PREFACE TO THIS EDITION. SIR William Blackstone's Commentaries on the Laws of England have for more than a century enjoyed a position in our legal literature, which has never been equaled by any other work, and which makes it superfluous to recite here any of the many testimonials to their merits. At their first publication they were received with praise, which might seem to us extravagant if we could not still compare them with the works which they superseded for the instruction of students, such as Wood's Institutes, Taylor's Elements of the Common Law, and the many other books, which in the eighteenth century, as in the nineteenth, were put out by the law stationers and the hacks in their employ as rapidly as purchasers could be found for them. We can hardly wonder that this, the work of an accomplished scholar and lawyer, who had thoroughly explored the repositories of the common law, and had devoted fifteen years of studious retirement at Oxford to the careful arrangement and elaboration of his lectures, should have at once swept all the rest into oblivion and become from that time to this "the name, not so much of the writer as of the law itself." So early as 1776, Blackstone's first, and perhaps still his ablest critic, spoke of him as "an author, whose works have had beyond comparison a more extensive circulation, have obtained a greater degree of esteem, of applause, and consequently of influence (and that by a title on many grounds so indisputable), than any writer who on that subject has ever yet appeared."* What was written in 1776 may be repeated with slight qualification in 1890. Bentham's Fragment on Government; Preface to the first edi tion, collected works, vol. I. p. 227. No writer, who has yet appeared, can be placed in comparison with Blackstone for his influence on the law of the mother country, or her American offspring, to say nothing of the commonwealths on both sides of the Pacific that had no existence when Bentham wrote. It is certainly no exaggeration to say that when we take into account the British Empire, with its American, Australian and Indian colonies, and the United States, the doctrine of Blackstone's Commentaries is quoted and respected by a greater number of civilized men, spread over a far wider part of the earth's surface, than that of any jurist or legislator who has ever lived before. But of course such a position could not remain for a century uncontested alike by direct criticism and by constant efforts to improve and alter the original work. In England Blackstone has been the point of attack, one might almost say the bete noir of that considerable and very active school of jurists, who have done so much within the last sixty years to point out the abuses of English law and to change the methods of its study. Taking their first inspiration from Bentham, and led in the attack by John Austin, they have held Blackstone responsible for every defect in the system which he described, and have barbed their criticisms with epithets that might seem almost prompted by personal malignity towards a man, who had been for half a century in the grave before these attacks were written, or at any rate before they had attracted the slightest public attention. Mr. Austin can hardly mention the Commentator without some derogatory phrase; he speaks of his inconsistency (Lectures on Jurisprudence, vol. II. p. 750) his gross logical errors (751 and 754) his absurdities, and his signal confusion of ideas (754), all which flowers of speech may be found in five consecutive pages. He says that "Julian's comment exactly hits the taste of Sir William Blackstone, who borrows it with much complacency, greatly enhancing its origi nal absurdity by adding nonsense of his own." (p. 558.) And this style is so characteristic of the entire work, that when Mr. Campbell, his editor, finds a passage in Mr. Mills' notes of Austin's lectures in which Blackstone seemed to be treated with an "unusual respect," he could not help doubting its authenticity, until he had satisfied himself that it was meant to be ironical. (p. 543, n. 32.) Austin has been followed in this tone by most of his disciples, such as J. G. Phillimore, Prof. Amos,* and even Mr. Justice Stephen; but it is needless to enrich this preface with further beauties of the kind. I quote even these because they seem to me to testify the importance of Blackstone's position as truly as the compliments of the more practical lawyers. They show how completely Blackstone represented the English law, not only to friends, but also to foes; or perhaps it would be more just to say to unsparing critics, who really are much in earnest in their attempts at reform, and have no personal animosity to the writer, whom they regard as personifying the actual law of their time. Blackstone has also often been charged with unreasoning admiration of the institutions he described, and taunted with the optimism that saw nothing to criticise in many laws which have since been repealed, and which seem to us cruel or unjust. At the most this only proves that he was not wise beyond his time, and did not possess the critical insight which detects and attacks abuses before they are known or felt by the mass of mankind: a faculty not often united with the The injustice with which modern English writers treat Blackstone unless they are entirely ignorant of him-may be shown in many ways. Thus Amos in his English Code, pages 39, 40, says that the arrangement of his work on Systematic Jurisprupence is due to a suggestion of Mr. J. S. Mill, "of making rights take the lead in certain portions, and duties take the lead in other portions." The fair inference from the whole passage (beginning with the reference to Austin) is that this is a new device and improvement on all previous writers. Yet we have only to substitute the term wrongs or breaches of duty, for duties, a distinction without a difference, to have the main division of Blackstone's work, so often criticised by these writers and their school. calm vision which sees and describes a great and complex organism in its unity and the mutual interdependence of its parts. But his silence on these points does not prove that he was blind to them. He has said himself that he did not feel called to "the invidious task of pointing out deviations and corruptions," but believed that "to elucidate the clearness of the spring conveys the strongest satire on those who have polluted or disturbed it." Note n to vol. I. p. 172, a note added by him in the eighth edition, after these criticisins appeared, and no doubt written in reference to them. It is not so much due to these critics as it is to the inevitable growth and change of a living system of law, that to the present generation of lawyers and law students in England Blackstone has ceased to be familiar in his original form. Within fifty years the Commentaries have not been reprinted there verbatim, and their place has been taken by the "New Commentaries" of Mr. Serjeant Stephen, "Blackstone's Commentaries Rewritten" of Broom and Hadley, Mr. Kerr's "Condensed Blackstone," and some other manuals of the same kind: but by a sort of poetical justice none of these have attempted to do more than bring the practical law down to date, without paying much attention to its critics, or treating in any way of the questions which these have raised respecting Blackstone's theory of that law, or the really important criticisms which they have made upon it. In America neither the critics nor the revisers have had much effect upon legal literature. Blackstone's Commentaries in their original shape are still the book most frequently put into the beginners' hands. Even the attempts which have been made to adapt it to their use, by leaving out parts now regarded as obsolete (as for example in the editions of Prof. Chase and Prof. Ewell), have not been so successful as the unabridged editions of Judges Sharswood and Cooley. The differ ence between English and American students in this respect deserves attention, and points to an essential characteristic of Blackstone's relation to the law of the United States. The first volume of the Commentaries was published November 2, 1765, at a time when the thirteen colonies were just beginning to have a sense of their essential unity, and of the need of a common law. Before that time each colony had treated the law in its own way, and without attention to the changes made in the sister colonies. There were differences in the organization of their courts and in their views of the relations between government and the governed, to say nothing of those produced by colonial legislation. All, or nearly all, considered the common law of England to be in force, but there were few books from which that law could be learned, and few lawyers who had been able to avail themselves of instruction in the inns of court. Appeals to the king in council were not unknown; but these were too expensive, and therefore too few, to have much effect in the unification of these various systems of provincial law. There was evident need of a work which should present the law of the mother country as a complete and harmonious system, and furnish an authority to which all could apply in the dearth of reports and libraries. Perhaps if Blackstone had confined himself, in the fashion of his predecessors, ana of too many of his successors, to a dry arrangement of decided points, even these circumstances would not have given the Commentaries the ready acceptance they met with. The Americans with all their hereditary reverence for the common law, were suspicious of mere precedent, and hoped to find a jurisprudence in which the reason of the law should have freer scope than it usually had enjoyed in the courts of Westminster Hall. Blackstone met this wish in his first volume with a discussion of that reason, and with a theory which sat |