BLACKSTONE, WILLIAM (1723–1780)

The influence of Sir William Blackstone's Commentaries on the Laws of England, first published at Oxford between 1765 and 1769, was pervasive in American jurisprudence for much of the nineteenth century, although the work affected constitutional thought more in the realm of philosophy rather than that of specific legal doctrine. The appeal of this four-volume summation of the common law, in the beginning of the American federal system, may be explained in part by its highly readable style and its function as a ready reference for many lawyers and jurists whose professional preparation was often indifferent. The practical need for a comprehensive and coherent view of the parent stock more than offset a tentative effort to make the new nation entirely independent of English legal institutions; and after the first American annotations to Blackstone by st. george tucker in 1804, the importing of successive English editions and the periodic publication of fresh American editions by jurists like thomas m. cooley of Michigan and scholars like William Draper Lewis of the University of Pennsylvania made the Commentaries a standard reference for more than a hundred years.

The almost instant appeal of Blackstone to the English New World colonies—soon to be arguing their entitlements to the "rights of Englishmen" which they finally concluded could be secured only through independence of England itself—lay not only in its comprehensiveness but also in its epitomizing of the creative mercantilist jurisprudence of Blackstone's friend and contemporary, william murray (Lord Mansfield), which demonstrated the adaptability of the common law to "modern" economic objectives. The colonial elite, who had devoted the last generation before independence to "Americanization" of the English law, had economic views substantially similar to the scions of the English ruling classes to whom Blackstone delivered his Oxford lectures as Vinerian professor of English law. It was not surprising, therefore, that the Commentaries—to be followed in the post-Revolutionary period by the published reports of Mansfield—should appeal to the ruling element in the new nation, which was eager to continue the rules of an ordered economy.

These American leaders, Edmund Burke reminded his listeners in his 1775 "Speech on Conciliation," had a sophisticated legal knowledge, and the proof was in the fact that at that date almost as many copies of the Commentaries had been sold in the colonies as in England. john marshall's father was a subscriber to the first Philadelphia printing of 1771–1772, and both the future Chief Justice and his great antagonist, thomas jefferson, read assiduously in the volumes. Jefferson wrote that Blackstone's work was "the most elegant and best digested" of any English treatise, "rightfully taking [its] place by the side of the Justinian institutes." While he considered that its continuing popularity in the new nation encouraged a too-slavish reliance on English precedent, he applauded St. George Tucker's plan to bring out an edition with American annotations.

In constitutional thought, the obvious differences in the structure of British and American government stimulated Tucker and succeeding American editors to prepare elaborate essays distinguishing between the frames, although not necessarily the philosophies, of the two constitutional systems. Parliamentary supremacy, which Blackstone endorsed, was in one sense emulated in the organization of the legislative departments as provided in both state and national constitutions. The recent memory of arbitrary and preemptive authority exercised by royal governors led Tucker to make the "popular" branch dominant over the executive. Ironically, Chief Justice Marshall, however congenial he found Blackstone's definition of law in general, was to embody the general principles of the Commentaries into a judicial definition of American federalism which made the judicial an equal branch. Nevertheless, a succession of influential nineteenth-century jurists after Marshall converted the Blackstonian conservatism into the laissez-faire principles that dominated American constitutional law until the 1930s.

The Tucker interpretation of the Commentaries led, through his sons, nathaniel beverley tucker and henry st. george tucker, to a strict constructionist or " states ' rights " school of constitutional thought, which was brought to its zenith in the speeches and writings of Henry's son, John Randolph Tucker. His 1877 Saratoga Springs lecture on state-federal relations as affected by the post-civil war amendments to the Federal Constitution culminated in his posthumously published Commentaries on the Constitution (1899). This view, merging with Cooley's edition of 1870, kept the conservative jurisprudence of Blackstone in a position of influence until the revolution in American constitutional doctrine in the new deal crisis of the 1930s.

William F. Swindler
(1986)

Bibliography

Boorstin, Daniel J. (1941) 1973 The Mysterious Science of the Law: An Essay on Blackstone's Commentaries. Cambridge, Mass.: Harvard University Press; reprint, Gloucester, Mass.: Peter Smith.

Katz, Stanley M., ed. [William Blackstone] 1979 Commentaries on the Laws of England: A Facsimile of the First Edition. Chicago: University of Chicago Press.

Kennedy, Duncan 1979 The Structure of Blackstone's Commentaries. Buffalo Law Review 28:205–382.