roe 



BLACKSTOJTE, SIR WILLIAM. 



BLACKWELL, THOMAS, LL.D. 



710 



his consideration, which circumstance led him to publish his opinions 

 on this question. He denied their right; and the enemies of popular 

 privileges being glad to find themselves thus supported, the conse- 

 quence was an act of parliament taking away the franchise from this 

 description of electors. 



The popularity of his lectures, together with the publication of a 

 new edition of the ' Great Charter and Charter of the Forest,' accom- 

 panied by an historical preface, prepared the way for his return to the 

 law courts in the metropolis, where he was soon engaged in extensive 

 practice. He entered parliament in 1761, and sat for Hindon. The 

 ministry of Lord Bute marked their approbation of his conduct by 

 granting him in 1762 a patent of precedence to rank as king's counsel, 

 and by appointing him solicitor-general to the queen in the following 

 year. He had previously declined the office of Chief Justice of the 

 Court of Common Pleas in Ireland. About this time he married Sarah, 

 eldest daughter of James Clitheroe, Esq., of Boston House, Middlesex, 

 by whom he had nine children, seven of whom survived him. As he 

 lost bis fellowship by marriage, the Em-1 of Westmorland, then chan- 

 cellor of the university of Oxford, appointed him principal of New Inn 

 Hall : a year afterwards he resigned this appointment, as well as the 

 Vinerian professorship. 



The first volume of the ' Commentaries on the Laws of England ' 

 was published at Oxford in 1765. The other three volumes appeared 

 not long afterwards. The work called forth an anonymous pamphlet 

 entitled ' A Fragment on Government,' the author of which was the 

 late Jeremy Bentham. Dr. Priestley also made a fierce attack on some 

 of the opinions which the work contained relative to offences against 

 the doctrines of the Established Church. On the question ' whether 

 a member expelled was or was not eligible in the same perliament," 

 the opinions which BUckstone expressed in the House of Commons 

 being deemed contradictory to his writings, he was attacked in a 

 pamphlet understood to be written by one of the members. He 

 defended himself in a pamphlet which ' Junius' noticed in his ' Letters.' 

 With Priestley and 'Junius,' and the author of the 'Fragment on 

 Government,' as his opponents, the ministry of the day (Lord North's) 

 naturally became his protectors, and continued their favours towar.ls 

 him. In 1770 he was offered the situation of solicitor-general, which 

 he declined. He was then made one of the justices of the Court of 

 Common Pleas. Previous however to his patent being passed, Mr. 

 Justict; Yates expressed a wish to retire from the Court of King's 

 Bench into the Court of Common Pleas, an arrangement to which Sir 

 W. Blackstone, from motives of personal regard, at once consented. 

 Four months afterwards, on the death of Mr. Justice Yates, he 

 removed to the Court of Common Pleas. He sat in the Court of 

 Common Pleas till bis death, which occurred February 14, 1780, from 

 a dropsical complaint. 



As a judge, Sir William Blackstone had a great respect for the usages 

 and formalities which surround the bench, and he strove to impress 

 others with the same feelinir. His political sentiments were of the 

 class called moderate. He disliked the contentions of parties, and one 

 of the consequences of his elevation, on which he most congratulated 

 himself, was bis removal from the House of Commons, " where," as 

 he used to observe, " amidst the rage of contending parties, a man of 

 moderation mutt expect to meet no quarter from any side." His 

 talents for business were very superior, aud some offices which he had 

 undertaken at the university he discharged with great advantage to 

 the interests of those concerned. He kept his own accounts with 

 rigorous exactitude. His brother-in-law, who drew up a memoir of 

 hia life, which is prefixed to the ' Reports' published after his death, 

 says that ' he was an excellent manager of his time, and extremely 

 rigid in observing the hour and minute of an appointment." It may 

 be stated, on the same authority, that in private life he was a cheerful 

 and facetious companion ; a faithful friend ; an affectionate husband 

 and parent ; economical, but at the same time charitable and generous. 

 He waa severe to those less strict than himself in the observance of 

 the ordinary duties of life ; aud as he advanced in years, his temper, 

 which waa somewhat irritable, was rendered worse by a nervous 

 affection. The university of Oxford contains several memorials to his 

 honour. In 1784 a statue by Bacon was erected in All Souls' College, 

 and in one of the windows of the chapel belonging to this college are 

 placed his arms. His portrait was presented to the picture gallery by 

 the scholars on the Vinerian foundation. 



The 'Commentaries' have been edited by Coleridge, Archbold, 

 Williams, Chitty, Christian, and Lea, each of the six editions being in 

 four vols. 8vo, with notes. The best edition is that of Stephen. They 

 have been abridged by Curry, by Gifford, and also by Warren ; pub- 

 lished in the form of letters in one volume 8vo; and 'elucidated' by 

 Jones. With the exception of Burn's ' Justice,' perhaps no law-book, 

 and few books of any kind, have had a sale equal to that of the ' Com- 

 mentaries.' ('Life of Sir W.' Blackstone,' by Clitheroe; 'Life,' by 

 Thomas Lee, Esq.) On the appearance of the fourth volume of Black- 

 stone's ' Commentaries,' Dr. Priestley published some remarks written 

 with great acrimony and considerable vigour, on those passages which 

 related to the dissenters. The pamphlet is dated Leeds, July, 1769. 

 ' The Reply' of Blackstone (dated Wallingford, 1769) is in a calm and 

 moderate, but feeble tone, and forms a curious contrast with the 

 vigorous argument aud somewhat coarse invective of Priestley. The 

 commentator admits that one of the passages animadverted upon is 



" somewhat incorrect and confused ;" but declares that his views 

 towards the dissenters are very different from what Dr. Priestley 

 imputes to him. Several of these obnoxious passages were modified or 

 cut out in subsequent editions of the ' Commentaries." 



The number of testimonials in favour of the 'Commentaries' is 

 doubtless much greater than the number which can be quoted against 

 them. The weight of opinion perhaps lies on the other side. In the 

 admirable Preface to his ' Fragment,' Bentham clearly points out the 

 fundamental error of Blackstone, the source of his endless confusion. 

 " There are two characters," he says, " one or other of which every 

 man who finds anything to say on the subject of law may be said to 

 take upon him ; that of the expositor, and that of the censor. To the 

 province of the expositor it belongs to explain to us what, as ha 

 supposes, the law it; to that of the censor, to observe to us what he 

 thinks it ought to be. Of these two perfectly distinguishable, functions, 

 the former alone is that which it fell necessarily within our author's 

 province to discharge." These two provinces Blackstone has confounded 

 all through his work : he continually mixes up with his exposition of 

 what the law is, the reasons why it is so ; and as the reasons frequently 

 appear not the best in the world, it often happens that the absurdity 

 of the law, which, if simply stated by itself, would have been regarded 

 as a fact and nothing more, is surpassed by the absurdity of the reason 

 given for it. Hence arises, as Beutham remarks, the continual use of 

 the words for, because, since, by Blackstone. The instances to which 

 Bentham refers are a fair specimen of the whole work, and two or 

 three will serve for illustration as well as a larger number, which may 

 easily be collected from almost every page. "Burglary cannot be 

 committed in a tent or booth erected in a market fair: though the 

 owner may lodge therein : for the law regards thus highly nothing 

 but permanent edifices; a house, or church, the wall or gate of a town ; 

 and it is the fully of the owner to lodge in so frail a tenement." 

 " There needs no formal promulgation to give an act of parliament 

 the force of a law, as was necessary by the civil law with regard to the 

 emperor's edicts : because every man in England is, in judgment of law, 

 party to the making of an act of parliament, being present thereat by 

 his representative," The law, according to the ' Commentaries,' first 

 eays that a man is- present where he is not and cannot be, aud then, 

 according to a general principle, turning this fiction into a fact, very 

 properly concludes, that as the man was present when the law was 

 made, it is quite unnecessary to give him any further notice of it. 



This kind of objection applies to every part of the ' Commentaries; ' 

 the author has not kept to his province of stating what law is, but 

 continually goes out of his way to give reasons which are not required 

 nor wanted. (See an instance in the chapter on the ' Law of Descents," 

 in the short paragraph beginning " We are to reflect," &c., ii. p. 211, 

 Chitty's ed., which the utmost attainable degree of confusion pervades ; 

 the remark on the policy of allowing a man to devise his lands by will, 

 ii. p. 374; and the remark on the "piety of the judges," ii. 375.) 

 Blackstone is only excusable for mixing up his reasons with his law, 

 when be traces the history and historical causes of a law ; and even 

 here, and in all matters that belong to the constitutional history of 

 the country, he has long since been pronounced to be very far from 

 profound by very competent judges. His illustrations derived from 

 the Roman law, which are not unfrequent, are not always pertinent, 

 and sometimes not correct. His learning, though not wanting *a 

 surface, was evidently deficient in depth. 



It remains briefly to notice, and more briefly than the importance 

 of the subject demands, the arrangement of the matter of law in 

 Blackstone ; for with the facts of law as stated by him we have little 

 to do. The work as far as it goes is useful ; at least on this point 

 there is not so much difference of opinion. In Blackstone's chapter 

 on the 'Absolute Rights of Individuals," we have his fundamental 

 definition of law, which, coupled with his views contained in the Intro- 

 duction, will sufficiently account for the confusion that prevails in 

 numerous passages. (See vol. i. p. 133, and indeed the whole of the 

 chapter entitled ' Of the Absolute Rights of Individuals.') In this 

 chapter he says that the " primary and principal objects of law are 

 rights and wrongs." ' Rights,' he subdivides into " first, those which 

 concern and are annexed to the persons of men, and are then called 

 jura personarum, or ' the rights of persons ; ' or they are, secondly, 

 such as a man may have over external objects or things unconnected 

 with his person, which are styled jurarerum, or ' the rights of things.' " 

 He divides ' wrongs ' into ' private ' and ' public,' the foundation and 

 the nature of which division must be sought in those writers who adopt 

 it. (See Blackstone, i. 122, &c.) In his division of his matter into 

 these great head*, and the subdivision of these heads into their seve- 

 ral parts, Blackstone followed the ' Analysis ' of Hale, though, so far 

 from improving upon it, his division and arrangement are very much 

 inferior. 



The singular confusion in Blackstone's notions of the rights of 

 persons and things is rendered still more apparent by comparing the 

 first chapter of vol. ii. of ' Property in General,' with the beginning of 

 chap. 2 of the same volume, where he comes to speak of the division 

 of property into things ' real ' and ' personal,' according to the system 

 of English law. He borrowed the terma ' rights of persons and things ' 

 from Hale's ' Analysis,' who however has used them in a sense far less 

 objectionable than Blackstone. 



BLACKWELL, THOMAS, was born at Aberdeen in 1701. His 



