Blackstone's Commentaries on the Laws of England
The Commentaries on the Laws of England is an influential 18th century treatise on the
common law of England by Sir William Blackstone, originally published by
the Clarendon Press
at Oxford, 1765-1769.
The Commentaries were long regarded as the leading work on the
development of English law and played a role in the development of the American
legal system. It was in fact the first methodical treatise on the common law,
suitable for a lay readership, since at least the Middle Ages. The common law of
England, relying on precedent more
than on statutes and codifications,
was far less susceptible than the civil law developed from Roman law to the needs of a writer
of a treatise. It was influential largely because it was in fact readable, and
because the work met a need. The work is as much an apologia for the legal
system of the time as it is an explanation of it; even when the law was obscure,
Blackstone always sought to make it seem rational, just, and inevitable that
things should be exactly how they were.
The Commentaries are often quoted as the definitive pre-Revolutionary
War source of Common Law by US courts; in particular, the United States Supreme Court quotes
from Blackstone's work whenever they wish to engage in historical discussion
that goes back that far, or further (for example, when discussing the intent of
the Framers of the
Constitution).
Blackstone's work is divided into four volumes:
- The Rights of Persons is by and large concerned with the relations of
status in the English social structure,
from the King of
England and the aristocracy down to the untitled commoners. Also
dealt here were common relationships such as that of husband and wife,
"master and
servant", what we would now call employer and employee, and guardian and ward.
- The Rights of Things, Blackstone's longest volume, deals with property. The vast majority of the text
treats of real property,
this being the most valuable sort in the feudal law upon which the English law of land was
founded. Property in chattels was
already beginning to overshadow property in land, but its law lacked the complex
feudal background of the common law of land, and was not dealt with by
Blackstone at anywhere near the space he devoted to land.
- Of Private Wrongs dealt with torts as they existed in Blackstone's time. The various
methods of trial that
existed at civil law were also dealt with in this volume, as were the
jurisdictions of the several courts, from the lowest to the highest. Blackstone
also adds a brief chapter on equity, the
parallel legal system that existed in English law at the time, seeking to
address wrongs that the common law did not handle; the chapter on equity seems
almost an afterthought.
- Of Public Wrongs is Blackstone's treatise on criminal law. Here, Blackstone the apologist takes
centre stage; he seeks to explain how the criminal laws of England were just and
merciful, a hard task when you consider that the statute books of the time
prescribed the same penalty of death both for the theft of a shilling and for murder. Blackstone frequently had to resort to the
devices of assuring his reader that the laws as written were not actually
enforced, and that the King's power of pardon existed to correct any hardships or injustices.
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