1902 Encyclopedia > Sir William Blackstone

Sir William Blackstone
English jurist

SIR WILLIAM BLACKSTONE, an eminent English jurist, was born at London, July 10, 1723. He was a posthumous child, and his mother died before he was twelve years old. From his birth the care of his education was undertaken by his maternal uncle Thomas Bigg, an eminent surgeon in London. When about seven years old he was sent to the Charterhouse School, and in 1735 he was admitted upon the foundation there by the nomination of Sir Robert Walpole. His progress was so rapid that at the age of fifteen he was at the head of the school, and qualified to be removed to the university, and he was accordingly entered a commoner at Pembroke College, Oxford, on the 30th of November 1738. At the time of entering he held an exhibition from his school, and in February following he was elected by his college to one of Lady Holford's exhibitions for Charterhouse scholars. He was a diligent student, devoting himself specially though not exclusively to the Greek and Roman poets. At the early age of twenty he compiled a treatise, entitled Elements of Architecture, intended for his own use only and not for publication, which was highly spoken of by those who were permitted to read it.

Having made choice of the profession of the law, he was entered in the Middle Temple, November 20, 1741. In a copy of verses of considerable merit, afterwards published by Dodsley in the fourth volume of his Miscellanies, entitled The Lawyer's Farewell to his Muse, he gave utterance to the regret with which he abandoned the pleasing pursuits of his youth for severer studies. Besides this, several fugitive pieces were at times communicated by him to his friends; and he left, but not with a view to publication, a small collection of juvenile pieces, consisting of both original poems and translations. Some notes which just before his death he communicated to Steevens, and which were inserted by the latter in his last edition of Shakespeare's works, show how well he understood the meaning and relished the beauties of his favourite English poet.

In November 1743 he was elected into the society of All Souls' College. In the November following he spoke the anniversary speech in commemoration of Archbishop Chichele, the founder, and the other benefactors to that house of learning, and was at the same time admitted actual fellow. From this period he divided his time between the university and the Temple, where he took chambers in order to attend the courts. In the former he pursued his academical studies, and on the 12th of June 1745 took the degree of bachelor of civil law; in the latter he applied himself closely to his profession, both in the hall and in his private studies; and on the 28th of November 1746 he was called to the bar. Though but little known or distinguished in Westminster Hall, he was actively employed, during his occasional residences at the university, in taking part in the internal management of his college. In May 1749, as a small reward for his services, and to give him further opportunities of advancing the interests of the college, Blackstone was appointed steward of its manors. In the same year, on the resignation of his uncle, Seymour Richmond, he was elected recorder of the borough of Wallingford in Berkshire. On the 26th of April 1750 he commenced doctor of civil law, and thereby became a member of the convocation, which enabled him to extend his views beyond the narrow circle of his own society, to the benefit of the university at large. In the summer of 175 3 he took the resolution of wholly retiring to his fellowship and an academical life, still continuing the practice of his profession as a provincial counsel.

His lectures on the laws of England appear to have been an early and favourite idea; for in the Michaelmas term immediately after he quitted Westminster Hall, he entered on the duty of reading them at Oxford; and we are told by the author of his Life, that even at their commence-ment, the high expectations formed from the acknowledged abilities of the lecturer attracted to these lectures a very crowded class of young men of the first families, characters, and hopes. Bentham, however, declares that he was a " formal, precise, and affected lecturer—just what yon would expect from the character of his writings—cold, reserved, and wary, exhibiting a frigid pride." It was not till the year 1758 that the lectures in the form they now bear were read in the university. Mr Viner having by his will left not only the copyright of his abridgment, but other property to a considerable amount, to the Uni-versity of Oxford, in order to found a professorship, fellow-ships, and scholarships of common law, Blackstone was on the 20th of October 1758 unanimously elected Vinerian professor; and on the 25th of the same month he read his first introductory lecture, which he published at the request of the vice-chancellor and heads of houses, and afterwards prefixed to the first volume of his celebrated Commentaries. It is doubtful whether the Commentaries were originally intended for the press; but many imperfect and incorrect copies having got into circulation, and a pirated edition of them being either published or preparing for publication in Ireland, the author thought proper to print a correct edition himself, and in November 1765 published the first volume, under the title of Commentaries on the Laws of England. The remaining parts of the work were given to the world in the course of the four succeeding years. It ought to be remarked, that before this period the reputa-tion which his lectures had deservedly acquired for him had induced him to resume his practice in Westminster Hall; and, contrary to the general order of the profession, he who had quitted the bar for an academic life was sent back from the college to the bar with a considerable in-crease of business. He was likewise elected to parliament, first for Hindon, and afterwards for Westbury in Wilts; but in neither of these departments did he equal the expec-tations which his writings had raised. The part he took in the Middlesex election drew upon him the attacks of some persons of ability in the senate, and likewise a severe animadversion from the caustic pen of Junius. This cir-cumstance probably strengthened the aversion he professed to parliamentary attendance, " where," he said, " amidst the rage of contending parties, a man of moderation must expect to meet with no quarter from any side." In 1770 he declined the place of solicitor-general; but shortly afterwards, on the promotion of Sir Joseph Yates to a seat in the court of Common Pleas, he accepted a seat on the bench, and on the death of Sir Joseph succeeded him there also. Blackstone died on the 14th February 1780, in the fifty-seventh year of his age.

The design of the Commentaries is exhibited in his first Vinerian lecture printed in the introduction to them. The author there dwells on the importance of noblemen, gentlemen, and educated persons generally being well acquainted with the laws of the country; and his treatise, accordingly, is as far as possible a popular exposition of the laws of Eng-land. Falling into the common error of identifying the various meanings of the word law, he advances from the law of nature (being either the revealed or the inferred will of God) to municipal law, which he defines to be a rule of civil conduct prescribed by the supreme power in a state commanding what is right and prohibiting what is wrong. On this definition he founds the division observed in the Commentaries. The objects of law are rights and wrongs. Rights are either rights of persons or rights of things. Wrongs are either public or private. These four headings form respectively the subjects of the four books of the Commentaries.

Blackstone was by no means what would now be called a scientific jurist. He has only the vaguest possible grasp of the elementary conceptions of law. He evidently regards the law of gravitation, the law of nature, and the law of England, as different examples of the same principle—as rules of action or conduct imposed by a superior power on its subjects. He propounds in terms a fallacy which is perhaps not yet quite expelled from courts of law, viz., that municipal or positive laws derive their validity from their conformity to the so-called law of nature or law of God. "No human laws," he says, " are of any validity if contrary to this." His distinction between rights of persons and rights of things, implying, as it would appear, that things as well as persons have rights, is attributable to a misunderstanding of the technical terms of the Roman law. In distinguishing between private and public wrongs (civil injuries and crimes) he fails to seize the true principle of the division. Austin, who accused him of following slavishly the method of Hale's Analysis of the Law, declares that he " blindly adopts the mistakes of his rude and com-pendious model; missing invariably, with a nice and sur-prising infelicity, the pregnant but obscure suggestions which it proffered to his attention, and which would have guided a discerning and inventive writer to an arrangement comparatively just." By the want of precise and closely-defined terms, and his tendency to substitute loose literary phrases, he falls occasionally into irreconcilable contradictions. Even in discussing a subject of such immense importance as equity, he hardly takes pains to discriminate between the legal and popular senses of the word, and, from the small place which equity jurisprudence occupies in his arrangement, he would scarcely seem to have realized its true position in the law of England. Subject, however, to these strictures the completeness of the treatise, its service-able if not scientific order, and the power of lucid exposi-tion possessed by the author demand emphatic recognition. Blackstone's defects as a jurist are more conspicuous in his treatment of the underlying principles and fundamental divisions of the law than in his account of its substantive principles.

Blackstone by no means confines himself to the work of a legal commentator. It is his business, especially when he touches on the framework of society, to find a basis in history and reason for all our most characteristic institutions. There is not much either of philosophy or fairness in this part of his work. Whether through the natural conserva-tism of a lawyer, or through his own timidity and sub-serviency as a man and a politician, he is always found to be a specious defender of the existing order of things. Bentham accuses him of being the enemy of all reform, and the unscrupulous champion of every form of professional chicanery. Austin says that he truckled to the sinister interests and mischievous prejudices of power, and that he flattered the overweening conceit of the English in their own institutions. He displays much ingenuity in giving a plausible form to common prejudices and fallacies; but it is by no means clear that he was not imposed upon himself. More undeniable than the political fairness of the treatise is its merit as a work of literature. It is written in a most graceful and attractive style, and although no opportunity of embellishment has been lost, the language is always simple and clear. Whether it is owing to its literary graces, or to its success in flattering the prejudices of the public to which it was addressed, the influence of the book in England has been extraordinary. Not lawyers only, and lawyers perhaps even less than others, accepted it as an authoritative revelation of the law. It performed for educated society in England much the same service as was rendered to the people of Rome by the publication of their previously unknown laws. It is more correct to regard it as a handbook of the law for laymen than as a legal treatise; and as the first and only book of the kind in England it has been received with the constitutional sentiment of the country has been inspired by its pages. To this day Blackstone's criticism of the English constitution would probably express the most profound political convictions of the majority of the English people. Long after it has ceased to be of much practical value as an authority in the courts, it remains the arbiter of all public discussions on the law or the constitu-tion. On such occasions the Commentaries are apt to be construed as strictly as if they were a code. It is amusing to observe how much importance is attached to the ipsis-sima verba of a writer who aimed more at presenting a pic-ture intelligible to laymen than at recording the principles of the law with technical accuracy of detail. (E. B.)

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