‘Of Institutes and Treatises’: Blackstone’s Commentaries, Kent’s Commentaries and Murdoch’s Epitome of the Laws of Nova-Scotia

To this list might be added another feature of institutional writing, at least in the case of the English-language institutists: their situating of the law in its historical, political and cultural context. While the rational ordering of legal categories and doctrines was a paramount concern of the institutists, so was the desire to show that the national law served the public good; and this could only be done by referring to the actual state of society in the nation in question. The institutists were social scientists and men of letters, in addition to being learned in the law. Thus, law was both subject and object for them, not just an object as it became for the treatise-writers.

Such lapidary formulations have their appeal. Two elements of this story may be challenged, however. The first is the characterisation of the relationship between institute and treatise as a competitive Darwinian struggle leading to the former’s demise. Arguably, what is impressive about institutional writing is not so much its ultimate decline but its continuing vigour until the very end of the nineteenth century. Thomas Cooley, the giant of US constitutional jurisprudence, produced an edition of Blackstone’s Commentaries in 1872–73, well over a century after the work’s initial publication, and revised it twice, in 1879 and 1884 (discussed in the chapter by Kunal Parker); James DeWitt Andrews produced a fourth edition in 1899 after Cooley’s death. There were continuing editions of Kent down to the 14th and last edition by John Gould in 1896; and even if, as we shall see, there were no subsequent editions of the Epitome of the Laws of Nova-Scotia (published 1832–33), provenance information indicates that it was still circulating among lawyers in eastern Canada in the 1860s and 70s.

I begin with the proposition that the institute and the treatise were not inherently in conflict, but could and did co-exist for a long time. They did so because lawyers continued to have a need for both breadth and depth in their understanding of the legal order, both as students and novice lawyers and throughout their careers. Cooley and his contemporaries

Not only did institute and treatise co-exist, but they also interacted in diverse ways. Langbein himself admits that some of Kent’s chapters had a ‘treatise-like’ quality, such that they were stripped out of the Commentaries and sold as separate treatises both in the US and abroad. A Canadian lawyer did the same with Blackstone’s treatment of real property in 1864, but then partially ‘re-institutionalised’ it by adding a long introduction on the reception of English law in Upper Canada and the early history of the province.⁴ At the turn of the century another Canadian lawyer rewrote Blackstone’s first volume as a treatise on the law of persons in Ontario, declaring that the ‘Revised Statutes of the Dominion and of this Province must be always beside any person who wishes to learn the law of this country’.⁵ In other words, the author had localised Blackstone as a treatise on this body of provincial law. To take a final example of the institute-treatise boundary: Kent criticised a decision of Joseph Story on jurisdiction over maritime insurance in the first edition of his Commentaries, which Story defended in his own Commentaries on the Constitution, only to have Kent critique it more extensively in his third edition, thus creating a dialogue between institute and treatise.⁶

My second caveat concerning the Langbein account is whether labelling institutional works as works of ‘schoolboy simplicity’ is accurate or fair. In trying to sharpen the contrast between institute and treatise, Langbein contradicts his own copious evidence of the extravagant learning that Kent poured into his Commentaries. All of the works examined here comprise some 2000 pages of clear but highly erudite prose, and demonstrate an astonishing breadth and depth of reading in the legal sources of local and foreign jurisdictions and in a wide variety of non-legal literature. They are elementary works only in the sense that they concentrate on the elements, or fundamentals, of the legal tradition in question, not in the sense that they discuss only the obvious, or unduly simplify complex matters.⁸ While criticism of the existing law is not their principal goal, all three writers provide some critique of particular doctrines and suggestions for reform.⁹ And like most books, readers may appreciate them differently at different stages of life; thus British North American students were advised to read Blackstone several times during their apprenticeship, both to deepen their understanding of the text on its own terms and to ‘localise’ the Commentaries’ transatlantic knowledge.¹⁰

Having established that treatises and institutional works should be considered in dialogue with one another, this chapter will now discuss the contribution of institutional works to legal literature, while keeping their relationship to the legal treatise in view. Comparison of these three works reveals insights which cannot be gained by examining each in isolation. Part I will introduce briefly the authors, their works and their historical contexts. Part II will compare the works’ format, organisation and audience. Part III will look at the role of the institutional work in nation-building. Part IV, by way of conclusion, will look at how the ‘scale’ of law, in Christopher Tomlins’s words, plays out in different ways in these three works.

I. INTRODUCING THE INSTITUTISTS

Blackstone’s Commentaries,¹¹ Kent’s Commentaries¹² and Murdoch’s Epitome¹³ were written in three quite different societies, with somewhat divergent goals in mind. William Blackstone (1723–80) wrote as Britain was about to defeat France in the Seven Years’ War and become the pre-eminent global power. With a population of nearly six million in 1750, England was already a wealthy society, albeit one in which wealth was grossly unevenly distributed. It had a complex, hierarchical class system reflected in the legal profession itself, where high-status barristers (about 350 active in 1750) were sharply distinguished from far less respectable attorneys and solicitors, who numbered some 3 or 4000 as Blackstone wrote. Blackstone was admitted as a barrister but did not achieve great success in practice. He based his Commentaries on lectures he gave at Oxford, where he had obtained a doctorate in civil law. There is some debate, discussed below, about what audience Blackstone had in mind; but whatever his motivation, he provided a new intellectual basis for English law, hitherto so dominated by the medieval writ system, by pointing toward – if he did not quite articulate – a common law oriented around substantive rights rather than remedies, procedural law, and jurisdictional rules.¹⁴ Innovative in the canon of English legal literature, the Commentaries achieved immediate success not only in England but also in its colonies and elsewhere over the next century and more.¹⁵

Beamish Murdoch (1800–76) was born on the edge of empire, in Halifax, Nova Scotia, and was called to the bar there in 1822. Founded in 1749 as a bastion from which to attack Louisbourg, the importance of Halifax as a naval base only increased during the American Revolution, the Napoleonic wars, and the War of 1812; after peace descended in 1815, the colony struggled to re-invent itself as British defence spending diminished sharply. By 1830, when Murdoch was writing his Epitome, the population of Nova Scotia was about 125 000, some 15 000 of whom called Halifax home. It was by far the smallest and poorest of the three ‘institutional’ jurisdictions considered here, although a small elite and nascent middle class could exist in comfort. A number of local newspapers and literary magazines, along with Murdoch’s Epitome and JG Marshall’s justice of the peace manual (1837, 1846) (considered in Jim Phillips’s contribution to this volume), also spoke to a certain cultural efflorescence under the Pax Britannica.

II. MISSIONS

Within its broad parameters, the institutional form was a flexible one, and each of our authors used it for somewhat different purposes though they also shared some. All declared their intentions in prefaces and elsewhere, but all had undeclared motives as well. In advertising the lectures which formed the basis of the Commentaries, Blackstone claimed that they were aimed at young gentlemen rather than budding barristers, an assertion often taken at face value.²⁰ But given his forceful critique of contemporary modes of preparation for the bar, it seems likely that he had both groups in mind.²¹ Kent and Murdoch aimed their works first at aspiring lawyers but also claimed they would be ‘useful and ornamental to gentlemen in every pursuit, and especially to those who are to assume places of public trust’,²² or in Murdoch’s case, ‘useful and acceptable to magistrates, persons of property, and business, &c’.²³ All thus claimed to present an overview of the law that would assist young lawyers but could also be appreciated by laypersons.

What ‘law’ the authors chose to deal with also influenced the shape of their works. For Blackstone the common law was at the heart of the Commentaries. Equity plays almost no role in the work, with only a dozen index references scattered over 2000 pages, and a chapter in volume III that John Langbein calls ‘baffling’ in its deliberate minimisation of equity’s historic role in modernising the common law.²⁴ Blackstone referred frequently to statutes, but usually via footnote references rather than overt discussion and often as part of a historical discussion rather than a statement of contemporary law; whole fields of statutory law, such as the poor law, he simply ignored. Kent too was concerned mainly with the common law, synthesised from state and federal judicial decisions and English precedents. In a well-known passage, he confided that he did

Murdoch was the odd man out here: for him provincial statutes were the primary source of law, and the absence of their systematisation the main goal of the work as declared in its preface. He did not have to deal with the problem of federalism, as Kent did, because he dealt with a sole jurisdiction. Nor did he have to deal with the whole sweep of English legal history, as Blackstone did. A staunch adherent of the traditional British doctrine of the mixed and balanced constitution, Murdoch was content to adopt without elaboration the content of British constitutional law as applying to the colony.²⁶ He nonetheless wished to carve out a space for a distinctive Nova Scotian tradition in the private law which, like Zephaniah Swift, he conceived as much simpler and more ‘free’ than its English parent.²⁷ This larger cultural mission puts Murdoch squarely in the institutist tradition. His focus on statutes in one sense made him the most forward-looking of our three institutists, given the rise of legislation as a tool of the state in the nineteenth century. But in his attempt to illustrate a distinctive Nova Scotian legal culture, he resembled Blackstone more than Kent.

III. FORMAT, ORGANISATION AND AUDIENCE

It is now generally agreed that in writing the Commentaries, Blackstone used the institutional format in order to provide some structure to English law, but that in doing so he failed to provide a convincing account of how the English common law actually worked.²⁸ As Michael Lobban has stated, ‘[b]ecause Blackstone had sought to fit the common law into an institutional structure which stressed the importance of rules and natural law as an organising concept, and had sought to portray the common law as static and unchanging in its principles, he failed adequately to explore the customary base of law or its remedial nature in a systematic way’.²⁹ In spite of the commercial success of the Commentaries, English lawyers remained suspicious of it. Blackstone had misconstrued the law: it was not, they believed, a system of principles and rules which only needed the occasional use of history to explain the odd idiosyncrasy, but it was rather a complex and detailed system of forms which could only be simplified and distorted by reducing it to the rules that Blackstone had.³⁰

What might seem fundamental flaws in the English context seemed virtues in North America, where the Commentaries proved an attractive model for apprentices, lawyers and law-writers anxious to render the law accessible to all. Although the Commentaries