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Historicising Blackstone’s Commentaries on The Laws of England: Difference and Sameness in Historical Time

07 Nov, 2015 GENERAL LAW

Historicising Blackstone’s Commentaries on The Laws of England


KUNAL M PARKER*


I. INTRODUCTION: DIFFERENCE, SAMENESS AND THE COMMENTARIES


IN THE FIRST edition of The Mysterious Science of the Law (1941), Daniel Boorstin described Blackstone’s Commentaries on the Laws of England as ‘perhaps the most important single book . . . in the history of the common law’. This was especially true, according to Boorstin, if one focused on the Commentaries’ impact in the United States: ‘Justinian’s role in the reception of the civil law in western Europe’, Boorstin claimed, ‘was Blackstone’s in the reception of the common law in America’.1 In his preface to the 1958 edition of The Mysterious Science of the Law, Boorstin went even further: ‘In the history of American institutions, no other book – except the Bible – has played so great a role. . . .’2


While they might not have praised the Commentaries in quite such grandiloquent terms, eighteenth-century Americans, like eighteenth-century Britons generally, were quick to recognise the Commentaries’ importance. On the eve of the Declaration of Independence, Edmund Burke observed in Parliament that nearly as many copies of the Commentaries had been sold in the American colonies as in England.3 The text was intimately familiar to American legal elites. America’s most prominent Chief Justice, John Marshall, had read the Commentaries four times before he turned 30.4 Later in life, the eminent New York jurist James Kent would declare that the Commentaries had ‘inspired [him], at the age of 15, with awe’ and convinced him to become a lawyer.5 In 1795, Connecticut’s Zephaniah Swift praised Blackstone for having ‘reduced order out of chaos’.6 In 1803, Virginia’s leading legal authority, Henry St George Tucker, remarked that, until the appearance of the Commentaries, ‘the students of law in England, and its dependencies, were almost destitute of any scientific guide to conduct their studies’.7 Indeed, Robert Ferguson has concluded that ‘[a]ll of our formative documents – the Declaration of Independence, the Constitution, the Federalist Papers, and the seminal decisions of the Supreme Court under John Marshall – were steeped in [the Commentaries]’.8


The Commentaries cast a long shadow over the nineteenth century as well. Blackstone’s text served as the model not only for the pioneering treatises of the early nineteenth century such as James Kent’s Commentaries on American Law (1826–30), but also for lesser known treatises such as Henry St George Tucker’s Commentaries on the Laws of Virginia (1831). More than 65 years after the Commentaries first appeared, a set was acquired by the young Abraham Lincoln, who later in life recommended the text to aspiring lawyers as an important source of instruction. The Commentaries continued to be used in law school instruction until the very end of the nineteenth century. The US Supreme Court and other courts cited them repeatedly.


And yet, what is curious is that, despite their extraordinary longevity, the Commentaries were viewed, very soon after their appearance, in both England and America, as being out of date, even as out of step with the movement of history. In his famous 1803 ‘republican’ edition of the Commentaries, St George Tucker was at pains to assure his readers that, in the aftermath of the American Revolution, the Commentaries ‘could only safely be relied on as a methodical guide . . . or at most, in apprising the student of what the law had been; to know what it now is, he must resort to very different sources of information’.9 This was a result of profound changes not only in obvious areas such as the constitutional system described in the Commentaries, but also in areas such as the law of real and personal property, where Tucker discerned an ‘almost total change’.10


This sense that the Commentaries were out of step with the times, both in England and America, is reflected in the plethora of ‘updated’ editions that poured forth from the moment of the text’s first appearance. The first English editions of the four volumes of the Commentaries appeared in quarto between 1765 and 1769. Four editions of the first three volumes had appeared by 1770, as Blackstone hastened to correct errors and make stylistic changes. The first edition in octavo appeared in Dublin. The first English octavo edition – and the fifth edition of the overall work – appeared in 1773. Eight editions were published during Blackstone’s lifetime, the last appearing in 1778. Thereafter, English editions appeared in 1783 (9th edition by Richard Burn), 1787 (10th edition; a reprint), 1791 (11th edition; a reprint), 1793–95 (12th edition by Andrew Christian), 1800 (13th edition by Andrew Christian), 1803 (14th edition by Edward Christian), 1809 (15th edition by Edward Christian), 1811 (16th edition by JF Archbold), 1825 (17th edition by JT Coleridge), 1826 (18th edition by J Chitty; often reproduced in the United States), 1836 (19th edition by Hovenden and Ryland), 1841–44 (20th edition by James Stewart), and 1844 (21st edition by Hargrave, Sweet, Couch and Welsby). Serjeant Stephen’s 1841 New Commentaries on the Laws of England, based on the Commentaries, largely supplanted subsequent English editions of the Commentaries for the remainder of the nineteenth century.


The first American edition of the Commentaries appeared in 1771–72, when an enterprising publisher claimed to offer a cheaper version of the Commentaries at the price of $8 a set (the English edition was sold at $26 a set).11 Thereafter, there was a Boston edition of 1799 based on the ninth English edition and St George Tucker’s ‘republican’ edition of 1803 (also based on the ninth edition English edition). Many American editions published during the nineteenth century were reprints of English ones. During the second half of the nineteenth century, however, there were major American editions by George Sharswood (1860), Thomas Cooley (1870) and William G Hammond (1890). American editions continued to be produced in the early twentieth century. William Carey Jones’ 1915 edition was followed by William Draper Lewis’ 1922 edition.


This incessant re-issuing of the Commentaries is testimony to a paradox: their continuing vitality, on the one hand, and a mounting sense of their obsolescence, on the other. How do we conjoin these? In a collection devoted to examining the history of the treatise, I suggest, the paradoxical history of Blackstone’s Commentaries might be useful in opening up the question of what it means, in the first place, to historicise.


I will first offer a conventional history, a story of change over time, a story of how the fate of Blackstone’s Commentaries tracks the fate of many objects that start out as objects of active manipulation (what I shall call objects of ‘use’) and end up as museum objects of distanced aesthetic contemplation (what I shall call objects of ‘style’). In offering this ‘use’ to ‘style’ historical narrative, I do not, of course, suggest that objects of style thereby cease to have uses. Far from it. The Greek vessels that once served as objects of use in an ancient kitchen do not cease to have uses – including, or even especially, political uses – when they become objects of style, objects of aesthetic interest trapped behind panes of glass in a museum. If ancient Greek vessels no longer carry oil or wine, for example, they serve to confirm the integrity of a narrative of Western history that is inculcated in the hundreds of museum-goers that file past them silently every day.


In the context of the history of Blackstone’s Commentaries, as I shall show, the ‘use’ to ‘style’ narrative tracks how the Commentaries were treated by a succession of editors as we move across the nineteenth century. Over the course of the nineteenth century, the Commentaries ceased to be actively manipulated by editors (objects of use) and were increasingly recognised for their textual integrity (objects of style). This ‘use’ to ‘style’ narrative confirms something that we historians already ‘know’ to be the truth of objects, namely, that objects belong in contexts that themselves change over time. There is something comforting – and historically true – about this narrative.


But the fate of Blackstone’s Commentaries, while it sanctions the ‘use’ to ‘style’ historical narrative, also reveals something more uncanny: sameness over time. This is not sameness in the sense that historians might appreciate: the ubiquity of historical context itself as something that is always available to make sense of objects. Rather, it is a sameness that reaches beyond historical context even as it does not defy it, a sameness that unsettles our deepest historical faiths. The sameness over time that Blackstone’s Commentaries reveal might be worth tarrying over, if only because it reveals the blank spot in our efforts as historians.


II. FROM ‘USE’ TO ‘STYLE’: ONE HISTORY OF BLACKSTONE’S COMMENTARIES


Blackstone fully recognised the importance of understanding law in historical context. At the very opening of the Commentaries, he observes that the law student of the mid-eighteenth century has to be taught the various ‘originals’ of English law. Of these, by far the most important is the feudal:



These originals should be traced to their fountains, as well as our distance will permit; to the customs of the Britons and Germans, as recorded by Caesar and Tacitus; to the codes of the northern nations on the continent, and more especially to those of our own Saxon princes; to the rules of the Roman law, either left here in the days of Papinian, or imported by Vacarius and his followers; but, above all, to that inexhaustible reservoir of legal antiquities and learning, the feodal law, or, as Spelman has entitled it, the law of nations in our western orb (emphasis added).12


Indeed, Blackstone insists, it is impossible to understand ‘either the civil constitution of this kingdom . . . or the laws which regulate it’s [sic] landed property’ without an understanding of feudal law.13


Blackstone’s sense that feudalism had left its mark on the common law went along with his sense that England was now in a commercial age. His understanding of history as a move from feudal to commercial, and of law as something to be seen in historical context, had been articulated authoritatively by Blackstone’s Scottish contemporaries (Kames, Smith and others), who were anxious to rid law of its feudal trappings and to fit it to the needs of the commercial present. Occasionally, Blackstone strikes a Kamesian note when he says that feudal restrictions on the transferability of property are inconsistent with the needs of a commercial economy. Applauding the erosion of ‘feodal severity’ in regard to the alienability of land, Blackstone concludes: ‘[P]roperty best answers the purposes of civil life, especially in commercial countries, when its transfer and circulation are totally free and unrestrained’.14 Indeed, Blackstone tells us that the new commercial economy has witnessed the rise into prominence of personal property, a species of property more or less entirely disregarded by older writers on the common law.15 To be sure, scholars have correctly cited Blackstone as evidence of the ‘continued awkwardness of common lawyers in treating commercial topics’.16 The Commentaries are much sounder in discussing real property than personal property. And Blackstone was no jurist like Lord Mansfield, who sought to reshape the common law to fit the needs of merchants through massive importations of continental principles and the consultation of special merchant juries. Nevertheless, it seems difficult to argue that Blackstone was not acutely conscious of living through a momentous historical shift and that he was unaware that the common law should be judged in terms of this historical shift and fitted to its context.


However, despite a strong historical sensibility that allows him to make sense of the common law in terms of its feudal origins and its commercial present, Blackstone remains wedded to the continuity of the common law, to its ability to collapse difference over time into sameness. In sharp contrast with his great critic Jeremy Bentham, Blackstone would celebrate the figure of the common law judge precisely for the judge’s ability to mould the old common law to modern uses through a skilful use of legal fictions. Blackstone’s celebrated metaphor is that of the common law as an ‘old Gothic castle’ that the common law judge fits out for modern, ie eighteenth century – living:



When, therefore, by the gradual influence of foreign trade and domestic tranquility, the spirit of our military tenures began to decay, and at length the whole structure was removed, the judges quickly perceived that the forms and delays of the old feudal actions, (guarded with their several outworks of essoins, vouchers, aid-prayers, and a hundred other formidable entrenchments) were ill suited to that more simple and commercial mode of property which succeeded the former, and required a more speedy decision of right, to facilitate exchange and alienation. Yet they wisely avoided soliciting any great legislative revolution in the old established forms, which might have been productive of consequences more numerous and extensive than the most penetrating genius could foresee; but left them as they were, to languish in obscurity and oblivion, and endeavoured by a series of minute contrivances to accommodate such personal actions, as were then in use, to all the most useful purposes of remedial justice. . . . And, since the new expedients have been refined by the practice of more than a century, and are sufficiently known and understood, they in general answer the purpose of doing speedy and substantial justice, much better than could now be effected by any great fundamental alterations. The only difficulty that attends them arises from their fictions and circuities: but, when once we have discovered the proper clew, that labyrinth is easily pervaded. [We] inherit an old Gothic castle, erected in the days of chivalry, but fitted up for a modern inhabitant. The moated ramparts, the embattled towers, and the trophied halls, are magnificent and venerable, but useless, and therefore neglected. The inferior apartments, now accommodated to daily use, are cheerful and commodious, though their approaches may be winding and difficult.17


Some might call for the English to move out of the old Gothic castle of the common law; but the common law judge, ie Blackstone – would rather make the eighteenth century Englishman at home in it. In this metaphor, we recognise that the common law inherited from the centuries following the Conquest is an object of active use. As in the case of a family living in a building erected centuries earlier, some parts of the old common law might be neglected, some maintained, some rearranged, some put to new uses. But throughout, the family continues to inhabit the same building. It is not abandoned.18


Blackstone’s description of how the common law method allowed eighteenth-century Englishmen to inhabit the old Gothic castle of the common law adumbrates the fate of his own text. Over the course of the nineteenth century, Blackstone’s own text became the old Gothic castle he so evocatively described. Like that old Gothic castle, the Commentaries had to be fitted out for modern use. In what follows, I describe how a succession of legal writers created new knowledge not only upon, but literally inside, the body of Blackstone’s text.19


What is striking about the earliest English and American editions of the Commentaries is their level of aggressiveness vis-à-vis the text itself. In an age of slow communications, poor reporting of statutes and court decisions, and rudimentary legal instruction, the Commentaries were one of the few places Anglo-American judges, lawyers and law students could turn in order to obtain an understanding of the state of the law. Precisely because the Commentaries were an object of such active use and manipulation, their shortcomings were acutely apparent and needed urgently to be fixed. Editors, commentators and annotators thus treated Blackstone’s Commentaries exactly as Blackstone himself had treated the common law. The old Gothic castle of the Commentaries could not be abandoned. Therefore, it had to be fitted out for modern living.


This sense of having to inhabit and update the Commentaries is discernible in the prefaces that accompanied the Commentaries’ various editions, as editors both attempted to explain their intrusive editorial practices and to affirm the importance of the text they intruded upon. Nineteenth-century English editors were every bit as conscious of historical change as American ones. Joseph Chitty’s famous and widely circulated 1826 edition of the Commentaries recognised openly that the Commentaries were the product of another age, another context. There were some, Chitty argued, who might call for the Commentaries to be placed in the hands of readers as they had been originally published, ‘without annotations or additions.’ This would make sense were new editions of the Commentaries intended ‘merely as a history of English jurisprudence, having no other object than to inform the reader upon the facts and data of a past age’. But such was not the case. The very importance and centrality and uniqueness of the Commentaries in early-nineteenth-century English life were what made them impossible to abandon. As ‘the first book of instruction to which the attention of the student is directed’, the Commentaries should not convey anything incorrect or superseded, ‘nor be silent upon any of those relations in social, political, and commercial life, which have sprung up since the time of the learned author’.20 To cabin the Commentaries in the moment of their first writing ‘would be to consign these volumes to a place in the library beneath their rank and importance; and to circumscribe their utility and value within limits very much narrower than they were designed, and are calculated to fill’. The Commentaries had to be recognised as belonging to the past, but also, because of their importance, to be carried ‘forward with the stream of time . . .’21


Similarly, in 1831, the Virginia lawyer Henry St George Tucker confessed his utter dependence on the Commentaries when he described his initial attempts to produce a course of lectures on the laws of Virginia to be delivered at a new law school in Winchester, VA. As he put it:



With these views [ie, the idea that he should produce a series of lectures on the laws of Virginia] he immediately commenced the prosecution of his plan; but his diffidence of his own ability, and the want of sufficient time for the digesting of an original course of lectures, conspired to induce him to adopt Mr. Blackstone’s Commentaries as a text book, and to connect with it such additional matter as seemed advantageous, in the form of annotations.22


These annotations were initially delivered orally in the form of lectures, but lectures on such an abstruse subject proved ineffective. Tucker then decided to print the annotations and deliver the sheets to his students. When Tucker determined to compile these sheets into what he called ‘the shape of an original work’, he determined to ‘retain whatever was most essential in the admirable work of Mr Blackstone’.23


By the 1840s, editors of the Commentaries frequently bemoaned the obsolescence of the Commentaries even as they continued to put forth new editions. James Stewart’s 1844 London edition began by setting forth the difficulties of working on a text that was eight decades old:



Could a work, which was fast passing away as a whole, be advantageously adopted as an elementary book, or referred to with safety in practice? Was it possible to restore it in some degree to its original value in both these particulars? Could those portions which were becoming dead and obsolete be revived? Time had already seized a large portion of its contents.24


But the ‘great principles of the common law’ laid forth in the Commentaries – as distinguished from, say, Blackstone’s discussion of the eighteenth-century electoral system – remained ‘untouched, and as useful as ever’.25 For this reason, Stewart maintained, the present generation ‘still turns to Blackstone as its first and best guide; and we may almost despair of the appearance of another author uniting all [Blackstone’s] qualifications’.26


The impossibility of abandoning the old Gothic castle of the Commentaries, combined with the corresponding imperative to fit them out for modern living, took the aggressive forms of manipulation that usually attend the active use of an object. Chitty described his edition as ‘loading these volumes with the legal accumulations of the last half century’.27 Henry St George Tucker offered a text in which Blackstone’s language and Tucker’s own annotations were combined, but also carefully distinguished from one another: ‘The passages of Blackstone are indicated by inverted commas . . . and as his analysis has been rigidly pursued, and his work is the groundwork of the present, it has been deemed unnecessary to quote him particularly’.28 This work of intersplicing, Tucker suggested, was very hard: ‘The interweaving of the original work of one author with the commentary of another is not a matter of easy accomplishment. In such a patch work the piecing must be obvious . . .’29


But Tucker did more than simply indicate the difference between Blackstone’s language and his own. In basing his lectures on the Commentaries, he also decided to discard large entire chunks of Blackstone’s text. Various outmoded and cumbersome portions of the inherited old Gothic castle of the Commentaries were thus pulled down and carted off. Tucker described his omission of portions of Blackstone’s text as dictated by the imperatives of use:



[T]he discarding of such portions of the Commentaries as were either obsolete or matters of curiosity merely, was absolutely necessary in order to bring the contemplated course of lectures within the compass allotted to them; yet it was a source of deep regret to be compelled to break the continuity of Mr. Blackstone’s work. . . .


Yet all these objections were surmounted by a single consideration. The object of the lecturer was not display: It was, to be useful . . .30