William Blackstone
Member of Parliament for Hindon | |
---|---|
In office 30 March 1761 – 1768 | |
Preceded by | James Calthorpe |
Succeeded by | John St Leger Douglas |
Personal details | |
Born | Tory | 10 July 1723
Spouse |
Sarah Clitherow (m. 1761) |
Children | 8 |
Education | Pembroke College, Oxford Middle Temple |
Signature | |
Sir William Blackstone (10 July 1723 – 14 February 1780) was an English
On 20 October 1759 Blackstone was confirmed as the first
Blackstone's four-volume Commentaries were designed to provide a complete overview of English law and were repeatedly republished in 1770, 1773, 1774, 1775, 1778 and in a posthumous edition in 1783. Reprints of the first edition, intended for practical use rather than antiquary interest, were published until the 1870s in England and Wales, and a working version by Henry John Stephen, first published in 1841, was reprinted until after the
Early life and education
Blackstone was the fourth and posthumous son of Charles Blackstone, a silk mercer from Cheapside,[4] the son of a wealthy apothecary. He became firm friends with Thomas Bigg, a surgeon and the son of Lovelace Bigg, a gentleman from Wiltshire.[5] After Bigg's sister Mary came to London, Charles eventually persuaded her to marry him in 1718. This was not seen as a good match for her, but the couple lived happily and had four sons, three of whom lived into adulthood.[6] Charles (born August 1719) and Henry (May 1722), both became fellows of New College, Oxford, and took holy orders. Their last son, William, was born on 10 July 1723, five months after Charles' death in February.[7]
Although Charles and Mary Blackstone were members of the
Blackstone revelled in Charterhouse's academic curriculum, particularly the Latin poetry of Ovid and Virgil. He began to attract note as a poet at school, writing a 30-line set of rhyming couplets to celebrate the wedding of James Hotchkis, the headmaster. He also won a silver medal for his Latin verses on John Milton, gave the annual Latin oration in 1738,[12] and was noted as having been the favourite student of his masters.[13] On 1 October 1738, taking advantage of a new scholarship available to Charterhouse students, Blackstone matriculated at Pembroke College, Oxford.[14]
Oxford
Study
There are few surviving records of Blackstone's undergraduate term at Oxford, but the curriculum of Pembroke College had been set out in 1624, and Prest notes that it was probably still followed in 1738, so Blackstone would have studied Greek, science, logic, rhetoric, philosophy, mathematics, geography and poetry.[15] Blackstone was particularly good at Greek, mathematics and poetry,[16] with his notes on William Shakespeare being included in George Steevens' 1781 edition of Shakespeare's plays.[14] Many of Blackstone's undergraduate texts survive, and they include few legal texts, instead being wide-ranging; politics, current affairs, poetry, geometry and controversial theological texts.[17] The last element is understandable, given his family's theological interests, but the more surprising element is the sheer number of texts he owned given his relative poverty as a student.[18]
On 9 July 1740, after only a year and a half as a Bachelor of Arts student, Blackstone was admitted to study for a Bachelor of Civil Law degree, civil law being the only legal area recognised by his university. This degree course was seven years long, the first two "supposedly devoted to a broad course of reading in humane studies", which allowed him to study his own interests.[19] On 20 November 1741 he was admitted to the Middle Temple,[20] the first step on the road to becoming a barrister, but this imposed no obligations and simply allowed a legal career to be an option.[21] At the time there was no proper legal education system, and Blackstone read (in his own time) Coke on Littleton, the works of Henry Finch, and related legal tracts.[22]
In addition to his formal studies, Blackstone published a collection of poetry which included the draft version of The Lawyer to his Muse, his most famous literary work. In 1743 he published Elements of Architecture and An Abridgement of Architecture, two treatises on the rules governing the art of construction.
His call to the Bar saw Blackstone begin to alternate between Oxford and London, occupying chambers in Pump Court but living at All Souls College. As the central courts only sat for three months of the year, the rest of his time was spent on Assize when his work at All Souls permitted. He regularly acted as a law reporter; his personal notes on cases start with Hankey v Trotman (1746).[27] Blackstone's barrister practice began slowly; his first case in the Court of King's Bench was in 1748, and he had only 6 additional motions there through 1751. Two appearances in the Court of Chancery are also noted, and he is known to have been consulted in Roger Newdigate's long-running lawsuit there, but his early court appearances are infrequent.[28] This is considered to have been due to his call to the Bar occurring at the same time as the massive contraction in business by the central courts, along with his singular lack of connections due to his status as an orphan from the middle class; he was described as "unrecognised and unemployed".[29] He filled his time by acting as counsel for Oxford, and from May 1749 with his election as Recorder of Wallingford.[30]
University administration
While dividing his time, Blackstone became an administrator at All Souls, securing appointment as accountant, treasurer and bursar on 28 November 1746.[31] Completion of the Codrington Library and Warton Building, first started in 1710 and 1720 respectively but not built until 1748, is attributed to his work.[32][33] In 1749 he became Steward of the Manors, and in 1750 was made Senior Bursar. Records show a "perfectionist zeal" in organising the estates and finances of All Souls, and Blackstone was noted for massively simplifying the complex accounting system used by the college.[34] In 1750 Blackstone completed his first legal tract, An Essay on Collateral Consanguinity, which dealt with those claiming a familial tie to the founder or All Souls in an attempt to gain preeminence in elections.[35] Completion of his Doctor of Civil Law degree, which he was awarded in April 1750, admitted him to Convocation, the governing body of Oxford, which elected the two burgesses who represented it in the House of Commons, along with most of the university officers.[36] With this and with his continuing work at the university, Blackstone announced on 3 July 1753 his intentions to "no longer attend the Courts at Westminster, but to pursue my Profession in a Way more agreeable to me in all respects, by residing at Oxford [and] to engraft upon this Resolution a Scheme which I am told may be beneficial to the University as well as myself",[37] which was to give a set of lectures on the common law – the first lectures of that sort in the world.[38]
This was not entirely out of benevolence; according to Prest, Blackstone was likely aware that an Oxford alumnus,
Following his lecture series, Blackstone became more prominent in convocation and other university activities. Oxford and Cambridge at the time had a strange system of law; due to their unique natures, they had exclusive jurisdiction over both academics and students in a fashion which followed either the common law or their own customs, based on the civil law.[45] With his appointment as assessor (or chief legal officer) of the Chancellor's Court, Blackstone became far more involved in the university's peculiar legal system, and records show him sitting between eight and ten times a year from 1753 to 1759, mainly dealing with small claims of debt.[46] He also wrote a manual on the Court's practice, and through his position gained a large number of contacts and connections, as well as visibility, which aided his legal career significantly.[47] This period also saw Blackstone write his last known piece of poetry, Friendship: An Ode, in 1756.[48]
In 1756 Blackstone published the first of his full legal texts, the 200 page
Vinerian Professor of English Law
On 8 March 1758, the group executing Charles Viner's
This suit, along with the struggle over the Vinerian Professorship and other controversies, damaged his reputation within the university, as evidenced by his failure to win election as
London
Work at the Bar
With sponsorship from the Prince of Wales and his success with the Analysis, Blackstone began work as a barrister, although he kept up his lecture series at Oxford. By 1760 he had become "a very eminent figure indeed in the world of letters", and his legal practice grew as a result. Although not considered a great barrister of the period, he maintained a steady flow of cases, primarily in the King's Bench and
In February 1761 Blackstone was considered as a potential
With this increase in his practice, Blackstone also saw an increase in his out-of-court work, writing opinions and recommendations for various Oxford colleges, the MP
Commentaries on the Laws of England
In 1765 Blackstone announced his resignation from the
Blackstone's treatise was republished in 1770, 1773, 1774, 1775, 1778 and in a posthumous edition in 1783.
Judge
Even after the publication of the Commentaries, Blackstone's chances of judicial appointment remained slim. While he was old enough, experienced enough and widely respected, the presence of Lord Camden as Lord Chancellor and Blackstone's lack of aristocratic patrons at the time hindered his chances. In January 1770, however, Lord Grafton's government began to fall, with Camden resigning on 17 January and
On 9 February 1770 – apparently with the intervention of the King, and possibly
Blackstone returned to the Common Pleas on 25 June 1770, having spent less than six months in the King's Bench;[93] Jeremy Bentham asserted that this was due to Mansfield's having Blackstone removed similarly to his removal of Yates. Bentham asserted that in the King's Bench, Blackstone was "always in hot water", and that there was "heartburning" between the two; Bentham's account is considered dubious because historically, Mansfield and Blackstone had an excellent relationship, with the third volume of the Commentaries describing Mansfield as "a judge, whose masterly acquaintance with the law of nations was known and revered by every state in Europe".[94] There is only one recorded King's Bench case, R v Proprietors of Birmingham Canal Navigation, in which Blackstone and Mansfield disagreed.[95]
In the Common Pleas, Blackstone operated under a civil jurisdiction rather than a mixed civil and criminal one. This played to his strengths, and many of his decisions are considered farsighted; the principle in Blaney v Hendricks, for example, that interest is due on an account where money was lent, which anticipated Section 3 of the
Death
Blackstone had long suffered from
Legacy
Blackstone's primary legacy is his written work, specifically the Commentaries on the Laws of England. In England and America the Commentaries became the basis of university legal education.[1] Demand for reprinted, abridged and translated versions was "almost inexhaustible" in the 18th and 19th centuries, although the Commentaries' emphasis on the sovereignty of Parliament drew ire. Alexis de Tocqueville described Blackstone as "an inferior writer, without liberality of mind or depth of judgment".[103] Other commentators differ; one described him as "the core element in the British Enlightenment", comparing him to Montesquieu, Beccaria and Voltaire.[104] Academics have said that the Commentaries were crucial in changing English Law from a system based on actions to a system of substantive law.[105] At the time of publication, the common law of England was still, in some ways, in its infancy, with people uncertain as to what the law was. The Commentaries helped to solidify legal thinking.[106] At the same time, legal education had stalled, and Blackstone's work gave the Law "at least a veneer of scholarly respectability".[2] William Searle Holdsworth, one of Blackstone's successors as Vinerian Professor, argued that "if the Commentaries had not been written when they were written, I think it very doubtful that [the United States], and other English speaking countries would have so universally adopted the [common] law".[3]
The Commentaries had a particular influence in the United States;
Within United States academia and practise, as well as within the judiciary, the Commentaries had a substantial impact; with the scarcity of law books on the frontier, they were "both the only law school and the only law library most American lawyers used to practise law in America for nearly a century after they were published".[111] Blackstone had drawn up a plan for a dedicated School of Law, and submitted it to the University of Oxford; when the idea was rejected he included it in the Commentaries. It is from this plan that the modern system of American law schools comes.[2] Subscribers to the first edition of Blackstone, and later readers who were profoundly influenced by it, include James Iredell, John Marshall, James Wilson, John Jay, John Adams, James Kent and Abraham Lincoln.[112]
In the early 1920s the American Bar Association presented a statue of Blackstone to the English Bar Association; however, at the time, the sculpture was too tall to be placed in the Royal Courts of Justice in London. The sculpture, designed by Paul Wayland Bartlett was eventually cast in Europe and presented back to the US for display. Congress approved the placement of the sculpture in Washington, D.C., on 15 March 1943, and appropriated $10,000 for the installation. The bronze statue is a nine-foot (2.7 m) standing portrait of Blackstone wearing judicial robes and a long curly wig, holding a copy of Commentaries. It is placed on a tall granite base and stands on Constitution Avenue and 3rd Street NW.[113][114] The town of Blackstone, Virginia, is named after him.[115]
The North Wall Frieze in the courtroom of the Supreme Court of the United States depicts William Blackstone, as one of the most influential legal commentators in world history.[116]
Blackstone's Ratio or Blackstone's Formulation
Among the most well-known of Blackstone's contributions to judicial theory is his own statement of the principle that it "is better that ten guilty persons escape than that one innocent suffer".[117]
While this argument originates at least as far back as Genesis 18:23–32 in the Bible,[118][119] as well as versions by Maimonides[118][120][121] and Sir John Fortescue,[122] Blackstone's analysis is the one picked up by Benjamin Franklin[123] and others, so that the term has become known as "Blackstone's Ratio".[118]
As John Adams, having studied Blackstone,[124] put it:
It is more important that innocence should be protected, than it is, that guilt be punished; for guilt and crimes are so frequent in this world, that all of them cannot be punished.... when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, 'it is immaterial to me whether I behave well or ill, for virtue itself is no security.' And if such a sentiment as this were to take hold in the mind of the subject that would be the end of all security whatsoever.[125]
Blackstone's Ratio is a maxim of English law, having been established as such within a few decades of Blackstone's work being published.[126] It is also cited in courts and law in the US, and is strongly emphasised to American law students.[127]
Criticism
English jurist
Works
- Elements of Architecture (1743)
- An Abridgement of Architecture (1743)
- The Pantheon: A Vision (1747)
- An Analysis of the Laws of England (1756)
- A Discourse on the Study of the Law (1758)
- The Great Charter and the Charter of the Forest, with other authentic Instruments (1759)
- A Treatise on the Law of Descents in Fee Simple (1759)
- Commentaries on the Laws of England (1765–1769)
- Reports in K.B. and C.P., from 1746 to 1779 (1781)
See also
- US Constitution, influences
References
- ^ a b "Sir William Blackstone | English jurist | Britannica". www.britannica.com. Retrieved 25 April 2023.
- ^ a b c d Miles (2000) p. 57
- ^ a b Holdsworth (1928) p. 157
- ^ Doolittle (1983) p. 100
- ^ Lockmiller (1938) p. 3
- ^ Odgers (1918) p. 599
- ^ Prest (2008) p. 13
- ^ Prest (2008) p. 15
- ^ de Montmorency (1917) p. 46
- ^ Prest (2008) p. 21
- ^ To recognize the Blackstone heritage at the school, in 1987 Charterhouse created the Sir William Blackstone Award, a scholarship for the son of a lawyer."Professional News – Sir William Blackstone award". Law Society Gazette. Law Society. 21 October 1987.
- ^ Lockmiller (1938) p. 8
- ^ Prest (2008) pp. 24–25
- ^ a b Odgers (1918) p. 600
- ^ Prest (2008) p. 34
- ^ Lockmiller (1938) p. 10
- ^ Prest (2008) p. 37
- ^ Prest (2008) p. 39
- ^ Prest (2008) p. 40
- ^ Odgers (1918) p. 601
- ^ Prest (2008) p. 41
- ^ Lockmiller (1938) pp. 16–17
- ^ Prest (2008) p. 44
- ^ Prest (2008) p. 47
- ^ Holdsworth (1932) p. 261
- ^ Odgers (1918) p. 602
- ^ Lockmiller (1938) p. 19
- ^ Prest (2008) p. 71
- ^ Lockmiller (1938) p. 24
- ^ Prest (2008) p. 73
- ^ Lockmiller (1938) p. 25
- ^ Prest (2008) p. 76
- ^ Holdsworth (1928) p. 156
- ^ Prest (2008) p. 83
- ^ Lockmiller (1938) p. 29
- ^ Prest (2008) p. 96
- ^ Prest (2008) p. 107
- ^ Holdsworth (1932) p. 262
- ^ Prest (2008) p. 108
- ^ Lockmiller (1938) pp. 37–38
- ^ Prest (2008) p. 112
- ^ Prest (2008) p. 114
- ^ Prest (2008) p. 115-7
- ^ Simpson (1981) p. 652
- ^ Prest (2008) p. 119
- ^ Prest (2008) p. 120
- ^ Prest (2008) p. 121
- ^ Prest (2008) p. 139
- ^ a b Prest (2008) p. 143
- ^ a b Prest (2008) p. 144
- ^ Cairns (1984) p. 340
- ^ Prest (2008) p. 150
- ^ Prest (2008) p. 151
- ^ Prest (2008) p. 152
- ^ Prest (2008) p. 153
- ^ Prest (2008) p. 154
- OCLC 4547269.
- ^ Prest (2008) p. 159
- ^ Prest (2008) p. 161
- ^ Prest (2008) p. 163
- ^ Prest (2008) pp. 164–5
- ^ Prest (2008) p. 168
- ^ Prest (2008) pp. 176–7
- ^ Prest (2008) p. 179
- ^ Prest (2008) p. 208
- ^ Prest (2008) p. 211
- ^ Prest (2008) p. 181
- ^ Prest (2008) p. 182
- ^ Prest (2008) p. 185
- ^ Prest (2008) p. 188
- ^ Prest (2008) p. 195
- ^ Prest (2008) p. 200
- ^ Prest (2008) p. 201
- ^ Prest (2008) p. 206
- ^ Prest (2008) p. 212
- ^ Prest (2008) p. 214
- ^ Prest (2008) p. 217
- ^ Prest (2008) p. 220
- ^ Prest (2008) p. 246
- ^ Prest (2008) p. 235
- ^ Prest (2008) p. 287
- doi:10.1093/ref:odnb/26372. (Subscription or UK public library membershiprequired.)
- ^ Milsom (1991) p. 1
- ^ Alschuler (1994) p. 896
- ^ Prest (2008) p. 254
- ^ Doolittle (1983) p. 101
- ^ a b Prest (2008) p. 255
- ^ Waterman (1934) p. 554
- ^ Prest (2008) p. 260
- ^ Prest (2008) p. 262
- ^ Prest (2008) p. 263
- ^ Katz, Stanley N., "Introduction," Sir William Blackstone, Commentaries on the Law of England, Vol. I (reprinted), University of Chicago Press, 1979. p. v
- ^ Sainty (1993) p.81
- ^ Waterman (1934) p. 555
- ^ Hanbury (1959) p. 2
- ^ Hanbury (1959) p. 5
- ^ Hanbury (1959) p. 14
- ^ Prest (2008) p. 301
- ^ Prest (2008) p. 302
- ^ Prest (2008) p. 303
- ^ Laeuchli, Ann Jordan. A bibliographical catalog of William Blackstone. Buffalo, N.Y. : Published for Yale Law Library by William S. Hein & Co., 2015. p. 408-409
- ^ Prest (2008) p. 304
- ^ Prest (2008) p. 307
- ^ Prest (2008) p. 308
- ^ Cairns (1984) p. 319
- ^ Miles (2000) p. 46
- ^ Bader (1995) p. 7
- ^ Bader (1995) p. 6
- ^ Bader (1995) p. 8
- ^ Alschuler (1994) p. 898
- ^ Miles (2000) p. 56
- ^ Alschuler (1994) p. 897
- ^ Smithsonian (1993). "Sir William Blackstone, (sculpture)". Save Outdoor Sculpture. Smithsonian.
- ^ Holdsworth (1928) p. 163
- ^ "Visit Downtown Blackstone Virginia". Downtown Blackstone Inc. Archived from the original on 14 April 2013. Retrieved 4 April 2015.
- ^ "US Supreme Court Courtroom Friezes" (PDF). Retrieved 19 February 2019.
- ^ "Sir William Blackstone". Britannica. Retrieved 29 April 2015.
- ^ a b c "n Guilty Men", 146 University of Pennsylvania Law Review 173, Alexander Volokh, 1997.
- ^ Why Terrorism Works: Understanding the Threat, Responding to the Challenge, Yale University Press, Alan M. Dershowitz, 2003
- ^ Moses Maimonides, The Commandments, Neg. Comm. 290, at 269–271 (Charles B. Chavel trans., 1967).
- ISBN 978-1-58330-732-8. Retrieved 22 October 2010.
- ^ Court, United States Supreme (12 September 1901). "United States Supreme Court Reports". LEXIS Law Pub. – via Google Books.
- ^ 9 Benjamin Franklin, Works 293 (1970), Letter from Benjamin Franklin to Benjamin Vaughan (14 March 1785)
- ^ Blackstone in America Lectures by An English Lawyer Become The Blueprint for a New Nation's Laws and Leaders
- ^ The Trial of the British Soldiers, of the 29th Regiment of Foot, for the Murder of Crispus Attucks, Samuel Gray, Samuel Maverick, James Caldwell, and Patrick Carr, on Monday Evening, March 5, 1770. Printed and pub. by Belcher and Armstrong, No. 70, State st. 12 September 1807. p. 83 – via Internet Archive.
innocence should be protected, than it is, that guilt should be punished.
- ^ Re Hobson, 1 Lew. C. C. 261, 168 Eng. Rep. 1034 (1831) (Holroyd, J.).
- ^ G. Tim Aynesworth, An illogical truism, Austin Am.-Statesman, 18 April 1996, at A14. Specifically, it is "drilled into [first year law students'] head[s] over and over again." Hurley Green Sr., Shifting Scenes, Chi. Independent Bull., 2 January 1997, at 4.
- JSTOR 1113015.
Bibliography
- Blackstone and his critics. Anthony Page, Wilfrid R. Prest. Oxford. 2018. OCLC 1012615943.)
{{cite book}}
: CS1 maint: location missing publisher (link) CS1 maint: others (link - Alschuler, Albert (1994). "Sir William Blackstone and the shaping of American law". New Law Journal. 144 (6653). ISSN 0306-6479.
- Alschuler, Albert (1996). "Rediscovering Blackstone". University of Pennsylvania Law Review. 145 (1): 1–55.
- Bader, William D. (1995). "Some Thoughts on Blackstone, Precedent and Originalism". Vermont Law Review. 19 (5). ISSN 0145-2908.
- Cairns, J. (1984). "Blackstone, An English Institutist: Legal Literature and the Rise of the Nation State". Oxford Journal of Legal Studies. 4 (1): 318–360. ISSN 0143-6503.
- Doolittle, I.G. (1983). "Sir William Blackstone and his Commentaries on the Laws of England (1765–9): a Biographical Approach". Oxford Journal of Legal Studies. 3 (1): 99–112. ISSN 0143-6503.
- Hanbury, Harold G. (1959). "Blackstone as a Judge". American Journal of Legal History. 3 (1): 1–27. JSTOR 844140.
- Holdsworth, W.S. (1928). "Sir William Blackstone". Oregon Law Review. 7 (1). ISSN 0196-2043.
- Holdsworth, W.S. (1932). "Some Aspects of Blackstone and His Commentaries". Cambridge Law Journal. 4 (3): 261–285. S2CID 144719136.
- Hutchinson, John (1902). . A catalogue of notable Middle Templars, with brief biographical notices (1 ed.). Canterbury: the Honourable Society of the Middle Temple. p. 22.
- Laeuchli, Ann Jordan. (2015). A bibliographical catalog of William Blackstone. Yale Law Library by William S. Hein & Co. OCLC 885030816.
- Lockmiller, David A. (1938). Sir William Blackstone. University of North Carolina Press. OCLC 1097575.
- Miles, Albert S. (2000). "Blackstone and his American Legacy". Australia & New Zealand Journal of Law and Education. 5 (2). ISSN 1327-7634.
- Milsom, S.F.C. (1991). "The Nature of Blackstone's Achievement". Oxford Journal of Legal Studies. 1 (1). ISSN 0143-6503.
- de Montmorency, J.E.G. (1917). "Sir William Blackstone". Journal of the Society of Comparative Legislation. 17 (1). ISSN 1479-5973.
- Odgers, William Blake (1918). "Sir William Blackstone". Yale Law Journal. 27 (1): 599–618. JSTOR 786216.
- Prest, Wilfrid (2008). William Blackstone: Law and Letters in the Eighteenth Century. Oxford University Press. ISBN 978-0-19-955029-6.
- Sainty, John (1993). The Judges of England 1272 -1990: a list of judges of the superior courts. Oxford: OCLC 29670782.
- Simpson, A.W.B. (1981). "The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature". The University of Chicago Law Review. 48 (3): 632–679. JSTOR 1599330.
- Waterman, Julian S. (1934). "Mansfield and Blackstone's Commentaries". The University of Chicago Law Review. 1 (4): 549–571. JSTOR 1596998.
External links
- Sir William Blackstone at the Eighteenth-Century Poetry Archive (ECPA)
- William Blackstone at Curlie
- Works by William Blackstone at Project Gutenberg
- Works by or about William Blackstone at Internet Archive
- Works by William Blackstone at LibriVox (public domain audiobooks)
- The Commentaries online at Archive.Org