Rediscovering Blackstone.

• Author: Alschuler, Albert W.
• Position: William Blackstone's 'Commentaries'

A law school casebook declares that until the turn of the twentieth century American law "had been dominated by the belief that a single, correct legal solution could be reached in every case by the application of rules of logic to a set of natural and self-evident principles."(1) This view of American law before the twentieth century has gained considerable currency among lawyers, law teachers, law students, social scientists and popular writers.(2) One purpose of this Article is to respond to the myth and to urge an end to the whipping of an imaginary deductive-formalist bogeyman alleged to haunt all pre-twentieth-century law. The skeptical jurisprudence of the twentieth century has rested on defaming the thought that preceded it. This Article begins to set the record straight.

A second purpose of the Article is to teach what every lawyer ought to know about William Blackstone, the author of the most influential law book in Anglo-American history -- a work that almost no one reads today and that is widely believed to rest on a silly, ponderous, formal, conceptual, outdated, deductive, mechanistic, naive and hopelessly unrealistic jurisprudence.

Part I of this Article examines the influence of Blackstone's work in America and the extent to which his Commentaries should be regarded as the baseline, or shared starting-point, of American legal thought. Partly because the Commentaries were more accessible to Americans than were other published sources of law, "[a]ll of our formative documents -- the Declaration of Independence, the Constitution, the Federalist Papers, and the seminal decisions of the Supreme Court under John Marshall -- were drafted by attorneys steeped in [Blackstone's Commentaries]."(3) Even lawyers of the founding generation, however, subjected Blackstone's work to sharp criticism. Blackstone's reception in America reveals that Americans were determined to make their own law (not to find it or deduce it) and that they recognized the law's need for continual growth and adaptation to meet changing needs.

Part II focuses on the Commentaries' concept of natural law. Natural law, in Blackstone's view, did not dictate answers to all or most legal questions. It simply indicated the essential needs of human beings and demanded that people respect the essential needs of others. Many legal systems could fulfill its requirements, the most basic of which was that "man should pursue his own `true and substantial happiness.'"(4) Natural law stated fundamental and enduring human goals and responsibilities; it was not a body of axioms for everyday judicial decisionmaking.

Part III examines Blackstone's vision of rights, especially his concept of property rights. Blackstone recognized that natural rights could appropriately be limited in civilized societies for the "general advantage of the public."(5) Moreover, he regarded many systems of property ownership, including collective ownership of the means of production, as consistent with natural law. Blackstone favored private property only because he believed that private ownership encouraged greater production. He recognized that Parliament could properly restrict property rights to promote the public good, and he insisted that the poor had a natural right to receive from the wealthy sufficient goods to supply the necessities of life.

Part IV considers the view commonly attributed to Blackstone that the proper role of judges is to find law rather than make it. This part argues that the Supreme Court and countless academic commentators have mischaracterized Blackstone's position.

Finally, Part V focuses on the claim that Blackstone and other Enlightenment liberals championed individualism to the detriment of the community. It contends that Blackstone saw individualism and community as reciprocal rather than opposing values and that Blackstone's regard for individual liberty did not diminish his regard for community, sharing and citizenship.

1. Sir William Blackstone and the

   Shaping of American Law

   In 1753, William Blackstone delivered the first series of lectures on English law ever presented at an English university. Having recently been denied appointment to a professorship of civil (or Roman) law, he organized a private course at Oxford on English law,(6) a subject which he recognized had "generally been reputed (however unjustly) of a dry and unfruitful nature."(7)

   Charles Viner later left the proceeds of his own abridgment of English law to Oxford. In 1758, two years after Viner's death, Blackstone became the first Vinerian Professor of the English Common Law.(8) He inaugurated his professorship by arguing against the traditional view that the Roman legal system was the only one worthy of university study.(9) Before leaving his professorship eight years later, Blackstone began to publish his lectures. The four volumes of his Commentaries appeared between 1765 and 1769.(10)

   One thousand copies of the English edition of Blackstone were sold in the American Colonies before the first American edition appeared in 1772.(11) This edition supplied another 1400 sets at a substantially lower price;(12) and one year before the Declaration of Independence, Edmund Burke remarked in Parliament that nearly as many copies of the Commentaries had been sold on the American as on the English side of the Atlantic.(13)

   One advance subscriber to the American edition was Thomas Marshall, a successful frontiersman on the edge of Virginia's Blue Ridge Mountains.(14) Marshall apparently purchased the set for the education of his eldest son. He and his wife Mary had decided that this seventeen-year-old would pursue a legal career, and after four years of service in the Revolutionary War (service that included the encampment at Valley Forge and numerous bloody battles), John Marshall did.(15) By the time he turned twenty-seven, Marshall had read the Commentaries four times.(16) He eventually became Chief Justice of the United States and perhaps America's greatest jurist.(17) Other subscribers to the first American edition included such prominent lawyers as James Wilson, John Jay, Nathaniel Greene and John Adams.(18)

   When the Revolution halted classes at Yale, a displaced college student read Blackstone on his own.(19) Like John Marshall, this student, James Kent, became a noted jurist.(20) In his Memoirs, Kent said of the Commentaries, "[T]he work inspired me at the age of fifteen with awe, and I fondly determined to be a lawyer."(21)

   More than sixty-five years after the publication of the Commentaries, a man driving west in a covered wagon lightened his load by selling a barrel of goods to a village store clerk. "I did not want it," Abraham Lincoln explained, "but to oblige him I bought it, and paid him half a dollar for it." Among the goods in the barrel, Lincoln discovered Blackstone's Commentaries.

   This, at least, is Carl Sandburg's version of Lincoln's first encounter with the Commentaries.(22) Chroniclers less credulous of traditional stories have reported that Lincoln purchased a set at a Springfield auction.(23) However Lincoln acquired the Commentaries, he wrote a letter twenty-five years later advising a young man to "c[o]me to the law" just as he had, by reading law books "for himself without an instructor."(24) Blackstone was still at the top of Lincoln's reading list.

   According to Sandburg, a lawyer-friend told Lincoln that Blackstone's Commentaries was the first book a prospective lawyer should read.(25) Sandburg pictured Lincoln reading Blackstone's declaration that no laws are valid unless they conform to the law of nature or of God while lying "on the flat of his back on the grocery-store counter, or under the shade of a tree with his feet up the side of the tree."(26) Perhaps in such a position, Lincoln encountered Blackstone's statements that slavery could not exist in England; that the existence of slavery anywhere in the world was "repugnant to reason, and the principles of natural law";(27) and that the "spirit of liberty is so deeply ... rooted even in our very soil, that a slave or a negro, the moment he lands in England ... becomes a freeman."(28)

   Before 1900, almost every American lawyer read at least part of Blackstone.(29) Daniel Boorstin has observed, "In the history of American institutions, no other book -- except the Bible -- has played so great a role ...."(30) As Mary Ann Glendon has noted, "Blackstone's work was much more fully absorbed into legal thinking here than in England, where legal resources were both more diverse and more readily available."(31) Describing Blackstone's treatise as "the law book" during America's formative period, Glendon added, "It would be hard to exaggerate the degree of esteem in which ... the Commentaries were held."(32)

   Blackstone's influence in both England and America was enhanced by his graceful prose(33) and fortuitous timing. The Commentaries were published at the same time that other treatises on national law appeared throughout Europe,(34) and they gave clarity and structure to an increasingly disorderly English law.(35) An unsigned review in 1767, possibly written by Edmund Burke, emphasized Blackstone's achievement: "Mr. Blackstone . . . has entirely cleared the law of England from the rubbish in which it was buried and now shows it to the public in a clear, concise, and intelligible form.(36) Surveys of national law like Blackstone's soon gave way to specialized treatises,(37) leaving Blackstone's Commentaries the unrivaled masterpiece of a vanished genre.

   In America, Blackstone's favorable reception was dampened in some quarters by his political opposition to the claims of American colonists,(38) his denial that Americans enjoyed the common law rights of British subjects,(39) his view that freedom of the press consisted only of freedom from prior censorship,(40) and his apologies for the Crown, the established church and other resented English institutions. Blackstone's reception was also...