WILLIAM BLACKSTONE: LAW AND LETTERS IN THE EIGHTEENTH CENTURY, by Wilfrid Prest. Oxford: Oxford University Press, 2008. 376pp. Cloth. £29.99/$65.00. ISBN: 9780199550296.
BLACKSTONE AND HIS COMMENTARIES: BIOGRAPHY, LAW, HISTORY, edited by Wilfrid Prest. Oxford, England, and Portland, Oregon: Hart Publishing, 2009. 280pp. Cloth. £50.00/$100.00. ISBN: 9781841137964.
Reviewed by R. B. Bernstein, New York Law School. Email: rbernstein [at] nyls.edu.
Sir William Blackstone (1723-1780) is best known as author of the COMMENTARIES ON THE LAWS OF ENGLAND. The COMMENTARIES became a classic of legal literature virtually on publication and remain so to this day; indeed, they rival Edward Gibbon’s HISTORY OF THE DECLINE AND FALL OF THE ROMAN EMPIRE as the most influential work of scholarship in English produced during the Age of Enlightenment.
By contrast with the DECLINE AND FALL, which is pervaded by Gibbon’s personality as well as his scholarship, the COMMENTARIES have long overshadowed their author. Sadly, the conventional modern understanding of Blackstone as a thinker and historical figure owes far more to his foes than to his own writings. Caricatures penned by such of his intellectual foes as Jeremy Bentham and Thomas Jefferson skewer Blackstone as a complacent apologist for the established order (with all its failings intact) and as a failed barrister who embodies the old quip, “Those who can’t do, teach.” Even Blackstone’s would-be eulogist, his brother-in-law James Clitherow, did not help matters by swathing him in conventional pieties and blandly and tersely sketching his antecedents, character, and personality. In his only passages casting light on Blackstone’s character, Clitherow reluctantly acknowledged Blackstone’s short temper and his forbidding manner, then sought to explain these traits away.
Blackstone’s life is easily sketched. Born in 1723, William Blackstone was the posthumous fourth child of Charles Blackstone, a relatively unsuccessful London tradesman, and of Mary Bigg Blackstone, who with courage and determination carried on her husband’s business and raised Blackstone and his two surviving older brothers. Educated at Charterhouse School (where he was a scholarship student under the patronage of Sir Robert Walpole) and at Pembroke College, Oxford, he won a fellowship to All Souls College, Oxford, in 1743 (on his second try); three years later, in 1746, he was called to the bar as a barrister at the Middle Temple. During this period he published occasional verses and a treatise on the history and administration of All Souls College; he also prepared a manuscript outlining the field of architecture which he did not publish. Several years as a relatively unsuccessful barrister (apparently owing to his lack of distinction as a public speaker) intertwined with his work as a fellow and administrator of All Souls. In 1753, [*528] he quitted London for Oxford and began a series of private law lectures that proved both popular and remunerative. In 1758, based on his growing reputation as a lecturer, he was elected the first Vinerian Professor of Law at Oxford, a post he held until 1766. The year 1761 witnessed three landmarks in his life – his marriage to Sarah Clitherow; his election to Parliament as a member for Hindon (serving until 1768, when he was elected a member for Westbury, serving until 1770); and his becoming principal of New Inn Hall (now St. Peter’s College, Oxford – a post he held until 1766). Between 1765 and 1769 Blackstone published his Commentaries. In 1770 he was knighted and named a puisne justice of the Court of Common Pleas, serving until his death in 1780.
Few previous biographers chronicled Blackstone’s life, owing principally to the lack of primary sources. There is no great cache of Blackstone diaries, correspondence, or private papers from which to construct a biography. Indeed, it is a cliché that Blackstone was either unknowable or (at best) a dull man whose life is best approached through his outstanding achievement. For generations scholars concluded that a true biography of Blackstone – one setting his life and thought in the historical, social, legal, literary, and cultural contexts that shaped him and his work – would be impossible. And yet, thanks to the tireless labor, skillful historical detective work, and literary craftsmanship of Wilfred Prest, we now have that book.
A professor emeritus of history and law at the University of Adelaide, Prest is best known for his studies of English history in the seventeenth and eighteenth centuries, stressing the history of law and the legal profession; this expertise undergirds his decision to write a life of Blackstone. William Blackstone: LAW AND LETTERS IN THE EIGHTEENTH CENTURY presents a persuasive, nuanced portrait of its subject grounded on admirably thorough research. Prest has examined virtually every surviving scrap of paper having to do with Blackstone’s life, professional activities, legal practice, judicial service, and intellectual labors; even more impressive than his industry, he has distilled the fruits of his research in a learned, accessible, and rigorously-argued biography. Prest’s book illuminates not only Blackstone’s life and significance but also the intellectual history of eighteenth-century England, maintaining with justice that we can best understand Blackstone as a distinguished English exemplar of the Age of Enlightenment. As Prest demonstrates, Blackstone’s evolution as a lawyer and jurist exemplified the qualities of thought and creativity associated with the English Enlightenment, with these qualities finding their ultimate expression in the COMMENTARIES.
In Prest’s account, Blackstone’s early interests in architecture, history, poetry, and literature all combined to shape his greatest intellectual project, the COMMENTARIES; for example, Prest notes how Blackstone’s knowledge of architecture, rooted in his early and abiding love of the subject, shaped and enriched his later use of architectural metaphors in expounding on English law. Writing with clarity and measured elegance, Prest restores Blackstone’s intellectual stature and casts new light on the relationship between his lectures on [*529] English law at Oxford University and his recasting of those lectures as the COMMENTARIES. For example, Prest links Blackstone’s series of lectures on law to similar uses of the lecture form in the fields of science, religion, and philosophy, noting how the lecture form of exposition was one of the most popular forms of useful entertainment in eighteenth-century England, while showing also that delivering a series of lectures such as those that Blackstone undertook required “exceptional energy and initiative” – qualities that Blackstone possessed in ample measure (p.112). Further, Prest notes Blackstone’s determination to cast his lectures and the books that resulted from them as “a broadly humane, liberal, and ‘scientific’ overview, far removed from the arid, inchoate technicalities, the ‘mystic, dark, discordant lore’ of traditional common-law learning” (p.113). One measure of Prest’s success is that, as the reader progresses through his pages, the moment when Blackstone proposes to launch the series of lectures on the common law leading to his COMMENTARIES comes as a surprise.
In 2002, the late Roy Porter published his path-breaking THE CREATION OF THE MODERN WORLD: THE UNTOLD STORY OF THE BRITISH ENLIGHTENMENT (2002). Building on his insistence (in a breathtaking body of earlier scholarship) that the Enlightenment is best seen as varying from nation to nation, Porter argued that the English Enlightenment was devoted not only to understanding but celebrating and justifying the existing order – unlike the French Enlightenment, whose leading figures, philosophes such as Voltaire, Rousseau and Montesquieu, were bent on subjecting “things as they are” to close, even-tempered, and devastating scrutiny in the interests of reform. If Porter’s justly-acclaimed work had one fault, it was that Porter (by his own admission) scanted law and constitutionalism in his dense yet lively re-examination of the intellectual history of eighteenth-century England. Porter would have welcomed Prest’s life of Blackstone as a further demonstration of the soundness of his interpretation of the Enlightenment in the United Kingdom.
As a companion to this fine biography, Prest has also edited BLACKSTONE AND HIS COMMENTARIES: BIOGRAPHY, LAW, HISTORY, a symposium volume based on a conference that he organized in 2007 at the University of Adelaide. The scholars whose work is gathered in these pages valuably complement and extend Prest’s biographical enterprise.
The book is divided into four sections – Life, Thought, Influence, and Source. “Life” begins with Prest’s distilled survey of previous attempts to write Blackstone’s life and how they illuminate changing views of their subject and of the purposes of intellectual and legal biography. Carol Matthews, who teaches in the School of History and Politics at the University of Adelaide, examines the role of architecture in Blackstone’s intellectual life and, in particular, in his creation of his COMMENTARIES, drawing on her 2007 doctoral dissertation (whose influence Prest acknowledges in his own work). Norma Aubertin-Potter, Librarian-in-Charge of the Codrington Library at All Souls College, Oxford, elucidates the long relationship between Blackstone and All Souls, noting the jurist’s devotion to the college, his [*530] assumption of administrative duties, and his writings on its history and administration. Finally, the attorney Ian Doolittle, whom Prest has praised for his pioneering investigation of Blackstone’s life and work, contributes a fine short essay, “William Blackstone and William Prynne: An Unlikely Association?”, in which Doolittle examines the significance for Blackstone of the Puritan lawyer, historian, antiquary, and polemicist William Prynne (1600-1669), whose example of scholarly and intellectual industry may have guided Blackstone’s activities in the 1750s and 1760s.
”Thought,” begins with a characteristically learned and iconoclastic essay by John H. Langbein, Sterling Professor of Law and Legal History at Yale Law School, on Blackstone on judging. Challenging the authority of Blackstone’s COMMENTARIES, Langbein disputes Blackstone’s over-idealized vision of the ways that common-law judges performed the tasks of judging. John V. Orth, the William Rand Kenan, Jr., Professor of Law at the University of North Carolina, concentrates on a specific aspect of Blackstone’s view of judging, that of statutory construction, acknowledging that on this thorny and complex subject, Blackstone lagged behind some of his legal and jurisprudential contemporaries in his grasp of statutory interpretation. The next two essays, by Mary Sokol (holder of an honorary research fellowship at the Bentham Project at University College London) and Tom Stretton (who teaches history at St. Mary’s University, Halifax, Nova Scotia), are complementary investigations of Blackstone’s ideas about marriage and husbands’ and wives’ legal roles. Sokol maps the similarities and differences in Blackstone’s and Bentham’s approaches to the legal institution of marriage and the legal rights and responsibilities of husbands and wives, whereas Stretton assesses Blackstone’s emphasis on the central role of coverture in understanding the legal significance and import of marriage. This part concludes with the work of two Australian legal scholars, suggesting how Blackstone scholarship responding to the conditions of the legal periphery may offer new insights and illuminations. Thalia Anthony, who teaches law at the University of Sydney, assesses ideas of colonialism in Blackstone’s COMMENTARIES and their significance for legal issues affecting leaseholds of Australian property long ago granted by the British Crown. Nicole Graham, senior lecturer in the Faculty of Law, School of Technology, University of Sydney, revisits a central concern of Blackstone’s writing – the law of real property – with the purpose of teasing out lessons of Blackstone’s subtle and nuanced understanding of the relation between a territory’s physical, social, and economic conditions and its law of property for an era when concern for natural resources and environmental quality are coming to the fore.
“Influence” presents three essays evaluating the influence of Blackstone’s work as jurist on law in the United States, France, and Germany. Michael Hoeflich, John H. and John M. Kane Distinguished Professor of Law at the University of Kansas, examines the many American lawyers and legal thinkers who adapted and updated Blackstone’s COMMENTARIES for successive generations of American [*531] lawyers and judges; his essay is the first comprehensive overview of the American bibliography of Blackstone, interweaving his survey of American editions of the COMMENTARIES with the purposes pursued by Blackstone’s American editors, publishers, and readers. John Emerson, Visiting Research Fellow at the University of Adelaide School of Law, pushes beyond the conventional disdain for Blackstone voiced by French legal and jurisprudential commentators to trace the selective interest and growing appreciation for Blackstone’s work in France in the nineteenth and twentieth centuries. Finally, Horst Dippel, Professor of British and American Studies at the University of Kassel, recounts the evolution of German understandings of Blackstone and his work from the late eighteenth century to the dawn of the twenty-first century.
“Sources,” offers two essays. Morris Cohen, a professor emeritus at Yale Law School and the former law librarian of Yale and Harvard, offers a thorough, enlightening treatment of past and present assessments of the bibliography of Blackstone and his Commentaries; his essay provides a road-map for understanding the evolution of Blackstone as subject of legal and historical research and for conducting further research. Sir John Baker, Downing Professor of the History of the Laws of England at Cambridge University and literary director of the Selden Society, presents the first of two essays on the iconography of Blackstone, focusing on “Likenesses: Portraits and Engravings” and showing that, in addition to his remarkable scholarship in legal history, he is also a skilled historian of art. Complementing his essay is Wilfrid Prest’s treatment of “Images: Statues and Stained Glass,” showing how Blackstone has become a key character in of the folk-history of Anglo-American law as the subject of statues and stained-glass windows in such venues as courthouses and law schools.
These excellent books form the foundation for any future scholarship on Blackstone and his COMMENTARIES – but one odd omission puzzled me. Most American historians of law are familiar with Daniel J. Boorstin’s first book, THE MYSTERIOUS SCIENCE OF THE LAW, with its wonderfully eighteenth-century subtitle: An Essay On Blackstone’s Commentaries Showing How Blackstone, Employing Eighteenth-Century Ideas Of Science, Religion, History, Aesthetics, And Philosophy, Made Of The Law At Once A Conservative And A Mysterious Science. First issued in 1941 by Harvard University Press, and republished in 1958 by Beacon Press, the book was most recently reissued with a new introduction in 1996 by the University of Chicago Press and remains to this day the first book that most American scholars consult to understand Blackstone and his achievement. Oddly, Prest’s biography nowhere cites Boorstin’s monograph, and in the symposium volume under review, only Professor Langbein offers one brief citation to Boorstin. The omission is puzzling because these two fine books fit so well with the enterprise that Boorstin mounted nearly seventy years ago. All three books should stand together on the bookshelf within easy reach of anyone working on the intellectual history of law in the eighteenth-century Anglo-American world. [*532]
Boorstin, Daniel J. 1996. THE MYSTERIOUS SCIENCE OF THE LAW: AN ESSAY ON BLACKSTONE’S COMMENTARIES SHOWING HOW BLACKSTONE, EMPLOYING EIGHTEENTH-CENTURY IDEAS OF SCIENCE, RELIGION, HISTORY, AESTHETICS, AND PHILOSOPHY, MADE OF THE LAW AT ONCE A CONSERVATIVE AND A MYSTERIOUS SCIENCE. Chicago, IL: University of Chicago Press. (Originally published, Cambridge, MA: Harvard University Press, 1941.)
Porter, Roy. 2002. THE CREATION OF THE MODERN WORLD: THE UNTOLD HISTORY OF THE BRITISH ENLIGHTENMENT. New York: W. W. Norton.
© Copyright 2010 by the author, R. B. Bernstein.