By R. H. HELMHOLZ
Review of Commentaries on the Laws of England, by William Blackstone
Oxford: Oxford University Press, 4 volumes, 2016
Even elderly readers of the New Rambler may have forgotten the burst of scholarly attention that was paid to William Blackstone’s famous Commentaries on the Laws of England (1765-69) in the 1970s and early 1980s. A part of it may be explained by the coincidence of those years with the two hundredth anniversary of Blackstone’s death in 1780, but historical scholarship on the Commentaries has also had a continuous history. These two decades simply witnessed a special outpouring of that interest. In 1973 Gareth Jones published a selection from the Commentaries, one which he called The Sovereignty of the Law (1973). In 1979, the University of Chicago Press brought out a facsimile copy of the 1st edition. Each of its four volumes was coupled with an introduction by one of the leading legal historians of the day (Stanley Katz, A.W. Brian Simpson, John Langbein, and Thomas Green), all of them qualified to assess Blackstone’s contribution to the development of the common law. Then, only three years later, Professional Books published a facsimile version of the 15th edition of the Commentaries,
Law review articles devoted to Blackstone’s work were also plentiful in those years. Most authors praised it. Some did the reverse. Among the latter, probably the best known at the time was written by a young professor at Harvard Law School, Duncan Kennedy. His ambitious if meandering essay sought to demonstrate that Blackstone was “engaged in a futile and indeed a wrongheaded enterprise.” In Kennedy’s reading of the Commentaries, the author’s primary object had been to persuade readers to take the merits of English law at face value and so to “mystify” those who were being oppressed by its application. Blackstone’s intent was to show that the chains which bound the oppressed were reasonable, indeed beneficial overall[1]. Kennedy’s article was published in the heyday of Critical Legal Studies, and Blackstone’s Commentaries made a good target. That he chose Blackstone as the representative of an existing system of repressive law underlines the importance still ascribed to a series of lectures delivered two centuries before.
This period of special interest might have been expected, although Blackstone’s work has never been consigned to the dustbin of outdated legal doctrine. Certainly none of the criticism the work has drawn has ever affected its commercial success. From the start, the clarity and utility of the Commentaries established the author’s fame and filled his pockets. His work became particularly famous in the United States. Before the establishment of American law schools, Blackstone’s Commentaries served as the most common source of literary instruction for young men seeking to become lawyers. Abraham Lincoln is said to have told a friend that he had “never read anything which so profoundly interested and thrilled me” as did Blackstone’s work. Generations of young men who were repelled by the principal alternative – the crabbed learning found in Sir Edward Coke’s commentary on Littleton’s Tenures – turned with joy and relief to this alternative. Even today, it is a source of praise for a sitting American judge that he requires his law clerks to become familiar with Blackstone’s Commentaries[2]. Critics have long pointed out that Blackstone’s lectures were too elementary to be useful to most practicing lawyers; they were meant for young gentlemen who had no intention of making a career in law, but might need to know something about the law in their own lives. That may be so, but whatever its limitations, the clarity of Blackstone’s prose, together its importance in having brought the study of the common law within the purview of the subjects taught at a university have long sparked interest in the Commentaries. The interest that began in 1970s only intensified a long-established pattern.
This year – more than a generation after the 1980s – another scholarly effort drawing attention to Blackstone’s Commentaries has appeared. It is a new edition. Organized by an Australian, Wilfrid Prest, also the author of a fine biography, William Blackstone: Law and Letters in the Eighteenth Century (2008), this new venture includes introductory essays by four others – a fellow Australian, and two from the United States and one from England (David Lemmings, Simon Stern, Tom Gallanis, and Ruth Paley). Each of them has contributed an introduction explaining something of the contents, adding their own assessments, and describing the contemporary reaction to their section of the Commentaries. Most significantly, they have also sought to provide an improved text and to stir up interest among twenty-first century readers in their subject. Whether the latter succeeds is a relevant question. The four volume set comes at a price that does not seem as exorbitant as it would have forty years ago ($195 hardback; $95 paperback), and together its volumes do make a handsome set. Even so, serviceable editions of Blackstone’s Commentaries are not scarce, and the resources at the disposal even of relatively prosperous law schools are coming under financial pressure. Is this new set worth buying? Is it worth reading?
The answer the first of these questions must depend on the value potential buyers place on the innovations introduced by the editors. They have taken several steps to improve on prior editions. They have put the text into modern type face. Thus “alſo” has become “also”. It is slightly easier to read. They have added their own page numbers, but also retained the old by placing them in the margins throughout. This has become the established usage, endorsed by the Uniform System of Citation, the so-called “Blue Book”. Perhaps it is just as well to have both. The editors have also added translations of almost all the many Latin phrases Blackstone left untranslated. He must have been confident in the fluency of his readers in what was once the lingua franca of scholarship. That day is long past. Now we have both. Some of these translations appear in the text itself; thus “confirmatio cartarum” has become “confirmatio cartarum [a confirmation of the charters]” (I, pp. 87). Others appear in new footnotes (e.g., III, p. 147, n. 3).
The editors have also added a Table of Statutes, a Table of Cases, and a relatively small number of purely informational footnotes, even while they have also preserved those that appeared in the editions as they left Blackstone’s hands. So, where Blackstone discussed the degrees of degree of consanguinity that linked King Henry VII to Richard III, for example, a new footnote alerts readers to the effect of Henry’s victory over Richard’s forces. It “ended the Wars of the Roses and inaugurated the Tudor dynasty” (II, p. 139, n. 2). They might profitably have gone further in these additions – a footnote reference to payment for “a pious expedition to Palestine” undertaken “against Saladine, emperor of the Saracens” informs readers that the term “Saracen” was “a term for Arabs or Muslims,” but it tells the reader nothing about the importance of the Saladin tithe in the history of English taxation (I, p 199, n. 6).
By far the most ambitious of the advances in these volumes is the creation of a variorum edition. The Commentaries were originally lectures at Oxford University, delivered over the course of some fifteen years and later revised for fresh printings of the text. As is true with lecturers in many eras, the chance to make changes proved irresistible to Blackstone. Eight different editions of Blackstone’s work appeared between 1765, the year of the first volume’s initial publication, and his death in 1780, after which a 9th edition was prepared by Richard Burn, incorporating additional changes suggested by Blackstone. What the editors have done is to take note of all the changes he made to his text over the course of those years. It must have been a time consuming task. Each change is now marked by a number in parentheses within the main text. Use of that number takes readers to a new section the end of each volume entitled Varia. There the editors have placed Blackstone’s editorial changes, given together with the original wording. Altogether, these variations occupy about 13% of the total number of pages required to print these volumes. The most extensive of them occur in the first and fourth books, the volumes devoted to the law of persons and the law of public wrongs. Each entry in the Varia section informs the reader of the edition in which Blackstone made a change and provides both texts. There were, it appears, few subtractions. Although he made changes is all his editions, once he made one, he seems to have stuck with it.
A majority of the changes found in the Varia amounted to minor variations in wording. They were tinkering. In speaking of goods in a house under lease that were subject to distraint by a lessor in order to collect unpaid rent, for example, Blackstone’s sixth change in the volume on Private Wrongs was to amend “to suspect that goods are concealed” to “to suspect that such goods are concealed” (III, pp. 7, 323). The reason for the change must have been to make clear that the goods subject to distraint were only those he had just described; they did not include anything a searcher might find. Other amendments – admittedly a minority – did add substantively to the original text. Of clarifying changes like this one, some contained necessary explanations, as one apparently added because of a possible confusion between legal bigamy and polygamy created by the canonical definition of bigamy (IV, pp. 107, 313-14, nn. 3-4). Others of these clarifying footnotes added supporting evidence from the past, apparently meant to bolster the original text’s argument (E.g., I, pp. 107, 313, n. 3). Still others took note of the changes in the law made by recently enacted statutes in order to bring the text up to date (E.g., II, pp. 276, 394, n. 23). And a few of the references added by Blackstone were meant to take readers either to the works of other writers or to additional cases or statutes in order to buttress the descriptions in Blackstone’s original text (E.g., I, 308, 379, n. 10). A slight warning about their contents is in order. The editors chose not to attempt improvements or make additions to Blackstone’s own footnotes. They take curious readers no farther than the changes that the author himself made. Apparently that was not task assigned to them. What they have done is simply to provide a complete text of the way Blackstone himself had decided it was should appear.
A second and related question raised by the appearance of these volumes is whether the Commentaries are still worth reading. Could there be a renaissance of interest in Blackstone like the one that started in the 1970s? Even in their new livery, the Commentaries state the law of the eighteenth century. A lot of it is obsolete. Do Blackstone’s efforts retain any utility? The new editors think so, and the possibility is not as far-fetched as it might seem. In fact, there is evidence to support their view. In 2015, Yale Law School sponsored a commemorative exhibition in honor of the 250th anniversary of publication of the Commentaries. A recent investigation of US Supreme Court cases between 2000 and 2012 has also demonstrated that citation to the Commentaries occurred in one of every thirteen decisions[3]. An online search of state appellate court decisions issued during the most recent twelve month period before its date, has shown that the decisions in sixty-three cases made use of the Commentaries. Reference to the online version of the Index to Legal Periodicals produces a similar result; in the years between 2011 and 2016 twenty-two articles making some use of Blackstone’s Commentaries have appeared. In fact one of them refers to and renews Duncan Kennedy’s insistence that a careful reading of them proves that there is a “fundamental contradiction that lay[s] at the core of Anglo-American law.”[4] The pattern of praise and blame continues.
The new edition may also spur further research. Reading the Commentaries sheds light on the character of English law before the establishment of legal positivism, and for that reason it may hold a special interest for scholars. A large part of Blackstone’s continued high reputation is attributable to his introduction of the English common law into the subjects studied at English Universities. This accomplishment should not, however, entirely obscure the cosmopolitan nature of his text. His Oxford degree was a BCL, a degree in the civil law, and Blackstone’s education seems to have had an effect on his lectures. When he needed names for anonymous persons to provide illustrative examples, he chose the names civilians used – Titius, Bertha, and Sempronius – rather than the common law equivalents – John Doe, Richard Roe and J. S. (e.g., II, p. 311). Similarly, he referred quite often to the texts of the Roman and canon law in his lectures, and also to more than a few learned legal works from outside England. The Swedish jurist Johan Stiernhöök seems to have been a favorite. One of the editors ascribes these references to “the sheer pleasure of finding analogies and contrasts” which Blackstone took in preparing his lectures (II, p. xx). High spirits, however, seem an unlikely explanation for so pervasive a choice on Blackstone’s part. A better explanation may lie in the assumptions he shared with other lawyers of his day: that English law and European law shared a common starting point in their recognition of the existence of the ius naturale, the ius gentium, and the ius divinum. Only the municipal law divided them. Most of the Commentaries is devoted to municipal law, of course. But not all. There is more to be done with this subject, and certainly with other subjects too. This new edition may help to inspire such efforts, as new editions have done in the past.
Posted on 20 October 2017
R.H. HELMHOLZ is Ruth Wyatt Rosenson Distinguished Service Professor of Law at the University of Chicago Law School.
[1] Duncan Kennedy, The Structure of Blackstone’s Commentaries, 28 Buffalo L. Rev. 205 (1979), 205-382.
[2] Allen Mendenhall, Op-Ed., The Roy Moore I Know, Wall St. J., Sept. 29, 2017, at A15.
[3] Jessie Allen, “Reading Blackstone in the Twenty-First Century and the Twenty-First Century through Blackstone,” in Re-Interpreting Blackstone’s Commentaries: A Seminal Text in National and International Contexts, Wilfrid Prest ed. 215, at 217 (2014).
[4] Paul Baumgardner, “The Fundamental Contradiction Redux? Liberty, Coercion, and American Legal Development,” 42 Law & Social Inquiry 924, 928 (2017).
