WE ARE OFTEN exhorted to break down the barriers between the disciplines. So far as law and history are concerned, such urgings are almost redundant. Historians have long drawn upon legal records and texts as sources of evidence about individual and social experience, and legal argument frequently embodies much historical content.
Yet problems can arise when historians employ legal sources. The great legal historian F.W. Maitland (18501906) suggested that historians and lawyers operate on distinct wavelengths, using two different modes of argument which he characterized as 'the logic of authority and the logic of evidence'. Lawyers, according to Maitland, are primarily interested in finding legal authorities, the more recent the better, with which to support the cases of their clients. Historians, on the other hand, recognize themselves as bound by no authority except evidence bearing on the event or phenomena they study; generally speaking, the closer that evidence in time to their subject, the greater its credibility and utility.
Maitland exaggerated the gap, both formal and psycho logical, between legal and historical reasoning. But whether or not lawyers are prone to distort or oversimplify historical evidence, historians can and do frequently misinterpret legal sources.
For example, many historians have drawn on the Commentaries on the Laws of England by the mid-eighteenth-century jurist William Blackstone for an authoritative summary of English law and government at the beginning of George III's reign. Blackstone's Commentaries were the first successful attempt to provide an outline map of English law, both public and private, at a point when Britain's imperial destinies were about to be transformed by the loss of her main North American colonies and an expanding imperial presence in Asia, Africa and the Pacific. Yet difficulties can arise when modern scholars seek to appropriate Blackstone's meticulously-crafted words to their own purposes. I propose to look at three examples: his views on wife-beating; on the right of Indigenous or Aboriginal peoples, and on slavery.
With regard to wife-beating, in a recent volume we may read that:
Eighteenth-century British law canonized a crucial precedent for men's 'ownership' of the conjugal body. Sir William Blackstone judged that the man who physically beat his wife with a stick no thicker than a 'man's thumb' was doing so 'for her own good'. For, he argued, 'even the disabilities which the wife lies under are for the most part intended for her protection and benefit'. Blackstone's rule of thumb legitimated marital abuse of women ... (J. Eveline, in Women as Australian Citizens: Underlying Histories, ed. E Crawford and P. Maddern (Melbourne, 2001).
But Dr (not yet Sir William) Blackstone had actually written, in 1768-69:
The husband also (by the old law) might give his wife moderate correction. For, as he is to answer for her misbehaviour, the law thought it reasonable to intrust him with this power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his servants or his children; for whom the master or parent is also liable in some cases to answer. But this power of correction was confined within reasonable bounds; and the husband was prohibited to use any violence towards his wife, aliter quam ad virum, ex causa regiminis et castigationis uxoris suae, liciter et rationabilier pertinet [other than licitly and reasonably pertains to a husband for ruling and chastising his wife]. The civil law gave the husband the same, or larger authority over his wife; allowing him, for some misdemeanours flagellis et fustibus acriter verberare uxorem [with whips and rods sharply to beat his wife], for others, only modicam castigionem adhibere [to apply moderate chastisement]. But with us, in the politer reign of Charles the second, this power of correction came to be doubted: and a wife may now have security of the peace against her husband; or in return, a husband against his wife. …