B L \ 



402 



n L \ 



probation or disapprobation ; and. secondly, by omitting to 

 Hiote the passages that followed, in which the aullior of the 

 mciitaries' asserts, among other things, 'that the sin of 

 sebum, as such, is by no means the object of temporal roer- 

 ci.m and punishment.' Dr. Priestley,' says Blackstonc, 

 ' hath attributed to me the adoption of those principles 

 whirh I oiil> uurant to mention historically, as the causes of 

 tin- l.iws which I condemn.' In fact, Blackstone's looseness 

 of st)!o and confusion of the proper subject of hi* ' Com- 

 mentaries,' positive law, with all other subject* that arc 

 anv way related to it, laid him justly open to censure ; but 

 P -tli-y. though an acute and ingenious controversialist, 

 neither detected the real source of the lawyer's confusion, 

 nor cleared the ground for a fair discussion of the matter. On 

 one leiral point, Priestley, both in his original pamphlet and 

 in a subsequent one, entitled An Objection, $c. considered 

 r I. 'irl in. 1770), has the advantage, when he combats Black- 

 -tone's doctrinu derived from the act of union with Scot- 

 hind, 'that any alteration in the constitution of either the 

 Church of England or Scotland, or in the Lilurpy of the 

 Church of England, would be an infringement of those 

 fundamental and essential conditions, and greatly endan- 

 ger the union.' 



Several of these obnoxious passages were modified or cut 

 out in subsequent editions of the ' Commentaries.' (See a 

 note on the pamphlets of Doctors Priestley and Furncanx 

 ngainst Hlackstone, in Bcntham's Preface to his Frag- 

 ment an Gori'i-iunent.) 



It would take more space than we can spare, to express 

 in the briefest terms the eulogiuros that have been pro- 

 nounced on the 'Commentaries.' Sir W. Jones says they 

 are ' the most correct and beautiful outline that ever was 

 exhibited of any human science.' Niebuhr (Roman Hist. 

 vol. i. p. 320. RIIR!. Transl.) has dignified the author 

 with the title 'great' 'That great writer, Blackstone.' It 

 is sufficient to quote the testimony of one editor to the same 

 effect, which may be taken as that of all ' It has been 

 said that this work, for a single production, is the most 

 valuable which has ever been furnished to the public by 

 the labour of any individual,' and ' to the truth of this pro- 

 position' the editor <Mr. J. Chitty) ' assents.' 



The number of testimonials in favour of the ' Commen- 

 taries' is doubtless much greater than the number which 

 can be quoted against them. The weight of opinion per- 

 haps lies on the other side. A short notice of Bentham's 

 Fragment on Government' is necessarily connected with 

 the history of the ' Commentaries ;' and Bentham's rea- 

 sons, if they were good for any thing then, are equally 

 good now. (A Fragment on Government ; being an Exa- 

 mination of irhal is delivered on the subject of Govern- 

 ment in general in the Introduction to Sir If. IHack- 

 tlone's Commentaries, with a Preface, London, 1776. Se- 

 cond edition, 1823.) 



In the admirable Preface to his 'Fragment,' Bentham 

 clearly points out the fundamental error of Blackstone, 

 the source of his endless oonfusiorr. 'There are two cha- 

 racters,' ho says, ' one or other of which every man who 

 Amis any thing 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 he supposes, the law is; 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 

 DS a fact ana nothing more, is surpassed by the absurdity 

 of the reason given for it. Hence arises, as Bentham re- 

 marks, the continual use of the words for, because, since, 

 by Blackstonc. ' I must own,' says Bentham, ' that 1 h.ive 

 been ready to grow out of conceit with these, ii-clul little 

 particles for, bn-nii\>; viice, and others of that fraternity, 

 iv.iiii seeing the drudgery they are continually put to in 

 these " Commentaries.' The appearance of any of them is a 

 sort of warning to me to prepare for some tautology, or some 

 nliMirdity : for the same thing dished up over again m the 

 shape of a reason fur itself: Or for a reason which, i!' a 

 distinct one, is of the same stamp as those, we ha. 

 seen.' The instances to which Benthara refers arc 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 evi ' Burglary cannot M 



committed in a tent or booth ererieil in a market l.ui : though 

 the owner may lodge, therein: fur the law regards thus 

 highly nothing but permanent edifices : a house, or church, 

 the wall or gate of a town ; and il is the folly of the owner 

 to lodge in no 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 empe- 

 ror's edicts : because every man in England i-. in jwlzment 

 of law, party to the making of an net of parliament, bemij 

 present thereat by his rejiretentative.' Tne law, according 

 to the 'Commentaries,' first says that a man is present v. 

 he is not and cannot be, and then, according to a general 

 principle, turning this fiction into a fact, very properly con- 

 cludes, that as the man was present when the law was 

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

 of it. The observation about the emperor's edicts is of the 

 same stamp : the emperor, the sovereign and maker of all 

 law, was obliged by the law, that is, by himself, formally to 

 promulge his edicts. (Sec H/achstone, i. C8. Chilly's edi- 

 tion, where he himself quotes the Code to prove that the 

 emperor was the sole maker of law ; see also Bentham's 

 Preface, note on the ubiquity of the king, and the conse- 

 quences that follow, according to Hlackstone, from this 

 attribute. This note is a good specimen of the admirable 

 humour of Bentham.) 



This kind of objections applies to every part of the ' Com- 

 mentaries : the author has not kept to his province of stating 

 what law is, but continually goes out of his way to 

 reasons which are not required nor wanted. (See an in- 

 stance in the chapter on the Law of Descents, in the short 

 paragraph beginning ' \Ve arc to reflect,' Jscc., ii. p. 211, 

 Chilly's ed., which the utmost attainable degree of confu- 

 sion 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 cx- 

 eusable for mixing up his reasons with his law, when he 

 traces the bislory 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 ju> 

 His illustrations derived from the Roman law, which are 

 not unfrequent, are not always pertinent, and sometimes 

 not correct. His learning, though not wanting in surface, 

 was evidently deficient in depth. 



But it is the introductory part of Blackstone's 'Commen- 

 taries,' consisting of fourchapters, which contains the matter 

 that is the special subject of the remarks in the ' Fragment on 

 Government.' In the first chapter of the ' Fragment,' 

 the writer discusses the passage in Blackstone beginning 

 ' The only true and natural foundations of society," . . to . . 

 ' define their several rights and redress their several wrongs.' 

 It is only necessary for a man to read this passage atten- 

 tively, to discover that it contains no exact meaning at all, 

 and that if it did contain a meaning, that meaning would be of 

 no use for the object of the ' Commentaries.' It is observed 

 by Bentham, and correctly, that the author, in the pa- 

 referred to, uses the term society in two different senses : in 

 the first part of the passage, it means government, and cer- 

 tainly can mean nothing else, if the whole is to have a con- 

 sistent meaning. In the second part of the passage society 

 means something which preceded government, that is. a 

 society which preceded the society mentioned in the first 

 paragraph ; but what this prececVnt society is, we arc not 

 told. It cannot be government, as in the first paragraph it 

 is. If it does mean anything, it means what Blackstone 

 has called in the first paragraph a stale ofnattin'. which 

 .'In/I 1 he further declares never existed. Blackstone in this 

 same passage ridicules the notion of an original contract, 

 which however may very well have been a lact for any 

 reason that he gives to the contrary. Again, he says that ' in 

 nature and reason an original contract must always he un- 

 derstood and implied, in the very act of associating together :' 

 and to complete the whole he asserts (p. 5.'.) that in a 

 certain case, referring to our own government, ' The legis- 

 lature would be changed,' he says, ' from that which teas 

 original I if set up by the general consent and fundamental 

 act of society.' The following remark of Bentham bi idly 

 and pointi -lly states the exact character of the whole of 

 -tone's Introduction, though applied by the writer 

 ;!y to the two paragraphs referred to: 'Throughout 



