There is certainly no profound nor much original thought in Blackstone’s four volumes. Nobody was ever made better able to comprehend a difficulty in English law by means of the notions on laws in general to be found in that famous chapter, which, as Sir Henry Maine puts it, may almost be said to have made Bentham and Austin into jurists by virtue of sheer repulsion. They lead to nothing, and explain nothing. They are rather the obeisances made by a polite professor to his subject, or a lawyer’s invocation of his muse, than the necessary foundations of a system. Blackstone repeats the venerable doctrine that human laws depend on the law of nature and the law of revelation, and that no laws are valid which conflict with these; but he never dares to apply it to any rule of English law. And when he comes to speak of parliament and monarchy, he has forgotten that odd proof of the perfection of the British constitution, with its divine combination of power, wisdom, and goodness, of which Bentham made such easy fun. He does not so much as pretend to be original. He is so dependent on others that he adopts not only their opinions but even their language, and by no means always does he let us know that he is quoting. He does not refer to Locke when he is stating, practically in Locke’s words, the theory of the right of society to inflict punishment; he never mentions the name of Burlamaqui, who was his guide, most faithfully followed, in the analysis of laws in general; and he fails to acknowledge half his obligations to Montesquieu.[10] Indeed, the free use he makes of Montesquieu’s famous chapter on the English constitution would be appalling, did we not remember that he was only following a professional custom of appropriation, which legal authors have not yet wholly abandoned. There is, in fact, scarcely a single sentence of that chapter which has not, somewhere or other, found its way into the Commentaries; and, as often as not, the Commentator leaves us to infer that the reflections are his own.
In estimating the value of Blackstone’s work, however, we should not make too much of the fact that his general theories are either weak or borrowed. The truth is that when we have got rid of them we have not touched the substance of the work itself; his exposition of English law remains unaffected, whether they be true or false. Moreover, these same theories of his have a considerable indirect interest; for as they afford us an opportunity of observing how, at a turning-point in the history of modern thought, certain important ideas acted upon an intellect, which, from its very want of independence and courage, all the better reflected the common opinions of the time. His philosophy exhibits the doctrine of the social contract in a state of decay, and enables us to watch the English mind preparing itself for utilitarianism.
Blackstone refuses to accept the social contract in its naked form; he ridicules the notion of individuals meeting together on a large plain to choose the tallest man present as their governor; and he traces the growth of society upwards from the family living a pastoral life to the settled agricultural community. His conception of social development comes as near the current modern theories as that of any thinker of his century, save Mandeville. But the social contract was too tempting to be altogether abandoned. He speaks of it as a tacit agreement between governor and governed, of protection on the one side and submission on the other, and from this implied agreement he draws conclusions as freely as if it were a historical fact. Stating Locke’s theory without any qualification, he bases upon the contract (for he recurs to the word) the right of society to punish crime. The laws under which thieves suffer were made, he tells us, with their own consent. So he says that the oath of allegiance is nothing more than a declaration in words of what was before implied in law. And he justifies the Revolution on the ground that King James had endeavored to subvert the constitution by breaking the original contract. Believer as he is in the law of nature, Blackstone is more than half a utilitarian. True, he has based all law on both the natural and the revealed law; but by a fortunate coincidence everything that tends to man’s happiness is in accordance with the former. Except where the revealed law applies, the actual rule of life is that man should pursue his own true and substantial happiness. “This,” he says, “is the foundation of what we call ethics or natural law.” Throughout the whole of his work his tests are purely those of utility, and with his broad principles of unbending orthodoxy he mingles theories, some of which the most thoroughgoing utilitarian would think too bluntly stated. Repudiating the notion of atonement or expiation, he maintains that punishment is only a precaution against future offences. He treats property as an adventitious right, unknown in the natural state; and to the amazement of some of his editors he has the courage to face the logical result, that theft is punished, not by any natural right, but only because it is detrimental to society. It is a malum prohibitum, not a malum in se. He goes so far as to say that where the law prohibits certain acts under pecuniary penalties, the prohibition does not make the transgression a moral offence, or sin, and that the only obligation in conscience is to submit to the penalty. He affirms as a thing beyond doubt that human laws have no concern with private vices. And he professes to defend the measures which placed Catholics and Dissenters under disabilities, not upon theological grounds, but simply because all dissent is subversive of civil government. We may be sure that Blackstone would not have spoken as he did if he had believed that average men in his time would consider his doctrines offensive; and taking him as an index of contemporary opinion, we can see that the field was ready for Bentham.
Blackstone’s hostility to reform has a special interest. There is, perhaps, no better example to be found in our literature of the typical Englishman, who loves his country, who considers its constitution the best constitution, its laws the best laws, and the liberty which its citizens enjoy the completest liberty which the world has known. He was conservative by circumstances and profession, as well as by temperament. His opinions were formed at a time when men lived politically at a lower level than they ever did before or have done since. No bold reforming spirit could have grown up in the Jacobite unrest of half a century, with the Whigs, to all appearance, permanently seated in power, and desirous of showing that the party of the Revolution was capable of moderation. There was no party of progress. No clear line of principle divided Whigs from Tories; so that it became a plausible thesis that they had exchanged positions. There were, in short, no great ideals in the air, which could stimulate to movement such a sluggish man as Blackstone. Perhaps some of his conservatism was due to his profession. The instances are probably rare of an English lawyer, with either extensive practice or great learning, who, on questions of personal liberty, whether of religion or of speech or of trade, has stood far in advance of the average opinion of his age. The profession tends to foster conservatism. The habit of deciding by precedents and usage is not to be shaken off when the mind turns from law to politics; and the men who declared that the common law is the perfection of reason, and who thought that it savored of profanity to speak disrespectfully of common recoveries, could not be expected to doubt the excellence of the British constitution or the necessity of Catholic disabilities. Something, too, must be allowed for the influence of a training which both narrows the scope of reasoning, and within the narrower limits makes it close and unbroken. A mind so schooled will naturally shrink from the gaps in evidence which the innovator must boldly face and overstep. May we not in the same way explain the alleged conservatism of men of science?
The main theme of Blackstone’s teaching is that of contentment with a constitution which to him seemed as nearly perfect as any work of man can be. “Of a constitution,” he says, “so wisely contrived, so strongly raised, and so highly finished, it is hard to speak with that praise which is justly and severely its due: the thorough and attentive contemplation of it will furnish its best panegyric. It has all the elements of stability; for by a graduated scale of dignity from the peasant to the prince, it rises like a pyramid from a broad foundation, diminishing to a point as it rises. It is this ascending and contracting proportion” he says, with the law of gravitation in his mind, “that adds stability to any government.” “All of us have it in our choice,”these are Blackstone’s words, “to do everything that a good man would desire to do; and are restrained from nothing, but what would be pernicious either to ourselves or our fellow-citizens.” He does not, however, mean us to accept this statement too literally. He allows that the constitution has faults—“lest we should be tempted to think it of more than human structure”—and he is careful to tell us what he means when he says that this or that institution is perfect. As the expounder and historian of English law, he uses words of higher praise than he would do if he wrote as a politician. He feels that he is dealing with the spirit of laws, and that it is not his business to consider every change of circumstances which may have impaired their efficiency. To point out each defect, or to suggest ways of amendment, would, moreover, have been alien from the purpose of a work in which he sought to interpret the laws and to teach respect for them; and therefore he does not guard himself against exaggeration, sharing the opinion of Burke, that we only lessen the authority of the constitution if we circulate among the people a notion that it is not so perfect as it might be, before we are sure of mending it. He has in his mind the idea of a theoretical perfection not incompatible with practical injustice. In a well-known passage he says that by the law as it stood in the time of Charles II., “the people had as large a portion of real liberty as is consistent with a state of society,” naming the year 1679 as the point of time at which he would fix what he calls the theoretical perfection of our public law; and yet he observes that “the years which immediately followed it were times of great practical oppression.”[11] This is in substance the view of Burke when he says that the machine is well enough for the purpose, provided the materials were sound. Indeed there is scarcely one of Blackstone’s thoughts on politics and government which may not be paralleled in the writings and speeches of Burke. They were agreed that our representative system was practically perfect; that religious dissent is subversive of civil government; and that the people were bound by their original contract to a scheme of government fundamentally and inviolably fixed on king, lords, and commons. Burke was among the first to read and admire the Commentaries; and had Blackstone lived ten years longer he would have read the Reflections on the Revolution in France, and applauded every word. We might describe him, in fact, as a Burke with the genius left out.
Over Blackstone’s mind the antiquity of the constitution exercised a potent spell. The retrospective imagination, as it has been called, made him regard with reverence institutions that reach back to a time whereof the memory of man runneth not to the contrary. The parliament and the monarchy, the sheriff, the corner, and trial by jury, seemed to be less the work of man’s hands than to partake of the dignity and immutability of the laws of nature; and the sense of trivial anomalies was lots in the veneration which he felt for a system of laws embodying in unbroken continuity the wisdom of a thousand years. It is not an unworthy emotion. There are few, let us hope, who have never been stirred by reflecting on the growth of that English liberty, which finds splendid voice in the prose of Milton, and whose presence, with “its gallery of portraits, its monumental inscriptions, its records, evidences, and titles,” glows in every line of Burke. On its practical side the emotion may be healthy or may be baneful. We call him the crudest of politicians who never reflects that our laws have grown with the people, that they contain the experience of a nation, and are not the paper schemes of clever theorists, and that they are surrounded by traditions which no convulsion ever swept away and which give them half their strength. It is this that a greater lawyer than Blackstone meant when he said that time is the wisest thing in the inferior world. But to timid natures antiquity becomes the proof, and not merely the evidences of excellence; so that the mind is led to make a severance between the past and the present, and while respecting the constitution as a thing of gradual growth to forget that the growth continues. Blackstone’s whole nature was affected by this illusion of distance. It distorted alike his historical beliefs and his practical judgments. It made him maintain, as Bolingbroke did, that our liberties are but the restoration of the ancient constitution of which our Saxon forefathers were deprived by the policy and force of the Normans. To Montesquieu’s opinion that as Rome, Sparta, and Carthage lost their liberties, so those of England must in time perish, it made him give the naïve reply that Rome, Sparta, and Carthage, at the time when their liberties were lost, were strangers to trial by jury. It made him spend all his ingenuity in defending the rule of descent which excluded kinsmen of the half-blood. And it was the chief cause of the contempt which, like Coke, he had for statute law. Though he never ventures to say so in plain terms, as his predecessors did with something more than rhetorical belief, yet at heart he is convinced that the common law is the perfection of reason.
Yet to represent Blackstone’s mind as absolutely stationary would be unjust; for now and again he puts forward a gentle suggestion of improvement. He draws attention to defects in the system of trial by jury, and makes several excellent proposals for its amendment. He even anticipates the legislation of our own day when he points out that our laws are faulty in not constraining parents to bestow a proper education on their children. He recognises the possibility of a change in political representation, which would admit the people to a somewhat larger share; and it is doubtless on the strength of that mild admission that Major Cartwright included him in the list of men conversant with public affairs who had expressed themselves in favor either of a fair representation or of short parliaments. The criminal law seemed to him very far from perfect. Within his own lifetime it had been made a capital crime to break down the mound of a fish-pond whereby any fish should escape, or to cut down a cherry-tree in an orchard. These laws would never have been passed, he says, with a confidence which it is not easy to share, if, as was usual with private bills in his days, public bills had been first referred to some of the learned judges for their consideration. It was still felony without benefit of clergy to be seen for one month in the company of the persons called Egyptians. He believed that this would not have continued, if a committee were appointed at least once in a hundred years to revise the criminal law—a proposal which his friend Daines Barrington made about the same time and worked out in some detail.
His conservatism, or, to give it the harsher name, his hostility to reform, was in great part due to timidity and insufficient knowledge of the world. He was a shy and reserved man, whose life was divided between one kind of narrowness at Westminster, and another kind of narrowness at Oxford. He was shut off from the real life of England. Among his books, which taught him that the state should foster trade, he could know only by hearsay of the new industrial movement then beginning to transform the country, and destined soon to sweep away the absurdities which he upheld, such as the innumerable attempts to fix the rate of wages, the navigation laws, and the statute of Charles II., commanding the people to bury their dead in wool. The very fact that he does not suggest a compromise between restriction of trade and its freedom, leads one to infer that he had never seriously thought about the question. Only with regard to apprenticeship does he mention that a doubt could exist, and then he refrains from giving a clear opinion. Amid the Toryism of Oxford, where he had seen students expelled for Methodists, Blackstone was hardly likely to understand what toleration, much less what religious freedom, meant. He deprecated persecution, once indeed he uses with unwonted energy the phrase “dæmon of persecution,”[12] but it is rather under the impulse of a mild humanity than from any trust in the people or any large love of liberty. When a strong protest was raised by Dr. Priestley and Dr. Furneaux against his account of the laws relating to Protestant Dissenters, whom almost in so many words he called dangerous citizens, he seems to have been quite surprised at the attack. He wrote a pamphlet in reply to Priestley, explaining that his aim had been to expound the law not justify it, which was not quite accurate, and declaring that he was all for tolerance; and he went so far as to expunge the most obnoxious sentence, and to give in subsequent editions a fuller and somewhat fairer account of the law. Even in its final form the passage is not worthy of one who was speaking from a position of really high authority, which should have induced judicial calmness. “They have made him sophisticate,” said Bentham, referring to Priestley’s and Furneaux’s attack; “they have made him even expunge; but all the doctors in the world, I doubt, would not bring him to confession.” Yet it is not so much utter illiberality of nature that the passage suggests as simple inexperience, and his fixed belief that truth must always be a compromise. He was but echoing the opinion commonly held by churchmen in his time, an opinion which he had never tested by contact with the people.
He had an opportunity of gaining experience as a politician, but in the House of Commons he learned nothing, and succeeded only in tarnishing his legal reputation. He entered it in 1762, and sat first for the rotten borough of Hindon, and afterwards for Westbury till 1770. For the first six years his name scarcely ever occurs in the debates. The only fact, indeed, known of this part of his political life, is a proposal which he made when the repeal of the Stamp Act was carried, that “it should not be of force in any colony where any votes, resolves, or acts had passed derogatory to the honor or authority of Parliament, until such votes, etc., were erased or taken off the records,” The second stage of the Wilkes case, after the elections of 1768, raised him to an unfortunate notoriety. Every circumstance combined to make Blackstone the most bitter of Wilkes’s opponents. He had committed himself to strong opinions on the absolute supremacy of Parliament; he was solicitor-general to the Queen; he was shocked at Wilkes’s blasphemy; and Lord Mansfield had been maligned. He had only one moment of merely formal hesitation. When De Grey, the Attorney-General moved that the comments on Lord Weymouth’s letter were an insolent, scandalous, and seditious libel, Blackstone argued that the courts were open, and that the House of Commons was not the place to try the question. The other acts of the persecution had his complete approval. He himself took the lead in moving that the charge against Lord Mansfield was “an audacious aspersion on the said Chief Justice;” he advocated the expulsion of Wilkes; he supported the motion which declared that Wilkes being expelled was incapable of sitting in the existing Parliament; and he delivered an able speech, in which he put forth all his strength, in favor of the validity of Colonel Luttrell’s election. He was rash enough in that speech to give it as his firm and unbiassed opinion that the law and custom of Parliament on a matter of privilege is part of the common law, that the House had acted according to that law and custom, and that Wilkes was therefore disqualified by common law from sitting as a member of Parliament. He paid heavily for his “firm and unbiassed opinion.” In the Commentaries he had given what was, no doubt, intended to be a complete list of the causes of disqualification; and none of them applied to Wilkes. Twice during the remainder of the debate, first by Mr. Seymour and afterwards by Grenville, “the gentle shepherd,” was this passage effectively turned against him. “It is well known,” according to Junius, “that there was a pause of some minutes in the House, from a general expectation that the doctor would say something in his own defence; but it seems, his faculties were too much overpowered to think of those subtleties and refinements which have since occurred to him.” A paper war ensued in which Junius, Sir W. Jones, Dr. Johnson, and Blackstone himself took part. In an anonymous pamphlet, betraying its author, as Junius said, by “its personal interests, personal resentments, and above all that wounded spirit, unaccustomed to reproach, and, I hope, not frequently conscious of deserving it,” Blackstone clung tenaciously and almost angrily to his opinion, which he stated even more emphatically than he had done in the House of Commons. There he expressly refrained from saying whether expulsion necessarily involves incapacity; in his reply to “the writer in the public press, who subscribes himself Junius,” he said as expressly that incapacity is the necessary consequence of expulsion. He retracted nothing. Sincere, no doubt, in his belief that it was Wilkes the blasphemer, not Wilkes the demagogue, whom he had helped to expel and incapacitate, he still held that the House of Commons had acted not only legally but wisely. He gave a pledge of his conviction by repairing the omission in his book. In its subsequent editions appears, as if it were a well settled rule, the statement that if a person is made a peer or elected to serve in the House of Commons, the respective Houses of Parliament may upon complaint of any crime in such person, and proof thereof, adjudge him disabled and incapable to sit as a member. His earlier statement of the law, however, was not forgotten, and “the first edition of Dr. Blackstone’s Commentaries on the Laws of England” is said to have become a toast at Opposition banquets. Nobody has now any doubt that Blackstone was in the wrong, confounding, as was pointed out at the time, the independence of the several parts of the legislature with the authority of the whole. His tenacity and the prestige of his name gave him the support of his party; but before long, had he lived, he would have suffered the mortification of seeing the House of Commons expunge from its journals all the declarations, orders, and resolutions respecting the election of John Wilkes, Esquire, as “subversive of the rights of the whole body of the electors of this kingdom.”
Having failed as a politician, he was made a judge. He sat on the bench from 1770 till his death in 1780, and he left behind him the reputation of having striven to administer justice with scrupulous care. He was certainly not a great judge. He was cursed with indecision; he was diffident of his own opinion, and never strenuous in supporting it; and in consequence, if we can trust Malone’s account of him, “there were more new trials granted in causes which came before him on circuit than were granted on the decisions of any other judge who sat at Westminster in his time.” The habit of mind which in private life produced in him almost a mania for punctuality made him as a judge a strict observer of forms; and he would not have consented, even if he had been able, to make and modify law as did his contemporary, Lord Mansfield. The time was pre-eminently favorable for earning a great judicial reputation; the law, impeded by fictions, formalities, and obsolete statutes, lagged behind a nation whose commerce had increased more than tenfold within living memory; and public opinion would have dealt leniently with a judge who shaped the old rules to satisfy the new needs. But Blackstone had not the courage for such work; and, save for the case of Perrin v. Blake, one might well tell the legal history of the ten years which he spent on the bench and never mention his name. Perrin v. Blake is too technical to be here described; enough to say that it maintained inviolate the venerable rule in Shelley’s case, with which Lord Mansfield had been profanely tampering. The case excited great interest in the profession, partly from its own importance and partly from some personal controversies to which it gave rise. Lord Campbell, indeed, writing more than seventy years after it had been decided, says that when conversation flags amongst lawyers the mention of Perrin v. Blake never fails to cause excitement and loquacity!