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Blackstone and the Science of Law

Published online by Cambridge University Press:  11 February 2009

Michael Lobban
Michael Lobban
Affiliation:
Corpus Christi College, Cambridge
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Extract

Blackstone's Commentaries have traditionally evoked two responses. On the one hand, from Bentham on, the work has been seen as confused and contradictory, based on theoretical foundations which were either irrelevant to his task, or ignored in practice in the book. On the other hand, although his achievement and in particular his theorising have been criticised, the Commentaries have also been seen as the first attempt to systematise English law and to ground it on solid principles, thereby creating a new ‘science of English law’. Both Lord Mansfield and Bentham himself praised Blackstone on this score, while Sir William Jones enthused that ‘his Commentaries are the most correct and beautiful outline that was ever exhibited of any human science’ Modern writers have agreed that Blackstone made a significant contribution to the development of law as a science.

Type
Articles
Information
The Historical Journal , Volume 30 , Issue 2 , June 1987 , pp. 311 - 335
Copyright
Copyright © Cambridge University Press 1987

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References

1 Blackstone, William, Commentaries on the laws of England (4 vols., Oxford, 1765–1769)Google Scholar.

2 Bentham, Jeremy, A comment on the Commentaries and A fragment on government, ed. Burns, J. H. and Hart, H. L. A. (London, 1977)Google Scholar.

3 See Kennedy, Duncan, ‘The structure of Blackstone's Commentaries’, Buffalo Law Review, XXVIII (1979), 205–382Google Scholar.

4 See Hart, H. L. A.,‘Blackstone's use of the law of nature’, Butterworth's South African Law Review (1956), pp. 169–74Google Scholar, and Finnis, J. M., ‘Blackstone's theoretical intentions’, Natural Law Forum, XII (1967), 163–83Google Scholar, which both point to areas of logical consistency but reveal the irrelevance of much of Blackstone's theorizing to his substantive text; and Rinck, H.-J., ‘Blackstone and the law of nature’, Ratio, II (1960), 162–80Google Scholar which points out his logical flaws. Boorstin's, Daniel J.The mysterious science of the law (Cambridge, Mass., 1941)Google Scholar argues that Blackstone was both a rationalist and an anti-rationalist in that he identified all aspects of English law with the law of nature, but also avoided all logical and empirical difficulties by casting a veil of mystery over the law.

5 Mansfield contrasted Blackstone's ‘analytical reasoning’ with the ‘uncouth crabbed’ nature of Coke's commentary on Littleton. See Holliday, John, The life of William late earl of Mansfield (London, 1797), p. 89Google Scholar. Bentham characterized him as the first accessible Institutional writer. See Fragment on Government, loc. cit. p. 413.

6 An essay on the law of Bailments (2nd edn, London, 1798), p. 3Google Scholar.

7 Milsom, S. F. C., ‘The nature of Blackstone's achievement’, Oxford Journal of Legal Studies, 1 (1981), 1–12CrossRefGoogle Scholar, notes that Blackstone's simple expositions showed up much of the artificiality of old law, and that this allowed later writers to treat specific areas of law as sciences capable of analysis and not merely as terms of art to be followed. See also Simpson, A. W. B., ‘The rise and fall of the legal treatise: legal principles and forms of legal literature’, University of Chicago Law Review, XLVIII (1981), 632–79CrossRefGoogle Scholar.

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9 The New Natura Brevium of the most reverend Judge Mr Anthony Fitzherbert (ed Rastall, William) (London, 1652)Google Scholar The preface to this book illustrates how writs were seen to be the base of the common law ‘ In every Art and Science, there are certain Rules and Foundations, to which a Man ought to give credit, and which he cannot deny In like manner there are divers Maxims and Fundamentals in the knowledge of the Common Laws of the Land, which a Man ought for to believe very necessary for those who will understand the same Law, especially at the beginning of their studies, for upon those Fundamentals the whole Law doth depend For which purpose, in time past there was composed by a Learned Man, a very profitable Book, cald, The Register, which doth contain sundry Principals, by which he must be well instructed who would study the Law And also for that purpose was there composed by a Learned Man, a Book called Natura Brevium, which Book doth declare and set forth the Diversities and Natures of many Original Writs with their Process ’ This book aimed to modernise the previous two

10 Coke, Edward, The First Part of the Institutes of the laws of England, or a Commentary on Littleton, revised and corrected with notes by F Hargrave and C Butler (17th edn, 2 vols, London, 1817)Google Scholar, 73b (hereafter cited as Coke upon Littleton)

11 Bohun, William, The English lawyer (London, 1732), pp 3–4Google Scholar

12 Cay, John, An abridgment of the publick statutes in force (2 vols, London, 1739)Google Scholar

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15 For a survey of a typical selection of common law literature, see Knafla, Louis A.,‘Law studies of an Elizabethan student’, Huntington Library Quarterly, XXXII (1968–1969), 221–40Google Scholar.

16 De Laudibus Legum Angliae (ed. Amos, A.) (Cambridge, 1825), p. 8Google Scholar.

17 Ibid. p. 20.

18 Ibid. p. 47.

19 Ibid. p. 48.

20 Doddridge, John, The lawyers light: or a due direction for the study of the law (London, 1629)Google Scholar.

21 Ibid. p. 10.

22 Coke used Littleton's framework to pass on a variety of facts and ideas in his opinion central to the common law, and therefore many of Coke's comments were scarcely relevant to the point discussed in Littleton's text. For instance, Coke's famous ideas on the embodiments of reason in the law, at 97b, were included in a commentary on Frankalmoigne.

23 De Laudibus Legum Angliae, ch. XVII and Amos' notes to chs. XVII–XX.

24 Hence the famous passage in volume III of the Commentaries (henceforth Comm.) at pp. 267–8, where Blackstone likened the law to a Gothic castle. Also I Comm., 67.

25 See Pocock, J.G.A., ‘Burke an d th e ancient constitution’ in his Politics, language and time: essays on political thought and history (London, 1972), pp. 202–32Google Scholar.

26 I Comm., 63–4, 69.

27 This view continued into the nineteenth century. See Warren, Samuel, A popular and practical introduction to law studies (London, 1835)Google Scholar, which advised the student to begin his learning by studying special pleading.

28 Coke upon Littleton, 71a.

29 The dominance of the civil law in the universities had led to the foundation of the Inns of Court and Chancery to teach common law. However, by the 1700s the Inns were in decline. Now the only abstract analysis available was the civilian one.

30 Wood, Thomas, Some thoughts concerning the study of the laws of England, particularly in the two universities (2nd edn, London, 1727), pp. 8–9Google Scholar.

31 Lane v. Sir Robert Cotton (1701), Modern Reports, XII, 482. See also Windham v. Chetwynd (1757), Burrows Reports, I, 414.

32 Burnet, Gilbert, The Life and Death of Sir Matthew Hale, Kt (London, 1682), p. 15Google Scholar.

33 Hallifax, Samuel, An analysis of the Roman civil law (2nd edn, Cambridge, 1775), x–xxiiGoogle Scholar.

34 Bever, Thomas, A Discourse on the study of jurisprudence and the civil law, (Oxford, 1766)Google Scholar.

35 D. Justimam Institutionum (ed. Harris, George) (2nd edn, London, 1761), p. 5Google Scholar.

36 Ayliffe, John, A New Pandect of the Roman Civil Law (London, 1734), p. 2Google Scholar.

37 Ibid. p. 3.

38 See also Luig, K., ‘The Institutes of national law in the seventeenth and eighteenth centuries’, Juridical Review, XVII (1972), 193–226Google Scholar.

39 Domat, J., The Civil Law in its Natural Order: together with the Pubick Law (trans. Strahan, William) (2 vols., London, 1722)Google Scholar.

40 Ibid. I, i–v.

41 Ibid. I, xxvii–xliv.

42 Ibid. I, xxxiii–xxxiv.

43 See, e.g. Cowell, John, Institutiones tuns Anglicam ad methodum et seriem institutionum imperialium compositae et digestae (London, 1605)Google Scholar.

44 Holdsworth, W. S., History of English Law, V (London, 1924), 399–401Google Scholar, XII (London, 1938), 418.

45 Blackstone, , An analysis of the laws of England (3rd edn, Oxford, 1758), p. viGoogle Scholar. Hallifax, made a similar objection to Finch's work: Analysis, p. iiiGoogle Scholar. Feudal tenures had been abolished in 1660.

46 In his Nomotechnia, first published in English in 1759 as A description of the common law of England, and the first book of which, covering the nature and sources of law, was virtually identical to the first book of his Law, Finch followed Justinian in arguing that the law was the rule of giving each man what belonged to him. He drew largely on Roman sources to describe the law of nature as being reason implanted in men rendering them capable of telling good from evil. For the relationship between Law and Nomotechnia, see Prest, W., ‘The dialectical origins of Finch's Law’, Cambridge Law Journal, XXXVI (1977), 326–52CrossRefGoogle Scholar.

47 Finch, , Common law, p. 5Google Scholar.

48 Ibid. p. 17.

49 Going on to discuss law constructions, fictions and positive laws, Finch wrote, ‘The foregoing Rules were such as were derived but out of other sciences. These that follow are peculiar to ourselves, and are called Law-constructions.’ Ibid. p. 41.

50 Some thoughts, p. 43.

51 Ibid. PP. 16–17.

52 Ibid. p, 14.

53 Ibid. p. 57.

54 Ibid. p. 45.

55 It opened thus: ‘It has been thought Impracticable to Bring the Laws of England into a Method; and therefore a Prejudice has been taken up Against the Study of Our Laws, even by Men of Parts and Learning, as if there was no Way to attain to the Knowledge of them, but by a Tedious Wandring about, or with the Greatest Application, and Long Attendance in the Highest Courts of Justice.’ An Institute of the laws of England; or the laws of England in their natural order according to common use (2 vols., London, 1720), prefaceGoogle Scholar.

56 Ibid. p. 6.

57 Analysis, p. vi.

58 Blackstone was aware that the contrasting approaches to the law existed, for he pointed to the medieval conflict between the civilian clergy who dominated the universities, and the laity which founded the Inns, , I Comm., 16–26Google Scholar.

59 Analysis, p. iv.

60 See Kennedy, ‘The structure of Blackstone's Commentaries’ and Boorstin, The mysterious science. See also Willman, R., ‘Blackstone and the theoretical perfection of English law in the reign of Charles II’, Historical Journal, XXVI (1983), 39–70CrossRefGoogle Scholar, and Lucas, P., ‘Blackstone and the reform of legal education’, English Historical Review, LXXVII (1962), 456–89CrossRefGoogle Scholar.

61 See Doolittle, I. G., ‘Sir William Blackstone and his Commentaries on the laws of England (1765–1769): A biographical approach’, Oxford Journal of Legal Studies, III (1983), 99–112CrossRefGoogle Scholar. This early genesis of the work in the 1750s suggests less a defence against liberal attacks – who were these liberals? – and more an attempt merely to clarify. Besides, Blackstone himself was not averse to challenging accepted orthodoxies, as his comments on the criminal law, and his ideas on the course of descent at 2 Comm., 238, suggest. Indeed, it is not unusual to see Blackstone referred to as an Enlightenment figure, for instance by Boorstin.

62 The Analysis set out the proposed four books in a table suggesting symmetry and deduction. In Book I the rights of persons divided into ‘natural persons’ and ‘bodies politic’; ‘natural persons’ then divided into absolute and relative rights, and the latter then into ‘public’ and ‘private’ and so on.

63 Hale, Matthew, The analysis of the law: being a scheme, or abstract, of the titles and partitions of the law of England, digested into a method (London, 1713)Google Scholar.

64 I Comm., 5.

65 I Comm., 5–6: Blackstone pointed out here that Roman students had to learn the Twelve Tables by heart, to show the Roman emphasis on legal education.

66 I Comm., 27.

67 I Comm., 32.

68 I Comm., 33.

69 This was also done by natural law writers such as Pufendorf, in his Of the law of nature and nations (ed. Barbeyrac, J., trans. Kennet, Basil) (3rd edn, London, 1717)Google Scholar. This work began with a passage on the properties of all beings.

70 I Comm., 39–40.

71 Contrast this with Domat's view that one had to know exactly what the law of nature was in order to resolve inconsistencies in other laws, or to test them. Domat, , The civil law in its natural order, p. xxxviiGoogle Scholar.

72 I Comm., 42–3.

73 See Coke upon Littleton, 97b and I Comm., 69–70.

74 Hardwicke MS, British Museum Add. MS 36093, fo. 9.

75 I Comm., 57.

76 See the argument of H. L. A. Hart, cited in footnote 4.

77 I Comm., 120.

78 I Comm., 123.

79 4 Comm., 41. My italics.

80 I Comm., (1803 edn), 44n.

81 I Comm., 48.

82 I Comm., 53.

83 Pufendorf, Of the law of nature. Book VIII, ch. I, section I argues that it is only by their recognition in the civil courts that natural obligations and rights obtain civil force. Blackstone's ideas echo Pufendorf's in many areas. For instance, Pufendorf argues (I, 2, vi) that the law is the imposition of a superior; that the supreme sovereign is above all laws (VII, 6, iii); that the civil law could in theory contradict the law of nature although only madmen would make such civil laws (VIII, 1, ii).

84 I Comm., 123.

85 I Comm., 49.

86 I Comm., 55. At I Comm., 57, legislators were said to ‘compel’ and ‘oblige’.

87 Pocock, J. G. A., The ancient constitution and the feudal law (Cambridge, 1957)Google Scholar.

88 Blackstone began his chapter on parliaments with a history and, stating that its origins could not be fully traced, said ‘that parliaments, or general councils, are coeval with the kingdom itself’. I Comm., 143–5.

89 I Comm., 156.

90 Ibid. The word ‘naturally’ here suggests the physical view of natural law discussed above.

91 ‘If the parliament will positively enact a thing to be done which is unreasonable, I know of no power that can control it.’ I Comm., 91. See Lieberman, David, ‘The province of legislation determined’ (Unpublished London PhD. dissertation, 1980)Google Scholar. Lieberman argues that the apparent contradiction between Blackstone's use of the law of nature and his absolute sovereign is due to his confusion over sovereignty and not natural law. He argues that Blackstone stressed the strong sovereign in order to prevent any radical interpretation of his theory of natural law, and in practice, he limited the sphere of parliamentary legislation. He also argues that Blackstone's idea of natural law was not incompatible with his historical approach, for his was not a rigorous metaphysical theory based on a series of deductions from principles, but rather the law for Blackstone was historical, built in part on past decisions which gave evidence as to what the law was, as well as being based on reason. However, if one sees Blackstone as borrowing structures and ideas in the way suggested here, and if his idea of natural law is seen as being more than the traditional common law notion of reason, then he must indeed be seen as confused and contradictory in these areas.

92 I Comm., 157.

93 I Comm., 205.

94 I Comm., 47.

95 Note the use of the word ‘should’ in the following passage: although the original compact was never made in fact, ‘yet in nature and reason must always be understood and implied, in the very act of associating together: namely, that the whole should protect it's parts, and that every part should pay obedience to the will of the whole’, I Comm., 47–8.

96 I Comm., 186.

97 I Comm., 69.

98 I Comm., 70.

99 Ayliffe, , A New Pandect, p. 8Google Scholar.

100 Ibid. p. 18.

101 Most of Book 1 covered the position of the king and his rights and duties, there being only four chapters on the non-feudal relations of parent and child, master and servant, guardian and ward, and husband and wife.

102 I Comm., 127.

103 I Comm., 353.

104 4 Comm., 4–9, where he also justified (via Hale) the use of capital punishment for offences not mala in se.

105 I Comm., 131; 3 Comm., 128–9; 4 Comm., 431.

106 2 Comm., II.

107 4 Comm., 9.

108 2 Comm., 44.

109 2 Comm., 52.

110 Hence chapter 6 of Book II on the remaining socage tenures.

111 2 Comm., 57.

112 2 Comm., 213.

113 3 Comm., 119 ff.

114 3 Comm., 266.

115 This was a common sentiment among eighteenth-century legal thinkers, deriving from Montesquieu's eulogy of the English constitution. Francis Sullivan therefore wrote, ‘Great, undoubtedly, are the inconveniencies which attend a multiplicity of laws, and very hard it seems, that all men should be obliged to obey a rule, which it is confessed the majority are incapable of perfectly knowing; but such is the natural and necessary course of things.’ He added that the most libertarian societies had the most laws: Sullivan, F. S., Lectures on the constitution and laws of England (2nd edn, London, 1776), p. 3Google Scholar.

116 3 Comm., 270.

117 2 Comm., 382–3.

118 I Comm., 35.

119 2 Comm., 172: ‘I trust [the student] will in some measure see the general reasons, upon which this nicety [contingent remainders] is founded. It were endless to attempt to enter upon the particular subtleties an d refinements, into which this doctrine, by the variety of cases which have occurred in th e course of many centuries, has been spun out and subdivided.’

120 3 Comm., 327.

121 3 Comm., 328: ‘When therefore a body of laws, of so high antiquity as the English, is in general so clear and perspicuous, it argues deep wisdom and foresight in such as laid the foundations, and great care and circumspection, in such as have built the superstructure.’

122 2 Comm., 376: ‘experience soon shewed how difficult and hazardous a thing it is, even in matters of public utility, to depart from the rules of the common law; which are so nicely constructed and so artificially connected together, that the least breach in any one of them disorders for a time the texture of the whole.’

123 I Comm., 35–6.

124 E.g. I Comm., 70–1; 2 Comm., 210; 3 Comm., 118.

125 Jones, , Bailments, pp. 3–4Google Scholar.

126 Ibid. pp. 59–60

127 Chitty, J., A concise mew of pleading, v, quoted in Warren, , Popular and practical introduction, p. 21Google Scholar.