Justice Blackstone's Common Law Orthodoxy

Article excerpt

INTRODUCTION........................................................................................................... 1553

I. COMMON LAW ORTHODOXY................................ ............................................... 1556

II. THE DEVELOPMENT OF BLACKSTONE'S VIEWS OF LAW.. .................................... 1560

III. BLACKSTONE ON THE BENCH.............................................................................. 1576

A. The Reports........... .................................................................................... 1578

B. Decisionmaking.. ....................................................................................... 1582

C. Authority .................................................................................................. 1585

D. Precedent.................................................................................................. 1589

E. Discretion.. ................................................................................................ 1592

F. Blackstone as the Anti-Mansfield........................ ...................................... 1598

CONCLUSION.............................................................................................................. 1604

INTRODUCTION

On Monday, January 28, 1771, four justices who would eventually serve together for nine years presided for the first time as a group over the English Court of Common Pleas. Wearing black robes trimmed in white ermine and long white full-bottomed wigs, they took their seats behind the individual podiums that comprised the bench.' At the center sat the newlyappointed Chief Justice, William de Grey, a man of learning and excellent political connections, whose career trajectory had pointed him almost inexorably toward this moment.2 To his right sat Henry Gould, the most senior puisne, or associate, justice. With eight years on Common Pleas, and almost two before that as a baron of the Exchequer, Gould was the sole member of the Court with significant judicial experience.3 At one end, George Nares took his place as a new judge. "[B]red an att[orne]y, called to the bar," he was the quintessential common lawyer and the only one of the four justices who had practiced at the Common Pleas bar.4

Finally, to the Chief Justice's left sat William Blackstone, the first person to lecture on the common law at an English university, the author of the first comprehensive and readable summary of English law, and - although this has gone largely unremarked - the first law professor to serve as a judge on a common law court. Blackstone had joined the bench the previous February after a successful career not as a barrister, like the other members of the Court, but as an academic. In 1769, only shortly before his appointment, he had published the last of the four volumes of the Commentaries on the Laws of England, a milestone in the history of English legal literature, and the work that ensured its author's lasting fame in both England and America.

The outsized reputation of the Commentaries has caused the rest of Blackstone's legal writing to go mostly unnoticed. Consequently, nearly all the scholarship about Blackstone's views on law has relied solely on a work he originally drafted when he was no older than thirty and had spent only seven unsuccessful years at the bar. Yet the Commentaries ought not to be assumed to reflect Blackstone's views. In the lectures that formed the basis of the Commentaries, Blackstone had other masters to serve besides his own personal beliefs. For example, when he began to teach privately in 1753, he relied on students to pay to attend.5 Displeasing this authence with scathing critiques of the common law, which the English people generally viewed as akin to holy, was not in his economic interest.6 Once he became an official university professor in 1758, Blackstone still occupied a somewhat precarious position, for the very existence of his course on English law was not uncontroversial. …