’ system in which legality is the warrant for government force, because every vindication of individual liberty bolsters the legitimacy of government power.57

53 Blackstone, Commentaries 54 Blackstone, Commentaries 55 

vol 2, 184 [270]. vol 1, 52 [69] (emphasis added).

ibid (emphasis added). himself sometimes describes common law procedures in terms that suggest ritual performance. For instance, he proposes that common recoveries may have begun as a kind of ‘pia fraus’, or pious fraud: Commentaries vol 2, 78 [117]. 57  As Nicola Lacey observes, ‘The rule of law … is double-edged: It plays a role in both constraining and legitimizing power’: N Lacey, ‘Philosophy, Political Morality, and History: Explaining the Enduring Resonance of the Hart-Fuller Debate’ (2008) 83 New York University Law Review 1076. 56  Blackstone

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(This, of course, was Marx’s problem with liberal legal rights as an engine of social justice.) For Bentham, there is a possible solution to this problem. As a positivist who believes on the one hand that all individual rights are the product of sovereign authority, and on the other, that the social benefits of legal outcomes can be measured objectively, Bentham can imagine a world in which law is perfectly aligned with objective good. In such a world, the sovereign would have a fully legitimate claim to monopolise violence. Of course, Bentham recognises that reality as it stands does not meet that standard. But in principle, justice can progress, just as in the field of natural science ‘knowledge is rapidly advancing towards perfection’.58 In this purely positivist legal vision, it is possible to imagine the end of the conflict between legal rights as forestalling and justifying sovereign violence. Because Blackstone’s legal framework combines positive law with natural rights, however, the conflict between justice and sovereign authority cannot be finally resolved. As Bentham observes, the natural-law concept that an unjust law is not law, taken literally, would justify, perhaps even necessitate, constant rebellion, for ‘if no laws then is the enforcing them an act of violence without authority’.59 Constant rebellion is obviously incompatible with stable sovereign government (and positive law), but Blackstone is unwilling to give up on either strong sovereignty or the idea of rights that transcend sovereign authority. Perhaps, then, he is inclined to accept what amounts to a ritual approach to legal process as a way to negotiate the inherent contradictions between natural rights and sovereign power.60 Blackstone seems to accept a picture of law as endlessly developing and requiring constant work to maintain whatever benefits have been achieved. As David Lemmings observes, Blackstone’s historical account of English common law strongly suggests that ‘the constitution of liberty that had been so painfully constructed was not guaranteed to be a permanent fixture’.61 Nor does he ever suggest that there would be a way to construct a legal system in which individual liberty would be sure to prevail. In contrast Bentham seems to think that if the legal system were to adopt what he sees as the measurable standard of utility, conflicts over legal results might be finally put to rest. The question of utility can, Bentham believes, be framed in terms of ‘future contingent matters of fact’.62 Faced with an inquiry into observable fact, disputing parties will eventually come ‘at the worst to an intelligible and explicit issue’.63 And this common ground of fact may, ‘when thoroughly trodden and explored, be found to lead on to reconcilement at the last’.64 Moreover, in a

58 Bentham, Fragment

on Government 3. on the Commentaries 55. American constitutional system embodies such a combination of sovereign power and rights transcending that power: see RA Posner, ‘Blackstone and Bentham’ (1976) 19 Journal of Law & ­Economics 605–06. 61  D Lemmings, ‘Editor’s Introduction’ to Blackstone, Commentaries, vol 1, xx. 62 Bentham, Fragment on Government 105. 63 ibid. 64 ibid. 59 Bentham, Comment 60 The

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legal system guided by utilitarian principles, the ‘arrangement that would serve for the jurisprudence of any one country, would serve with little variation for that of any other’.65 Any bad law would be identified because ‘the utility of it would be rendered suspicious, by the difficulty of finding a place for it’.66 Thus, ‘[g]overned in this manner by a principle that is recognised by all men’, progress could be made toward a universally applicable system of law.67 The irony here is that it is the sceptic Bentham who accepts the potential for ultimate utopian legal harmony, even as he criticises Blackstone’s fictional harmonious present. He excoriates Blackstone’s assertion that ‘everything is now as it should be’ in the current English legal treatment of heresy, but Bentham apparently believes a consistent commitment to utilitarianism could make everything as it should be in every legal system in the world for all time.68

V.  Ritual and Reform Ultimately, Bentham’s critique cast Blackstone as an enemy of progress, such an avowed, ‘determined and persevering enemy’ that ‘the interests of reformation’ are ‘inseparably connected with the downfall of his works’.69 If progress means resolving the contradiction between rights and sovereignty, then Bentham is correct that progress is impossible in the legal scheme the Commentaries describes. Note that Blackstone’s commitment to a combined system of positive law and natural rights is shared by modern constitutional democracies. The US, for example, functions as a strong administrative state enforcing positive law with a monopoly on lethal force, yet recognises rights that cannot be undone by positive law—such as rights of due process and the free exercise of religion. So long as we also remain committed to a system that makes legality the warrant for sovereign force, the boundary between law and justice cannot be dissolved or overcome once and for all. But within that scheme, it is possible for substantive law and legal procedures to progress in the sense that they change in ways that reflect and help construct expanded categories of rights. Bentham’s characterisation of Blackstone as a jurisprudential stick-in-the-mud persists. The American judge most likely to invoke Blackstone in recent years was the late conservative Supreme Court Justice Antonin Scalia, who advocated

65 

ibid 26.

66 ibid. 67 ibid.

68  Bentham (ibid. 18) lambasts Blackstone’s approval of the treatment of heresy at Commentaries, vol 4, 32 [49, 295]: ‘Every thing is now as it should be: unless perhaps that heresy ought to be more strictly defined, and no prosecution permitted, even in the ecclesiastical court, till the tenets in question are by proper authority previously declared to be heretical.’ But as Bentham’s own footnote (18n) makes clear, Blackstone’s approval was by no means unqualified. 69 Bentham, Fragment on Government 4.

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‘­originalism’, that is, reading legal texts as they would have been understood by ordinary readers at the time of their enactment. In a book on legal interpretation, Justice Scalia claimed Blackstone as a jurisprudential fellow traveler, declaring him ‘a thoroughgoing originalist.’70 But Scalia (and his co-author Bryan Garner) must have been relying more on Blackstone’s conservative reputation than a close reading of his work. To support their characterisation of Blackstone as an originalist, Scalia and ­Garner point to a paragraph in the Commentaries discussing a fourteenth-­century English statute that ‘forbids all ecclesiastical persons to purchase provisions at Rome’.71 Blackstone notes that the law ‘might seem to prohibit the buying of grain and other victual’, ie, ‘provisions’ in common usage, but ‘when we consider that the statute was made to repress the usurpations of the papal see, and that the nominations to vacant benefices by the pope were called provisions, we shall see that the restraint is intended to be laid upon such provisions only’.72 In other words, rather than banning food purchases, the law prohibited bribing the Roman officials who made religious appointments. Scalia and Garner read this passage to indicate Blackstone’s view that giving a term in a medieval statute ‘an 18th-century meaning, or the 21st-century meaning, would be utterly wrong’.73 But Blackstone never mentions a temporal gap, or rejects a change in meaning over time. What is more, in addition to the specialised meaning of appointments to religious posts, ‘provisions’ apparently meant supplies in the fourteenth century just as it did in later times.74 So Blackstone’s point seems not to be about original versus contemporary understandings at all, but rather that statutes should be understood in light of their context and what he calls their ‘subject matter’.75 Blackstone never contends that a statute’s purpose, or subject matter, must be understood as limited to what the enacting legislators themselves or their contemporaries envisioned. Arguably, the passage of time and a changing social context could reveal, rather than obscure, how the law’s subject matter should be understood. If new methods of bribery developed involving clerical appointments, the old law might well be found to prohibit these new forms of a ‘purchase of provisions at Rome’. Nothing in the Commentaries rules out this type of dynamic statutory meaning. Blackstone does seem committed, however, to the idea that new legal interpretations should be presented as if they are corrections, rather than creations,

70 

A Scalia and BA Garner, Reading Law: The Interpretation of Legal Texts (St Paul MN, 2012) 79. ibid 80, quoting Blackstone, Commentaries vol 1, 46 [60]. Oddly, Scalia and Garner refer to the statute which Blackstone identifies as ‘a law of our Edward III’ as an eleventh-century statute. 72 ibid. 73  Scalia and Garner, Reading Law 80. 74  The Oxford English Dictionary etymology of ‘provision’ offers both meanings with thirteenth and fourteenth century dates for the word’s Anglo-Norman origins, although the first example for the specific definition ‘a supply of food’ is dated 1555 while the first entry for the definition ‘appointment to a see or benefice’ is from 1387. 75 Blackstone, Commentaries vol 1, 46 [60]. 71 

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of new legal rights. Recently, Blackstone was prominently cited by a concurring opinion in a judicial decision that reinterpreted a 50-year-old statute to protect lesbian, gay, bisexual and transgender (LGBT) Americans against employment ­discrimination.76 In my view, that particular citation is questionable, but not because it is being used to liberalise rights. The problem is that the concurrence in which it appears explicitly rejects the performance of judicial discovery. In contrast, the majority opinion in the same case, which does not cite Blackstone, offers a textbook example of ritual law finding undertaken to expand individual rights. In Hively v Ivy Tech Community College of Indiana, a professor who believed that her contract was not renewed because she is a lesbian, sued under the Civil Rights Act of 1964.77 The Act forbids discrimination ‘because of [an] individual’s race, color, religion, sex or national origin’.78 For many years, however, US courts have interpreted the prohibition on sex discrimination to exclude sexual-orientation discrimination, and the trial judge dismissed Hively’s complaint on that basis. An appellate panel affirmed the dismissal on the same ground, but the appellate court then voted to rehear the case en banc and reversed the panel’s decision. In a remarkable about-face, the majority of judges concluded that the statute forbids discrimination on the basis of sexual orientation and overruled prior case law to the contrary.79 The appellate court’s own precedents held that ‘discrimination based on sexual orientation is somehow distinct from sex discrimination’, and so was not covered by the statute.80 The US Supreme Court has never ruled on the issue. According to the Hively majority, however, recent US Supreme Court cases recognising samesex couples’ constitutional right to marry have cast new light on the meaning of the sex discrimination forbidden by the Act.81 Among other things, reading the statute to allow sexual orientation discrimination led to the ‘bizarre results’ that ‘a person can be married on Saturday and then fired on Monday for just that act’.82 After taking ‘a fresh look at our position in light of developments at the Supreme Court’, the court rejected its previous interpretation of the statute and held that the ban on sex discrimination includes sexual-orientation ­discrimination.83 Indeed, the court explained ‘that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex’.84 Judge Richard Posner joined the majority and wrote a separate concurrence claiming Blackstone as a guiding spirit of the court’s decision.85 Posner is a

76 

Hively v Ivy Tech Community College, 853 F. 3d 339 (7th Cir 2017) (en banc). ibid 341. 78  42 USC Section 2000e–2(a). 79  Hively, 853 F. 3d at 355, Posner, J, concurring. 80  ibid 341. 81  ibid 349–50. 82  ibid 342. 83  ibid 341. 84  ibid 351. 85  ibid 352–57, Posner, J, concurring. 77 

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­ ell-known iconoclast, Scalia antagonist, and Blackstone fan, so besides bolstering w the majority’s legal reasoning, his citation may well have been aimed at reclaiming Blackstone for a more progressive jurisprudence.86 In this case, however, ­Posner’s claim to Blackstone’s blessing seems as dubious as Scalia’s characterisation of Blackstone as an originalist. The problem is not the substantive outcome or the need to overrule settled precedent to reach it. Nothing in the Commentaries’ discussion of statutory interpretation precludes the court’s expansive reinterpretation of the Act. And Blackstone’s view that precedent contrary to natural rights can and should be overruled is clearly compatible with the Hively decision. Rather the problem is that Posner calls on Blackstone to authorise exactly the sort of explicit law making that the judicial ritual of law finding avoids. Focusing on another example from the same page of the Commentaries cited by Scalia, Posner’s Hively concurrence argues that Blackstone’s approach to statutory interpretation supports ‘a sensible deviation from the literal or original meaning of the statutory language’.87 So far, so good, but Posner goes further. Declaring, ‘We are Blackstone’s heirs’, he advocates acknowledging that the court’s decision is ‘rewriting’ the anti-discrimination law to give it ‘a new, a broader meaning’ to ‘update it to the present’.88 Indeed, Posner urges the court to ‘acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of ‘sex discrimination’ that the Congress that enacted it would not have accepted’.89 As Bentham’s critique points out, this sort of candid judicial lawmaking is quite contrary to Blackstone’s account of judicial interpretation. (Indeed, Bentham’s main criticism of the judicial performance of law finding is that it conceals illegitimate judicial lawmaking.) Oddly, at first Posner seems to recognise the gap between overt judicial legislation and Blackstone’s interpretive approach. Early in his opinion Posner names Blackstone as the definitive articulator of what he calls statutory ‘interpretation by unexpressed intent’.90 Initially Posner opposes that interpretive method to a more ‘controversial’ approach in which ‘interpretation can mean giving a fresh meaning to a statement’ in a statute ‘that infuses the statement with vitality and significance today’.91 Somehow by the end of Posner’s opinion, however, these two different styles have been collapsed into one. The court’s adoption of ‘an interpretation that cannot be imputed to the framers of the statute’ in order to serve the ‘compelling social interest in protecting homosexuals … from discrimination’ is justified by Blackstone’s allowance for ‘a sensible deviation from the literal or original meaning of the statutory language’.92

86 

See Posner, ‘Blackstone and Bentham’ 569. Hively, 853 F.3d at 352, Posner, J, concurring. 88  ibid 353–54. 89  ibid 357. 90 ibid. 91 ibid. 92  ibid at 355. 87 

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Like Bentham, Posner has little use for doctrinal fictions. And like Bentham he realises that ‘a sensible deviation’ from a statute’s conventional reading can be expanded to produce virtually any interpretation a judge prefers—including one that contradicts the way a law has been understood for decades. So, from ­Posner’s perspective, there is nothing to be gained from acting as if a judicial decision is correcting a previous misunderstanding, rather than boldly changing the law to suit the changing times. Moreover, and again like Bentham, the modernist Posner is uncomfortable with a judicial style that looks to him like duplicity. But where Bentham attacks Blackstone for advocating a false performance of judicial ­discovery, Posner treats judges’ law-finding performance as trivial. Marginalising the law-finding performance described in the Commentaries leaves Posner free to claim Blackstone as an authority not only for a liberal result but for a candid lawmaking method. The problem is that Blackstone apparently regarded the judicial performance of law finding as significant. Indeed, there is every reason to think that for Blackstone the performative means a court used to reach its results were as important as the substantive result. As Bentham’s critique points out, Blackstone’s descriptions of judicial method present the performance of judicial discovery as fundamental to common law. For Bentham and Posner, judges’ counterfactual performance of law finding is at best tediously conventional and self-aggrandising and at worst downright deceptive. I have tried to show that engaging in a ritual of law finding is not the same thing as believing—or trying to convince others—that judges actually unearth legal answers from pre-existing authorities without creative intervention. But that is not the same as saying that the ritual of judicial discovery is meaningless. Posner’s belief that he can just dispense with the performance of law finding is the flip side of Bentham’s virulent attack. Because he shares Bentham’s instrumental approach, any aspect of judicial decision making that does not actually contribute to substantive legal results is either pernicious or it is nothing. Ironically, the Hively opinion with the greatest claim to a Blackstonian inheritance never cites him. Written by Judge Diane Wood, the majority opinion is a classic example of judicial law reform enacted through a common law performance of judicial discovery. It opens with an express commitment to law finding: The question before us is not whether this court can, or should, “amend” Title VII to add a new protected category to the familiar list of “race, color, religion, sex or national origin.” Obviously that lies beyond our power. We must decide instead what it means to discriminate on the basis of sex.93

The court then proceeds to carry out its avowedly law-finding task in a way that produces a rather stunning remaking of anti-discrimination law. The key interpretive move involves a categorical reframing. Rather than distinguishing sexual orientation from gender identity, the opinion treats homosexuality as an extreme

93 

ibid 343.

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form of gender nonconformity. In this light, the lesbian plaintiff ‘represents the ultimate case of failing to conform to the female stereotype’, so the biased treatment she received is a kind of sex discrimination.94 In a further irony, the opinion justifies this categorical shift with a 20-year-old Supreme Court opinion written by none other than Justice Scalia.95 There follows a discussion of the Supreme Court’s recent cases recognising same-sex couples’ right to marry (in both of which Scalia dissented), after which the opinion declares that it ‘would require considerable calisthenics to remove the “sex” from “sexual orientation”’, and maintain the longstanding understanding that the employment discrimination statute does not ban sexual-orientation bias.96 In this way, the Hively court performs a radical reform of employment rights as an interpretive adjustment necessary to reflect the true meaning of a statute that has been misinterpreted for decades. A dissent by Judge Sykes accuses the Hively majority of exactly the kind of ‘judge empowering’ deception that Bentham charged Blackstone with promoting, a ­pretense of judicial interpretation undertaken ‘to smuggle in the statutory ­amendment’.97 But as I have argued, it seems wrong to understand the court’s approach as deceptive. Who after all is it fooling? The harder question is: what good could such a performance possibly do? Judge Posner brushes aside the majority’s performance as unnecessary, and obviously the substantive results would be the same if the court adopted his (avowedly Blackstonian but actually Benthamist) approach and simply declared that expanding the statute was necessary for the good of society and in light of ‘what this country has become’.98 To see the potential benefit of a judicial discovery ritual, it is necessary to think of judicial process as something other than an instrumental method for reaching legal outcomes. Only then is it possible to envision some real work that the ritual of deferring to common law might do. Performing ritual requires a temporary subordination of individual personality to the performed role. A ritual commitment to impartiality still leaves room for a failure to follow through. But acting out a commitment is more than just saying something. Conscientious formal doctrinal reasoning entails a complex, cognitively effortful series of actions that require skill, patience, attention to detail, and intellectual determination. The judge who undertakes to justify an outcome by precedent must coordinate her understanding and interpretation of the situation at hand with other judges’ interpretations of previous cases and with all the pre-existing legal authorities she has identified as relevant. Even if the judge reasons alone, she must consider previous judicial expressions of legal rules and principles and outcomes in other cases. In this sense at least, the ritual of doctrinal reasoning, like all ritual, ‘necessitate[s] an opening toward the other.’99 94 

ibid 346. ibid 344, citing Oncale v Sundowner Offshore Servs. Inc., 523 US 75 (1998). 96  ibid 350. 97  Hively, 853 F. 3d 360, Sykes, J dissenting. 98  ibid 357, Posner, J concurring. 99  Seligman et al xi. 95 

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In rule of law terms, then, the ritual of judicial discovery forces judges to perform the act of looking ‘outside their own will for criteria of judgment’.100 In fact, ritual in other contexts is sometimes described in terms that resonate with the rule of law ideal of sublimating individual preferences to a pre-existing publicly endorsed authority. Ritual, ‘the performance of more or less invariant sequences of formal acts and utterances not entirely encoded by the performers,’ is quintessentially social.101 Seligman et al characterise ritual as a practice that ‘creates and re-creates a world of social convention and authority beyond the inner will of any individual’.102 Like the Trobrianders who act as if their harvest rituals change the nature of the yams but understand the ritual as affecting their own appetites, we might expect judges who act as if they find outcomes in preexisting legal doctrine to see themselves as committed to impartiality and to at least attempt to fulfil that commitment. In the ritual framework, however, the state of mind of ritual participants is inconsequential. What matters is what they do. In the ritual of judicial discovery, judges turn away from their ordinary all-things-considered approach to decision making and toward preexisting formal legal texts in order to resolve conflicts. Whether those texts in fact direct or constrain the resulting legal outcomes, the ritual ‘works’ to generate a shared approach to a set of conflicts that cannot be ultimately resolved. Judges engaged in law-finding rituals perform a repertoire of endlessly repeated behaviours that model an impartial rule of law. The judicial performers act as if their decisions are externally guided, but they, and we, ‘do so fully conscious that such a subjunctive world exists in endless tension with an alternate world of daily experience’.103 For progressive reformers, ritual’s circularity and artificiality can be frustrating. Bentham rails against its obvious illusions. Posner disdains its inauthentic denial of individual agency. But it seems that, like ritual in general, the ritual of law finding ‘begs for and at the same time resists explanation most when appearing to be explained’.104 Bentham and Posner’s skeptical critiques of conventional judicial reasoning are widely recognised as brilliant, yet neither seems to have made a dent in the legal cultural commitment to the performance of judicial discovery. In fact, one could see both Bentham and Posner as themselves ritual practitioners par excellence. At least, the form of their critiques is a familiar feature of ritual in other contexts. Michael Taussig observes that across multiple cultures, magic rituals incorporate a technique he calls the ‘skilled revelation of skilled concealment’.105

100  KJ Bybee, The Rule of Law Is Dead! Long Live the Rule of Law!, in CG Geyh (ed), What’s Law Got to Do with It? (Stanford CA, 2011) 306, quoting L H Carter and T F Burke, Reason in Law 7th edn (Chicago IL, 2007) 147. 101  RA Rappaport, Ritual and Religion in the Making of Humanity (Cambridge, 1999) 24. 102  Seligman et al, Ritual and Its Consequences 11. 103  ibid 25–26. 104  Taussig, ‘Viscerality, Faith and Skepticism’ (n 27 above) 241. 105 ibid.

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Taussig retells the story of Quesalid, aka George Hunt, a Kwakiutl man who set out to unmask the tricks of his culture’s shamanic healers. As Quesalid ‘travels the land in search of truth and technique, and exposes other shamans as fakes’, he becomes known as a great shaman.106 His revelations of shamanic sleight of hand convince the public and the shamans themselves that he ‘possesses a secret more powerful than their own’.107 Like Quesalid, Bentham and Posner have unmasked ritual artifice. But rather than disenchantment, the unmasking seems only to have rendered the ritual more resilient and compelling.

106 

ibid 232.

107 ibid.

4 William Blackstone, Edward Gibbon and Thomas Winchester: The Case for an Oxford Enlightenment IAN DOOLITTLE1

Edward Gibbon could have been William Blackstone’s most formidable critic. His love of controversy, his gift for devastating dissection and his lapidary prose style were ideally suited to ridiculing what many—fairly or unfairly—regarded as Blackstone’s defence of the status quo. It was fortunate indeed for Blackstone that Gibbon largely confined his criticism of the Commentaries to an early and unpublished essay. Gibbon’s abstract of Book I contains a sharp attack on Blackstone’s backward-looking satisfaction in the form of the following Note on Blackstone’s ‘uncommon respect’ for the ‘Old Common Law’: He [Blackstone] will find it however difficult to persuade an impartial reader that old ­customs (begun in barbarous ages and since continued from a blind reverence to ­antiquity) deserve more respect than the positive decrees of the legislative power.2

This impression of an emancipated free thinker keen to dispel Oxford fog with fresh Enlightenment air is reinforced by another Note in which Gibbon takes a swipe at the University he had left after a short and famously unhappy time. He says that Blackstone alluded gently to Oxford’s—and Cambridge’s—neglect of legal education ‘with the becoming tenderness of a pious son who would wish to conceal the infirmities of his parent.’3 In many respects Gibbon’s essay/abstract was Bentham-esque. Like that other precocious student, he clearly relished the general subject matter of Book I (published on its own in 1765), but does not appear to have engaged, ­subsequently,

1  I am grateful to Brian Young for valued guidance and to Nigel Aston for his comments on a draft of this essay. I am responsible for the faults that remain. Other than where inappropriate, spelling and punctuation have been modernised. 2  E Gibbon, The English Essays of Edward Gibbon, ed PB Craddock (Oxford, 1972) 63 (note [5]). Holdsworth paid particular attention to Gibbon’s notes in ‘Gibbon, Blackstone and Bentham’ (1936) 52 LQR, 46–59. 3 Gibbon, English Essays, 63 (note [3]).

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with the more technical challenges of Books II–IV.4 The ­Commentaries were approached not with the aim of open-minded absorption but to confirm existing views, indeed prejudices. Blackstone’s text triggered other Notes expressing ­Gibbon’s by-now strong anti-clericalism. It was only a short step to a full Benthamtype critique, using the Commentaries as a dialectical convenience to advance the general case for legal and political reform. As it transpired, Gibbon’s literary ambitions took him in another—historical and philosophical—direction. There are however one or two indications that he continued to regard Blackstone as epitomising Oxford complacency, including a waspish characterisation of him as (effectively) an old woman.5 All this fits neatly into the old Enlightenment paradigm: the Oxford-educated protector of the Church and the common law confronted by the scornful alumnus who had escaped to absorb new reason. In fact, neither the contrast nor the paradigm on which it rests can withstand scrutiny. In his withering criticism of his university in his posthumously published Memoirs Gibbon made an exception for Blackstone;6 and—in another Abstract Note—he was generous in his overall assessment of the Commentaries: ‘This excellent work … may be considered as a rational system of the English jurisprudence digested into a natural method and cleared of the pedantry, the obscurity and the superfluities which rendered it the unknown horror of all men of taste.’7 This comes close to bringing the Commentaries within even the traditional characteristics of the Enlightenment. And we know now that those characteristics do not define all the literature and philosophy that can usefully be called Enlightened. JGA Pocock has helped us appreciate that there were in fact many Enlightenments (including a conservative one) and insofar as national labels signify anything there was an English Enlightenment as well as a Scottish, French and European one. This chapter seeks to take Pocock’s analysis one step further. It uses the example of Thomas Winchester—Blackstone’s close Oxford associate and Gibbon’s famously despised tutor—to consider the case for an Oxford Enlightenment. Winchester’s savage treatment in Gibbon’s Memoirs is so well known that it would not be worth repeating here were it not for its relevance to what follows: After the departure of [his first tutor] Dr. Waldegrave, I was transferred with the rest of his live-stock to a senior fellow, whose literary and moral character did not command the respect of the College. Dr. Winchester well remembered that he had a salary to receive and only forgot that he had a duty to perform. Instead of guiding the studies and watching over the behaviour of his disciple, I was never summoned to attend even the ceremony of a lecture; and, except one voluntary visit to his rooms, during the eight

4 See my ‘Jeremy Bentham and Blackstone’s lectures’ (1982) 6 Bentham Newsletter 23–25. cf. H ­ oldsworth, ‘Gibbon, Blackstone and Bentham’ 47. 5  W Prest, William Blackstone: Law and Letters in the Eighteenth Century (Oxford, 2008) 306–07. 6  E Gibbon, Memoirs of My Life, ed GA Bonnard (London, 1966) 66. 7 Gibbon, English Essays 63 (n [1]). Gibbon made respectful use of Blackstone in his ‘Antiquities of the House of Brunswick’.

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months of his titular office, the tutor and pupil lived in the same College as strangers to each other.8

Those who have approached this episode with fresh eyes—especially now that Oxford University in Gibbon’s time is no longer routinely dismissed as slothful and moribund—have been sceptical about the after-the-event s­elf-justification of an unhappy 15 year-old about to fall into the embrace of Catholicism.9 In his monumental study of Gibbon and his intellectual journey—Barbarism and ­Religion—Pocock goes deeper than this, describing Gibbon’s rejection of ­Winchester and his colleagues as part of a personal and religious crisis which was resolved—for a time—by Gibbon finding the answer to the problem of authority (posed by Conyers Middleton’s Inquiry into miraculous powers) in the Catholic Church.10 This was patently not the act of an anti-clerical rationalist throwing off clergy-based, dogma-bound learning; it was in many respects the reverse: the anguished disappointment of an insecure teenager looking in vain for certainty. Contextualised in this way the episode reinforces the instinctive view that Winchester was simply an excuse, an easy target for a now-celebrated writer ­anxious to explain away a youthful embarrassment. We could leave it like that, recognising that the expert biographer of John Loveday, one of Winchester’s closest friends, has convincingly defended ­Winchester from Gibbon’s ‘quite unjustified’ personal attack. ‘It is sad the feelings of a discontented child, swollen through thirty years to an outrageous animosity, should have prevailed rather than the solid, honest loyalty of Thomas Winchester.’11 This is a powerful statement, based on a deep and sensitive study of a man with whom Winchester shared much of his family and intellectual life. There is, however, more to be said about Winchester than this, especially if it is integrated with the debate about the Enlightenment—or rather Enlightenments— engendered by Pocock’s work on Gibbon and others, culminating in ­Barbarism and Religion but articulated widely elsewhere.12 In doing so, we can assess Thomas 8 Gibbon, Memoirs of My Life 56–57. A few pages later (65) Winchester had become simply ‘contemptible’. (In both instances the first editor omitted Winchester’s name.) Bonnard’s text as quoted here is based on Gibbon’s last version (known as ‘F’), completed by parts of earlier versions (‘A’–‘E’). For a full, definitive analysis of the Oxford elements of versions B–F, see D Womersley, Gibbon and the ‘Watchmen of the Holy City’: The Historian and his Reputation, 1776–1815 (Oxford, 2002) Ch 8 and apps. 5 and 6. 9  The History of the University of Oxford: Volume V, The Eighteenth Century, ed LS Sutherland and LG Mitchell (Oxford, 1986). 10  JGA Pocock, Barbarism and Religion, 6 vols (Cambridge, 1999–2015) vol 1, 43–49. cf. Womersley, Gibbon and the ‘Watchmen of the Holy City’ 309–14. 11  S Markham, John Loveday of Caversham 1711-1789 (Salisbury, 1984) 67–68. (Much of the Loveday archive remains with the family; requests to inspect it personally have been declined.) The only known reference to Gibbon by Winchester and/or his friends appears in a letter from Sir William Bagot in 1776: he says he will bring down from London ‘the [newly published] ingenious History of the ­Doctor’s sceptical pupil’ (Staffordshire Record Office, D5121/1/12/34, Bagot to Thomas Townson, 24 May 1776). I am grateful to the Staffordshire archivists for their help. 12  Pocock’s views have not been unchallenged. The most sophisticated counter-arguments are those presented by J Robertson, notably in The Case for the Enlightenment: Scotland and Naples, 1680–1760 (Cambridge, 2005).

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Winchester’s credentials as a representative of an Oxford Enlightenment. The result will be to emphasise not the differences but the similarities between ­Gibbon the lapsed Catholic anti-clericalist, Blackstone the elegant expositor of legal principles (as well as staunch defender of the common law) and Winchester the Oxford don who may have overlooked the emotional needs of his gifted pupil but who cared deeply for books and religious truth.

I.  Thomas Winchester and the Subscription Controversy A fierce debate over the requirement that clergymen and students subscribe to the Thirty Nine Articles of Religion was instigated in 1766 by Francis Blackburne’s The Confessional, wordily but helpfully sub-titled A Full and Free Enquiry into the Right, Utility, Edification and Success of Establishing Confessions of Faith and doctrine in Protestant Churches. Blackburne, then Archdeacon of Cleveland, attacked the Articles on theological grounds and Subscription on (at least partly) practical grounds. No Arminian Anglican could honestly subscribe to what were in fact Calvinistical doctrines, and there was no reason why they should be required to do so. Faith was not guaranteed by oath-taking. Blackburne’s stand was a religious one—he was of a Nonconformist or perhaps better a latitudinarian disposition— but he was supported by those whose liberalism was offended by these Church regulations.13 The Subscription Controversy, as it has become known, engaged Winchester, at least intermittently, for nearly ten years. His work initially manifested itself in support for a reply to Blackburne, entitled Doubts Concerning the Authenticity of the Last Publication of the Confessional, published anonymously by his brother in law, Thomas Townson, in 1767. It seems reasonable to assume that this support and his subsequent contributions to the debate were based on the extensive research reflected in what became A Dissertation on the XVIIth Article of the Church of ­England, published in 1773. Winchester appended to the main text a ‘short tract’ about the royal declaration which prefixed the reprinted Articles. There are a few internal references which help with dating the work on which the publication was based. The Dissertation itself cites, in the penultimate section, Goliath Slain, a pamphlet published late in 1768, and in the conclusion, Dean Tucker’s Letters to the Rev. Dr. Kippis, which appeared in 1773.14 Otherwise the evidence for post1767 composition comes in the Appendix, which comprises papers supplied to Glocester Ridley for the Three Letters mentioned later. The references therefore to Ridley’s work (published in 1768), Blackburne’s Occasional Remarks of the same 13  The subtlest account of the Subscription issue is B Young, Religion and the Enlightenment in the Eighteenth Century (Oxford, 1998), Ch 2. 14  T Winchester, A Dissertation on the XVIIth Article of the Church of England (Oxford, 1773) 74, 79. Goliath Slain was by Richard Hill (for whose Pietas Oxoniensis, see below pp. 66).

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year (replying to Townson) and the third edition of the Confessional (1770)15 may signify only the results of later revisions, not the date of first composition and certainly not necessarily when Winchester carried out his research. It is interesting that only one of these references appears in the substantive sections of the work. The obvious alternative is that Winchester initially only prepared what became the Appendix to the Dissertation and wrote the main text later. This view is supported by the rehearsal of at least some evidence about the royal declaration in Townson’s work (as well as Ridley’s) and very little from the main text.16 There is also the general point that a treatment of Edward VI’s reign might well have been regarded as filling a gap in the pro-Subscription case still remaining after the slew of publications between 1766 and 1773. The reality is probably somewhere between these two possibilities. Many years after his death Winchester’s editor and biographer endeavoured to describe the circumstances of composition, partly in the author’s own words. The result lacks complete clarity: While he was examining the points thus brought into discussion [by Blackburne], if not before, it occurred to him that it “might be more fully evinced”, than had then been done, “from the works of our Reformers, that our articles were not drawn up in a Calvinistical sense, which the author of the Confessional, as well as the Arians before him, so strenuously contended for”. And he had at that time “marked down” some of the principal ­passages, which he afterwards made use of in his dissertation.17

The details therefore remain beyond reach but there seems to be good reason for giving an account of the whole Dissertation here, especially since it aids exposition and comprehension. The work’s overall aim was to demonstrate that the 17th Article, dealing with predestination, was not Calvinistical, at least as originally conceived. Winchester is careful to explain that he is concerned with the intentions of the reformers in Edward’s VI’s reign. He acknowledges that many of the Elizabethan reformers were ‘tinctured’ with Calvin’s doctrines; but ‘the evidence from those times, whatever it may amount to, cannot be equal to that which arises from the apparent sentiments and design of the [Edwardian] compilers themselves, and their contemporaries’.18 In Part I Winchester quotes at length, in Latin, from Calvin’s Institutes and the Epistles, concluding that: Calvin’s doctrine of Predestination [thus] appears … to be resolved into the sole will of God, both as to the elect and the reprobate. As to the first, he asserts the decrees of God 15 

ibid, 87 (a Three Letters example); 103 (Occasional Remarks); 88 (Confessional). Townson, Doubts Concerning the Authenticity of the Last Publication of the Confessional (­London, 1767) 3–5. 17  T Winchester, A Dissertation on the XVIIth Article of the Church of England, 2nd edition (Oxford, 1803) xviii. Churton (who was close to Townson and seems very reliable) was quoting directly from Winchester’s letter to Secker, 14 March 1768 (then in the possession of John Loveday). His publication was occasioned by the renewed debate on the 39 Articles prompted by John Overton. 18 Winchester, Dissertation (1773) 1–2. He left the later period to Daniel Waterland’s A Supplement to the Case of Arian Subscription considered (London, 1722). See also Dissertation 82. 16 T

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to be absolute—without any respect to faith in Christ, or a good life. As to the reprobate, they, by the same absolute and irrespective decree of God, are predestinated and determined to sin, and so to damnation.19

Part II provides an analysis of the 17th Article, as drawn up in 1552 (not as altered in 1562), to show that it gave ‘no countenance’ to Calvin’s view. He endorses Waterland‘s distinction between a wholesome and a dangerous form of the ­doctrine. Winchester uses Strype’s Life of Cranmer and other accounts of the Reformation to show that the draftsmen of 1552 were following Melanchthon, not Calvin. Cranmer kept Calvin at bay. There was no attachment to Calvin’s ‘rigid doctrines’ in England at that time. Winchester uses Part III of the Dissertation to support his argument in Part II through an examination of the ‘Reformatio Legum’, the new body of ecclesiastical laws Cranmer orchestrated. After a careful analysis—including a vain search in Parker’s manuscripts in Cambridge for the definition of predestination that was left out of the printed version in 1571—Winchester concludes that the ­Edwardian reformers were not fatalists.20 It is true that they were hostile to the Catholic doctrine of merit but they were certainly opposed to ‘absolute’ and ‘irrespective’ predestination. Part IV gives the testimonies of Bishops Hooper and Latimer against the so-called Gospellers, ie those who espoused Calvin’s ‘rigid’ predestination. ­Winchester’s learned, thorough research draws out Hooper’s opinion from his Declaration of the Ten [Holy] Commandments (1549), noting that many of Hooper’s quotations came from Melanchthon’s Loci [Communes] Theologici (1521), and he rehearses Latimer’s view from his sermons. It was Hooper and Latimer who prevailed; the Gospellers were, temp. Edward VI at least, a small minority. In Part V Winchester moves on to Mary’s reign to consider the debate about predestination among those imprisoned then. In particular he examines John Bradford’s exchanges with Cranmer, Latimer and Ridley. He searched for but failed to find Bradford’s treatise on the issue;21 instead, he traces the argument in Coverdale’s Letters of the Martyrs (1564) and concludes, again, that the 17th Article was not based on Calvin’s principles. The Conclusion of the Dissertation reinforces the overall thesis, but it makes the interesting point that the true nature of the Article is more clearly revealed in the ‘Reformatio Legum’ than in the Article itself. The latter was ‘external’, designed above all to oppose Catholic teaching (and therefore had to be generally supportive of Calvin); but the former was ‘internal’ and could be more candid about the

19 

ibid 17. ibid 52n. The papers are item 121 (not 120 as per the index) in MR James, A Descriptive Catalogue of the Manuscripts in the Library of Corpus Christi College, Cambridge (Cambridge, 1912). Winchester had the 1722 Catalogue in his library. 21 Winchester, Dissertation (1773) 68. Bradford’s work was A Treatise on Predestination, with an Answer to certain Enormities, otherwise known as A Defence of Election: DA Penny, Freewill or Predestination: The Battle over Saving Grace in Mid-Tudor England (Woodbridge, 1990) 117. 20 

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rejection of Calvin’s rigidity. All this makes clear the ‘admirable’ moderation of Cranmer, Hooper and Latimer. It was only later, under Elizabeth and the early Stuarts, that Calvin’s views began to prevail, leading to the introduction of many ‘subtilties [sic] and distinctions … unknown to the simplicity of our Reformers’.22 In the Appendix Winchester demonstrates—simply from the books in his own library, he says—that the royal declaration attached to the Articles appeared in Charles I’s reign, not James I’s. He quotes contemporary writers—Hammond, Prynne, Wharton, Heylin and Pearson—as well as later ones—to prove the point. In part this is an historical exercise—the ‘matter it is true is of no great ­consequence’23—based on thorough investigations, extending (it seems) beyond his study to Lambeth Palace Library where the original declaration was held.24 The Appendix, however, served also further to undermine Blackburne’s credibility and the rehearsal of the evidence is not objective, but playfully partial. The Dissertation’s findings—assuming their early compilation—remained unpublished for some years. Winchester first ventured into print at the end of 1767, when his anonymous open letter ‘To the Author of the Confessional’ was published in the Gentleman’s Magazine.25 Here he was concerned to refute the argument that the clergy were required to subscribe only to some of the Articles (presumably not including the 17th). Winchester’s careful research, into the Ministers of the Church Act of 1571 (which required subscription), and the later Acts of Uniformity, Toleration and Union, revealed no justification for partial subscription. It was at this point, it seems, that Winchester’s work came to the attention of Archbishop Secker. The intermediary was his friend Loveday, who was deeply interested in bookish matters and was then engaged in a warm antiquarians’ correspondence with the Lambeth Librarian, Andrew Ducarel.26 (Loveday was also a friend of Secker himself.)27 Through his friend, Winchester supplied Secker with ‘some information in a point of history’ (evidently the evidence for Charles I’s ­declaration).28 With Winchester’s permission Secker sent papers (not, it appears, just the royal declaration ones) and also books to Glocester Ridley; and the result was last-minute assistance for the last of Ridley’s relentlessly thorough Letters to the Author of the Confessional, published separately and then together in 1768.­

22 Winchester, Dissertation

(1773) 80, 83. 87. He said he had been encouraged to settle the matter by ‘two considerable writers’: ­Townson and Ridley perhaps? 24  ibid 106. 25  Vol 37 (1767) 581–84 (December issue). 26  J Nichols, Illustrations of the Literary History of the Eighteenth Century (London, 1817–58) vol 3, 646–76. (The originals are in the Bodleian Library, at MS Eng. Lett. d. 34; the Ducarel side of the ­correspondence, at c. 6, does not add anything.) 27 Markham, Loveday 388–9. 28  Was this the ‘paper’ Loveday sent to Ducarel in April 1768? See Nichols, Illustrations vol 3, 658. By March, Winchester was corresponding directly. This and the following part-sentence in the text are based on Winchester’s anonymous letter of 4 April 1775, printed in the Gentleman’s Magazine, 45 (1775) 219 (May issue). 23 ibid

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Ridley was especially concerned to deal with Blackburne’s use of the 17th ­Article— ‘your grand battering ram’29—to press his case. Ridley added as a postscript to the Third Letter a summary of Winchester’s evidence for the declaration being attributable to Charles I not James I, a point which Ridley highlighted in his ­Second Letter as requiring resolution.30 In print Ridley warmly thanked a ‘learned ­gentleman’31 and privately acknowledged Winchester’s ‘many favours’ in the course of his ‘engagement’ with Blackburne.32 He sent him a copy of his ‘work’ (presumably the combined Letters). The extent of Winchester’s help—or at least the relationship which arose—is indicated by his possession of Ridley’s annotated copy of the first edition of the Confessional (which he later used in print to defend Secker and Ridley).33 In 1768 Winchester also assisted his brother-in-law Thomas Townson with two further pamphlets, both following up the attack on Blackburne in Doubts. The first was A Defence of the Doubts and the second A Dialogue between Isaac Walton and Homologistes Concerning Bishop Sanderson. The first dealt with the dating of the declaration and various other points made in Blackburne’s Occasional Remarks on Doubts and the second defended Sanderson’s character against Blackburne’s criticism of his allegedly casuistical readiness to ‘engage’ and ‘subscribe’. The issues posed by the Confessional took on an immediacy as a result of the expulsion of six students from St Edmund Hall, Oxford, for Calvinist or Methodist beliefs and practices in March 1768.34 This afforded an apparently Heavensent opportunity to argue that the students’ subscription to the Articles was not incompatible with their faith or that subscription was simply unfair and in any event that the expulsion was vindictive. Richard Hill (another Magdalen student and possibly one of Winchester’s own pupils)35 mounted an influential attack on the university in his Pietas Oxoniensis (dated if not published in June 1768). ­Winchester helped Thomas Nowell, the Principal of St. Mary Hall, with his Answer to Hill’s work.36 Nowell acknowledged the assistance he received from Winchester (‘a very judicious friend’) in proving that the questions and answers concerning Predestination which were inserted in some editions of the Geneva Bible were not always bound up in the authorised translation (ie the Bishops Bible of 1568).37

29 

Third Letter 33. Second Letter 145; Winchester, Dissertation (1773) 89. 31  Third Letter 172. 32  Gentleman’s Magazine, 45 (1775) 269 (June issue). 33  ibid 473 (October issue). It was in his library sold after his death (item 1569). 34  Green gives an account in ‘Religion in the Colleges’, in History of Oxford University vol 5, 458–64. SL Ollard, The Six Students of St Edmund Hall (London, 1911) includes details of the pamphlets on both sides. 35  JR Bloxam, A Register of the Presidents, Fellows of St Mary Magdalen College (Oxford, 1853–79) vol 1, 151n. 36  The 1st edition appeared in October, possibly November, 1768 and the 2nd in March of the following year. [Hill’s] Goliath Slain, noted earlier, was a response to Nowell. 37  An Answer to a Pamphlet entitled, Pietas Oxoniensis (London, 1768) 86n (106n in the 2nd edition). It must be said that Nowell’s quotation marks are confusing. 30 

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This involved examining a total of 18 editions of the two Bibles.38 There may have been other help: there are some ‘historical’ pages which could have derived from Winchester’s research.39 The publication of the third and last edition of the Confessional in 1770 brought Winchester to the pages of the Gentleman’s Magazine again, with a pseudonymous ‘friend’ purporting to include an extract from a letter by him.40 Winchester attacked Blackburne and showed his support for Blackburne’s targets, both Secker himself and also Oxford University and ‘Oxford-men’. He championed the works of Townson and Ridley—ie two of ‘his’ pamphleteers—and inter alia asserted that Blackburne, neither in his second edition nor this third one, undermined the case for Charles I as responsible for the declaration. In 1772–74 the subscription debate reached a national, political level.41 In ­February 1772 the so-called Feathers Petition for relief from subscription was rejected in Parliament thanks in part to a robust performance by Sir Roger ­Newdigate, the university’s senior MP. The issue, however, continued to attract support and there were warm debates on subscription at matriculation in Oxford’s Convocation in February and March 1773. There were also further debates on the issue in Parliament, specifically on subscription and more generally on the relief of protestant Dissenters. Winchester published his Dissertation in April 1773,42 after all these debates; but it would be surprising if its contents had not been prepared for or at least used by the opponents of change. There were three postscripts to this episode in Winchester’s life as a controversialist. All took the form of letters in the Gentleman’s Magazine in 1775. The first letter (in April) involved another attack on Blackburne, but this time for doctrinal arguments—rehearsed in his Four Discourses (1775)—which were not directly connected with Subscription.43 The second, a month or so later,44 largely constituted a defence of Secker and Ridley for their roles in rebutting the Confessional. Winchester uses his personal knowledge and extant correspondence—described as addressed to an unnamed ‘gentleman’ but plainly Winchester himself—to show

38  Churton took the information from a paper by Winchester himself`: Winchester, Dissertation, 2nd edn (1803) xi n. 39 See An Answer to a Pamphlet 68–85 (which led into the analysis of the editions of the Bible). Interestingly, Hill wondered whether Nowell’s learning was all his own. Does this also point to Winchester’s wider involvement? 40  Gentleman’s Magazine, 40 (1770), 514–15 (November issue). 41 See LG Mitchell, ‘Politics and Revolution 1772–1800’, in History of Oxford University, ed ­Sutherland and Mitchell, vol 5, 166–69, 171–77 and WR Ward, Georgian Oxford (Oxford, 1958) Chs 15–16. The predictably more latitudinarian attitudes in Cambridge are well described in J ­Gascoigne, Cambridge in the Age of the Enlightenment (Cambridge, 1989) 194–202 and A Page, John Jebb and the Enlightenment Origins of British Radicalism (London, 2003) Ch 5. The Parliamentary context is given in GM Ditchfield, ‘The Subscription Issue in British Parliamentary Politics, 1772–79’ (1988) 7 Parliamentary History 45–80; Ditchfield makes interesting observations about Newdigate. 42 Winchester, Dissertation, 2nd edn (1803) xiii. 43 Gentleman’s Magazine, 45 (1775), 161–64 (April issue). Winchester was defending J Rotheram’s An Essay on Establishments in Religion (Newcastle, 1767). Rotheram was a protégé of Secker. 44  It was written in April but appeared in the May and June issues: 45 (1775), 217–19, 269–71.

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that while Secker encouraged and assisted Ridley it was Ridley who wrote the Letter(s).45 In October there was a third letter but it added little to the content of the second.46 All that needs to be added is to take notice of the posthumous appearance of the Dissertation, as already mentioned. The publication, in 1803, incorporated ­Winchester’s (minor) revisions, as transcribed by Loveday from the author’s copy. It was prefaced with Ralph Churton’s short, rather bland, but well-informed Life.

II.  Enlightened Subscriptioners? It is easy to see why Oxford’s defence of subscription has been characterised as a triumph of conservatism. There were many theological arguments in favour of the Thirty-Nine Articles as a test for both clerics and—somewhat less obviously— students; but still more powerful was a simple emotional concern to protect or defend. No one expressed this more clearly, or more influentially, than Sir Roger Newdigate. During the debate in Parliament in February 1772 he declared that: ‘Civil and religious establishments are so linked and incorporated together, that, when the latter falls, the former cannot stand. They seem to me to be as inseparably connected as the soul and body.’47 A year later the argument was the same. The reformers might be limiting themselves to academic subscription, but the tendency of their motion was the same: ‘it is to set open the doors of the Church, and to admit within her pale, dissenters of every denomination … to wound our ecclesiastical establishment, to overturn her fences, and lay her bulwarks in ruins’48 When the university’s Convocation was about to debate subscription Newdigate summed up his position in his wish ‘stare super vias antiquas [to stand by the old ways]’.49 Supporters of this status quo within the university expressed themselves in the same terms as their MP. Thomas Nowell, whom Winchester helped reply to ­Blackburne in 1768, took controversial advantage of his 30 January sermon to parliament in 1772 to warn of the consequences of removing academic subscription: So close is the connection between government and religion, so necessary the dependence of the one upon the other, that without this sacred band, all civil union would be

45  He also defended Secker and the editor/translator Archibald Maclaine against charges that they had suppressed correspondence concerning Wake’s negotiations to effect a union between the Anglican and Gallican Churches. 46  Gentleman’s Magazine, 45 (1775) 471–74 (October issue). 47  Cobbett’s Parliamentary History (London, 1806–20) vol 17, c. 255 (6 February 1772). Readers will appreciate that these accounts of speeches were not verbatim: they were reconstructed and embellished. 48  ibid c. 743. 49 Ward, Georgian Oxford 265. See also Newdigate’s draft letter to Francis Page, 16 November 1772: The Correspondence of Sir Roger Newdigate, ed AWA White, Dugdale Society, vol 37 (London, 1995) 186.

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dissolved; and mankind … would by perpetually warring with one another reduce all things into a state of anarchy and confusion.50

Oxford opinion was not uniformly of the Newdigate-Nowell stamp. There was certainly discomfort with lay subscription, with some senior university figures wanting a gentler test of some kind, and some—including Blackstone’s and Winchester’s former political associate, Benjamin Buckler—arguing against any requirements. Nevertheless, it is difficult to detect what ­would—anachronistically, of course—be described as liberal views. Even those who refused to follow N ­ ewdigate’s lead were concerned as much with practical as with theological issues. Was it really right to treat all students as if they were destined for the church? Could 15-year-olds really make sense of carefully or casuistically crafted articles of faith whose meaning was contested by eminent divines? By conventional ‘modern’ criteria, liberal views were much more evident on the other side of the debate. Of course, there was plenty of clever pragmatism or partisan calculation here too. Dissenters seeking to avoid subscription to ‘difficult’ articles were no less self-interested than Anglican clerics. There was, however, also genuine concern to remove unnecessary restrictions: We should not … set bars in the way of those who are willing to enter and labour in the Church of God … Did [Christ] send [his followers] tests and articles to be subscribed? Did he ask them whether … they were Athanasians, or Arians, or Arminians? No—he delivered that admirable and comprehensive maxim: ‘He that is not against me, is for me; go ye and say likewise.51

For WR Ward this contribution by Sir George Savile to the Feathers Tavern petition debate in February 1772 was ‘“enlightenment” at its best and most ­generous’.52 A year later, during the Parliamentary debate on University Subscription, ‘Mr. Grey’53 asked: what are these articles which our youth are forced to subscribe? The off-spring of ­monkish enthusiasm, begot by ignorance upon superstition … Can children understand them? No: grown men who have plunged into the controversies of those ignorant ages when they were framed are altogether at a loss. We now, Sir, live in more enlightened times.54

It is worth at this stage revisiting Pocock’s conception of enlightenment thinking. Of particular relevance is his consideration of the relationship between h ­ istory and theology.55 He explores the issue as a feature of his view, noted at the b ­ eginning of 50  Quoted by Mitchell, ‘Politics and Revolution’ in History of Oxford University, ed Sutherland and Mitchell, vol 5, 167. The sermon was later effectively renounced by the Commons for its provocative parallels between Charles I and George III. 51  Parliamentary History vol 17, c. 293 (quoted from a supplied text). 52 Ward, Georgian Oxford 249. 53  Not identifiable, even with the help of the History of Parliament volumes. Charles Gray is the likeliest candidate in an unlikely set of Greys, de Greys and Grays. 54  Parliamentary History vol 17, c. 748. 55  JGA Pocock, ‘Historiography and Enlightenment: A View of their History’ (2008) 5 Modern ­Intellectual History 83–96.

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this essay, that ‘the specificity of “Enlightenment” is better displayed in its plurality than in its unity’.56 Whereas a conventional view of enlightened theology focuses on the relationship of God and society, Pocock admits as enlightened an historical approach. Is one church rather than another literally faithful to the revealed truth of God becoming Man through Christ? For some enlightened thinkers, theology became the history of theology. Pocock argues that this was true for Gibbon.57 He suggests that Gibbon’s notorious account of the role Christianity played in the decline of the Roman Empire—carefully revised in later editions of his famous book58—dealt with the history and growth of theology as much as it dealt with its stated subject, the growth of Christianity. It certainly seems possible to see Blackstone’s work in the same way. Prest drew attention to the youthful Blackstone’s wide-ranging theological interests,59 but by the time of the subscription controversy Blackstone was a careful, conventional Anglican—or at least was seen that way by those who wanted to invoke his influential name in public debate. Fitzmaurice quoted approvingly from Blackstone in opposition to the Feathers Petition in the Commons in February 1772 and did so in interesting terms: shall we embrace the creed of the Confessionalist and neglect that of more grave and ­venerable men? Judge Blackstone, who I believe will be allowed by all to be as enlightened as this author, gives a contrary opinion. The question then will be whether we are to be swayed by The Confessional, or by Blackstone’s Commentaries.60

Blackstone may have simply been too cautious and career-conscious to dwell on the theological matters with which he unavoidably engaged—a caution vindicated by his uncomfortable debate with Priestley over the subscription-related issues of dissent and toleration.61 And after softening the passages on Nonconformity in the Commentaries Blackstone may (or may not) have been ready to contemplate relieving dissenting ministers and teachers from subscription.62 Yet even if we only focus, as Pocock would encourage or at least allow us, on his careful historicism, 56 

ibid 94.

57 Pocock’s

critics might claim that what matters is not the method (historical) but the result (Enlightened?). Pocock however is arguing for the inclusion of the historically-minded, whether (conventionally) ‘Enlightened’ or not. 58 Womersley, Gibbon and the ‘Watchmen of the Holy City’ Ch 11. 59 W Prest, ‘The Religion of a Lawyer? William Blackstone’s Anglicanism,’ (2004) 21 Parergon 153–68; also idem, ‘William Blackstone’s Anglicanism’, in M H Hill and R H Helmholz (ed), Great Christian Jurists in English History (Cambridge, 2017) 213–35. 60  Parliamentary Debates vol 17, c. 264. Fitzmaurice apparently read from Book IV, Ch 4, the much contested and (therefore) varied chapter on offences against God and religion. (The 4th edition would have been available to Fitzmaurice.) Blackstone in fact refers only briefly to the Articles: see W Blackstone, Commentaries on the Laws of England, Book IV: Of Public Wrongs, ed R Paley and W Prest (Oxford, 2016) 35, 297–98. 61  There is an account in Prest, William Blackstone 247–50; and see Anthony Page’s Ch 5 in this volume. 62  ibid 278. See also Prest’s ‘Religion of a Lawyer’ 157, where the ambiguity of the evidence is pointed out: cf. Ward, Georgian Oxford 271; and my own W ­ illiam Blackstone: A Biography (Haslemere, 2001) 88.

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Blackstone deserves Fitzmaurice’s ‘enlightened’ label. In their treatment of religion as of other key aspects of England’s laws the Commentaries are embedded in history, even if it was not (as we would say nowadays) fully contextualised and not scrupulously (or naively) objective. Blackstone continually demonstrated his awareness of historical influence and development. What now of Winchester? It is undeniable that his Dissertation was written for a purpose. The Appendix—ie the papers that furnished Ridley with the postscript to his last Letter to Blackburne—is undeniably ‘engaged’. Winchester enjoys indulging in that mockery beloved of eighteenth-century pamphleteers, as a few (necessarily) disembodied quotations will show: —— ‘How he [Calvin] keeps clear of making God the author of sin, it behoves his ­followers to explain.’63 —— ‘It is pleasant enough to observe what kind of evidence will convince this writer, when he has a mind to be convinced. Even one and the same individual, giving evidence on both sides of the question, shall produce a conviction in his mind next to that of Demonstration itself.’64 —— ‘The author, like a certain stumbling animal, seldom recovers from one trip but he immediately makes another.’65 —— ‘I will venture to refer him to the original Declaration in the Lambeth library, where he may have the same assurance; in hopes that he may not entertain that aversion to the place, which he has shewn to many of its worthy inhabitants.’66

For the most part, however, the Appendix is a careful analysis of ‘a point of ecclesiastical history’,67 involving the rehearsal of a score of ‘authorities’, largely for but also against the case for Charles I, replete with bibliographical details.68 He may have wanted to pass it all off as some amateur page-flicking in his own library but it was a good deal more serious than that. This was true, a fortiori, of the Dissertation’s main text. As already indicated, Winchester used a set of sixteenth-century texts and later histories to demonstrate that the authors of the original Articles turned their face against Calvinism. That was the ‘design of the … dissertation’.69 The research is diligent, as shown by his pursuit of manuscripts in the Parker collection in Cambridge. The evidence is fully rehearsed, starting with substantial quotations from Calvin’s Institutes and Letters (in Latin).70 The citations are also lengthy where the text is rare (as in the case of the ‘Reformatio Legum’).71 He also shows with careful insertions and

63 Winchester, Dissertation

(1773) 17. ibid 102. 65  ibid 105. 66  ibid 106. 67  ibid 87. 68  A footnote (100) reads: ‘Dr N[icholls] is inaccurate in two places of this quotation [appearing in No Necessity of Reformation …] but I have given it as it is printed in his work’. 69 Winchester, Dissertation (1773) 1. 70  ibid s I (2–17). 71  He says the book ‘is in few hands’, ibid 45. 64 

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textual-layout how the Articles of 1552 and 1562 differed.72 Winchester certainly makes sure his readers draw what he regards as the obvious conclusions from the evidence, but though warm the interjections and interpretations are well within the bounds of, if not objectivity, then scholarly decency.73 The language too is deployed to reinforce the case, with Calvin’s predestination doctrine frequently dubbed ‘rigid’ and his followers labelled Fatalists.74 Strictly unnecessary adverbs and adjectives nudge the reader in the right direction;75 but the effect is to clarify not bully. And as a result of all this the Dissertation convinces. We know from his private correspondence that Winchester was firmly committed to the status quo. He warmly supported his friends Newdigate and Lewis Bagot in their efforts in Parliament and Convocation. He described the university’s requirement as ‘our old and most respectable Test’ and regarded proposals for its dilution as ‘timid and nugatory’.76 There is certainly no doubt therefore that the Dissertation was written by an Anglican clergyman who saw Christian theology in historical— indeed rigorously historical—terms. If Pocock can accept as ‘enlightened’ the notoriously High Church George Horne, then the case for the equally history-conscious but less aggressively orthodox Thomas Winchester is a strong one.77 There is a postscript to this Section. As Brian Young notes, Gibbon was not so anti-clerical as to side with the anti-subscriptioners. He may have been ‘archly on the side of the orthodox’,78 but beneath his intellectual showmanship the sincerity was real.79 And when he claimed that his college (and university) failed to help or force him to subscribe, this was a mischievous lie and another unwarranted slur on Oxford’s reputation. Gibbon did subscribe.80

III.  Blackstone’s Enlightened Critics–and Friends If in their different ways Blackstone’s critic Gibbon, his ally Winchester and ­Blackstone himself all approached subscription in ways which qualify—in ‘­Pocock’ terms—as Enlightened, what can now be said, more briefly, about the other intellectual qualities of these three Oxford men? Does the fact that Gibbon was a (­private and measured) critic of Blackstone and a (vituperative if posthumous) 72 Winchester, Dissertation

(1773) 18–25. eg: ibid 15, 15–16, 37, 50, 52, 67 and 78. 74  ibid 40, 45, 60, 71, 80, 81 and 82; 15, 51 and 53. 75  ibid 42, 63–64, 67, 74, 75, 76, 79, 80, 81 and 82. 76  In letters to Newdigate, 4 February and 16 January 1773: Warwickshire County Record Office, CR B2382 and B2381; see also William Bagot to Townson, 29 January 1773 (D5121/1/12/17). 77  Pocock, ‘Historiography and Enlightenment’ 93. cf. Womersley, Gibbon and the ‘Watchmen of the Holy City’ 297–98, 305–06. 78 Young, Religion and Enlightenment 73. 79  It is right to acknowledge that his concern may have been more for the Church than its Articles. 80 Gibbon, Memoirs of My Life 57–58; Pocock, Barbarism vol 1, 44; DM Low, Edward Gibbon (­London, 1937) 40. 73 

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critic of Winchester signify a difference? Surely, notwithstanding Gibbon’s lessthan-wholehearted support for subscription, we cannot attach the same intellectual label to ‘everything-as-it-should-be’ Blackstone and the orthodox cleric Winchester as to the dangerous historian of early Christianity? Certainly, Gibbon’s position as an Enlightenment figure is unassailable. Even if Pocock had not broadened our thinking about the Enlightenment(s), Gibbon’s name would still be invoked, without challenge, when debating ‘The Enlightenment’. Blackstone is less obviously an Enlightenment writer; but as a result of the work of Prest and others we now have a context for an understanding of ­Blackstone’s work, not just his magisterial exposition of the law, which makes the case much more persuasive. In 1983 I suggested that there was ‘much to be said for regarding the Commentaries, with their rationalizing elegance, as a work of the Enlightenment’.81 Wilfrid Prest developed this point for Blackstone himself in his 2008 biography;82 and endorsement of Blackstone’s enlightenment credentials is now commonplace.83 As for Winchester, the biographical evidence is scattered and fragmentary but when pieced together it is more than sufficient to add weight to the subscriptionbased thesis earlier in this chapter. To start with his ‘calling’, the case for ­Winchester as a conscientious priest is overwhelming. Churton describes Winchester’s concern for the spiritual needs of his parishioners in Appleton (­Berkshire) with almost hagiographic warmth,84 but his encomium is corroborated by the evidence that as curate of Astley Chapel, near Arbury (Warwickshire) he satisfied the stringent demands of his patron Newdigate.85 His parishioners also benefited from his evidently close interest in medicine,86 which is characteristic of his deep engagement in the present as well as the past. The account of his tours and other dealings with John Loveday87—as well as his own correspondence88—shows a practical, robust common-sense at work. For Gibbon this worldliness infected Winchester’s bibliophilia.89 He was undoubtedly a collector as well as a scholar, dealing as

81  ‘Sir William Blackstone and his Commentaries on the Laws of England (1765–69): a biographical approach’ (1983) 4 Oxford Journal of Legal Studies 108. 82  William Blackstone 308–09. 83 See, eg, the comments by three contributors to a recent Blackstone seminar: Re-Interpreting Blackstone’s Commentaries, ed W Prest (Oxford, 2014) 3, 73 and 183. 84 Winchester, Dissertation, 2nd edn (1803) xiv. 85 See Newdigate Correspondence, ed White, 91–92, 104, 148, 218, 229–31 and (especially, after ­Winchester’s death) 249. 86  Mentioned by Churton in Winchester, Dissertation, 2nd edn (1803) xv. Winchester once referred to looking after his parishioners’ souls and bodies: Gentleman’s Magazine, 45 (1775), 161 (April issue). See also his comments on Lady Bagot’s health in his letter of 16 January 1773 (n76 above). Two medical treatises in the sale catalogue of his library (items 733 and 3081) had MS notes. 87  Regularly evident in Markham, Loveday. 88  See, eg, his letter of 10 January 1759 to the President of Magdalen on difficult College business: Magdalen College MS 476 (no 2). 89  His ‘only science was supposed to be that of a broker or salesman’ (a phrase from version B of the draft ‘Memoirs’: Womersley, Gibbon and the ‘Watchmen of the Holy City’ 389). cf his gifts of expensive/ fine books to the Bagots: William Bagot to Townson, 29 January 1773 (D5121/1/12/17).

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well as reading, familiar with what was on offer in the market (for maps as well as books);90 but his celebrated library was put to practical use (as we have seen with the Dissertation) and, in addition to helping his former pupils, the Childs, ­create their library at Osterley,91 he added value to certain important antiquarian works. At the request of the wealthy Dr Richard Mead he compiled an index to the 1744–45 edition of Leland’s Itinerary;92 and on his own initiative, it seems, he annotated the fourth edition of Tanner’s Notitia Monastica.93 Perhaps of more interest than these activities, which in a conventional ‘Enlightenment’ discussion (at least before Rosemary Sweet’s wise words) might be dismissed as mere antiquarianism, is the evidence which shows that Winchester’s intellectual curiosity extended beyond the subscription controversy.94 The fact that he undertook ‘the whole trouble’ of publishing Townson’s admired Discourses on the Four Gospels (1778) might be predictable, given his close relationship with the author;95 but Winchester was clearly aware of the challenges posed by the major thinkers of the age. In the Dissertation itself he alluded to Hume as ‘that subtle weigher of evidence’—a reference to the famous consideration of miracles in An Enquiry Concerning Human Understanding (1748).96 A little later, probably in 1776, he helped Josiah Tucker, Dean of Gloucester, pre-publication demonstrate in A Treatise concerning Civil Government (1781) that Richard Hooker was not ‘favourable’ to the views of John Locke, notwithstanding the latter’s claim in his Second Treatise on that subject.97 It is true that Winchester would have been both perplexed and amused by this attempt to yoke him, intellectually, with Gibbon and Blackstone.

90  See his letter of 20 February 1779 to Thomas Pennant concerning North American charts: CR B2017. In 1763 Winchester was described as being ‘as busy as ever in the booksellers’ shops’: Thomas Townson to Walter Bagot, 29 Mar. 1763: letter no. 19 in the Osborn Collection (c57) in the Beinecke Rare Book and Manuscript Library, Yale University. I am grateful for generous assistance from the librarians there. 91  JF Bennett, ‘The History of the Library of Osterley Park House, Middlesex’ (Library Association Fellowship thesis, 1976) 84. 92 Markham, Loveday 363. The index, to vols 1–8, extended to 83 pages. The possibility of a fee, of course, cannot be ignored. 93  J Nichols, Literary Anecdotes of the Eighteenth Century (London, 1812–15) vol 2, 164n. Richard Gough’s copy, to which Nichols refers, is in the Bodleian Library (Gough Eccles. Top. 85); but it contains no annotations obviously by Winchester (it could well have been Gough’s own working copy, acquired in 1762 and continued after 1780, when Winchester died). Gough Eccles. Top 86 is more heavily (and carefully) annotated but was owned by Edward Rowe Mores. 94  ‘[Antiquaries] were important actors in that explosion of print and ideas, that thirst for knowledge and understanding which some have called the British Enlightenment’: Antiquaries: The Discovery of the Past in Eighteenth Century Britain (London and Hambledon, 2004) xiv. 95  The Advertisement. The Bagot correspondence in the Staffordshire Record Office indicates that Lewis and his brother Sir William Bagot were the other friends who encouraged publication. Townson and Sir William were close friends—and Winchester was very much part of that friendship, engaging in their scholarly fun. It would be good to ‘marry’ the Staffordshire RO letters with the Beinecke ones. 96 Winchester, Dissertation (1773) 105. 97  Churton in Winchester, Dissertation, 2nd edn (1803) xiii. See Civil Government, 402. Locke’s Works were in Winchester’s library (items 393 and 2666).

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The ­Commentaries and the first volume of Decline and Fall were indeed in his library but both were ‘uncut’!98 Nevertheless the analysis is valuable and the result instructive. My interest in Winchester many years ago as Blackstone’s ally drew me to Gibbon’s ­criticism of him and instilled a desire to examine the record afresh. It is not difficult to accept the verdict of his—admittedly warm-hearted— biographer that Winchester’s talents, ‘if not splendid, were sound and good.’99 His work on subscription and his other historical pursuits deserves serious attention. Duncan Forbes once warned of the need to understand the ‘historical minutiae’ and Forrester-like fall in love with the equivalent of ‘his’ ships and naval tactics: Do we make ourselves equally expert in the spars and rigging and scientific manuals of the old controversies, so that we could, as it were, sail any of those old ships with equal skill ourselves? Most of us would probably be sunk by the lightest pamphleteer.100

Whatever success is ultimately accorded to Pocock’s ‘Enlightenments’ mission, we will not hereafter be entitled to dismiss as unEnlightened those whose ‘conservative’ views caused them to end up on ‘the wrong side’. EP Thompson’s condescension dictum applies across the historical spectrum, from the left to the right. As this chapter has sought to demonstrate, there are many reasons to see William Blackstone and his ‘conservative’ Oxford friends in the same intellectual context as their more obviously Enlightened critics.

98 

Items 1013 and 1021 in the catalogue. Churton in Winchester, Dissertation, 2nd edn (1803) xiv. 100  D Forbes, Hume’s Philosophical Politics (Cambridge, 1975) viii. 99 

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5 Rational Dissent and Blackstone’s Commentaries ANTHONY PAGE

In 1769 William Blackstone published the fourth and final volume of his ­Commentaries on the Laws of England. Book IV provided a detailed account of criminal law, and within a month its chapter on ‘Offences against God and ­Religion’ was attacked by Rev Joseph Priestley, a rising intellectual star among Protestant non-conformists. A scientist and early career Presbyterian minister at the Mill Hill chapel in Leeds, by 1769 Priestley had produced notable publications on science, religion, education and politics. As Wilfrid Prest has observed, his pamphlet was significant as the ‘first substantial published attack on the ­Commentaries, and the only one to which Blackstone ever replied in kind’.1 This controversy inspired additional pamphlets by Priestley and Philip Furneaux, a fellow ‘Rational Dissenter’. Rational Dissent emerged in the late eighteenth century as some Protestant nonconformists synthesised Enlightenment rationalism and empiricism with heterodox Christian theology. It was eventually ‘superseded by a more self-conscious Unitarian movement at the end of the century’, but Rational Dissenters played a leading role in the rise of campaigns for religious and political reform in the revolutionary era.2 In this chapter, I aim to explain why Rational Dissenters responded so strongly to Blackstone’s fourth book, with Priestley declaring his ‘injurious reflections’ on Dissenters to be ‘destitute of candour’ and ‘unsupported by truth, or even a decent appearance of argument’.3 This controversy helped inspire Rational Dissenters to campaign for limited religious toleration to be replaced by full religious liberty enshrined in law.

1 

W Prest, William Blackstone: Law and Letters in the Eighteenth Century (Oxford, 2008) 247. Fitzpatrick, ‘Heretical Religion and Radical Political Ideas in Late Eighteenth-Century­ England’ in E Hellmuth (ed), The Transformation of Political Culture: England and Germany in the Late Eighteenth Century (Oxford, 1990) 341. See also RK Webb, ‘The Emergence of Rational Dissent’ in K Haakonssen (ed), Enlightenment and Religion: Rational Dissent in Eighteenth-Century Britain (Cambridge, 1996) 12–41. 3  J Priestley, Remarks on some Paragraphs in … Blackstone’s Commentaries (London, 1769) 1. For a concise discussion of this controversy see RB Barlow, Citizenship and Conscience (Philadelphia PA, 1962) 160–68. 2 M

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I.  Joseph Priestley and Blackstone Blackstone had declared that failing to conform to the Church of England remained a crime, despite the 1689 Toleration Act granting orthodox Protestant Dissenters a degree of toleration.4 Priestley began his Remarks by noting that under laws enacted by Elizabeth I, on a third offence, non-conformists could lose all their property and be imprisoned for life for saying anything ‘in derogation, depraving or despising of the book of common prayer’. Priestley declared that this statute could only be approved out of ‘the grossest ignorance’ of Christianity, natural rights, and ‘the proper object of civil society and government; together with the most pitiable bigotry, and the most violent party rage’.5 Yet while Blackstone had observed that these statutes were formed ‘in the infancy of our present establishment’, when the ‘English liturgy’ was being attacked by the followers of both Rome and Geneva, he had also added: ‘nor can their continuance to this time be deemed too severe and intolerant, when we consider, that they are levelled at an offence, to which men cannot now be prompted by any laudable motive, not even by a mistaken zeal for reformation’, because for ‘political reasons’ it would ‘now be extremely unadvisable to make any alterations in the service of the church’. And thus, ‘the virulent declamations of peevish or opinionated men, on topicks so often refuted … can be calculated for no other purpose, than merely to disturb the consciences, and poison the minds of the people’. And, while asserting that nonconformity remained a crime, Blackstone declared that ‘reviling the ordinances of the church’ was a ‘crime of a grosser nature’.6 Priestley rejected the assertion that nonconformity remained a crime, and claimed the right to ‘speak in derogation … or even contempt’ of the book of common prayer if he regarded it a ‘defective and contemptible performance’. If not allowed to do that, how could Dissenters vindicate themselves in the face of the insults, malice and nonsense high churchmen hurled at them?7 ‘If my friend entertain a foolish and absurd opinion’, Priestley asked, ‘cannot I endeavour to laugh him out of it[?]’.8 Priestley objected to the claim his writings had ‘no other purpose’ than to ‘disturb the consciences, and poison the minds of the people’.9 Rather than being simply ‘peevish or opinionated’ troublemakers, many Dissenters wrote

4 As long as they subscribed to 35 of the 39 Articles of the Church of England: S Andrews,­ Unitarian Radicalism: Political Rhetoric, 1770–1814 (Basingstoke, 2002) 1. Commonly referred to as the ­‘Toleration Act’, 1 Will. and Mary c. 18 was actually entitled ‘An Act for Exempting their Majestye’s Protestant Subjects, dissenting from the Church of England, from the Penalties of certaine Lawes’. 5 Priestley, Remarks 4. 6  W Blackstone, Commentaries on the Laws of England, Book IV: Of Public Wrongs, ed R Paley and W Prest (Oxford, 2016) 33 [51]; pagination of the first edition (1765–69) appears in square brackets, here and below. Priestley, Remarks 4–5, 49. 7  ibid 7. 8  ibid 52. 9  ibid 10.

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with an eye to promoting improvement in religion and society, believing that truth could only be revealed through a free exchange of ideas. And, he declared, owing to God’s ‘universal charity’, nobody would be subjected to divine punishment for ‘involuntary errors’ in religious belief, even if they be Roman Catholics, Muslims or ‘Heathens’.10 In a footnote Priestley indicated his anti-trinitarian theology. Just as the early Protestant reformers objected to the ‘idolatrous service of the Mass’, Priestley observed that ‘I cannot help considering the established church of England, the established church of Scotland, and every other established church in the world to be idolatrous also, in which supreme worship is paid to any other than the one God and father of all’.11 In his Reply to this ‘very angry pamphlet’, Blackstone presented himself as a calm and enlightened member of the established church.12 He began by correcting ‘a mistake’ that Priestley had apparently made in ‘fancying that the offensive passages in my book were personally levelled at him’, by noting they had been written ‘above fifteen Years ago’—well before Priestley had ‘appeared as an Author’.13 Yet while Priestley talked about feeling insulted, he had made it clear this was owing to the general attack on the Dissenters in the Commentaries. On this point, Blackstone either misread or misrepresented Priestley. Blackstone claimed to be ‘totally detached’ from the Crown’s ministers, denied being a ‘bigotted High-Church-Man … of a persecuting Spirit’, and claimed to respect many modern non-conformists as ‘zealous’ supporters of civil liberty and peace in Britain.14 On this point he ‘very frankly’ apologised for a ‘somewhat incorrect and confused’ passage that ‘might lead a willing Critic to conclude’ that he considered modern Dissenters to be dangerous fanatics like their Puritan predecessors. He promised to ‘rectify the clause in question’ in future editions of the Commentaries.15 Yet Blackstone defended his claim that nonconformity was a crime, and in true Enlightenment style there were barbs in his polite and condescending Reply. Priestley appeared to be a ‘superficial or captious Reader’ who had written ‘hastily’ and lacked ‘common Civility’.16 Blackstone claimed to respect those Dissenters who have ‘the misfortune’ to differ from the Church of England ‘in their notions of ecclesiastical government and public worship’ and was sure most sober-minded

10 

ibid 27n. 26n. Priestley appears to have become a Unitarian in 1768. In September 1767 he moved to the Mill Hill chapel in Leeds, and tells us in his autobiography: ‘I became what is called a S­ ocinian soon after my settlement at Leeds’. The Theological and Miscellaneous Works of Joseph Priestley, ed JT Rutt (London, 1817) vol 1, pt 1, 69–70. He first publicly declared his Unitarianism in the Appeal to the Serious and Candid Professors of Christianity (Leeds, 1770). D Wykes and I Rivers (ed), Joseph Priestley, Scientist, Philosopher, and Theologian (Oxford, 2008) 37. 12 Blackstone, A Reply to Dr Priestley’s Remarks (London, 1769) 3. 13  ibid 5. 14  ibid 27, 6. 15  ibid 9. 16  ibid 28. 11  ibid

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Dissenters ‘detest all outrageous attacks’ on the clergy, liturgy and doctrines of the established church.17 While toleration had been granted to the different forms of religious organisation and worship practised by theologically orthodox Protestant non-conformists, the laws remained in force against papists, anti-trinitarians, and ‘persons of no religion at all’.18 And he continued to insist that ‘reviling the ­Ordinances of the Church’ was a greater crime than simple non-conformity. It was not illegal for men to ‘think differently from the Church of England’ and make ‘rational and dispassionate enquiries’ into its ‘mode of worship’.19 But he continued to maintain that it was a crime for ‘peevish or opinionated Men’ to treat the Church ‘with Contempt and Rudeness’ and to inveigh ‘with Bitterness against the English Liturgy’. And ‘if Dr. Priestley is guilty of these Practices’, Blackstone observed, ‘he falls within the Danger of the Laws’.20 In short, in a tone simultaneously polite and threatening, Blackstone assured Priestley that both anti-­trinitarianism and ridiculing the Church of England were crimes.21 Priestley’s response, via a full-page letter to The London Chronicle, declared that he would always write in defence of the Dissenters when they were insulted and misrepresented by ‘persons of reputation and influence’. To the charge that he had been a ‘superficial or captious’ reader, Priestley observed that ‘I was far from being singular in that mistake’. Blackstone’s comments had appeared to ‘many persons’, including some liberal-minded Anglicans, to be ‘a notification to Dissenters, in what light they were considered by those who are now in power’.22 And calling non-conformity a crime was as wrong as it would be to define humans as criminal because some people commit crime. While arguing that the 1707 Act of Union between England and Scotland made any religious reform difficult and dangerous, Blackstone had conceded that the British Parliament possessed the power of ‘new-modelling the Churches both of England and Scotland’. And he dared Priestley to attempt to persuade P ­ arliament to act. Unless he believed he could convince Parliament that the Church of ­England was, as Priestley claimed, ‘manifestly impious … shockingly absurd’ and ­‘idolatrous’, then he was wasting his time in attacking the Church.23 To this ­Priestley responded: ‘I do not think it my business, as you hint to me, to address the Legislature upon the subject’, because as a ‘teacher of Christianity, I have nothing to do with men as Magistrates, but only as individuals’.24 17 

ibid 10. ibid 11. 19  ibid 12. 20 Blackstone, A Reply 13. 21  In her definitive annotated edition of Book IV of the Commentaries, Ruth Paley has observed that Blackstone ‘somewhat pedantically’ maintained that ‘various laws against Nonconformists were still in force against those who did not comply with the provisions of the Act of Toleration’: ‘Editor’s Introduction to Book IV’, in Blackstone, Commentaries vol 4, xix. But this was more than pedantry—it was a pointed warning to Priestley, who had indicated his heterodoxy in his Remarks. 22  J Priestley to Dr Blackstone, London Chronicle 10 October 1769. 23 Blackstone, A Reply 25. 24  J Priestley to Dr Blackstone, London Chronicle 10 October 1769. 18 

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Priestley’s response to Blackstone did not end there. Believing that the ­ ommentaries reflected a broader misunderstanding of the nature of Dissent, he C set about writing a View of the Principles and Conduct of the Protestant ­Dissenters in England (1769), which contained additional ‘strictures’ on Blackstone. He told his heterodox Anglican friend, Theophilus Lindsey, that it was ‘the freest and boldest thing I ever wrote’ and that ‘I should have written the thing sooner’.25 After reading this pamphlet Richard Price and Andrew Kippis encouraged Priestley to write another as an Address to Protestant Dissenters.26 With this rapid-fire series of pamphlets in 1769, Priestley’s long career as a Rational Dissenting polemicist was launched.

II.  Philip Furneaux and Blackstone Priestley was confrontational, but his concerns appear to have been widely shared. His remarks went through three editions in Britain and at least seven editions in America.27 The Monthly Review, owned and edited by a Dissenter, observed that the ‘great merit and usefulness’ of Blackstone’s Commentaries was ‘well established’, and assured ‘the judicious reader’ that they would be ‘highly pleased’ with Book IV’s ‘remarks upon our criminal law’.28 In the section on God and religion, however, ‘and in other parts of this truly admirable work, we are sorry to say’ that Blackstone shows a ‘littleness and peevishness of spirit’, and ‘a narrow and somewhat illiberal turn of mind in regard to Protestant Dissenters, and of course a strong attachment to what are called High Church principles’. At the same time, while the Monthly Review thought Priestley’s Remarks had ‘made some very pertinent and spirited observations’, it noted that his manner was ‘somewhat too hasty and acrimonious’.29 In the following year Rev Philip Furneaux published Letters to the Honourable Mr. Justice Blackstone, Concerning his Exposition of the Act of Toleration and Some Positions relative to Religious Liberty (1770). A highly respected minister to the wealthy Dissenting congregation at Clapham, Furneaux was a member of the ‘Club of Honest Whigs’ and greatly influenced the young William Smith, who became a leading spokesman for Dissent in the House of Commons.30 Furneaux was formally thanked by a meeting of the Protestant Dissenting Ministers for

25 

J Priestley to T Lindsey, [late October] 1769, in Works of Joseph Priestley vol 1, pt 1, 102–03. Works of Joseph Priestley vol 1, pt 1, 74. 27 Schofield, Priestley 215n. 28  The review was written by Owen Ruffhead, a barrister and liberal Anglican: Monthly Review 41 (1769) 292–304, cited at 292. 29  Monthly Review 41 (1969) 295. 30 A Ruston, ‘Furneaux, Philip (1726–1783)’, Oxford Dictionary of National Biography, ed H C G Matthew and B Harrison (Oxford, 2004). 26 

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­ aving ‘stated and defended the present principles of the Dissenters upon enlarged h grounds’.31 Scholars have, however, tended to focus on Priestley’s attack on Blackstone rather than Furneaux’s more substantial and much admired response.32 In the form of seven letters, Furneaux took issue with both the current state of the laws on religious toleration and Blackstone’s High Church interpretation of them. Furneaux thought that the ‘legal state of liberty’ in Britain was ‘little understood’, with people assuming ‘in this enlightened age’ that ‘the rights of conscience … have the same legal security with civil rights’.33 So that those who had not read Blackstone’s Commentaries, or the relevant legislation, would be surprised at the many legal limitations on religious liberty. Furneaux began by arguing that nonconformity did not remain a crime. In saying the act only ‘suspended’ penalties Blackstone had provided a ‘defective and erroneous account of the state of the Dissenters’. The Toleration Act declared that the penal laws did not ‘extend’ to orthodox non-conformists—and ‘suspension of penalty is not the language of that act’. Rather than say the laws were suspended Blackstone should have said they were ‘repealed’.34 On this key point Furneaux was emboldened by the fact that Lord Mansfield, in a celebrated speech in the House of Lords, had argued the Toleration Act ‘repealed’ the laws penalising Protestant Dissent and that it was ‘now no crime’—it was by law ‘established’.35 This was occasioned by a long-running legal dispute between Dissenters and the City of London. As a revenue raising measure, the City had been imposing fines on anyone elected to the office of sheriff who refused to serve. When the mayor began to nominate Dissenters, they were placed in an impossible position: they either had to break the law that barred non-conformists from being elected to town corporations, or pay the fine. This situation was challenged by some Dissenters in 1754, and the Sheriffs Case worked its way through the

31  A Kippis, A Vindication of the Protestant Dissenting Ministers, with Regard to their Late ­Application to Parliament, 2nd edn (London, 1773) 37–38. According to Anthony Lincoln, Furneaux’s ‘able book pitched on a high moral note’ was widely read, ‘strengthened English Dissenters in their resolve to secure an even broader legal basis for the existence of their churches’, and highlighted for ‘non-­ Trinitarians the danger in which they stood from unenforced laws’: A Lincoln, Some Political and Social Ideas of English Dissent, 1763–1800 (Cambridge, 1938) 198. 32  See, eg, Prest, William Blackstone 247–49, and Paley, ‘Introduction’ in Blackstone, Commentaries vol 4, xvii–xxi. An exception to the neglect of Furneaux is Barlow, Citizenship and Conscience 164–73. 33  P Furneaux, Letters to the Honourable Mr Justice Blackstone, Concerning his Exposition of the Act of Toleration, and some Positions relative to Religious Liberty, in his celebrated Commentaries on the Laws of England (London, 1770) iv. 34 Furneaux, Letters to Blackstone 10–14. 35 Furneaux, Letters to Blackstone 21–23; ‘The Speech of the Right Honourable Lord Mansfield in the House of Lords, 4 February 1767, in the Cause between the City of London and the Dissenters’, in P Furneaux, Letters to the Honourable Mr Justice Blackstone … , 2nd edn (1773) 278. While the case is remembered for the issue of religious toleration, there was something to be said for the City’s effort to ensure Dissenters contributed to the cost of public buildings: IG Doolittle, ‘The Mansion House “Racket”’ (1983) 33:11 History Today 37–41. See also M Mauger, ‘“A Most Exquisite Dilemma”: Conscience, Dissent and the Limits of Civic Authority in London’s Sheriffs Case’ (2012) 37 ­ London Journal 89–105.

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courts until it reached the House of Lords. In 1767 the Lords ruled in favour of the ­Dissenters, with Mansfield condemning the City’s bylaw as unjust: ‘if they accept, punish them; if they refuse, punish them’. Furneaux witnessed the speech and from his remarkable memory wrote a copy, which was later published in the Whitehall Evening Post. Furneaux referred to it in the first edition of his Letters and, with Mansfield’s approval, attached his copy of the speech to the second e­ dition of his tract in 1771.36 In his second letter Furneaux agreed with Blackstone that, on account of ‘their supposed heresy’, Catholics, heterodox Christians, deists and atheists were still considered criminals in the eyes of the law.37 Questioning the definition of heresy, he observed that according to the Bible it does ‘not consist in simple error … but only those who anathematized and persecuted others … on account of their supposed or real mistakes.’38 While Blackstone complained about the ill-defined nature of heresy in England’s laws, Furneaux thought it a good thing, and hoped that ‘criminal prosecution for opinion … will never be rendered more easy and feasible’.39 Blackstone declared it necessary that the established church have the power to ‘censure heretics, but not to exterminate or destroy them’. To which Furneaux responded: ‘In the name of humanity, Sir, is this the only exception to the extent and effect of the church’s censures, that they shall not reach to utter extermination?’40 Furneaux’s third letter rejected the idea that Christianity needed to be protected by ‘the terror of penal laws’ or ‘the sword of the civil magistrate’.41 If the state has any power to punish the expression of opinions then ‘religious liberty is entirely at an end’.42 Any ‘tendency of principles, tho’ it be unfavourable, is not prejudicial to society, till it issues in some overt acts against the public peace and order’. The magistrate ‘may punish overt acts, but not the tendency, which is not actually hurtful’.43 If it is allowed that the state can rule on matters of faith, this principle would ‘vindicate the exercise of human authority’ on religious matters in support of Islam in Constantinople, Catholicism in Rome, Episcopacy in England and Presbyterianism in Scotland.44 Laws restricting religious opinion were not only wrong, but also unnecessary. For its first three hundred years Christianity thrived without any state support, and at times in the face of persecution. Christianity had nothing to fear from

36 Furneaux, Letters to Blackstone 21; Whitehall Evening Post, 9 January 1770; for the importance of the decision, see CF Mullett, ‘The Legal Position of English Protestant Dissenters, 1689–1767’ (1937) 23 Virginia Law Review 413. 37 Furneaux, Letters to Blackstone 10. 38  ibid 31n. 39  ibid 37; W Blackstone, Commentaries on the Laws of England, 4th edn (Oxford, 1770) vol 4, 49. 40 Furneaux, Letters to Blackstone 38. 41  ibid 48. 42  ibid 52. 43  ibid 53–54. 44  ibid 45.

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‘the contempt and abuse which infidels throw upon religion’, as ‘their ribaldry and scurrility will be despicable and disgustful to the more sensible part of our ­species’.45 And intelligent Christians would respond with arguments that reveal the ignorant and unjust nature of any ridicule of religion. Besides, ‘we should be careful how we attempt to punish them, lest we harden instead of reclaiming them: lest we leave room for others to imagine, that not their scoffs and insults, but their arguments, have provoked us by being unanswerable’.46 In his fourth letter Furneaux turned to the statute 1 Eliz. c. 2, which enacted penalties against anyone saying anything ‘in derogation, depraving, or despising of the common prayer’, and Blackstone’s comment that ‘the continuance of it to this time cannot be thought too severe or intolerant’.47 Like Priestley, Furneaux was angered that Blackstone thought a man could have no ‘laudable motive for reviling and inveighing with bitterness against the common prayer’, and regarded it a crime ‘of a grosser nature than mere nonconformity: because it carries with it the utmost indecency, arrogance, and ingratitude’.48 Furneaux argued that criticising the liturgy was not indecent because truth is not determined by the opinion ‘of men in power, nor of the majority’.49 It was not arrogant, as established churches were not entitled to reverence. Most religious establishments originated in assemblies of the clergy, such as the Council of Nicaea and the convocations of the Church of England. ‘When I reflect on the policy and artifice used in the management of such assemblies’, Furneaux declared, and ‘on their prejudices and passions, their private and party views, their scandalous animosities and contentions’, it was hard to revere their decisions.50 And it was not the Church of England to which Dissenters should be grateful for the Act of Toleration, but rather to ‘that great prince, King William … and to those renowned patriots who first engaged, and then supported him’ that Dissenters owed their ‘deliverance from unjust violence and oppression’.51 Furneaux dismissed Blackstone’s argument that the 1707 Act of Union between England and Scotland created ‘political reasons’ for not altering religious laws. The union contained provisions to protect the Anglican Church and the Scottish Kirk, but this did not make them unalterable: ‘the English or the Scottish nation or church, may recede from the condition demanded and enacted in its own favour, even though most solemnly declared to be immutable’.52 Similar arguments were made by the Rational Dissenting lawyer, Samuel Heywood, in 1791 in support

45 

ibid 63–65. ibid 66. 47  ibid 71–72, citing Blackstone, Commentaries vol 4, 33–34 [50–51]. 48 Furneaux, Letters to Blackstone 72–73. 49  ibid 79. 50  ibid 81–89. 51  ibid 93. 52  ibid 110. 46 

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of a failed parliamentary motion to repeal the English Test Act as it applied to ­members of the Church of Scotland who wished to hold British offices.53 In the sixth letter he took issue with a ‘very remarkable passage’ in the ­Commentaries, ‘which asserts the absolute necessity of excluding all Dissenters from civil offices, as a thing essential to the very idea of a national establishment’.54 He pointed to the fact that a national church had existed in England before the Test Act, while in Scotland the Presbyterian Church did not have a monopoly on state offices. In addition to being factually incorrect, Blackstone’s views were also unreasonable. Firstly, a state could only be weakened by denying itself the ­‘services of any good subjects’, such as the many virtuous Protestant Dissenters.55 ­Secondly, allowing Dissenters to serve through acts of occasional conformity fostered immorality, as it was ‘a strong temptation to hypocrisy’.56 Furneaux concluded his tract by echoing Priestley’s observation that Blackstone, along with most people in England, had a poor understanding of the principles of Protestant Dissent. He appeared to ‘stigmatise the Dissenters of the present age’ by criticising the ‘religious bigotry’ of Anabaptists in Germany, Covenanters in Scotland and sects in seventeenth-century England. Blackstone should have added some ‘qualifying expressions’.57 Furneaux conceded that ‘some enthusiasts’ in previous centuries had ‘made one composition of religion and politics’, but stressed that modern ‘Dissenters, on the contrary, keep them wholly distinct’.58 Their principles on church and state were the same as those advanced by Bishop Benjamin Hoadly, the leading progressive Whig clergyman of the early eighteenth century. Furneaux observed that every Dissenter he had spoken to had the same reaction as Priestley to ‘the most obnoxious passage of all’, in which Blackstone lumped ­Catholics and Protestant Dissenters together as threats to the established constitution in church and state. This was wrong, he declared, as there were no better friends of the ‘Glorious Revolution’ of 1688 than the Protestant Dissenters.59

III.  Anglican and Dissenting Enlightenents Why did Blackstone’s fourth book of the Commentaries provoke such a swift and strong response from Rational Dissenters? To answer this question we need to consider the controversy in the broader context of political and intellectual change

53  GM Ditchfield, ‘The Scottish Case against the Test Act, 1790–1791’ (1980) 23 Historical Journal 37–61. 54 Furneaux, Letters to Blackstone 123. 55  ibid 125–27. 56  ibid 147. 57  ibid 152–53. 58  ibid 160. 59  ibid 161–63.

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in the late eighteenth century. The Rational Dissenting response to Blackstone was influenced by a combination of intellectual confidence and political paranoia. This debate occurred in the broad context of Enlightenment in England.60 ‘Moderate Enlightenment’ values were embraced by the Whig establishment as a defence against ‘popery’ and various forms of religious and political ­‘enthusiasm’, whether it be Jacobitism, Methodism or revolutionary republicanism. While Blackstone became a prominent Tory at Oxford, he claimed to have no ‘Tincture of Jacobitism’, and was happy to support the new regime of George III, who allowed old Tories in from the political wilderness after he came to the throne in 1760. This began a process whereby Tories and conservative Whigs gradually merged to form a ‘new right’ during the later eighteenth century. Blackstone’s Commentaries played a key role in this movement, as he became a leading exponent of ‘Court Whig’ ideology.61 Rather than viewing Blackstone as a traditional Tory, Wilfrid Prest is right to characterise him as an ‘ambitious, complex, and multi-talented representative of the English Enlightenment’.62 Or more precisely, the dominant conservative Anglican Enlightenment, as described by JGA Pocock.63 In the late eighteenth century the dominant Anglican Enlightenment was challenged by Rational Dissenters who became ‘the forefathers of the British Left.’64 Throughout the ‘Whig Ascendancy’ of 1714–1760, Dissenters had been solid supporters of the Hanoverian dynasty. As the Jacobite threat ended, and the Tories joined a ‘unified ruling class’ under George III, Dissenters increasingly voiced opposition to government.65 With the Crown’s ministers prosecuting John Wilkes for seditious libel, and attempting to tax and coerce the American colonies, opposition Whigs and Dissenters worried that ‘English liberties’ were under threat by the new King’s ‘Tory’ governments. Political historians have shown this to be a myth forged in paranoid patriot Whig minds. While inexperienced and heavy handed, George was a conventional Hanoverian monarch, and in practice his ministries differed little from the ‘Court Whig’ governments of the first two Georges.66 Yet perceptions matter, and Dissenters became increasingly alarmed at the sight of Scots and Tories being promoted by the new King. The l­atitudinarian ­Anglican,

60  R Porter, ‘The Enlightenment in England’, in R Porter and M Teich (ed), The Enlightenment in National Context (Cambridge, 1981) 1–18; R Porter, Enlightenment: Britain and the Creation of the Modern World (London, 2000). 61 JJ Sack, From Jacobite to Conservative: Reaction and Orthodoxy in Britain, c. 1760–1832 (­Cambridge, 1993) 78; JCD Clark, English Society 1660–1832 (Cambridge, 2000) 241–50. 62 W Prest, ‘Blackstone, Sir William (1723–1780)’, Oxford Dictionary of National Biography, ed HCG Matthew and B Harrison (Oxford, 2004). 63 JGA Pocock, ‘Conservative Enlightenment and Democratic Revolutions: the American and French cases in British perspective’, Government and Opposition 24 (1989) 81–105. See also B Young, Religion and Enlightenment in Eighteenth–Century England (Oxford, 1998). 64  JGA Pocock, ‘Political Thought in the English-speaking Atlantic, 1760–1790: (i) the Imperial Crisis’ in JGA Pocock (ed), The Varieties of British Political Thought, 1500–1800 (Cambridge, 1993) 271. 65  J Brewer, Party Ideology and Popular Politics at the Accession of George III (Cambridge, 1976). 66  PDG Thomas, George III: King and Politicians, 1760–1770 (Manchester, 2002); J Black, George III: America’s Last King (New Haven CT, 2006).

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Francis Blackburne, complained about the start of a ‘Scottish Millenium’.67 ­Liberty-loving England appeared to be falling under the rule of an increasingly British and authoritarian regime, which was making increasing use of crown patronage to manipulate Parliament. In this changing political context, Joseph Priestley was at the leading edge of Rational Dissent. While many Dissenters remained orthodox, and some became evangelical, many of the leading intellectuals tended to reason their way into theological heterodoxy. Raised an orthodox Calvinist, as a student Priestley became an Arian, and in 1769 he was in the process of becoming a Unitarian. In this view, the orthodox doctrine of the holy trinity, and much else, such as original sin, was false and without foundation in the Bible. Jesus was a human rather than a divine being, and only God should be worshipped. Unitarians stood outside the Act of Toleration, which only applied to Protestant non-conformists who subscribed to the orthodox theology outlined in the Church of England’s Thirty-Nine Articles. But Priestley felt he was in step with the momentum of an age of enlightenment, in which reason and empiricism were fuelling intellectual and material progress. In his view, true Christianity had nothing to fear from the free use of reason. Indeed, only by cleansing Christianity of its irrational, man-made historical baggage, could it survive. Using the power of the state to uphold a corrupted version of Christianity would only encourage Voltairian ridicule and swell the ranks of unbelievers.68 Priestley was one of the most advanced and combative, but his core concerns were widely shared among the Rational Dissenters, and many followed him into full-blown Unitarianism. The exchanges between Blackstone and Priestley were early shots in the developing conflict between moderate Anglican Enlightenment and Rational Dissenting radical Enlightenment. The combative and candid Priestley preached that only free inquiry and the candid exchange of ideas could uncover ‘truth’. Of his newspaper letter in response to Blackstone’s pamphlet, Priestley observed: ‘though I hope I have not made an improper return to his outward civility, I neither repent of my warmth in the cause, nor have I done with the subject’.69 The conservative Blackstone emphasised the importance of polite restraint and respect for the wisdom of England’s established laws and beliefs. Prest says that Blackstone ended his pamphlet with ‘something like a rhetorical shrug’ when he wrote: In this Temper of the Times, I am sensible that all Apologies are idle, and all Vindications useless. Yet I thought it a Duty to myself thus publickly to declare, that my notions, in respect to religious Indulgence, are not quite so intolerant as Dr. Priestley has endeavoured to represent them.70 67 

Cited in Barlow, Citizenship and Conscience 137. this vein, Priestley later objected to Edward Gibbon’s criticisms of Christianity—he was attacking the ‘corrupt’ orthodox version of Christianity, not the authentic Christianity that Jesus had preached. 69  J Priestley to T Lindsey, [late October] 1769, in Works of Joseph Priestley vol 1, pt 1, 102–03. 70 Prest, William Blackstone 249; Blackstone, A Reply 27. 68 In

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Yet there is more than a shrug in this—it is the voice of conservative ‘new right’ whiggery. With Priestley calling for Britain to move beyond toleration to full religious liberty, Blackstone defended his ‘notions’ of ‘religious Indulgence’, and represented himself as a champion of a moderate Anglican establishment. He lamented that ‘this is not an age in which a Man who thinks for himself, and who endeavours to think with Moderation, can expect to meet with Quarter from any Side, amid the Rage of contending Parties’. If in ‘a Matter of mere History and Speculation’, Blackstone had criticised the rule of Charles I while also condemning his execution by the Puritans, he is labelled ‘a Friend to Popery and Arbitrary Power … If he argues for Toleration and Indulgence to Dissenters of every Denomination, but censures with some Warmth all indecent attacks upon the Establishment, he commences a Bigot and a Persecutor’.71 In this view, Priestley is framed as a religious enthusiast and enemy of Britain’s moderate and mild established order—a man getting wound up over supposedly ‘mere’ matters of ‘History and Speculation’. Here were the basic battle lines forming that would eventually see Priestley and Thomas Paine responding to Edmund Burke’s Reflections on the Revolution in France. In 1769 Priestley was reasonably confident that the spirit of the age was on the side of Rational Dissent. With gradual ‘progress’ hard-wired into the universe by Providence, the ‘persecuting spirit’ was going to be left in the past. Yet there could be set-backs, and periods of reactionary regression. As Priestley observed, when discussing the future of the union with Scotland: ‘who knows, what the revolutions of time, and the operations of political men and measures may bring about’.72 Thus, with an eye to political developments in the 1760s, there was a note of anxiety in Dissenting responses to the Commentaries.

IV.  Politics and Paranoia Dissenters recognised and praised the monumental nature of Blackstone’s ­Commentaries. ‘Every Englishman is under obligation’ to Blackstone, Priestley declared, for ‘the pains he has taken to render the laws of his country ­intelligible, and the philosopher will thank him for rendering the study of them easy and ­engaging’.73 The Commentaries would ‘probably last as long as the laws ­themselves’.74 Such sentiments were echoed by other Rational Dissenters. Richard Price referred to ­Blackstone as a ‘great writer’, and John Jebb thought the ­Commentaries ‘incomparable’.75 James Burgh thought the Commentaries an 71 Blackstone, A

Reply 27–28. 16.

72 Priestley, Remarks 73 

ibid 55. J Priestley, ‘To Dr Blackstone’, London Chronicle 10 October 1769. Price, An Appeal to the Public, on the Subject of the National Debt (London, 1772) 20; J Jebb, The Works: Theological, Medical, Political and Miscellaneous of John Jebb, ed J Disney (London, 1787) vol 3, 44. 74 

75  R

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‘­admirable work’ that would ‘be read as long as England, its laws, and language remain’.76 There was much in the content of the Commentaries that appealed to Dissenters and political radicals. Reverence for the ancient ‘Anglo-Saxon constitution’, and the survival and revival of its principles, was a key element of late eighteenthcentury radicalism. Heavily influenced by Sir Edward Coke, and echoing the mid-eighteenth-century Tory ‘Country’ opposition ideology of Lord ­Bolingbroke, Blackstone provided much grist that could be put through radical mills. Major Cartwright and the Society for Constitutional Information could mine the ­Commentaries for approving passages on the importance of Anglo-Saxon liberties, Magna Carta, trial by jury, and condemnation of the ‘Norman Yoke’ and standing armies.77 Thus, for example, when Richard Price wrote during the American war that ‘of late, it is well known, that means have been tried and a system adopted’ for corrupting the House of Commons, by a government that had ‘struck at the very heart of public liberty, and are the worst traitors this kingdom ever saw’, he was able to add a long quotation from Blackstone on the fatal consequences of ever allowing the ‘independency’ of one of the three branches of the legislature to be lost, as it would ‘soon be the end of our constitution’.78 Yet if they found the Commentaries impressive and useful, Dissenters were also concerned about their content and influence. Writing on the eve of the American rebellion, James Burgh lamented that the Commentaries were ‘so sparingly tinctured with the true and generous principles of liberty, on the support and prevalency of which, the glory of the British empire depends’.79 In justifying his angry response to Book IV, Priestley observed that the Commentaries ‘would necessarily go into the hands of all the youth of the British nation, and could not fail to make them hate and despise’ Dissenters.80 While Furneaux disliked polemical controversy, he felt compelled to criticise ‘blemishes’ in the ‘otherwise excellent and elaborate’ Commentaries because Blackstone’s work would be immensely influential and have an ‘unfavourable’ impact on the ‘glorious cause of religious liberty’.81 Blackstone was regarded as a Tory, and assumed to be well connected with the court of George III, despite his claims to be independent. As Priestley noted more than once, he was ‘Solicitor-general to the Queen, and in connection with

76  J Burgh, Political Disquisitions: or, an Enquiry into Public Errors, Defects, and Abuses (London, 1774–75) vol 1, 186; see also J Fownes, An Enquiry into the Principles of Toleration (London, 1772) 17. 77  RJ Smith, The Gothic Bequest: Medieval Institutions in British Thought, 1688–1863 (Cambridge, 1987) 94. 78 R Price, Additional Observations on the Nature and Value of Civil Liberty, and the War with ­America (London, 1777) 45; W Blackstone, Commentaries on the Laws of England, Book I: Of the Rights of Persons, ed D Lemmings and W Prest (Oxford, 2016) 41 [51]. 79 J Burgh, Political Disquisitions: or, an Enquiry into Public Errors, Defects, and Abuses, 3 vols ­(London, 1774–75) vol 1, 186. 80 Priestley, Remarks 60. 81 Furneaux, Letters to Blackstone, 2nd edn, 219.

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the present British ministry’.82 While in reality the position was largely honorific, and Blackstone’s links to patronage were limited, in the eyes of Dissenters he represented a Tory turn in the politics of government. Priestley rushed to criticise Blackstone’s Commentaries because he was ‘supposed to possess the confidence of the present ministry’, and thus ‘his sentiments’ might ‘be considered as a notification to Dissenters, in what light they are regarded by those who are in power’, and they might reasonably imagine that ‘some design is formed to establish a system of civil and ecclesiastical tyranny’.83 In light of modern scholarship on Blackstone and British politics, this sounds like paranoid, over-heated rhetoric.84 But perceptions matter, and Book IV of Blackstone’s Commentaries was published in a context of political protest. In 1768 John Wilkes had been overwhelmingly elected by the freeholders of Middlesex, yet the House of Commons moved to prevent him from taking his seat. When Wilkes again overwhelmingly won a fourth election contest in 1769, Blackstone stepped forward as one of the leading speakers in favour of seating the ministerial candidate, Colonel Henry Luttrell, in his place. Condemning Wilkes’s ‘Essay on Woman’, he had declared: ‘When I see all religion made a mockery and jest of, it behoves me to vindicate my God and my King.’ Blackstone also assured MPs it was his ‘firm and unbiassed’ opinion that under the common law Wilkes should be disqualified from sitting in Parliament.85 While Blackstone was clearly motivated by more than politics, in the eyes of Dissenters he was supporting a violation of English liberties. Priestley wrote his Remarks on the Commentaries in July 1769, while Blackstone was being criticised in print for defending the exclusion of Wilkes.86 In his next publication, Priestley noted that the Dissenters had always been strong supporters of the Hanoverian dynasty, but that recent events had made them critical of government, and the seating of Luttrell in place of Wilkes alarmed them.87 Priestley gave a copy of his Essay on the First Principles of Government (1768) to John Wilkes as ‘a small acknowledgement of the many personal civilities he has received from him, 82 Priestley, Remarks

60. ibid 3. 84  See, eg, IR Christie, ‘Was there a “New Toryism” in the Earlier Part of George III’s Reign?’, in Myth and Reality in Late Eighteenth-Century British Politics (Berkeley CA, 1970) 196–213; GM Ditchfield, ‘Ecclesiastical Policy under Lord North’, in J Walsh, C Haydon and S Taylor (ed) The Church of England, c.1689–c.1833: from Toleration to Tractarianism (Cambridge, 1993) 228–46. 85  ‘Blackstone, William (1723-80), of Wallingford, Berks.’, in L Namier and J Brooke (ed) The House of Commons, 1754–1790 (London, History of Parliament Trust, 1964) 97. 86 Prest, William Blackstone 241. 87  It should be noted that Dissenters had not been alarmed when, on several occasions earlier in the century, Parliament had overturned the election of Tories and seated Whigs in their place; see WA Speck, ‘“The Most Corrupt Council in Christendom”: decisions on controverted elections, 1702–42’, in C Jones (ed), Party and Management in Parliament, 1660–1784 (Leicester, 1984) 107–121. Of one such case Grayson Ditchfield has observed: ‘The freeholders of Oxfordshire in 1754 were denied their choice of representatives just as blatantly as were those of Middlesex in 1768–69. Moral outrage on the part of historians at the treatment of Wilkes is not matched by any such indignation at the ­chicanery deployed against the Tories of George II’s reign. The reason is clear. Early eighteenth-century Tories, with their royalist, patriarchal, and Anglican values, are far less appealing to “modern” historians’. GM Ditchfield, ‘Arthur Cash, John Wilkes: The Scandalous Father of Civil Liberty’ (2010) 20 Age of Johnson 351. 83 

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and more especially for what he owes to him as a member of the same ­community, and a lover of liberty’.88 Priestley was friends with John Lee, a Wilkite lawyer from Leeds.89 Over a decade later, John Cartwright wrote of the ‘atrocious act of seating Mr. Luttrell in the house of commons, as member for Middlesex, in defiance of that county’, as being a ‘violent and iniquitous’ attack on the constitution.90 As John Sainsbury has shown, it was after the disputed Middlesex election that metropolitan radicals came to perceive a strong link between coercion of America and a growing threat to the British constitution. They responded by founding the Society for the Supporters of the Bill of Rights, which transformed ‘Wilkes and ­Liberty’ protest into an organised campaign for parliamentary reform.91 Colonial patriot resistance to the imperial supremacy of the British Parliament escalated into an American Revolution in the 1770s.92 The later years of this conflict saw the campaign for parliamentary reform grow into a national movement with ‘associations’ formed in many towns and counties.93 In this polarising political context, Blackstone’s Commentaries were seen as a powerful defence of the established constitution in church and state.94 Blackstone had championed the sovereignty of Parliament, declaring that it had ‘absolute despotic power, which must in all governments reside somewhere’.95 This flew in the face of radical L ­ ockean notions of popular sovereignty. In his criticism of the Commentaries, Furneaux noted that ‘nothing is more certain than that government … is a trust in behalf of the people. And there cannot be a maxim, in my opinion, more illgrounded, than that there must be an arbitrary power lodged somewhere in every government’.96 How Rational Dissenters read Blackstone is illustrated by the letters of Samuel Kenrick, a banker near Birmingham, who debated politics at length with his friend James Wodrow, a Scottish clergyman. Kenrick was amazed to see Josiah Tucker, the Dean of Gloucester, denigrate the Americans for being ‘disciples of Locke’. Kenrick proceeded to observe: Nay this is in the style of one the most capital writers of the present age, for learning sound sense & elegance of expression—I mean Judge Blackstone in his celebrated ­Commentaries

88  Letter undated, but probably winter of 1768–1769: RE Schofield, The Enlightenment of Joseph Priestley (University Park PA, 1997) 213n. 89  Lee had strongly encouraged Priestley to write his newspaper response to Blackstone’s Reply: Schofield, Enlightenment of Joseph Priestley 215. 90  J Cartwright, The People’s Barrier against undue Influence and Corruption: or the Commons’ House of Parliament according to the Constitution (London, 1780) 37. 91 J Sainsbury, Disaffected Patriots: London Supporters of Revolutionary America, 1769–1782 (Gloucester, 1987). 92  For a concise overview, see A Page, ‘Civil War and Revolution in British North America’ (2015) 50:1 Agora 20–27. 93  IR Christie, Wilkes, Wyvill and Reform: The Parliamentary Reform Movement in British Politics, 1760–1785 (London, 1962); EC Black, The Association: British Extra-parliamentary Political Organization 1769–1793 (Cambridge MA, 1963); A Page, John Jebb and the Enlightenment Origins of British Radicalism (Westport CT, 2003). 94  JCD Clark, The Language of Liberty, 1660–1832 (Cambridge, 1994) 83–93. 95 Blackstone, Commentaries vol 1, 107 [156]. 96 Furneaux, Letters to Blackstone, 2nd edn 154n.

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on the Laws of England—who does not scruple to say that the sentiments of Locke, of Milton, & of Sydney—which we poor deluded Whigs look upon with so much reverence, are at bottom much the same wth. those of Wat Tyler and Jack Cade—only expressed in more polite language or dressed in a more gentlemanlike garb (B.IV.c.33). As to the Revolution [of 1688], this oracle of our Laws, says it is only to be considered now as a question of instruction amusement & speculation. It may be of dangerous consequence for us to put ourselves in the place of our ancestors, or to concern our consciences about its rectitude; it was entirely a new case in politics, & its true ground was the abdication of King James whereas the principles of Mr. Locke levelled all distinctions, repealed all positive laws & reduced the society almost to a state of nature.97

V.  The Cause of Religious Liberty Religion was a central issue in debate over the future of Britain and its empire that erupted in the 1760s. Furneaux declared that ‘liberty in matters of conscience’ was ‘of all human rights … one of the most sacred and unalienable’.98 He saw a danger in the ‘lenity of the times’ lulling people into forgetting that the ‘caprices of men in power, or some unaccountable turn in the sentiments of the publick’ could lead to religious persecution. While he did not think this likely, he argued that ‘the rights of human nature’, including ‘religious liberty in its full extent’, should be enshrined in law.99 In the early 1770s Dissenters began to petition for greater toleration. They were inspired to do so by the parliamentary response to the ‘Feathers Tavern Petition’, which was submitted to the House of Commons by heterodox Anglican clergymen in February 1772. This petition asked that Anglican priests be allowed to simply declare they believed the Bible rather than subscribe to all of the ThirtyNine Articles of the Church of England.100 While this petition was rejected, during the debate Lord North noted that he would look more favourably upon a similar petition from Dissenting clergymen who, while already exempt from the ecclesiastical articles, still had to swear belief in the orthodox doctrinal articles. Having watched this debate from the gallery, Furneaux proceeded to play a leading role in organising a Dissenting request that Parliament relieve them from subscription to any of the Thirty-Nine Articles. A bill to this effect passed the House of Commons in April 1772, but was rejected by the House of Lords. A second attempt in the

97  Dr Williams’s Library, Gordon Square, London, MSS 24:157 (55), S Kenrick to J Wodrow, 29 and 18 March 1776. See, eg, Blackstone, Commentaries, vol 1, 41, 108 [51–52, 157] and vol 4, 119–20 [181–82]. 98 Furneaux, Letters to Blackstone, 2nd edn, iii. 99 Furneaux, Letters to Blackstone viii–ix. 100  GM Ditchfield, ‘Feathers Tavern Petitioners (act. 1771–1774)’, Oxford Dictionary of National Biography (Online edn, Oxford, OUP, October 2016). [www.oxforddnb.com/view/theme/93823, accessed 1 Oct 2017].

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f­ ollowing year failed, but eventually in 1779 Dissenting ministers were granted the ability to merely declare a belief in the Bible.101 Furneaux appears to have been motivated to play a leading role in the Dissenting campaign against subscription by Blackstone’s defensive response to his arguments for religious liberty. While Blackstone modified some of his language when he published a new edition of his Commentaries in mid-1770, he stood firm on his key points.102 In response to his critics, for example, Blackstone deleted some of the offending language from a key passage that defended Elizabeth I’s laws against ‘reviling the ordinances’ of the Anglican church. Yet he also added words that provoked Furneaux to publish a second edition of his Letters. Referring to Elizabeth I’s laws against ‘reviling’ the Anglican church, Furneaux had concluded the preface of his Letters by rejecting the idea that it was ‘right to keep a rod in terrorem, though it would be injustice or inhumanity to use it’. Any legal rod would be used if ‘a proper opportunity’ arose, for if ‘human terror be a proper motive, human punishment is equally so’.103 Blackstone’s fundamental rejection of such criticism is evident in his revised passage (words deleted have been marked through with a line, and those added italicised): Nor can their continuance to this time (in terrorem at least) be thought too severe and intolerant; when we consider, that they are levelled at an offence, to which men cannot now be prompted by any laudable motive; not even by a mistaken zeal for reformation: since not of thinking differently from the national church, but of railing at the church and its ordinances, for not submitting its public judgement to the private opinion of others. For, though it is clear, that no restraint should be laid upon rational and dispassionate inquiries into the rectitude and propriety of the established mode of worship; yet contumely and contempt are what no establishment can tolerate. A rigid attachment to trifles, and intemperate zeal for reforming them, are equally ridiculous and absurd: but the latter is at present the less excusable, because from political reasons [ie. the 1707 Act of Union], sufficiently hinted at a former volume, it would now be extremely unadvisable to make any alterations in the service of the church; unless it could be shewn that some manifest impiety or shocking absurdity would follow from continuing it in its present form. And therefore the virulent declamations of peevish or opinionated men on topics so often, and of which the preface to the liturgy is itself a perpetual refutation, can be calculated for no other purpose, than merely to disturb the consciences, and poison the minds of the people.104

101  GM Ditchfield, ‘The Subscription Issue in British Parliamentary Politics, 1772–79’ (1988) 7 ­ arliamentary History 35–88; GM Ditchfield, ‘“How Narrow will the Limits of this Toleration Appear?” P Dissenting Petitions to Parliament, 1772–1773’ (2005) 24 Parliamentary History 91–106. 102 Furneaux’s Letters were advertised as published on 9 March 1770 in the Public Advertiser. Blackstone’s revised edition of Book IV was published in June 1770 as part of the 4th edition of the ­Commentaries: Paley ‘Introduction’ in Commentaries vol 4, viii. 103 Furneaux, Letters to Blackstone ix. 104 Blackstone, Commentaries, 4th edn (1770) vol 4, 51. Book I was first published in 1765, and Book IV was first published in 1769. The second version of it came out as part of the 4th edition of the Commentaries in 1770. The third version was part of the 5th edition of the Commentaries in 1773.

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In response to this, Furneaux wrote an additional letter in which he argued against laws with ‘penalties too severe to be executed, consistently with any principles of humanity’ being retained ‘in terrorem’. Rather than reflecting ‘political wisdom’, such a policy could only spring from an ‘arbitrary and tyrannical disposition’.105 The subject should always be able to learn his condition under any law, from the law itself; and not be obliged to recur, for this purpose, to considerations wholly foreign to it; such as the spirit of the times, and the chance that it will not be executed. This is not being under the government of law, under a known and equitable rule; it is being at mercy; it is being subject to fortuitous events, of which no estimate can be taken. … I say every law should be exploded, as leaves no ground of exemption from injustice and oppression, but the bare presumption that there will be no prosecutor, and consequently that the law will not be executed.106

Furneaux also rejected Blackstone’s distinction between reasonable criticism and ‘reviling’ the common prayer. Most religious controversy involved acts of ‘asserting and arguing’ that fell between these two extremes, though those with the weaker arguments often resorted to accusing their opponents of ‘railing’. To a large extent the difference between ‘reasoning and reviling’ was in the eyes of the beholder. On top of that, it appeared that the ‘express words of the statute’ made a crime of ‘every assertion or declaration’ that the Anglican liturgy was flawed. In light of this, Furneaux concluded, ‘the act alike comprehends and condemns’ reasonable criticism and reviling the ordinances of the Church of England. He hoped Blackstone would ‘retract your approbation of these severe clauses in the act of conformity’.107 Blackstone only very slightly modified this passage in the next edition of the Commentaries (5th edn June 1773).108 He changed ‘in terrorem at least’ to ‘of the milder penalties at least’. On the issue of alterations in the established church being ‘extremely unadvisable’ owing to ‘political reasons’, unless ‘it can be shewn that some manifest impiety or shocking absurdity will follow from continuing the present forms’, he added ‘or unless by its own consent’.109 The wording of this important passage was not altered any further in subsequent editions. The fifth edition of the Commentaries was published several months after Furneaux published an Essay on Toleration (January 1773) in support of the second Dissenting petition against subscription. This tract, according to Leonard Levy, ‘proposed the ultimate freedom for words about religion’ and ‘advanced the theory of free thought some light-years by rejecting outright the concept of ­blasphemy as a crime’.110 In his Letters to Blackstone Furneaux had argued that

105 Furneaux, Letters

to Blackstone, 2nd edn, 122. ibid 124–25. 107  ibid 128–33. 108  The 5th edition of the Commentaries appears to have been published in June 1773, see Morning Chronicle and London Advertiser 14 June 1773. 109 Blackstone, Commentaries vol 4, 296 [5th edn, 51]. 110 LW Levy, Blasphemy: Verbal Offense Against the Sacred, from Moses to Salman Rushdie (Chapel Hill NC, 1995) 330. 106 

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criminal laws are never justified against ‘any mere system of religion’, but they ‘may be justified’ against ‘the church of Rome, because it is not merely a corrupt and erroneous system of religion, but a wicked conspiracy for the extirpation of all those who oppose her enormous superstitions and usurpations’.111 Without commenting on the penal laws against Catholics, in his Essay on Toleration Furneaux argued that everyone has a natural ‘absolute liberty’ in ‘the affairs of religion’.112 Such religious liberty must be secured in law, as ‘the connivance of the ­Magistrate’ could not be ‘considered as amounting to toleration’.113 Furneaux dedicated his essay to Lord Mansfield, and quoted his speech in the House of Lords on the ­Sheriffs case: ‘Persecution, or attempts to force conscience, will never produce conviction; and are only calculated to make hypocrites, or martyrs’.114 While references to Mansfield undoubtedly added weight to Furneaux’s arguments, their effect on Blackstone was blunted by tensions that had developed between the two legal heavyweights. Mansfield had long been a friend and patron of Blackstone, and read drafts of the Commentaries. In February 1770, the month before Furneaux published his Letters, Blackstone was appointed to the court of King’s Bench. Yet he appears to have ‘chafed under Mansfield’s domination’, and in June took the opportunity to escape to the Court of Common Pleas.115 In the following years some cases on appeal occasioned clashes between Blackstone’s traditionalist and Mansfield’s rationalist interpretations of the law.116 Given that Furneaux’s Letters were published as their relationship was cooling, it is not surprising that Blackstone appears unmoved by Mansfield’s views on the ­Toleration Act. Blackstone stuck to his claim that nonconformity remained a crime with the penalties only ‘suspended’ for orthodox Dissenters. He backed this up in the 1770 edition of the Commentaries by quoting the Toleration Act’s actual title: ‘for exempting their majesties protestant subjects, dissenting from the church of England, from the penalties of certain laws’.117 In spite of Furneaux’s additional criticisms, and appeals to the authority of Mansfield, Blackstone reinforced his interpretation by declaring that the penalties were only ‘conditionally suspended’.118 In the eyes of Jeremy Bentham, the arguments of Priestley and Furneaux had only caused Blackstone to add more ‘rhetorical lumber’ to his Commentaries: ‘they have made him sophisticate; they have made him even expunge: but all the ­Doctors in the world, I doubt, would not bring him to confession’.119 And such

111 Furneaux, Letters

to Blackstone, 2nd edn, 126n. P Furneaux, An Essay on Toleration (London, 1773) 13. ibid 74, 70. 114  ibid 8. 115  NS Poser, Lord Mansfield: Justice in the Age of Reason (Montreal, 2013) 201. 116 Prest, William Blackstone 268–70. 117 Blackstone, Commentaries vol 4, 297–98 [4th edn, 53]. 118  ibid 298 [5th edn, 53]. 119  J Bentham, A Fragment on Government, ed JH Burns and HLA Hart (Cambridge, 1988) 11–12. 112  113 

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‘attacks barely dinted the popularity of Blackstone’s work as an expository text’.120 Blackstone had built a legal bulwark for the established order; and according to his influential interpretation the Toleration Act was, in the words of Martin Fitzpatrick, ‘merely a declaration of indulgence’.121 The Commentaries were ­ published in the context of protests against imperial taxation in Colonial America, ‘Wilkes and Liberty’ agitation in London, and heated debates over subscription to the Thirty-Nine Articles of the Church of England in the wake of Francis ­Blackburne’s Confessional (1766).122 Blackstone’s defensive response to criticism of Book IV helped convince non-conformists that they should campaign for religious reform before ‘Tory’ men and measures gained more influence. Dissenters became anxious, as Rev William Enfield observed, that they enjoyed ‘some of their most important liberties only by connivance, and through the moderation and good sense of their government, and not under the protection of the law’.123 Yet their subsequent campaigns for repeal of the Test and Corporation Acts provoked a backlash from defenders to the established constitution in church and state, led by Anglican clergymen.124 The debate over toleration contributed to political polarisation in the last quarter of the eighteenth century, with Rational Dissenters becoming champions of parliamentary reform and their opponents bolstered by the authority of Blackstone’s Commentaries.

120 

W Prest, Albion Ascendant: English History 1660–1815 (Oxford, 1998) 200. Fitzpatrick, ‘Heretical Religion’ (n 2 above) 348. F Blackburne, The Confessional: Or, a Full and Free Inquiry into the Right, Utility, Edification, and Success, of Establishing Systematical Confessions of Faith and Doctrine in Protestant Churches (London, 1766); see also Ian Doolittle’s Ch 4 in this volume. 123 [W Enfield], Remarks on Several Late Publications Relative to the Dissenters; in a Letter to Dr Priestley. By a Dissenter (London, 1772) 60. 124  JE Bradley, ‘The Anglican Pulpit, the Social Order, and the Resurgence of Toryism during the American Revolution’ (1989) 21 Albion 361–88. 121  122 

6 Blackstone, Parliamentary Sovereignty and his Irish Critics ULTÁN GILLEN

Sir William Blackstone, quite naturally, did not devote a great deal of attention to Ireland in his Commentaries on the Laws of England. However, the little he did write specifically about Ireland, and a number of his other claims about the power of Parliament and the permissibility of penal legislation against Catholics, p ­ rovoked controversy and criticism in Ireland. Blackstone was widely read amongst the educated elite in Ireland as in Britain, and this was an important motivation for his critics, who felt his prominence made it important that his arguments be ­challenged. At the heart of Irish discussions of Blackstone lay the question of parliamentary sovereignty, or, more precisely, the competing claims to sovereignty over Ireland of the British Parliament at Westminster and the Irish Parliament in Dublin’s ­College Green. Once this question had seemingly been settled in favour of the Irish Parliament with the so-called Constitution of 1782 and Westminster’s ‘Renunciation Act’ of 1783, Blackstone was called upon to help make their case by both the advocates and opponents of key political questions, such as parliamentary reform. When—in the aftermath of the failed 1798 United Irish rebellion backed by revolutionary France—the government pushed for a union between Ireland and Great Britain, Blackstone’s writings on the powers of Parliament and the passing of the Scottish union ensured that he became a source of discussion and controversy once more. Blackstone’s Commentaries were of course regularly referred to during legal cases, but these fall outside the scope of this chapter, which focuses on Blackstone’s place in Irish political argument. This chapter draws overwhelmingly on pamphlet literature, though some of the pamphlets used first appeared as series of letters in newspapers, while others, for example parliamentary speeches, were also reported in the press.1 Discussions about Blackstone were 1  A word search for ‘Blackstone’ and ‘Commentaries’ in the online databases, the Irish Newspaper Archive and the Act of Union Virtual Library (www.actofunion.ac.uk), turned up little newspaper material. These searches missed some pieces mentioning Blackstone later collected in pamphlet form, and it is possible that a more systematic search of the newspapers would reveal a greater engagement with Blackstone. My impression, however, is that it would not overturn the core arguments here about the timing of the major periods of engagement with Blackstone, nor about the nature of that engagement.

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therefore familiar to a range of opinion far beyond the political elite, and arguments about him informed popular works. Irish political commentary on Blackstone was uneven, spiking at times when the powers of the Irish Parliament were most in dispute, and not always in much depth, but the range of issues for which Blackstone was put to use is a demonstration of how influential his Commentaries were perceived to be, and his reputation even among his critics. Blackstone published the first Book of the Commentaries in 1765 because of the threat of an unauthorised Dublin edition.2 This demonstrated not just the opportunism of Irish publishers exploiting their legally distinct status from ­Britain, but also Blackstone’s standing in Ireland even before the Commentaries were published. A Treatise on the Law of Descent in Fee-Simple had already been published in Dublin in 1760, and other works appeared following publication of the Commentaries.3 His reputation was high in both academic and legal circles, partly due to the large numbers of Irish lawyers and politicians—two often overlapping groups—who had received at least some of their education in England. The Regius professor of law at Trinity College, Dublin, Francis Stoughton Sullivan cited Blackstone as an inspiration for his own efforts to improve the study of law within the university.4 The Commentaries quickly established themselves as a key part of the reading of educated Irishmen. A Dublin edition of Book I appeared in 1766, with all four volumes of various editions published in at least 1769–70, 1773, 1775, 1788, 1794, and 1797.English works critical of Blackstone were also printed in Dublin.5 Blackstone was taken as authoritative on purely legal matters, but not on politics.

I.  Blackstone on Ireland An early, and dramatic, criticism of Blackstone occurred in the Irish House of Commons in March 1771. Richard Power, King’s counsel and MP for Tuam, ranted like ‘a Bedlamite’, damaging his copy of Book I of the Commentaries by hammering it against the benches, much to the amusement of those watching.

2  W Prest, ‘Blackstone, Sir William (1723–1780)’, Oxford Dictionary of National Biography, ed HCG Matthew and B Harrison (Oxford, 2004). 3  An Analysis of the Laws of England in 1766 and Law Tracts by William Blackstone in 1767. 4  F S Sullivan, An Historical Treatise on the Feudal Law, and the Constitution and Laws of England (Dublin, 1772) 10. See also, SP Donlan, ‘“The Places Most Fit for this Purpose”: Francis Stoughton Sullivan and Legal Study at the University of Dublin (1761–66)’ (2005) 20 Eighteenth-Century Ireland/ Iris an Dhá Chultur 120–139. 5  J Bentham, A Fragment on Government; being an examination of what is delivered, on the subject of government in general in the introduction to Sir William Blackstone’s Commentaries: with a preface, in which is given a critique of the work at large (London, 1776) and Joseph Priestley’s Remarks on Some Paragraphs in the Fourth Volume of Dr Blackstone’s Commentaries on the Laws of England Relating to the Dissenters (London, 1770) both appeared in Dublin editions the year they were published, but neither was cited by Blackstone’s Irish critics.

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The records are scanty, but Power was complaining about interference from another country, suggesting that, even though he was a government supporter, it was likely Blackstone’s assertion of British sovereignty over Ireland that so infuriated him.6 This was certainly the question on which the most serious Irish engagement with Blackstone occurred. When Blackstone was writing, British-Irish relations were defined by two pieces of legislation, one Irish and one British. Poynings’ Law, passed by the Irish Parliament in 1494, meant that proposed Irish legislation (heads of bills) had to be approved, and could be altered, by the privy council in London, before the Irish Parliament had to vote to accept or reject them without further alteration.7 The Declaratory Act passed by Westminster in 1719 (6 Geo. I, c. 5: An Act for the ­Better Securing the Dependency of the Kingdom of Ireland upon the Crown of Great Britain), explicitly stated Westminster’s right to pass laws that applied to Ireland, thus further enshrining the subordinate status of the Irish Parliament and courts. These laws, and the assumptions behind them, shaped Blackstone’s few pages on Ireland in section IV of Book I of the Commentaries, ‘Of the Countries Subject to the Laws of England’. To Blackstone, Ireland was a distinct but subordinate kingdom. Making a common but false claim that the Irish were for the most part the descendants of the English who helped Henry II undertake what Blackstone considered the conquest of Ireland, he stated they had brought the laws of England with them, and that these had been accepted by the Irish Parliament, citing Coke as his authority.8 The Gaelic Brehon law had been replaced with English law by King John ‘in right of the dominion of conquest’. Because Ireland had its own Parliament, Blackstone stated that no laws made in England applied there except for those that named Ireland explicitly, or that applied to all the King’s dominions. Ireland’s dependent status obliged it to conform to the will or law of its superior: the original and true ground of this superiority is the right of conquest: a right allowed by the law of nations, if not by that of nature; and founded upon a compact either expressly or tacitly made between the conqueror and the conquered, that if they will acknowledge the victory for their master, he will treat them for the future as subjects, and not as enemies.

However, Blackstone believed that by the early eighteenth century many Irish had forgotten this ‘compact’, and were challenging the jurisdiction of the British House

6  Baratariana (Dublin, 1772) 152, 271 (Barataria was an allegorical name used for Ireland, especially before the Irish Parliament accepted the legitimacy of newspapers reporting its proceedings.) 7  On the operation of Poynings’ Law in the eighteenth century, see J Kelly, Poynings’ Law and the Making of Law in Ireland, 1660–1800 (Dublin, 2007). 8 W Blackstone, Commentaries on the Laws of England, Book I: Of the Rights of Persons, ed D ­Lemmings and W Prest (Oxford, 2016), 71 [98–99]; here and below, pagination of the original (1765–69) edition is given in square brackets. A likely source for Blackstone’s claim about the composition of the Irish population was W Molyneux, The Case of Ireland’s Being Bound by Acts of Parliament in England, Stated (Dublin, 1698) 20.

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of Lords, leading to the possibility of the law being changed without the assent of the superior power, and of legal judgments diminishing the dependence of ­Ireland upon the Crown of Great Britain. All this rendered the Declaratory Act a necessity.9 Understanding Irish reactions to Blackstone requires an understanding of the arguments of William Molyneux, who for Irish patriots had already explained the true nature of the British-Irish relationship, how it violated the rights of Ireland, and how to fix it. Molyneux’s Case of Ireland Stated (1698) argued that there had not been a conquest, but a voluntary submission to Henry II. Even if there had been, the Irish were now mostly the descendants of those who conquered with Henry, and enjoyed the rights of Englishmen, and of their own constitution of Ireland’s King, Lords and Commons. Molyneux also used the doctrine of rights lately employed by his friend John Locke to argue against any right of conquest. He provided a ready-made set of historical and theoretical arguments with which to refute Blackstone. When it came to Ireland’s relationship with Britain, Bentham’s criticism that Blackstone justified everything that was as being as it should be might be said to apply.10 Blackstone supported the British interpretation of the relationship, asserting Westminster’s legislative and judicial power, and criticising Irish ­counter-claims. In relying on the right of conquest, Blackstone was sure to meet opposition. However, sustained criticisms of Blackstone would not appear in ­Ireland for a decade, and when they did, they would, initially at least, be connected with the question of religion.

II.  Critics of Blackstone on Religion in Ireland Blackstone’s comments about the relationship between citizenship and religion in Book IV were the target of these criticisms. Ireland’s confessional state discriminated against both Catholics—who comprised around 75–80% of the population— and Protestant Dissenters, primarily Presbyterians, who made up around 10–15%. Both were denied full political rights, which were enjoyed only by the adherents of the Established Church of Ireland (an Anglican church). Catholics, unlike Presbyterians, were denied the vote, but both were barred from holding public office. The rights of Catholics to own land were severely restricted: they were prohibited from buying land, and Catholic-owned land was vulnerable—theoretically at least—to seizure. Neither Catholic nor Dissenting marriages were recognised by the state. While restrictions on ‘unofficial’ religions were of course normal throughout

9 Blackstone, Commentaries vol 1, 71–74 [99–102]. On the Act, see I Victory, ‘The Making of the 1720 Declaratory Act’ in G. O’Brien (ed), Parliament, Politics and People: Essays in Eighteenth-Century Irish History (Dublin, 1989) 10–29. 10 Bentham, Fragment on Government 187.

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Europe at this time, they usually applied to minority groups and not as in Ireland to the majority of the population.11 Despite the penal laws, the remnants of the Catholic gentry and the episcopacy formed the basis for a Catholic leadership that preached loyalty to the state. With the ideas of the Enlightenment concerning religious toleration making an impact on Ireland, a Catholic Committee had been formed in 1757 to lobby for Catholic relief.12 Catholic activists proposed a number of oaths of allegiance that they felt would preserve their religion intact while allowing them to demonstrate loyalty to the state. They also wrote a number of histories of Ireland intended to counter the beliefs that Catholics were inherently disloyal, and that they sought both to extirpate Protestantism and reclaim the land lost by their ancestors. It was in this context, with an oath of allegiance having been accepted by the Irish Parliament in 1774, that Catholic writers criticised Blackstone’s opinions on religion. The acceptance of this oath by Parliament merely signified a belief that Catholics could be loyal, and did not result in the repeal of any penal laws, or the opening of public office to Catholics. When it came to the religious establishment, Blackstone’s Commentaries declared that ‘[e]very thing is now as it should be’.13 Blackstone meant that the Established Church successfully avoided the excesses of both its Dissenting and Catholic rivals. They wished to establish a supremacy of their own, and thus to encroach on rights which ‘reason and the original contract of every free state in the universe have vested in the sovereign power.’14 Blackstone supported toleration, but believed that the established church must always enjoy a privileged position. He distinguished between Dissenters and Catholics on the grounds that the Dissenters’ beliefs did not ‘extend to a subversion of the civil government’. Blackstone, who devoted Chapter seven of Book IV to praemunire (the offence of asserting papal jurisdiction in England), believed that Catholicism was incompatible with loyalty to the state. Catholics therefore should suffer legal and political disabilities. ‘[W]hile they acknowledge a sovereign power, superior to the sovereignty of the kingdom, they cannot complain if the laws of that kingdom will not treat them upon the footing of good subjects.’15 Though he justified the existence

11  On the penal laws, see T Bartlett, The Fall and Rise of the Irish Nation: The Catholic Question, 1690–1830 (Dublin, 1992); SJ Connolly, Religion, Law and Power: The Making of Protestant Ireland, 1660–1760 (Oxford, 1992), and the critique of Connolly in I McBride, Eighteenth-Century Ireland: The Isle of Slaves (Dublin, 2009), Ch 5; J Bergin, E Magennis, L Ní Mhungaile and P Walsh (ed), ‘New ­Perspectives of the Penal Laws’, Special Issue no 1, Eighteenth-Century Ireland: Iris an dá chultúr (­Dublin, 2011). 12  On the Enlightenment and Irish politics, see M Brown, The Irish Enlightenment (Cambridge MA, 2016), and U Gillen, ‘Varieties of Enlightenment: the Enlightenment and Irish Political Culture in the Age of Revolutions’ in R Butterwick, S Davies and G Sanchez Espinosa (ed), Peripheries of the Enlightenment (Oxford, 2008) 163–81. 13  W Blackstone, Commentaries on the Laws of England, Book IV: Of Public Wrongs, ed R Paley and W Prest (Oxford, 2016) 32 [49]. 14  ibid 68 [103]. 15  ibid 35–36 [54].

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of laws against Catholics, Blackstone believed that ‘merciless bigots’ should not be able to use them against peaceful Catholics causing no trouble.16 Blackstone, then, cast doubt on the ability of Catholics to be loyal. Given the status which his ­Commentaries enjoyed among the elite in both Britain and Ireland, Catholic ­writers felt they had to challenge his arguments. In 1775, John Curry, the Catholic Committee activist whose Historical ­Memoirs of the Irish Rebellion in the Year 1641 (1758) has been described as the ‘first major challenge to official anti-Catholicism’, published An Historical and Critical Review of the Civil Wars in Ireland.17 His aim, Curry explained, was not to inflame religious tensions, but to effect reconciliation by demonstrating, through the primary sources, how accounts of Irish history that emphasised Catholic disloyalty and brutality were wrong.18 This led Curry to criticise two of the most prominent figures in the Anglophone intellectual world, David Hume and Blackstone, whose authority and reputation made their misrepresentations all the more dangerous, he said, than those of nakedly anti-Catholic polemicists. Curry reminded his audience that violence was a constant feature of Irish politics before the Reformation, and so dismissed the idea that Catholicism made the majority violent towards their neighbours. Instead, power struggles had been consistently dressed up as religious disputes. Hume, he said, had had the best of intentions, to urge the Irish to forget their divisions, but his mistakes were harmful. Similarly, Blackstone had ‘enlightened these nations by his admirable commentaries on their laws’, but he analysed the possibility of Catholic loyalty in a protestant state in only the most shallow way. With all deference due to ‘so great an authority’, the Catholics of Canada and Hanover disproved his assertions of inherent Catholic disloyalty. As far back as Elizabeth’s reign, Curry stated, Catholics had proven loyal to their monarch while accepting the Pope as their spiritual leader. Irish Catholics had just recently drawn up an oath showing exactly this. Anyone who knew anything about the Catholic absolutist states of Portugal, Spain and France knew that the notion that Catholics owed their first loyalty to the Pope was laughable. It was a pity that Blackstone’s failure to grasp this fact, so easily within his reach, lent credibility and longevity to a damaging falsehood.19 While emphasising his respect for Blackstone’s authority on the law and constitution, Curry effectively accused him of failing to apply any analytical power to the Catholic question, and of relying instead on the ‘first impressions’ he had received on the issue.20 Blackstone, in other words, had been derelict in his intellectual duty, preferring prejudice to reason.

16 

ibid 37–38 [57]. of Slaves 314. 18  J Curry, An Historical and Critical Review of the Civil Wars in Ireland, from the Reign of Queen Elizabeth, to the Settlement under King William. Extracted from Parliamentary Records, State Acts, and other authentic materials (Dublin, 1775), advertisement. 19  ibid xiii–xvii. 20  ibid xv. 17 McBride, Isle

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An anonymous pamphlet opposing the penal laws also explicitly criticised Blackstone. It was largely composed of selections from the works of others linked together by its own arguments, so much so that the author inserted a denial of plagiarism.21 The two great evils facing Ireland were said to be the penal laws and attempts to render the Irish abject servants of others. The anonymous author cited Thomas Leland’s History of Ireland from the invasion of Henry II, with a preliminary discourse on the ancient state of that kingdom (1773) on the question of a conquest. Leland, the librarian of Trinity College, dismissed the idea of a conquest as ‘ridiculous flattery’ of Henry II by courtiers like Geraldus Cambrensis. Leland explicitly refuted the claim of Blackstone, referred to as ‘the professor of laws in the eighteenth century’, that the English enjoyed the right of conquest over Ireland. Drawing upon Molyneux, he argued that rather than a conquest, there had been a voluntary submission to Henry II.22 The Inquiry suggested that Blackstone’s assertion of Ireland being conquered stemmed either from ignorance of its history, or from a desire to justify the Declaratory Act ‘at the Expense of Truth and his own Conviction’. Blackstone’s belief that Ireland had been conquered was particularly surprising given his denial that William had conquered England.23 While Curry accused Blackstone of failing to use his reason, the Inquiry implied that Blackstone had deliberately put his prejudices, and perhaps his ambition, before the truth. It was just as well that ‘the impotent breath of an English lawyer’ could not make vanish ‘the great Constitutional Rights of some Millions of loyal Irish Subjects’. Unlike Curry, the Inquiry made its case against the penal laws and for the oath of allegiance without criticising Blackstone’s comments on religion. As with Curry, however, it, praised Blackstone, as ‘an Ornament to Mankind, and an Honour to his Country’, explaining that it was necessary to critique him because ‘so great a Man’ held such influence.24 The Capuchin priest Arthur O’Leary, who returned to Ireland in 1771 following twenty-four years in France, quickly established himself as a prominent advocate of the Catholic cause. He supported the 1774 oath of allegiance.25 In 1780, the founder of Methodism, John Wesley, wrote to the Dublin newspaper the ­Freeman’s Journal, defending Lord George Gordon’s Protestant Association, which had been established to seek the repeal of the Catholic Relief Act of 1778 (18 Geo. III, c. 60) that removed a number of restrictions on Catholic landownership and punishments for Catholic clergy and schoolmasters in England and Wales. Wesley 21 [Anon.], An Inquiry into the Laws Affecting the Popish Inhabitants of Ireland, preceded by a short political analysis of the history and constitution of Ireland, in which the rights of colonists and planters are briefly mentioned, the nature of the connection between England and Ireland deduced from the time of Henry II and a few observations made on the policy of the laws that restrain the trade of Ireland, with some hints respecting America (Dublin, 1775), advertisement. 22  T Leland, History of Ireland from the invasion of Henry II, with a preliminary discourse on the ancient state of that kingdom (1773) vol 1, 153. Much of Leland’s account is quoted in Inquiry 20 ff. 23  Inquiry 22–23. 24  ibid 44–45. 25  J Kelly, ‘O’Leary, Arthur (1729–1802)’, Oxford Dictionary of National Biography. O’Leary’s Loyalty Asserted. Or, the New Test Oath Vindicated (1776) established his loyalist credentials.

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warned that on account of their doctrine that no faith should be kept with heretics, Catholics could give no security for their allegiance, and so should not be trusted with any public or political role ‘by any government Protestant, Mahometan, or Pagan’.26 The first of the Catholic Relief Acts for Ireland had also been passed in 1778, allowing Catholics better access to land and to serve in the armed forces, a matter of urgency given the American Revolutionary War. In writing against ­Wesley, O’Leary both condemned Blackstone’s opinions on religion and citizenship, and sought to use Blackstone to support his own cause. O’Leary constructed his argument from an eclectic mix of sources. Discussing Jan Hus, whose case had provided the original declaration that no faith need be kept with heretics, he essentially gave the contemporary Catholic church’s version, namely that Hus had abused the safe conduct promised him by his King to spread doctrines dangerous to church and state, and been punished.27 O’Leary said that it was the likes of Hus that Blackstone had in mind when he condemned the ‘dreadful effects’ of religious bigotry as seen in the Anabaptists in Germany and Scottish Covenanters (O’Leary tactfully omitted Blackstone’s reference to the Puritans in 1640s England).28 O’Leary also deployed discourse of the Enlightenment to attack Gordon’s supporters. ‘In an enlightened age, when the cheerful eyes of philosophy and religion cannot bear the sight of frantic fanaticism, banished from all quarters of Europe, it found shelter among you, with its distorted features, and numerous train of calamities and evils.’29 If Gordon’s claims that Catholics simply did what popes and priests told them, and were not bound by oaths or conscience were correct, then Irish society (and others) could not function. The very existence of functioning polities with majority Catholic populations throughout Europe disproved them, he argued. It was the Protestant Associations who violated the laws of civil society and the sacred rights of nature.30 O’Leary was partly responding to Blackstone’s claim that Catholics always sought to place themselves outside the authority of the civil power.31 Blackstone, ‘the learned expositor of England’s common law’, had been ensnared by ‘vulgar delusion’ when it came to the Pope’s authority over Catholics in Britain and Ireland, which was spiritual alone. Once again, an Irish critic acknowledged Blackstone’s authority on the law, but accused him of failing to move beyond popular prejudices regarding religion, loyalty, and citizenship. A Church of Ireland minister’s refutation of O’Leary cited Blackstone’s argument

26  A O’Leary, Mr. O’Leary’s Remarks on the Rev. John Wesley’s Letters in Defence of the Protestant Associations of England. To which are Prefixed, Mr. Wesley’s Letters (Dublin, 1780) 2. Wesley’s letter dated from January 1780, well before the infamous anti-Catholic Gordon Riots of June. 27  Remarks 25–31. 28  Quoted in Remarks 27; Blackstone, Commentaries vol 4, 68-9 [103]. O’Leary also paraphrased some of Blackstone’s discussions of penal laws and witchcraft: Commentaries vol 4, 37–40 [56–61]. See Remarks 27–28, including fn. 29  ibid 54. 30  ibid 55–56. 31 Blackstone, Commentaries vol 4, 72–78 [108–18].

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in Book IV on public wrongs that priests renounced their temporal sovereign on taking orders, reminding us that Blackstone’s suspicions were still shared by many Irish protestants.32 O’Leary’s example of using Blackstone would be followed ­during a later Catholic campaign. By 1792, the aristocratic-clerical leadership of the Catholic Committee had been shunted aside by a more militant group dominated by prosperous ­merchants, several of whom had links to the radical United Irishmen. Hoping ultimately for Catholic emancipation, their immediate goal was the removal of the remaining penal laws and acquisition of the franchise. A large proportion of the political nation reacted angrily, and the doctrine of Protestant Ascendancy—the idea that political power and government offices must remain exclusively in the hands of adherents of the Established Church of Ireland—became a rallying cry for hardline supporters of the status quo.33 Sectarian relations worsened, with violence breaking out in some areas. The British government used its influence in the Irish Parliament to push through a Catholic Relief Act which opened up the professions and Trinity College Dublin to Catholics, but the vote was withheld amid many warnings in Parliament from conservatives that the Catholics should be grateful for this act, and ask for no more. The Catholic campaign continued. The Catholic priest John Nassau used Blackstone to help argue for enfranchisement. Nassau sought to prove that enfranchisement would endanger neither church nor state. He used Blackstone’s arguments on what it meant to be free (with and w ­ ithout attribution). He deployed Blackstone’s argument that for a people to be free they had to compose one branch of the legislature, quoting Blackstone directly. It was ‘repugnant to reason’ to claim that a people who were taxed and lived under laws made by men who were their masters, and not their representatives, were free.34 Nassau therefore used Blackstone to argue, in effect, that the status quo in Ireland violated the basic principles of the constitution. This formed part of a concerted effort by Catholic activists to annex the dominant political language of official Irish political culture to their cause. Following the acquisition of legislative independence in 1782, it became commonplace among both supporters and opponents of government to claim that Ireland now enjoyed all the benefits of the British constitution of 1688, regarded as the best in the world. The Catholics portrayed themselves as seeking the benefits of that constitution, and thus to preempt allegations that they sought to overturn it. It made perfect sense to deploy

32  [‘A Protestant Divine of the Church of Ireland’], An Impartial Enquiry; Whether the Two Propositions, to be abjured by the oath of abjuration, are doctrines of the church of Rome (Dublin, 1780) 10. 33  The term had been employed previously, but its use multiplied in 1792 with grand juries, corporations, and other representative organs launching a concerted campaign to protect it. On the term itself, see J. Kelly, ‘Eighteenth-Century Ascendancy: A Commentary’ (1990) Eighteenth-Century ­Ireland 173–87, and WJ McCormack, The Dublin Paper War of 1786–1788: A Bibliographical and Critical Inquiry (Dublin, 1993) for summaries of their debate on the issue. S Small, Political Thought in Ireland, 1776–1798: Republicanism, Patriotism and Radicalism (Oxford, 2002) 202–06. 34  J Nassau, The Cause of the Roman Catholics Pleaded, in an Address to the Protestants of Ireland (Dublin, 1792) 17–18; Blackstone, Commentaries vol 1, 105–06 [154].

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one of the most respected of all commentators on that constitution, even if it was to argue for something that Blackstone had himself opposed. Nassau sought to annex Blackstone to the Catholic cause, but a more radical pamphleteer singled out Blackstone’s influence as one of the things standing in the way of emancipation and parliamentary reform. ‘Well-meaning men’ depended ‘too much on the visionary statement of our constitution, as given by foreigners [ie Montesquieu and De Lolme] and by Blackstone’. People needed to embrace ‘a perfect representation of the people’ to overcome Ireland’s myriad economic, social and religious problems, and no longer allow themselves to be blinded by those like Blackstone who mispresented the corrupt reality of the existing ­constitution.35 This pamphlet was addressed to the Whigs of the Capital, a radical group much less socially elevated than the Irish Whig Club proper, and from which the ­Dublin United Irishmen emerged. In their official publications, neither the Whigs of the Capital nor the United Irishmen engaged with Blackstone, who stood for the ­principles of a constitution they sought to overturn. Discussion of Blackstone was therefore largely confined to those who broadly accepted the constitution, even if they wished to reform it.

III.  Irish Political Rights Blackstone’s attitude to religion and citizenship provoked criticism across several decades, but it was his account of the powers of Westminster that attracted the most criticism in Ireland. This was not just about Westminster’s supremacy over Ireland: Blackstone’s argument that ‘a supreme, irresistible, absolute, uncontrolled authority’, an ‘absolute, despotic power’, must be located somewhere in all governments also proved controversial, especially as so much Irish political discourse was formed of the political languages of ancient constitutionalism, natural rights, and classical republicanism.36 Blackstone’s statement that while the constitution lasted, ‘the power of parliament is absolute and without control’ was also a cause of contention, as was his attitude towards 1688 and Locke’s Two Treatises of Government (1689). His Irish critics accused Blackstone of understanding neither the constitution nor the principles on which it was based. Blackstone’s most engaged and intellectually sophisticated Irish critic was Charles Francis Sheridan. Sheridan was the son of the famous theatre manager Thomas Sheridan, and brother of the politician and playwright, Richard B ­ rinsley Sheridan.37 Like his brother he was a Whig, and became an Irish government

35 

Two Letters to the Whigs of the Capital (Dublin, 1792) 16. vol 1, 39–38, 107 [49, 156]; Small, Political Thought, identifies these as three of the five main political languages of Irish political thought. 37 EM Johnston-Liik, ‘Sheridan, Charles Francis (1750–1806)’, Oxford Dictionary of National Biography. 36 Blackstone, Commentaries

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­ fficial after Lord North’s fall in 1781. However, he remained in his post after Pitt o came to power, and unlike his brother, he supported Protestant Ascendancy and counter-revolution in the 1790s. When Charles Francis published his Observations on Blackstone’s doctrine on the powers of the British Parliament in 1779, he had already established a reputation with his History of the Late Revolution in Sweden (1778), during which he been a part of the British embassy. Having gone to study law in Lincoln’s Inn in 1775, Sheridan would be called to the Irish bar in 1780. His account of Gustav III’s coup in Sweden in 1772 proved his Real Whig credentials (ie it emphasised the dangers to liberty from the executive, which must always be treated with extreme suspicion and vigilance if the free government created by the contract between ruler and ruled in 1688 was to be preserved). It explained the revolution and the lack of opposition to it as the result of a free people growing complacent about its liberties and allowing the monarch to corrupt the legislature. The warning about the influence of the Crown in Westminster was clear, but made explicit anyway: ‘This revolution furnishes us with a striking, and I may add, a useful instance, of the fatal effects of corruption; for even in Great Britain corruption has had its advocates’.38 Sheridan’s Observations on Blackstone were rooted in the same Real Whig principles, added to those of Irish patriotism.39 Sheridan’s Observations were published in the middle of a struggle between on the one hand patriot politicians and a mobilised Irish public opinion— represented most obviously and most menacingly by tens of thousands of armed volunteers who had formed as a result of the withdrawal of troops from ­Ireland to fight in America and then turned their attention to political questions— and the London government on the other. At stake was Westminster’s right to ­legislate for Ireland. The dispute originally centred on laws restricting Ireland’s ­ability to engage in international trade, but it soon encompassed the nature of the ­connection between the two kingdoms. The demand was not for separation, but legislative independence, ie the right of the Irish Parliament exclusively to make laws for Ireland. The Irish patriot argument was that the sister kingdoms should be exactly that—equals united by a common monarch and common interests, with neither dominating the other. They sought to enact the constitutional theory of Irish patriotism. Blackstone was therefore a natural target. Sheridan explained that he wished to correct Blackstone’s mistaken theory of the constitution. This was all the more pressing because Blackstone’s interpretation had gained such wide acceptance, his being the only book on the law read

38  CF Sheridan, A History of the Late Revolution in Sweden (London, 1778) 402. For further discussion of this work, see Small, Political Thought 91–92, and U Gillen, ‘Constructing Counter-Revolutionary History in Late Eighteenth-Century Ireland’ in M Williams and SP Forrest (ed), Constructing the Past: Writing Irish History, 1600–1800 (Woodbridge, 2010) 140–141. 39  On eighteenth-century Irish patriotism, see J Leerssen, ‘Anglo-Irish Patriotism and its European Context: Notes Towards a Reassessment’ (1988) 3 Eighteenth-Century Ireland 7–24; P Kelly, ‘William Molyneux and the Spirit of Liberty in Eighteenth-Century Ireland’ (1988) 3 Eighteenth-Century ­Ireland 133–48; SJ Connolly, ‘Precedent and Principle: The Patriots and their Critics’ in SJ Connolly (ed), Political ideas in Eighteenth-Century Ireland (Dublin, 2000) 130–58.

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by non-specialists, and because the country gentlemen who were so vital a part of Parliament put so much faith in a writer of his great reputation. Even some of the most zealous adherents of the cause of liberty praised Blackstone’s vision of the constitution. The existence of the constitution was dependent upon the public understanding liberty, and if they did not, if they believed that Parliament should hold more power than it ought, then Sweden demonstrated what could happen.40 Sheridan praised Blackstone’s work on the common law in general but his writings on the constitution were ‘confused, inconsistent, and … frequently absurd’. ­Sheridan insinuated that this was because they had been written with an eye to securing a seat on the bench.41 His main target was Blackstone’s advocacy of the ‘uncontrolled, absolute, despotic power of Parliament’.42 To refute Blackstone, Sheridan offered his own analysis of three key areas: the nature of liberty, the true principles of the constitution, and the extent of the power of Parliament. In doing so, he provided his own theory of representative government, of the rights of nations, and of the workings of a ‘free empire’, such as that of which Ireland and Britain ought to be a part.43 Sheridan updated Molyneux, but his work offered much more. To prove Blackstone’s inconsistency, Sheridan sat different quotations from Book I of the Commentaries facing each other (editing the quotes when it suited him). For example, he contrasted Blackstone’s claim about Parliament’s power to do anything not naturally impossible with his statement that no human legislature had the power to destroy natural rights, and his claim that if Parliament fell into misgovernment, the subjects would be left without remedy, with his list of the means the people had of vindicating their rights, ranging from the law courts to armed rebellion.44 Sheridan said it was a nonsense to suggest that despotic power could be entrusted, as an entrusted power could be reclaimed, and something that could be reclaimed was by definition not despotic.45 Blackstone’s arguments were, Sheridan claimed, illogical, and not to be trusted. To bolster his case that Blackstone misunderstood the constitution, Sheridan turned to a still greater authority, Locke, whose doctrine was, ‘the first article in the political creed of every freeman’.46 Blackstone accepted in theory Locke’s argument that the trust reposed in the legislature reverted to the people when it was abused, but said it could not be accepted in practice, as it would mean the destruction of all existing law, and having to start again from scratch. No society, he said, would

40  CF Sheridan, Observations of the Doctrine Laid Down by Sir William Blackstone, Respecting the Extent of the Power of the British Parliament, Particularly in relation to Ireland. In a Letter to Sir William Blackstone (Dublin, 1779) 3–4, 24. 41  ibid 6,7, 9. 42  ibid 3. 43  ibid 56. 44  ibid 10–12. 45  ibid 14. 46  ibid 20.

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agree to this.47 Sheridan argued that 1688 proved Locke correct and Blackstone wrong. 1688 had, he said, been exactly a case of power devolving back to the people, and instead of producing a return to the state of nature or the destruction of the constitution, the result was that the rights of the people had been more firmly established. Blackstone’s error lay in mistaking the creatures of the constitution— the King, Lords and Commons—for the constitution itself, and in thinking that changing one meant changing the other.48 Sheridan agreed with Blackstone, and so many other constitutional theorists, that the purpose of society was to allow individuals to enjoy their natural rights, even if, highly unusually, Sheridan argued that people did not surrender part of their natural liberty when entering society.49 The three primary natural rights were the right of personal security, the right of personal freedom in so far as one did not interfere with the rights of others, and the right of legitimately-acquired private property. ‘The full complete possession of these, constitutes liberty.’50 A fourth natural right implicitly arose from these three, namely the right to repel invasions of these rights. This was the purpose of government, which derived its authority from this fourth right. A government could only be a free government if it lacked the ability to invade these rights itself.51 However, the fourth right differed from the others in that it was an act of power and not an act of liberty.52 In Britain and Ireland, exercising the fourth right involved elections, which preserved the constitution by guarding against encroachments on the people’s rights by the governors. However, any form of limiting the duration of the legislature would do—it was the limitation that represented the exercise of the fourth natural right. Blackstone, like many other theorists, was wrong to believe that natural liberty was the freedom to do whatever one pleased regardless of others, and that this was surrendered upon entering society. Violating the natural rights of another, Sheridan said, was an act of power, not of natural liberty. Acts of power were constrained by society, not acts of liberty.53 Government must protect, not violate, the rights of the people. Legitimate ­government required an identity of interest between the represented and their representatives. Without it, representation was an illusion. Sheridan wondered whether an identity of interest simply could not exist between the legislature of one community and the people of another. If not, then a foreign legislature making laws for a people was a usurpation of the fourth natural right that guaranteed a people liberty. In other words, Westminster claiming sovereignty over the ­people of Ireland, who had delegated the exercise of their fourth natural right to a

47 Blackstone, Commentaries 48 Sheridan, Observations 49 

vol 1, 108 [157]. 20–22.

ibid 31. ibid 34–35. Ibid 35–36, 41. 52  ibid 52; Sheridan took this idea from Jean-Louis De Lolme. 53  ibid 37–38, 53–54. 50  51 

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­ ifferent Parliament, was a violation of their natural rights, and thus illegitimate, d the purpose of government being to preserve and not violate natural rights.54 Like Molyneux before him, Sheridan therefore opposed the doctrine of natural rights to Westminster’s claims to sovereignty over Ireland. Following Molyneux, he used this doctrine against the very idea of a right of conquest. Just as no individual could legitimately invade the rights of another, so too with peoples. F ­ ollowing Molyneux once more, Sheridan said that if the right of conquest did exist, it could not apply to the descendants of the conquerors, who now owned 90% of the country.55 Sheridan thus dispensed with any grounds for Westminster exercising a legitimate sovereignty over Ireland, and he offered a very different vision to ­Blackstone’s of how the empire should function. ‘In a free empire’, Sheridan claimed, one community bore the same relation to another as individuals within the same community. A free empire was not one where the largest state was free in itself while being sovereign over the smaller states.56 Responding to expected objections that the empire required a strong presiding power and that it must reside in the largest state, Sheridan stated that a free empire meant that the constituent parts acted towards foreign powers as one. It did not mean that there should be an identity of internal government and laws. Such a thing was an absurd suggestion for an empire composed of free peoples with their own legislatures, and could be effected only by ‘the iron hand of d ­ espotism’. Under the constitution, it was necessary only that each component was intimately connected with the largest state, not dependent on it. They should be linked by the same relation to the supreme executive power that could speak for them all in foreign relations and protect the interests of each community, including from the selfishness of any individual state that might harm the rest. This would be the best guarantee of the unity of the empire.57 One need only look at America to see the evil consequences for the empire of Blackstone’s ‘doctrine of the supremacy and omnipotence of the British Parliament.’58 One of the reasons for writing his work, Sheridan said, was to persuade those likely to form a future ministry to adopt a different policy to that of Blackstone and Lord North, lest something similar ­happen in Ireland.59 Blackstone provided the perfect foil for the arguments Sheridan wanted to make. Sheridan offered a Real Whig view of the constitution and powers of parliament, and an Irish patriot view of Irish history, of the British-Irish relationship, and of how the empire ought to function. Blackstone stood in opposition to all of these, and his prominence made him an attractive target as it would automatically raise the profile of Sheridan’s arguments, which, given his unusual take on the nature

54 

ibid 54–56. ibid 46–49. 56  ibid 56. 57  ibid 61–65. 58  ibid 71. 59  ibid 29–32. 55 

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of liberty, natural rights, and representation, might otherwise have attracted much less attention. Whether Sheridan expected to change the minds of putative future ministers and country gentlemen is questionable, but for an Irish MP with links to the Whigs, criticising Blackstone perhaps offered a means of attracting attention before the anticipated change of government. Sheridan’s criticisms of Blackstone proved relatively popular. They were published in two London editions, in Dublin, and in Cork, and cited by others supporting legislative independence.60 Sheridan’s was an intellectually ambitious work which drew on a range of political languages, authors, and influences to fashion an original theory of representation as part of a broader statement of the emerging consensus in Irish politics about the preferred relationship with Britain, which it helped to shape. Other patriots criticised Blackstone on similar grounds. Frederick Jebb, in an influential series of letters written under the name of Guatimozin, the last Aztec emperor, accused Blackstone of justifying a British act of Parliament that made the Irish slaves (ie the Declaratory Act) to enhance his career. ‘What a prostitution of honour, of principles, and of talents!’61 The radical and popular Letters of Owen Roe O’Nial (1779), which exhibited separatist leanings, mocked Blackstone as a ‘courtier’ who believed authority was always right, and opposition to it rebellion— whether that was the Barons of 1215, Martin Luther, or Jesus himself. It argued that Blackstone’s logic would render the Irish slaves of the British, to be disposed of as they pleased.62 Henry Grattan, the leading figure in the ‘revolution of 1782’, denounced Blackstone in the Irish Parliament for ‘childishly’ arguing that the connection between Britain and Ireland was one of conquest, not compact. Grattan echoed earlier criticisms that Blackstone never gave Ireland serious consideration, and that he supported a right of conquest that did not exist.63 None of his other critics in this period gave Blackstone much detailed thought, but their rejection of his ideas were clear and, like Sheridan’s, were rooted in a belief that he supported the usurpation of the rights of the people of Ireland as individuals and as a nation. Following the ‘Renunciation Act’, Blackstone largely disappeared from Irish political discourse, though he was called upon occasionally to lend weight to a variety of political arguments. His work was sometimes cited in Parliament to support arguments but was not a prominent feature of debates. Blackstone’s doctrine that

60  eg, O’Leary, Remarks 41; The Alarm; or, the Irish Spy. In a series of letters on the present state of the affairs of Ireland, to a lord high in the opposition. Written by an ex-Jesuit, employed by his lordship for that purpose (Dublin, 1779) 42–43; TB Clarke, An Essay on the Powers of Parliament, the Right of Making Laws, and the Individual Declarations of this Kingdom. Written by Thomas Brooke Clarke, while a student at Trinity College Dublin, and now addressed to the Right Honourable the Earl of Carlisle (Dublin, 1781) 32. 61  The Letters of Guatimozin, on the Affairs of Ireland, as first published in the Freeman’s Journal, and which having since been re-printed in London, have gone through several editions there. To which are added, the Letters of Causidicus, that Accompanied the Essays of Guatimozin in their first appearance (Dublin, 1779) 48. 62  J Pollock, Letters of Owen Roe O’Nial ([Dublin] IRELAND, 1779) 13, 22. The stated place of ­publication made a political point. 63  Parliamentary Register 2nd edn (Dublin, 1784) vol 1, 267.

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no Parliament could bind its successor was used by an Irish patriot to argue against Pitt’s commercial propositions, suspected of being the stalking horse for a union.64 In 1783, an advocate of parliamentary reform cited Blackstone’s ­comments that a more complete representation of the people would be welcome.65 In the very different circumstances of 1794, two Belfast Whigs trying to steer a path between revolution and counter-revolution cited Blackstone both to call for the abolition of rotten boroughs and oppose universal manhood suffrage.66 ­Others cited him in favour of universal manhood suffrage.67 It was only when the existence of the Irish Parliament was called into question with the proposal for union in 1798 that Blackstone was drawn on to any significant extent once more. That December, Edward Cooke, under-secretary in the Irish government, ­published Arguments for and against an Union, Between Great Britain and Ireland Considered at the behest of William Pitt, who wished to seize the opportunity to enact a union.68 Cooke sparked an enormous, and enormously angry, debate within a political nation now split on what had united it—the importance of the Irish Parliament. One of the issues under debate was whether the Irish Parliament had the constitutional right to abolish itself. Both sides turned to Blackstone to help justify their arguments. Perhaps the earliest use of Blackstone was by an anonymous barrister who argued in late 1798 that a union would not change the constitution of Ireland ‘in substance and in spirit’. Blackstone had shown that while the constitution lasted, the power of Parliament was absolute. The Irish Parliament therefore had the right to pass the union.69 In response, George Barnes, an anti-union barrister, used Blackstone against the union, arguing that it would violate the people’s rights as it involved one Parliament denying equal authority to its successors. Blackstone had demonstrated this when he said that any violation of the fundamental conditions of the Anglo-Scottish union by Westminster did not dissolve the union. The constitutional rights of Parliament, Barnes argued, therefore no longer existed under the union. A union would destroy Ireland’s constitution, and Blackstone said the

64  The Account Settled! Or a Balance Struck between the Irish Propositions agreed to in the House of Commons of Ireland on the 12th of February 1785, and the English Resolutions entered into by the House of Commons of England on the 30th of May 1785 (Dublin, 1785) 52, citing Blackstone, Commentaries vol 1, 66 [90]. 65  Letter to Henry Flood, Esq. on the Present State of Representation in Ireland (Belfast, 1783) 18 citing Blackstone, Commentaries vol 1, 113–14 [166]. 66  Belfast Politics (Belfast, 1794) 234–41, citing Blackstone, Commentaries vol 1, 113–15 [165,168]. 67  W Drennan, A Letter to his Excellency Earl Fitzwilliam, Lord Lieutenant &c. of Ireland (Dublin, 1795) 47; [A Citizen], Observations on the Meaning of the Words Protestant Ascendancy and Orangemen; including some strictures on other parts of, the answer of Patrick Duigenan, LLD Justice of the Prerogative Court, to Mr. Grattan. Addressed to the Learned Doctor (Dublin, 1798) 52–54 argued that Blackstone had in Commentaries vol 1, 113 [165] admitted the principle of people being represented, not property. 68  On the passing of the union, see PM Geoghegan, The Irish Act of Union: A Study in High Politics 1798–1801 (Dublin, 1999). On the debate, WJ McCormack, The Pamphlet Debate on the Union between Great Britain and Ireland 1797–1800 (Dublin, 1996). 69  [A Barrister], Letter to Joshua Spencer, Esq. Occasioned by his Thoughts on an Union (Dublin, 1798) 40–41.

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authority of Parliament ended with the constitution. It therefore had no right to pass the union.70 Subsequent usages of Blackstone on both sides followed the basic outlines of these arguments. The pro-union speech in the Irish Parliament of another barrister, William Cusack Smith, in January 1799 was the most sustained engagement with Blackstone in the union debates. Smith, who was a supporter of Catholic Emancipation, had previously opposed the union, and his change of heart may have had something to do with Pitt’s intentions to pass the two measures together. Like all ­published parliamentary speeches, the speech reflected what Smith wished he had said as much as what he had delivered in Parliament. Large parts of Smith’s arguments and examples were drawn from Blackstone, demonstrating how he thought Blackstone would add credibility to his new position, both in Parliament and the wider public sphere. Smith, who attacked a number of the fundamental assumptions of official Irish political culture since 1782, argued that the existence of two legislatures produced a tendency towards separation, and that union must be enacted now to prevent this given the war with the French Republic.71 Blackstone had demonstrated the legitimacy of the Scottish union, and ‘saved us the trouble’ of even asking whether the Irish Parliament had the power to pass a union.72 Union would change, not subvert the constitution—Ireland would still be governed by a King, Lords and Commons, with Ireland having her due weight in the new Parliament. The principles of the constitution would remain intact, the means of enacting them would differ slightly. Smith used precedents for Parliament changing the constitution from Blackstone, and cited Coke and B ­ lackstone to justify the absolute power of Parliament to do so.73 The union would not rob subsequent Parliaments of their power because Ireland’s King, Lords and ­Commons would retain the same powers in the new arrangement. Blackstone had already demonstrated the continued existence of the constitution in the Scottish union.74 Smith even endorsed one of Blackstone’s more controversial statements, arguing that every constitution indeed needed despotic power lodged somewhere. If not vested in Parliament, where it being shared between the three branches prevented tyranny, then it must be lodged in the populace. That would destroy 70  G Barnes, The Rights of the Imperial Crown of Ireland Asserted and Maintained, against Edward Cooke, Esq. reputed author of a pamphlet, entitled, Arguments for and Against an Union, &c, in a letter to that gentleman. The second edition with additions (Dublin, 1799) 58, 73–74. Barnes referenced a fn added to the 2nd edition of Commentaries, vol 1, 323 [2nd edn, 97] where Blackstone said a state must have the right to change ‘every part of its laws’; also cited by GS Smyth, First Letter to a Noble Lord on the Subject of the Union, 2nd edn (Dublin, 1799) 22. 71  WC Smith, The Substance of Mr. William Smith’s Speech on the Subject of a Legislative Union between this country and Great Britain; delivered in the House of Commons, on Thursday January 24th, 1799, and now reduced to the form of an address to the people of Ireland, 5th edn (Dublin, 1799) 4. 72  ibid 25. 73 ibid 18–20. Anti-unionists argued that union would destroy the constitution and enact tyranny by leaving only one branch of the Irish legislature intact. C Molyneux, A Reply to the Memoire of Theobald McKenna, Esq. on some Questions Touching the Projected Union of Great Britain and Ireland (Dublin, 1799) 16–17, citing Blackstone, Commentaries vol 1, 149. 74  ibid 32.

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the c­ onstitution, rendering Ireland ‘a despotic democracy’.75 For Smith, the union accorded with the true principles of the British constitution as expounded by Blackstone, Coke and Montesquieu. He painted a picture of Ireland under a union as a prosperous country with religious divisions left in the past. Blackstone lay at the heart of almost all his major arguments. Blackstone also lay at the heart of a rebuttal of Smith in Parliament. John Egan argued that anyone who believed Blackstone about the powers of Parliament to vote itself out of existence also believed Blackstone that Westminster had had the right to bind Ireland (words chosen deliberately to echo Molyneux).76 Egan’s ­argument was clever, as this was, of course, something that no member of the Irish Parliament could admit. Egan drove the point home by saying that Westminster had demonstrated Blackstone’s error with the ‘Renunciation Act’. While the union debates caused Irish political writers to explicitly draw on Blackstone once more, only a very small proportion of the more than three ­hundred pamphlets published on the question did so, probably under 5%. ­However, Blackstone’s arguments were more influential than this number suggests. Given the prominence of barristers and barrister-politicians on both sides of the debate, and the fact that the Commentaries were now part of the educational background of the broader elite, Blackstone’s arguments on the powers of Parliament and on the Scottish union helped shape the terms of the debate. The argument that Parliament lacked the power to vote itself out of existence did not gain wide traction. The union was originally rejected for a range of reasons, ranging from nationalism to the desire to extract more generous payment from government for one’s vote. Believing the Irish Parliament should not abolish itself was not the same as believing it lacked the right to do so. As Smith noted, believing this meant that the rebels won at Culloden (ie that 1688 had been illegitimate), and the Irish political elite, like the British, could never admit that.77 It was no accident that it was mainly lawyers who drew on Blackstone during the union debate in an attempt to give authority to their arguments. But these arguments were on the whole not determined by their understanding of Blackstone—rather he represented a means of gilding pre-existing arguments, for or against a union, to which they were already committed.

IV. Conclusion Irish critics of Blackstone focused primarily on combatting Blackstone’s assertion of Westminster’s sovereignty over Ireland by right of conquest. They felt it was important to do so because of his prominence in defining the principles of the British and Irish elites. If they could undermine Blackstone, they believed, the 75 

ibid 39. Belfast Newsletter, 8 February 1799. 77 Smith, Speech 20. 76 

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rest of their arguments would be more easily accepted. They challenged Blackstone’s understanding of Irish history, denying a conquest had ever taken place, but also rooted their arguments in the language of natural rights, denying the existence of a right of conquest. They attacked Blackstone’s understanding of the constitution and the absolute power of Parliament, instead offering an account of its legitimate powers rooted in Real Whiggery. While much Irish criticism of Blackstone was superficial, Sheridan produced a much more meaningful critique that led him to offer some original ideas about natural rights and representation, and the nature of the empire. The Catholic critics of Blackstone also rejected the notion of conquest; they centred their criticisms on the idea that he did not understand Irish history and especially the accusation that he thought about Ireland and about ­Catholicism only in the most superficial and prejudiced way (an accusation ­Grattan made on the issue of conquest). Thus, the two major groups of Blackstone’s Irish critics voiced similar criticisms, but both also felt it necessary to mix their criticisms with an acknowledgement of Blackstone’s genius. After 1782, the main impulse to criticise Blackstone was gone. He now served primarily as a source of authority that could be drawn upon by all sides of the debate on a range of political issues. This was how engagement with Blackstone mainly functioned during the union debates, when discussion of his ideas reached a level not seen in nearly two decades. Fundamentally, however, Blackstone was being used after 1782 in highly selective ways to support arguments in which the engagement with him was often negligible. However, Smith’s speech to Parliament reminds us that many of the fundamental constitutional assumptions of the elite had been shaped, at least in part, by Blackstone. Combined with his influence on the elite, he had a greater influence on Irish political culture, at least in its constitutional manifestations, than is revealed by studying debates directly engaging with his arguments. More work on Irish constitutional thought would most likely reveal this. However, we should also remember that the mass revolutionary movement of the 1790s, the United Irishmen, essentially ignored Blackstone, as they did not seek to make their case on the grounds of the British constitution, but instead called for its overthrow. Locke’s rhetoric of rights was useful for them, but not Blackstone’s justification of the laws.78 Blackstone’s Irish critics, then, were a diverse group, often divided among themselves, and often engaging with him at only a superficial level. ­Nevertheless, that engagement produced some of the more interesting political thought in late ­eighteenth-century Ireland, and helped shape thinking on the major political question of the era, Ireland’s relationship with Britain. Irish criticism of B ­ lackstone helped reshape Irish patriotism in a revolutionary age.

78  On United Irish ideology, N Curtin, The United Irishmen: Popular Politics in Ulster and Dublin, 1791–1798 (Oxford, 1994); K Whelan, The Tree of Liberty: Radicalism, Catholicism and the Construction of Irish Identity, 1760–1830 (Cork, 1996); J Smyth, Men of No Property, 2nd edn (Basingstoke, 1998); U Gillen, ‘Constructing Democratic Thought in Ireland in the Age of Revolution, 1775–1800’ in J Innes and M Philp (ed), Reimagining Democracy in the Age of Revolutions: America, France, Britain, Ireland, 1750–1850 (Oxford, 2013) 149–61.

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7 Blackstone, Family Law and the Exclusion of the Half Blood in Inheritance TIM STRETTON

From the end of the thirteenth century until 1833, English inheritance rules excluded half bloods from intestate succession. If a son or daughter died without making a will, their lands held in fee simple could not pass to a half brother or sister.1 Nor could they pass to parents and in the absence of any other heir these lands escheated (ie were forfeited) to the Crown or superior lord. By Blackstone’s day this rule had little relevance, particularly among the ranks of the privileged Oxford students who attended his lectures. Most property holders of gentry or elite status settled their estates by means of wills, marriage settlements or trusts, immunising them from intestate rules. Furthermore, even in the absence of these precautions, intestates’ lands could still pass to half siblings.2 This was because the Crown showed little interest in this kind of escheat and in practice the rule usually applied only if one potential heir invoked it against another. Blackstone provided an extended analysis of this legal curiosity in Book II of the Commentaries, and singled it out in Book I to illustrate the key legal doctrine, ‘that precedents and rules must be followed unless flatly absurd or unjust’.3 The faith he placed in the exclusion provides fuel for the longstanding debate about whether he was a leading figure in the British manifestation of the eighteenth-century Enlightenment, or alternatively ‘almost uniformly the apologist’ for the law’s ‘most obnoxious parts’.4

1  The only exception was that the lands of a daughter who died intestate could pass to her half sister(s) as coparcener(s) under the rules of primogeniture. W Blackstone, Commentaries on the Laws of England, Book II: Of the Rights of Things, ed S Stern and W Prest (Oxford, 2016) 156 [232] here and below, page numbers of the first edition (1765–1769) are given in square brackets. TFT Plucknett, A Concise History of the Common Law, 5th edn (London, 1956) 721. 2  See, eg, W Page and PH Ditchfield (ed), A History of the County of Berkshire, Victoria County ­History, vol 4 (London, 1924) 183–200. 3 W Blackstone, Commentaries on the Laws of England, Book I: Of the Rights of Persons, ed D Lemmings and W Prest (Oxford, 2016) 53 [70–71]. 4  W Prest, William Blackstone: Law and Letters in the Eighteenth Century (Oxford, 2008) 9; G Long, Reflections on Certain Parts of the Law of England (London, 1827) 18.

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I.  Blackstone on Exclusion In his lectures, his publications and his judicial decisions, Blackstone fully endorsed the half-blood rule. He acknowledged in the Commentaries that ‘This total exclusion of the half blood from the inheritance, being almost peculiar to our own law, is looked upon as a strange hardship by such as are unacquainted with the reasons on which it is grounded’.5 However, he then set about acquainting his readers with those reasons, not simply explaining the exclusion’s genesis but also justifying its continued existence. Blackstone’s rationale for the exclusion rested on two related propositions, both of which (as we shall see) he borrowed from others. Firstly, he suggested that the rule was a logical consequence of feudal land tenures, which traced interests in land back to a first holder or purchaser and centred on ‘the feudal covenant and mutual bond of fealty’ that characterised the initial relationship between lord and tenant. In his words, ‘the true feodal reason for [the] rule was this; that what was given to a man for his personal service and merit, ought not to descend to any but the heirs of his person.’6 Secondly, Blackstone contended that the exclusion was not actually a rule of inheritance at all. Censure of the exclusion arose ‘from a misapprehension of the rule: which is not so much to be considered in the light of a rule of descent, as of a rule of evidence’. It was, Blackstone explained, ‘an auxiliary rule to carry a former into execution’, namely his fifth rule of descent, that if interest holders left no children their lands would descend to their collateral relations, ‘being of the blood of the first purchaser’.7 For Blackstone it stood to reason that ‘the half blood have always a much less chance to be descended from an unknown indefinite ancestor of the deceased than the whole blood of the same degree’. He conceded that ‘in some instances, the practice is carried farther than the principle upon which it goes will warrant’, such as when a half brother were excluded, even though the estate of his deceased brother ‘is notoriously descended from the father, and as both the brothers confessedly sprung from him, it is demonstrable that the half brother must be of the blood of the first purchasor’. In this instance, Blackstone admitted, ‘there seems no need of calling in this presumptive proof, this rule of probability, to investigate what is already certain’.8 Despite having exposed this obvious weakness in his explanation, Blackstone still defended the rule: ‘It is certainly a very fine-spun and subtile nicety: but considering the principles upon which our law is founded, it is neither an injustice nor a hardship’, because in feudal terms ‘even the succession of the whole blood was originally a beneficial indulgence, rather than the strict right of collaterals’.9

5 Blackstone, Commentaries, vol 6 

ibid vol 2, 148 [221]. ibid 153–54 [228]. 8  ibid, 155–56 [231–32]. 9  ibid, 154–55 [230]. 7 

2, 153 [228].

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Blackstone’s analysis failed to convince subsequent authors. Writing in 1880, Sir Henry Maine remarked that ‘In all the literature which enshrines the pretended philosophy of law, there is nothing more curious than the pages of elaborate sophistry in which Blackstone attempts to explain and justify the exclusion of the half-blood’.10 St George Tucker, editor of the 1803 American edition of the Commentaries, called the favouring of the whole blood an ‘absurd preference, as it has no foundation in reason or in nature’, which explained why in 1787 Congress had removed it by ordinance for the ‘territory of the United States North west of the River Ohio’.11 The nineteenth-century classicist and commentator George Long labelled Blackstone’s reasoning ‘erroneous’ and his main rationale ‘inaccurate in all its parts’.12 Thomas Swinburne found Blackstone’s justification for excluding half siblings and parents from inheritance ‘highly derogatory to the dignity of the law’ because the supposition of ‘indefinite antiquity’ on which he based it was ‘notoriously contrary to fact’. He was so incensed that he published his Thorough Elucidation of the Whole Doctrine of Descents in 1825, confessing that he ‘could not believe that the law was capable of thus abandoning the truth, for the sake of embracing, not merely a fiction, but an absolute falsehood’.13 Legal historians have been less shrill, but equally unforgiving of Blackstone. In their History of English Law Before the Time of Edward I, Sir Frederick Pollock and Frederic William Maitland rejected the idea that the rule was simply a feudal imposition introduced by the Normans, as in their view it only became a consistently applied exclusion in the fourteenth century. They characterised it simply as a revenue raiser, favoured by a Crown with a penchant for escheated estates, concluding that ‘we are not sure that any profounder explanation of it would be true’.14 William Holdsworth agreed, adding that while it ‘made clear law where before all was vague’, it was ‘barely logical’ and could produce ‘great hardship’.15 Blackstone’s severest critic, however, was the Inner Temple barrister George Sweet, editor of volume two of the twenty-first edition of the Commentaries, ­published in 1844. He devoted a thousand-word footnote to attacking Blackstone for defending the half-blood exclusion, even though ‘he fully understood the weaknesses, since he has himself taken the pains to explain and illustrate its deficiencies’. Sweet’s concerns extended far wider than the exclusionary rule itself, to Blackstone’s method and ethics: When a writer carries his determination to approve and defend whatever he finds established to the length of excusing a mere accidental blemish in the law–involving no 10 

H Maine, Ancient Law, 10th edn (New York NY, 1906) 146. G Tucker, Blackstone’s Commentaries: With Notes of Reference (Philadelphia PA, 1803) vol 3, n B, ‘Discourse Concerning the Several Acts Directing the Course of Descents’; ‘An Ordinance for the Government of the Territory of the United States, North-West of the River Ohio,’ adopted by the Confederation Congress on July 13, 1787; Library of Congress: http://hdl.loc.gov/loc.rbc/bdsdcc.22501. 12 Long, Reflections on Certain Parts of the Law of England 25, 27. 13  T Swinburne, A Thorough Elucidation of the Whole Doctrine of Descents (London, 1825) vi–vii. 14  F Pollock and FW Maitland, The History of English Law Before the Time of Edward I, 2nd edn (Cambridge, 1968) vol 2, 300–303. 15  W Holdsworth, History of English Laws (London, 1923) vol 3, 185. 11  St

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principle of policy, affecting no interest, favoring no class–by reasons which he himself acknowledges to be worthless, what value can we put upon his advocacy of more important rules of the law, or principles or precedents of the Constitution?16

Sweet then accused ‘the commentator’ of being ready ‘to insult his readers with puerile fallacies, rather than leave an old dogma unbacked’ and of cowardice in supporting a rule that he himself conceded was ‘barbarous and unjust’ in its effects. The reason Blackstone had defended this indefensible rule, Sweet suggested, was because he was so fearful ‘of favoring a precedent for innovation in more important matters’.17 That Blackstone’s own editor could be so critical offended John Dingwall Williams. Writing in 1848, he labeled Sweet ‘coarse and clumsy’ for his ‘oracular denunciation of the learned commentator’ and for giving birth ‘in the course of his chatter to the congruous metaphor, and chaste and classical expression’ of Blackstone ‘unbacking dogmas with puerile fallacies’. What prodigously critical Aristarchuses and Bentleys have the Commentaries conjured up from “the vasty deep!” Were their author to rise from the grave, he would not be able to recognise his elegant and truly classical production under the various mangled and mauled, plagiarized and patchworked forms in which it is to be found, and the mass of clumsy cumbersome and profitless annotation, often in the most motley and mongrel language, with which it is disfigured.18

Yet for all his rhetorical bluster in attacking the form of Sweet’s criticisms,­ Williams made no attempt to address their content. The truth is that Blackstone’s history was weak and his curious explanation for the half blood exclusion laughable. So how and why did he endorse the exclusion with such vigour and can he be defended against Sweet’s charge that his driving motivation was fear of innovation? The first point to note is how seriously Blackstone took the law of descents. He described it as ‘the principal object of the laws of real property in England’ and published two treatises on the subject, An Essay on Collateral Consanguinity (London, 1750) and A Treatise on the Law of Descents in Fee Simple (Oxford, 1759).19 When he came to write the Commentaries he drew heavily on these former works as he devoted 40 pages to explaining the rules of inheritance, where most earlier authors had merely stated them in three or four. Here, as elsewhere in the Commentaries, he attempted an enlightened, rational, scientific analysis of the jumbled rules of his day, and his clarity of thought on

16 W Blackstone, Commentaries on the Law of England, ed G Sweet, 21st edn (London, 1844) vol 2, 269n. 17  ibid 270n. 18  JD Williams, The Companion Book and Supplement to Blackstone’s Commentaries on the Laws of England (London, 1848) 162. Aristarchus of Samos suggested that the sun, not the earth, was at the center of the universe, contradicting Aristotle and leading to charges of blasphemy. Richard Bentley was a polemical 18th-century classical scholar and master of Trinity College. 19 Blackstone, Commentaries vol 2, 134 [201].

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some subjects is admirable. The explanation he gave for the civil, canon and ­common law’s differing interpretations of consanguinity, for example, is a tour de force of Enlightenment rationality. Having laid out the degrees of human relations in elaborate diagrams, he interpreted the differences between these legal systems according to their aims and motivations; questions of succession guided the civil law; concerns about incestuous marriages directed the canon law; and a desire to balance living relations with common ancestry in the descent of property shaped the common law. Similarly, he used the logic of common law seisin to defend the first rule of descent—that inheritance can descend to heirs but not ascend to parents—which critics ‘censured and exclaimed against as absurd, and derogating from the maxims of equity and natural justice’. On the contrary, Blackstone maintained, ‘it is founded upon very good legal reason’ arising from the automatic operation of feudal principles. When landholders died, their lands in fee simple passed to their heirs in the same way the crown transferred instantaneously from a dying monarch to the heir apparent. Having descended from parent to child, there was no way that an interest in lands in fee simple could return.20 The second point to note is Blackstone’s reliance on other authors. He was clearly influenced by Selden and Hale in regarding the customary rules of inheritance as positively created and adapted, necessitating a historical and comparative approach to understanding their origins and purposes. In addition, as Michael Lobban and others have shown, ‘Blackstone’s notion of feudalism borrowed heavily from Sir Martin Wright, who in turn built on the work of Thomas Craig’ and his ‘customary’ system was ‘one which originated in a set of positive rules, which were subsequently developed by the courts’.21 Craig, a Scot, had singled out two ‘peculiar’ English rules he described as surprising or strange (Et mirum est); the inability of parents to inherit new feuds (Feudum novum, as opposed to Feudum antiquum) from their children and the half-blood exclusion. This prompted Sir Martin Wright in his Introduction to the Law of Tenures, published in 1730, to mount a defence of both rules. It was Wright who argued that ‘the seeming hardship or absurdity rises from a misapprehension’, a mistaken belief that these were substantive rules of descent, when they were better understood as rules of ­evidence.22 It was also Wright (along with Craig and Jeffrey Gilbert) who inspired Blackstone to arrive at his distinct (but not entirely novel) defence of the rule built on probability and long use.23

20 

ibid 141–42 [210]. Lobban, A History of the Philosophy of Law in the Common Law World, 1600–1900, vol 8 of E Pattaro (ed) A Treatise of Legal Philosophy and General Jurisprudence (Dordrecht, Springer, 2007) 103; JW Cairns and G Mcleod, ‘Thomas Craig, Sir Martin Wright, and Sir William Blackstone: The English Discovery of Feudalism’ (2000) 21 Journal of Legal History 54–66. 22  M Wright, Introduction to the Law of Tenures (London, 1730) 178–80, 182–6. 23  Blackstone held Gilbert in very high esteem; M McNair, ‘Sir Jeffrey Gilbert and his Treatises’ (1994) 15 Journal of Legal History 252–68. 21  M

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II. Probability By Blackstone’s day the law of descents had long required that a claimant be next of the whole blood to the person last in possession, in lieu of actually tracing descents from a first purchaser. As Gilbert contended in his Treatise of Tenures, published posthumously in 1730, over the course of many years the original feudal donations of lands became ‘worn out’, making it ‘impossible to compute up to the first feudal marriage’. Faced with this dilemma, feudal landlords and law courts ‘inverted the computation and computed from the last possessor’. Since ‘both bloods of the first marriage were necessary to any person that would claim under the first donation’, it was required that ‘a man should be of the whole blood of the last feudary that would claim as heir to him’ for then ‘of necessity he must be of both bloods of that remote feudal marriage, where the feud was originally placed.’24 This contrasted with Matthew Hale’s acknowledgment that the half-blood exclusion barred a man from inheriting from the last possessor, ‘tho’ he might have derived it from some precedent ancestor’.25 For Gilbert, admitting a half blood where a feudal donation was ‘lost’ might have ‘carried it out’ of the family line, whereas relying on ‘the wholeblood of the last possessor’ formed the ‘utmost presumption of the right of succession’.26 From the logic of ‘necessity’ and ‘utmost presumption’ it was a short step to mathematical probability. As Blackstone explained in the Commentaries, given problems of proof and memory ‘in those rude and unlettered ages’, the law ‘substituted what Sir Martin Wright calls a reasonable in the place of an impossible proof ’. A full-blood ­sibling was ‘very likely’ to be derived from the unknown first purchaser, but a half-blood shared only half the same ancestors and there was ‘not the same probability’ that ‘he be derived from the blood of the first purchaser.’27 As elsewhere in the ­Commentaries, Blackstone used the fictional John Styles to illustrate his point, by listing Styles’s relations and the probability of them inheriting. Thus, he explained: in the first degree … [a] half brother has only an even chance, for half John’s ancestors are not his. So, in the second degree … the chances are three to one against his uncle of the half blood, for three fourths of John’s ancestors are not his. In like manner, in the third degree, the chances are only three to one against John’s great uncle of the whole blood, but they are seven to one against his great uncle of the half blood, for seven eighths of John’s ancestors have no connexion in blood with him. Therefore, the much less ­probability of the half blood’s descent from the first purchasor, compared with that of the whole blood, in the several degrees, has occasioned a general exclusion of the half blood in all.28 24 

G Gilbert, A Treatise of Tenures, 2nd edn (London, 1738) 11–12. M Hale, History of the Common Law of England (London, 1713) 240–41. 11–13. 27 Blackstone, Commentaries vol 2, 153 [228]. 28  ibid 155 [231]. 25 

26 Gilbert, Tenures

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Blackstone sounds here like a bookmaker (and not one to trust with your life ­savings, as a half brother actually has a twice, not ‘a thrice better chance than the great uncle’ of being descended from the first purchaser).29 In his mind, probability provided an elegant and objective explanation for the exclusion’s operation, including why it exempted the royal crown. In the sixteenth century, Mary and Elizabeth had been able to rule as queens after the death of their half brother Edward VI, because ‘the royal pedigree being always a matter of sufficient n ­ otoriety’ there was no need for this presumptive law of evidence.30 Elsewhere in his analysis of inheritance, the logic and wonder of simple mathematics appear to have intoxicated Blackstone. In describing lineal consanguinity he found it ‘astonishing to consider the number of lineal ancestors which every man has’, namely ‘a thousand and twenty four in the tenth’ degree and at the ­twentieth degree ‘every man hath above a million ancestors, as common arithmetic will demonstrate’.31 Warming to his task, he explained that ‘if we only suppose each couple of our ancestors to have left, one with another, two children; and each of those children on an average to have left two more’ then ‘we shall find that all of us have now subsisting near two hundred and seventy millions of kindred in the fifteenth degree at the same distance from the several common ancestors as ourselves are’. In the twentieth degree, as his helpful table indicates, the ­number rises to an astonishing 274,877,906,944. The pleasing symmetry of the relationship between lineal and collateral kindred also warranted comment, for ‘the ­number of kindred in the tenth collateral degree amounts therefore to 262,144, or the square of 512’, which is half the number of couples in the tenth lineal degree.32 At this point Blackstone anticipated his readership’s scepticism or even disbelief at ­numbers approaching the gargantuan. ‘And if this calculation should appear incompatible with the number of inhabitants on the earth’, he explained: it is because, by intermarriages among the several descendants from the same ancestor, a hundred or a thousand modes of consanguinity may be consolidated in one person, or he may be related to us a hundred or a thousand different ways.33

This extended interlude within a sober legal text gives Blackstone the appearance of a deer caught in the headlights of Enlightenment logic and rational calculation. As a student at Pembroke College he had studied ‘mathematiks’ and clearly enjoyed the precision of numbers and ratios. He owned a 1705 edition of the Scottish mathematician and physicist John Keill’s Oxford lectures on Newtonian P ­ hysics, Introductio ad Veram Physicam, and in one of his early works on ­architecture he

29  E Christian, Notes to Blackstone’s Commentaries Which are Calculated to Answer all the Editions (Dublin, 1797) vol 5, 556. 30 Blackstone, Commentaries vol 2, 156 [233]. 31  ibid 135–37 [203]. 32  ibid 138–39 [205]. 33  ibid 139 [205].

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included a table setting out the defining ratios between different parts of the major orders of classical Greek columns.34 Blackstone clearly felt that the gentlemen amateurs who attended his lectures would marvel at all this numerical trickery, but as a justification for the half blood rule the probability argument remains weak—it might support the deferring of half-blood siblings, but not their exclusion. His wholehearted reliance on ­mathematics reveals his clear belief in the existence of a rational explanation for the rule, one whose objectivity and certainty he felt excused the hardships it could sometimes produce. Wright, by contrast, concluded only that the exclusion was ‘grounded on tolerable reason’.35 Blackstone was similarly optimistic about the rule, described above, that parents could not inherit from their children, reflecting in his 1756 Analysis of the Laws of England that as the makers of the rule had themselves been fathers, its ‘establishment conveys to us a very high idea of their magnanimity, honour and parental affection’.36 Gilbert believed the o ­ pposite, musing that ‘in those barbarous times’ when the rule emerged ‘they would not trust the father with any profit from the death of his own issue’.37 Finally, Blackstone invoked mathematical reasoning to explain the law’s ‘constant preference’ in matters of inheritance for ‘issue derived from the male ancestors’ over the female. He suggested that this practice did not result from arguments about the supposed ‘dignity of blood’ of males, but because the male line provided a ‘strong ­probability’ of descent from a real or fictional first purchaser.38

III.  Long Use Simple chronology offers a partial explanation for the innocence of Blackstone’s position, and perhaps for his errors. Almost all of the critics who expressed their incredulity at Blackstone’s defence of the exclusion wrote with the benefit of hindsight, commenting after the half-blood rule was no longer part of English law. The Inheritance Act of 1833 removed it in Britain, along with the bar against parents inheriting from their children, just as the 1787 Northwest Ordinance, and subsequent state legislation, had abolished it in the fledgling US.39 Blackstone, by contrast, attempted to make sense of the exclusion when it was existing law that had persisted, largely unquestioned, for well over 400 years. Authorities had debated the form and extent of the rule during its formative decades and in 1372 MPs in 34 Prest, William

Blackstone 34–35, 36, 44–45. 186. 36  W Blackstone, Law Tracts in Two Volumes (Oxford, 1762) vol 1, 184. 37 Gilbert, Tenures 15. A fear of murderous stepmothers (and fathers) may also have influenced the half-blood exclusion; T Stretton, ‘Stepmothers at Law in Early Modern England’ in L Warner (ed), Stepfamilies in Early Modern Europe (London, 2018), forthcoming. 38 Blackstone, Commentaries vol 2, 158 [236] (and see also160 [239]). 39  Act for the Amendment of the Law of Inheritance 1833 (3 and 4 Will. IV, c. 106). 35 Wright, Tenures

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the House of Commons unsuccessfully attempted to have the exclusion abolished (someone deleted the text of their petition from the record), but most sixteenthand seventeenth-century legal authors described and accepted the rule without comment or criticism.40 Early in the seventeenth century, for example, Thomas Egerton included ‘no respect for half blood’ in a list of ‘certain known principles and Maxims’ against which ‘there never hath been, nor ought to be any dispute’.41 The few authors who gave reasons for the rule argued, as Gilbert had, that ‘the bloud of the father and the mother, are but one intire inheritable blood, and both of them are necessary and essential to the procreation of an heir’.42 In 1681 James Tyrell expressed some ambivalence about the exclusion, when refuting Robert Filmer’s royalist (and absolutist) contention in Patriarchia: Or the Natural Power of Kings (1680) that the institution of government preceded English common law and so could not have been a product of it. Tyrell identified older laws, including ‘that brethren by the half-blood should not be heirs to each other’ and that a father could not inherit from his son, which ‘could only proceed from the custome of the antient Saxons’. He observed that ‘certainly, had we not been used to them, we should scarce allow them to be reasonable’, but he did not suggest that they should be changed.43 Litigation involving the half-blood exclusion usually turned not on concerns about the injustice of disinheriting half siblings, but on technical legal questions about who enjoyed seisin (legal possession) at critical moments sufficient for possessio fratris (possession of an estate in fee simple by one sibling making their whole blood siblings their heirs) or the legality of interests in remainder.44 Objections to the rule also arose because it allowed females to inherit ahead of males, in instances where a sister of the whole blood kept out a brother of the half blood, despite them both being heirs to their father.45 When Thomas Surtees the younger died intestate in 1511 his estate should have passed to his sister Catherine.

40  ‘Edward III: November 1372’, in Parliament Rolls of Medieval England, ed C Given-Wilson et al (Woodbridge, 2005), British History Online: accessed 9 June 2017; P Brand (ed), The Earliest English Law Reports, vol 4 (Selden Society, vol 123, 2006) clxiv–clxvii; Plucknett, Concise History of the Common Law 721–22; E Coke First Part of the Institutes of the Lawes of England (London, 1628) fos 14a, 15; C Saint German, An Answere to a Letter cum Privilegio (London, 1535) sig E6v; J Doddridge, The Lawyer’s Light (London, 1629) 31; J Hearn, The Law of Conveyances (London, 1655) 127. 41  T Egerton, The Speech of the Lord Chancellor of England, in the Exchequer Chamber, Touching the Post-Nati (London, 1609) 36. 42  E Wingate, Maximes of Reason, or, The Reason of the Common Law of England (London, 1658) 236; Hearne, Law of Conveyances, 129. 43  J Tyrrell, Patriarcha Non Monarcha. The Patriarch Unmonarch’d (London, 1681) 221. John Locke ridiculed the contention that that the law of descents came from God or nature: J Locke, Two Treatises of Government, ed P Laslett (Cambridge, 1960) 204–06, 210, 218–22. 44  C Viner, A General Abridgment of Law and Equity, 2nd edn (London, 1791) vol 7, 579–90; Preston v Funnell 7 Mod 296, 87 Eng Rep 1250. 45  The wording of the maxim highlighted this possibility: possessio fratris de feodo simplici facit sororem esse hæredem (the possession of the brother in fee simple made his sister heir): Coke, Institutes fos 14v–15.

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However, her half brother Marmaduke contested the inheritance and the family engaged in a bitter litigation battle that continued until 1552.46 On the question of the exclusion’s origins, Blackstone was aware of doubts about the extent of the rule ‘in the time of Bracton and of Fleta’ and its form ‘as laid down by our Fortescue’ in the fifteenth century.47 Yet rather than admit that this chronology undermined the rule’s feudal logic, he felt that the way judges and commentators had wavered in their thinking, before fixing on a settled form of the rule that had subsequently persisted for centuries, confirmed the exclusion’s utility as well as its antiquity.48 He was also not the first to be swayed by the rule’s long use. In his Treatise of Hereditary Descents published in 1699, Sir Matthew Hale correctly described the custom of Normandy, which excluded brothers by the same mother but not brothers by the same father, and then boldly stated, ‘But this seems to be a mistake, for it seems the half-blood hinders the descent between brothers and sisters.’ Hale’s goal in describing the law of inheritance was to capture ‘the state and perfection which now it hath’ and he refused to accept that the English exclusion had sprung from a custom grounded on an entirely different logic and rationale.49 Given his brief of explaining the medieval law of descents, Blackstone could have justified the half-blood exclusion by a simple appeal to its existence ‘time out of memory of man’. Instead, he chose to identify it as ‘a positive law, fixed and established by custom, which custom is evidenced by judicial decisions’.50 In the lectures that gave rise to the Commentaries, Blackstone said that no matter ‘how so unreasonable’ the half-blood exclusion may seem, yet it ‘shall not be redressed by equity’, because ‘the right of succession is founded not on the law of nature but on compact, not on any primitive natural right but on the law of the state, and therefore this being a general rule, shall not be superseded’.51 In the Commentaries he reiterated this point that a court of equity could not intervene in the ‘hard’ case of the half-blood exclusion, even though ‘the artificial reason of the law, arising from feodal principles, has long ago entirely ceased’, retreating behind the maxim hoc quidem perquam durum est, sed ita lex scripta est (This indeed is exceedingly hard, but so the law is written).52 Such thinking was not unusual, with counsel in a

46  R Surtees, The History and Antiquities of the County Palatine of Durham: Volume 3, Stockton and Darlington Wards (Sunderland, 1823) 230–32; for a medieval example, see W Page (ed), A History of the County of Hertford, Victoria County History, vol 3 (London, 1912) 39–44. 47 Blackstone, Commentaries vol 2, 156 [232]. 48  ibid 153–54 [228]. 49  M Hale, De Successionibus Apud Anglos: Or, A Treatise of Hereditary Descents Shewing the Rise, Progress and Successive Alterations Thereof (London, 1699) 28–29; In his History of the Common Law he softened his language, writing; ‘for, as I take it, the half blood hinders the Descent … by their Laws as well as ours’. Hale correctly describes the half-blood exclusion under English law in both treatises; Hereditary Descents 66, 81–2; History of the Common Law 240. 50 Blackstone, Commentaries vol 1, 52–53 [70]. 51  As quoted in WS Holdsworth, ‘Blackstone’s Treatment of Equity’ (1929) 43 Harvard LR 30. 52  W Blackstone, Commentaries on the Laws of England, Book III: Of Private Wrongs, ed T Gallanis and W Prest (Oxford, 2016) 282 [430].

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1799 case successfully arguing that ‘equity has never interposed against the law’ in relation to settled rules like the half-blood exclusion, even though they ‘shock the ordinary prejudices of mankind’.53 Circumstances demanded some kind of rule, to prevent property from one ­parent being inherited by the heirs of another parent, and citizens needed to abide by that rule. Jeremy Bentham expressed his personal distaste for the rule—in his proposed law code there would be ‘no exclusion of the half-blood, as if the son of my father or my mother were a stranger to me’—and criticised Blackstone for endorsing the half-blood exclusion out of ‘deference to former times’. However, he conceded that it should be observed for reasons of ‘stability’, because settled opinions that people were ‘accustomed to take for law’ should be followed and therefore so long as the rule regarding inheritance of the half blood ‘remains uncancelled by a superior court it must be law’.54 Blackstone adhered to the same philosophy when serving as a judge, as can be seen in the particularly harsh inheritance case, Goodtitle v Newman, which he helped adjudicate in 1774. Alexander Newman died intestate in June 1760 and his real estate descended to his two daughters by his first wife. However, his second wife was pregnant and six weeks later gave birth to a son. According to ­counsel for the plaintiff, the infant’s possession and seisin (through his mother acting as his guardian in socage) divested his half sisters of their interests. The boy lived only five weeks and his heir at law, a distant collateral male, was successful in claiming the lands and ejecting the boy’s mother and half sisters. The infant’s half s­ isters were clearly heirs to their common father, who had purchased the lands and interests in question, but under a strict reading of the half-blood exclusion they lost everything. Blackstone declared himself hesitant to move to judgment, given the ‘very hard law’ under consideration, but he was referring to the question of whether the infant had seisin rather than to the half-blood exclusion and ultimately he joined his colleagues in finding unanimously for the distant relative. As Lord Chief Justice de Grey contended, delivering ‘the opinion of the whole court’, ‘If the law be so, we cannot determine to the contrary, upon inconvenience, or the hardship of the law’. According to de Grey, courts had no choice but to apply the ancient maxim for even though ‘this may sometimes be very hard upon some ­children of the half blood of the person last actually seised, yet we must take the law as it is and determine accordingly.’55 In court as in the Commentaries, ­Blackstone held firm to a ‘common law orthodoxy’ shared by most of his predecessors and many of his contemporaries.56 53 

Cave v Holford [1799] 7 Bro. P. C. 593, 3 Eng Rep 384 at 391. J Bentham, Supply Without Burden; or Escheat Vice Taxation (London, 1795) in J Bowring (ed), The Works of Jeremy Bentham (Edinburgh, 1843) vol 2, 596; and see vol 1, 336; J Bentham, A Comment on the Commentaries and A Fragment on Government, ed JH Burns and HLA Hart (London, 1977) 149, 204–205; Lobban, History of the Philosophy of The Common Law World 166. 55  Goodtitle v Newman, 3 Wils. K.B. 516, 95 Eng Rep 1188; Blackstone’s report of the case makes no comment about the exclusion; 2 Black. W. 938, 95 Eng Rep 554. 56  E Kadens, ‘Justice Blackstone’s Common Law Orthodoxy’ (2009) 103 Northwestern University Law Review 1553–1606. 54 

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Reform of the half-blood exclusion, when it came in the nineteenth century, resulted from a complex series of legal, social, cultural and economic changes that only coalesced after Blackstone published. One was the long slow rise of freedom of disposition. The exclusion emerged at a time when primogeniture governed the transfer of real property between generations, automatically vesting lands in the eldest son or, in the absence of sons, in all daughters equally. As we have seen, over the ensuing centuries property holders found ways to evade customary rules, by employing uses, trusts and marriage settlements, while statutory changes expanded will-making powers.57 By the nineteenth century the shift from collective obligation to individual freedom had given English men and women unprecedented control over the disposition of property. This coincided with changing sensibilities about family make up and family relations, as personal affection displaced customary rules in the distribution of property. In short, families defined exclusively by birth had transmuted into families defined largely by household heads and shaped by familial emotions and choices. This evolution left the exclusion of half-blood siblings ‘out of line with feelings of affection and dependency toward kindred of half blood’.58 Where the Founding Father John Adams had felt sure that ‘the natural love of a person to his brothers and sisters of the whole blood’ was ‘greater than to brothers and sisters of the half blood’, nineteenthcentury critics felt the exclusion ‘violates the natural feelings of kindred’ within families that did not depend so heavily on an inextricable mix of blood and ­affection.59 In calling for reform, George Long argued in 1827 that defences of the exclusion ignored ‘those strong ties of feeling and affection which naturally spring from the relationship of kindred’ which ‘are to be reckoned among the principal foundations of private happiness’ and ‘the cementing principles of society’.60 Finally, the half-blood exclusion only applied to unencumbered land, not to moveable property. This distinction became increasingly jarring as moveable property eclipsed real property in the national economy, in the form of money, profits, shares, investments and mortgages. Traditionally, ecclesiastical authorities had jurisdiction over the distribution of a deceased’s moveable property. However, litigation over the 1670 Statute of Distributions, which governed intestate succession, led common law judges to confirm that the half-blood exclusion did not apply to moveable property, potentially leading onlookers to wonder why it still applied to lands.61 Half-blood siblings were ‘only excluded from the inheritance

57 

For a fuller discussion of these changes, see Stretton, ‘Stepmothers at Law’. TE Atkinson, ‘Succession Among Collaterals’ (1935) 20 Iowa Law Review 185, 200. 59  L Wilson, A History of Stepfamilies in Early America (Chapel Hill NC, 2014) 82; J Humphreys, ‘Law of Real Property’ (1829) 1 The American Jurist and Law Magazine 84. 60 Long, Reflections on Certain Parts of the Law of England, 22. The Royal Commissioners who ­recommended the abolition of the rule in the 1830s focused on the practical effects of allowing parents to inherit from children, a desire for conformity with the rules of moveable property and that the rule was ‘not familiar to the public’: J Chitty and JW Hulme, A Collection of Statutes of Practical Utility (London, 1837) vol 2, 544–5. 61  Crooke v Watt (1690) 2 Vern 124, 23 Eng Rep 689. 58 

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of land upon feodal reasons’ and ‘feodal reasons’ had little purchase in an increasingly commercial society.62 Judging Blackstone in eighteenth-, rather than nineteenth-century terms, it is too simplistic to say he was against innovation, or was scared to set a precedent. It is true that he had a standing presumption in favour of existing law, seen in his acknowledgment of the civil law defence of the statutory punishment of hanging the corpse of an executed felon in chains, that ‘besides the terror of the example’ it was ‘a comfortable sight to the relations and friends of the deceased’[!].63 Yet he applauded legislation and past reform that corrected errors or abuses. It was Parliament that had legislated away ‘the intolerable burdens’ that ‘the families of all our nobility and gentry groaned under’ after the Conquest, ‘introduced and laid upon them by the subtlety and finesse of the Norman lawyers’.64 He was also not above changing his own opinions.65 What Blackstone proved reluctant to do, with very few exceptions, was to recommend reform of existing law. He named the Commentaries for a reason, commenting on the law as it was, not as it should be, to provide a practical guide for his general audience. In this sense he saw himself as a finder not a maker of law. Yet despite his conservatism and his belief in the exclusionary rule, he nevertheless provided advice for Parliament’s consideration. He asked: How far it might be desirable for the legislature to give relief by amending the law of descents in one or two instances, and ordaining that the half blood might always inherit, where the estate notoriously descended from its own proper ancestor, and in case of new purchased lands or uncertain descents, should never be excluded by the whole blood in a remoter degree; or how far a private inconvenience should be submitted to, rather than a long established rule should be shaken; it is not for me to determine.66

These very specific recommendations do have a sense of advocacy about them, rather than unthinking acceptance of the legal status quo.67 Furthermore, these were the specific effects of the rule’s operation that critics such as Edward ­Christian later singled out as requiring amendment, so in this sense (if no other) ­Blackstone could be considered ahead of his time.68 However, his commitment to the ­common law led him to draw back and to suggest the question was for MPs, not for him or for judges, to determine. The puzzle here is why he proved less hesitant about suggesting amendment of the even more ancient principle of ‘corruption of blood’ that ‘extinguished and blotted out forever’ the inheritable quality of the blood of a person attainted for treason or other felonies. For centuries the lands of individuals attainted for a 62 

JB Bird, The Laws Respecting Wills, Testaments, and Codicils … (London, 1799) 55. W Blackstone, Commentaries on the Laws of England, Book IV: Of Public Wrongs, ed R Paley and W Prest (Oxford, 2016) 133 [202]. 64  ibid, 166 [250]. 65 Prest, William Blackstone 169. 66 Blackstone, Commentaries, vol 2, 156–57 [233]. 67 Holdsworth, History of English Laws vol 3, 185. 68 Christian, Notes to Blackstone’s Commentaries vol 5, 556. 63 

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felony escheated to the Crown, preventing their children from inheriting by or through them and (until the statute 1 Edw. VI c. 12) barring wives from claiming dower.69 In explaining how this practice arose ‘from feodal principles’, Blackstone suggested (as he had for the half blood exclusion) that perhaps ‘it extended further than even those principles will warrant’ and had long been regarded ‘as a peculiar hardship’. But here he went further, reflecting that ‘the oppressive parts of the feodal tenures’ having been ‘in general abolished’: it seems unreasonable to reserve one of their most inequitable consequences; namely, that the children should not only be reduced to present poverty (which, however severe, is sufficiently justified upon reasons of public policy), but also be laid under future ­difficulties of inheritance, on account of the guilt of the ancestors.70

Blackstone was concerned about the possible effects of his criticism and sent a draft of the section to Charles Yorke to look over before publication, yet clearly felt more comfortable questioning corruption of blood than the half-blood ­exclusion.71 In part this may have been because the effects of corruption of blood were more ­difficult to evade, for as William Paley observed of the half-blood exclusion, there ‘never can be much to complain of in a rule, which every person may avoid by so easy a provision as that of making his will’.72 Also, inheritance by children could be considered as part of the natural or logical order of things, whereas inheritance by siblings was more accidental, and harder to frame as a birthright. Deeper than that, however, was Blackstone’s sense that a slightly flawed exclusion was better than no exclusion at all; that ‘a private inconvenience’ was not sufficient to shake ‘a long established rule’. As Pollock and Maitland recognised, the crux of the matter with respect to half-blood inheritance was that ‘it is desirable that there shall be a clear rule’ whereas ‘the import of the rule is of no great moment.’73 In the US, for example, dozens of states have reintroduced variant forms of the halfblood exclusion, in response to a world of ever more complex, blended families in which some inheriting half and step siblings fall under the category of ‘laughing heirs’—laughing all the way to the bank with property from people they may never have met.74 Universal rules governing inheritance almost always produce hardships of one kind or another. Blackstone’s defence of the half-blood exclusion cannot be excused, but it can be understood. The mystery is why he endorsed it as a manmade rule fired in the kiln of custom and long use when he could as easily have 69 Blackstone, Commentaries vol 2, 170–74 [251–56]; KJ Kesselring, ‘Felons’ Effects and the Effects of Felony in Nineteenth-Century England’ (2010) 28 Law and History Review 111–139. 70 Blackstone, Commentaries vol 2, 173 [256]. 71  W Prest (ed) Letters of Sir William Blackstone 1744–1780 (London, 2006) 111–12. 72  W Paley, The Principles of Moral and Political Philosophy (Dublin, 1785) vol 1, 261–62. 73  Pollock and Maitland, History of English Law vol 2, 303. 74  RC Brashier, ‘Half-Bloods, Inheritance, and Family’ (2006–07) 37 University of Memphis Law Review 215–80; RC Brashier, ‘Consanguinity, Sibling Relationships, and the Default Rules of Inheritance Law: Reshaping Half-Blood Statutes to Reflect the Evolving Family’ (2005) 58 Southern Methodist University Law Review 137.

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damned it as a Norman imposition—an underhanded French supplier of escheats to the Crown—and why he supported it as a quintessential example of law as policy. His commitment to supporting the rule at almost all costs betrayed his deep-seated belief in law as the perfection of reason. In the case of this ‘peculiar’ rule, he was searching for a unifying logic that simply did not exist, giving weight, as one critic pointed out, to the anthropologist Edward Burnett Tyler’s reflection that ‘the attempt to explain by the light of reason things which need the light of history has led to much learned nonsense’.75 Placing such faith in feudal tenures was misguided in terms of history and, his critics suggested, also in terms of law. How could a medieval fiction of descent from a first purchaser justify barring one sibling from inheriting from another in the eighteenth century? To return to Sweet’s accusations, Blackstone does appear guilty of a ‘determination to approve and defend’ what he found established, but he was motivated by a sincerely held belief in the logic of the law rather than a blind fear ‘of favoring a precedent for innovation in more important matters’. His intellectual crime was naivety, not cynicism.

75 

AL Cross, ‘The New Holdsworth’ (1925) 24 Michigan Law Review 22–33.

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8 Blackstone and Women CAROLYN STEEDMAN

As … every subject is interested in the preservation of the laws, it is incumbent on every man to be acquainted with those at least, with which he is immediately concerned; least he incur the censure, as well as inconvenience, of living in a society without knowing the obligations which it lays him under. And thus much may suffice for persons of inferior condition, who have neither time nor capacity to enlarge their views beyond that contracted sphere in which they are appointed to move. But those, on whom nature and fortune have bestowed more abilities and greater leisure, cannot be so easily excused. —William Blackstone1 But what did it signify my having been at Blackstone’s lectures—I knew nothing of the matter as a justice—Burn furnished every thing I wanted, and him I left to the management of my clerk. What nonsense to suppose a knowledge of Blackstone … necessary for a justice— when there is scarce a justice that I meet at the quarter-sessions who has ever heard of Blackstone or his lectures—Why lord! if our farmers were to read law before they take out their Dedimus, how should they pay their rents? —Harriet; Or, the Innocent Adultress (1779)2 While the Cookeries of Hannah Glasse out circulate the Commentaries of Blackstone, authors will be found, who prefer the compilation of receipts to that of records, as the easier and more profitable talk of the two. —The Caledonian Bee (1795)3

To become subject to criticism, a writer’s works have to be known, by personal reading, or by reputation or rumour. What ordinary people and extraordinary writers on both sides of the Atlantic, from 1770 to the present day, believed ­William Blackstone had said about women, and coverture, and the married state, is as historically important for disinterring a critique of his Commentaries as what the

1 W Blackstone, Commentaries on the Laws of England, Book I: Of the Rights of Persons, ed D Lemmings and W Prest (Oxford, 2016) 11[7]. 2  Harriet; Or, the Innocent Adultress (London, 1779) vol 2, 34. 3  The Caledonian Bee; Or, A Select Collection of Interesting Extracts from Modern Publications ­(London, 1795).

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lawyers, writing their innumerable guides to the law of everyday life, told them he had said about the law of women. But a magistrate consulting one of those handbooks, and the poor woman before the bench listening to his pronouncements about the state of her settlement under the Old Poor Law and imminent removal with her children to the parish of her absconded husband, did not often read (the magistrate) or hear (the woman of inferior condition) the words ‘Blackstone’ or ‘coverture’. In the handbook resources available to the magistrate, Blackstone was not widely cited on coverture, either during his lifetime or after it. She learned perhaps, that ‘the English courts and their processes were what they were’, and did not blame Blackstone because she had never heard of him.4 A woman of more elevated degree had the bourgeois heroine of her novel rail against the law of marriage, and all ‘the partial laws of society’ that ‘had bastilled [her] for life’. In Mary Wollstonecraft’s The Wrongs of Woman; or Maria (1798), the abused wife of the title says that all married women are ‘as much a man’s property as his horse, or his ass’; not one of them has anything ‘she can call her own’. All husbands can do what hers has done: ‘use any means to get at what the law considers as his, the moment his wife is in possession of it … with a show of equity, because, forsooth, he is responsible for her maintenance’. Then Wollstonecraft has a poorer woman than she or her heroine state the case in the simplest terms: the landlady of the lodging house where Maria seeks refuge explains her reluctance to take her in with ‘Madam, you must not be angry if I am afraid to run any risk, when I know so well, that women have always the worst of it, when law is to decide’.5 The overt criticisms of Blackstone made by mid-twentieth century feminist historians were on a continuum with those attributed to fictional and real eighteenth-century women like these: they were to do with the way in which they experienced the law in general, and the law of coverture in particular, in their hearts and minds and their everyday life. That is why the law and legal doctrine is subject to criticism: because it matters, far beyond the time and place of its first appearance in a legal treatise. This chapter relies on Blackstone’s audiences: contemporary and posthumous, composed of men, women, and children, of high degree and of inferior condition. Magistrates and attorneys and farmers and cooks (as in the epigraphs to this chapter) may not have read the Commentaries—some may never have ‘heard of Blackstone or his lectures’—but in their reception of his legal doctrines, or what were purported to be his doctrines, they played a part in making the ‘Blackstone’ inherited by the twenty-first century Atlantic world. So too did many social and political theorists make ‘Blackstone’. Long after his death, Blackstone was arraigned by feminist thinkers (male and female) for the doctrine of coverture; it was sometimes implied that the doctrine was his invention. He did indeed make 4  W Blackstone, Commentaries on the Laws of England, Book III: Of Private Wrongs, ed TP Gallanis and W Prest (Oxford, 2016) x–xi. 5  M Wollstonecraft, ‘The Wrongs of Woman; or Maria’ in Posthumous Works of the Author of a Vindication of the Rights of Woman (London, 1798) vol 2, 34, 45, 99.

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a very powerful statement of coverture, and he was the first legal commentator to provide a historical account of its origins; but it was more nuanced and careful than later writers allowed or communicated to others. Modern historians have readjusted the accounts given by Blackstone’s nineteenth- and twentieth-century critics. They have pointed out that strict application of the law of coverture would have made it impossible to manage—to live—everyday life, within households and outside them.6 This chapter continues their work in acknowledging the complex socio-economic and legal realities of eighteenth-century England in which men and women lived their lives and understood the law. Here we will trace out some of the pathways of knowledge, transmission, and critique of what Blackstone wrote and was reputed to have written, about women. At the end, we will briefly consider Blackstone as a judge administering the law he had commented on in the 1760s, in the everyday world of assizes and the London high courts; in the ­everyday world of women, in a state of coverture.

I.  Blackstone’s History Lessons Understood as an educational innovation from its first publication, Blackstone’s Commentaries was extracted from and anthologised by the printers/booksellers of England from the 1770s onwards.7 At the booksellers’ annual dinner they toasted Blair’s Sermons, Buchan’s Domestic Medicine, and Burn’s Justice of the Peace—‘The Three Bs’—for the immense profits their manuals had made them. They should have toasted Four Bs says William St Clair, for they had done just as well out of the Commentaries.8 In his Preface to Book I Blackstone mentioned the ‘friends’ who thought his 1750s Oxford lectures to law-pupils (in which the Commentaries originated) ‘not wholly unworthy of the public eye’. There was no such modest deprecation for the booksellers, who made the Commentaries very widely available. Their abridged versions for use in schools and in the education of young ladies found a market in the form of parents and schoolmasters.9 Simon Stern has found the Commentaries in handbooks and encyclopaedias; Blackstone appeared in Knox’s Elegant Extracts and in the Beauties of English Prose, he says.10 The first, from 1784 right through to the new century, included passages from the

6  T Stretton and KJ Kesselring (ed), Married Women and the Law: Coverture in England and the Common Law World (Montreal, 2013) passim, and 3–22, ‘Introduction: Coverture and Continuity’. 7  W Prest, William Blackstone: Law and Letters in the Eighteenth Century (Oxford, 2008) 310. 8  W St Clair, The Reading Nation in the Romantic Period (Cambridge, 2004) 270. For the American reprint market, where Blackstone kept company with, not the Bs, but Adam Smith and the historian William Robertson, see 389. 9 Blackstone, Commentaries vol 1, 3 [1]. 10  W Blackstone, Commentaries on the Laws of England, Book II: Of the Rights of Things, ed S Stern and W Prest (Oxford, 2016) xxii.

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­ ommentaries on the history of juries, on the law of the manor, and on the origin C and right of exclusive property.11 The beauty perceived in Blackstone’s account of ‘The Feodal System: History of its Rise and Progress’ was resolutely reproduced in many rip-offs of Beauties, on both sides of the Atlantic.12 Blackstone’s ‘patriotic history of civil liberties’, the familiar stories he told about Anglo-Saxon freedoms, the Norman Yoke, and Alfred and Edward the Confessor as great lawgivers, mapped on to many common tales of ‘our ancient constitution’, and how we got to be the people we were.13 His observations on language-history might be found in amusing guides to local history; his account of the sumptuary laws ended up in a handbook for apprentice hairdressers.14 The historical tales told in the Commentaries were repeated in books for children; they also shaped the introduction to many handbooks for magistrates administering the law. Here too, was a history that explained to a justice of the peace what he was doing as he wearily recorded yet another bastardy examination, or heard out a woman craving the peace against her husband, or a domestic servant seeking her settlement.15 The history recounted by Blackstone and reproduced for children and young people was always history for something: his Alfred and Atlestan, his William and all his Edwards explained the present by a story of the past. The girls and young women who in Jane Austen’s Mansfield Park (1814) and Northanger Abbey (1817) complain about the boringness of history—that mere list of kings’ names—could have found history with a purpose in the Commentaries and all their extracted reprints. Literature for children instructed and educated in the ways of civil society and its history; great political and legal principles might be expounded in a household tale. In Dorothy Kilner’s Life and Perambulations of a Mouse (1784), Mouse ­Nimble (an early and great anthropologist of the nursery) overhears a mother castigate an appallingly behaved little girl who has just been extremely rude to her nursemaid, and slapped her as well: ‘“And who do you think will do anything for you, if you are not good, and do not speak civilly! Not I, I promise you, neither shall nurse or any of the servants, for though I pay her wages to do my business for me, I never want them to do anything, unless they are desired in a pretty manner”’.16

11  V Knox, Elegant Extracts; Or, Useful and Entertaining Pieces of Poetry, Selected for the Improvement of Young Persons (London, 1803). 12  The Beauties of English Prose: Being A Select Collection of Moral, Critical, and Entertaining Passages, Disposed in the Manner of Essays (London, 1772); St Clair, Reading Nation, 66–83, 174. 13  W Prest, ‘General Editor’s Introduction’, in Blackstone, Commentaries vol 1, xiii–xiv. 14  T Wilson, An Accurate Description of Bromley, in Kent, Ornamented with Views of the Church and College (Bromley, 1797); J Stewart, Plocacosmos; Or, the Whole Art of Hair Dressing; Wherein is Contained, Ample Rules for the Young Artizan, More Particularly for Ladies Women (London, 1782), 127. 15  C Steedman, ‘The Servant’s Labour. The Business of Life, England 1760–1820’ (2004) 29 Social History 1–29. History-as-a-guide for magistrates in their everyday operation of the law had been common at the beginning of the century—a convention of a genre which Blackstone may have known. After 1770 new handbooks used Blackstone in their prolegomena and introductions—but very rarely in the body of a text, which was designed to offer practical advice and case-law to hard-pressed justices of the peace. 16  D Kilner, Life and Perambulations of a Mouse (London, 1784) 31, my italics.

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Quite apart from the surprise (which could have been felt by nineteenth-century Atlantic-world suffragists, suffragettes, and many a twentieth-century historian) of finding a married woman, in her coverture, contracting with servants for their labour and matter-of-factly talking about ‘my business’, there is the astonishment of her exposition of the legal and political philosophy of John Locke to a five-yearold. Really, ‘in strictness every body ought to transact his own affairs’, noted John Barry Bird in 1799; ‘it is by the favour and indulgences of the law that he can delegate the power of acting for him to another’.17 Bird (and the fictional mother from 1784) repeated Locke’s fundamental lesson about what happened, legally-speaking, when a person ‘make[s] himself a servant to another by selling him, for a certain time, the service he undertakes to do in exchange for wages he is to receive’. In that moment of hiring (in such an act of contract) the labour becomes the master’s (or the mistress’s, as in Nimble’s household and countless others across the country). Blackstone may not have agreed with Locke over the ‘original compact’ inaugurating civil society, but on the question of labour transfer and labour as formative of property, he endorsed the view from the 1690s, explaining (as Bird was to do) that the relationship between master and servant was ‘founded in convenience, whereby a man is directed to call in the assistance of others where his own skill and labour will not be sufficient to answer the cares incumbent upon him’. Blackstone further agreed with Locke that ‘bodily labour, bestowed upon any subject which before lay in common to all men, is universally allowed to give the fairest and most reasonable title to an exclusive property therein’.18 Married women whose own skill and labour were not sufficient to answer the cares of cooking and childcare and the cash crop growing beyond the garden wall, contracted with servants for their labour as if they had never heard of coverture. Magistrates in their justicing room listening to disputing men, maids and mistresses never inquired into who, on the employer’s side, made the contract, for the only point of interest was the nature of the hiring agreement: what the contracting parties had agreed to do.19

II.  Reading Coverture Shall we agree to imagine the (fictional) little girl from Perambulations some years on, at the age of 12, or 14 perhaps? She has encountered Sir William and

17 J B Bird, Laws Respecting Masters and Servants, Articled Clerks, Apprentices, Manufacturers, Labourers and Journeymen, 3rd edn (London, 1799) 6. 18  J Locke, Two Treatises of Government (1690) Bk 2, Ch 5, s 26; Blackstone, Commentaries, vol 1, 272 [410] here and below, page references to the original edition (1765–69) are given in square brackets; Blackstone, Commentaries vol 2, 3 [5]. For the original contract, Blackstone, Commentaries vol 1, xxix, 38–41[47–51]. 19  Or they never recorded asking whether husband or wife had made the agreement, in dozens of extant justices’ notebooks from the eighteenth century: C Steedman, Labours Lost: Domestic Service and the Making of Modern England (Cambridge, 2009) 172–98.

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his C ­ ommentaries many times, anthologised in literature designed to educate her into what she must become. Were she to hold an actual volume in her hands, she would not find it difficult to read, for all the reasons of style and grammatical construction his most recent editors have noted.20 Anyway, she had been encountering fragments of Blackstone all through her reading life. On the Woman she was (by some accounts) so relentlessly being inducted into becoming, she might think, How fine to be a Queen! for the fourth chapter of Commentaries I tells her that ‘the queen is of ability to purchase lands, and to convey them, to make leases, to grant copyholds, and to do other acts of ownership, with out the concurrence of her lord; which no other married woman can do: a privilege as old as the Saxon aera’.21 There is fascinating detail about queens and sturgeons and whalebone and stays (if she were twelve, she was probably wearing her first pair of stays as she read). To be sure, the dark shadow of coverture falls, for the same passages tell her that a queen is ‘not, like other married women, so closely connected as to have lost all legal or separate existence so long as the marriage continues’; but our (legal-fictional) girl would have to read far into Book I to learn how very great the difference was between a Queen and the rest of English married-womankind.22 If it’s now—say—1795, and she gets that far, she may be surprised by Blackstone’s comment on Coke upon Littleton, stating that the very being or legal existence of the woman is suspended during the marriage, or at least incorporated and consolidated into that of her husband: under whose wing, protection, and cover, she performs every thing: and is therefore called in our law-french a feme-covert … her condition during her marriage is called her coverture.23

It had not been much repeated in the law reports, newspapers, crime sheets, crim. con.-lit or in guides to everyday life, these twenty years past. Her parents, concerned as every bourgeois ones must be, with the onerous task of getting her settled in marriage in a few years’ time, with her own property, moveable and real as well-protected as it might be, may have purchased the anonymous and estimable Laws Respecting Women (1777) in which coverture was discussed in great detail, following directly on quotation from the­ Commentaries.24 Its anonymous author was praised two centuries on for devoting ‘449 pages compared to the meagre nine Blackstone devoted to the law ­concerning

20 See comments of Simon Stern and Ruth Paley in Blackstone, Commentaries vol 2, xiv and W Blackstone, Commentaries on the Laws of England, Book IV: Of Public Wrongs, ed R Paley and W Prest (Oxford, 2016) vii–xxvi, passim. 21 Blackstone, Commentaries vol 1, 142–46 [212–19]. 22  ibid Ch 15 ‘Of Husband and Wife’. 23  ibid 284–85 [430]. 24 Anon., The Laws Respecting Women, as they Regard their Natural Rights, or their Connections and Conduct; in which their Interests and Duties as Daughters, Wives, Wards, Widows, Heiresses, Mothers, Spinsters, Legatees, Sisters, Executrixes, &c. are ascertained and enumerated (London, 1777) 65–66.

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husband and wife’.25 A law-dictionary of 1791, targeted at students and attorneys of a philosophical bent, repeated Blackstone on coverture word for word; An Exposition of the Hair Powder Act, Setting Forth its Legal Operation of 1795, did the same.26 But Blackstone’s exposition of the law of coverture in the ­Commentaries was not recycled for the educational market in the way of his legal and ­constitutional history. If our fictional girl got to the end of Commentaries I, she would have found a stronger statement of coverture than the one she may have encountered in guides to learning for the fair sex, and pocket primers on the law, some of them originating in the previous century (she is protean! She is a figment of my imagination. She is a reading fiction). An English Expositor of 1641, teaching the ‘interpretation of the hardest words used in our language’ had explained that Coverture ‘signifieth all the time, that a man and wife are coupled in marriage’; or it meant ‘a married wife: a woman subject to a husband … In our Common Law … [the word] is sometime taken for marriage’.27 In 1694 coverture was explained to the ladies both legally and etymologically: a French word—certainly a bed covering—but ‘in Law … particularly apply’d to the Estate and Condition of a married Woman, who by the Laws of the Realm is in potestate viri, under Coverture or Covert-Baron, and therefore disabled to make any bargain or contract, without her Husband’s consent or privity, or without his Allowance or Confirmation’.28 Whole treatises, directed at the popular market, were devoted to the topic.29 You could learn s­ omething of coverture from a stage play of 1675.30 Guides for the legal and writing-clerk m ­ arket

25  N Phillips, Women in Business, 1700–1850 (Woodbridge, 2006) 35. Its author was a practising attorney (maybe a barrister), as not only does a footnote reveal, but his style: no elegant and balanced s+v+o sentences here, for which Blackstone is rightly lauded by Simon Stern and Ruth Paley, but the entangled grammar of a scissors-and-paste job and a wild generosity of footnote references to Blackstone and the Reports. It is much more like a magistrates’ handbook than its major source. For the footnote, Laws Respecting Women, 142. Useful, though: I now think of Mr Bennet holed up in his library, reading it—not just avoiding Mrs Bennet, but acquiring really useful knowledge about getting five daughters well and equitably settled in marriage: J Austen, Pride and Prejudice (London, 1813), Chs 3, 8, 15, 20, 49, 55, 57, 59. 26  A Law Grammar; Or, An Introduction to the Theory and Practice of English Jurisprudence, Containing Rudiments and Illustrations (London, 1791); An Exposition of the Hair Powder Act, Setting Forth its Legal Operation; with A Full Abstract of the Act: by A Barrister (London, 1795). 27  J. B., An English Expositor Teaching the Interpretation of the Hardest Words Used in Our Lan­ guage; with Sundry Explications, Descriptions and Discourses (London, 1641), no pagination; alphabetical entry ‘Coverture’. For a similar etymological approach, intended for law scriveners and students, J Cowell, The Interpreter, Or, Book Containing the Signification of Words Wherein is Set Forth the True Meaning of All … Words and Terms as are Mentioned in the Law-writers or Statutes … Requiring Any Exposition or Interpretation; A Work Not Only Profitable But Necessary for Such as Desire Thoroughly to Be Instructed in the Knowledge of Our Laws, Statutes, or Other Antiquities (London, 1658; 1607). 28 N. H., The Ladies Dictionary, Being A General Entertainment of the Fair-sex; A Work Never Attempted Before in English (London, 1694). 29 Anon., Baron and Feme; A Treatise of the Common Law Concerning Husbands and Wives, (London, 1700); Anon., A Treatise of Feme Coverts: Or, the Lady’s Law, Containing All the Laws and Statutes Relating to Women (London, 1732). 30 Anon., The Woman Turn’d Bully: A Comedy, Acted At the Duke’s Theatre (London, 1675).

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usually cited the statement of Coke upon Littleton for their many expositions of coverture in relation to property law; but like their authority, gave no definition or statement of its principle.31 If you reduced ‘the principles of law’ to everyday ‘practice’, the strong implication of this earlier literature was that the law being what it was, practical readers should just get on with it.32 From the 1730s onwards there was an explosion of books accounting for coverture with ‘law’ in the title, all of them referring in some way or other, to Coke upon Littleton.33 Before Blackstone published his Analysis in 1756, law dictionaries, scriveners’ guides, those for attorneys, law students and clerks; handbooks to the law for clergymen, landlords, and tenants; abridgements of the law and the statutes, and the ‘whole law’ of property and trusts for conveyancers; a clerks’ magazine, a justice of the peace’s complete practice book … all stated coverture, and baron and feme-covert, and all without reference to the philosophical principle— or the history—of the thing, not even if an author promised the ‘Grounds and Rudiments of Law and Equity’.34 There was much similar self-help law material for readers in the American colonies and the Sugar Islands, also making coverture as plain as a writer could, mostly by reference to Coke upon Littleton. Blackstone was (probably) the first to explain coverture by reference not so much to legal or political philosophy as to history; or to ‘history’ as a form of legal philosophy. It is because he explained coverture that he made a stronger statement of it than his authorities.35 Under the influence of ‘the penetrating acuteness, and elegant pen of Sir ­William Blackstone’, the author of Laws Respecting Women provided fuller history lessons than his model. How fine the life of an Anglo-Saxon woman! thinks our law-reading fiction; how deleterious the law of women imposed by Conquest! And if she did not think that, then there are modern historians to do it for her: ‘Coverture, the author [of Laws of Women] … concluded, was the product of foreign Norman invasion in the eleventh century—not, as Blackstone would have it, a time-tested “English” legal practice. This was a reading of British history … that put a decidedly feminist twist on the idea of the “Norman Yoke”’.36 31 Anon., An Abridgement of the Lord Coke’s Commentary on Littleton Collected by an Unknown Author; Yet by a Late Edition Pretended to be Sir Humphrey Davenport, Kt. and in this Second Impression Purged from Very Many Gross Errors Committed in the Said Former Edition. With A Table of the Most Remarkable Things Therein (London, 1651). 32  W Phillipps, The Principles of Law Reduced to Practice (London, 1660). 33  An explosion if you search Eighteenth-Century Collections On-line, which is a good guide to tremors and tendencies in the print-market. 34  A Gentleman of the Middle Temple, The Grounds and Rudiments of Law and Equity; Alphabetically Digested; Containing A Collection of Rules Or Maxims, … with Three Tables … The second edition (London, 1751). 35  Furthermore, Blackstone’s statement in the Commentaries was stronger than the one made in his Analysis, which described coverture as equally affecting men and women: ‘By Marriage the H ­ usband and Wife become one Person in Law; which Unity is the principal Foundation of their respective Rights, Duties, and Disabilities’: An Analysis of the Laws of England (Oxford, 1756) 25. 36  Laws Respecting Women, Ch 2, ‘Of the Condition of Women; their Privileges and Obligations’; Phillips, Women in Business 23–24; A Chernock, Men and the Making of Modern British Feminism (Stanford CA, 2010) 97, 126.

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III.  Magistrates and Coverture Young elite women and their parents needed to know about coverture; knowledge was their armoury for the marriage market. No room here for the embarrassment felt by one of Blackstone’s later editors, or the outrage of many nineteenth-century male feminists, John Stuart Mill among them.37 Families bought practical advice about coverture; they were probably not in the market for abstract propositions about the suspension of ‘the very being or legal existence of the woman’ during marriage.38 So too did magistrates need practical advice about coverture and the different classes of women who came before them. They had needed it in the seventeenth century long before the eighteenth-century proliferation of statute law affecting poorer women created an even bigger print-enterprise.39 But few guides to administering the poor laws and the laws of settlement of the later eighteenth century cited Blackstone on coverture: they provided case-law, and references to Coke, and to Matthew Hale’s Analysis of the Law, especially to the indexed version of 1713.40 If we look to a clerical magistrate writing a guide for his brethren a century on in 1818, we find no reference to Blackstone in his detailed account of coverture as it affected married women and men of the poorer sort.41 Every magistrate writing a guide like Samuel Clapham’s promised something new by way of arrangement and referencing. Revd Clapham noted his own innovations and explained to country justices how to use his bulky two volumes: he will refer to Tomlins’ Law Dictionary—‘a book of easy purchase’—to save the reader time; he will refer to Blackstone using the Christian edition of 1809; m ­ arginalia will refer to earlier editions. He has indexed the everyday language used to refer to common cases of life; he explains cross-referencing, how ‘Apples’ might lead you to ‘Forcible Entry’, and how, if the magistrate needs to know about selling beer in unlicensed premises, Clapham’s system will, in a trice, lead him to ‘two

37 ‘By 1809, his [posthumous] editor Edward Christian had added substantial footnotes “apologising” for Blackstone’s position on many facets of married women’s law, and in particular for his assertion that women were “a favourite of the law”, because of the many exemptions provided by the “protection” of coverture. Christian added two pages of notes disputing Blackstone’s position and … a further note on a wife’s ability to sue as if feme sole in equity’: Phillips, Women in Business 34–35. 38  St Clair, Reading Nation 203. 39  J Keble, An Assistance to Justices of the Peace, for the Easier Performance of Their Duty (London, 1683). 40  ‘A Learned Hand’, Being An Abstract, of the Several Titles and Partitions of the Law of England, Digested Into Method (London, 1713); [M. Hale], An Analysis of the Law. Being A Scheme or Abstract, Of the several Titles and Partitions of the Law of England, Digested into Method … The 2nd edition corrected. With the Addition of an Alphabetical Table (London, 1713). 41  S Clapham, A Collection of the Several Points of Sessions’ Law, Alphabetically arranged; contained in Burn and Williams on the Office of a Justice, Blackstone’s Commentaries, East and Hawkins on Crown Law, Addington’s Penal Statutes, and Const and Nolan on the Poor Laws (London, 1818), vol 1, 347–48. When discussing femes-coverts in general however, Clapham did make reference to the Commentaries (in 16 out of 24 entries).

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references in Addington, Burn, and Williams, one in Hawkins, and one in the Law Dictionary’.42 What did a magistrate need to know about a married woman in her coverture? If one appeared before him he may need to know how far she might be bankrupt—how she can join her husband in dealing with her own estate or jointure;— about the legal position on her chattels, in life and after it;—that if, for example, she got her fortune without the oversight of a court of equity, she has no recourse to such a court later on;—that she was not entitled to her jewels and such, if she had barred herself before marriage out of everything she could claim of her husband’s personal estate. And more: the magistrate needed to know the position of femes soles and femes coverts on contracting debt;—when indeed, the high courts had directed a feme covert on a charge of debt to represent herself either as a feme sole or ‘to plead coverture’. The magistrate also needs to know about femes coverts making wills, and husbands leaving personal property. A feme covert can’t bring an action in law, or be sued alone, but can be sued with her husband, when she is made a defendant. And, what magistrates most need for the management of interpersonal violence in the everyday life of the poorer sort, is the knowledge that a ‘feme-covert may have security of peace against [her] husband’.43 A poor or pauper feme-covert was the most likely to be encountered in a justice’s parlour. Coverture also operated in the lives of poor women—and men— interpellated by the Laws of Settlement. If they had ‘married’ in a way unauthorised by the Marriage Act (26 Geo. II c. 33, 1753), their union is illegitimate: the woman is deemed ‘not married’ and cannot gain a settlement through her husband, for she actually does not have a husband. Marriages contracted beyond the seas are valid and the wife takes her husband’s settlement; if it proves impossible to discover a husband’s settlement, the woman reverts to her maiden settlement. There are particular problems with marrying a Scotsman or an Irishman, for the 1662 Act of Settlement and Removal (14 Car. II c. 12) does not apply in their homeland. The question of a married women being removed to her husband’s settlement by herself is discussed in detail; if a widow has gained settlement in her own right, it cannot be altered by her marrying a second husband whose settlement is not ascertained.44 However heavy in the hand, the Revd Clapham thought his two volumes an improvement on Richard Burns’ three or four, which had dominated the legal advice market for the previous half-century. In the early editions of the eighteenth-century’s best-selling justices’ manual, Burn had provided information on married women’s legal status under the headings of ‘coverture’, ‘feme covert’, ‘feme sole’, and ‘wife’. Magistrates learned about the position of married women

42 Clapham, Sessions

Law vol 1, iii–ix. ibid, 347–48. 44 Clapham, Sessions Law vol 2, 279–83. 43 

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in relation to the laws governing bastard children, and the production and sale of cambrick, among other topics, but above all, about ‘Poor: Settlement by­ Marriage’.45 The tenth edition (1766) abandoned the term ‘coverture’ except in the case of ‘Poor (Settlement by Marriage)’, and—for this was the function of such magistrates’ guides—introduced readers to new legislation and case law affecting married women, including on ‘Larceny’, ‘Leather’ (might the widow of a tanner carry on her husband’s business?) and ‘Lewdness’.46 Under the entry ‘Excise’, Burn told of: a woman … convicted for selling gin, and it appearing that she was a feme covert, it was objected that she could not be convicted, for as she could make no contract, it must be taken to be her husband’s sale; or if she could be convicted, the husband ought to have been joined for conformity. It was answered, that where the crime is of such a nature, as can be committed by her alone, she may be prosecuted without her husband. …47

There were multiple circumnavigations of coverture, and not only by wealthy parents using equity to ensure a young woman’s financial independence in marriage.48 In the fifteenth edition of Burn (1785) there were no references to Blackstone and his Commentaries in discussing married women and their legal disabilities and just one use of ‘feme-sole’ to provide a historical example under the heading ‘Wife’, the greater part of entries now being to do with the poor law, and settlement and removal.49 John Burn, who continued his father’s work into the new century included an even greater number of examples of married women subject to the laws concerning the poor.50 In Burn’s Justice, ‘coverture’ lingered as a word, a concept and a legal formulary in relation to poor women and their families, not in relation to elite or middlingclass women. By far the largest number of justicing-room incidents recorded by Nottinghamshire magistrate Sir Gervase Clifton between 1770 and 1815 related to the poor laws.51 He needed to know about coverture (or whatever stood in for it) in regard to poor women, not in relation to all the middle-class Marias of the neighbourhood, their fortunes leeched away by their grasping husband. He may

45  R Burn, The Justice of the Peace and Parish Officer (London, 1755) vol 1, 35, 41, 139, 148, 167, 249, 291, 424, 440; vol 2, 161, 224, 226, 265, 524. 46  R Burn, The Justice of the Peace and Parish Officer, 10th edn (London, 1766) vol 3, 334–35, 66, 78, 91. 47 Burn, Justice of the Peace (1766) vol 2, 135. 48  C Beattie and MF Stevens (ed), Married Women and the Law in Premodern Northwest Europe (Woodbridge, 2013); Phillips, Women in Business 23–47; S Staves, Married Women’s Separate Property in England, 1660–1833 (Cambridge MA, 1990). 49  R Burn, The Justice of the Peace and Parish Officer, 15th edn (London, 1785) vol 2, 206. 50  The Justice of the Peace, and Parish Officer. By Richard Burn, LL.D. Late Chancellor of the Diocese of Carlisle. Continued to the Present Time by John Burn, Esq. His Son, The Eighteenth Edition: Revised and Corrected (London, 1793) vol 3. 51 Steedman, Everyday Life, 127–78; BJ Todd, ‘“To Be Some Body”: Married Women and the Hardships of the English Laws’ in H Smith (ed), Women Writers and the Early Modern British Political ­Tradition (Cambridge, 2010) 343–62.

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well have encountered such a woman in his social life (and he had daughters to protect in marriage), but never in the parlour at Clifton Hall, which was crowded weekly by poor women craving the peace against their husbands, servants arguing contract with their mistresses, and workmen and workwomen whose employers said they had not finished the task they had contracted to undertake. Women craving the peace against their husbands—and interpersonal violence in general—preoccupied magistrate Clifton less than the poor-law business and the law of labour and employment. Yet 34 out of 217 of the cases he noted between 1770 and 1815 involved interpersonal, non-lethal violence, and a further 29 involved sexual and domestic violence; the majority of the last involved women asking for protection against their husbands and partners. In the Commentaries, Blackstone had historicised the question of how far a husband might ‘give his wife moderate correction’; he had cited Hawkins; he was describing ‘the old law’, he said. The reason why, in former times ‘the law thought it reasonable to intrust … [a husband] with … power of restraining her, by domestic chastisement’ was that, as with his servants and children, ‘the master or parent is also liable in some cases to answer’. The power of correction had always been confined ‘within reasonable bounds’. Some civil law had indeed sanctioned severer punishment in the remote past; but now, in happier and more polite times ‘a wife may … have security of the peace against her husband’, indeed, the ability of a husband to beat his wife had been questioned as far back as the reign of Charles II.52 He then threw the same dark light on working-class husbands as nineteenth-century feminists and twentieth-century historians were to do, remarking (perhaps satirically) that ‘the lower rank of people, who were always fond of the old common law, still claim and exert their antient privilege …’.53 Many Clifton wives and girlfriends complained to the magistrate about being most brutally used; whether they or their partners thought they were exerting an ancient privilege in hitting them is an imponderable question. What is clear is that they knew they could ask the local magistrate to restrain their men; what Sir Gervase knew was that the poor women complaining to him had the legal ability to crave the peace against them. But Blackstone’s statement on domestic chastisement figured not at all in the legal imagination of Sir Gervase Clifton nor of the women who trudged up the avenue from the village to Clifton Hall. When—if—the magistrates’ handbooks provided guidance on the marital chastisement question, they cited seventeenthcentury authorities. What a modern magistrate needed to know was to do with a married woman’s ability to crave the peace, not her husband’s beating of her.

52 Blackstone, Commentaries

vol 1 286–87 [432–33]. Siegel, ‘“The Rule of Love”: Wife Beating as Prerogative and Privacy’ (1996) 106 Yale Law ­Journal 2117–2207; J Bailey, ‘“I dye by Inches”: Locating Wife Beating in the Concept of a Privatization of Marriage and Violence in Eighteenth-century England’ (2006) 31 Social History 31 273–94; J Aitken, ‘“The horrors of matrimony among the masses”: Feminist Representations of Wife Beating in England and Australia, 1870–1914’ (2007) 19 Journal of Women’s History 107–31. 53  RB

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The case was somewhat different in the US, as we shall see. The internet is alive to the sound of Francis Buller, justice of the King’s Bench 1778–1794, allegedly opining in 1782 that a wife might be beaten with a stick no bigger than her husband’s thumb, with many careful accounts of the case law Buller did actually refer to on that occasion, and a great many reproductions of Gillray’s very funny depiction of ‘Judge Thumb’. There was no such journey of dark hilarity though the magistrates’ handbooks to attribute to Blackstone the ‘rule of thumb’, though those who saw the Gillray print were at liberty to make the connection (and one judge with a name beginning with B sounds pretty much like another).54

IV.  Atlantic World Coverture I once thought to ask if my hypothetical law-reading girl of the 1790s felt angry at Blackstone’s account of coverture, but now the question does not seem worth the asking, and not because she was one who preferred ‘the compilation of receipts to that of records’ so condescendingly figured by the Caledonian Bee. ‘Coverture’ had implications for women of wealthy families, and those of the very poor sort, not for a girl like her. But the pathways of the Commentaries through print culture and civil society in the new US were different, and criticism of Blackstone’s reputed position on women loud and vociferous. And it was seen in the US as a ‘position’ on wives and wife-beating—no matter how anachronistic the term—not a mere restatement of what ‘everyone knew’ anyway, and had known, from at least the seventeenth century about women and the law. Blackstone’s statement of the doctrine of coverture has enraged many, says Nicola Phillips. It was a rage fomented in the US, which then made its way across the Atlantic to twentieth-­century ­Britain.55 All commentators on this process, including Blackstone’s severest critic, the US historian Mary Ritter Beard, pointed out that the Commentaries were fundamentally important to the shaping of the US constitution, and played a role in US legal education in a way they never did in the UK.56 Early nineteenth-century US legal

54  National Portrait Gallery, NPG D12316, Sir Francis Buller, 1st Bt (‘Judge Thumb’), by James Gillray, published by William Humphrey, hand-coloured etching, published 27 November 1782; J Oldham, ‘Buller, Sir Francis, first baronet (1746–1800)’, Oxford Dictionary of National Biography, ed HCG Matthew and B Harrison (Oxford, 2004). 55 Phillips, Women in Business 24–25; The Papers of Elizabeth Cady Stanton and Susan B Anthony Project: ; BA Carroll, ‘Mary Beard’s Woman as Force in History: A Critique’, in BA Carroll (ed), Liberating Women’s History: Theoretical and Critical Essays (Urbana IL, 1976) 26–41. 56 Phillips, Women 34–35; MR Beard, Woman as Force in History: A Study in Traditions and Realities (New York, 1962 [1946]) 88–89, 117–32 (‘Sway of Blackstone in the United States’); R and C Polin, Foundations of American Political Thought (New York NY, 2006); Prest, William Blackstone 291. See also Ch 11 below.

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­treatises discussed the ‘chastisement prerogative’, ambivalently to be sure, but loudly, in a way that was not the case in England.57 Mary Beard’s 1946 critique of the Commentaries focussed on the way in which ‘Blackstone Extinguished the Married Woman’s Personality’.58 The subjection of women was written large throughout history, said Beard; all historians had done similar work to Blackstone, in ignoring the multiple ways in which women could and did act. Blackstone had played his part in effacing women’s agency by concentrating on the common law rather than on equity which, said Beard ‘assured to married women rights of property denied to them by the Common Law’.59 ‘Blackstone was savagely attacked … by the American feminist Mary Beard for his omissions, particularly over women’s legal rights in equity’, says Phillips.60 She goes on to discuss the feminist position in which ‘law’ is held responsible both for ‘causing women’s subordination and being a reflection of the patriarchal attitudes that lay behind it’; ‘the claim that the common law reduces women to mere objects of property is … still a common one among modern feminists’.61 In the 1970s a wave of feminism transported Blackstone and his reputation from the US back to Britain. In the UK Beard’s critique was joined to new readings of John Stuart Mill’s feminist argument in The Subjection of Women (1869), and to early twentiethcentury suffrage inspired histories, like Alice Clark’s.62 A particularly important text for British feminism was the 1983 reissue of Mill’s pained and painful account of violence perpetrated against women by men and the law, by the feminist publishing house Virago.63 Ray Strachey’s The Cause, first published in the UK in 1928, appeared as a US imprint for the first time in 1969 and was reissued by Virago

57  Siegel, ‘Rule of Love’. And still do discuss it: JEB Myers, Myers on Evidence in Child, Domestic, and Elder Abuse Cases (New York NY, 2005) vol 1, 763. 58  Beard was an even severer critic of Blackstone as a person: she claimed that ‘his thinking and writing about law were visibly influenced by his acquired sentiment of class’ and that ‘like many a commoner, [he] … outdid the gentleman in his effusive praises of the ruling class in State and Church’. Beard, Woman, 58, 91. 59 Beard, Woman as Force 92–105; C Beattie and MF Stevens, ‘Introduction: Uncovering Married Women’ in Beattie and Stevens, Married Women and the Law 1–10. 60 Phillips, Women 35. 61  ibid 25. 62  This brief account of Blackstone’s transatlantic journeys owes much to Nicola Phillips’ brilliant disentanglement of them in Women in Business. A Clark’s The Working Life of Women in the Seventeenth Century was published in 1919. For the feminist movement in historical writing, and the trajectory of work like Clark’s in the (British) university history classroom in the 1980s, see J Hannam, ‘­Women’s history, feminist history’, . Also J Purvis, ‘From “Women ­Worthies” to Post-structuralism? Debate and Controversy in Women’s History in Britain’, in Purvis (ed), Women’s History: Britain, 1850–1945: An Introduction (London, 1995) 1–19. For the way in which Mary Beard’s account ‘misleads on the subjects of equity’ (and makes Blackstone and Mill ‘strange bedfellows’) E Spring, Law, Land, and Family: Aristocratic Inheritance in England, 1300 to 1800 (Chapel Hill NC, 1993) 116. 63  For John Stuart Mill as a nineteenth- and twentieth-century feminist, K Soper, ‘Introduction’, in HT Mill, The Enfranchisement of Women / JS Mill, The Subjection of Women, ed K Soper (London, 1983).

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Press for the UK market in 1978. By this route, UK readers learned of ‘Blackstone’ and ‘coverture’, terms previously not in their historical lexicon.64 Mill had detailed the sexual, physical, and legal violence experienced by mid-Victorian wives, but had nowhere used the term ‘coverture’, and never mentioned the rule of thumb. We have now a more complex and contradictory picture of ordinary women’s economic lives than the one put in place by Blackstone’s nineteenth- and twentieth century Atlantic-world critics. There were many circuitous routes by which different sections of the law allowed married women to trade without changing the doctrine of coverture. Wealthy families might have access to an equity court for the protection of a woman’s property in marriage; Susan Staves discussed these historical arrangements in the early 1990s.65 Margot Finn has described the proliferation of courts of conscience (‘Courts of Request’ or ‘Small Debts Courts’) from the 1780s onwards. These summary tribunals served labourers, artisans, and petty producers in the recovery of debt. They were equity courts which allowed the small debtor to circumnavigate the common law, and they were, according to Finn and one of their first Birmingham Commissioners, William Hutton, full of women, married, unmarried, and who-knows-what, pursuing their own economic ends.66 All eighteenth-century legal treatises explained the exceptions to coverture, with a particular emphasis given to married women feme-sole traders.67 Recently, Amy Erikson has dramatically reversed the older historical picture by claiming that England developed an extensive capitalist economy earlier than did mainland Europe because of the gender structure of English property law. A ‘cash economy, the debt-credit markets, and public investment’ spread so completely throughout the society because of ‘the flipside of coverture’, that is, because unmarried women (femes-soles; the never-married and widowed): enjoyed a position unique in Europe as legal individuals in their own right, with no requirement for a male guardian … married English women had fewer resources at their disposal but single English women had more resources at their disposal than elsewhere … England was unique in considering unmarried adult women … as legal individuals.

64  R Strachey, The Cause: A Short History of the Women’s Movement in Great Britain (London, 1928; reprint: Port Washington NY, 1969; reprint: London, 1978) 270–71, of the last for ‘the coverture system’, a term used by Strachey when describing the Parliamentary campaign for women’s property rights; 15 for Blackstone and the legal disabilities of women. The US edition still moves modern readers: see a Google Books’ review of The Cause (https://books.google.co.uk/books/about/The_cause. html?id=Y1QOAQAAIAAJ&redir_esc=y): ‘With the movie “Suffragette” [2015] about to hit the screens, I thought I should read this book, which has been on the bookshelf for a long time. Written in 1928, it is entirely the Great Britain story, but what a story it is—starting in about the 1840’s and finishing in the 1920’s … you can feel the determination and courage … fairly seeping off the pages … Anybody involved with a movement for justice or fairness will recognise this story’. 65 Staves, Married Women’s Separate Property. 66  W Hutton, Courts of Request; their Nature, Utility, and Powers described, with a Variety of Cases, determined in that of Birmingham (London, 1787); M Finn, The Character of Credit: Personal Debt in English Culture, 1740–1914 (Cambridge, 2003) 202–25. 67 Phillips, Women 30.

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That is half, or more than half, of the adult female population, at any point in time.68 In 1992, Linda Colley had said the same. She rehearsed the conventional story of women and property and coverture to conclude that as far as property ownership was concerned ‘female Britons were in much the same position as the majority of their male countrymen’.69 Historians have uncovered some of the complex arrangements—some say stratagems—by which men and women, and attorneys and magistrates, made the laws respecting women work for the purposes of everyday life, during the long eighteenth century; but as yet we possess only one extraordinary account of how coverture operated in the heart and mind of an eighteenth-century American woman. Abigail Bailey (b. 1746, New Hampshire) struggled with the idea of coverture and what it implied about her marriage to a violent and abusive man who knew the law and lawyers much better than did she, all through the 1780s and 1790s. Her memoirs have been read by Hendrik Hartog for her ‘common sense assumptions about law and marital power and personal transformation’.70 Her struggles on the page suggest that coverture did not so much ‘extinguish the married woman’s personality’ (as Mary Beard had it); it rather enhanced knowledge of her own spiritual being, of herself as one of God’s creatures, and thus as a social creature, too. The recent collection Married Women and the Law emphasises throughout what Abigail Bailey learned so painfully (yet in Hartog’s account, so triumphantly): that eighteenth-century Anglo-American law ‘considered a married woman’s soul … her own’.71 Nineteenth-century novelists explored similar propositions in their characterisation of femes-coverts—and their husbands. Sometimes, the writer’s modern ­critics link Blackstone to coverture and wife beating, all over again. A 2009 article on Wuthering Heights discusses Emily Bronte’s knowledge of coverture and the ‘prerogative of chastisement’, demonstrated in her depiction of Heathcliff: While before his marriage … [he] confesses to the violent fantasy of turning Isabella’s “blue eyes black, every day or two”, after his marriage he knows that he must exercise a certain restraint. He remains within the accepted code of conduct for the baron, which grants him, according to William Blackstone, the “power of restraining her, by domestic chastisement”.72

68  AL Erickson, ‘Coverture and Capitalism’, (2005) 59 History Workshop Journal 1–16. She further argues that the ‘multiplicity of different solutions to the problems presented by coverture, and … a plethora of lawsuits to clarify the legality of those solutions’, led inevitably to ‘increasingly complex legal/financial instruments and an increased willingness to litigate’ (6–8); this stimulated a capitalist economy characterised by confidence in property law. See also S Wheeler, ‘Going Shopping’ in L Mulachy and S Wheeler (ed), Feminist Perspectives on Contract Law (London, 2005) 22–49. 69  L Colley, Britons: Forging the Nation, 1707–1837 (New Haven CT, 1992) 39. 70  H Hartog, ‘Abigail Bailey’s Coverture: Law in a Married Woman’s Consciousness’ in A Sarat and T R Kearns (ed), Law in Everyday Life (Ann Arbor MI, 1993) 63–108 at 68. 71  Stretton and Kesselring, ‘Introduction’, in Married Women 12; B J Todd, ‘Written in Her Heart: Married Women’s Separate Allegiance in English Law’, in ibid 163–91, 164. 72 Judith E Pike, ‘“My name was Isabella Linton”: Coverture, Domestic Violence, and Mrs ­Heathcliff ’s Narrative in Wuthering Heights’ (2009) 64 Nineteenth-Century Literature 347–383, 368.

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V.  Blackstone in Court with Coverture He made the strongest eighteenth-century statement of the principle of coverture, yet it is unlikely that we will ever discover Blackstone’s own opinion on the matter—or that it would be very illuminating if we could. A sight of the personal legal advice he provided for family and friends in regard to marriage settlement and women’s property would be interesting, but would probably only reveal a lawyer, a judge, and a friend, doing the best he could with the law as it was in regard to elite women, just like everyone else.73 Wilfrid Prest says that a detailed reconstruction of Blackstone’s Westminster Hall activities may well be beyond our reach.74 And though our reach may extend to the interstices of its everyday functioning, in the assessed taxes appeal system for example, in poor law settlement appeals to King’s Bench, we learn little more. We can see what Blackstone said and what he did within the appeal system, just as we can find him making judgement at county assizes, but he spoke as ‘the court’, not as a person. We cannot reveal Blackstone’s personal opinion on the matters of coverture before him.75 In his own Reports, Blackstone noted the opinion of Common Pleas on married women, as for example in 1763 (long before he was a judge) when a feme sole arrested for debt turned out to be a feme covert. The court thought the shopkeeper bringing the case to blame: he should have made better inquiries into her marital circumstances.76 Judge Blackstone again commented on tactically incurious tradesmen (but how else did you make a sale?) in 1776, when he saw ‘no hardship in a man’s losing his money, that avows upon the record, that he furnished a coach to the wife of a player, whom he knew to have run away from her husband’. He quoted his own Commentaries to say that ‘the contrary doctrine militates against the first principles of English law, which considers that a woman’s powers,—nay, almost her very being, as suspended during the coverture’.77 He recorded nine cases involving femes-coverts in his own Reports (he was involved as barrister or judge in two of them, as we have just seen), all of them making plainer the law of bankruptcy, bail, debt and credit, and the position of married women trading as femes-soles. All but one involving femes-coverts were heard in Common Pleas.

The most recent restatement of coverture/rule-of-thumb is by Samantha Ellis, Take Courage: Anne Bronte and the Art of Life (London, Chatto and Windus, 2017) 213; which is (also) a brilliant account of the domestic violence Bronte figured in Agnes Grey (1847) and The Tenant of Wildfell Hall (1848). 73  Of course Blackstone did have opinions, about a great many matters including the personal ­ roperty of married and about-to-be married women. See Prest, William Blackstone 122–3; idem, p Blackstone as a Barrister (London, 2011) 23–28. However, when he opined as judge, there are great difficulties in distinguishing personal opinion from a statement of the law, as he understood it. 74 Prest, William Blackstone 167. 75  R v Paty [1770] 1 Leach 72, 168 Eng Rep 138 [KB]. 76  Whitten v Fuller [1773] 2 Black. W 902, 96 Eng Rep 533 [CP]. For Blackstone’s movement between Common Pleas and King’s Bench, see Prest, William Blackstone 255–61. 77  Hatchett v Baddeley [1776] 2 Black. W 1079–1082, 96 Eng Rep 636 [CP].

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Here was some kind of interaction with married women of property, even if the property consisted only of a tray of laces for street sale, or was stolen from ­someone else. He encountered (on paper) some few women of the employing classes in the work he did at King’s Bench as part of the Servant Taxes appeal system. He was present at the four meetings that considered appeals made by (or on behalf of) five female employers. But the judges were determining whether or not local Commissioners had acted correctly in assessing an employer for having a servant, not whether employers were right or wrong, and in no case did the question of coverture arise. Sometimes, a woman’s marital status was given (she was a widow for example), but the act of Parliament inaugurating the Servant Tax (17 Geo. III c. 39, 1777) had not figured employers as men or women, or as ­femes-soles or femes-coverts; it had interpellated employers, plain and simple and gender-­neutral.78 In these circumstances the question of whether or not a married woman could make contract with a day-labourer or a footman simply did not arise—and married women did, everyday, all over the country. Poor Law appeal cases are no more revealing of Blackstone’s position on the coverture of propertyless women.79 When he sat with the other Judges to hear appeals to King’s Bench, Lord Mansfield, who had a great many opinions— trenchant, widely-known—about the Poor Law, outspoke the rest of the judges put together.80 Mainly working in Common Pleas, Blackstone saw far less of the sloughing off of parish poor by ratepayers than did Mansfield.81 As Recorder of Wallingford, in the 1750s, he attended some Berkshire Quarter Sessions meetings and was occasionally part of QS committees listening to appeals against poor rate assessments.82 He made practical attempts to bring some order to the laws of settlement and removal beyond the statement of their inefficiency.83 As an MP—and lawyer—Blackstone was nominated to a House of Commons committee whose

78 Steedman, Labours Lost, 129–71; Commissioners of Excise, Abstract of Cases and Decisions on Appeals Relating to the Tax on Servants (London, 1781). 79 K Kippen, ‘Poor Law, Coverture, and Maintaining Relations in King’s Bench, 1601-1834’ in ­Stretton and Kesselring, Married Women 64–89; St Devereux v Much Dew Church [1762], 1 Black. W 367 96 Eng Rep 205 [KB]; R v Inhabitants of Salford [1764], J Burrow, Decisions of the Court of King’s Bench upon Settlement Cases; from the Death of Lord Raymond in March 1732, to June 1776, inclusive … Second Edition (London, 1786), 516–19 [KB]; Over-Norton Parish v Salford Parish [1763] 1 Black. W 433–5, 2 96 Eng Rep 247 [KB]; R v Walpole St Peters, Norfolk [1769], 1 Black. W 669, 96 Eng Rep 390 [JB]. 80  C Steedman, ‘Lord Mansfield’s Women’ (2002) 176 Past and Present 105–143. 81  In the Commentaries he said much the same as Mansfield, but in milder tone: ‘notwithstanding the pains that has been taken about them [the Poor Laws], they still remain very imperfect, and inadequate to the purposes they are designed for: a fate, that has generally attended most of our statute laws, where they have not the foundation of the common law to build on’. Things had been much better for the poor under the Great Alfred. Blackstone, Commentaries vol 1, 234 [353]; also Blackstone, Commentaries vol 4, 20 [31–32]. 82 See Ilmington v Mickleton [1766] 1 Black. W 598, 96 Eng Rep 346 [KB]: case of a woman in her coverture assessed to the poor rate. 83  See the statements of Blackstone and Mansfield in R v Inhabitants of Kirkby Stephen [1770] on the organisation of parishes and townships; Mansfield made his familiar criticism of ratepayers casting their burden of paupers anywhere-but-here: Burrow, Decisions 664–69 [KB].

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report formed the basis of the later Poor Law Act (1782); this provided for the organisation of poor relief on a county basis and was another attempt to bring some order to the vast, sprawling succubus of the poor law system.84 But his own experience of coverture and its ramifications in court was in relation to women of property, moveable and real, however small and meagre.

VI.  Coverture in Everyday Life Our reading-girl is married now; it’s—say—1810. Married—best case scenario— to an amiable man who will, in his later years, heartily endorse the political philosophers’ cry of Shame! against the very idea of coverture. He will not have heard the term since the day the attorney called on his father-in-law way back in 1805 with the marriage settlement papers. He will not be reminded of it when in 1825, he reads the excoriating account of married women’s disabilities under the law that was William Thompson’s Appeal on Behalf of One Half of the Human Race, against the Pretensions of the Other Half, Men, for Thompson nowhere used it.85 It is unlikely that either of them will live long enough to read Barbara Bodichon’s A Brief Summary, in Plain Language, of the most important Laws concerning Women (1854). Bodichon will mention coverture once in her pamphlet, but will not associate it with Blackstone’s name.86 In 1810 our (fictional) young married woman remembers something of Blackstone on coverture, but much more of his history lessons. In her married state she hires and fires the servants as needed; there are many guides to help her devise yet another new parole contract to get them to do something of what she wants before they up and leave (she has not slapped a servant since 1784). Really (impossibly) the couple would agree with the conclusions of the most recent scholarship on coverture: that it did not form a unitary, hegemonic system either in law or ­everyday

84 Prest, William Blackstone 74, 228. The Relief of the Poor Act 1782 (22 Geo. III c.83) or Gilbert’s Act, was drafted with Blackstone’s help, but not achieved until after his death. SA Shave, ‘The Welfare of the Vulnerable in the Late 18th and Early 19th Centuries: Gilbert’s Act of 1782’ (2008) 14 History in Focus, www.history.ac.uk/ihr/Focus/welfare/articles/shaves.html. 85  W Thompson, Appeal on Behalf of One Half of the Human Race, against the Pretensions of the Other Half, Men, To Retain them in Political, and Thence In Civil and Domestic Slavery (London, 1825). For Thompson’s importance to 19th-century feminism, its 20th-century reconstruction, and to the campaign for women’s property rights, see Soper’s Introduction to Mill’s Subjection of Women; also C Pateman, The Sexual Contract (Cambridge, 1988). Thompson was graphic in his depiction of domestic cruelty to women—physical and psychological—but he nowhere mentioned coverture—or the rule of thumb, for that matter. 86 BLS Bodichon, A Brief Summary, in Plain Language, of the most important Laws concerning Women, together with a few Observations thereon (London, 1854) 3. Her one observation on Blackstone anticipates that of Mary Ritter Beard a century on: he was, she said, ‘an admirer of, rather than a critic on, every law because it was law’ (8). Now, in the 1850s, that admiration has been exchanged for ‘a bolder and more discriminating spirit’. She then footnotes Edward Christian’s observation (1823 edn of the Commentaries), that propertied women are taxed without political representation.

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life. And we may add: Blackstone’s powerful historical-philosophical statement of coverture was not much circulated, in the press, in the Reports, in guides to the law of everyday life in the way more matter-of-fact seventeenth-­century statements continued to be repeated, right through to the nineteenth century. (The case was different in the US, as we have seen.) ‘Coverture’ was revived by early twentiethcentury campaigners for women’s rights and late twentieth-century historians. It may be no good guide at all, to uncovering ordinary people’s criticism of the law in the past.

9 Professing Law in the Shadow of the Commentaries DAVID LIEBERMAN1

Blackstone devoted his inaugural lecture as Oxford University’s first Vinerian ­Professor of the Laws of England to the topic, ‘On the Study of the Law’. Delivered on 25 October 1758, within a week of Blackstone’s election to the professorship and less than three months after the university’s formal adoption of the terms governing Jacob Viner’s benefaction, the lecture achieved greater permanence as the opening chapter of the 1765 first volume of the Commentaries of the Laws of England. It introduced all the subsequent editions produced by Blackstone and his later editors into the nineteenth century. Much of the lecture survived into the radical recasting of the work for an English audience first published by HJ Stephen in 1841 as the New Commentaries of the Laws of England. The New Commentaries, in turn, remained in print until the mid-twentieth century. Blackstone’s strictures concerning the study of law were, of course, a product of time and place. We now know a great deal about the institutional and professional contexts in which Blackstone operated and which he sought to influence.2 But like so many other features of Blackstone’s career, the unparalleled longevity of the Commentaries and the heterogeneous settings in which it made its impacts impose an interpretative challenge as well as a potentially distorting perspective. Whatever the iconic status of the Commentaries, we might well think that Blackstone’s mid-eighteenth-century judgments concerning university study and legal pedagogy were singularly unlikely candidates for later notice, given the pervasive transformations in legal practice, university education and scholarly research that followed him. Yet, Blackstone did survive into these settings, ­sometimes as ­little 1  I am indebted to Gabriel Beringer for excellent research assistance and to Wilf Prest and Anthony Page for their patience and support. My thanks also to the participants at the 2015 Australia and New Zealand Law and History Society Conference for their responses to an earlier version of this chapter. 2  Scholars are especially indebted to the recent publications of David Lemmings and Wilfrid Prest: D Lemmings, ‘Blackstone and Law Reform by Education: Preparation for the Bar and Lawyerly Culture in eighteenth Century England’ (1998) 16 Law and History Review 211–55; D Lemmings, Professors and the Law: Barristers and English Legal Culture in the Eighteenth Century (Oxford, 2000) 107–48; W Prest, William Blackstone: Law and letters in the Eighteenth Century (Oxford, 2008).

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more than a valuably famous predecessor or as a flag of intellectual c­ onvenience; often as a serious intellectual target. My aim in this chapter is to explore this strand of Blackstone’s legacy, considering several leading nineteenth-century jurists and confining myself to a British context. As I seek to show, by the mid-nineteenth century the relevance of Blackstone’s approach to university-based legal education had been forcefully rejected. However, the major re-characterisation of his achievement early in the twentieth century by AV Dicey made possible a no less emphatic endorsement of the power of his example.

I.  Blackstone and Law in Universities Blackstone’s impact on arguments concerning the place of legal study in university education needs to be distinguished from the more familiar story of his influence on the training of lawyers and on the practice of law in the common law world in and especially beyond England. But, additionally and separately, debates over legal education became one of many settings in which criticisms of Blackstone solidified and his achievement underwent reinterpretation. The continued professional use of the Commentaries naturally established one reason for Blackstone’s place in later educational debates. The re-emergence at the end of the nineteenth century of the Vinerian professorship as a significant site for academic legal scholarship forged another important connection. Following the example of Dicey, whose prestige and publications did so much to resurrect the Oxford chair, Vinerian professors cultivated a small cottage industry of assessments of Blackstone. The practice reached something of an apogee in the volumelength treatment by Oxford’s eleventh Vinerian Professor, HJ Hanbury’s 1958 The Vinerian Chair and Legal Education. Unsurprisingly, Commentaries on the Laws of England figured at the centre of Hanbury’s account of the momentous beginnings of the professorship. ‘The book’, he extolled, ‘exudes learning and true judgment, and, in point of style, is unsurpassed by any of the writing in the literature of English law, on whose development its influences has been immense, and will never fade so long as that law endures’.3 Given a sufficient degree of generality and abstraction, Blackstone’s instruction could be mobilised to speak to an enduring set of contested questions: the law’s credentials for inclusion in the more general project of liberal education; the political stakes for the educated classes’ understanding of the law and for the education of lawyers; the place of the universities in professional training generally; the benefits of academic legal study to the conduct

3 HJ Hanbury, The Vinerian Chair and Legal Education (Oxford, 1958) 39. Contributions to this genre by later Vinerian professors include: WS Holdsworth, ‘Some Aspects of Blackstone and His ­Commentaries’ (1932) 4 Cambridge Law Journal 261; R Cross, ‘The First Two Vinerian Professors: Blackstone and Chambers’ (1979) 20 William and Mary Law Review 602.

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of professional practice and to the quality of the law itself; the benefits and costs of the alternative mode of legal training anchored in pupilage and apprenticeship. Since the mid-twentieth century, the content and recipients, the scale and the sites, of legal study in Britain have developed in ways that Hanbury, let alone ­Blackstone, could scarcely have anticipated. The size of law faculties has d ­ ramatically grown; once novel sub-fields are now entrenched; the number and backgrounds of law students are far different; law teachers now research and publish principally for an audience of other academic lawyers; and legal education itself has been made a specialist field. And yet, even so, Blackstone remains emblematic. William Twining, for example, gave the title, Blackstone’s Tower, to the published version of his 1994 Hamlyn lectures on ‘the English Law School’. A major theme of the work was the extreme novelty of the modern law school in Britain, whose character, he explained, was ‘in most respects a recent creation’; a product of the period after 1945 and especially of the changes in law faculties since the 1970s. N ­ onetheless, Twining’s organising plea that legal study should become part of ‘mainstream … intellectual culture’ began without irony or p ­ aradox by invoking the figure of ­William Blackstone. ‘Blackstone’, Twining explained, ­‘provides an obvious starting point … He was the first great modern English academic lawyer … and he tried to establish the study of law as a University subject’.4 Blackstone’s own lecture on the ‘Study of Laws’ was one of the settings in which he emphasised the innovation and ambition of his situation as the first to profess English law at an English university. His subject ‘comprised a species of knowledge, in which the gentlemen of England have been more remarkably deficient than those of all Europe besides’.5 His task was to justify the inclusion of English law as a subject fit for the university. To do so, Blackstone defended the law’s credentials as a rational science, which meant overcoming the long monopoly enjoyed by Roman law (the ‘civil’ law) in the curriculum at Oxford and Cambridge. He explained the usefulness of its study, which chiefly concerned the governing elites Blackstone hoped to reach in his Oxford audience. He proposed in future that university law study should precede professional legal training in the metropolis, a recommendation with potent implication for the social composition of the bar, as well as for the relations between the University and the Inns of Court. As was the case with later enthusiasts for university-based legal study, his educative p ­ rogramme both presupposed and was designed to strengthen the strict hierarchical division of the English legal profession. Among other goals, he explicitly sought to repudiate the recent practice by which ‘the foremost ranks of the bar’ began their legal education ‘at the desk of some skillful attorney’.6

4 

W Twining, Blackstone’s Tower: The English Law School (London, 1994) 192, xix, 1. Blackstone, Commentaries on the Laws of England, Book I: Of the Rights of Persons, ed D Lemmings and W Prest (Oxford, 2016) 9 [4]. Here and below, numbers in square brackets refer to the pagination in the first edition of the Commentaries (1765–69). 6  ibid 28 [32]. 5 W

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Each of these positions raised issues that would continue to animate controversies over the reform of legal education. But it is helpful to attend to the terms in which Blackstone made his case, if only to get a sense of the distance between Blackstone’s specific advocacy and later debates, and of those parts of his lecture that later readers chose to neglect. Much of the more practical case for English law study at Oxford addressed the kind of students Blackstone anticipated for Vinerian instruction. The changing needs of students was a common theme in eighteenth-century arguments over educational reform. In this instance, Blackstone’s handling of the theme offered a revealing contrast to the like-minded case made a half-century earlier by another Oxford scholar and lawyer, Thomas Wood. In his 1708 Some Thoughts Concerning the Study of the Laws of England in the Two Universities. Wood devoted most of his attention to the benefits of such study for the future members of the Anglican clergy.7 Blackstone did not ignore the needs of future clergy. However, the bulk of his appeal rested on a different cohort of Oxford undergraduates: ‘the ­nobility of this realm’ and more especially ‘our gentlemen of independent estates and ­fortune’.8 These students would soon perform weighty public responsibilities— such as service as jurors, justices of the peace and even members of Parliament— whose successful performance depended on an adequate general knowledge of the kingdom’s laws. Such responsibilities, for Blackstone, were far from casual matters. In these remarks he disclosed a key political goal behind this effort to reach this elite audience. Each identified topic later received critical attention when the ­Commentaries came to examine in detail the health of jury process, the burdens placed on the justices of the peace, and the repeated defects of parliamentary ­lawmaking. As he pointedly put it in his inaugural lecture, ‘it is perfectly amazing that there should be no other state of life, no other occupation, art or science, in which some method of instruction is not looked upon as requisite, except only the science of legislation, the noblest and most difficult of any’. ‘But’, he continued, ‘every man of superior fortune thinks himself born a legislator.’9 In addition, Blackstone more pragmatically reminded this audience of how their social position was based on landed wealth, a form of property that was subject to the most technical and challenging rules of common law. Given that ‘their landed property’ came burdened ‘with long and voluminous train of descents and conveyances, settlements, entails and encumbrances’, the gentry had a direct material interest in understanding ‘a few leading principles relating to estates and conveyancing’.10 Shifting from the concerns of ‘our gentlemen in general’ to the situation of future practitioners, his proposal that university legal study serve as a p ­ rerequisite for professional practice responded to unfortunate changes in the educational 7  T Wood, Some Thoughts concerning the Study of the Law of England in the Two Universities (­ London, 1708) 8–18. Wood’s tract was standardly republished in editions of his 1720 Institute of the Laws of England. 8 Blackstone, Commentaries vol 1, 14, 11 [11, 7]. 9  ibid 9. I emphasise this reading of Blackstone’s goals in D Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (Cambridge, 1989) 56–67, 208–9, 214–5. 10 Blackstone, Commentaries vol 1, 11 [7].

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landscape. The metropolitan Inns of Court had long since ceased to function as the kingdom’s ‘juridical university’, when they attracted future practitioners as well as ‘the young nobility and gentry’ to instruction in ‘the originals and elements of the laws’. Student numbers at the Inns had steeply declined, and B ­ lackstone appealed ‘to the experience of every sensible lawyer’ to confirm the defects of the existing ‘usual entrance on the study of the law’. The aspiring lawyer faced ‘a t­ edious lonely process’ of largely self-directed study ‘to extract the theory of law from a mass of undigested learning’ and of ‘assiduous’ court attendance ‘to pick up theory and practice together, sufficient to qualify him for the ordinary run of business’.11 At the same time, Blackstone explicitly rejected the alternative model which was simply to abandon all pretense of ‘liberal education’ and instead place the aspiring lawyer ‘in all the depths of practice’ and train him ‘in the mechanical part of business’. Once more, he emphasised the social implications of the decline of the Inns. In contrast to earlier periods, he reported, ‘few gentleman now resort to the inns of court’ and instead left Oxford to retire ‘to their estates’ or to visit ‘foreign kingdoms’. Hence, it fell to the universities to provide the site for ‘instruction in the laws of England’ in a setting where ‘gentlemen may … associate with gentlemen of their own rank and degree’.12 Blackstone did not confine his advocacy to these pragmatic and socially conservative themes. Indeed, his very first argument was to insist as ‘an undeniable position’ that ‘a competent knowledge of the laws of that society in which we live’ was ‘the proper accomplishment of every gentleman and scholar’ and an ‘essential part of liberal and polite education’. He immediately invoked the example of ancient Rome and the testimony of Cicero to show that the knowledge of native laws and constitution was properly regarded as fundamental to the education of future citizens. Later in the lecture he returned to the aspiration that the university-based study of English law become entrenched in any programme ‘of liberal and genteel accomplishments’. He again turned to established classical models, quoting Aristotle: ‘jurisprudence or the knowledge of [native] laws is the principal and most perfect branch of ethics’.13 For jurists of Blackstone’s era, the study of jurisprudence and ethics had been transformed through the impact of Hugo Grotius and his several influential ­successors who treated the law and rights of nature; or, in the terminology of the time, offered systems of ‘natural jurisprudence’. Grotius’s 1625 Rights of War and Peace, according to his enthusiasts, succeeded in raising the ‘science of morality’ ‘from the Dead’, and liberated ethics and legal study from the suffocating weight of ­scholasticism and casuistry.14 Translations of the best editions of the major works of Grotuis and of his successor, Samuel von Pufendorf, were available in English by the mid-eighteenth century. In the Protestant universities of northern Europe,

11 

ibid 23, 27 [25, 31]. ibid 28, 24 [32, 26]. ibid 10–11, 25 [6, 27]. 14  J Barbeyrac, ‘Historical and Critical Account of the Science of Morality’, in S Pufendorf, Law of Nature and Nations (London, 1749) 66–67. 12  13 

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as in Scotland, this modern theory of natural law entered into the curricula of moral instruction and jurisprudence. Such institutionalisation did not occur at either Oxford or Cambridge. Nonetheless, at Blackstone’s Oxford, Grotius and Pufendorf were recognised as the ‘ornaments of the last century’ and ‘fathers ­ of modern jurisprudence’.15 And Blackstone noted with regret the ‘fashion … ­especially of late’ for English students to travel to ‘foreign universities, in Switzerland, Germany, and Holland’ to learn the basics of civil (Roman) law and thus to neglect ‘our admirable system of laws’.16 Something of the impact of the new jurisprudence on Blackstone’s Oxford teaching can be seen in his decision first to consider ‘the Nature of Laws in G ­ eneral’ before moving on to the detailed survey of the ‘Laws of England’. The discussion of what Blackstone termed ‘ethics or natural law’ offered a fairly conventional treatment of the rights and laws of nature, the human capacity to recognise and act upon the authority of such laws, and the source of political authority in the idea of ‘the original contract of the society’ through which natural freedom was exchanged for the benefits of organised political society.17 While ‘the law of nature’ was long recognised as a source of English law, Blackstone’s discussion was novel in its length, placement and presentation. Moreover, he returned to this ethical framework in the subsequent exposition of England’s legal institutions. Thus, in the opening chapter of the second volume of the Commentaries, on ‘the Rights of Things’ and principally devoted to Blackstone’s remarkably lucid account of the common law of estates and tenures, he first turned to the moral foundations of the right of private property ‘by the law of nature and reason’. Such discussion, he acknowledged, was omitted when law was considered ‘only as a matter of practice’. It became relevant when law was treated ‘as a rational science’.18 In defending the academic study of English law, Blackstone inevitably had to engage the established place of Roman law in university education. The rival merits of England’s law in comparison with the law of classical Rome was a wellestablished topic among the defenders of the common law. Often the case was made in terms of the substantive superiority of England’s system of customary law for treating the legal needs of the society in which it historically developed. Later in the Commentaries, Blackstone presented a characteristically eloquent rehearsal of this argument.19 But here his claim was different; it concerned the 15 

T Bever, A Discourse on the Study of Jurisprudence and the Civil Law (Oxford, 1766) 35n. Commentaries vol 1, 10 [5]. In this paragraph I summarise developments described more fully in my ‘Adam Smith on Justice, Rights and Law’ in K Haakonssen (ed) Cambridge Companion to Adam Smith (Cambridge, 2006) 214–45. 17 Blackstone, Commentaries vol 1, 34–35, 38–39 [41, 47]. The absence of legal education at the eighteenth-century Inns and the various calls for reform are surveyed and analysed by Lemmings, Professors of the Law 113–31. 18  W Blackstone, Commentaries on the Laws of England, Book II: Of the Rights of Things, ed S Stern and W Prest (Oxford, 2016) 1–2 [2–3]. 19  This theme has received many influential discussions. For a summary of the literature, see my ‘Law/Custom/Tradition: Perspectives from the Common Law’, in M Phillips and G Schochet (ed), Questions of Tradition (Toronto, 2004) 233–57. 16 Blackstone,

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credentials of England’s law as an academic subject and a worthy introduction to the more general science of jurisprudence. Blackstone directed considerable attention to Roman law’s monopoly over legal instruction at Oxford and Cambridge, offering a tendentious history to explain how English law came to be excluded from the universities. Although this particular account has received scant attention in later scholarship, it was the first appearance of an historical narrative that formed a connective theme of the Commentaries: the story of how England’s law triumphed by resisting the threats of foreign law and political interventions. In the case of English liberties and constitution, it was the menace of Norman k­ ingship and ­Stuart absolutism. In the case of English property, it was the threat of ­feudal ­tenures, manipulated by Norman jurists. In the case of legal study, it was the ‘monkish clergy’ and ‘popish ecclesiastics’ who, having failed in their efforts to eliminate common law from the royal courts, successfully prohibited native law from the universities. Having been thus ‘banished … in the times of popery’, the study of the common law was diverted to the Westminster courts and the collegiate inns. Although the arrangement survived the Reformation, the historic opportunity finally presented itself to place the study of England’s law ‘in the two universities’, rather than continue to confine it ‘to the channel which it fell into at the times I have been just describing’.20 David Lemmings has explained a key context for the founding of the Vinerian chair and for Blackstone’s programme to transform legal education. By the mideighteenth century, a longer secular pattern of reduced litigation at the courts of Westminster Hall and attendant loss of professional opportunity resulted in declining admissions to the Inns of Court and entry into the bar. Political pressures for law reform added to the challenge facing the elite legal establishment. Viner’s endowment and Blackstone’s lectures furnished a programme to re-establish ­academic legal study as one of the basic cultural resources of the kingdom’s elite and to transform the profession through the vehicle of the universities. ­Blackstone, Lemmings argues, ‘was actually the most determined and insightful among several lawyers who strived to improve the quality of professional legal education at a time when its product seemed to be failing’.21 Blackstone and even more his Commentaries, it is clear, proved a tough act to follow. His first successor in the Vinerian chair, Robert Chambers, struggled to prepare a set of lectures that covered the same subject matter and depended on the assistance of his friend, Samuel Johnson, to do so.22 Even law teachers of far greater accomplishment than Chambers recognised the challenge of surveying England’s law in the shadow of the Commentaries. Andrew Amos, who lectured in the metropolis as the first professor of English law at the new London University

20 Blackstone, Commentaries

vol 1, 18–21 [18, 20–22]. D Lemmings, ‘Blackstone and Law Reform by Education’ 215. See also the important research of CW Brooks, Lawyers, Litigation and English Society since 1450 (London, 1998) Chs 4–6. 22  Details are provided in the editorial Introduction to R Chambers, A Course of Lectures on the English Law, ed TM Curley (Oxford, 1986) vol 1, 3–29. 21 

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(University College London) and later served as Cambridge University’s Downing Professor of the Laws of England, bluntly reported: in this field of teaching, ‘the most scrupulous and ever-vigilant care’ was required, lest the student ‘have cause to complain, that he has learnt nothing more than what he could have read at home in his Blackstone’.23 For his first generation of admirers, the Commentaries vindicated the claims of the inaugural lecture. Blackstone had presented England’s law as a connected and ordered body of jurisprudence, without reducing it to the arcane technicality of its procedural forms or to the casuistry of its leading literature. As an introductory survey, the book of the lectures continued without rival. But in terms of the further pedagogic goals of his inaugural lecture, Blackstone’s teaching was a distinct failure. Robert Chambers was the first of many successors who functioned as an absentee. The chair became another Oxford sinecure and entered into what Hanbury described as ‘the period of eclipse, 1793–1880’.24 Blackstone’s further hope that Viner’s endowment of fellowships would provide a critical mass for a community of law scholars at Oxford’s New Inn Hall likewise failed. Here Blackstone’s educational ambitions fell victim to larger institutional dynamics: the fate of Oxford’s professorships in the period before the late-nineteenth century reinvention of Oxford and Cambridge; the geographic separation of Oxford and Cambridge from the courts of Westminster Hall and the professional elite; the survival and adaptation of pupilage as the central vehicle of professional training.

II.  Blackstone Superseded? The failure of the Vinerian chair can be taken as an early example of the general pattern among educational initiatives for legal study. Reforms and innovations rarely endured beyond the period of initial advocacy and implementation—a fate that attended the launch of Cambridge University’s Downing Professorship at the start of the nineteenth century; the law lectures initiated in the 1820s at the new ­London University and at the rival, King’s College, London; the new law ­professoriate created for the Dublin Law Institute in 1839; the courses of ­introductory student lectures sponsored by individual Inns of Court in the 1750s, 1790s, and 1820s, as well as the collaborative efforts of the Inns under the direction of a newly minted Council of Legal Education in the 1850s.25 When in 1882, ­Blackstone’s Vinerian successor, AV Dicey, took up the case for the universities as the proper site for teaching English law, he acknowledged at the outset that past experience p ­ rovided little support for the idea, particularly among the leaders of 23 

A Amos, On the Study of English Law: An Introductory Lecture (London, 1830) 4. Chair 79–97. 25  P Polden and M Lobban provide a valuable recent survey of these developments in W Cornish et al, English Legal System 1820–1914, vol 11 Oxford History of the Laws of England (Oxford, 2010) 1175–201. 24 Hanbury, Vinerian

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the ­profession. ‘If the Question of Whether English Law Can Be Taught at the Universities’, he began, ‘could be submitted in the form of the case to a body of eminent counsel, there is no doubt whatever as to what would be their answer. They would reply with unanimity and without hesitation, that English law must be learned and cannot be taught, and that the only places where it can be learned are the law courts or chambers’.26 Nevertheless, the case for university-based legal study remained a favoured project. Consider next the testimony of two long-influential, nineteenth-century jurists: John Austin and Henry Sumner Maine. Each became lasting contributors to the programme of legal education in England, when their major writings were adopted into the examination curriculum of the reformed law faculties of Oxford and Cambridge in the second half of the nineteenth-century. In the case of ­Austin, this was very much a posthumous achievement. His ‘Philosophy of Positive Law’ did not achieve a readership until 1861–63, when his widow, Sarah Austin, edited for publication the lectures on jurisprudence Austin first delivered in 1829. Maine’s most celebrated publication, Ancient Law, appeared in 1861. Like the Commentaries, it was a rare law book best-seller whose audience extended well beyond a professional readership. And it too was a product of the lecture hall, based on teaching Maine undertook in the 1850s in Cambridge and London.27 In the history of English jurisprudence, Austin and Maine typically appear in opposition, as the leading representatives of antithetic approaches to the study of law: ‘analytical jurisprudence’ in the case of Austin and the ‘historical school’ in the case of Maine.28 As advocates of education reform, however, the contrast is much less sharp, as is the way in which the career of each jurist was sustained by distinctive contexts of Victorian reform and institutional innovation. Both were the beneficiaries of ambitious educational innovations. Austin lectured as the inaugural professor of jurisprudence at the new London University, which unlike Oxford and Cambridge included modern law in its founding curriculum. Maine in 1854 took up the Readership in Roman law and Jurisprudence at the new Council of Legal Education, instituted by the Inns of Court to provide an academic training for perspective barristers. Both Maine and Austin drew on their academic reputations, rather than professional success at the bar, to go on to public positions in imperial service and law reform. (Maine’s appointment and public responsibilities as legal member of the governor-general’s council in India eclipsed Austin’s service as a royal commissioner in Malta.) Both jurists took advantage of the Victorian reviews to comment on current reform questions and both concluded their journalistic careers with sharp critiques of popular government.29 26 

AV Dicey, Can English Law Be Taught at the Universities? (London, 1883) 1. For full biographical details of these careers, see W Rumble, The Thought of John Austin (London, 1985) and R Cocks, Sir Henry Maine: A Study in Victorian Jurisprudence (Cambridge, 1988). 28  For an early and influential statement of this position, see JF Stephen, ‘English Jurisprudence’ (1861) 114 Edinburgh Review 456–86. 29  J Austin, A Plea for the Constitution (London, 1859); HS Maine, Popular Government (London, 1885). 27 

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As education reformers, Austin and Maine presented themselves as self-conscious moderns, adopting positions that were explicitly designed to repudiate and supplant established practices. And for both, as was common more generally, educational modernity found its inspiration in the scholarship of the Prussian universities. Austin prepared himself for his lectures with two years of intensive study which included an extended period in Bonn. There he studied with a private docent and read the new ‘Pandectist’ Roman law scholarship. In his own inaugural professorial lecture, ‘On the Uses of the Study of Jurisprudence’, Austin invoked the model of Prussian legal education, where study began, not with ‘the actual law of the country’, but instead with ‘the general principles of Law’. This form of legal science Austin termed ‘general jurisprudence’; and the content and boundaries of this jurisprudence he exhaustingly delineated and refined in the body of his lectures. ‘General jurisprudence’, Austin insisted, formed the proper starting point for understanding any particular system of existing law. For the aspiring lawyer in England, general jurisprudence would facilitate the study of common law, provide the basis for understanding foreign systems of law, and equip the legislator and advisor for the challenges of law reform and codification. More specifically, lectures on ‘the general principles of Law’ furnished the student with two key forms of knowledge: an understanding of law as a systematic whole; and an understanding of the basic elements and principles present in actual systems of law, such as ‘the notions of Duty, Right, Liberty, Injury, Punishment, Redress; with their various relations to one another’. These elements, Austin maintained, were present in all the mature systems of jurisprudence. But for the purposes of legal pedagogy, the model of choice for general jurisprudence was the late juristic literature of classical Roman law, unrivalled in its ‘mastery of principles’, ‘perfect consistency’ and ‘clearness’ of method.30 Austin’s embrace of classical Roman law—as modeled in the contemporary Continental teaching and scholarship of the Pandects—found confirmation in Henry Maine’s 1856 essay on ‘Roman Law and Legal Education’. Maine opened his discussion by referencing the recent ‘revival of interest in the Roman civil law’ and the now recognised ‘strongest reasons for studying a body of rules so mature and so highly refined as that contained in the Corpus Juris’. In elaborating the case for Roman law in legal education, Maine did not dwell on the methodological arguments that loomed so large in Ancient Law and in later writings: the idea of the ‘historical’ and ‘comparative method’ in jurisprudence; the logic of legal development as found in the experience of Indo-European communities; the value of Roman jurisprudence as the unique instructor of the mechanisms of legal change and content of legal progress.31 Instead, Maine emphasised the profound and

30  J Austin, Lectures on Jurisprudence or The Philosophy of Positive Law, ed R Campbell ( ­ London, 1885) vol 2, 1083, 1073, 1081. 31 Maine’s approach to legal education, and the relationship between the lecture and Ancient Law, are considered by Peter Stein in ‘Maine and legal education’, in A Diamond (ed), The Victorian ­Achievement of Sir Henry Maine (Cambridge, 1991) 195–208.

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­ ervasive impact of Roman law on Western thought and on entire subfields of p the law. ‘It may be doubted whether even the best educated men in England’, he observed, ‘can fully realise how vastly important an element is Roman law in the general mass of human knowledge, and how largely it enters into and pervades and modifies all products of human thought which are not exclusively English’. A knowledge of Roman law served as an argument against English provincialism and ‘the vulgar belief that the English common law was indigenous in all its parts.’ Maine claimed that the modern legal systems, even in common law jurisdictions such as North America, experienced a convergence of doctrines, in which Roman law was ‘fast becoming the lingua franca of universal jurisprudence’.32 Like Austin, Maine emphasised the analytical clarity of Roman jurisprudence and the superiority of Roman law’s language and terminology. This was the system of law ‘distinguished above all others for its symmetry and its close correspondence with fundamental rules’, and whose structure of organising terms and categories ‘throws into a definite and concise form of words a variety of legal conceptions’. These features provided critically needed resources for the improvement of British jurisprudence and law-making as well as a powerful antidote to the narrowness of native professional training.33 Austin and Maine thus offered a refurbished and expressly cosmopolitan ­programme for the reinvigoration of Roman law’s long-privileged position in ­university-based legal study. Both took full advantage of the model of m ­ odern Roman law scholarship so influentially pursued and institutionalised at the ­Prussian universities. Their position implied a repudiation of Blackstone’s rival claim that English law instead might serve as an effective vehicle for professing the general ‘science of jurisprudence’. Still, there was nothing in Austin and Maine’s alternative approaches that required any extensive engagement with Blackstone. Austin actually believed his case for ‘general jurisprudence’ conformed to ­Blackstone’s view that university-based instruction of juristic fundamentals needed to precede practical training.34 Nonetheless, in their substantive contributions to legal s­ tudies—where the points of divergence between Austin and Maine quickly become marked—Blackstone served as a significant target. At their hands, ­Blackstone was made an emblem of scholarly error and obsolescence. Austin’s treatment of Blackstone could be especially scathing and reflected well the avowed impact of Bentham on his philosophy of law. Following Bentham’s arguments in his 1776 Fragment on Government, Austin emphasised the shallowness and confusion of Blackstone’s legal learning, the imprecision and unsteadiness of his language, and his complacent defence of established arrangements. In the elaboration of basic legal concepts, which Austin took to be such a critical task

32  HS Maine, ‘Roman law and legal education’, in HS Maine, Village Communities in the East and West (London, 1890) 330, 333, 331, 361; see also 351–61. 33  ibid 332, 350; and see 368–76. 34  See J Austin, Lectures on Jurisprudence vol 2, 1084.

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for general jurisprudence, he rarely missed the opportunity to note Blackstone’s failings and confusions in setting out his organising terms and categories. An early summary notice of Blackstone, in the published text of Austin’s London lectures, captures well the tone of Austin’s assessment of his illustrious predecessor. ‘Neither in the general conception, nor in the detail of his book’, Austin reported, was ‘there a single particle of original and discriminating thought’. The Commentaries comprised ‘a slavish and blundering copy’ of an imperfect model provided by Matthew Hale, delivered in a ‘rhetorical and prattling manner’. To the Greeklike sculpture of the Roman jurists, Blackstone offered the ‘tawdry and flimsy dress of a milliner’s doll’. Worse still, Blackstone ‘flattered’ ‘national prejudices’ and ‘the mischievous prejudices of power’. The Commentaries, he summarised, was ‘far too celebrated’.35 Henry Maine’s criticisms were more temperate. (It would have been difficult for them not to be!) But his substantive reaction had the similar effect of relegating Blackstone’s jurisprudence to the outdated approaches of an earlier era. In Ancient Law, Blackstone was generally associated with the jurists and moralists of the seventeenth and eighteenth centuries, whose appeals to rights of nature and social contracts bespoke a false and superficial universalism that could not withstand rigorous historical and comparative treatment. His lack of juristic sophistication was frequently displayed, as in the instance of the ‘elaborate sophistry’ he devoted to misunderstanding the common law’s ‘exclusion of the half-blood’ to inheritance.36 When Maine singled out Blackstone for detailed consideration, it was to serve as ‘a faithful index of the average opinions of his day’. For example, in explaining the origins of property rights, Blackstone began in the wrong place with the wrong questions and inevitably failed to grasp the materials he sought to comprehend. This was the standard fate of earlier jurists, who lacked the powerful insights furnished by Savigny in his transformative work on Roman possession.37 The denial of Blackstone’s relevance found in the versions of legal modernism presented by Austin and Maine received further support in another weighty contribution to the debate over legal education issued in the mid-nineteenth century. The Report of the Select Committee on Legal Education was published by the House of Commons in 1846. The hefty Report ran to 61 pages of summary and analysis, supplemented by another 468 pages of supporting evidence, based on the testimony of 28 witnesses. As a parliamentary product, the Select Committee’s investigations were an inherently partisan exercise. The committee’s chair, Thomas Wyse, devoted his parliamentary career to projects of educational improvement across several fields. As was shown in an important discussion by Christopher Brooks and Michael Lobban, the Select Committee’s completed Report was a highly tendentious and selective statement, which omitted from notice important professional

35 

ibid vol 1, 69. On which see further Tim Stretton’s contribution to this volume, Ch 7. 37 Maine, Ancient Law (Boston MA, 1963) 110, 146, 244, 247. 36 

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developments and reform initiatives. Thus the Report neglected the contributions of new professional associations in the metropolis and provincial centres, the new professional periodical literature, and the serious pedagogy that attended pupilage in recognised settings.38 Instead, the Report depicted current legal training as a wasteland of institutional failure and missed opportunity, whose disastrous effects were easily and conclusively documented. ‘No Legal Education worthy of the name’, it roundly reported, was ‘to be had’ in England or Ireland. Individuals entered the responsibilities of public life, as magistrates or even legislators, without any general introduction to English law. Future practitioners received apprenticeships in conveyancing, special pleading or equity drafting, but were left ‘solely to …. individual exertions, industry, and opportunities’ for their more general education. The metropolitan Inns maintained barely the rituals of their former academic functions. University chairs operated as sinecures for absentees. Those structures of training and professional credentialing that did operate, as one witness observed of practices in Scotland, served merely to exclude from professional qualification the ‘absolute ignoramus’.39 The corrective alternative form of legal education, as in the advocacy of ­Austin and Maine, was found in foreign models. The Select Committee reported ­favourably on practices in the US and continental Europe, but pride of place went unsurprisingly to Prussia, whose universities boasted large faculties and academic programmes. Berlin alone housed 14 professors, teaching 32 branches of law, compared to Oxford’s Noah’s Ark of professors in Roman law and English law. Prussian pedagogy comprised demanding courses of well-attended, compulsory lectures, followed by required examinations of ‘extraordinary severity’. As the Select Committee Report repeatedly stressed (in a manner that echoed Austin’s claims for ‘general jurisprudence’), Prussian instruction emphasised the ‘philosophical basis of Legal Education’ (xxix), the ‘great scientifical principles’ connecting all the distinct fields of the law, and ‘the great and enduring principles on which all Law … should rest’.40 Applying this model to England, the Report proposed a transformative programme of renewal and expansion in which legal education would begin at the universities with general lectures on jurisprudence and the major branches of law, designed for both professional and non-professional students. Intending practitioners would then move on to a second phase of academic study at the metropolitan Inns, here reconfigured as colleges organised into ‘one common’ university of law. Only ­following this demanding academic programme would the future barrister be qualified for entry into the profession. The Report considered s­ eparately the case

38 CW Brooks and M Lobban, ‘Apprenticeship or Academy? The Idea of a Law University, 1830–1860’, in J Bush et al (ed) Learning the Law: teaching and the transmission of law in England, 1150–1900 (London, 1999) 353–82. 39  Report from the Select Committee on Legal Education (The House of Commons, 1846) lvi, xix. 40  ibid xxv, xxxiv, xlviii.

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of ‘the second branch of the Profession’. But its programmatic recommendations concerning ‘the better education of the solicitor’ occupied far less attention.41 Significantly, in this lengthy and elaborate programme of expansion and renewal, the figure and example of William Blackstone effectively vanished. The one reference to him in the Select Committee’s Report appeared in quoted testimony of Lord Brougham concerning the absence in England of a pedagogic literature that could serve the purposes of academic legal education. Brougham cited as exceptions the ‘admirable lectures’ of Blackstone and the publications Richard Wooddeson, Oxford’s third Vinerian professor.42 These mid-nineteenth century materials point to an obvious fate for ­Blackstone within discussions of legal education: a famous predecessor whose work and example offered scant direction for current needs and future reform. Just as Smith’s Wealth of Nations had been replaced by the post-Ricardo synthesis of JS Mill’s Principles of Political Economy (1848); just as Gibbon’s Decline and Fall had been succeeded by the new scholarly standards of Theodor Mommsen’s Römische Geschichte (1854–1856); just as Hume’s History of England fell to the documentary researches of William Stubbs’ Constitutional History of England (1874–78), so the Commentaries of the Laws of England could be consigned to the past. As Austin and Maine showed, the jurisprudence of the ‘learned Commentator’ had been thankfully superseded. As the parliamentary reformers tendentiously insisted, the Vinerian foundation had plainly failed to achieve the goals of its benefactor or first incumbent. These goals, in any case, required dramatically different institutional implementation than those envisaged in the mid-eighteenth century.

III.  Blackstone as a ‘Literary Genius’ This, no doubt is an exaggerated picture, sustained by its chosen coverage. ­Whatever its failings, the Commentaries emphatically remained a text in use and in legal training. In addition to its astonishing longevity as an introductory survey for the trainee practitioner, even in academic settings its lucid summaries provided valuable coverage of the historical development of some of the most challenging and technical fields of English law.43 Nonetheless, the exaggerated picture provides a helpful benchmark for considering another important advocate for university legal education, AV Dicey. Dicey is usually credited with the resurrection of the ­Vinerian chair during the 27-year period of his incumbency. He was appointed to the professorship in 1882, following two decades of London-based

41 

ibid xlviii, liii–liv. ibid xl. eg, even in Oxford’s reformed law curriculum of 1876, Blackstone’s Commentaries survived as a source for examination questions on the history of English law. See FH Lawson, The Oxford Law School 1850–1965 (Oxford, 1968) 39–40. 42 

43 

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legal practice and political journalism. Although he had by this time published two well-regarded contributions to the more technical literature of the law, it was as Vinerian professor that Dicey produced the famous volumes that secured a p ­ ublic readership and reputation which flourished into the twentieth century. These influential publications included the 1885 Introduction to the Study of the Law of the Constitution; the 1896 Digest of the Law of England with Reference to the Conflict of Laws; and the 1905 Law and Public Opinion in England during the Nineteenth Century, based on lectures Dicey delivered at the Harvard law school in 1898.44 On two occasions, which book-ended his professorial career, Dicey delivered public lectures in defence of academic legal education. In these settings he came to consider his illustrious predecessor, William Blackstone. His inaugural lecture of 1883, devoted to the question ‘Can English Law Be Taught at the Universities?’, examined a well-worn topic. Dicey enjoyed institutional advantages over the series of jurists who, both before and since Blackstone, addressed the question. The Oxford faculty he joined in 1882 had in the previous decade experienced significant reform, with the launching of a new Honours School of Jurisprudence, freed from its mid-century linkage with Modern History and equipped with a revised programme of undergraduate study, examinations and revived law degree. Dicey himself would serve on the new university Board of the Faculty of Law, which oversaw the expansion of Oxford’s law curriculum and teaching numbers.45 Notwithstanding these changes, Dicey began on a familiar note. Indeed, it is difficult to imagine his audience experienced much surprise as he rehearsed the issues. The promise of university-based legal education remained a l­ong-unredeemed promissory note that was rejected by the elite bar. Professional training continued to be anchored in pupilage, apprenticeship and court attendance. Against this institutional reality, Dicey made his case for the universities. He began with a trenchant critique of the established model. ‘When a student “reading for the bar” enters the chambers of a barrister’, Dicey drolly explained, ‘the arrangement entered into between the so-called pupil and his so-called tutor is rather singular. The pupil does not undertake to learn, the tutor does not in any way undertake to teach’.46 Such instruction as did occur took place in the face of this basic failing. Pupilage furnished the aspiring lawyer with valuable ‘experience and practice’, but did so at ferocious cost. The knowledge thus acquired, Dicey reported, was ‘fragmentary’ and ‘unsystematic’. The ‘gravest fault’, he lamented, was its being ‘wasteful of time and labour’. Students’ practical training was a hostage to the workload and areas of practice cultivated by the chambers in which he trained. The practitioners’ 44  For the background and impact of these publications, see RA Cosgrove, The Rule of Law: Albert Venn Dicey, Victorian Jurist (Chapel Hill NC, 1980) 66–113, 170–94; and S Collini, Public Moralists (Oxford, 1991) 287–301. 45  For the institutional developments at Oxford, see Lawson The Oxford Law School 34–51, 61–92; for Dicey’s views on legal education and a survey of the two lectures, see Cosgrove The Rule of Law 45–65. 46 Dicey, Can English Law Be Taught at the Universities? 3.

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manuals upon which the student relied failed to elaborate basic rules and instead focused on exceptions and anomalies in the case law. An area of acknowledged strength in the established pedagogy, ‘the science of pleading’, had been rendered irrelevant through statutory reform. ‘Pleading is abolished, and the pleaders—the true professors of the Common Law—will soon be a forgotten race’. In the meantime, the explosion of published reports and the growth of major areas of law— such as partnership; contracts; principal and agent; private international law; the law of joint stock companies—defeated any hope of acquiring through practice a general knowledge of the law. Legal education began in the wrong place and introduced its practical benefits when students were unprepared to take advantage of them. ‘He is put in short to make bricks without straw, or rather without having ever been taught how bricks are to be made’, Dicey maintained. ‘The oddity of the thing is, that he after all gets in due time, mainly by the process of imitation, to make pretty tolerable bricks’.47 The constructive programme for ‘academic instruction at Oxford’, which then followed, supplied an antidote to the defects of pupilage. Echoing the advocacy of John Austin, Dicey maintained that university-based teaching would present the law as a connected whole, attend properly to the definition and clarification of basic legal concepts, and emphasise general and organising principles of the law. Dicey followed the familiar path of making the case for Oxford and the universities by emphasising the successes of foreign models. The route to enlightened legal pedagogy unavoidably went through Prussia; not least because, for Dicey, the effective academic law teacher was of necessity also a researcher. Savigny and his work on possession appeared once more in this setting. But the Prussian academy no longer earned privileged notice. Instead, Dicey invoked the successful examples of France, Scotland, and the US. These foreign examples additionally demonstrated that the universities were the proper incubators for the production of a distinctive form of legal literature which in purpose and orientation contrasted sharply with the manuals composed for professional practice. In describing the literature derived from the university lecture hall, Dicey issued something of a promissory note on his own future celebrated publications. Such a literature, he reported, would teach students ‘to see that law is a rational study, and can be treated like other sciences in a clear, rational, and interesting manner’.48 The example of the US was especially useful to Dicey given the shared ­common-law tradition. ‘In fact on the whole subject of this lecture’, he reported, ‘the experience of the United States is full of instruction’. The essential lesson was the enlightened efficacy of academic legal education. He invoked the distinguished careers of James Kent and Joseph Story. Both jurists achieved deserved eminence in their professional careers and judicial service. But both were also figures of the university who first earned distinction as law teachers. The bar and the bench

47  48 

ibid 10, 11, 17, 16, 6. ibid 18–22, 24, 19, 23.

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benefited especially from their authoritative writings, and these were initiated as university lectures. Turning to developments in England, Dicey could now invoke ‘three men of genius’ who had ‘given a new impulse to the study of law’. Two of the figures, John Austin and Henry Maine, likewise produced influential works that emerged from the lecture hall. The third, Thomas Babington Macaulay, earned inclusion through his authorship of the Indian Penal Code; a work Dicey credited for establishing ‘a new type of codification’.49 It was in the context of this panegyric for university-based legal scholarship that Dicey shifted from recent developments to the publication of his most illustrious predecessor in the Vinerian chair. Blackstone’s Commentaries was ‘the one book of law that can claim a high and permanent place in the literature of England’, and this singular achievement ‘was originally produced as lectures to the University of Oxford.’ Given the occasion, the comments might be taken as a piece of institutional piety. But Dicey was careful and precise in his praise. The Commentaries was expressly not the kind of scholarship ‘required from the teachers of today’. ‘Blackstone’, he explained, ‘affords us rather an example for encouragement than a model for imitation’.50 The fuller elaboration of what this meant did not come until Dicey’s valedictory lecture of 1909 on ‘Blackstone’s Commentaries’ which he took care to publish in a non-professional journal, The National Review.51 The lecture managed a brilliant repositioning of Blackstone’s achievement. Dicey deftly removed Blackstone from the context of modern academic debates and placed him in a different setting. There the powerful criticisms of his detractors lost much of their force and certainly their urgency. Blackstone’s example survived as his law book underwent transformation as a classic of English letters. Dicey framed the lecture as an exercise in rehabilitation as well as revision. Dicey was pleased to note that the mid-nineteenth century ‘fashion’ to focus upon the ‘deficiencies’ of the Commentaries had given way to more generous appraisals. Nonetheless, Dicey quickly endorsed the major part of the earlier case against Blackstone. Though he rebuked John Austin for the near ‘vituperation’ of his remarks, he set out in full a lengthy paragraph from Austin’s Lectures on Jurisprudence which roundly denounced ‘the method observed by Blackstone in his far too celebrated Commentaries’. The criticisms launched by Jeremy Bentham and ‘the whole utilitarian school’ were judged a ‘complete success’. Indeed, Bentham’s 1776 A Fragment on Government represented ‘the most trenchant critique ever penned by a youthful pupil on the doctrines of a celebrated teacher’. The utilitarian indictment of Blackstone’s conservativism, as well as his philosophical errors, was readily embraced. Blackstone, he observed, ‘perpetually plays the part of an

49  ibid 28–9, 26–7. The Indian Penal Code had been prepared in 1835–7 by a law commission chaired by Macaulay. A revised version of the draft was enacted in 1860. 50  ibid 29. 51  AV Dicey, ‘Blackstone’s Commentaries’ (1909) 55 The National Review 653–75. Citations below refer to the reprinted lecture in (1930) 4 CLJ 286–307.

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apologist. Nor can the warmest admiration for Blackstone conceal from us that his apologetics sometimes verge on absurdity’.52 Changes in modern law rendered much of the content of the Commentaries obsolete. The updated version of the work produced in 1841 by HJ Stephen—the version of the Commentaries that for 60 years practitioners relied upon at the start of their training—was roundly judged a failure. ‘The reputation of each [jurist] has suffered from their literary partnership’, Dicey maintained. In the meantime, more recent advances in jurisprudence, legal history and legal scholarship continued to confirm Blackstone’s errors and misjudgments. As Dicey bluntly conceded, ‘No one contends that he was a profound historian, still less that he was an original thinker who placed jurisprudence on a new basis, as Adam Smith laid the foundations of modern political economy’.53 Notwithstanding these systematic failings, Dicey insisted upon the continuing relevance of Blackstone’s example. As he put it, ‘Wherein then are to be found the permanent merits of the Commentaries?’. Fortunately, an emphatic answer was available. Blackstone was the exemplary ‘teacher of law’ who combined the talents of ‘an eminent lawyer’ and ‘consummate man of letters’. His particular gift was ‘literary genius’ and ‘he produced the one treatise on the laws of England which must for all time remain a part of English literature. The Commentaries live by their style’. Dicey, of course, was scarcely the first to single out for praise Blackstone’s remarkable lucidity in treating the technical materials of English law. He quoted with approval Bentham’s acknowledgment that Blackstone was the ‘first of all institutional writers’ to teach ‘jurisprudence to speak the language of the scholar and the gentleman’. He further explained that Blackstone was ‘endowed in the highest degree with literary judgment or tact’. Nowhere was this talent better displayed than in ‘his unrivaled success in blending the history with the exposition of English law’.54 This celebration of Blackstone’s ‘literary power … of the rarest quality’ and this rebranding of the Commentaries as a literary milestone had deep interpretative implications. It relieved Blackstone of the burden of being ‘neither a legislative reformer, nor a logical dogmatist, nor a legal antiquarian’, as his critics repeatedly demonstrated. Instead, Dicey placed him in the company of ‘Johnson, Goldsmith, Hume, Adam Smith, Gibbon [and] Burke’ as among the great literary stylists of the era, able to command a wide readership. It was Blackstone’s ‘happy fortune’ as a ‘man of letters’ to ‘address the definite class of educated English gentlemen in the language accepted by all men of liberal education’.55

52 

ibid 288, 287, 290, 292. ibid 288–90, 297. 54  ibid 294, 296, 295. Simon Stern, in his masterful introduction to the second volume of the Oxford Edition of Blackstone, presents the very different perspective in terms of which eighteenth-century admirers understood Blackstone’s literary example: Blackstone, Commentaries vol 2, xxii–xxvi. 55  Dicey, ‘Blackstone’s Commentaries’ 297, 296, 298. 53 

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Crucially, for Dicey, Blackstone composed this masterpiece for university s­tudents. As a result, his example had direct bearing for the form of academic ­pedagogy which Dicey defended in his 1883 inaugural lecture and to which he devoted his Oxford career and scholarship. Blackstone, he explained, ­identified ‘the path of reform which now for well-nigh 50 years’ had ‘been pursued in England by the ablest professorial expositors of our law’. Expanding on one of the themes of his inaugural lecture, Dicey argued that 1861 had proved a watershed year in English legal letters, marked by ‘the publication of Maine’s Ancient Law and the republication of Austin’s forgotten The Limits of Jurisprudence Determined’. Together and separately each work ‘revived in England an interest in the growth of legal ideas and in jurisprudential problems’. In 1883, Dicey’s arena of leading university-based legal scholarship was largely populated by foreign examples. Now he surveyed a native landscape transformed by recent publications. Professorial scholarship ranged from important works of jurisprudence (Thomas Erskine ­Holland), to legal history (Frederick Pollock and Frederic William Maitland), to studies of constitutional law (Walter Bagehot, William Anson, and Dicey himself), to didactic ‘textbooks’ (SM Leake, Anson on contracts; Pollock on torts). All these authors, with a suitably large overrepresentation of Oxonians, shared an institutional and pedagogic identity that was recognisably Blackstonean. Indeed, given this capacious characterisation, even Blackstone’s powerful critics, Austin and Maine, earned inclusion in his legacy, since their influential publications likewise were ‘the outcome of lectures’. For the cohort Dicey labelled ‘professorial men’, Blackstone would remain ‘the perfect professor, the consummate man of letters’ who ‘vindicated for English law its high and rightful place in the noble literature of England’.56 We can readily discern a solid amount of autobiographical projection in Dicey’s peroration on Blackstone. Dicey too had managed to secure an audience beyond the legal profession for his academic writing, most notably in his acclaimed ­Introduction to the Study of the Law of the Constitution. His lecture, moreover, was a remarkably deft valedictory performance. In addition to flattering his Oxbridge colleagues, Dicey’s depiction of Blackstone’s literary achievement confirmed his enduring stature, while his professorial position recruited him to Dicey’s favoured pedagogic cause. But it was hard work to keep all the pieces in correct motion. Dicey’s ‘professorial men’ included those who were not professors, such as Bagehot and Leake. Blackstone’s scholarly heirs included others who strenuously denied his methods and teaching, such as Austin and Maine. Dicey, moreover, neglected the stubborn fact that contemporary readers who turned to the Commentaries

56  ibid 304, 305–6, 304, 307. Among other examples, Dicey refers to the following recent p ­ ublications: TE Holland, Elements of Jurisprudence (Oxford, 1880); F Pollock and FW Maitland, The History of ­English Law before the Time of Edward I (Cambridge, 1895); W Bagehot, The English Constitution ­(London, 1867); WR Anson, Law and Custom of the Constitution (Oxford, 1886); SM Leake, Elements of the Law of Contracts (London, 1867); WR Anson, Principles of the English Law of Contract (Oxford, 1879); F Pollock, The Law of Torts (London, 1887).

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typically sought neither pedagogic inspiration nor an academic model, but instead serviceable information. And here, notwithstanding Dicey’s strictures to the contrary, HJ Stephen’s New Commentaries proved of much better value than the original. In addition, Dicey assembled a quite heterogeneous team of eighteenth-century giants to keep Blackstone literary company. Among them, only Adam Smith joined Blackstone in professorial duties; and it was not the literary qualities of the Wealth of Nations that secured its author’s enduring reputation. Blackstone’s Oxford displayed little in common with the often brutal, metropolitan world of independent authorship navigated by Goldsmith and Johnson. Blackstone shared with Burke and Gibbon a parliamentary career, but this point of connection did no work in Dicey’s treatment. Dicey correctly emphasised Blackstone’s intended audience as a ‘definite class of educated English gentlemen’.57 But Blackstone’s express political goals to teach England’s law to this audience in order to elevate the bar and to improve English legislation and the practice of justice in the localities faded from view. Dicey’s picture of greatness worked best when kept carefully in soft focus. As in so many other areas of his legacy, Blackstone triumphed through an i­ nevitably selective and tendentious reckoning of his contribution and its current meanings.

57 

Dicey, ‘Blackstone’s Commentaries’ 298.

10 Hammond’s Blackstone and the Historical School of American Jurisprudence DAVID M RABBAN

William Gardiner Hammond, a key figure in the historical school of jurisprudence that dominated American legal thought in the late nineteenth century, published a heavily annotated edition of Blackstone’s Commentaries in 1890. Hammond’s edition is particularly valuable for people interested in the history of the reception of Blackstone’s Commentaries and in the central themes of the historical school. Immediately recognised as a major innovation from previous editions, it conveyed and applied these themes to criticise and supplement the jurisprudential assumptions and historical content of Blackstone’s Commentaries. Even as he emphasised that the insights of the historical school required major reinterpretations of Blackstone’s Commentaries, Hammond indicated his great respect for Blackstone’s achievement and influence. Most significantly, Hammond believed, Blackstone systematically presented English law as ‘a thoroughly l­egible and harmonious whole’.1 Describing Blackstone’s Commentaries as the most important work about law in the English-speaking world, Hammond observed that they had their greatest impact in America. Yet they had become seriously outdated, marred by Blackstone’s adoption of theories of natural law that prevailed when he wrote and by his misunderstanding or ignorance of history. The law that Blackstone reported in eighteenth-century England, moreover, had substantially changed in England and especially in the US. Hammond maintained that the ­historical school had superseded theories of natural law, providing the tools to correct these deficiencies. He also criticised analytic jurisprudence, claiming that its advocates had viciously and unfairly attacked Blackstone while ‘leading ­farther away from the true sense of law, as we now understand it, than Blackstone’s own view’.2

1  W Blackstone, Commentaries on the Laws of England, ed WG Hammond, 4 vols (San Francisco CA, 1890) vol 1, xii. 2  ibid xviii.

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Although he criticised Blackstone for adhering to theories of natural law, ­ ammond recognised that the Commentaries contained substantial informaH tion about English legal history. Yet Hammond did not comment on this juxtaposition of natural law theory and historical content. Nor did his notes provide a comprehensive account of the English common law from the perspective of the ­historical school. For most of his professional life, Hammond worked on an ambitious book that would have done so. Hammond’s records of his research and his lengthy drafts3 indicate that this book, if completed, would have been a major contribution to legal scholarship, perhaps rivalling Ancient Law by Henry Maine, The Common Law by Oliver Wendell Holmes Jr, and The History of English Law Before the Time of Edward I by Frederick Pollock and Frederic Maitland. But ­Hammond drew on his vast research for this unpublished book in his extensive notes on Blackstone’s Commentaries. Included within a legal classic familiar and accessible to ­American lawyers, these notes probably conveyed the central themes and findings of the h ­ istorical school of American jurisprudence more broadly and effectively than the work of anyone else. Hammond was in contact with many of the other leading scholars in this school, including James Barr Ames, Melville Madison Bigelow, Thomas McIntyre Cooley, Oliver Wendell Holmes Jr, James Bradley Thayer, and Francis Wharton, and with major figures in the English historical school, including Henry Maine and Frederick Pollock. Together with their counterparts in Germany and ­England, the Americans formed a transatlantic community of scholars who accurately perceived themselves as engaged in a shared intellectual project.4 These scholars identified their historical approach as a distinctive school of jurisprudence, often differentiating it from prior schools of natural law and analytic jurisprudence. They associated natural law with theories of absolute right and justice, and analytic jurisprudence with theories of force based on the arbitrary command of the sovereign. Both prior schools, they claimed, relied on a priori ‘speculation’ and ‘mere theory’, for which the historical school substituted ‘scientific’ reliance on induction from the empirical evidence of history. Like scholars in many disciplines in the nineteenth century, they viewed history as an evolutionary process connecting the past to the present. They referred to society as an organism, often describing it metaphorically as ‘ripening’ from its early ‘germs’ or ‘parents’ to its later ‘offspring’ or ‘descendants’. They identified evolving custom as the source of law, highlighting the influence of external factors on legal change. Many examined whether survivals from past law continued to operate effectively in the present or whether, though well adapted to the society in which they originated, they had become dysfunctional and should be eliminated in the different society that subsequently evolved.5 3  Hammond’s records and drafts are located at the University of Iowa College of Law and at H ­ arvard Law School. 4  DM Rabban, Law’s History: American Legal Thought and the Transatlantic Turn to History (New York NY, 2013). 5  ibid 3–7, 325–80.

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The Americans recognised their debts to the founders of the historical school in Germany, particularly Friedrich Carl von Savigny, and to Henry Maine, the ­English scholar who subsequently popularised the historical school throughout the English-speaking world. They focused on what they believed were the ­Germanic origins of their own Anglo-American law, often referring to the ‘­Teutonic-germ theory’ and relying on the German scholars who studied early German law. Though most interested in origins as the necessary preliminary to understanding subsequent law, they also wrote about the history of common law and constitutional law in the US.6 Hammond’s extensive notes on Blackstone’s Commentaries reflected these general themes of the historical school. In the textual notes he interspersed throughout Blackstone’s Commentaries, Hammond described the emergence of the historical school and set forth its major themes. He emphasised that law generally changes in response to evolving ­custom but also observed that current law contains occasional dysfunctional survivals from the past. He used his broad historical knowledge to correct or contextualise Blackstone and to indicate how the law had evolved since Blackstone wrote, often focusing on developments in the US produced by distinctively American physical and ideological conditions.

I.  Hammond’s Background Hammond was born in 1829. As did many of his American contemporaries, after college in the US he studied law in Germany, where he became attracted to the historical approaches that German scholars had initiated. When he returned to the US, he settled in Iowa, briefly practicing law and soon becoming a professor at the University of Iowa in 1867, the year after its founding. He left the University of Iowa to become Dean of St Louis Law School in 1881, where he remained until his death in 1894. Reflecting his national eminence, he served as chairman of the American Bar Association’s Committee on Legal Education and of the D ­ epartment of Jurisprudence of the American Social Science Association.7 Both in teaching and scholarship, Hammond revealed his interest in legal ­history from the beginning of his career as a law professor. He frequently taught a course on the history of law. In 1868, he wrote an extensive and perceptive review of Henry Maine’s influential book, Ancient Law, which had been published in 1861. Hammond began his review by commenting that ‘the characteristic feature of the nineteenth century, is the substitution of the historic method of study for the dogmatic, in all the sciences which relate to human life or action’. Yet ­Hammond immediately complained that this pervasive historical approach had not extended

6  7 

ibid 4–7. ibid 35.

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to the study of English and American law even though law is a field in which ­historical study is particularly fruitful. The practical orientation of legal studies in England and the US, he observed, largely accounted for this lack of attention to history.8 Hammond applauded Maine for his ‘very great service’9 in studying law historically, though he called Ancient Law ‘acute rather than comprehensive’.10 ­Hammond believed that the title itself was misleading because the book was not a thorough treatment of ancient law. It was rather a series of essays addressing the subject of ancient law only through the history of Roman jurisprudence. Hammond doubted that primitive Roman law was typical of all ancient law, and questioned whether the Roman jurists on whom Maine relied had presented an accurate account of primitive Roman law itself.11 The great value of Ancient Law, Hammond concluded, was ‘not so much the absolute merit of the book itself ’, but its introduction of ‘a new method of study’.12 Maine’s ‘brilliant’ work would enable ‘better books’ to be written using his historical approach to law.13 ­Hammond intended to write such a book himself. In 1871, Hammond prepared an outline of thirty chapters for a comprehensive book on the history of the common law. He learned Anglo-Saxon in order to read the original sources he started collecting. The best scholarship on Anglo-Saxon law and institutions had been written by German scholars, and Hammond’s graduate study in Germany enabled him to read their untranslated works. He also began reading the English Year Books, translating some of the cases into ­modern ­English. Over the following decades, he took thousands of pages of notes and drafted many chapters. He gave several series of lectures on the history of the common law, hoping to revise them for subsequent publication. He thought that moving from Iowa to St. Louis would give him more time to work on his book. But he never completed this ambitious project, and did not even turn his lectures into published articles.14 Hammond, however, did make substantial use of his historical research in his edition of Blackstone’s Commentaries. According to his colleague, Emlin McClain, Hammond considered this project ‘merely subsidiary’ to the book he never published. Yet the hundreds of pages of notes he included in his edition of Blackstone’s Commentaries, McClain asserted, ‘embodied much material collected for the greater work’ and constituted Hammond’s most important intellectual legacy.15 McClain pointed out, moreover, that Hammond’s study of the history of civil law,

8 

WG Hammond, ‘Ancient Law’ (1868) 2 Western Jurist 1. ibid 7. ibid 10. 11  ibid 8. 12  ibid 7. 13  ibid 6. 14 Rabban, Law’s History 38. 15  E McClain, ‘Biographical Sketch of William Gardiner Hammond’, Ch VI, The History of the Common Law and Blackstone 1, William G Hammond Papers, University of Iowa College of Law vol 1. 9 

10 

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which began when he was a student in Germany, convinced him that the civil law and the common law had many more similarities than nineteenth-century English scholars generally acknowledged.16 More than a decade before his edition of Blackstone’s Commentaries, ­Hammond challenged the English scholars in his American edition of the Institutes of J­ ustinian, a classic work that in the sixth century codified the Roman civil law. His lengthy introduction, subsequently published as a book entitled System of Legal Classification of Hale and Blackstone in its Relation to the Civil Law, stressed that his main purpose was to demonstrate that ‘many principles in matters of Roman law are strictly analogous to those of the common law of England and America’.17 It contained a lengthy discussion of Blackstone’s Commentaries and reached the important conclusion that in significant respects Blackstone conformed English law ‘to the traditional arrangement of the Institutes’.18 In a fascinating illustration of the international connections among members of the historical school, Hammond sent a copy of his book to Maine, who took the time to read it and reply, informing Hammond that his book was very interesting and that he often agreed with it.19

II.  Introducing Blackstone’s Commentaries Hammond announced on the title page that his edition of Blackstone’s ­Commentaries contained ‘copious notes, and references to all comments on the text in the American Reports, 1787-1890’.20 He interspersed the ‘copious notes’, ranging from a paragraph to many pages, at appropriate places throughout the four volumes. At the beginning of his lengthy preface, Hammond declared that ‘Sir William Blackstone’s Commentaries on the Laws of England have for more than a century enjoyed a position in our legal literature, which has never been equaled by any other work’.21 After pointing out that no other book about law had comparable influence in England, America, and British colonies throughout the world,22 Hammond devoted particular attention to their importance in America, where more copies were sold than in England itself.23

16 E McClain, ‘William Gardiner Hammond’, in W Draper (ed), Great American Lawyers (­Philadelphia PA, 1909) vol 8, 191, 227–28. 17  ibid 228. 18  The Institutes of Justinian, ed WG Hammond (Chicago IL, 1875) vol 1, xlix. Late twentiethcentury scholars reached the same conclusion. JW Cairns, ‘Blackstone, An English Institutist: Legal ­Literature and the Rise of the Nation State’ (1984) 4 OJLS 318–60, especially 340, 344, 359; A ­Watson, ‘The Structure of Blackstone’s Commentaries’ (1988) 97 Yale Law Journal 795–821, especially 796, 810–11. 19  ‘Iowa Abroad’, Hammond Papers (n 15) vol 2 (newspaper article quoting letter from Maine to Hammond). 20 Blackstone, Commentaries, ed Hammond, vol 1, title page. 21  ibid iii. 22  ibid iv. 23  ibid viii.

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Hammond observed that in 1765, when Blackstone published the first volume of the Commentaries, ‘the American colonies were just beginning to have a sense of their essential unity, and of the need of a common law’. Blackstone met this need with a work that presented ‘the law of the mother country as a complete and harmonious system’.24 Although leaders of the American Revolution and early American jurists sometimes disagreed with Blackstone about important issues, particularly by promoting popular sovereignty as a challenge to his conception of law as the command of a superior, these disagreements did not interfere with the timeliness or the welcome reception of the Commentaries.25 In matters of private law, Hammond maintained, they ‘stood for the law itself throughout the country, and at least for a generation to come exercised an influence upon the jurisprudence of the new nation, which no other work has since enjoyed, and to which no other work can possibly now attain’.26 They were relied on by the courts, especially by the many small courts that had original jurisdiction over issues of common law. They also influenced statutory law, which followed their systematic arrangement of rights, and they became the main authority for teaching law in the few early American law schools.27 The widespread influence of Blackstone’s Commentaries, Hammond recognised, provoked criticism, particularly from the English analytic school inspired by Bentham and subsequently led by Austin. He asserted that these critics ‘have held Blackstone responsible for every defect in the system which he described, and have barbed their criticisms with epithets that might seem almost prompted by personal malignity’.28 To Hammond, these criticisms only underlined Blackstone’s importance, illustrating that he personified the English law of his time to his subsequent opponents as well as to his supporters.29 Hammond himself disagreed with the objection that Blackstone had ‘unreasoning admiration of the institutions he described’ and had remained silent about laws that were ‘cruel or unjust’. Hammond thought it was unfair to construe silence as assent. Blackstone’s goal, he pointed out, was to describe the ‘unity and the mutual interdependence’ of the ‘complex organism’ that was the English common law. And even if Blackstone had been blind to the defects of the common law, Hammond maintained while revealing his own historical sensitivity, that would only prove ‘he was not wise beyond his time, and did not possess the critical insight which detects and attacks abuses before they are known or felt by the mass of mankind’.30 Yet Hammond also made clear that he would not hesitate to criticise Blackstone, particularly when he followed the misguided lead of continental jurists in treating law as a command.31 24 

ibid vii. ibid viii. 26  ibid ix. 27  ibid ix–x. 28  ibid iv. 29  ibid v. 30  ibid v–vi. 31  ibid xviii–xix. 25 

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Throughout his preface, Hammond complained that the value of Blackstone’s Commentaries had been diminished by subsequent editions in England and the US. During the fifty years following Blackstone’s publication of his ­Commentaries in the 1760s, no new editions in England reproduced Blackstone’s full text. Instead, subsequent authors attempted to bring the law covered by Blackstone up to date, in titles such as ‘Blackstone’s Commentaries Rewritten’ or ‘Condensed Blackstone’. The English no longer had access to Blackstone’s Commentaries in their original form.32 Although some American editions similarly omitted portions considered obsolete, the most successful American editions published unabridged versions.33 All the American editions selectively cited American cases to indicate the extent to which American law had diverged from the English common law as stated by Blackstone. Typically presented as brief statements of American law in a format similar to a treatise or a digest, they related to Blackstone’s text only through the subject matter covered.34 These editions transformed Blackstone’s Commentaries into a ‘handy reference book’ about the current state of the law. But they did not direct attention to Blackstone’s reasoning, ‘which to the student is altogether the most valuable part of his work’. These editions may have even prevented ­students from recognising the harmonious system of law that Blackstone intended to ­present.35 Just as Blackstone himself conceptualised the law through the analogy to a house whose structural coherence should not be obscured by the accretion of additional apartments,36 Hammond claimed that it would be ‘far more valuable’ for students ‘to have a clear and just conception of the edifice of law with which our fathers began their national history, a century ago, than to learn the modern shape of this or that chamber at the expense of the entire plan’.37 Rather than presenting a selection of American cases to illustrate divergences from ­English law, Hammond included in his footnotes all American cases that referred to ­Blackstone’s C ­ ommentaries, distinguishing those that simply cited them from those that contained direct quotations, and focusing especially on cases either approving or opposing Blackstone’s views.38 Turning to an explanation of his ‘copious’ textual notes, Hammond emphasised that they, like his footnotes, were not intended to convey ‘changes of practical law’. He attempted instead to address the more fundamental changes in the theory of law, its relation to ethics and politics, and the meaning of key legal terms, such as rights, duties, legislative power, and sovereignty, as expressed by subsequent

32 

ibid vi.

33 ibid. 34 

ibid xi. ibid xi–xii. 36  E Kadens, ‘Justice Blackstone’s Common Law Orthodoxy’ (2009) 103 Northwestern University Law Review 1553, 1561–62. 37 Blackstone, Commentaries, ed Hammond, vol 1, xii. 38  ibid xiii. 35 

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c­ ommentators as well as in judicial decisions. He observed that the commentators, though disagreeing widely among themselves, typically had a different theory of law than Blackstone himself. He highlighted two of these theories, the historical, which he endorsed, and the analytical, which he rejected even as he asserted the importance of understanding its criticisms of Blackstone.39 Hammond expressed confidence that there would be a receptive audience for his novel and ambitious edition,40 which laudatory reviews soon confirmed. The most extensive and thoughtful review called his edition ‘a complete departure’ from all others, reflecting a mastery of past and present international scholarship ‘probably unpreceded among English and American lawyers’.41 Echoing ­Hammond’s own emphasis and reflecting the dominance of the historical school of American jurisprudence, the review treated law as the product of ‘historical development’ and asserted that ‘the historical method’ is ‘indispensable’ to studying it.42

III.  The Historical School of Law Hammond discussed the emergence of the historical school of law most fully in a lengthy note commenting on Blackstone’s assertion that Roman law had fallen into ‘neglect and oblivion’ until it was suddenly revived by the discovery at Amalfi in the twelfth century of a digest of the Roman Pandects. Hammond acknowledged that this view was common among Blackstone’s contemporaries. But he stressed that the great work by the German scholar Friedrich Carl von Savigny on The History of Roman Law in the Middle Ages, whose first volume was published in 1815, transformed the understanding of the history of Roman law and, more generally, the theory of law. Savigny proved to widespread acclaim that Roman law had been used continuously in parts of Italy and elsewhere from the fall of the western empire to the twelfth century.43 Even more importantly, Hammond added, Savigny’s work was instrumental in transforming the study of Roman law from the compilations of Justinian to its ‘historical development’. This new historical method of studying law was a natural outgrowth of pioneering scholarship in Germany on the general history of Rome and ‘of the growth of a historical school of jurisprudence in Germany’ led by Gustav Hugo, Savigny’s predecessor, Savigny himself, and their followers in the early years of the nineteenth century.44 The most significant impetus to the

39 

ibid xviii. ibid xvii–xviii. 41  GH Smith, ‘Hammond’s Blackstone’ (Book Review) 25 American Law Review (1891) 376. 42  ibid 378. 43 Blackstone, Commentaries, ed Hammond, vol 1, 234. 44  ibid 234–35. 40 

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­ istorical study of Roman law, Hammond suggested, was the discovery in 1816 of h a copy of the Commentaries of Gaius, originally published in the second century. Comparing the Commentaries of Gaius with the later compilations ordered by Justinian in the sixth century focused attention on the changes in Roman law over the intervening four centuries, and thus to the importance of history in ­studying law. Scholars realised that law was not ‘a mere code prescribed by the sovereign power of the Roman emperor’, as previously thought, but ‘the creation of a ­thousand years and more, of a people in whom the juridical faculty was preeminent, and whose history had given the grandest opportunity for the growth and development of law that the world has ever known’.45 The theories of the historical school, Hammond maintained, had triumphed over opposing jurisprudential approaches and had made the study of law scientific. More particularly, historical analysis improved understanding of English law. Whereas prior scholars had simply observed ‘the accidental coincidences in particular rules’ of English and Roman law, historical analysis enabled ‘tracing the strong analogies between the mode of development of both’. The careful historical study of both English and Roman law, moreover, helped resolve longstanding disputes over the extent to which the English law was indebted to the Roman.46 While emphasising the origins and virtues of the historical school, Hammond bemoaned the ‘apparent accident’ that when John Austin studied in Germany in 1827 to prepare himself for a career as an English law professor, he ‘fell under the influence’ of the ‘philosophical jurists led by’ Anton Friedrich Justus Thibaut rather than their ‘opponents’ in the historical school. Thibaut ‘adhered to the older methods of study, and regarded all law as essentially legislation’. Unfortunately from Hammond’s perspective, Thibaut’s ‘influence is discernible in every page of Austin’s writings’. Yet the English common law, Hammond maintained, was harder than any other system of national law to fit within the rigid equation of law with legislation. It was not imposed ‘from above’ but developed ‘from within’, a ‘growth’ he characterised as ‘historical’ and ‘customary’. ‘Had Austin accepted the doctrines of the historical school to explain the growth and the form of the common law’, Hammond sadly observed, ‘it would not have been left, for the most part, to ­German scholars and to their few followers in England, of whom Sir Henry Maine has been the leader, to point out the only way in which that law can be successfully studied’. Even as he regretted Thibaut’s influence on Austin, ­Blackstone’s most severe critic, Hammond acknowledged that Blackstone himself was largely responsible for Austin’s misguided theoretical orientation. Thibaut only ‘completed the distortion’ that Blackstone had begun by endorsing the doctrines of the law of nature as formulated by Samuel von Puffendorf and others.47

45 

ibid 236–37. ibid 237. 47  ibid 235–36. 46 

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IV.  Blackstone in Historical Context Hammond placed Blackstone in the broad historical context of prior and subsequent thinkers in Europe, England, and America in a lengthy note addressing Blackstone’s textual statement that law applies ‘indiscriminately to all kinds of action, whether animate or inanimate, rational or irrational’. This statement, Hammond observed, assumed ‘the unity of law’ and had received more criticism than any other passage in the Commentaries. Elaborating the implications of this assumption through examples from an article on Blackstone in the Encyclopedia Britannica, Hammond maintained that for Blackstone a superior power governed all law, whether the law of gravity, the law of nature, or the law of England.48 Until the nineteenth century, Hammond added, there had been virtually unanimous agreement, particularly among Christians, that all laws of the universe originated in ‘the direct command of its creator’. Under this view, order and harmony in the world resulted from obedience to God’s law.49 Whereas revelation was long considered the source of divine law, jurists eventually maintained that the law of nature, derived from human reason, ‘was as truly the legislation of God as that which was found in his written word’. Whether revealed or natural, all law was legislation and consisted of ‘fixed and certain rules, from which rights and duties might be inferred, but against which no right of human institution could for a moment avail’.50 Pufendorf ’s Law of Nature and Nations, published in 1672, was a particularly influential statement of this position,51 and Blackstone ‘adopted’ Pufendorf ’s definition of law as ‘the command of a legislator’.52 Bentham and Austin also adopted this definition, but they rejected natural law as either a source of law or even as a limitation on legislative power. Austin and his followers in the school of analytic jurisprudence opposed theories of social contract as well as natural law, making the ‘arbitrary motiveless will of the sovereign’ the only source of law. This position led to the total separation of law in its legal sense from laws dealing with physical and natural phenomena,53 and accounts for their ‘bitter opposition’ to Blackstone’s statement about the unity of law54 even as they shared with Pufendorf and Blackstone the longstanding and widespread definition of law as a command of a legislator. The attraction of the analytic jurists to this definition, Hammond believed, derived primarily from their desire to exclude moral and political considerations from the law. Hammond seemed sympathetic

48 

ibid 95. ibid 96. 50  ibid 109–10. 51  ibid 109. 52  ibid 105, see also 96. 53  ibid 105. 54  ibid 100. 49 

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to this ‘important object’, but felt it could be achieved without resorting to what he called the ‘fictitious’ command theory.55 Although Pufendorf and Blackstone had based their concept of the unity of law on the command theory with which he disagreed, Hammond maintained that the unity of law makes sense, independently of the difficult question of law’s origins,56 as ‘a principle of order, of definite effects from definite causes’.57 The power of the state under the theory of law as ‘rules of established order’ is not to prescribe or forbid action, but to enforce the consequences of action58 through rules governing ‘human rights and duties’.59 This power of the state is similar to the power ‘which in physical law insures the due and orderly succession of the phenomena of nature’.60 Hammond used the relatively recent development of contract law to illustrate this principle of order and its independence from the moral considerations to which the analytic jurists objected and to which he himself seemed unsympathetic. Rather than rules of ethics requiring each party to keep his word, contract law gives each party power to enforce obligations others have assumed and thus to rely on their conduct.61 Toward the end of this lengthy note, Hammond mentioned in passing that early Americans had rejected the theory of law as a command, a subject in which they obviously had an ‘intense practical interest’. Under this theory, the Americans realised, their own law would still be derived from the commands of the British Parliament and the King of England.62 In a separate note based on Blackstone’s statement that law is ‘a rule of conduct dictated by some superior being’, ­Hammond elaborated the unanimous rejection of this position by early American jurists.63 Through lengthy quotations from the most important of these jurists, Hammond emphasised that the American commitment to popular sovereignty repudiated the theory that a superior could dictate law to the people. He pointed out that St George Tucker, who published his ‘famed’ first American edition of Blackstone’s Commentaries in 1803, stressed that in the US the consent of the people provides the authority of government and written constitutions delegate limited power to the legislature. In passages quoted by Hammond, Tucker wrote that ‘the ­American Revolution has formed a new epoch in the history of civil institutions’. For the first time in the history of the world, ‘an original written compact formed by the free and deliberate voices of individuals disposed to unite in the same social bonds’ created a government whose power must be determined by reference to a ­constitutional text.64

55 

ibid 100–01. ibid 97–98. 57  ibid 101. 58  ibid 99. 59  ibid 101. 60  ibid 100. 61  ibid 102. 62  ibid 111. 63  ibid 112. 64  ibid 113. 56 

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Lectures by Judge James Wilson to law students in P ­ hiladelphia in 1790–91, H ­ ammond maintained, contained an even more significant early American challenge to Blackstone’s conception of sovereignty. Criticising Blackstone for failing to clarify the source of allegedly superior authority, Wilson questioned ‘how authority that is derived can become superior to that authority from which the derivation is made’. Hammond himself wrote that Americans regarded ‘the people as the master, and the rulers as the servants of the people’. In the US, the people, not the legislative, executive, or judicial branches of government, are ‘the repositories of the sovereign power’.65 Yet Hammond indicated that Blackstone’s mistaken theory of law as the command of a superior had survived in the US despite these powerful critiques by leading American jurists of the founding era. ‘It is hardly creditable to the bar, and still less to the law schools of this country’, he wrote while introducing many paragraphs of direct quotation from Wilson, ‘that Blackstone’s definition should have held its place unchanged and even uncriticised for more than a century, while this able and convincing argument against it has been left in oblivion’.66 Hammond clearly wanted to resuscitate this early American opposition to Blackstone in his own edition of the Commentaries.

V.  The Relationship between Custom and Law In addition to discussing the emergence of the historical school of law and to placing Blackstone in historical context, Hammond expressed many of the historical school’s central themes, especially in addressing the relationship between custom and law. His overview of the history of legal development among all the ‘Aryan races’, incorporated in his critique of law as a command, captured a shared view within the historical school. Originally, Hammond maintained, the Aryans did not differentiate law from custom. Over time, a consensus emerged that it made sense to depart from prior custom. Gradually, a series of small departures produced a new rule. Through this process, which Hammond called the beginning of legislation, ‘jural’ law began to differ from ‘physical’ law. Whereas members of a family or tribe can agree with each other to alter custom, he explained, they ‘cannot agree with the sun or the rain to permit a harvest’ at a later date.67 Hammond acknowledged the difficulty of finding precise historical evidence of the process by which changes in custom produce new law, but he provided an example from the history of English law. King Ethelbert, the first Anglo-Saxon King to convert to Christianity, asked a group of ‘wise men’ to put the customs of

65 

ibid 116. ibid 114. 67  ibid 103. 66 

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Kent into writing. They started with the damages owed for an offence against the church. Even if Kent had already developed exact damages for offences against the King, Hammond observed, there could not have been ‘ancestral custom’ regarding offences against the church because the people had been born heathens and had only recently converted to Christianity. The wise men must have engaged in ‘something like legislation’ when they determined the damages for this new offence. This example seems more rapid than the gradual process portrayed in Hammond’s general description, but it does illustrate his basic point that changes in custom produce new law. Hammond assumed that any careful examination of Anglo-Saxon laws, or of any similar code of a ‘primitive people’, would disclose ‘the gradual development of legislation, that is the growth of a conscious power to modify the relations and conditions under which men were living together’.68 Whereas Ethelbert’s wise men did not have formal power to legislate and did not perceive themselves to be legislating when they determined compensation in a novel case, eventually societies developed ‘a special organ of legislation’. Over the course of seven centuries in England, legislation gradually evolved into ‘the power of making’. But legislation ‘remained as it had been at first, an agreement modifying the customs of the nation’.69 Unfortunately from Hammond’s perspective, the power to legislate through statutes became identified with all law, making law merely ‘the command of a legislature’.70 In a separate note on Blackstone’s declaration that the ‘only method of proving that this or that maxim is a rule of the common law, is by showing that it hath always been the custom to observe it’, Hammond usefully elaborated his historical understanding of the relationship between custom and law.71 Hammond challenged Blackstone’s position, ascribing it to the longstanding view that ‘all the rules of nature and reason were innate, immutable, independent of all changing circumstance’. Adherents of this view could not accept that ‘laws of such dignity’ could be based on changes in human customs subject to varying influences. Yet modern thinkers, Hammond maintained, understood that a ‘conviction of right’ could generate a rule that need not be eternal. ‘If new customs arise under changing circumstances in a community, and are of such a nature that the public weal requires them to be enforced,’ he asserted, ‘this conviction operates at once upon them, and converts the mere custom into law’. As an example, he pointed out that California and other American states, based on changed customs of agriculture, ‘evolved’ a law of irrigation that, contrary to the English common law and the laws of the older American states, recognised a property right in running water.72 He made a similar point in a brief note on Blackstone’s reference to the rights of the poor to glean after the harvest and to hunt ravenous beasts. Hammond observed

68 

ibid 104.

69 ibid. 70 

ibid 104–05. ibid 209. 72  ibid 213. 71 

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that these rights under the English common law had disappeared from law in the US, not by legislation or through judicial decisions, ‘but by that entire change in the convictions and circumstances of the people out of which all rules of the common law grow’.73 Hammond also expressed the general concern of the historical school about the survival of dysfunctional laws as society and its customs evolve. In a note describing the abolition of the system of actions described in Blackstone’s text, Hammond wrote: The chief advantage gained by the “new practice” is in getting rid of the large proportion of mere forms which had become useless because they had survived the conceptions in which they were founded; and in leaving a clear field for the development of new forms and rules adopted to the present state of the substantive law.74

Suggesting that Blackstone’s discussion of the heirloom be treated as ‘simply obsolete’, Hammond added more generally that the ‘senseless repetition of such obsolete forms of law’ was responsible for much of the hostility to law among the general public.75 Yet Hammond, like other members of the historical school, occasionally warned about mistaking similarities between past and present law as evidence of evolutionary continuity. Responding to a comment by Blackstone that the ‘fee’ of the English common law contained ‘strong traces’ of the earlier Saxon ‘bocland’, Hammond noted that ‘the resemblance must not be mistaken for identity’. He asserted that they were entirely different institutions and that there was no ‘genetic relation between them’.76 He similarly faulted Blackstone for equating the law of the Roman commodatum with the English concept of loan.77 On other occasions, by contrast, Hammond concluded that resemblance between ancient and modern law did reflect continuity. ‘The resemblance between the Roman sacer and the English outlaw’, he asserted for example, ‘is sufficient to sustain the hypothesis of a common origin’.78

VI.  Correcting Blackstone’s Mistakes Many of Hammond’s notes were mini-essays in legal history, though Hammond occasionally cautioned that this format could not provide a comprehensive historical treatment of the subjects he covered. He wrote notes about the history of

73 Blackstone, Commentaries, ed

Hammond, vol 3, 295. ibid 188. 75 Blackstone, Commentaries, ed Hammond, vol 2, 653. 76  ibid 205–06. 77  ibid 718. 78 Blackstone, Commentaries, ed Hammond, vol 4, 27. 74 

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the theory of the social contract,79 the history of equity,80 the history of written codes in England,81 the history of naturalisation and expatriation,82 the growth of individual ownership in land,83 the history of warranty,84 and the historical origins of the jury.85 He cited previous work on many of these topics by German scholars and by Frederic Maitland, and, following the general approach of the historical school, highlighted the Germanic origins of Anglo-American law. His notes often indicated how the law had changed over time, in England itself and more often in the US, on topics such as guardianship,86 the division of corporations into private and public,87 forfeiture of lands,88 capacity to make wills,89 the treatment of breach of promise as fraud,90 the law of replevin,91 degrees of insanity,92 and treason.93 Many of these notes corrected historical statements by Blackstone without also addressing the historical theory of law and its relationship to other jurisprudential schools, as he had while challenging Blackstone’s historical assertion that Roman law had fallen into ‘neglect and oblivion’.94 When Blackstone referred to the teaching of common law in medieval universities, for example, Hammond observed that in Anglo-Saxon England there were no institutions that could give competent legal instruction and no potential students who would be interested in it. Even after the Norman Conquest, when universities arose in England, it would have been impossible to study the common law. No texts on the subject were available, and the English Year Books could not have been used in legal education because they did not state the law in general terms, a necessity, Hammond felt, for effective teaching. The Year Books revealed a method of testing legal questions by a tentative process of comparison among cases until a decision was reached, but did not yield a formulated rule that could be taught to students.95 In several notes, Hammond disagreed with Blackstone’s understanding of the reception of Roman law in England. Acknowledging the revival of Roman law in the twelfth century even as he denied that it had been totally lost, Hammond took issue with Blackstone’s account of the relative impact of this revival in England

79 Blackstone, Commentaries, ed

Hammond, vol 1, 144–52. ibid 163–65. ibid 203–06. 82  ibid 640–44. 83 Blackstone, Commentaries, ed Hammond, vol 2, 30–33. 84  ibid 523–26. 85 Blackstone, Commentaries, ed Hammond, vol 3, 507–11. 86 Blackstone, Commentaries, ed Hammond, vol 1, 809. 87  ibid 844–45. 88 Blackstone, Commentaries, ed Hammond, vol 2, 451. 89  ibid 779. 90 Blackstone, Commentaries, ed Hammond, vol 3, 193. 91  ibid 230–31. 92 Blackstone, Commentaries, ed Hammond, vol 4, 44. 93  ibid 119. 94  See text accompanying notes 43–47 above. 95 Blackstone, Commentaries, ed Hammond, vol 1, 40–44. 80  81 

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and in continental Europe. Blackstone thought that Europeans were much more eager than the English to adopt Roman law. Hammond, by contrast, contended that European countries initially resisted Roman law more than the English, who, despite their distance from areas of Europe where Roman law ‘had maintained a languishing existence during the dark ages, and where its revived study began’, eagerly welcomed it and took a leading part in its revival. Even Spain and ­Germany, countries that eventually adopted Roman law most completely, at first bitterly opposed it.96 Yet Hammond believed that by the beginning of the fourteenth century ­England had reversed its initial enthusiasm for the revival of Roman law and successfully resisted its intrusion. He recognised some remains in English law from the original ‘romanizing time’ in England, particularly the division between real and personal actions. He also acknowledged parallels between various forms and rules in ­English and Roman law, though, consistent with his recognition that resemblance does not necessarily indicate a genetic relationship, he did not think it possible to prove that they reflected actual remnants of Roman law in England. He was more certain that attempts to trace feudal law and trade guilds to Roman law had failed.97 Interestingly, Hammond anticipated views soon expressed by Pollock and ­Maitland in their detailed and hugely influential study of the history of English law. Roman law, they wrote, ‘taught us much; and then there was healthy resistance to foreign dogma’.98 Pollock and Maitland, moreover, asserted that the resemblances between Roman forms of action and later English writs should not be mistaken for continuity or even imitation. They stressed that the English writs developed independently based on conditions in medieval England.99 Hammond also felt it was important to correct Blackstone’s presentation of the feudal system. He made clear that Blackstone’s mistaken views about feudalism were typical of his time and that he based his own very different understanding on a century of intervening historical research. Observing that a complete treatment of feudalism could not be accomplished within the space of an editor’s note, Hammond summarised his key points of disagreement with Blackstone. According to Hammond, feudalism was not as ingrained, uniform, or systematic as Blackstone and his contemporaries thought. It mostly modified existing institutions and was not introduced by conscious effort or command. Rather than ultimately traced to gifts from a King and then from lord to vassal, the feudal relation, at least in its early period, arose as often from the choice of a lord by a tenant. Hammond asserted that Blackstone ignored the tenant’s role in creating the feudal relationship because it contradicted the doctrine of English law that all lands are

96 

ibid 44. ibid 45. Pollock and FW Maitland, The History of English Law Before the Time of Edward I, 2nd edn (Cambridge, 1899) vol 2, 86. 99  ibid 558–60. 97 

98  F

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supposed to be held of the King. He pointed out as well that feudalism did not operate through a legislative body and that it was based much more on personal relationships than on property.100 The main purpose of feudalism, Hammond maintained, was to reorganise Europe in the wake of the social chaos produced by the fall of the Roman Empire. Its challenge was to devise a system in which two very different groups of people could live harmoniously: the northern barbarians, who had never lived in a ­settled government, and the Roman provincials, who had always lived in one. He pointed out that the modern conception of property, which encompasses land as well as chattels, did not exist during the feudal period and was ‘alien to its spirit’. ‘The very foundation of the feudal law of real property’, Hammond asserted, ‘was that the state or king as representing the state was the only true owner of all the land comprised within its boundaries’. Even the feudal recognition of the partial ownership of estates in land did not provide a system of titles, but regarded the estates as ‘mere appendages to certain positions in the social system’. Rules regarding estates were only corollaries to the more important regulation of ‘social and political rank and power’.101

VII.  On Blackstone’s Treatment of History Occasionally, Hammond discussed Blackstone’s own treatment of history, reaching somewhat contradictory conclusions. In a note disagreeing with Blackstone on a very technical issue, his statement that payment at any time before the execution of judgment should prevent forfeiture, Hammond made a much broader point about Blackstone’s neglect of history. Whereas Blackstone’s critics often ‘abused’ him ‘as a blind defender of legal precedents’, Hammond felt that Blackstone was more subject to the ‘opposite reproach’. He did not defend precedents enough because he failed to realise that abrogating them would introduce inconsistency into the law. ‘Like most of his contemporaries’, Hammond concluded, Blackstone ‘was ever ready to sacrifice the historical basis of the law to the frigid common sense of the eighteenth century’.102 Yet in one note Hammond remarked favourably on the extent to which Blackstone, while recommending the proper education for the bar, anticipated Maine in presenting ‘the doctrines of the historical school of jurists’. No one since Maine, Hammond added, had stated these doctrines more clearly than had Blackstone over a century earlier. Blackstone identified the multiple sources of English law that subsequent legal scholars, mostly in England and Germany, studied in more

100 Blackstone, Commentaries, ed

Hammond, vol 2, 105–06. ibid 106–07. 102 Blackstone, Commentaries, ed Hammond, vol 3, 608. 101 

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detail, not just the early customs of the Britons and Germans and the Salic law, but also the closely related Danish, Swedish, Norwegian, and Icelandic laws. And Blackstone’s advice to study the historical connections that Roman and feudal law might have with subsequent English law, Hammond happily reported, had recently begun to be followed by English speaking scholars of the common law.103 In another note, Hammond referred to Blackstone’s ‘frequent statement of historical changes in the common law’ and to his use of ‘ripening’ and ‘other metaphors which imply the same process’ to describe these changes.104 These comments are in some tension with Hammond’s frequent portrayal of the historical school as an improvement over Blackstone’s unfortunate adherence to natural law and with his repeated corrections of Blackstone’s legal conclusions based on historical evidence that Blackstone ignored or did not know. But they do reinforce Hammond’s approval of the historical school itself, whether or not he associated Blackstone with it.

VIII.  Hammond’s Unpublished Writings In his extensive unpublished writings, Hammond discussed the historical school much more comprehensively than in the comments he interspersed throughout his notes on Blackstone’s Commentaries. These unpublished writings are particularly effective in identifying the historical school of jurisprudence with the inductive method of scientific inquiry, a key theme expressed by many of his American contemporaries in their published works, though with less depth and sophistication than Hammond. He occasionally alluded to this theme in his notes on Blackstone’s Commentaries, as when he asserted that a legal decision should be the basis for determining legal principles ‘precisely as an observation or an experiment in natural science is the means by which a law of nature is learned’.105 He explicitly connected the historical study of law with induction in an unpublished lecture he often delivered on ‘the historical method of studying law’, which he characterised as ‘simply induction employed in the moral sciences’.106 He contrasted this ‘science of law inductively obtained by studying the facts of history’ with ‘rival theories of a science of law deduced by reasoning from fundamental principles’.107 In the final chapter of his unfinished book on the history of the common law, Hammond observed more specifically that prior deductive theories of law treated legal concepts such as property and contract as ‘immutable conceptions’ from the ancient past that ‘had the fixity of mathematical proof ’. They treated differences

103 Blackstone, Commentaries, ed

Hammond, vol 1, 64–65. ibid 216. ibid 220. 106  WG Hammond, Lecture I, 27, in Hammond Papers (n 15), Box I. 107  ibid 8. 104  105 

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between past law and current law as the correction of previous mistakes.108 By contrast, the modern legal thought of the historical school understands that ‘law is inductive and like all inductive sciences is constantly in process of construction’109 and is never ‘a complete and finished body’.110 Concisely capturing the broadly shared view among members of the historical school, Hammond concluded that the ‘life of the law, as of the race to which it belongs, consists in a constant change of its constituent parts, the old dying out, the new taking its place, but the continuity of the whole being maintained throughout’.111 It is a great pity that Hammond never completed his book on the history of the common law. The unfinished manuscript is far more comprehensive, historically accurate, and theoretically revealing than Holmes’s enormously influential book, The Common Law, published in 1881, ten years after Hammond outlined his project. If completed according to Hammond’s original plan, it would have exceeded in coverage and possibly in length Pollock and Maitland’s The History of the English Law before the Time of Edward I, published in 1895 and still considered by many the most ambitious and successful work on legal history ever written in English. Yet the extensive notes in his 1890 edition of Blackstone’s Commentaries incorporated a significant portion of the immense historical research he had accumulated for the book and effectively conveyed the main themes of the dominant historical school of American jurisprudence. Because Blackstone’s Commentaries remained a major law text in the US, more readers may have been exposed to the historical school and its findings through Hammond’s edition than through the works of any other American scholar.

108 

WG Hammond, Theory of Law 4, in Hammond Papers (n 15), Box V. ibid 3. 110  ibid 11. 111  ibid 12. 109 

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11 ‘A Very Narrowing Effect Upon Our Profession’: A Progressive Jurist Confronts Blackstone JOHN V ORTH

In the mid-eighteenth century, Sir William Blackstone capped his magisterial survey of English law with a summary of its ‘rise, progress, and gradual ­improvements’.1 Like American Progressives of the early twentieth century, Blackstone believed in progress. But unlike the Progressives, he believed that progress generally came through the cautious development of the common law, and—above all—it came only by degrees, gradually, over centuries. ‘I cannot but admire’, Blackstone said, ‘the wisdom of suffering time to bring to perfection new remedies, more easy and beneficial to the subject’.2 Statutes played a very small role in legal progress, and often a mischievous one at that: ‘[W]henever a standing rule of law … hath been wantonly broke in upon by statutes or new resolutions, the wisdom of the rule hath in the end appeared from the inconveniences that have followed the innovation’.3 By contrast, the Progressives were in a hurry. Improving the law incrementally case-by-case was too slow, too particularised, and frankly too undramatic. Judges were not positioned to make the kind of sweeping changes that Progressives demanded. In any event, the legal profession was enculturated to revere tradition and resist innovation. Legislatures (guided, of course, by Progressives) were the proper institutions to provide the radical solutions needed to solve the cascading problems of a society undergoing rapid change—economic, social, and political. While some Progressives had legal training, few found the judiciary a satisfactory platform for the social engineering they deemed necessary. 1  W Blackstone, Commentaries on the Laws of England, Book IV: Of Public Wrongs, ed R Paley and W Prest (Oxford, 2016) 263 [400]; here and below, numbers in square brackets refer to the pagination in the first edition of the Commentaries (1765–69). 2  W Blackstone, Commentaries on the Laws of England, Book III: Of Private Wrongs, ed TP Gallanis and W Prest (Oxford, 2016) 256. See DJ Boorstin, The Mysterious Science of the Law: An Essay on Blackstone’s Commentaries (Chicago IL, 1941) 74–82, stressing Blackstone’s belief in the automaticity of progress. 3 W Blackstone, Commentaries on the Laws of England, Book I: Of the Rights of Persons, ed D Lemmings and W Prest (Oxford, 2016) 53 [70].

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I.  Walter Clark (1846–1924) One Progressive jurist, North Carolina’s Walter Clark, whose tenure on the North Carolina Supreme Court (1889–1924) exactly coincided with the Progressive Era in America, typifies their dilemma. He was a constant critic of the bar’s ­Blackstonian complacency in the press, but was forced to look to the Commentaries for the law when on the bench. Born into a wealthy slave-owning family in Eastern North Carolina in 1846, Clark was a teenage soldier in the Civil War, participating in the bloody battles in Virginia. Returning to his devastated home state after the war, Clark began legal studies under Judge William Horn Battle at the University of North C ­ arolina, following the course of reading prescribed for aspiring lawyers by the state supreme court.4 Blackstone’s Commentaries topped the list.5 ‘If there is a copy of ­Blackstone’s Commentaries in the neighborhood’, Clark wrote to his father, ‘please send it to me’.6 After admission to the bar, Clark energetically entered into practice, busying himself, in the words of an unsympathetic observer, ‘with overflowed Roanoke [River] bottoms and with the operation and editing of a one-horse newspaper’.7 In 1885 he was appointed by the Governor to fill a vacant position on the superior court, securing his tenure at the election a year later.8 In 1889 he was appointed an interim justice of the state Supreme Court, winning election to the unexpired term the following year. In 1894 Clark stood for election to a full eight-year term. At the time, North Carolina was convulsed by political upheaval.

4 

AL Brooks, Walter Clark: Fighting Judge (Chapel Hill NC, 1944) 15, 39. rule adopted at the January Term 1867, ‘applicants for license shall be prepared to stand an approved examination upon the following works’—for practice before the county court: ‘First, second, and fourth Books of Blackstone’s Commentaries; Coke upon Littleton or Cruise’s Digest; Fearne on Remainders and Executory Devises; Williams or Iredell on Executors; Revised Code— Chapters on Deeds, Devises, Widows, and Wills’—for practice before the superior court: “Third Book of ­Blackstone’s Commentaries; first volume of Chitty on Pleading; Stephen on Pleading; Adams’s Doctrine of Equity; Smith on Contracts; Phillips or Greenleaf on Evidence; Revised Code—Chapters on County and Superior Courts, Crimes, and Executors.’ Phil Law 249 (NC 1867). Substantially the same list had been in effect since 1849. 10 Ired Law 607 (NC 1849); 11 Ired Law 658 (NC 1850); 2 Jones Law 142 (NC 1854). Similar lists requiring candidates for admission to read Blackstone’s Commentaries were published by other state courts. See, eg, Rule XIV of the Louisiana Supreme Court, 24 Nov 1840 (requiring candidates to be ‘well read … in Blackstone’s Commentaries, Fourth Book’), quoted in S M Sheppard, ‘Legal Jambalaya’ in W Prest (ed), Re-Interpreting Blackstone’s Commentaries: A Seminal Text in National and International Contexts (Oxford, 2014) 95, 98 n 5. 6 Brooks, Clark 15 (quoting August 1863 letter). For other law books that Clark studied, see ibid 41 (quoting Clark’s diary for 1866). 7  R W Winston, review of Brooks, Clark (1944) 22 North Carolina Law Review 181, 182. Brooks replied, disputing the description of Clark’s early career and dismissing the review as simply an attempt ‘to discredit Judge Clark’. (1944) 22 North Carolina Law Review 353. 8  Beginning with the Constitution of 1868, all North Carolina judges were chosen by popular election for terms of eight years: NC Const of 1868, art IV, § 21 (current version in NC Const, art IV, § 16). See my ‘Tuesday, February 11, 1868: The Day North Carolina Chose Direct Election of Judges’ (1992) 70 North Carolina Law Review 1825. 5  By

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The post-Reconstruction predominance of the Democratic Party was threatened by an alliance between the declining Republicans and the insurgent Populists. By adroit manoeuvring, Clark secured the nomination of all three parties, and easily won the election. Although the Democrats eventually re-established their control by a vicious campaign of white supremacy, Clark maintained his place until his death in 1924, winning re-election every eight years, after 1902 as chief justice. Over the course of his career, as Populism gave way to Progressivism, he became a leading advocate for the radical programme of agrarian Democrats, although with the Southern Progressive’s characteristic blind spot on race.9 Clark kept in touch with the movement’s various leaders William Jennings Bryan, Senator Robert La Follette, Justice Louis Brandeis, and Theodore Roosevelt, and was a frequent contributor to The Arena, a forum for advanced views.10 To his enemies he was a radical, ‘whose diversion was holding court, but whose occupation was dabbling in politics’.11 To a distinguished scholar of a later generation, he was simply ‘a ­stalwart American socialist’.12 At one time or another, Clark advocated the entire list of Populist/Progressive demands: (white) female suffrage, regulation of the railroads, nationalisation of the telephone and telegraph, municipal ownership of utilities, postal savings banks, one-cent letter postage, popular election of senators, a graduated income tax, a tariff for revenue only, initiative,13 referendum, recall of elected officials (except judges),14 child labour laws, more public schools, extension of good roads, labour’s right to organise, workers’ compensation, the eight-hour day, and nationalisation of energy sources (coal, oil, and water power).15 Unable to make headway

9  Immediately after the Civil War, Clark wrote in the press: ‘We must rid ourselves of the dead body of slavery, and with it dispose of the perplexing problems of negro suffrage and negro equality forever’. Brooks, Clark 37 (quoting article in the Raleigh Sentinel, Dec 1865). Fifty-five years later, in a commencement address at St Augustine’s School (now University), founded in 1867 for the education of freed slaves, Clark candidly admitted that ‘there is no social equality between the races …. The colored people do not wish social equality, and the white people would not tolerate it, and there the matter ends’. ‘As to suffrage’, he added, ‘I think that the wiser heads among the colored people have discouraged any attempt to intermeddle in politics and that the colored race has lost nothing but gained much by abstaining from doing so against the wishes of the white people notwithstanding the decision of the United States Supreme Court [Guinn v. United States, 238 US 347 (1915)] that the “Grandfather Clause” is void’. W Clark, ‘The Negro in North Carolina and the South’ in St Augustine’s Record, Vol XXV, No 5, 1920. Clark’s attitude toward African-Americans at the time has been described as that of ‘an elite and elderly (upper sixties) paternalist’, who saw himself as their ‘benevolent guardian’: JW Wertheimer, Law and Society in the South: A History of North Carolina Court Cases (Lexington KY, 2009) 55–56. 10 Brooks, Clark 204; see 257–58 for a list of Clark’s articles in The Arena. 11  RW Winston, It’s a Far Cry (New York NY, 1937) 174. 12  LL Fuller, ‘Irrigation and Tyranny’ (1965) 17 Stanford Law Review 1021, 1025. 13  ‘An electoral process by which a percentage of voters can propose legislation and compel a vote on it by the legislature or by the full electorate’: Black’s Law Dictionary, 8th edn (St Paul MN, 2004). 14  ‘Removal of a public official from office by popular vote’: ibid. 15 Brooks, Clark passim. See also P Whichard, ‘A Place for Walter Clark in the American Judicial Tradition’ (1985) 63 North Carolina Law Review 287, 322–34.

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with this ambitious programme in his tradition-bound state, Clark was more successful in persuading the legislature to give landowners the option to enter their titles in the Torrens system of title registration, a darling of Progressive law reformers, but—notwithstanding his enthusiastic support—it failed to attract many ­registrants.16 Although early in his career, Clark had worked for the railroads and the tobacco interests, he became an outspoken opponent of both, especially of the American Tobacco Trust, organised by James Buchanan Duke of North ­Carolina. Critical of the aggressive conservatism of the United States Supreme Court, he attacked ‘the judicial veto’, better known as judicial review.17 In an address at the University of Pennsylvania in 1906, Clark advocated the direct election of federal judges and ‘popular recall’ of unpopular rulings, that is, congressional power to overturn judicial decisions that voided regulatory statutes.18 Clark’s views on the judiciary went too far even for some Progressives. In 1912, Charles A Beard singled out Clark’s address for criticism in his book, The Supreme Court and the Constitution.19

II.  Critic of the Common Law Convinced that the traditionalism of the legal profession was a major obstacle to necessary reform, Clark exploded what he called ‘myths of the law’ in an article in the Michigan Law Review in 1914. Myth number one was Blackstone’s claim that the common law was ‘the perfection of reason’.20 ‘This claim’, Clark wrote, ‘is absolutely without foundation and all progress in the law has consisted in getting away from the barbarous teachings of the common law’.21 Ridiculing ‘judgemade law based upon alleged customs or traditions among a barbarous people’, Clark believed that legal improvements came ‘from statutory enactment or from

16  See my ‘Torrens Title in North Carolina: Maybe a Hundred Years Is Long Enough’ (2017) 39 Campbell Law Review 271. 17  The dilemma facing an activist judge who rejected judicial review is explored by TW Logue, ­‘Justice Clark and the Dilemma of Judicial Activism’ (1982) 3 Duke Humanities Review 43. 18  See W Clark, Some Defects of the Constitution of the United States: An Address to the Law Department of the University of Pennsylvania, April 27, 1906, in AL Brooks & HT Lefler (ed), Papers of Walter Clark (Chapel Hill NC, 1950), vol 2 553. 19  CA Beard, The Supreme Court and the Constitution (New York NY, 1912). 20  W Clark, ‘Some Myths of the Law’ 13 Michigan Law Review (1914) 26, 27. When Blackstone described the common law as ‘the perfection of reason’, he was, of course, quoting Sir Edward Coke, Co Litt § 138 (‘Reason is the life of the law; nay, the common law itself is nothing else but reason …, the Law, which is perfection of reason’.). Blackstone, Commentaries vol 1, 52 [70]. The other ‘myths’ enumerated by Clark were ‘the myth of Magna Carta’, specifically that it established trial by jury, and the myth of ‘the judicial veto’ (judicial review). 21 13 Michigan Law Review at 27.

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the urgent demands of public opinion arising from greater intelligence among the people’.22 Clark’s most sustained critique of received legal wisdom came a few years later, in ‘Coke, Blackstone, and the Common Law’, first published in Case & Comment in April 1918, and reprinted later that year in the [London] Law Times and the Irish Law Times.23 Like the feisty advocate he was, Clark began by candidly acknowledging the attraction of Blackstone’s elegant prose and condescending to his supposed lack of sources, then fiercely indicting him for his grovelling regard for the aristocracy and gentry, his veneration of an outdated feudalism, his traditional view of the legal rights of women, and his credulous acceptance of the possibility of witchcraft—spiced throughout with gratuitous ad hominem attacks. ‘[I]t is largely due to the influence of Coke and Blackstone, who were intense reactionaries’, according to Clark, ‘that the Bench and Bar in this country have not always been receptive of those progressive ideas which are necessary to the development of popular government’.24 Clark held Coke ‘more excusable from lack of unpublished material’25—a bizarre concession to a jurist whose mastery of legal sources was legendary—but more culpable for ‘departing from the truth from interested motives, as well as from the bias of his age and natural surroundings’26— a surprising charge against a leading opponent of Stuart despotism and popular hero of American Revolutionaries. ‘A sounder whig never wrote’, in the words of Thomas Jefferson.27 But it was primarily Blackstone’s pernicious influence that Clark blamed for the conservatism of the legal profession. Coke on Littleton was admired rather than read, but the four volumes of Blackstone’s Commentaries formed part of the mental furniture of American lawyers. The ‘silken smoothness’ of Blackstone’s prose was concededly ‘delightful, and has thrown a glamour around the common law and its origin which is only equaled by that which the facile pen of Sir Walter Scott has thrown around the rugged hills and former uncouth manners of the “land of brown heath and shaggy wood” beyond the Tweed’.28 However a­ ppealing, ­Blackstone’s style was put in service of an undemocratic, if not antidemocratic, agenda. ‘His lectures betray not only a romantic view of the crude ideas of the

22  ibid. As might be guessed from this comment, Clark had been impressed by AV Dicey’s Lectures on the Relation Between Law and Public Opinion in England During the Nineteenth Century (London, 1905); he recommended the volume to ‘bright young men coming to the bar’. Brooks, Clark 219. 23  W Clark, ‘Coke, Blackstone, and the Common Law’ Case & Comment 861 (April 1918); 145 Law Times (28 September–12 October 1918, 393, 407, 421); Irish Law Times (12 Oct 1918, 250); also published separately as a pamphlet (Rochester NY, 1918). Subsequent citations are to the Law Times. 24  (12 Oct 1918) 145 Law Times 422. 25  (5 Oct 1918) 145 Law Times 407. 26 ibid. 27  Thomas Jefferson to James Madison, 17 Feb 1826, The Works of Thomas Jefferson, ed PL Ford (New York NY, 1905) vol 12, 456. 28  (12 Oct 1918) 145 Law Times 422; (28 Sept 1918) 145 Law Times 393.

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common law, but an almost servile adulation of the nobility and landed gentry’.29 His praises of the higher orders, ‘as Blackstone well knew, were words totally at variance with the facts and based upon nothing but the grossest adulation of rank’.30 What Clark particularly decried was that ‘American law schools should retain the study of so inaccurate a writer whose views are so entirely at variance with the equality of all ranks, and who imputes special virtues to hereditary wealth and high social position which the citizens of our Republic hold unjustified’.31 Clark’s distress at the traditionalism of American legal education in general had special application in his own state, where Blackstone’s Commentaries formed the basis for much classroom instruction and remained required reading for applicants to the bar throughout his lifetime.32 ‘The greater part of Blackstone’s Commentaries’ Clark dismissed as ‘obsolete learning’.33 ‘Much was incorrect at the time it was written’, he claimed, although he conceded that Blackstone was handicapped by ‘the lack of material which has since been disinterred and printed’34—another incredible assertion.35 Clark particularly reprobated Blackstone’s learning ‘in regard to the feudal system and its incidents, so fully set out in the second book, for that entire system had been abolished a century before,—30 May, 1660,—as one of the conditions of the return of Charles Stuart to the throne, by the act known as 12 Charles II’.36 As Clark well knew, at least when he was on the bench, North Carolina property law was still so close to the common law as set out in the Commentaries that ‘second Blackstone’, as it was familiarly known to the state’s lawyers, was regularly cited as authoritative.37 In the same year that Clark was berating Blackstone’s feudalism, he penned the opinion of the court in a case applying the rule in Shelley’s Case,38 which had been rendered redundant by the Caroline legislation two-and-a-half

29 ibid. 30 

ibid 394.

31 ibid.

32  See my ‘Blackstone’s Ghost: Law and Legal Education in North Carolina’ in Prest, Re-Interpreting Blackstone’s Commentaries 125. For a similar complaint, see A Coates, ‘The Task of Legal Education in the South’ (1930) 16 American Bar Association Journal 464. 33  (28 Sept 1918) 145 Law Times 394. 34 ibid. 35  For Blackstone’s scrupulous adherence to precedent, see E Kadens, ‘Justice Blackstone’s Common Law Orthodoxy’ (2009) 103 Northwestern University Law Review 1553. 36  (28 Sept 1918) 145 Law Times 394 (referring to the Statute of Tenures, 12 Car. II c. 24). 37  See, eg, KP Battle, Memories of an Old-Time Tar Heel, ed WJ Battle (Chapel Hill NC, 1945) 81 (recalling the author’s study of law under his father, William Horn Battle, who also taught Clark, and claiming that he had committed ‘second Blackstone’ to memory). 38  Crisp v Biggs, 176 NC 1 (1918). Earlier in Clark’s service on the bench, the Supreme Court had vigorously defended the rule in an opinion of the court by Shepherd, CJ, in which Clark joined. Starnes v Hill, 112 NC 1 (1893) (citing ‘Blackstone (vol 2, p 171)’). In 1925, England abolished the rule: 15 & 16 Geo 5, c 20, § 131. It remained the law in North Carolina until 1987: NC Gen Stat § 41–6.3. See my ‘Requiem for the Rule in Shelley’s Case’ 67 North Carolina Law Review 681 (1989).

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centuries earlier. Citing Blackstone’s Reports for a statement of the rule,39 Clark explained that while its original justification had been removed in 1660: the rule has been so beneficial … in making possible the transfer of land a generation earlier and subjecting it to liability for the debts of the first taker, that in England, and also in this state and many others, it remains in force notwithstanding that often it may be contrary to the intent of the devisor or grantor to confer an estate, for life only, on the first taker.40

Clark found Blackstone’s claim that women were ‘the favourites of the common law’ to be particularly obnoxious.41 In fact, he said, ‘English law stands almost alone in its harsh discrimination against them’.42 Until the adoption of married women’s property acts, ‘they were in reality in slavery’.43 ‘Even the Mohammedans, bad as their social customs are in regard to women, always recognised their right to hold property’.44 Equally objectionable were ‘Blackstone’s ideas as to criminal law’.45 Exemplary of his views, Clark quoted the notorious passage from the ­Commentaries describing witchcraft as attested by scripture and prohibited by law46—without, however, acknowledging that Blackstone had called it a ‘dubious crime’ and added the emollient comment that ‘[i]t seems to be the most eligible way to conclude, with an ingenious writer of our own, that in general there has been such a thing as witchcraft; though one cannot give credit to any particular modern instance of it’.47

39  Crisp v Biggs, 176 NC 1 (citing ‘Perrin v Blake in the King’s Bench, which was reversed in the Exchequer Chamber, 4 Burr. 2579, Bl. Rep. 672, Dougl. 329’). In the celebrated case of Perrin v Blake, Blackstone’s lengthy opinion reversed Lord Mansfield and reaffirmed the Rule in Shelley’s Case: ­Collectanea Juridica, Consisting of Tracts, Relative to the Law and Constitution of England, ed F H ­ argrave (London, 1791) vol 1, 283. ‘It would not be surprising if Mansfield had allowed resentment of the major rebuff he and his court received in Perrin v Blake to affect his attitude towards Blackstone’: W Prest, William Blackstone: Law and Letters in the Eighteenth Century (Oxford, 2008) 268. 40  Crisp v Biggs, 176 NC 1. 41  (5 Oct 1918) 145 Law Times 407. cf Blackstone, Commentaries vol 1, 287 [433]: ‘[E]ven the ­disabilities, which the wife lies under, are for the most part intended for her protection and benefit. So great a favourite is the female sex of the laws of England’. 42  (5 Oct 1918) 145 Law Times 407. Clark actually attributed the legal subjection of women to the spitefulness of Sir Edward Coke: ‘[I]t is said that the great injustice of the English law as against married women, which marks it out from the laws of all nations, is due not to rulings which had been made by judges, and certainly not to any statute law of England, but to Sir Edward who, sulking over the wounds he received from his lady’s tongue, at night wrote down as common law provisions which he deemed married women should observe in subjection to their husbands’. 43  ibid. Fifty years earlier, the North Carolina Constitution of 1868, preserving the property rights of married women, had begun to eliminate women’s common law disabilities. NC Const of 1868, art X, § 6 (current version in NC Const, art X, § 4). See JV Orth and PM Newby, The North Carolina State Constitution, 2nd edn (New York NY, 2013) 189–90. 44  (5 Oct 1918) 145 Law Times 407. 45  (28 Sept 1918) 145 Law Times 394. 46 Blackstone, Commentaries, vol 4, 39–40 [60–61]. 47  ibid 40 [60] (citing Addison, Spectator no 117), 281[429].

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Clark’s rhetorical arsenal included crude personal attacks. Blackstone was, he claimed, ‘an unsuccessful barrister’.48 He represented pocket boroughs in Parliament, but once there ‘did not rise to the expectations which had been raised by his writings’.49 Blackstone, Clark charged, ‘bitterly opposed the statute permitting legal pleadings to be in English, instead of the dog Latin as theretofore required, on the ground, as he said, “that it would make lawyers less learned”.’50 And Clark subtly enlisted contemporary religious bigotry in his attack. At a time when the revived Ku Klux Klan was whipping up anti-Catholicism, Clark pointedly identified the common law with the church. The common law … was the creation of Catholic priests, with now and then a layman, who, as judges, decreed what in each case they deemed right and just; and thus there had been handed down from the priests of that barbarous age that “codeless system of laws, that myriad of single instances”,51 which Blackstone in his enthusiasm had misnamed “that perfection of reason—the common law of England”.52

According to Clark, ‘In the mouths of judges who were priests very often the common law referred to was the common law of the Catholic church’.53 Although Clark quoted Pollock and Maitland’s History of English Law in support, he failed to notice that those historians rated the ecclesiastics’ contribution very positively: ‘It is by “Popish clergymen” that our English common law is converted from a rude mass of customs into an articulate system, and when “Popish clergymen”, yielding at length to the Pope’s commands, no longer sit as the principal justices of the King’s court, the golden age of the common law is over’.54 Ironically, ­Pollock and Maitland were explicitly rebutting Blackstone’s own description of the part played—in words Clark himself might have used—by ‘monkish clergy’ and ‘popish ecclesiastics’ during the ‘days of bigotry’.55

48  (28 Sept 1918) 145 Law Times 393. Although Blackstone’s early practice at the bar was meagre, after the success of the Commentaries his practice was significant: Prest, William Blackstone 69–74, 183–87, 221–22. 49  (28 Sept 1918) 145 Law Times 393. While recovering Blackstone’s extensive contributions as a behind-the-scenes committeeman, Prest seems to concur in the contemporary assessment that overall his parliamentary career was ‘certainly respectable; but not the greatest of his time’. Prest, William Blackstone 227–31, 310 (quoting the Monthly Review). 50  (12 Oct 1918) 145 Law Times 422. By ‘dog Latin’ Clark presumably meant a poor attempt at writing genuine Latin. See OED sv dog, compounds C3a. In fact, legal proceedings had been in English since the fourteenth century (36 Edw III, c. 15, 1362), although court records remained in Latin until a statute of 1731 required that the records be kept in English (4 Geo. II, c. 26). Blackstone lamented that ‘now many clerks and attorneys are hardly able to read, much less understand, a record even of so modern a date as the reign of George the first’. Blackstone, Commentaries vol 3, 213 [322]. Although he did not say so explicitly in his article, Clark believed that Blackstone had been in parliament when the change to English was made: see his letter to SF Mordecai, 17 November 1917, in Mordecai’s Miscellanies 3 (privately printed, 1927). 51 (12 Oct 1918) 145 Law Times 421. Clark misremembered Tennyson’s poem, ‘Aylmer’s Field, 1793’ (‘the lawless science of our law, That codeless myriad of precedent, That wilderness of single instances’). The Poems of Tennyson, ed C Rick (London, 1969) 1172. 52  (12 Oct 1918) 145 Law Times 422. 53 ibid. 54  ibid, quoting F Pollock & FW Maitland, The History of English Law (Cambridge, 1895) vol 1, 112. 55 Blackstone, Commentaries vol 1, 19–20 [19–20].

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A particular crotchet of Clark’s was dispelling the ‘myth of the law’ that fathered the right to trial by jury on Magna Carta, which Blackstone repeated, following Coke.56 The expression ‘law of the land’ in Magna Carta, said Clark, ‘has been strangely misconstrued’.57 In fact, Clark himself had once been a believer, but changed his mind after reading WS McKechnie’s Commentary on the Great Charter in 1905.58 Clark’s judicial utterances on the subject punctuated his chief justiceship, culminating in an article published in the American Law Review in 1924, the year of his death.59 ‘The object of this article,’ he wrote with the zeal of a convert, ‘is in the interest of truth to show that broad as are the provisions of Magna Carta and great as has been its effect upon the course of history, it has no claim however to be styled, as it often has been, the origin and guarantee of trial by jury with which it had nothing whatever to do’.60 Rather than a bulwark of liberty, the Great Charter was no more than a confirmation of baronial privilege. ‘Its whole object was to restrict the power of a worthless and irresponsible King in favor of the feudal privileges of the bishops and barons’.61 Predictably, Clark charged Coke and Blackstone with fostering ‘the chimerical delusion’ that it was anything more.62 To support his attack on Blackstone’s ‘romantic’ view of the common law, Clark quoted ‘the estimate of Blackstone and his eulogised subject of the common law’ by ‘an eminent American lawyer, JC Carter’.63 After a long list of legal anachronisms—‘knight service, value and forfeiture of marriage, and ravishment of wards; aids to marry lords’ daughters, and make lords’ sons knights’, etc—the diatribe concluded: ‘When Blackstone, who had a professor’s chair and a salary for praising the common law, employs his elegant style to whiten sepulchres and varnish such incongruities, it is like the Knight of La Mancha extolling the beauty and graces of his broad backed mistress, winnowing her wheat or riding upon her ass’.64 ‘When is it’, the same author asked, ‘that we shall cease to invoke the spirits of departed fools?’65 Carter’s eminence cannot be denied. A national leader of the bar, his lectures on ‘The Law: Its Origin, Growth, and Function’, intended for delivery at the ­Harvard Law School, had been published posthumously in 1907.66 But Carter never made the remarks that Clark attributed to him, nor was it likely he would have, since

56 Blackstone, Commentaries vol 4, 273–74 [416–17]; ibid vol 1, 86–87 [123–24]; see Clark, ‘Myths of the Law’ 28–30. 57  (12 Oct 1918) 145 Law Times 422. 58  WS McKechnie, Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction (Glasgow, 1905). On Clark’s sudden conversion, see my ‘The Past Is Never Dead: Magna Carta in North Carolina’ (2016) 94 North Carolina Law Review 1643–50. 59  W Clark, ‘Magna Carta and Trial by Jury’ (1924) 58 American Law Review 24. 60 ibid. 61  Clark, ‘Myths of the Law’ 28–29. 62  Clark, ‘Magna Carta and Trial by Jury’ 38. Uncharacteristically, Clark described Blackstone as ‘one of the greatest of our legal authorities’, ibid 37, although perhaps that only aggravated the charge. 63  (28 Sept 1918) 145 Law Times 394. 64  ibid (quoting ‘JC Carter’). 65 ibid. 66  J C Carter, The Law, Its Origin, Growth, and Function (New York NY, 1907).

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Carter’s fame as a legal scholar was as a champion of the common law in opposition to the movement for codification.67 In fact, the remarks attributed to Carter were actually made more than a century earlier by William Sampson, an ­Irish-American radical, and early proponent of codification.68

III.  Clark on the Bench However virulent Clark’s attack on Blackstone in the press, his relationship with the Commentaries was more nuanced when on the bench. Throughout his judicial tenure, including his chief justiceship, the North Carolina Supreme Court continued to issue lists of required reading for law students.69 Blackstone headed every one, although in the condensed form of Ewell’s Essentials of the Law, which purged the Commentaries of ‘obsolete and unimportant matter’.70 During Clark’s 35 years on the court, Blackstone was regularly cited in judicial opinions in which Clark joined—on average more than six times a year.71 In opinions he authored himself, Clark cited Blackstone by name dozens of times.72 Although each of the four volumes of the Commentaries was invoked at one time or another, the majority of Clark’s citations were predictably to the second volume on property (‘rights of things’), sometimes for minor or noncontroversial points: Blackstone defined a deed as ‘a writing sealed and delivered by the ­parties’73; he labelled the right to kill and take game ‘the right of venary’.74 Sometimes Clark cited Blackstone to denounce his adherence to obnoxious views: ‘[I]n his Commentaries [he] emphasised these views, saying that sons take

67 For Carter’s opposition to codification personified in the late nineteenth century by David Dudley Field, see B Schwartz, Main Currents in American Legal Thought (Durham NC, 1993) 353. 68 Clark may have found Sampson’s diatribe in a sketch in The Green Bag: I Brown, ‘William ­Sampson’ (1896) 8 The Green Bag 313 (quoting Sampson’s argument in the 1807 Journeymen Cordwainers Case). Clark himself published three articles in the same vol: 8 The Green Bag (1896) 149, 203, 427. For Sampson and the origin of the codification movement later headed by Field, see M ­Bloomfield, American Lawyers in a Changing Society, 1776–1876 (Cambridge MA, 1976) 59. 69  For citations to the court lists during Clark’s tenure, see my ‘Blackstone’s Ghost’ 139. 70  MD Ewell, Essentials of the Law: For the Use of Students at Law (Boston MA, 1889). Previously Ewell had published Blackstone’s Commentaries for the Use of Students and the General Reader, Obsolete and Unimportant Matter Being Eliminated (Boston MA, 1882), which subsequently became vol 1 of his Essentials. 71  Citations to Blackstone’s Commentaries (variously abbreviated) appear 236 times between 1889 and 1924. Occasionally particular editions are named: Sharswood’s, Lewis’, or Cooley’s. For these editors, see M Hoeflich, ‘American Blackstones’ in Prest (ed), Blackstone and His Commentaries 171. 72  Citations to Blackstone’s Commentaries in opinions written by Clark, whether for the majority or as part of dissenting or concurring opinions, appear 44 times. 73  McNeill v Allen, 146 NC 283 (1907) (citing ‘2 Blackstone’s Com. 295’). Citations in judicial opinions are to the pagination established in the tenth edition (1787), the basis of the later ‘star edition’ generally used in legal publications. 74  Council v Sanderlin, 183 NC 253 (1922) (citing ‘2 Bl. Com. 415’).

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­ recedence over daughters in rights of inheritance because “the worthiest of blood p shall be preferred.” (2 Com. c. 14)’.75 At other times, Clark quotes Blackstone in learned digressions: ‘Blackstone and Littleton speak of five species of dower, which had been gradually evolved from the variant customs as to dower prevailing in different parts of England, but these from time to time have been dropped or abolished, except what is known as “dower by the common law”.’76 Blackstone enumerated the seven ‘oppressive incidents’ of feudal tenures, abolished in 1660: ‘“aids, relief, primer seisin, wardship, marriage, fines for alienation and escheat” (2 Com. 63)’.77 The fourth volume of the Commentaries (‘public wrongs’) also proved to be a handy resource for Clark since North Carolina retained so many common law crimes. ‘Among the many definitions given of robbery’, Clark wrote, ‘probably the best is that by Lord Mansfield … or Blackstone’s, (4 Bl. Comm. 242:) “The felonious and forcible taking, from the person of another, of goods or money to any value, by violence or putting him in fear”.’78 Manslaughter was a killing done ‘in the commission of an unlawful act’.79 Never given a chance on the bench to repeat his ridicule of Blackstone’s comments on witchcraft for want of prosecutions, Clark had several occasions to berate Blackstone’s conventional views on the legal status of women. Although he had begun to attack these statements earlier in cases in 1901 and 1903,80 women’s rights—at least, the rights of white women—were especially on Clark’s mind in the following decades. Hailed as ‘the first prominent Southerner’ (male Southerner, that is) to campaign for women’s suffrage,81 Clark frequently spoke and pamphleteered in support of the cause. In an outspoken address in 1916, ‘Ballots for Both’, he headlined the fact that the state’s ‘white population is 70% and the negro 30%’, so there were ‘more white women than all the negro men and women put together’. As a consequence, Clark concluded, votes for women ‘could not possibly jeopardise White Supremacy’ but would actually make it ‘more secure’.82 The Nineteenth Amendment to the United States Constitution, giving women the

75 

Young v Newsome, 180 NC 315 (1920) (Clark, CJ, concurring). Corporation Comm v Dunn, 174 NC 679 (1917) (no source cited). Common law dower endured in North Carolina until 1959. NC Gen Stat § 29–4. 77  Crisp v Biggs, 176 NC 1 (1918). 78  State v Brown, 113 NC 645 (1893) (citing ‘4 Bl. Comm. 242’). Robbery to this day is without statutory definition in North Carolina. See NC Gen Stat § 14–87.1 (prescribing punishment for ‘common law robbery’, otherwise undefined). North Carolina courts continue to define the crime in terms drawn from Blackstone. See, eg, State v Black, 286 NC 191 (1974) (‘Robbery at common law is the felonious taking of money or goods of any value from the person of another, or in his presence, against his will, by violence or putting him in fear’.) For other examples, see my ‘Blackstone’s Ghost’ 137–39. 79  State v Johnson, 166 NC 392 (1914) (Clark, CJ, dissenting) (citing ‘4 Blackstone, 191’). 80  Vann v Edwards, 128 NC 425 (1901) (Clark, J, concurring) (citing ‘1 Bl. Comm. 444’); State v Jones, 132 NC 1043 (1903) (Clark, J, dissenting) (referencing ‘Blackstone and other authorities’ without citation). 81  JA Lockhart, Address to the Supreme Court on the Presentation of the Portrait of Walter Clark, 188 NC 839, 844 (1924). 82  W Clark, Ballots for Both: An Address by Chief Justice Walter Clark at Greenville, NC, 8 December 1916 (Raleigh NC, 1916). 76 

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vote, was proposed by Congress in 1919 and ratified the next year by the requisite number of states—despite Clark’s impassioned advocacy, not including North Carolina. Undaunted, Clark continued his campaign against Blackstonian traditionalism from the bench. In 1920 he wrote in a judicial opinion that ‘Blackstone, who 160 years ago opened the first law school in England, was an intense reactionary, and in his Commentaries … stated that the “very being or legal existence of woman is suspended during marriage, or at least is incorporated and consolidated into that of her husband” (2 [sic] Blackstone, c. 15)’.83 Clark described the fiction of marital unity as ‘the source of all the legal degradation of women which it has taken so many years to conquer—and which indeed is not entirely eradicated yet’.84 In a case the next year, Clark digressed to ridicule Blackstone’s strained attempt to justify the paradox that at common law a husband could maintain an action for injuries sustained by his wife, but a wife could not maintain an action for injuries sustained by her husband: ‘One reason for this’, Blackstone suggested, ‘may be this: That the inferior hath no kind of property in the company, care or assistance of the superior as the superior is held to have in those of the inferior, and therefore the inferior can suffer no loss or injury’.85 So solicitous of women (and hostile to corporations) was Clark that it was said by one of his contemporaries: ‘there were two things on which the lawyers could always be sure of Judge Clark’s opinion: (1) if it were a question concerning a corporation, he would be against it; (2) if a woman were involved, he would be for her’.86 In a few instances, Clark actually found support for his Progressive views in the Commentaries. Concerned about the growing concentration of wealth, he delighted to invoke Blackstone in a case in 1901 for the proposition that there is no natural right to dispose of one’s property after death: When one closes his eyes on sublunary scenes, and from his cold grasp drops the things for which he has toiled or sinned, he has no natural right to direct what shall become of them thereafter. The right to dispose of property by will is purely statutory, as Mr. Blackstone tells us. From the Conquest down to the comparatively recent Statutes of Wills, 27 and 32 Henry VIII, the power to dispose of realty by will did not exist in England (2 Bl. Comm. 374). This right is not recognised, or recognised only to a limited part of the estate, in France, and many other countries. As it is given by statute, it may be modified or revoked by statute.87

83 

Young v Newsome, 180 NC 315 (1920) (Clark, CJ, concurring) (citing also ‘2 Black. c. 29’). ibid. Tim Stretton has argued that Blackstone promoted the legal fiction of the unity of person in marriage in order to downplay older rationales based on the superior strength of husbands: T Stretton, ‘Coverture and Unity of Person in Blackstone’s Commentaries’ in Prest, Blackstone and His Commentaries 111. 85  Hipp v EI Dupont de Nemours, 182 NC 9 (1921) (quoting ‘3 Blackstone’s Commentaries 143’). 86  AE Whitener, ‘Judge Clark, His Social and Political Ideas’ (MA dissertation, Duke University, 1928) 137 (quoting Ned Pegram, ‘a practicing lawyer’). 87  Hodges v Lipscomb, 128 NC 57 (1901). The statutory references are to the Statute of Uses, 27 Hen VIII c. 10 (1535) and the Statute of Wills, 32 Hen VIII, c. 1 (1540). For other cases containing­ 84 

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So pleased was Clark with this passage that he repeated it verbatim in an opinion twenty years later.88 Although he never credited Blackstone with agreement, the Commentaries included support for debunking another of Clark’s ‘myths of the law’, the ‘judicial veto’.89 ‘Should the legislature or Congress disobey the mandate of the Constitution’, Clark wrote, ‘the power to review and nullify their action has not been given by the Constitution to any court but rests in the sovereign—the people themselves—in electing a new law making body’.90 Blackstone agreed: ‘[T]here is no court’, he wrote, ‘that has power to defeat the intention of the legislature, when couched in such evident and express words, as leave no doubt whether it was the intent of the legislature or no’.91

IV. Conclusion Resistance to Clark’s frequent criticism of Blackstone was muted among North Carolina lawyers. Mostly they just ignored it and continued to study and cite the Commentaries, as they had for more than a century. In one case in 1917, about the time Clark was completing his article on Coke and Blackstone, one of the justices did seem to go out of his way to cite Blackstone and pointedly praise him as ‘one among our greatest commentators—if not entitled to the first place’.92 In the same year, Clark wrote to SF Mordecai, Dean of Trinity (now Duke) Law School, calling his attention to the critical entries on Coke and Blackstone in the latest Encyclopedia Britannica (11th edn, 1911) and suggesting that ‘it may interest your students at least to see the estimation in which these two writers have been held in E ­ ngland’.93 Clark charged that Blackstone had used his time in parliament similar observations, see Tiddy v Graves, 126 NC 620 (1900) (paraphrasing ‘Blackstone’ without ­citation); In re Garland’s Will, 160 NC 555 (1912) (citing ‘2 Blackstone, 10’, ‘2 Blackstone, Com. 374, 491’, ‘2 ­Blackstone, 491’ and ‘2 Bl. 493’). 88  Wachovia Banking & Trust Co v Ogburn, 181 NC 324 (1921). Latterly, the United States Supreme Court has rejected Clark’s view. Hodel v Irving, 481 US 704 (1987) (holding that there is a constitutional right to transmit property at death by inheritance or devise). 89 13 Michigan Law Review 30–32. 90  ibid 30–31. Clark later sought to distinguish between rulings of unconstitutionality based on purely legal grounds, which should not be subject to congressional recall, and those based on the judges’ economic and social judgments, which should be. See Brooks, Clark 202–04. In the decade after Clark’s death in 1924, the United States Supreme Court attempted to resolve the problem by announcing a presumption of constitutionality for ‘regulatory legislation affecting ordinary commercial ­transactions’. United States v. Carolene Products Co, 304 US 144, 154 (1938). 91 Blackstone, Commentaries vol 1, 67 91]. Ironically, in this regard Blackstone parted company with Coke. See my ‘Did Sir Edward Coke Mean What He Said?’ (1999) 16 Constitutional Commentary 33. 92  Corporation Comm v Dunn, 174 NC 679 (1917) (Walker, J, dissenting) (citing ‘2 Blackstone, p. 135’, ‘2 Blackstone, Comm. 129’ and ‘2 Blackstone 131 et seq’). 93  Mordecai’s Miscellanies 3 (Clark to Mordecai, 17 Nov 1917). Similarly negative views of the ­Commentaries continued to appear in later editions of the Encyclopedia Britannica, in articles authored by Frederick Sherwood. See Sheppard, ‘Legal Jambalaya’ 100 n 10. See also below in Prest’s Ch 12, 214.

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‘to oppose the passage of an Act to repeal the law requiring Court records and pleadings to be in dog latin [sic]’ and that he had maintained in the Commentaries that ‘it was to contradict Divine Revelation to contend that there were not witches’—and this ‘on the very eve of the American Revolution’.94 At the end of his letter, Clark summed up his frustration: ‘the influence of Blackstone and Coke has had a very narrowing effect upon our Profession’.95 Mordecai, whose published law lectures were based on the first and second volumes of the Commentaries,96 was not likely to agree. In reply, he dismissed Clark’s first charge. ‘Blackstone is not to be judged by his career in parliament’: he was ‘as much out of place among a lot of politicians as Pegasus in harness’.97 As to the ­second, he admitted that Blackstone ‘threw out a word in his C ­ ommentaries to catch the ear of the ultra-orthodox and literal constructionists among the ­churchmen of his day’98—a group still well represented in Clark’s own day. A professed agnostic, Mordecai demonstrated an impressive knowledge of the Bible with a string citation of verses recognising witchcraft, capping it off with ­Blackstone’s dismissal of the Jacobean statute on the subject as not to be classed among the law’s ‘­improvements’.99 In conclusion, Mordecai professed his faith that Blackstone and Coke had conferred ‘inestimable benefits upon mankind in making and elucidating laws for its government’ and warned Clark that he risked ‘the liberties of the people by defaming the ancient and modern champions of their rights’.100 Clark’s confrontation with Blackstone was more complicated than he admitted, perhaps even than he knew. His revulsion was visceral and sincere, but the substance of his complaint was not so much the law as stated in the Commentaries. To the extent Blackstone repeated ancient learning and outdated pieties, Clark held him up to ridicule and contempt, but for his clear statement of the working common law, Blackstone—an acknowledged and, above all, a convenient legal authority—was of everyday use to Judge Clark. Although Clark recommended the Britannica entry to Mordecai and included a long excerpt from it in his article on Coke and Blackstone,101 the primary criticism of Blackstone that it contained was jurisprudential. The encyclopaedist repeated John Austin’s criticism that Blackstone failed to define his terms and mixed the legal with the popular sense of words and concluded that Blackstone was ‘by no means what would now

94 Mordecai, Miscellanies 95 ibid.

3.

96  SF Mordecai, Law Lectures: A Treatise From a North Carolina Standpoint on Those Portions of the First and Second Books of the Commentaries of Sir William Blackstone Which Have Not Become Obsolete in the United States (Raleigh NC, 1907, 1916). 97 Mordecai, Miscellanies 4 (Mordecai to Clark, 23 Nov 1917). 98 ibid. 99  ibid 5 (citing ‘4 Bkl. [sic] *436’). 100  ibid. Mordecai characteristically salted his answer with homely anecdotes, concluding: ‘[I]n re Blackstone I stand by my prejudices, and if the facts be against me, so much the worse for the facts. I won’t read ‘em’. 101  (28 Sept 1918) 145 Law Times 394.

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be called a scientific jurist’.102 But the author conceded that Blackstone’s defects were ‘more conspicuous in his treatment of the underlying principles and fundamental divisions of the law than in his account of its substantive principles’.103 As the encyclopaedist recognised, ‘the completeness of the treatise, its serviceable if not scientific order, and the power of lucid exposition possessed by the author, demanded emphatic recognition’.104 Clark was not himself a ‘scientific jurist’. He never criticised Blackstone’s lack of jurisprudential rigor—probably never noticed it. What Clark objected to, aside from the old law collected in the Commentaries, was Blackstone’s tone, his ­Panglossian complacency and adamantine opposition to rapid change.105 ­Blackstone-trained lawyers and judges—and they were all around him—were constitutionally averse to the radical reforms that Clark demanded. ‘Lay it down as a rule’, he said, ‘that judge-made law has, owing to the training and age of our judges, tended at any given moment to represent the convictions of an earlier era rather than the ideas represented by Parliamentary legislation’.106 If the judges stood in the way, Clark would appeal to the people to act through their legislators. But again, Clark found the legal profession blocking progress. In a bracing address to the North Carolina Bar Association in 1914, he declared: Even in our legislation, progress is hampered by the fact that legislation is largely shaped by lawyers in the legislative bodies, and that even when progressive measures are passed they are taken on the judicial anvil and often hammered into unexpected shapes, and not infrequently are vetoed, by the most unprogressive members of our unprogressive profession, the judges.107

For Clark, the Progressive jurist, Blackstone personified the traditionalism of the legal profession, its political and social conservatism, and its unquestioning acceptance of the reasonableness of the common law. Not temperamentally patient, Clark could not tolerate the longue durée of Blackstonian progress.

102 ibid. 103 ibid. 104 ibid.

105  Clark would have found confirmation in Dicey’s view that ‘Blackstonian optimism’ in the period 1760–1820 led first to legislative quiescence, then facilitated Tory reaction. See Dicey, Law and Opinion 45–90. 106  Quoted in Brooks, Clark 163. cf OW Holmes, ‘The Path of the Law’ (1897) 10 Harvard Law Review 457, 468 (‘[I]n some courts new principles have been discovered …, which may be generalised into acceptance of the economic doctrines which prevailed about fifty years ago’.). 107  Quoted in Brooks, Clark 216.

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12 Blackstone’s Posthumous Reputation WILFRID PREST

The security of his reputation or good name from the arts of detraction and slander, are rights to which every man is intitled, by reason and natural justice; since without these it is impossible to have the perfect enjoyment of any other advantage or right. —William Blackstone.1 A very fine/elegant book as to the outside of its contents, a very bad book as to the inside, written with intentions by no means so bad as might secure from the consequences that might fairly be drawn from it, tho’ not perhaps always the most laudable: while from the novelty of its design and graces of its stile has met with reputation [success: deleted] much beyond /more what its deserves/merits, and as much/more than it/probably beyond what it will preserve/retain. —Jeremy Bentham.2 There is an inescapable indeterminacy about all questions of reputation where literary and intellectual figures are concerned. —Stefan Collini.3

The first chapter of Blackstone’s Commentaries lays out the ‘absolute rights’ and liberties once enjoyed by ‘all mankind’ and still retained by ‘the people of ­England’. First among these was ‘[t]he right of personal security’, consisting of ‘a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation’.4 Any reader who has reached this point in our collection will be well aware that neither the author nor his Commentaries have enjoyed an unmixed reputation over the past two and a half centuries. Indeed, as noted in the ­Introduction, even before those volumes first appeared in print, their future

1 W Blackstone, Commentaries on the Laws of England, Book I: Of the Rights of Persons, ed D Lemmings and W Prest (Oxford, 2016) vol 1, 91 [130]; here and below, the numbers in square brackets refer to the pagination of the original edition (1765–69). 2  University College London Library, Bentham Papers, Box 96, fo 64. 3  Times Literary Supplement, 18 February 2005, 13. 4 Blackstone, Commentaries vol 1, 86–88 [123–25].

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author had become a divisive figure, both within and beyond the University of Oxford. Thereafter acclaim for his achievements as expositor of England’s unreformed legal and political constitution has always been mingled with and in varying degrees offset by contempt, derision and disapproval, directed at both the man and his work. This chapter seeks to trace the vagaries of Blackstone’s posthumous reputation, and that of his book, even though such an undertaking can scarcely provide more than an incomplete impression of complex and fluid bodies of opinion, largely but not exclusively Anglo-American.

I. 1780–1840s At the time of his death in February 1780, Blackstone’s status as ‘a great luminary of the law’ seemed secure.5 Eight English, six Irish and three American editions of the Commentaries had already appeared; the pirated Dublin imprint cost less than half the English original’s price, encouraging a clandestine trade in smuggled ­copies.6 There were also several translations into French and German, together with a growing body of works based upon or derived from the ­Commentaries, like the Constitutional Catechism of John Rose, ‘a new compilation from the works of that learned Commentator, whose labors have been so eminently useful, both to the law-student and the private reader …’.7 An essential reference on legal and political matters in both public and private life, the Commentaries also soon became a school text, at least in the form of edited selections. An abridgment published in 1822, ‘Chiefly intended for the Advancement of Female ­Education’, took the form of letters from a father to his daughter.8 In the six decades after Blackstone’s death a further 28 English and Irish editions were published; by contrast American printings were relatively few and far between until the 1830s, when five US editions appeared, followed by another 10 in the next decade. By that time judicial and legislative change in Britain had outdated much of Blackstone’s original content. One very effective response to the problem of partial obsolescence was Serjeant Henry Stephen’s New Commentaries on the Laws of England (partly founded on Blackstone), a compilation first issued by the law publisher B ­ utterworth in 1841, and continually revised in successive editions down to the middle of the twentieth century.9

5 

London Evening Post, 15 February 1780. Pollard, Dublin’s Trade in Books 1550–1800 (Oxford, 1989) 80–81; WJ Fitzpatrick (ed), ­Correspondence of Daniel O’Connell the Liberator (London, 1888) vol 1, 14. 7  J Rose, A Constitutional Catechism, Adapted to All Ranks and Capabilities (Bristol, 1795) sig. A. 8  [J Eardley-Wilmot], An Abridgment of Blackstone’s Commentaries on the Laws of England: in a Series of Letters from a Father to His Daughter: Chiefly Intended for the Use and Advancement of Female Education (London, 1822; subsequent edns 1853, 1855). 9 See Ch 9 above, 153, 170, 172. 6 M

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Yet while Blackstone could be hailed as ‘the pride of England’ and his ­ ommentaries were indeed ‘loudly applauded’ and regularly consulted, in the C years after his death even admirers voiced caveats. According to his junior Oxford contemporary, William Jones, the later famed Orientalist, on the one legal topic with which Jones was then particularly concerned, ‘our excellent Blackstone. … speaks so loosely and indeterminately, that no fixed ideas can be collected from his work’.10 Even the otherwise eulogistic memoir by his brother-in-law James Clitherow, prefixed to Blackstone’s posthumously-published Reports (1781), ­ included some mitigatory but potentially very damaging references to the author’s evidently notorious bad temper, incivility and ‘sternness’; these unfortunate personal traits were corroborated by various independent witnesses.11 Meanwhile criticism of specific aspects and findings of the Commentaries continued to appear in print,12 together with more general indictments. Responding to William Scott’s assertion that ‘Blackstone composed his “Commentaries” drinking a bottle of port’, Dr ­Samuel Johnson asked: ‘What Composition is there in Blackstone’s “Commentaries”? It was only taking from other books and putting into his.’13 In 1782 an anonymous reviewer pointed out that ‘the arrangement of the greatest part is taken from Lord Hale’s Analysis’; the Dissenter David Williams described the introduction to Book I of the Commentaries as ‘copied from Montesquieu’, a claim later backed up by a French author, who marshalled columns of parallel texts to demonstrate that Blackstone was indeed ‘le Montesquieu de l’Angleterre’ in more senses than one.14 Referring to the conservative reaction which accompanied the French Revolution and Napeoleonic wars, the aging radical Horne Tooke ‘inferred something very like degeneracy on the part of the nation’ from the fact that ‘when the Commentaries first made their appearance, they were esteemed so little friendly to freedom, as to be quoted on the side of power; but he had lived long enough to find them cited on the side of liberty’.15 According to John Reeves, a loyalist lawyer-activist and legal historian of completely opposite persuasion, since ­‘Blackstone’s Commentaries are in the hands of every one, who reads at all’ it was particularly unfortunate

10  W Jones, An Inquiry … To which is now added A Speech on the Nomination of Candidates … 1780, 2nd edn (London, 1782) 54; idem, An Essay on the Law of Bailments (London, 1781) 3. 11 J Clitherow, ‘Preface, Containing Memoirs of his Life’, in [W Blackstone], Reports of Cases ­Determined in the Several Courts of Westminster-Hall, from 1746 to 1779 (London, 1781) xxvi–xxvii; cf W Prest, William Blackstone: Law and Letters in the Eighteenth Century (Oxford, 2008) 272–73, 306. 12  eg, G Sharp, The Legal Means of Political Reformation (London, 1780) 44–45; Anon, The Outof-Door Parliament: By a Gentleman of the Middle Temple (London, 1780) 72; S Parr, Two Sermons (Norwich, 1780) 45; T Brooke, An Essay on the Powers of Parliament (London, 1781) 32; Anon, Considerations on the Game Laws, Together with Some Strictures on Dr Blackstone’s Commentaries (London, 1787) 5–6; [R Bradley], An Inquiry into the Nature of Property (London, 1799) 3–5. 13  Private Papers of James Boswell from Malahide Castle in the Collection of Lt. Colonel Ralph Heyward Isham, ed G Scott (Mt Vernon NY, 1928–34) vol 15, 197–98. 14  Monthly Review, vol 67 (July 1782) 5; D Williams, Letters on Political Liberty (London, 1789) 10–11; T Regnault, Tableaux Analytiques de “l’Esprit des Lois” de Montesquieu, suivis de la Comparaison de Plusieurs Principes et Passages de Montesquieu et de Blackstone (Paris, 1824) Introduction [2]. 15  A Stephens, Memoirs of John Horne Tooke, 2 vols (London, 1813) vol 2, 437.

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that such a work ‘should be blemished with false notions’. These imputed misconceptions, which Reeves termed the ‘Errors of Vinerianism’, amounted in his view to ‘unworthy notions of the Executive part of our government, as if it was something foreign, or hostile’, hence a failure to recognise the essentially monarchical nature of the British constitution. While still in his Tory phase, William Cobbett hailed Reeves for having ‘completely overturned the doctrine of Blackstone’, and the associated ‘damnable heresy of Whiggism’.16 Thus within one generation the Commentaries were denounced and repudiated from either end of the political spectrum. Cobbett spoke too soon, needless to say. While Bentham never published the extensive critique of Blackstone from which he had extracted the Fragment on Government, he did reissue that tract in 1823, this time under his own name and— consequent upon his late conversion to the radical cause—as de facto intellectual leader of a swelling movement for legal and parliamentary reform.17 Bentham lived on until 1832, long enough to see his disciple John Austin installed as professor of jurisprudence at the nascent University of London. While Austin was a political conservative, he fully shared Bentham’s disdain for the Commentaries, in which he could discern no ‘single particle of original and discriminating thought’. Blackstone simply ‘truckled to the sinister interests’ of power, adding ‘the allurement of a style which is fitted to tickle the ear, although it never or rarely satisfies a severe and masculine taste’.18 The Bentham-Austin view of Blackstone’s book as confused, derivative, malign and meretricious exercised notably less influence across the Atlantic or in continental Europe than in Britain and the British empire. Certainly there were prominent early critics and detractors in the infant US, not least John Dickinson, Thomas Jefferson, James Wilson, and St George Tucker.19 But the strong North American demand for copies of the Commentaries, both before and long after the War of Independence, suggests that the merits of Blackstone’s exposition largely outweighed reservations about the politics of the author or his book. (Like the young Bentham, Blackstone had firmly opposed the rebellious colonists.) Meanwhile the Commentaries’ influence continued to spread still further afield, with additional French and German versions, together with translations into Italian,

16  J Reeves, Thoughts on the English Government … Letter the Fourth (London, 1800) 5–6, ­passim; Letters from William Cobbett to Edward Thornton Written in the Years 1797 to 1800, ed GDH Cole (Oxford, 1937) 118. cf The Collected Works of Samuel Taylor Coleridge: Marginalia IV, ed HJ Jackson and G Whalley (Princeton NJ, 1999) 12. 17  See further Schofield’s Ch 2 above, 25–26. 18  J Austin, Lectures on Jurisprudence or the Philosophy of Positive Law, ed R Campbell (London, 1869) vol 1, 71. 19 J Dickinson, An Essay on the Constitutional Power of Great Britain over the Colonies (Philadelphia PA, 1774) 388–90; J S Waterman, ‘Thomas Jefferson and Blackstone’s Commentaries’ (1932–33) 27 Illinois Law Review 629–59; MD Hall, The Political and Legal Philosophy of James Wilson, 1742–1798 (Columbus MO, 1997) 47, 91, 196; CE Klafter, ‘The Americanization of the Commentaries’, in EA Cawthon and DE Narrett (ed) Essays on English Law and the American Experience (College ­Station TX, 1994) 52–62.

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Polish and Russian, plus ever-wider circulation of English-language texts and abridgments, not least to the colonies of the second British empire, where Blackstone provided ‘a rich and flexible source of rhetorical and discursive inspiration to individuals and communities trying to make sense of their cultural identity in distant lands’.20 Some impression of both Blackstone’s now global reach, and his unique standing in North America, is given by the pamphlet entitled A General View of the Principles of Law, Consisting Chiefly in Extracts from the Commentaries of Sir William Blackstone, published in 1837 from Manepy near Jaffna in northern Sri Lanka by the American Mission Press. A few years earlier the constitution of Liberia, founded as a haven for freed and free-born Afro-Americans, had adopted for the new nation the common law ‘as set forth in Blackstone’s Commentaries’.21

II. 1840s–1930s During the half-century after Blackstone’s death, most new editions of the Commentaries appeared in England or Ireland. Thereafter American imprints predominate. The standard modern bibliography records only five editions of the Commentaries published in England and none in Ireland during the second half of the nineteenth century, as compared to no fewer than 88 North American editions. While many of these latter seem to have been little more than reprints of existing texts, incorporating few if any editorial revisions, their number also included four wholly new editions, each produced by a legal scholar of distinction: Thomas M Cooley (University of Michigan), William G Hammond (Washington University, St Louis), William Draper Lewis and George Sharswood (both of the University of Pennsylvania). Moreover, four of the listed English imprints were mere reissues of Robert Malcolm Kerr’s 1857 edition, in which portions of Blackstone’s text judged obsolete were converted into notes—and one of these is probably a ghost.22 The evident lack of demand for new editions of Blackstone in mid- to late ­ Victorian Britain partly reflects the success of Stephen’s Commentaries, ‘thoroughly revised and modernised and brought down to the present time’, which had reached a thirteenth edition by 1899. ‘Stephen’s Blackstone’ appears to have largely superseded the original in most subjects examined by the Council of Legal Education and those for the University of London’s LLB during the 1850s and ‘60s;

20 AJ Laeuchli, A Bibliographical Catalog of William Blackstone (New Haven CT, 2015) 312–20; T Ostrowski, Prawo Kryminalne Angielskie (Warsaw, 1786); S N Desnitskii and A M Briantsev, Istolkovaniia Angliiskikh Zahonov, 3 vols (Moscow, 1780–82). J McLaren, ‘The Uses of the Rule of Law in British Colonial Societies in the Nineteenth Century’, in S Dorsett and I Ward (ed) Law and Politics in British Colonial Thought: Transpositions of Empire (New York, 2010) 74. For Blackstone in India, see CA Bayley, Recovering Liberties: Indian Thought in the Age of Liberalism and Empire (Cambridge, 2011) 51–52, 75. 21 Laeuchli, Bibliographical Catalog, 77; B McPherson, The Reception of English Law Abroad ­(Brisbane, 2007) 316–17, 346. 22 Laeuchli, Bibliographical Catalog 66–72, 164–245.

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likewise the same work seems to have been increasingly prominent at Oxford, although students in that university’s new School of Jurisprudence and Modern History may also have used a brief compilation produced by an Oxford printer, covering Book II of the Commentaries.23 Another reason was precisely the proliferation of such abridgments and summaries, most notably Kerr’s Student’s Blackstone … Abridged and Adapted to the Present State of the Law, which went through thirteen editions during the second half of the nineteenth century. Largely geared to the needs of solicitors’ articled clerks cramming for the Law Society’s examinations, most of these works took considerable liberties with Blackstone’s text by way of addition, annotation and deletion. The uninspiring end-product helps explain an imagined response from a ‘young lawyer just articled’ to the prospect of a lecture on Blackstone’s Commentaries: ‘a pretty subject this … tough as the leg of a gander, dry as a malt kiln and hard as granite’.24 While most English lawyers now knew Blackstone only at second-hand, they also had it on the authority of Bentham, Austin and John Stuart Mill that they might just as well ignore his ‘charming representations’ of what was in reality ‘a mischievous mess’.25 Salutary neglect of Blackstone was widely endorsed; an eminent French man of letters claimed in 1853 to have found him then, as twenty years before, ‘an inferior writer, without liberality of mind or depth of judgment’, only a laughable ‘mania for admiring all that was done in ancient times, and for attributing to them all that is good in his own’.26 Some twenty years later an Oxford law don, perhaps influenced by the continental school of historical jurisprudence, regretfully observed that it had become fashionable ‘to dwell on the defects rather than the merits of [Blackstone’s] great work’.27 That same year the ninth edition of the Encyclopaedia Britannica included an entry by a former professor of law at ­University College London who summarised the conventional BenthamiteAustinian wisdom, noting that Blackstone possessed ‘only the vaguest possible grasp of the elementary conceptions of law’ and ‘is always to be found a specious defender of the existing order of things’.28 In 1885 a Dictionary of National ­Biography article discerned the ‘beginning of a more just appreciation’. But its author still held that ‘[m]ost of the specific charges against Blackstone were well founded’, for he was indeed confused, ‘conservative almost to rigidity’, unoriginal

23 Laeuchli, Bibliographical Catalog 364–78, 107–09; Institute for Advanced Legal Studies, ­University of ­London: A/CLE 6/1, 2 ‘Council of Legal Education’; University of London Archives, University of ­London Calendar: 1844 41–42; 1845 109; 1850 154–55; 1860 92; 1864 94; 1866 96; 1870 110; Trinity ­College, Cambridge, Add MS c. 93.105 (1), Kenelm Digby to Adam Sedgwick, 5 January 1868. 24  [W Dawbarn], Blackstone and his Commentaries (London and Liverpool, 1871) 1. 25  JS Mill, ‘Bentham’ (1838, reprinted 1867), in John Stuart Mill and Jeremy Bentham: Utilitarianism and Other Essays, ed A Ryan (Harmondsworth, 1987) 161. 26  Memoirs, Letters, and Remains of Alexis de Tocqueville (Cambridge, 1861) vol 2, 223 (I am grateful to Keith Thomas for this reference). 27  K Digby, An Introduction to the History of the Law of Real Property (Oxford, 1875) v. See also JF Stephen, History of the Criminal Law of England (London, 1883) vol 2, 214–15. 28  [E Robertson], ‘Sir William Blackstone (1723–1780)’, in Encyclopaedia Britannica, 9th edition (Edinburgh, 1875) vol 3, 800–02 (reprinted in 10th and 11th edns).

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and not e­ specially learned.29 When a later occupant of the Vinerian chair used his 1909 inaugural lecture to reassess the merits of Blackstone’s book, he focused on its literary rather than legal qualities, famously asserting that ‘The Commentaries live by their style’, even though their author was neither a ‘profound h ­ istorian’ nor ‘original thinker’.30 At about the same time FW Maitland pronounced Blackstone’s greatest achievement to be less the provision of a guide for students and ‘a useful aid to practitioners’ than his setting ‘before the unprofessional public an artistic picture of the laws of England such as had never been drawn of any similar system’.31 The continued popularity of The Comic Blackstone can hardly have helped persuade lawyers and legal scholars in Victorian and Edwardian Britain that Blackstone’s Commentaries was anything other than a slightly embarrassing irrelevance—more layman’s constitutional arbiter and elementary handbook than professional treatise. Launched as a serial publication in the humorous magazine Punch, the first of some thirty editions of this gentle parody appeared in 1844 as a two-volume book, with apposite line illustrations by George Cruikshank. Several Philadelphia impressions quickly followed its London debut, with continued reissues on both sides of the Atlantic until a new ‘revised and extended’ edition was published by the original author’s lawyer son in 1886. This reiteration had less success, with no further issues after 1899, although there have been recent facsimile impressions of both versions.32 Yet the proliferation across the common law world of a light-hearted play on the Commentaries is further testimony to that work’s classical status during the century and more after its first appearance. The reputation of the Commentaries stood higher for longer in the US than elsewhere, partly because (in accordance with Blackstone’s own urgings) legal education there had followed an academic rather than apprenticeship model earlier and further than in other common-law jurisdictions. The Commentaries also provided an adaptable yet authoritative, comprehensive yet convenient outline of the young republic’s legal doctrines and institutions, a foundation text which even frontier lawyers could readily carry in their saddlebags: ‘Excising only what seemed to savour of oligarchy, those who had defied King George retained with marvellous tenacity the law of their forefathers.’33 This is not to say that Blackstone’s work was accepted entirely uncritically in nineteenth-century America. Thus Francis Wharton and James Coolidge Carter questioned his concept of the common

29  GP Macdonell, ‘Blackstone, Sir William (1723–1780)’, Dictionary of National Biography Archive, at www.oxforddnb.com/view/article/2536, accessed 8 Jan 2017. 30 AV Dicey, ‘Blackstone’s Commentaries’ (1932) 4.3 Cambridge Law Journal 294, 297; see also Lieberman’s Ch 9 above, 170. 31  Selected Historical Essays of FW Maitland, ed HM Cam (Cambridge, 1957) 116–17. 32 Laeuchli, Bibliographical Catalog 321–38. 33  LM Friedman, A History of American Law (New York NY, 1975) 16–17, 88–89, 145, 279–80, 541; A Fidler, ‘The Life and Labours of Antebellum Law Students’, in W W Pue and D Sugarman (ed), Lawyers and Vampires: Cultural Histories of Legal Professions (Oxford, 2003) 86–94; Essays of Maitland, ed Cam, 117.

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law as ‘immemorial custom’, while James Bradley Thayer maintained that Blackstone’s account of trial by witnesses (without the intervention of a jury), ‘shows little knowledge of its history’, and Roscoe Pound later blamed Blackstone’s influence for contributing to the excessive individualism of American legal culture.34 Yet even his American critics recognised Blackstone’s extraordinary standing, however much they might deplore it: a correspondent writing to Oliver Wendell Holmes in 1871 claimed that almost all lawyers ‘would simply gaze at you in stupid amazement if you showed [Blackstone] was not perfection’.35 While the spread of the case method from Dean Langdell’s Harvard Law School in the later nineteenth century eventually displaced Blackstone from law school classrooms, and even at length from bar admissions examinations, the iconic power of his name and reputation proved remarkably durable. A striking physical manifestation of both is Paul Bartlett’s life-and-a-half-size bronze statue of the Commentator bearing his Commentaries, originally commissioned for presentation to the English judiciary and legal profession by the American Bar Association during its 1924 meeting in London, but after various vicissitudes now standing outside the US Federal ­Courthouse in Washington, DC.36

III.  1930s Onwards Despite occasional earlier intimations of a more positive attitude to Blackstone in some scholarly circles, it was not until the 1930s that his reputation in England began to take a decided turn for the better. In this gradual shift of opinion, the groundwork was laid by the revisionist contributions of WS Holdsworth, one of Blackstone’s most distinguished successors in Oxford’s Vinerian chair. Holdsworth not only maintained that Bentham’s assertion of his former teacher’s ‘indiscriminate optimism and conservatism’ was ‘less true than commonly supposed’, but outlined in some detail the criticisms Blackstone himself had levelled at various juristic doctrines and institutions, while underlining his commitment to major ‘improvement’ (or reform) of legal education and penal practice, among other things.37 34  D Rabban, Law’s History: American Legal Thought and the Transatlantic Turn to History (New York NY, 2013) 271, 327, 345, 441–42, 456; see also ch 10, 173, 183–89, and ch 11, passim. 35  ibid, 222–23. cf WB Reed, Among My Books (New York NY, 1871) 123: ‘Why is it that so oldfashioned a book as the Commentaries should last so long, and be, for the uses of today, so beautifully fresh? … Nothing has superseded it. Nothing, we have a right to assume, ever will.’ 36  WP LaPinia, Logic and Experience: the Origins of Modern American Legal Education (New York NY, 1994); JS Hill, ‘The Blackstone Bugbear’ (1892–33) 6 Columbia Law Times 40–44; W Prest, ‘Iconography: Images: Statues and Stained Glass’, in W Prest (ed), Blackstone and his Commentaries (Oxford, 2009) 240. 37  WS Holdsworth, ‘Some Aspects of Blackstone and His Commentaries’ (1932) 4 Cambridge Law Journal 273–74; see also idem, ‘Sir William Blackstone’ (1927–28) 7 Oregon Law Review 155–63; idem, ‘Blackstone’s treatment of Equity’ (1929) 43 Harvard Law Review 1–32; idem, ‘Gibbon, Blackstone, and Bentham’ (1936) 205 LQR 46–59; idem, A History of English Law, 16 vols (London,1922–66) vol 12, 702–37. cf CHS Fifoot, Lord Mansfield (Oxford, 1936) 12: ‘By the standards of his day Blackstone offered a considerable amount of useful criticism’.

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Later embodied in volume XII (1938) of Holdsworth’s standard History of ­English Law, this substantial re-evaluation of Blackstone’s achievement and values remained influential over at least the next half-century. More immediately it may well have stimulated further North American interest in the man and his work, including the near-simultaneous publication of two biographies, together with a systematic bibliography based on the Yale Law Library’s extensive collection of works by and about Blackstone, and Daniel Boorstin’s postgraduate Yale dissertation on the Commentaries, which in its published form became something of a modern classic.38 Blackstone continued to attract increased interest, particularly but not exclusively from legal historians, during the remainder of the twentieth century and beyond.39 But his reputation appears to have followed slightly different trajectories on either side of the Atlantic. Within his native land there was less immediate indication of changing attitudes or growing attention, although immediately after World War II the Polish-born Leon Radzinowicz noted that Blackstone’s critical attitude to the criminal law of his time ‘is not always fully appreciated’.40 In the following decade two fellows of Blackstone’s own Oxford college, Warden Sparrow and Vinerian Professor Harold Hanbury, made some effort to celebrate his ­memory.41 But other than a prize-winning documentary collection and essay on Blackstone’s successful remodelling of Oxford’s university press, and a p ­ athbreaking analysis of his jurisprudence written in Oxford by a young Australian legal scholar, little further development of Blackstone scholarship occurred until the 1970s.42 That decade saw the appearance of an anthology selected from the Commentaries with a lively introduction by a Cambridge law don, another Vinerian professor’s defence of Blackstone from Bentham’s criticisms, and most significantly, extensive research on Blackstone’s hitherto largely unexamined Oxford career by a leading historian

38  LC Warden, The Life of Blackstone (Charlottesville VA, 1938); DA Lockmiller, Sir Willian ­Blackstone (Chapel Hill NC, 1938); The William Blackstone Collection in the Yale Law Library: A Bibliographical Catalogue, comp. CS Eller (New Haven CT, 1938); D J Boorstin, The Mysterious Science of the Law (Cambridge MA, 1941, and subsequent editions). 39  Blackstone’s treatment of marital relations in Book I, Ch 15 ‘Of Husband and Wife’ has particularly interested feminists and historians of the family: cf MR Beard, Woman as Force in History: A Study in Traditions and Realities (New York NY, 1946) Chs 4–5; ME Doggett, Marriage, Wife-Beating and the Law in Victorian England (Columbia SC,1993) 34–42, 64–8; H Hartog, Man and Wife in American ­History (Cambridge MA, 2000); T Stretton, ‘Coverture and Unity of Persons in Blackstone’s Commentaries’, in Prest Blackstone and his Commentaries 111–27; Stretton and Kesselring, Married Women and the Law. 40  L Radzinowicz, A History of English Criminal and its Administration from 1750: Volume I: The Movement for Reform (New York NY, 1948) 343. 41  Codrington Library, Oxford, Sparrow MSS, correspondence between J Sparrow and AP Thornton, 1958–59; AL Rowse, All Souls in My Time (London, 1993) 187–88; J Lowe, The Warden (London, 1998) 188–89; H Hanbury, ‘Blackstone in Retrospect’ (1950) 66 LQR 318–47. 42  IG Philip, William Blackstone and the Reform of the Oxford University Press in the Eighteenth ­Century (Oxford 1957); JM Finnis, ‘Blackstone’s Theoretical Intentions’ (1967) 12 Natural Law Forum 163–83. See also JH Baker, ‘A Sixth Copy of Blackstone’s Lectures’ (1968) 84 LQR 465–67.

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of Hanoverian England.43 Dame Lucy Sutherland had published relatively little of this work before her death in 1980, the bicentennial year of Blackstone’s own demise; however much of it appears in the posthumously-published Oxford university history volume which she edited. Ian Doolittle, her former postgraduate student, also pursued research which has yielded a series of notable contributions to our understanding of both author and book, because it was based for the first time (like her own work) on extensive archival investigation and a sensitivity to historical context.44 The 1980 anniversary celebrations generated in addition a characteristically penetrating reassessment of Blackstone’s intellectual achievement by SFC Milsom, who thereby effectively completed the rehabilitation begun by Holdsworth half a century before.45 It may not have escaped notice that in this roll-call of English participants in the mid-twentieth-century reappraisal of Blackstone, pillars of the establishment are somewhat more prominent than radical gadflies. Yet the latter were not wholly absent, thanks in large part to a long boom in research and publication from the late 1960s onwards on the social history of crime, which saw increased attention paid to the portrayal of eighteenth-century England’s legal institutions by this ‘high priest of the English legal system’.46 While old-style Marxists who regarded law as a mere dependent tool of the ruling class had no more time for Bentham than for Blackstone, a leading New Left social historian found himself unable to follow the fashionable 1970s post-structuralist tendency to reduce all discourse to ideology. Hence EP Thompson’s insistence that ‘Blackstone’s Commentaries represent an intellectual exercise far more rigorous than could have come from an apologist’s pen.47

43  G Jones (ed), The Sovereignty of the Law: Selections from Blackstone’s Commentaries on the Laws of England (Toronto, 1973); R Cross, ‘Blackstone v Bentham’ (1976) 91 LQR 516–27; LS Sutherland, ‘William Blackstone and the Legal Chairs at Oxford’, in R Wellek and A Ribiero (ed) Evidence in Literary Scholarship: Essays in Memory of James Marshall Osborn (Oxford, 1979) 229–40. In his Party Ideology and Popular Politics at the Accession of George III (Cambridge, 1976), John Brewer noted ‘Even that pillar of eighteenth-century conservative constitutionalism, Sir William Blackstone, supported a measure of reform, or at least regretted the anomalies in the existing system …’ (76). 44  LS Sutherland and LG Mitchell (ed), The History of the University of Oxford, Volume V: The Eighteenth Century (Oxford, 1986); IG Doolittle, ‘Sir William Blackstone and his Commentaries on the Laws of England (1765–69): A Biographical Approach’ (1983) 3 OJLS 99–112; idem, ‘William Blackstone and the Radcliffe Camera, 1753’ (1982) 11 Bodleian Library Record 47–50; idem, William Blackstone: A Biography (Haslemere, 2001). The Bodleian Library’s bicentennial exhibition catalogue ‘Blackstone and Oxford’ (Oxford, 1980) includes introductory notes by Doolittle and Sutherland, among others. 45  SFC Milsom, The Nature of Blackstone’s Achievement (London, 1981). No comparable contribution appears in American/Australian/New Zealand Law: Parallels and Contrasts: Papers presented in Sydney, Australia, from 11–16 August 1980 … to Commemorate the Bicentenary of the Death of William Blackstone (Chicago IL, 1980). 46  The characterisation comes from D Hay’s seminal essay, ‘Property, Authority and the Criminal Law’ in Hay et al, Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England (London, 1975) 23; Hay also noted (ibid, 59) Blackstone’s ‘relatively favorable attitude’ to reform of the criminal law. See also JM Beattie, Crime and the Courts in England 1660–1800 (Oxford,1986). 47  EP Thompson, Whigs and Hunters: The Origin of the Black Act (London, 1975) 263, 258–69 passim.

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Over the same period North American attitudes towards Blackstone were seemingly somewhat less ecumenical and more politically driven. The rise of legal realism and Progressivism in the late nineteenth and early twentieth century had been accompanied by a strong reaction against the dominant influence of Blackstone and his ‘obsolete law’.48 In the 1940s the New Dealer Jerome Frank expatiated at considerable length on the intellectual, logical, moral and political shortcomings of Blackstone’s ‘shoddy scissors-and-paste job’.49 A generation later Duncan ­Kennedy, doyen of the emergent Critical Legal Studies movement, published an even more extensive analysis of the Commentaries, which sought to expose ­Blackstone’s ‘strategy for legitimating the “artificial” institutions (feudal and capitalist) of the legal system of his time’, as ‘an attempt to mystify both dominators and dominated’.50 Yet by no means all left-of-centre or liberal American scholars shared such views. A 1979 facsimile of the first edition of the ­Commentaries ­published by the ­University of Chicago Press made Blackstone’s work in its original form widely accessible; the brief scholarly introductions to each of the four volumes present nothing like a common ideological front. Indeed there was and is no shortage of American Blackstone scholarship which has managed to advance understanding without grinding any obviously partisan axe.51 But in the fractured and increasingly polarised post-Vietnam decades, Blackstone and his ­Commentaries came to be adopted or endorsed by a diverse assemblage on the political right, including common-law traditionalists, constitutional originalists, evangelical and fundamentalist Protestants, natural law advocates, and Straussian neo-conservatives.52 The positions attributed to Blackstone from these quarters are too often based on ahistorical, partial, and largely decontextualised readings of the Commentaries. At the same time, given that Blackstone was a practising Christian, not ­uncomfortable with an

48 

R Pound, The Spirit of the Common Law (Boston MA, 1921) 150. J Frank, ‘A Sketch of An Influence’, in P Sayre (ed) Interpretations of Modern Legal Philosophies: Essays in Honor of Roscoe Pound (New York NY, 1947) 189–261, at 228. See also AH Croust, ‘Blackstone Revisited’ (1948–49) 17 University of Kansas City Law Review 24–34. 50  D Kennedy, ‘The Structure of Blackstone’s Commentaries’, 28 Buffalo Law Review (1978–79), 205–379 at 210, 381; but see also idem, ‘Why is Anglo-American Jurisprudence Unhistorical?’ (1997) 17 OJLS 551–86. 51  W Blackstone, Commentaries on the Laws of England. A Facsimile of the First Edition of 1765– 1769, ed S Katz, AWB Simpson, J Langbein and T Green, 4 vols (Chicago, 1979). cf P Lucas, ‘Essays in the Margin of Blackstone’s Commentaries’, PhD thesis, Princeton University, 1962; idem, ‘Blackstone and the Reform of the Legal Profession’ (1962) 77 English Historical Review 456–89; DR Nolan, ‘Sir ­William Blackstone and the New American Republic: A Study of Intellectual Impact’ (1976) 51 New York ­University Law Review 731–68; D Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (Cambridge, 1989); R Willman, ‘Blackstone and the “Theoretical Perfection” of English Law in the Reign of Charles II’, 26 Historical Journal (1983) 39–70; A Watson, ‘The Structure of Blackstone’s Commentaries’, (1998) 97 Yale Law Journal 795–821; T. Michals, ‘“That Sole and Despotic Dominion”: Slaves, Wives and Game in Blackstone’s Commentaries’, (1993) 27 ­Eighteenth-Century Studies 195–216; AW Alschuler, ‘Rediscovering Blackstone’ (1996) 145 University of Pennsylvania Law Review 1–55. 52  RJ Stacey, Sir William Blackstone and the Common Law: Blackstone’s Legacy to America (Eugene ON, 2003); RS Moore, Our Legal Heritage (Montgomery AL, 2001); www.blackstoneandburke.com (accessed 28 January 2017); accessed 28 January 2017. 49 

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inegalitarian, hierarchically-ordered society, and favouring gradual ‘improvement’ over radical or revolutionary change, it is scarcely surprising that scholars of a broadly conservative bent have made important contributions to our understanding of the man and his work.53 Interest in Blackstone’s thought and writings has continued to grow since the beginning of the present century, and not only in common law jurisdictions. There are now two recent biographies in print, a notably more comprehensive bibliography, an edited volume of correspondence and a variorum edition of the Commentaries. The young Blackstone’s architectural manuscripts have been the subject of a doctoral dissertation, and occasional symposia have generated several multi-author collections of essays, including this one. There are also numerous free-standing articles, chapters and other occasional pieces, as well as a travelling exhibition which marked the 250th anniversary of the Commentaries’ first appearance in print.54

53  cf HJ Storing, ‘Blackstone’, in L Strauss and J Cropsey (ed) History of Political Philosophy ­(Chicago IL, 1969) 536–48; RA Posner, ‘Blackstone and Bentham’ (1976) 19 Journal of Law and Economics 569–606; TG Barnes, ‘Notes from the Editors: Introduction’ to W Blackstone, Commentaries on the Laws of England: Legal Classics Library, ed TG Barnes (Birmingham AL and Delran NJ, 1983–1994); G Himmelfarb, ‘Bentham Versus Blackstone’, in idem, Marriage and Morals Among the Victorians (New York NY, 1986) 94–110; PO Correse, The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial Activism (Chicago IL, 2003). 54  Doolittle, cited n 44 above; Prest, cited n 11 above; Laeuchli, Bibliographical Catalog; W Prest (ed), The Letters of Sir William Blackstone, 1744–1780 (London, 2006); W Blackstone, Commentaries on the Laws of England, ed W Prest, D Lemmings, S Stern, T Galanis and R Paley (Oxford, 2016); C Matthews, ‘Architecture and Polite Culture in Eighteenth-Century England; Blackstone’s Architectural Manuscripts’, University of Adelaide PhD thesis, 2007; M Widener and W Prest, 250 Years of Blackstone’s Commentaries: An Exhibition (Buffalo NY, 2015). Lack of space precludes a comprehensive listing, but see D Armitage, ‘Parliament and international law in the eighteenth century’ in J Hoppit (ed) Parliaments, nations and identities in Britain and Ireland, 1660–1850 (Manchester, 2003) 169–86; E Kadens, ‘Justice Blackstone’s Common Law Orthodoxy’ (2009) 103 Northwestern University Law Review 1533–1605; D Lieberman, ‘Mapping the Criminal Law: Blackstone and the Categories of English Jurisprudence’, in N Landau (ed), Law, Crime and English Society 1660–1830 (Cambridge, 2002) 139–61; M Lobban, A History of the Philosophy of Law in the Common Law World, 1600–1900 (Dordrecht, 2007) Ch 4; HL Lubert, ‘Sovereignty and Liberty in William Blackstone’s Commentaries on the Laws of England’ (2010) 72 Review of Politics 271–97; M Mauger, ‘“Observe how parts with parts unite/ In one harmonious rule of right”: William Blackstone’s verses on the Laws of England’ (2012) 6 Law and Humanities 179–96; P Neill, ‘Blackstone, Oxford, and the Law’ in SJD Green and P Horden (ed), All Souls under the Ancien Régime: Politics, Learning and the Arts, c 1600–1850 (Oxford, 2007) 268–98; KM Parker, ‘Historicizing Blackstone’s Commentaries on the Laws of England: Difference and Sameness in Historical Time’, in A Fernandez and MD D ­ ubber (ed), Law Books in Action: Essays on the Anglo–American Legal ­Treatise (Oxford, 2012) 22–42; DB Schorr, ‘How Blackstone became a Blackstonian’ (2009) 10 Theoretical Inquiries in Law 103–26; S Skinner, ‘Blackstone’s Support for the Militia’ (2000) 44 American Journal of Legal History 2–18; A Taussig, ‘Blackstone and His Contemporaries’, Tarlton Law Library Legal History Series, Number 10 (Austin TX, 2009); W. Prest, ‘What Sort of Lawyer was Blackstone?’, in M White and A Rahemtula (ed), Supreme Court History Program Yearbook 2009 (Brisbane, 2010) 56–61; W Prest, ‘Blackstone’s Commentaries: Modernisation and the British Diaspora’, in P Payton (ed), Emigrants and Historians: Essays in Honour of Eric Richards (Adelaide, 2016) 77–97; W Bird, ‘Liberties of Press and Speech: “Evidence Does not Exist to Contradict the … Blackstonian Sense” in Late Eighteenth-Century ­England’, (2016) 36 OJLS 1–25.

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IV. Conclusion Just two years before the bicentenary of Blackstone’s death in 1980, it seemed to one informed observer that neither author nor book had fully recovered from the attacks of Bentham and Austin: hence ‘Blackstone’s Commentaries have languished low in reputation, and recent attempts to redress the balance may well have come too late’.55 Twenty years later the Commentaries could still be characterised in a respected law journal as ‘a work that almost no one reads today and that is widely believed to rest on a silly, ponderous, formal, conceptual, outdated, deductive, mechanistic, naive and hopelessly unrealistic jurisprudence’.56 Yet notwithstanding these pessimistic assessments—and statements in some contemporary works of reference which might seem to lend them support—Blackstone’s standing has undoubtedly undergone considerable rehabilitation since the interwar years, while the Commentaries continue to be cited as a benchmark legal authority, especially in appellate jurisdictions, not least the Supreme Court of the US.57 To what extent their joint reputation will survive the current embrace of some elements from the radical right remains to be seen, although the message of the Commentaries is not easily reduced to any single ideological principle or tendency. For despite emphasising the liberties and rights of individual human beings, Blackstone also stressed the absolute sovereign power of parliamentary government. The passage of time has plainly vindicated those early critics, readers, and reviewers who predicted a very long life for the Commentaries as a general constitutional-legal arbiter and source of reference. While writing this chapter I came across an exchange in the current correspondence columns of Australia’s oldest daily newspaper, over the merits of an inquisitorial system of criminal justice, effectively settled by an appeal to ‘the English jurist Sir William Blackstone, who said it was better that 10 guilty people escape than that one innocent suffer’.58 Nor is that jurist’s influence necessarily confined to the Anglosphere. While two translations from the first book of the Commentaries were published in Japan during the 1870s, the first rendering of Blackstone in modern simplified Chinese, under the auspices of the East China University of Political Science and Law School was only issued by the Shanghai People’s Publishing House as recently as 2006.59 55 AJ Ashworth, ‘The Making of English Criminal Law: (4) Blackstone, Foster and East’ (1978) The Criminal Law Review 390. 56  Alschuler, ‘Rediscovering Blackstone’ (cited note 51 above) 1. 57  cf G Newman, Britain in the Hanoverian Age (New York NY, 1997) 59–60; GRR Treasure, Who’s Who in British History: Beginnings to 1901 (London, 1998), 112–13. For Supreme Court citation rates, see J Allen, ‘Reading Blackstone in the Twenty-First Century, and the Twenty-First Century through Blackstone’, in W Prest (ed), Re-interpreting Blackstone’s Commentaries: A Seminal Text in National and International Contexts (Oxford, 2014) 215–20. 58  Sydney Morning Herald, 14–15 and 16 January 2017, letters from E Whitton and S Hoyle; cf The Australian, 13 May 2016, 32: A Creighton, ‘Storm in a Teacup over Super Changes’ (citing Blackstone on retrospectivity). 59  Prest, ‘Blackstone’s Commentaries: Modernisation and the British Diaspora’, 93–97.

ACKNOWLEDGEMENTS

This collection of essays had its origins in the 34th annual conference of the ­Australian and New Zealand Law and History Society at the University of Adelaide in December 2015, the 250th anniversary year of the first publication of Book I of the Commentaries on the Laws of England. The conference featured a distinct stream of papers dedicated to the theme ‘Blackstone and his Critics’. Wilfrid Prest wishes to thank all those involved in organising this event, not least his colleagues David Lemmings, Amanda Nettelbeck, Matthew Stubbs and Adam Webster, but most especially Rhiannon Kinsey from the Adelaide Law School office, who ­handled an excessive administrative load with characteristic grace and efficiency. Transforming a collection of conference papers into a published volume is no small undertaking. While the two co-editors are reciprocally grateful to each other for their respective efforts, we also owe a great debt of gratitude to the contributors, both those whose papers delivered in Adelaide now form the core of this book, and those who were persuaded to join the venture further down the track. Much very helpful advice and guidance was provided by those scholars who must remain nameless because they undertook the task of peer reviewing drafts submitted by contributors. We would also like to thank the staff of our respective university libraries, and of Hart Publishing, for various kindnesses. The forbearance and support of our own families has also been greatly appreciated; and we thank Anthony’s daughters, Katherine and Maryanne, for their discerning advice on the cover design.

INDEX

abridgments  3, 5–6, 8, 21, 28, 36, 210, 213–14 academic subscription, see subscription Act of Union (1707)  xiv, 80, 84, 93 Act of Union (1801)  xix advocacy xix, 120, 129, 156–57 affection  26, 124, 128 agreements  20–21, 137, 185, 205 alienation  7–8, 10, 203 All Souls College  x–xi, xvii allegiance  104 oath of  101, 103 America, North  xx, 163, 212, 213, 217, 219 American editions  xii, 119, 177, 179, 183, 210, 213 American Revolution  91, 104, 178, 183, 206 American Tobacco Trust  196 Anabaptists  85, 104 analytic jurisprudence  161, 173–74, 182 Anglo-American law  148, 175, 187 Anglo-Saxon England  15, 17, 89, 136, 140, 176, 184–85, 187 Anson, William  171 antiquity xiii, 59, 119, 126 apprenticeship  155, 165, 167, 215 Arians  63, 69, 87 Arminians  62, 69 assumpsit  10 Astræa  29, 31–33, 35 attorneys  134, 139–40, 148, 151, 155 audience xii, 6, 29, 102, 155–56, 161, 167, 171–72 Austin, John  161–66, 168–69, 171, 178, 181–82, 212, 214, 221 authority  55, 57, 95–96, 102, 108–9, 113–15, 140, 183–84 uncontrolled  24, 106 Bacon, Matthew, Abridgment  5–6, 8, 21 Bagehot, Walter  171 Bailey, Abigail  148 Ballow (Bellewe), Henry  21 bailments  11, 22 barristers  4, 112–14, 149, 165, 167, 200 bastardy examination  136 Beard, Charles A  196 Beard, Mary  146, 148 bench, judicial  ix, xvii, 98, 108, 168, 194, 197–98, 202–4

Bentham, Jeremy  xv–xvi, xviii, 1–2, 23–47, 49–51, 54–58, 169, 212 greatest happiness principle  25, 29, 32–34 Constitutional Code  40 Fragment on Government  xvi, xviii, 2, 23–28, 30, 34, 37–38, 163 Preparatory Principles  25–26, 34 Bible  66–67, 83, 87, 92–93, 206 bigotry, religious  85, 104, 200 bills of exchange  11 Blackburne, Francis,  62–63, 65–68, 70, 71, 87, 96 blood, corruption of  129–30 blood relationships  48, 118–19, 122, 125, 128–29, 203 Boas, Franz  44 Bodichon, Barbara  151 book of common prayer  78, 84, 94 booksellers xiii, 5, 135 Bracton  15, 25, 126 British constitution  13, 91, 105, 114–15, 212 brothers  62, 106–7, 118, 125–26, 128 half  117–18, 122–23, 126; see also half-blood rule Burgh, James  xv, 89 Burke, Edmund  xix, 1, 170, 172 Burlamaqui, Jean-Jacques  12 Burn, John  143 Burn, Richard  133, 142–43 Caledonian Bee  133, 145 Calvin/Calvinism  63–66, 71–72, 87 canon law  121 Carter, James Coolidge  201–2, 215 Cartwright, John  89, 91 cases Cave v Holford (1799)  127 Goodtitle v Newman (1774)  127 Hatchett v Baddeley (1776)  149 Hiveley v Ivy Tech Community College of Indiana (2017)  53–56 Perrin v Blake (1770)  199 Shelley’s Case (1597)  198–99 Sheriff ’s Case (1767)  82–83, 95 Whitten v Fuller (1765)  149 see also North Carolina case law  141, 143, 187, 193 casuistry  66, 157, 160

224  Catholic Committee, Ireland  101–2, 105 Catholic Relief Acts (1778)  103–5 Catholics, Catholicism  xix, 61, 79, 83, 85, 95, 97, 100–6, 115 chambers xx, 1, 159, 161, 167, 179 Chancellor, Lord  34 Chancery 34 see also equity Charles I  65–67, 71, 88 Charles II  144, 198 Charter of the Forest  xii children  118, 121, 123–24, 127, 130, 134, 136, 144 bastard  143 Christianity  70, 73, 78, 80, 83, 87, 184–85 Church of England  xiv, xviii–xix, 40, 62, 68–70,78–80, 84–85, 92, 94–96, 101 Convocation x, 67–68, 72 Churton, Ralph  68, 73 citizens  20, 127, 157, 198 citizenship  100, 104, 106 civil law  11, 121, 129, 144, 155, 162, 176–77 civil liberty  79, 136 civil society  12, 78, 104, 136–37, 145 Clark, Walter  xxi, 194–207 on the bench  202–5 as critic of the common law  196–202 clergy xiii, 65, 69, 72, 80, 84, 96, 156 monkish  159, 200 Cobbett, William  212 codification  25, 162, 169, 202 Coke, Sir Edward  8, 13, 113–14, 138, 140–41, 197, 201, 205–6 Coke upon Littleton  8, 138, 140 collaterals  118, 123, 127 Collini, Stefan  209 collusive lawsuits  48 command theory  183 commercial property  2, 11 Common Pleas  95, 149–50 complacency  28, 30, 60, 107, 194, 207 consanguinity  121, 123 conscience  78, 82, 92–93, 104, 147 conservatism xxi, 68, 75, 196–97, 207, 211, 214, 216 constitution ancient  106, 136 British  13, 40, 85, 89, 91, 96, 100, 105–10, 112–15, 120, 205, 212–13 English  ix, xiii, xviii, 2, 12, 16, 18, 159, 210 French  13 Irish  97, 100, 103, 105, 112–14 Liberian  213 North Carolinian  199 Saxon  16, 89 United States  50, 145, 175, 183, 203 constitutional rights  103, 112 contracts  3, 10–11, 13, 19–22, 24, 137, 139, 143–44, 183

Index implied  20–21 social  20, 24, 164, 182, 187 conveyances  3, 8, 10, 156, 165 Cooke, Edward  112 Cooley, Thomas McIntyre  174, 213 copyhold  7–8, 15–16, 18, 138 corruption xviii, 30, 107 of blood  129–30 institutional xvi political  14 couples  151 same-sex  53, 56 court rolls  15–16 courts xx–xxi, 53–56, 95, 127, 147, 157, 159–61, 167, 205–6 equity  126, 142, 147 of Westminster Hall  29, 159–60 see also Chancery, Common Pleas, King’s Bench Covenanters  85, 104 coverture xx, 133–35, 137–41 Atlantic World  145–48 in everyday life  151–89 and magistrates  141–45 Craig, Thomas  121 Cranmer, Thomas  64–65 criminal law  77, 81, 95, 199, 217 Crown  18, 35, 107, 117, 119, 121, 130–31 Curry, John  102–3 customary law/rules  13, 121, 128, 158 customs  14, 46, 49, 184–86, 199, 200 Dawes, Manasseh  xvi daughters  15, 29, 117, 127–28, 144, 201, 203, 210 debt  10–11, 142, 147, 149, 175, 199 Declaratory Act (1719)  99–100, 103, 111 democracy  26, 39–40 descents  16, 18–19, 48, 119–22, 124, 126, 131, 156 law of  xii, 7, 15, 98, 118, 120–22, 129 Dicey, Albert Venn  49, 154, 160, 166–72 discovery, judicial  42–43, 53, 55, 57 discrimination  53–54, 199 employment  53, 56 sex  53–54, 56 dissent  56, 70, 81; see also Rational Dissent Dissenters  xiv, xix, 67–69, 77–90, 92, 93, 96, 100–101; see also Rational Dissent distress  22, 38–39 Distributions, Statute of (1670)  128 Doolittle, Ian  xviii, 59, 218 dower  4, 7, 203 Dublin editions  xi, 98 editors of the Commentaries xiv, 27, 119–20, 138, 141, 153, 202

Index education  77, 135, 157 legal xx–xxi, 6, 154–56, 159–62, 164–68, 175, 213, 215–16 liberal  154, 157, 170 Edward I  119, 174, 191 Edward VI  63–64 elite  97–98, 102, 114–15, 143, 156, 159–60, 167 women  141, 149 Elizabeth I  65, 78, 93, 102, 123 empire  89, 92, 110, 115, 180, 212, 213 free  108, 110 German  24 Roman  15, 70, 180, 189 employers  144, 150 female  150 employment  22, 144 discrimination  53, 56 Encyclopedia Britannica  182, 205 Enlightenment  60–61, 69–71, 73, 86–87, 101, 104 Anglican xix, 85–88 English  60, 86 Oxford xviii, 59–75 equity,  121, 126–27, 134, 140, 142–43, 146, 165, 187 courts  31, 34, 126, 142, 147 escheat  7, 16, 117, 119, 131, 203 Essay on Collateral Consanguinity x, 120 estates  7, 9, 15–16, 117–18, 125, 156, 158, 189 freehold  7, 15 ethics  119, 157–58, 179, 183 Europe  165, 178, 188, 212, 214 everyday life  134–35, 138, 142, 148, 151 law of  134, 152 evidence xix–xx, 43, 62–63, 65, 71–74, 118, 121, 123 exclusionary rule, see half-blood rule families x, 61, 126, 128–29, 141, 143, 149, 184 family law  117–31 farmers  4, 133–34 fathers  15, 79, 118, 124–27, 179, 194, 210 Feathers Petition  67, 69–70, 92 fee simple  4, 7, 117, 120–21, 125 fee tail  4, 7 felonies  129–30 feme covert  138, 140, 142–43, 148–50 feme sole  142, 147, 149–50 feminism xx, 134, 140–41, 146 feudalism  9, 14–18, 48, 118, 121–22, 131, 159, 188–90, 197–98, 203 feudum antiquum  48, 121 fictions  14, 42, 47–48, 55, 119, 139, 204 fines  3, 7–8, 82, 203 Finn, Margot  147 Fitzherbert, Anthony  5 Fitzmaurice, Thomas  70–71 Fitzpatrick, Martin  96 Forbes, Duncan  75

 225

forfeiture  187, 189, 201 France  88, 97, 102–3, 168, 204 1789 Revolution  xix, 113, 211 Francis, Charles  107 fraud  21, 44–45, 187 free market  47 freedom  109, 128, 211 natural  158 personal  109 Furneaux, Philip  77, 81–85, 89, 91–95 Gardiner, Robert  3 George III  xii, 69, 86, 89–90, 215 Germany  85, 104, 158, 174–77, 180–81, 188–89 Gibbon, Edward  xv, xviii, 59–63, 65, 67, 69–75, 170, 172 gifts  19, 26, 59, 188 Gilbert, Jeffrey  6, 8, 10, 15–19, 21, 121–22, 124–25 girls  136–38, 145 Glasse, Hannah  133 God  63–64, 69–71, 77, 79, 81, 87, 90, 182 Gordon, Lord George  103, 104 government xvi–xvii, 23–24, 40, 89–91, 96–97, 105–6, 109–11, 183–84 free  107, 109 institutions of  13, 125 Irish  106, 112 popular  161, 197 Grattan, Henry  111, 115 Grotius, Hugo  19, 33, 157–58 Habeas Corpus Act (1670)  14 Hale, Matthew  5–6, 13, 20, 121–22, 164, 177, 211 half-blood rule  xix, 15, 117–31 long use  121, 124–31 and probability  118, 121–24 Hammond, William Gardiner  xx, 65, 173–91, 213 unpublished writings  190–91 Hanoverian dynasty  x, 86, 90, 218 Hartog, Hendrik  148 Harvard Law School  167, 201, 216 heirs  4, 117–18, 121–22, 125, 127 Henry II  99–100, 103 Henry VIII  204 heresy  23, 51, 83, 104 Heywood, Samuel  84 Hill, Richard  66 Hilliard, Edward  3 historians xxi, 86, 90, 119, 134–35, 137, 140, 145–48, 200, 211, 217 historical school of jurisprudence  xx, 161, 173–91 history  14, 48, 65, 69–72, 88, 136, 140, 173–76, 180–81, 183–84, 186–87 Blackstone’s treatment of  18–19, 120, 131, 135–36, 139, 140, 151, 159, 170, 189–90, 215

226 

Index

feudal  14, 16, 18 Irish  102, 110, 115 legal  13, 119, 170–71, 174–75, 186, 191 Holdsworth, William  119, 216–18 homosexuality  54–55 Hooker, Richard  74 Hooper, John  64–65 House of Commons  x, xvi, 89–90, 92, 98, 100, 109, 113 House of Lords  82–83, 92, 95 Hume, David  24, 74, 102, 166, 170 Hunt, George  58 husbands xx, 37, 134, 136, 138–39, 142–44, 148–49, 204 inheritance xix, 117–31, 164, 203 innovations  33, 48, 120, 129, 131, 141, 155, 160, 161, 173, 193 Inns of Court  6, 155, 157–61,161, 165 Inner Temple  xvi, 119 Lincoln’s Inn  107 Middle Temple  xiii, 140 interpretation, judicial  19, 42, 46, 49, 52, 95 intestate succession  117, 125, 127–28 Ireland  xii, xviii, xix, xxi, 97–115, 165, 213 Jacob, Giles  4, 21 James I  xv, 65–66 James II  99 Jebb, Frederick  111 Jebb, John  88 Jefferson, Thomas  197, 212 Johnson, Samuel  159, 170, 172, 211 John (king of England)  99, 201 Jones, John  xiv–xv judges, judiciary  xi, xvi, xviii, xx–xxi, 14, 20–22, 30–31, 34, 38–39, 41–49, 53–57, 126–27, 149–50, 193, 207, 208 ‘Judge & Co.’  30 judicial decisions, Blackstone’s  118, 149–51, 180, 186 juries  89, 136, 156, 187, 201, 216 jurisprudence  157–67, 173–91, 212, 214 Blackstone’s xv, 27, 37, 60, 158, 160, 163–64, 166, 170, 217, 221 universal  25, 28–30, 39, 163 jus feodale  14, 19 justice  50–51, 133, 136, 140, 145, 156, 172, 174 natural  121, 209 social  50 Justinian  12, 25, 177, 180–81 Kennedy, Duncan  219 Kent, James  168, 185 Kerr, Robert Malcolm  213 King’s Bench  95, 145, 149–50

Kippis, Andrew  62, 81 knight service  15, 17–18, 201 Kwakiutl people  44, 58 language xix, 1, 27–30, 82, 89, 93, 163, 170 Latimer, Hugh  64–65 law books  3–7 law finding  41–42, 54–55, 57 judicial performance of  47, 54–55 law reform  25, 26, 27, 55, 159, 161–62 law students  xx, 1–3, 8, 22, 140, 155, 156–57, 165, 167, 170, 184, 202 lawyers  1–2, 6, 8, 10, 148–50, 154, 156, 215–16 see also solicitors lectures xi–xii, 117–18, 133–34, 153, 155–57, 159–62, 168–69, 171, 176, 215 Lee, John  91 legal education  xx–xxi, 154–57, 159–68, 187, 193, 194, 198, 213, 215–16 university-based  154–55, 161, 163, 167 legal system  xvii–xviii, 10–11, 24, 32, 34, 50–51, 121, 218–19 legislation  30, 82, 99, 156, 181–82, 184–86, 207 legislators  1, 156, 162, 165, 182, 207 legislature  105, 107–10, 113, 183, 185, 193, 196, 205 Leland, Thomas  74, 103 Lemmings, David  50, 159 Levy, Leonard  94 Lewis, William Draper  213 liberties  13–14, 17, 89, 91, 107–9, 111, 209, 211 English  19, 86, 90, 159 religious xix, 77, 81–83, 88–89, 92–93, 95 Lilly, John  3 Lindsey, Theophilus  81 liturgy xiv–xv, 78, 80, 84, 93 Locke, John  xiv, 13, 74, 91, 100, 106, 108–9, 137 logic  33, 39, 121–23, 126, 131, 162 Long, George  119, 128 Loveday, John  61, 65, 68, 73 loyalty  61, 101–2, 104 Luttrell, Colonel Henry  90–91 McClain, Emlin  176 magistrates  1, 80, 83, 134, 136–37, 148, 165 and coverture  141–45 Magna Carta  xii, 89, 201 Maine, Henry  12, 119, 161–66, 169, 171, 174–77, 181, 189 Maitland, Frederic William  119, 130, 171, 174, 187–88, 191, 200 Malinowski, Bronislaw  45 Mansfield, Lord  10, 34, 82–83, 95, 150, 203 marriage xx, 15, 134, 138–39, 141–44, 147–48, 201, 203–4 settlements  10, 117, 128, 149, 151, 156 statute (1753)  142 married women  134, 137–38, 141–43, 146–50

Index Mary I  123 mathematics  123–24 Melanchthon, Philipp  64 metaphors  27, 43, 190 Mill, John Stuart  141, 146–47, 214 Molyneux, William  100, 103, 108, 110 monarch, monarchy  x, 17, 26, 33, 35–36, 86, 90, 107, 109, 113, 171, 183–84, 212 see also Crown Montesquieu, Charles de  13–14, 106, 114, 211 Monthly Review xvi Mordecai, Samuel F  205–6 mothers  125–27 myths of the law  196, 201, 205 natural justice  121, 209 natural law  xiv, xvii, 12–14, 19, 24, 158, 173–74, 182 natural rights  xvii, 13, 50–51, 54, 78, 106, 108–11, 115 nature, law(s) of  126, 158, 181–82, 190 necessity  9, 36, 100, 122, 168, 187 absolute  85 Newdigate, Sir Roger  x, 68–69, 72–73 Nonconformity  62, 70, 78–79, 82, 84, 95–96 see also Dissent, Dissenters Norman Yoke  89, 136, 140 North, Frederick, Lord North  92, 107, 110 North Carolina  xxi, 194, 196, 198, 205, 207 Nowell, Thomas  66, 68 oaths  13, 101–4 obligations  19, 21, 35, 37, 88, 133, 183 law of  14, 19–20, 22 O’Connell, Daniel  25 O’Leary, Arthur  103–5 oracles of the law  14, 43 originalists  42, 52, 54, 219 Oxford xvi–xviii, 40, 59, 66–67, 155–56, 158–61, 168–69, 210 Oxford Enlightenment  xviii, 59–75 Page, Anthony  xix, 77, 96 Paley, William  130 Palmer, Sir Geoffrey  48 pamphlets xii, 62, 66, 77, 81, 87, 103, 106 parents  117, 119, 121, 124, 127, 135, 138, 141 Parliament  13–14, 67–68, 80, 90–91, 107–8, 110–14, 129, 205–6 Irish xix, 97–99, 101, 105, 107, 111–14 members of  xv–xvi, 68, 90, 98, 124, 129, 150 powers of  14, 97, 106, 108, 110, 112, 114 see also House of Commons, House of Lords parliamentary reform  91, 96–97, 106, 112, 212 parliamentary sovereignty  2, 97–115 Pembroke College, Oxford  x, xii, 123

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penal laws  xix, 82–83, 95, 101, 103, 105 Petty, William, Lord Shelburne, formerly Fitzmaurice, xii Phillips, Nicola  145–46 physical laws  183–84 Pitt, William  107, 112–13 Pocock, John Greville Agard  xviii, 60–61, 69–70, 72–73, 75, 86 political society  19, 24, 158 politics xviii, 77, 85, 90, 98, 179, 195, 212 and paranoia  88–96 Pollock, Sir Frederick  119, 130, 171, 174, 188, 200 poor law  134, 141, 143, 150 settlements under  134, 136, 141–43, 149, 150 popery  86, 88, 159 see also Catholicism positive law  50–51, 126, 161 positivism  13, 50, 181, 182 Posner, Richard  53–58 possession  9, 16, 19–20, 36, 38, 122, 125, 134 Pothier, Robert Joseph  21 power(s) xvii, 12–13, 39–40, 83–84, 90–92, 106–9, 113–14, 183, 204–5 absolute  37 legislative  47, 59, 179, 182 private  34 sovereign  13, 24, 50, 101, 181, 184, 221 precedent  43–46, 49, 53–54, 56, 117, 120, 129, 131 predestination  63–64, 66 Presbyterianism  83, 85, 100 Prest, Wilfrid  xxi, 73, 77, 86, 149 Price, Richard  81, 88–89 Priestley, Joseph  xiv–xv, 2, 70, 77–81, 84–85, 87–91, 95 primogeniture  15, 128 private law  2, 11, 178 privation  38 privileges xix, 17, 138, 144, 201 probability  118, 121–24 Progressives, American  193–207 property  7–10, 13–14, 19–21, 36–38, 127–28, 150–51, 189–90, 204 commercial  2, 11 moveable  128 personal  10, 19, 142 private  13, 109, 158 real, see real property rights  20, 164, 185 transfer of  7, 19–20, 128, 199 Prussia  162–63, 165, 168 public opinion  107, 167, 197 public wrongs  36, 39, 105, 203 Pufendorf, Samuel von  19, 33, 157–58, 181–83 pupilage  155, 160, 165, 167–68 purchasers  48, 118, 122–24, 131

228 

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Quesalid see Hunt, George Rabban, David  xx, 173 Rational Dissent  77–96; see also dissent, Anglican and Dissenting Enlightenents  85–88 Furneaux, Philip  77, 81–85, 89, 91–95 politics and paranoia  88–96 Priestley, Joseph  xiv–xv, 2, 70, 77–81, 84–85, 87–91, 95 real property  8–10, 19, 21, 128, 189 law of  xii, 2, 7, 10, 14, 20, 17–18, 48, 120 Reeves, John  211–12 reform xviii, 1, 25–27, 128–29, 156, 159–62, 166–67, 171 opposition to  26, 51 parliamentary  91, 96–97, 106, 112, 212 political xviii, 60, 77 radical xxi, 56, 207 religious  80, 96 and ritual  51–58 see also complacency Reformation  64, 102, 159 remainders  4, 7, 9–10, 48, 125, 217 Renunciation Act (1783)  97, 111, 114 reversions  4, 7, 9 revolution American  91, 178, 183, 206 French xix, 211 of 1688  85, 92 Ridley, Glocester  62–68, 71 rights  9, 11, 13, 35–37, 50–51, 100–1, 108–11, 202–3 absolute  13–14, 209 constitutional  103, 112 individual  50, 53 natural xvii, 13, 50–51, 54, 78, 106, 108–11, 115 political,  49, 100 property  20, 164, 185 of women  xx, 152, 203 ritual xviii, 42–46, 54, 56–58, 165 and reform  51 and violence  49–51 practitioners  42, 44, 57 Robinson, Henry Crabb  2, 21 Rolle, Henry  5 Roman law  11, 155, 158, 161–63, 165, 176–77, 180–81, 187–88 Ruggles, Thomas  1 rule of law  13–14, 49, 57

Scalia, Antonin  51–52, 54, 56 science, human  22, 155–59, 162–63, 168, 175 science, natural  49, 50, 77, 182, 190 Scotland xiv, 79–80, 83–85, 88, 158, 165, 168 Scottish union  97, 113–14 Secker, Thomas  65–68 security  45, 104, 142, 144, 209 legal  82 personal  13, 109, 209 seisin  9, 121, 125, 127, 203 Selden, John  13, 121 servants  136–37, 144, 150–51, 184 sex discrimination  53–54, 56 sexual orientation  53, 55–56 shamans  44, 58 Sharswood, George  213 Sheppard, William  3, 8, 19 Sheridan, Charles Francis  106–11, 115 siblings, half  117, 119, 124–25, 128 sisters  29, 117, 125–26, 128 Smith, Adam  170, 172 Smith, William Cusack  113–15 socage  15, 17–18, 127 Society of Antiquaries  xii solicitors  166, 214 Somner, William  17–18 sophistry  46, 119, 164 sovereign power  12–13, 24, 50, 101, 174, 181, 184, 221 sovereignty xix, 24, 33, 91, 97, 101, 110, 179, 184 parliamentary  xv, xvii, xix, 2, 13, 91, 97–115, 221 popular  91, 178, 183–84, 205 Spain  102, 188 state of nature  12–13, 19, 109 Stephen, Henry John  xxi, 153, 170, 172, 210, 213 Story, Joseph  168 Strachey, Ray  146 students  1, 3–4, 66, 68–69, 167–68, 179, 214–15 submission, voluntary  100, 103 subscription controversy  62–75, 92–93, 96 succession  118, 121–22, 126, 183 suffrage  112, 146, 195, 203 Sullivan, Francis Stoughton  98 Sweden  107–8, 190 Sweet, George  119–20, 131 Sweet, Rosemary  74 Swinburne, Thomas  119

St Edmund Hall, Oxford  66 St George Tucker  119, 183, 212 Sampson, William  202 Savigny, Friedrich Carl von  164, 168, 175, 180 Savile, Sir George  69 Saxons  15–17, 125

Taussig, Michael  44, 57–58 tenants  4, 9, 18, 38, 118, 140, 149, 188 tenures xvi, 4, 6–7, 9, 17–18, 121–22, 194 freehold  7, 9, 15 feudal  9, 14–15, 17, 118, 131, 159, 203 military  9, 17–18

Index modern  15, 18 socage  15–18, 127 Thayer, James Bradley  174, 216 theology  69–70, 79, 87 Thibaut, Anton Friedrich Justus  181 Thirty-Nine Articles  62, 68, 87, 92, 96; see also subscription Thompson, William  151 title registration  196 toleration, religious  65, 70, 78, 80–82, 84, 87–88, 92, 94–96 Toleration Act (1689)  xix, 78, 81–82, 84, 87, 95–96 Tory  xi, xvii, 86, 89–90, 96, 212 Townson, Thomas  62–63, 67, 74 traditionalism  196, 198, 207 transfer of property  7, 19–20, 128, 199 translations of the Commentaries  210, 212, 221 treason  129, 187 Treatise on the Law of Descents in Fee-Simple xii, 120 Trobrianders  45–46, 57 trusts  2, 10–11, 13, 31, 108, 117, 123–24, 128 Tucker, Josiah  74, 91 Twining, William  155 Tyrell, James  125 Unitarianism  77, 79, 87 United Irishmen  105–6, 115 United States of America  xx–xxi, 145–46, 165, 168, 173, 175–76, 183–84, 186–87 universities xxi, 154, 156–57, 159–61, 165, 167–68, 187 utilitarianism, utility  xvii, 24, 37, 50–51, 126, 169–70 vice-chancellor’s court, Oxford  xi villeinage  15–18 Viner, Charles  5

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Vinerian Chair  xi–xii, xx, 153–54, 159–60, 166–67, 169, 215, 217 violence  84, 102, 105, 146, 203 domestic  144 interpersonal  142, 144 legitimate  49 non-lethal  144 and ritual  49–51 Virago, publishers  146 wages  136–37 Wesley, John  103–4 Westminster Hall  29, 159–60 Wharton, Francis  65, 174, 215 Whigs, Whiggery,  92, 107, 110, 115, 212 white supremacy  195, 203 widows  31, 142–43, 150, 161 Wilkes, John  xvi, 90 William III  84 Williams, John Dingwall  120 wills xix, 19, 21, 117, 142, 187, 204 Winchester, Thomas  xviii, 59–7 wisdom  12–13, 40, 87, 94, 193, 197, 214 witchcraft  197, 199, 203, 206 witnesses  44, 48, 164–65, 211, 216 wives  37, 127, 130, 134, 139, 142–45, 147–49, 204 Wollstonecraft, Mary  134 women xx, 128, 133–52, 197, 199, 203–4 elite  141, 149 married  134, 137–38, 141–43, 146–50 rights of  xx, 152, 203 Wood, Thomas  7, 15, 18, 156 Wright, Sir Martin  6, 14–18, 121–22, 124 wrongs  19, 31, 36, 39 private  36, 38–39 public  36, 39, 105, 203 Yorke, Charles  130

230