¹ SirWilliam, Blackstone, Commentaries on the laws of England (hereafter cited as Comm.) (12th edn, Philadelphia, Pa., 1825), IV, 439. Page references are to a system which became conventional as a means of providing uniformity among the many posthumous editions.Google Scholar

² Boswell, James, The life of Samuel Johnson, Ll.D., s.v. April 15, 1781.Google Scholar

³ IV Comm. 439 and n.

⁴ SirErnest, Barker, ‘Blackstone on the British constitution’, Reflections on government (Oxford, 2nd edn, 1953), 133–4;Google ScholarDicey, A. V., Lectures on the relation between law and public opinion in England during the nineteenth century (London, 2nd edn, 1914), 62. Blackstone’s own politics are those of the Oxford University and ‘ country’ toryism of the 1740s and 1750s. He was in no sense a seventeenth-century cavalier: his references to the royalist apologists of the Restoration era are uniformly hostile, and there is no sign that he was influenced by - if indeed he had read - David Hume's History.Google Scholar

⁵ Barker, p. 134.

⁶ IV Comm. 438.

⁷ Cf. II Comm. 77, where 12 Car. II, c. 24, is ‘a greater acquisition to the civil property of this kingdom than even magna carta itself’; I Comm. 137, where the Habeas Corpus Act is ‘that second magna charta, and stable bulwark of our liberties’. The perfection that Blackstone claimed to find in the Restoration era must influence our interpretation of his notorious assertions that the law and constitution of his own day were perfect -as at I Comm. 172 and n., where that perfection too is defined as theoretical rather than practical and accompanied by a good many faults in detail. Moving the origins of this perfection back before 1688 changes the nature of our exegetical problem: either Blackstone was saying something really spectacularly foolish, or he meant by ‘perfection’ something different from, and more carefully thought out than, the complacent Revolution whiggism that most writers, even recent ones, attribute to him.

⁸ IV Comm. 49. For the dispute over this chapter, see The palladium of conscience (Philadelphia, Pa., 1773);Google ScholarSirWilliam, Holdsworth, A history of English law (Boston, Mass., 1938), XII, 713–14.Google Scholar

⁹ IV Comm. 42; cf. I Comm. 45–6. The emphasis here is upon certainty, which is central to Blackstone's conception of freedom under law: ‘whenever the constitution of a state vests in any man, or body of men, a power of destroying at pleasure, without the direction of laws, the lives or members of the subject, such constitution is in the highest degree tyrannical: and … whenever any laws direct such destruction for light and trivial causes, such laws are likewise tyrannical, though in an inferior degree; because here the subject is aware of the danger he is exposed to, and may, by prudent caution, provide against it’ (I Comm. 133).

¹⁰ I Comm. 127, 144–5.

¹¹ IV Comm. 440.

¹² IV Comm. 442–3; cf. I Comm. 213: the Revolution saw ‘the bounds of prerogative and liberty better defined … the rights of the subject more explicitly guarded’.

¹³ IV Comm. 440–1. In some ways the Revolution and its consequences did go too far in altering the balance of the constitution (I Comm. 213, 336–7); but the greater danger was in the false conclusions which might be drawn from it about the legitimacy of revolution (I Comm. 213–14).

¹⁴ IV Comm. 438.

¹⁵ I Comm. 213.

¹⁶ IV Comm. 420.

¹⁷ Pocock, J. G. A., The ancient constitution and the feudal law (Cambridge, 1957), chapters vi-viii.Google Scholar

¹⁸ Dunn, John, The political thought of John Locke (Cambridge, 1969), p. 101.CrossRefGoogle Scholar

¹⁹ Pocock, chapter x; Douglas, David, English scholars, 1660–1730 (London, 2nd edn, 1951), pp. 272–84.Google Scholar

²⁰ I Comm. 35; II Comm. 44.

²¹ The spirit of the laws was first published in English in Thomas Nugent's translation in 1750; Blackstone began his lectures at Oxford in 1753, although he did not become Vinerian Professor until 1758.

²² IV Comm. 413; cf. I Comm. 238, ‘The limitation of the regal authority was a first and essential principle in all the Gothic systems of government established in Europe; though gradually driven out and overborne, by violence and chicane, in most of the kingdoms on the continent.’ The ‘language of our ancient constitution and laws’ was that (he paraphrases Bracton) ‘rex debet esse sub lege, quia lex facil regem’ (239); this ‘feudal’ principle remained legally unchanged by the Norman Conquest.

²³ Montesquieu, , The spirit of the laws (New York, 1949), Bk. xi, c. 4 (the same translation that Blackstone used).Google Scholar

²⁴ Montesquieu, Bk. 11, c. 6.

²⁵ Montesquieu, Bk. 11, c. 4, and Bk. v, c. 19; Shackleton, Robert, Montesquieu: a critical biography (Oxford, 1961), p. 287 and n. 4; IV Comm. 414.Google Scholar

²⁶ I Comm. 157–8; cf. IV Comm. 105. Professor Richard Posner appears to have been the first to recognize the importance of Blackstone's attempt to combine Montesquieu's analysis of ‘the social function of law considered in the abstract’ with a detailed study of the laws themselves in order to demonstrate ‘how these laws operated to achieve the economic, political, and other goals of the society’: Posner, Richard A., ’Blackstone and Bentham,’ Journal of Law and Economics, vol. 19, no. 3 (Oct. 1976), 572. Posner does not pursue this theme with reference to feudalism or the ‘ancient constitution’ debate.CrossRefGoogle Scholar

²⁷ IV Comm. 411; cf. I Comm. 115–16.

²⁸ III Comm. 30–1; cf. Montesquieu, Bk. 11, c. 4.

²⁹ I Comm. 238; II Comm. 52.

³⁰ II Comm. 46; IV Comm. 413. Cf. II Comm. 68 and IV Comm. 106.

³¹ II Comm. 54.

³² II Comm. 48, 59–77; IV, 413. Contrast Maitland's warning that our assumptions about primitive societies must not ‘lead us to believe that law was a simple affair, that it consisted of just the great primary rules of what we think natural justice’: Maitland, F. W., The constitutional history of England (Cambridge, 1908), p. 4.Google Scholar

³³ IV Comm. 417–18.

³⁴ II Comm. 58, 77–81.

³⁵ Hollister, C. W., The making of England (Boston, Mass., 1966), p. 102. A writer who played an important part in Blackstone's synthesis of the ancient constitution and the feudal law (and who would no doubt have played an important part in Pocock's book had he chosen to continue his de-tailed examination beyond the 1690s) was Sir Martin Wright, whose Introduction to the law of tenures (1730) preceded Blackstone in detecting feudal institutions in pre-Norman England and in de-riving these from the customs of the Germanic tribes on the continent. Blackstone's discussion of the origins of feudal property makes clear his debt to Wright (II Comm. 45 ff.). It should be noted that in his insistence on the feudal, and therefore hierarchical, origins of English society Black-stone is killing two birds with one stone: the development of feudalism from the Germanic comitatus, elective war-chiefs, etc., not only destroys the ‘Norman Yoke’ theory of feudalism as something alien and despotic; by discovering in Anglo-Saxon England a structured hierarchy of status groups with differentiated legal rights and judicial and military functions, he also denies the notion of primitive Saxon egalitarianism. The feudal theory of the constitution offers a via media between the extremes of the advocates of'slavery’ on the one hand and of’faction’ on the other: I Comm, 251.Google Scholar

³⁶ Bolingbroke, , Works (Philadelphia, Pa., 1841), ii, 239.Google Scholar

³⁷ I Comm. 36; II Comm. 44.

³⁸ III Comm. 268. How compatible this image may be with that of the rational study of the draught of the ruins of Athens or Balbec, I will not here inquire; it is perhaps not entirely fair to Blackstone to demand scrupulous consistency between metaphors occurring nearly eight hundred pages apart.

³⁹ IV Comm. 443. Note that, unlike Burke, he does not call it an ‘ entailed inheritance’; perhaps he had spent too much time explaining how to break an entail, and how it might be desirable to do so (II Comm. 360, ‘unrivetting the fetters of estates-tail, which were attended with a legion of mischiefs to the commonwealth’; cf. II, 112–17 and 174).

⁴⁰ Pocock, , Ancient constitution, 243–4, modified now by ‘Burke and the ancient constitution’, Politics, language, and time (New York, 1973), pp. 227–31.Google Scholar

⁴¹ I Comm. 9; cf. I Comm. 127.

⁴² Montesquieu himself was not entirely consistent; cf. Shackleton, Montesquieu, 266; Weston, Corinne C., English constitutional theory and the house of lords, 1556–1832 (New York, 1965), pp. 124–6.Google Scholar We must be careful to observe Blackstone's distinction between branches of the government and branches of the legislature; the lords and commons are not branches of government, as Weston appears to make them: ibid. pp. 2, 127.

⁴³ I Comm. 149; SirMatthew, Hale, The history of the common law of England, ed. Gray, Charles M. (Chicago, 1971), pp. xxviii–xxix. Blackstone goes beyond Hale in linking the development of parliament (including the franchise) to the development of new forces in society. This means that parliament is not frozen; it is capable of still further development if need should arise. The power to make changes in its own composition is implicit in the idea of parliamentary sovereignty (I, 161); and ‘if any alteration might be wished or suggested in the present frame of parliaments, it should be in favour of a more complete representation of the people’ (I, 171–2). This does not make Blackstone a democrat; his concept of’the people’ includes only ‘free agents’ and excludes those who ‘ have no will of their own’ in a way that would satisfy any of C. B. Macpherson's possessive individualists.Google Scholar

⁴⁴ I Comm.399–400; IV, 419–20, 428, 434–5.

⁴⁵ IV Comm. 412–13.

⁴⁶ I Comm. 51.

⁴⁷ I Comm. 155.

⁴⁸ I Comm. 52, 157.

⁴⁹ I Comm. 52, Locke, citing, The second treatise of government, para. 212; cf. the edition by Peter Laslett (Cambridge, 2nd edn, 1967), pp. 425–6.Google Scholar

⁵⁰ According to John Dunn, the Second treatise was much commended but little read before the 1760s and was generally assumed to be a standard defence of the Revolution; Blackstone was one of many who found ‘tensionless ideological comfort’ in it. Serious intellectual analysis which split the ‘airy Whig consensus’ began only in the last thirty-five years of the century, over the question whether Locke could be used to justify a future revolution as well as a past one: Dunn, John, ‘The politics of Locke in England and America’, in Yolton, J. W., ed., John Locke: problems and perspectives (Cambridge, 1969), pp. 58–60. As the text makes clear, Blackstone found very little ideological comfort in Locke; and I would see the Commentaries as a document of some importance in opening the period of serious controversial study. Locke is the only ‘radical’ writer whom Blackstone mentions by name.Google Scholar

⁵¹ I Comm. 41–2.

⁵² Locke, , Second treatise, para. 6 (Laslett, p. 289).Google Scholar

⁵³ I Comm. 42 (so the second and subsequent editions, sharpening the contrast he had made in the first edition: ‘than what we generally call the natural law’). For Blackstone's debt, or lack of it, to other natural-law writers, see Lucas, Paul, ‘Exparte Sir William Blackstone, “plagiarist”: a note on Blackstone and the natural law’, American Journal of Legal History, vii (1963), 142–58. Lucas rejects the familiar canard that Blackstone's ideas about natural law were a series of platitudes cribbed from Jean-Jacques Burlamaqui. He believes that Blackstone's view of the relationship between natural and positive law is derived from Hobbes, but it is hard to see how the feudal law as Blackstone conceived it (and which is no part of Lucas's concern) can be called Hobbesian; so I have preferred to dwell upon Blackstone's debt to Montesquieu.CrossRefGoogle Scholar

⁵⁴ Montesquieu, Spirit of the laws, Bk. 1, ca. 3.

⁵⁵ I Comm. 5; IV Comm. 26; cf. Spirit of the laws, Bk. xiv, ca. 13, ‘Effects arising from the climate of England’.

⁵⁶ II Comm. 214.

⁵⁷ I Comm. 71–2; cf. II, 230–1.

⁵⁸ I Comm. 41. The words ‘true and substantial’ were added to the eighth edition.

⁵⁹ I Comm. 38.

⁶⁰ I Comm. 145, referring to Spirit of the laws, Bk. xi, ca. 5. On the pursuit of happiness, see now Garry Wills, Inventing America (New York, 1978), chapters 17–18. The pursuit of happiness as a ‘law’ of nature was not an unfamiliar idea in the eighteenth century, but there is no evidence that Blackstone was influenced by modern sources; his treatment appears to be based on that of the sixteenth-century lawyer Christopher St German, whose account in Doctor and student (first published in 1523) in turn drew heavily upon scholastic sources, especially Gerson: Christopher, St German, Doctor and student, ed. Plucknett, T. F. T. and Barton, J. L. (London: the Selden Society, 1974). PP.12–13.Google Scholar

⁶¹ I Comm. 70; cf. I, 78; Doctor and student, pp. 56–9.

⁶² I Comm. 10. Blackstone urges again and again that good law is the result of experience and practical wisdom and is more likely to be damaged than improved by ‘speculative reason’; the terms in which he described the Norman and scholastic perversions of Saxon feudalism could equally be applied to his fears for the eighteenth-century constitution under the knife of Loekeananalysis: ‘There is an active principle in the human soul, that will ever be exerting its faculties to the utmost stretch, in whatever employment, by the accidents of time and place, the general plan of education, or the customs and manners of the age, and country it may happen to find itself engaged’ (IV Comm. 417). For a persuasive defence of Blackstone's concept of’reason’ in the common law against Jeremy Bentham's famous attack, see SirRupert, Cross, ‘Blackstone vs. Bentham’, Law Quarterly Review, XCII (Oct. 1976), 516–27.Google Scholar

⁶³ I Comm. 55, 58; II, 210.

⁶⁴ Jarrett, Derek, Britain, 1688–1815 (London, 1965), pp. 359–60.Google Scholar

⁶⁵ Lucas, Paul, ‘Blackstone and the reform of the legal profession’, E.H.R., LXXVII July 1962), 484.CrossRefGoogle Scholar

⁶⁶ Cf. IV Comm. 4: ‘were even a committee appointed but once in an hundred years to revise the criminal law, it could not have continued to this hour a felony without benefit of clergy, to be seen for one month in the company of persons who call themselves, or are called, Egyptians’, and other criticisms based on his reading of Beccaria.

⁶⁷ I Comm. 55.

⁶⁸ I Comm. 57–8.

⁶⁹ I Comm. 42.

⁷⁰ I Comm. 55. As with the pursuit of happiness, Blackstone's treatment of’things indifferent’ is drawn from sixteenth-century Anglican discussions of adiaphora in religion rather than from eighteenth-century natural-law thinkers: contrast Hooker, Richard, Of the laws of ecclesiastical polity, ii, iv, 4–5 (ed. Edelen, Georges, Cambridge, Mass., 1977, pp. 154–6)Google Scholar, with Burlamaqui (whom Blackstone had read, but whose position he did not take), The principles of natural law (London, 1748), p. 83.Google Scholar For a somewhat different approach to Blackstone's use of’things indifferent’, see Lucas, Paul, ’Exparte Sir William Blackstone’, American Journal of Legal History, vii (1963), 142–58:CrossRefGoogle Scholar Lucas argues that Blackstone used the doctrine of adiaphora to destroy the concept of specific natural rights which the state must protect, and to smuggle a clandestine Hobbism into the English constitution. This is certainly true (though I doubt Blackstone saw himself as a Hobbist) in the case of property; but, as we shall see below, Blackstone made no attempt to conceal his view that the natural right to property was severely limited, and his account of the origins of property is quite different from Hobbes's. In the case of life and liberty, the matter is quite different: Blackstone does believe in the existence of absolute natural rights not the creation of human law - ‘ natural rights, such as are life and liberty, need not the aid of human laws to be more effectually vested in every man than they are’ (I Comm. 54). He also believes in legislative sovereignty. The legislature can (and, alas! often does) violate the natural rights of its subjects: ‘there may be unlawful methods of enforcing obedience even to the justest laws’ (IV, 10). Nevertheless, ‘ I would not be understood to deny the right of the legislature in any country to enforce its laws by the death of the transgressor … The guilt of blood, if any, must lie at their doors, who misinterpret the extent of their warrant’ (IV, 11; cf. IV, 28). There would be no dilemma here for a Hobbesian: all rights are civil rights which are created by the legislature. There is a dilemma for Blackstone, and one which he fails to resolve; no one who reads the first chapter of volume iv can fail to perceive the emotional intensity with which he felt his intellectual plight. Natural rights exist before, and independently of, legislation; nevertheless the survival of society depends upon the sovereignty of the legislature. His choice is not so much Hobbes's as Hobson's.

⁷¹ I Comm. 143.

⁷² I Comm. 47; the words ‘ either natural or civil’ were added to the eighth edition. Note that this view separates Blackstone's theory of the origins of society from Hobbes's as well as Locke's.

⁷³ I Comm. 47–8.

⁷⁴ I Comm. 48. Gough, J. W., The social contract (Oxford, 2nd edn, 1957), pp. 189–90, charges that Blackstone ostentatiously denies the existence of a social contract and then smuggles it back as an’ implicit’ contract. He does indeed speak of an implied contract - ‘ that original contract, which in all states impliedly, and in ours most expressly, subsists between the prince and the subject’ (I Comm. 237, my emphasis) - but this is little more than a truism. If the Turk and his subjects can be said to have an implicit contract, it can only be that mutual obligation of protection and obedience which is synonymous with government, however tyrannical. Turkey is a complete, France a partial despotism (I, 269); but Blackstone never says, as Locke does, that they are not legitimate governments. An implicit contract of this sort is irrelevant to any more generally accepted sense of’ contract’ as a guarantee of liberties.Google Scholar

⁷⁵ II Comm. 46; cf. II, 57: ‘the feudal obligation was looked upon as reciprocal, the feudatory being entitled to the lord's protection, in return for his own fealty and service’.

⁷⁶ I Comm. 233–6.

⁷⁷ I Comm. 237.

⁷⁸ I Comm. 144.

⁷⁹ I Comm. 245.

⁸⁰ This passage was quoted by Mackenzie, John, ‘To Freeman’ (28 Sept. 1769),Google Scholar in Weir, Robert M., ed., The letters of Freeman, etc.: essays on the non-importation movement in South Carolina (Columbia, South Carolina, 1977), pp. 52–3;Google Scholar cf. Otis, James, ‘A vindication of the British colonies…‘ (1765),Google Scholar in Bailyn, Bernard, ed., Pamphlets of the American Revolution, 1750–1776 (Cambridge, Mass., 1965), pp. 558–9.Google Scholar For these uses of Blackstone, see Stourzh, Gerald, ‘William Blackstone: teacher of revolution’, Jahrbuchfür Amerikastudien, xv (1970), pp. 185, 189.Google Scholar It should be noted, however, that the anti-revolutionary content of the Commentaries was also recognized by Americans, especially James Wilson, before the Revolution broke out: Waterman, Julius S., ‘Thomas Jefferson and Blackstone's Commentaries’, Illinois Law Review, XXVII (1933), 629–59,Google Scholar reprinted in Flaherty, D. H., ed., Essays in the history of early American law (Chapel Hill, North Carolina, 1969), pp. 451–88, esp. p. 478.Google Scholar

⁸¹ I Comm. 41; 160–1.

⁸² I Comm. 244.

⁸³ I Comm. 154.

⁸⁴ I Comm. 244.

⁸⁵ I Comm. 243.

⁸⁶ I Comm. 250–1.

⁸⁷ I Comm. 243–44.

⁸⁸ I Comm. 245.

⁸⁹ I Comm. 144.

⁹⁰ I Comm. 268.

⁹¹ I Comm. 212.

⁹² I Comm. 244.

⁹³ I Comm. 250–1.

⁹⁴ I Comm. 245.

⁹⁵ I Comm. 152. At this point, therefore, I dissent from the brief but lucid account of Blackstone's political theory by S. N. Katz: ‘Blackstone … felt a lawyer's obligation to prove that the right of revolution was not a logical corollary of his Lockean political principles. Yet his only opposition to Locke's argument for the right of revolution when the sovereign violates the social compact was a simple denial, thus exposing his own lack of a principled alternative’: Katz, Stanley N., ‘Introduction’ to volume 1 of the Commentaries, facsimile of the first edn (Chicago, 1979),Google Scholar p. x. The right of revolution as a civil right he did of course see as a logical corollary of Lockean political principles; therefore his search for a different kind of right and a somewhat laboriously principled alternative. The same objection can be made to the discussion in Dickinson, H. T., Liberty and property: political ideology in eighteenth-century Britain (New York, 1977), pp. 131–2,Google Scholar where Dickinson does not distinguish between ‘legal’ and ‘natural’ rights. R. A. Posner sees that there is a real right to revolution, but makes an unfortunate choice of words when he interprets Blackstone as saying that ‘abridgments of fundamental rights legitimize revolution’ (‘Blackstone and Bentham’, Journal of Law and Economics, xix, no. 3, Oct. 1976, 577); he quite correctly observes that ‘the main protection of fundamental rights lay not in … violent revolution but in the balance of power among the political forces in the society which had been achieved by the British constitution of the day’.Google Scholar

⁹⁶ I Comm. 245. Gerald Stourzh (above, n. 80) appears to believe that this passage legitimizes revolution (p. 187); my argument is that it does quite the opposite, by denning 1688 in such narrow terms that it becomes a unique event, almost worthless as a precedent. For example, George III did not’ withdraw himself out of his kingdom’ in 17 76. He did several other disagreeable things, of which the authors of the Declaration of Independence compiled quite a list; but ‘there’, at least in Blackstone's eyes, ‘our precedent would fail us’.

⁹⁷ I Comm. 212.

⁹⁸ I Comm. 192.

⁹⁹ I Comm. 218. Blackstone was deeply involved in the Oxfordshire election of 1754, that most Hogarthian of eighteenth-century elections, on the side of the Old Interest: Robson, Robert J., The Oxfordshire election of 1754 (London, 1949), pp. 140–4;Google ScholarWard, W. R., Georgian Oxford (Oxford, 1958), p. 197.Google Scholar

¹⁰⁰ I Comm. 192–3.

¹⁰¹ I Comm. 160–2.

¹⁰² II Comm. 2.

¹⁰³ II Comm. 211.

¹⁰⁴ II Comm. 13.

¹⁰⁵ II Comm. 10–11.

¹⁰⁶ II Comm. 215.

¹⁰⁷ Above, p. 52. Why does he labour this point so? I suspect that the answer lies in the Second treatise, para. 190 (Laslett, pp. 411–12): ‘ Every Man is born with … a Right, before any other Man, to inherit, with his Brethren, his Fathers Goods’ (my emphasis). The liberal theory of property requires the absolute right to dispose of it as one chooses, including the right to bequeath it. This is quite untrue of English property in its feudal origins, in which the lord had a supervisory right over all alienations; the right to bequeath and inherit land held in fee developed gradually and very much as a civil right: II Comm. 55–6.

¹⁰⁸ II Comm. 8.

¹⁰⁹ II Comm. 5.

¹¹⁰ II Comm. 4.

¹¹¹ II Comm. 7–8.

¹¹² II Comm. 8.

¹¹³ I Comm. 40; II, 4, 7. Historically, none of the landed property in England originated in the labour of the first occupier, but was distributed for military and administrative purposes (‘this northern plan of polity, serving at once to distribute and to protect the territories they had newly gained’, II Comm. 47); the fief was ‘in its original import, … a stipend, fee, or reward for actual service’ (II Comm. 68). Because of these feudal origins there is virtually no such thing as ‘absolute property of the soil’; the allodium is unknown to English law (II Comm. 105).

¹¹⁴ Contrast the assertion (or assumption) of Blackstone's ‘Lockean’ attitude toward property in Hay, Douglaset al., Albion's Fatal Tree (New York, 1975), 18–19 and 36.Google Scholar

¹¹⁵ I Comm. 299.

¹¹⁶ I Comm. 129.

¹¹⁷ I Comm. 129, 134.

¹¹⁸ I Comm. 138.

¹¹⁹ Boorstin, Daniel J., The mysterious science of the law (Gloucester, Mass., 1973 [first published in 1941]), pp. 167Google Scholar ff. See now, however, a recent article by Kennedy, Duncan, ‘The structure of Blackstone's Commentaries’, Buffalo Law Review, xxviii, no. 2 (1979), 205–382, a complex and subtle analysis of Blackstone's theory of rights, much of which does not bear directly upon the present article. Kennedy finds less originality than I do in Blackstone's interpretation of feudalism (pp. 328—9) and his use of Montesquieu to explain the natural-law functions of the common law. Kennedy, if I read him correctly, finds in Blackstone a believer in the Lockean theory of property (p. 314) who set out to justify the common law by demonstrating how it had developed out of its feudal past to protect the liberties of the Lockean individual. Although my own conclusions are in partial disagreement with Kennedy's, his article will repay close study; it is the most important work on Blackstone to appear in some time.Google Scholar

¹²⁰ Boorstin, pp. 168–9; 171–2.

¹²¹ Boorstin, p. 179.

¹²² Boorstin, p. 183.

¹²³ Boorstin, p. 183, referring to II Comm. 288.

¹²⁴ I Comm. 43.

¹²⁵ I Comm. 126.

¹²⁶ IV Comm. 160.

¹²⁷ II Comm. 412 (said in respect of the game laws!)

¹²⁸ Thompson, E. P., ‘The moral economy of the English crowd in the eighteenth century’, Past and Present, no. 50 (Feb. 1971), 83–90;CrossRefGoogle ScholarThe making of the English working class (New York, 1964), pp. 66–67.Google Scholar

¹²⁹ Paul Lucas, ‘Blackstone and the reform of the legal profession’, pp. 482, 486–7.

¹³⁰ IV Comm. 416.

¹³¹ II Comm. 360–1 and 374, and refs. in note 39 above; cf. I, 306, on the civil law practice of declaring compulsive spendthrifts non compos and putting their estates into the hands of trustees: ‘ the frequent circulation and transfer of lands and other property, which cannot be effected without extravagance somewhere, are perhaps not a little conducive towards keeping our mixed constitution in its due health and vigour’. By his own standards, at least, Blackstone is anything but a Whig oligarch.

¹³² I Comm. 7.

¹³³ I Comm. 260–1, quoting Spirit of the laws, Bk. xx, c. 6 (recte 7) and Bk. xx, c. 13 (recte 14).

¹³⁴ I Comm. 307.

¹³⁵ I Comm. 7; cf. I, 272: ‘all offices under the crown carry in the eye of the law an honour along with them; because they imply a superiority of parts and abilities … and, on the other hand, all honours in their original had duties or offices annexed to them’.

¹³⁶ I Comm. 161, quoting Spirit of the laws, Bk. xi, c. 6, as well as Sir Matthew Hale; cf. I Comm. 179–80 on election bribery: ‘ Mr Locke ranks it among those breaches of trust in the executive magistrate, which according to his notions amount to a dissolution of the government, “if he employs the force, treasures, and offices of the society to corrupt the representatives, or openly to pre-ingage the electors, and prescribe what manner of persons shall be chosen.”‘ Cf. also I Comm. 336–7, a ‘Country’ jeremiad upon the growth of royal ‘influence’ as a consequence of the Revolution.

¹³⁷ I Comm. 161.

¹³⁸ I Comm. 159.

¹³⁹ I Comm. 9. Therefore I have some reservations about Duncan Kennedy's interpretation of Blackstone as a liberal: ‘ The history of property law meant to him the progressive extinction of social obligations arising out of land use’ (Kennedy, ‘The structure of Blackstone's Commentaries‘, p. 332). The end of feudal obligations to one's lord does not necessarily extinguish one's responsibilities as a member of society. Perhaps we might say that even as these lose their positive-law sanctions (cf. Blackstone's lament at the demise of the hundred court or his complaints about the modern poor law) they remain natural-law duties.

¹⁴⁰ I Comm. 8–9.

¹⁴¹ IV Comm. 437.

¹⁴² I Comm. 213.

¹⁴³ Hooker, Richard, The laws of ecclesiastical polity, 11, viii, 5 (Edelen, p. 189); cf. idem, ‘the absolute perfection of scripture is seene by relation unto that end whereto it tendeth’.Google Scholar