The eighteenth-century Oxford don, MP and judge William Blackstone is now best known as the first person to lecture on the common law in a university and as the author of the Commentaries on the Laws of England. This is the second recent work on Blackstone to bear Wilfrid Prest's name on the cover. The first is his biography of Blackstone himself (William Blackstone: Law and Letters in the Eighteenth Century, 2008); this volume is an edited collection of papers from a symposium held in 2007. As Prest himself observes in his discussion of Blackstone as a biographical subject, a biography is a very difficult work to get right, facing the challenge of “encompassing all the complexities of past events and structures within the parameters of a single life” (p. 12). In that sense this book is an intriguing sort of biography, bringing out Blackstone's interest and importance to historians and his later, even continuing, role in the common-law world and beyond (see, e.g., pp. 77 and 147–9).
The editor has arranged the disparate chapters under four headings: life, thought, influence and sources. The first is a natural choice, and provides a welcome introduction to the reader who is not an expert on Blackstone himself, commencing with a very brief overview of Blackstone's life before moving on to consider Blackstone as a biographical subject (and, one gets the impression, a rather elusive one) and his time as a Fellow of All Souls. Carol Matthews' examination of Blackstone's views on architecture is a stimulating piece of intellectual history which provides a fresh perspective on the interpretation of the Commentaries themselves, while Ian Doolittle's consideration of Blackstone's diligent collection of William Prynne's works is interesting but frustratingly inconclusive. In this, it serves as a microcosm of the first chapter, by Prest, on biographies of Blackstone. Prest observes that while there is considerable material surrounding Blackstone, the absence of personal, professional and family papers and Blackstone's “awkward mixture of self-deprecating shyness, prickly sensitivity [and] aloofness” all make him a difficult biographical subject to understand or with whom to empathise. (pp. 8 and 13).
The six chapters on “thought” are the most intellectually diverse and range from discussions of Blackstone's own thought (such as John Langbein on Blackstone and judging and John Orth on statutory interpretation), through to Nicole Graham's chapter which criticises the Benthamite “dephysicalisation” of property law and therefore uses Bentham's preferred target as an important reference and starting point for a discussion about the direction of modern law. Two chapters under this heading focus on the law of persons. Tim Stretton positions Blackstone as a transformative figure, whose concern with systematic and scientific arrangement of the common law in the Commentaries led to him giving an unprecedented importance to the concept of “unity of persons” between married couples. By so doing, Blackstone provided a new theoretical basis for a variety of rules in the law of persons. The chapter then shows Blackstone's influence by demonstrating how later lawyers paid more attention to this concept than did those coming before Blackstone. Mary Sokol draws out the influence of Blackstone on Bentham's ideas as regards marriage (most obviously, that both saw it as a secular contract). The influence of one writer on another is often difficult to prove, and this reader came away with the impression that rather than Blackstone being a “pervasive” influence on Bentham (p. 109), the latter rejected Blackstone's principles and sometimes read the same material independently. Thalia Anthony's chapter on Blackstone in Australia could have been considered as another chapter on the influence of Blackstone. However, it tries to cover too much ground too quickly and suffers from an unconvincing use of the word “feudal”, failing to consider that Blackstone's understanding of the word (influenced by the post-Restoration notion of English land law) was almost certainly very different from that the author takes from works on medieval history.
For this reader, the three papers concerning the influence of Blackstone were the highpoint of a splendid collection. Michael Hoeflich's exploration of “American Blackstones” uses an excellent synthesis of legal history and the history of the book to show how a Georgian book on English law remained important and significant in the post-revolutionary United States. It serves as a salutary reminder that even a law book out of place and out of time may continue to be of significance, and Hoeflich draws out the parallels between American treatments of the Commentaries and European uses of the Corpus Iuris Civilis (pp. 172–3).
The remaining two chapters on influence concern Blackstone in Europe (France and Germany respectively), a topic which was as unexpected as it is welcome. Blackstone seems to have found more of a home in France than Germany, and Horst Dippel's chapter draws out the circumstances which limited his influence in the latter. Unlike in America, Blackstone's reception could not survive changing circumstances in Germany. These two chapters show the interest in English constitutional ideas (such as the liberty of the subject) in eighteenth and nineteenth century Europe, with Blackstone serving as a convenient conduit. While several of the authors in this volume refer to Bentham's dismissive description of Blackstone as “everything-as-it-should-be Blackstone”, in these two chapters we see Blackstone through the eyes of European reformers as someone describing something as it ought to be. John Emerson even tentatively suggests Blackstone's influence on the revolutionary 1789 Declaration of the Rights of Man.
The final two chapters fall under the heading of “sources”. The chapter by Morris Cohen draws attention to Yale Law Library's ongoing Blackstone collection and cataloguing project. The chapter highlights the necessary, but laborious work often involved in legal history, but this reader was particularly taken with the revelation that not only did Blackstone's popularity lead to the production of a “Comic Blackstone”, but that this work was itself, just like the Commentaries, revised in later editions! The final chapter, on iconography, shows the diversity, even ubiquity, of visual representations of Blackstone.
As is apparent, the chapters cover a wide variety of themes. To this reader, one major omission is the absence of any consideration of Blackstone's work as a judge, although it is perhaps to be expected given the title of the book. The authors in this work typically take Blackstone's views on the law to be those set out in the Commentaries. However, as Ian Doolittle has established, the Commentaries are derived largely from Blackstone's lecture course, first offered in 1753, and “are essentially a work of the early 1750s” (“Sir William Blackstone and His Commentaries on the Laws of England (1765–69): A Biographical Approach” (1983) 3 O.J.L.S. 99, at 111). One has to wonder how far it is fair to any teacher to label his or her personal views as those known only through what they taught, especially early in his or her career! Blackstone served for a decade on the bench (despite the error on p.1, which states Blackstone died in February 1770, rather than 1780), but writers discussing Blackstone's views of the law restrict themselves to a work composed in the mid-1750s, albeit with later revisions. This omission seems particularly important for John Langbein's chapter, which indicts Blackstone for failing accurately to describe eighteenth-century judicial practice in the Commentaries, but it would also be an interesting counterpoint to the discussions of Blackstone on the law of persons and statutory interpretation.
Unlike the Commentaries themselves, this book is not intended as a systematic or scientific work. However, for a collection of essays it is remarkable how well the various chapters complement one another. The book repays reading as a whole. For example, Blackstone observed that the preference given to males in the law of inheritance was derived from the feudal law and Stretton observes the hint of criticism implied in that justification (p. 125). That argument becomes much more powerful after reading Matthews' chapter concerning Blackstone's views on classical architecture and architectural metaphor as a means of interpreting the Commentaries, where Blackstone's disapproval of gothic architecture and feudal law are highlighted and (convincingly) linked. Other chapters, when brought together, show the complications of Blackstone's thought. He rejected the idea of an original social contract on evidential grounds (p. 96), and yet Locke's influence on Blackstone is mentioned by Sokol and Graham (pp. 92 and 153–4). The concern for an accurate understanding of the past is stressed in Doolittle's chapter on Blackstone's collection of the works of William Prynne. However, the reader sees Blackstone repeating historical ideas more suited to an early seventeenth-century ancient constitutionalist and lacking in any serious evidential basis, such as the Anglo-Saxon origin of Parliament (with which Prynne disagreed, see p. 54) and the penalty for petty treason having survived unchanged from the time of the druids (pp. 32–3 and 125)! John Langbein's chapter concerning Blackstone and judging goes further, suggesting that Blackstone's views in the Commentaries are not merely formalist but intellectually dishonest, misrepresenting eighteenth-century practice. However, this “puzzle of Blackstone” (as Langbein terms it) is perhaps explained by Orth in the following chapter, who portrays Blackstone as a writer heavily reliant upon sources (for Orth, principally Coke), which were out of date. For Orth, Blackstone managed successfully to reconcile the sources and the law of his day, but perhaps for Langbein, Blackstone failed. Certainly Langbein acknowledges Blackstone's indebtedness to the mid-seventeenth century work of Hale (pp. 71–2) and a reader might wonder whether Blackstone's ancient constitutionalist ideas were also influenced by Coke. The insight from Orth's chapter reconfigures Langbein's puzzle to ask the more interesting question as to why Blackstone tied himself to old sources, rather than writing an accurate description of eighteenth-century law.
Other chapters raise questions about one another. How, for example, might we interpret the visual representations of Blackstone in courts and law schools on three continents which are discussed by Prest after encountering Hoeflich's observation that nineteenth-century American lawyers often had copies of Blackstone's Commentaries included in their portraits, frequently paired with Justinian's Institutes as a sign of learning? Has Blackstone become more than just an author in the common law? While Langbein criticises modern judges who use Blackstone as an alternative to an accurate account of the “common law tradition” (p. 77), Hoeflich's discussion of the ways in which Blackstone was republished in the USA suggest that Blackstone became part of that tradition. One might even suggest that Blackstone took the role which Coke once ascribed to another judge better known as an author, Thomas Littleton: “not the name of a lawyer only, but of the law itself”.
