Chapter IV (3)

“Doubtless; and in this I agree with them. Indeed, the incapacity they have shown to protect what they have got, is the best reason they could assign for being unwilling to have more; but it does not touch the question of the principle upon which England’s policy should be based in her dealings with foreign nations, and with her own colonial possessions; in other words, what are the most economical and at the same time the most moral methods of self-preservation? I put economy before morality, because, whatever may be the professions of Governments in practice, as a consideration, it always precedes it. If bloodguiltiness was not always attended with so much expense, people’s consciences would be far less sensitive on the subject. Hence it happens that highly moral financiers are apt to regard things as wicked in the degree in which they are costly, while they are too short-sighted as statesmen to perceive that a prompt expenditure is often the best way of saving a far heavier amount, which must be the result of the delay—or, in homely phraseology, that a stitch in time saves nine. The most economical and the most moral method of self-preservation, then, will be found in consolidating, protecting, and extending the commercial position and moral influence of the great English-speaking people in all quarters of the globe. At this moment, though surrounded by enemies who envy and hate her, there is no country more safe from attack than Germany, because she is governed by a statesman who never shirks responsibility, cowers before danger, or, in moments of difficulty, takes refuge in compromise or concession. It is not England, with her horror of war, that has, during the last decade, been the Power which has prevented a European war, otherwise inevitable, from breaking forth; the statesman to whom the peace of Europe has been due, upon whom that peace now depends, and who is therefore doing the most for the moral progress of Europe, is exactly that statesman who never indulges in moral platitudes, and whom his worst enemy cannot accuse of hypocrisy. No one will pretend that peace is not more conducive to economy and moral progress than war; but to secure it, a great military position and a great national prestige are alike indispensable. England has, or should have, the first naval position in the world, and, until lately, her national prestige was second to none. These advantages confer on her great responsibilities; to part with them is to diminish her powers of usefulness in the world, and her mission of civilising it. As the champion of civil and religious liberty, she owes a duty to humanity, which it would be a crime alike in the eyes of God and man for her to relinquish, even though it may cost blood and treasure to maintain it,—for the amount expended to maintain it would be as nothing compared to the sacrifices of both life and money which the abandonment of this duty would entail upon the world. I speak feelingly, for I cannot conceive a greater disaster befall the human race, than to see the place of England usurped by the nation of which I have the honor of being a humble member,”here Ivan smiled bitterly. “So absorbed are you in your own vestry quarrels, that you either forget or are ignorant of the place you occupy in the regard of millions, who see in England the apostle of free thought, free speech, free institutions. Your standard, which we look up to as the flag of liberty, and which should be nailed to the mast, we watch you with dismay lowering to every piratical craft, while the crew are fighting about a distribution of provisions, and the pilot seems to prefer running his ship on the rocks to boldly facing the enemy’s cruisers. Nothing strikes us members of the oppressed and suppressed races as more anomalous and incomprehensible, than the fact that the party in England which are most ready to compromise the honor of that flag, and to haul it down on the least provocation, are precisely that party who are most loud-tongued in their profession of sympathy for those races to whom it is the banner on which their hopes are fixed—the symbol in their eyes of progress, civilisation, and political freedom. Hence it is that all those among us who are not absolute anarchists, find ourselves unconsciously withdrawing our sympathies from that political party in your country, who, while they style themselves the party of progress and of advanced thought, are in reality compromising the cause which I feel sure they honestly cherish and believe in, by destroying the prestige and lowering the influence of the one European Power which is its great representative—and, to our own great wonderment, are beginning rather to pin our hopes for the future upon those whom we have hitherto considered reactionary, because they called themselves Conservative and aristocratic, but who, in this crisis of the fortunes of their country, resist a policy calculated to impair its supremacy. Thus, on a higher principle than that appealed to by the political moralists who direct the helm of State, may the best interests of morality be reconciled with those of their own country; for it is by maintaining the supremacy of England that the principle which is identified with her institutions, her traditions, and the aspirations of her people, can be best secured in the interests of that universal society of which she forms part, and towards which she undoubtedly has moral obligations and responsibilities. The party which seeks to evade them, whether upon specious theories started by _doctrinaires_ ignorant of international conditions, or upon penny-wise and pound-foolish grounds of economy, are in reality the party of reaction; for they are the best allies of reactionists, and are playing into their hands, as no people have better reason for knowing than the Russians, who have observed with dismay the sympathy of your Prime Minister with ‘the divine figure of the North,’ as he has styled our ruler, and his methods of government; while from our point of view, the party of progress in England, let them call themselves Conservative if they so please, are those who, true to the grand traditions of the country, are determined to keep it in the van of freedom, not merely because its wealth and prosperity are due to that absolute civil and political liberty which imposed no check upon individual enterprise or achievement, but because with the preservation of its greatness are bound up the most cherished interests of the human race.”

“Come, Ivan,”I said, laughing, “you have wound up with a peroration as much too flattering to my country as you were too uncomplimentary at the start. For an ‘old idiot,’ you have ended by giving her a pretty good character.”

“Not at all,”he rejoined; “I ended by describing her splendid position and advantages. I called her an old idiot for either being unconscious of them, or throwing them away consciously. And I ventured to add a word of encouragement to those who are struggling to prevent these being thrown away, and to assure them that, in their resistance to the short-sighted and fatuous policy of their present rulers, they have the cordial sympathy of philosophic Liberals like myself (I am not now speaking of Socialists and Nihilists, whose lands are against all parties) all over Europe. One of your own most eminent philosophers, himself a Liberal, has recently written a book, in which he has shown the danger by which the true principle of liberty is threatened from the reactionary tendencies of the democratic autocracy. I merely wish to assure you that we in Europe are fully alive to this danger, and dread as much the despotism which springs from the divine right of mobs, as from that of kings. There is to my mind as little of God in the _vox populi_ as in an Imperial ukase; and our only safety between these two extremes, which I should rather be disposed to call infernal than divine, lies in the common-sense, patriotism, and virtue of those statesmen, politicians, and lawyers who, holding a middle course between them, as being both equally dangerous to the principles of true liberty, endeavor not merely to preserve the institutions of that country which is the home of liberty, but, by maintaining its supremacy, enable it to resist attacks from whatever quarter.”

“I have lived too much out of England for the greater part of my life,”I remarked, “to be much of a party man; still, from early and family association, my sympathies rather incline towards that party which now control its policy, though I admit they have shown but indifferent foresight, skill, or judgment in grappling with the difficulties which they had to confront. Still it is only fair to them to remember that these were left them as a heritage by their predecessors; and that if they have blundered somewhat in the effort to set matters right—conspicuously in Egypt, for example—it was not they who set matters wrong in the first instance in that country.”

“That I entirely deny,”responded Ivan, “as I think I can prove to you in a very few words. But before doing so, allow me to express my surprise at your admission that, because you were a Liberal in the days of Lord Palmerston, who was pre-eminently the representative of the policy which I have advocated as being that which should animate a British statesman, your sympathies should extend to those who, while they wear the old party livery, have entirely departed from the old party lines. His mantle has indeed fallen upon them, but they have so completely turned it inside out that it is no longer recognisable. In the days when a party existed which called itself ‘Liberal-Conservative,’ there was no violent political issues at home to check the current of a domestic legislation which was ever steadily progressive; while in foreign affairs the Government of the day, whether it was Conservative or Liberal, followed the well-established traditions of British policy abroad, which, if it had incurred the jealousy of European Powers, at all events commanded their admiration and respect. The utterly inconsistent and perplexing attitude which England has now assumed, so entirely at variance with the principles by which her foreign policy was formerly governed, must of necessity deprive her of all sympathy abroad, for she has proved herself totally untrustworthy as an ally—while all true Liberals must deplore the agitation which has resulted from a domestic legislation that has a tendency unnecessarily to exacerbate party feeling, and drive people into violently opposite extremes. Nothing is more fatal to all real progress than a wild and unreasoning rush in the direction in which it is supposed to lie, because the inevitable consequence is a reaction most probably equally unreasoning. Moreover, these violent swings of the political pendulum must always be attended with the greatest possible danger. A Conservative triumph which is purchased at the price of acts of folly, rashness, or weakness, perpetrated by their opponents, is paid for by the country, and is but a sorry bargain. It is not under such violently disturbing influences that sound and healthy Liberal progress is made. And all history proves that the liberty which is born in convulsions invariably degenerates into a license which culminates in a tyranny.

“And now one word in reply to your allusion to the present position of matters in Egypt, and more especially with regard to that legacy of disasters which the present Government maintain they have inherited from the policy of Lord Beaconsfield, and which, with characteristic weakness, they constantly invoke as an excuse for their own shortcomings. When the Anglo-French _condominium_ was established in Egypt—which is regarded as the _fons et origo mali_—an _entente cordiale_, which was rapidly ripening into an alliance, had been formed between Germany, Austria, and England, in which, to a certain extent, Italy was included, and upon which Turkey depended for her existence; it formed, therefore, a combination of European Powers which controlled Europe, and was in a position to dictate, especially to Prussia and France, both weakened as those two Powers were by recent wars, and by internal dangers and dissensions—both being, moreover, the only Powers in Europe whose interests clashed with those of England in the East, and whose policy, therefore, it was the interest of England narrowly to watch, and, if need be, to control. The faculty for doing this had been wisely secured to her by the European combination in which she had entered, above alluded to. Under these circumstances she had nothing to fear in Egypt from an association with France in the dual control. Practically it became a single control; for, with Germany and Austria at her back, England could dictate her own policy in Egypt, and, in the event of its not suiting her French associate, could even dare to enforce it without the slightest fear of the peace of Europe being endangered thereby. Her political supremacy in Egypt was, in fact, guaranteed to her by Germany and Austria, who had no reason to regard it with jealousy, while they obtained in return that commanding position which England’s adhesion to their alliance secured them in Europe. So far, then, from having succeeded to a heritage of difficulty, the present Government succeeded to one of absolute security. But the whole aspect of the political chessboard was changed when the new player, who took over the game in the middle of it, removed the piece which gave check to king and queen, and which, if it was not moved away, rendered final victory a certainty. Lord Beaconsfield’s policy in Egypt turned upon the Anglo-Germanic-Austrian Alliance. When, after his fall from office, this was rudely ruptured by insulting expressions of antipathy to Austria on the part of his successor, the effect of which, subsequent expressions of apology were inadequate to efface—by a strongly marked coldness towards Germany, and a no less marked _rapprochement_ towards France—the latter Power, relieved from the dread of the European combination, which had up to that moment held her quiescent in Egypt, jumped up like a jack-in-the-box, and favored us with that series of intrigues which gave us Arabi, and the evils that followed in his train. Meantime, utterly isolated in Europe by that rupture with the most powerful friends in it, with which the policy of Lord Beaconsfield had provided you, you found yourselves betrayed and deserted by the ally you had chosen instead of them; while every concession you made to that ally, and every attempt at conciliation, only plunged you deeper in the mire, in which you have since been left to flounder alone, a laughing-stock and object of derision to all Europe, and more especially to those Powers who might have proved your salvation, but who have since entered into other European combinations from which England is excluded, and which may prove in the highest degree dangerous to her. No assertion, therefore, can be more utterly false in fact than the statement that the heritage to which this Government succeeded was one of trouble. So far from it, the policy of their predecessors had left them in a position of commanding strength; and to lay the misfortunes which have since arisen at the door of those who had taken such precautions that they could never arise, is as though a general who should take over the command of an army placed strategically in an impregnable position, should abandon that position altogether, and after being defeated in the open field, find fault with the nature of the defences he had abandoned. But,” added Ivan, with a yawn, stretching himself, looking at his watch, and going to the open window, “you will think that I have degenerated from the philosophical spectator into the keen party politician. This I was compelled to be during my recent visit to London, where you are nothing if you are not partisan. The flavor of Piccadilly clings to me still: how much more delicious are the odorous night airs of these southern climes! Look up at those stars, my old friend, before you go to bed, and thank them that you have been spared the cares and the ambitions of the Treasury bench.”—_Blackwood’s Magazine._

BLACKSTONE.

BY G. P. MACDONELL.

Blackstone has now been dead more than a century, but neither lawyers nor laymen have yet made up their minds whether he was an intellectual giant, or only a second-rate man of letters, with a little learning and a pretty style, who acquired popularity because he flattered the English constitution. His friends have pitched high their eulogy. Sir William Jones, speaking to the freeholders of Middlesex, who had little reason to love Blackstone, called him the pride of England, and in a grave legal treatise referred to the _Commentaries_ as the most correct and beautiful outline that ever was exhibited of any human science. Hargrave, fresh from annotating Coke upon Littleton, described him as an almost second Hale, and that as it were in the very presence of Hale, in a volume of tracts half filled with Hale’s legal lore. “To me,” said Mr. Justice Coleridge, the nephew of the poet, and one of Blackstone’s many editors, “the _Commentaries_ appear in the light of a national property, which all should be anxious to improve to the uttermost, and which no one of proper feeling will meddle with inconsiderately.” And a distinguished German jurist, exaggerating only a little, has said that Englishmen regard the _Commentaries_ as “_ein juristisches Evangelium_.” The history of the work is in itself remarkable. If we except the Institutes of Justinian, and the _De Jure Belli ac Pacis_ of Grotius, perhaps no law book has been oftener printed. Not to speak of the many adaptations, more or less close, or of the many abridgments of the _Commentaries_ (one of these was “intended for the use of young persons, and comprised in a series of letters from a father to his daughter,”) they have, in their original form, gone through more than twenty complete editions in England since the publication of the first volume in 1765. Nor has the homage of parody—in the shape of a “Comic Blackstone”—been wanting to place them among the classics. In America they have attained at least an equal fame. In the speech on Conciliation, delivered in 1775, Burke said that he had heard from an eminent bookseller that nearly as many copies had been sold there as here. Two years later, one of the five members appointed to frame the laws of Virginia seriously proposed that, with suitable modifications, the _Commentaries_ should be taken as their text. There is reason to believe that they are now held in higher esteem in America than among ourselves. The American editions, already nearly as numerous as the English, still continue to multiply,[9] while forty years have passed since we have had an English Blackstone with an unmutilated text. His own countrymen are now content to know him through the medium of condensed and often lifeless versions, though it is not so far back since, for those who aspired to the amount of legal knowledge which a gentleman should possess, Blackstone was the very voice of the law. If on many sides Blackstone received the meed of excessive praise, his critics, it must be allowed, did not spare him. They have not been many, but they have spoken so emphatically, and, within certain limits, so unanswerably, that they have aroused suspicion whether, after all, Blackstone may not have been a charlatan. He was naturally regarded with distrust by lawyers of the rigid school, who felt that legal learning was gone if such primers as the _Commentaries_ were to displace the venerable Coke. The book was not many years old before the phrase “Blackstone lawyers” came to be used as synonymous with smatterers in law. But such criticism had a professional ring, and perhaps in the end did the assailed author more good than harm.

[9] A second edition of Professor Cooley’s _Blackstone_ was published in Chicago last year.

If nowadays the name of Blackstone is held in diminished respect, the fact is mainly due to the contempt poured upon him by Bentham and Austin. They mercilessly exposed his shallow and confused philosophy. Bentham, reviewing one by one his opinions on government, maintained that they were not so much false as wholly meaningless; and Austin declared that neither in the general conception, nor in the detail of his book, is there a single particle of original and discriminating thought. It is tainted throughout, said the one, with hostility to reform; it was popular, said the other, because it “truckled to the sinister interests and mischievous prejudices of power.” Austin found nothing to praise even in its style, which, though fitted to tickle the ear, seemed to him effeminate, rhetorical, and prattling, and not in keeping with the dignity of the subject.

So long as his admirers could see no defects in his work, and his critics were blind to its merits, judgments of Blackstone kept moving along parallel lines, and never met. Standing at this distance of time, when the _Commentaries_ have long lost the glitter of novelty, when we have not Bentham’s cause for anger, and when nobody retains a belief in the infallibility of Austin, it should be possible to treat Blackstone more fairly than either his friends or his enemies have done. There are signs that a juster estimate is now being formed, and the clearest of these is the testimony of one who must know by his own experience what were the difficulties which Blackstone surmounted. Sir James Stephen admits that he was neither a profound nor an accurate thinker, that he is often led to speak of English law in terms of absurd praise, and that his arrangement of the subject is imperfect. But “the fact still remains,” he says, “that Blackstone first rescued the law of England from chaos. He did, and did exceedingly well, for the end of the eighteenth century, what Coke tried to do, and did exceedingly ill, about 150 years before; that is to say, he gave an account of the law as a whole, capable of being studied, not only without disgust, but with interest and profit.... A better work of the kind has not yet been written, and, with all its defects, the literary skill, with which a problem of extraordinary difficulty has been dealt with is astonishing.”

Few authors ever had a clearer field. Long before his day, indeed, the immense growth of the law had been regarded as a heavy burden. Lawyers groaned, just as they groan now, over the increasing accumulation of statutes and reports. And yet Coke upon Littleton remained the beginner’s chief guide. Coke called his work the _Institutes of the Laws of England_; but, whatever its other merits, it lacks every quality which the title would suggest. It is unsystematic, undigested; it makes no pretence of leading its reader from principles to rules; and it spares him the details of no curious anomaly. It is like an overgrown treatise on the subjunctive mood. The need had long been felt for a better work; and the broad outlines had been sketched by Hale in his admirable _Analysis of the Civil Part of the Law_, which Blackstone followed in every essential feature. Some treatises too had appeared written with a purely educational purpose. Of these the most successful, long recommended as an elementary text-book for students, was the _Institutes_ of Wood, a Buckinghamshire clergyman. It was a praiseworthy attempt to present the law in a methodical form, but it lacked literary merit, and had all the dulness of an epitome. It is memorable only as the book which the _Commentaries_ displaced.

Blackstone saw his opportunity. Perhaps no one else in his time combined in the same degree the qualities which the work required; nor was there any one so capable of writing a law-book, which could be read with interest by educated laymen, and at the same time be accepted as almost authoritative by practising lawyers. Blackstone’s training enabled him to gain the ear of both; for he was not only a lawyer, but a man of letters. His love of literature developed early, and along with it a desire to win literary fame. He does not seem to have read widely, but the pleasure which in his school days he derived from Shakespeare and Milton, Pope and Addison, was dulled neither by advancing years nor by the absorbing demands of the law. “The notes which he gave me on Shakespeare,” said Malone, who used them in his edition, “show him to have been a man of excellent taste and accuracy, and a good critic.” He was something of a poet himself; but the “Lawyer’s Farewell to his Muse,” the “Lawyer’s Prayer,” and the “Elegy on the Death of the Prince of Wales,” though they have occasionally been unearthed as curiosities, have long been swept away with other rubbish of the kind. The following lines, which are his best, and in which we feel the very spirit of the _Commentaries_, will not tempt further even the most diligent seeker after neglected poets. Their historical audacity would amaze Professor Freeman.

‘Oh, let me pierce the secret shade
Where dwells the venerable maid!
There humbly mark, with rev’rent awe,
The guardian of Britannia’s Law,
Unfold with joy her sacred page
(Th’ united boast of many an age,
Where mix’d yet uniform appears
The wisdom of a thousand years)...
Observe how parts with parts unite
In one harmonious rule of right;
See countless wheels distinctly tend
By various laws to one great end;
While mighty Alfred’s piercing soul
Pervades and animates the whole.’

The Pope who was lost in Blackstone we can as easily spare as the Ovid who was lost in Murray. Yet it was from that love of literature to which his poetical compositions bear witness, perhaps in some degree also from the enforced measure and restraint of verse, that he acquired a style, which though it has not the freshness and variety of Addison’s, its most direct model, has the same singular clearness and almost the same ease and flow. By education, not by accident, did he come to deserve Bentham’s one compliment that he it was who first, of all institutional writers, taught jurisprudence to speak the language of the scholar and the gentleman.

Beyond keeping up a certain interest in architecture, on which in early youth he is said to have composed a treatise, Blackstone seldom allowed himself to be diverted from a persevering and varied study of law. He divided his time between Westminster and Oxford, and long remained undecided whether he should finally settle in the law-courts or among his books. While, with hardly any practice of his own, he was training himself with unusual diligence, as his reports of cases testify, in the practical part of his profession, he had it clearly before him that law is not to be mastered by any one who neglects its history. “In my apprehension,” he said, when he was a student, “the learning out of use is as necessary as that of every day’s practice;” and he carried out this belief by making the _Commentaries_ as much a history as an exposition. Even more plainly than in his great work we can see in his edition of _Magna Charta and the Charter of the Forest_ how unflagging were his zeal and patience, and how minute his investigations. His knowledge of general history may have been superficial, as Hallam said it was; he may have had old-fashioned notions about Alfred the Great, even though he does warn his readers against the tendency to ascribe all imaginable things to that king; yet the _Commentaries_ contain what, on the whole, is still the best history written in English of English law.

The plan of the book had long been in his mind; he was indirectly led to carry it out through an attempt of the Duke of Newcastle to corrupt him. Lord Mansfield (then Mr. Murray) recommended him to the chair of civil law at Oxford, which was vacant in 1756, but he lost the appointment, according to report, because he was not hearty enough in promising the duke support “whenever anything in the political hemisphere is agitated in the university.” Murray, hearing of his disappointment, advised him to lecture on his own account upon English law. He took the advice; the novelty of the lectures and their ability made them successful; and when the Vinerian chair of common law was founded in 1758 he was appointed the first professor. Making hardly any change in form, arrangement, or mode of treatment, as appears from his notes which are still extant written in the neatest of hands, he expanded the lectures into the _Commentaries_. But while he never deviated from his original plan, his store of knowledge grew steadily throughout the fourteen years which elapsed between his first private lectures and the appearance of his work. When the question of _ex officio_ informations was debated in the House of Lords in 1812, Lord Ellenborough spoke of him as follows:—“Blackstone, when he compiled his lectures, was comparatively an ignorant man; he was merely a fellow of All Souls’ College, moderately skilled in the law! His true and solid knowledge was acquired afterwards. He grew learned as he proceeded with his work. It might be said of him, at the time he was composing his book, that it was not so much his learning that made the book, as it was the book that made him learned.” The _Commentaries_ were not, however, the work of a merely book-learned man; besides his attendance in the courts as a spectator, Blackstone had enjoyed several years of good practice before the first volume appeared; but Ellenborough’s opinion is substantially sound. It is indeed one of the striking facts about Blackstone that while as years went on his mind gained little in breadth, and his fundamental ideas underwent no change, he was able, by simple hard work and with abilities not by any means the highest, to make himself at length one of the really learned lawyers of his time. Several names might be mentioned which on special lines of law stand far above his; but there was no one who rivalled him in that extent of general knowledge which an institutional writer must possess. The _Commentaries_ have won the peculiar distinction of being quoted and of carrying weight in every political discussion which raises questions of constitutional importance, and also of being cited in our courts (though under protest from some rigid judges) as only a little lower than that small group among our law-books which have an inherent, and not merely a reflected, authority. We should do Blackstone grievous wrong if from his popularity we assumed that his knowledge was superficial.

Thus, both as lawyer and as man of letters, he was peculiarly fitted for his work. Written with less literary skill, the _Commentaries_ would long ago have been forgotten; if his learning had been more minute he would never have written them at all. A work which, partly through favoring circumstances, but mainly through its merits, has effected a real revolution in legal studies, is not to be dismissed by saying that its philosophy is weak, and that it is hostile to reform.

There is certainly no profound nor much original thought in Blackstone’s four volumes. Nobody was ever made better able to comprehend a difficulty in English law by means of the notions on laws in general to be found in that famous chapter, which, as Sir Henry Maine puts it, may almost be said to have made Bentham and Austin into jurists by virtue of sheer repulsion. They lead to nothing, and explain nothing. They are rather the obeisances made by a polite professor to his subject, or a lawyer’s invocation of his muse, than the necessary foundations of a system. Blackstone repeats the venerable doctrine that human laws depend on the law of nature and the law of revelation, and that no laws are valid which conflict with these; but he never dares to apply it to any rule of English law. And when he comes to speak of parliament and monarchy, he has forgotten that odd proof of the perfection of the British constitution, with its divine combination of power, wisdom, and goodness, of which Bentham made such easy fun. He does not so much as pretend to be original. He is so dependent on others that he adopts not only their opinions but even their language, and by no means always does he let us know that he is quoting. He does not refer to Locke when he is stating, practically in Locke’s words, the theory of the right of society to inflict punishment; he never mentions the name of Burlamaqui, who was his guide, most faithfully followed, in the analysis of laws in general; and he fails to acknowledge half his obligations to Montesquieu.[10] Indeed, the free use he makes of Montesquieu’s famous chapter on the English constitution would be appalling, did we not remember that he was only following a professional custom of appropriation, which legal authors have not yet wholly abandoned. There is, in fact, scarcely a single sentence of that chapter which has not, somewhere or other, found its way into the _Commentaries_; and, as often as not, the Commentator leaves us to infer that the reflections are his own.

[10] Blackstone does not seem to have read either Burlamaqui or Montesquieu in French. He invariably uses the words of Nugent’s translations, which had then been recently published.

In estimating the value of Blackstone’s work, however, we should not make too much of the fact that his general theories are either weak or borrowed. The truth is that when we have got rid of them we have not touched the substance of the work itself; his exposition of English law remains unaffected, whether they be true or false. Moreover, these same theories of his have a considerable indirect interest; for as they afford us an opportunity of observing how, at a turning-point in the history of modern thought, certain important ideas acted upon an intellect, which, from its very want of independence and courage, all the better reflected the common opinions of the time. His philosophy exhibits the doctrine of the social contract in a state of decay, and enables us to watch the English mind preparing itself for utilitarianism.

Blackstone refuses to accept the social contract in its naked form; he ridicules the notion of individuals meeting together on a large plain to choose the tallest man present as their governor; and he traces the growth of society upwards from the family living a pastoral life to the settled agricultural community. His conception of social development comes as near the current modern theories as that of any thinker of his century, save Mandeville. But the social contract was too tempting to be altogether abandoned. He speaks of it as a tacit agreement between governor and governed, of protection on the one side and submission on the other, and from this implied agreement he draws conclusions as freely as if it were a historical fact. Stating Locke’s theory without any qualification, he bases upon the contract (for he recurs to the word) the right of society to punish crime. The laws under which thieves suffer were made, he tells us, with their own consent. So he says that the oath of allegiance is nothing more than a declaration in words of what was before implied in law. And he justifies the Revolution on the ground that King James had endeavored to subvert the constitution by breaking the original contract. Believer as he is in the law of nature, Blackstone is more than half a utilitarian. True, he has based all law on both the natural and the revealed law; but by a fortunate coincidence everything that tends to man’s happiness is in accordance with the former. Except where the revealed law applies, the actual rule of life is that man should pursue his own true and substantial happiness. “This,” he says, “is the foundation of what we call ethics or natural law.” Throughout the whole of his work his tests are purely those of utility, and with his broad principles of unbending orthodoxy he mingles theories, some of which the most thoroughgoing utilitarian would think too bluntly stated. Repudiating the notion of atonement or expiation, he maintains that punishment is only a precaution against future offences. He treats property as an adventitious right, unknown in the natural state; and to the amazement of some of his editors he has the courage to face the logical result, that theft is punished, not by any natural right, but only because it is detrimental to society. It is a _malum prohibitum_, not a _malum in se_. He goes so far as to say that where the law prohibits certain acts under pecuniary penalties, the prohibition does not make the transgression a moral offence, or sin, and that the only obligation in conscience is to submit to the penalty. He affirms as a thing beyond doubt that human laws have no concern with private vices. And he professes to defend the measures which placed Catholics and Dissenters under disabilities, not upon theological grounds, but simply because all dissent is subversive of civil government. We may be sure that Blackstone would not have spoken as he did if he had believed that average men in his time would consider his doctrines offensive; and taking him as an index of contemporary opinion, we can see that the field was ready for Bentham.

Blackstone’s hostility to reform has a special interest. There is, perhaps, no better example to be found in our literature of the typical Englishman, who loves his country, who considers its constitution the best constitution, its laws the best laws, and the liberty which its citizens enjoy the completest liberty which the world has known. He was conservative by circumstances and profession, as well as by temperament. His opinions were formed at a time when men lived politically at a lower level than they ever did before or have done since. No bold reforming spirit could have grown up in the Jacobite unrest of half a century, with the Whigs, to all appearance, permanently seated in power, and desirous of showing that the party of the Revolution was capable of moderation. There was no party of progress. No clear line of principle divided Whigs from Tories; so that it became a plausible thesis that they had exchanged positions. There were, in short, no great ideals in the air, which could stimulate to movement such a sluggish man as Blackstone. Perhaps some of his conservatism was due to his profession. The instances are probably rare of an English lawyer, with either extensive practice or great learning, who, on questions of personal liberty, whether of religion or of speech or of trade, has stood far in advance of the average opinion of his age. The profession tends to foster conservatism. The habit of deciding by precedents and usage is not to be shaken off when the mind turns from law to politics; and the men who declared that the common law is the perfection of reason, and who thought that it savored of profanity to speak disrespectfully of common recoveries, could not be expected to doubt the excellence of the British constitution or the necessity of Catholic disabilities. Something, too, must be allowed for the influence of a training which both narrows the scope of reasoning, and within the narrower limits makes it close and unbroken. A mind so schooled will naturally shrink from the gaps in evidence which the innovator must boldly face and overstep. May we not in the same way explain the alleged conservatism of men of science?

The main theme of Blackstone’s teaching is that of contentment with a constitution which to him seemed as nearly perfect as any work of man can be. “Of a constitution,” he says, “so wisely contrived, so strongly raised, and so highly finished, it is hard to speak with that praise which is justly and severely its due: the thorough and attentive contemplation of it will furnish its best panegyric. It has all the elements of stability; for by a graduated scale of dignity from the peasant to the prince, it rises like a pyramid from a broad foundation, diminishing to a point as it rises. It is this ascending and contracting proportion” he says, with the law of gravitation in his mind, “that adds stability to any government.” “All of us have it in our choice,”these are Blackstone’s words, “to do everything that a good man would desire to do; and are restrained from nothing, but what would be pernicious either to ourselves or our fellow-citizens.” He does not, however, mean us to accept this statement too literally. He allows that the constitution has faults—“lest we should be tempted to think it of more than human structure”—and he is careful to tell us what he means when he says that this or that institution is perfect. As the expounder and historian of English law, he uses words of higher praise than he would do if he wrote as a politician. He feels that he is dealing with the spirit of laws, and that it is not his business to consider every change of circumstances which may have impaired their efficiency. To point out each defect, or to suggest ways of amendment, would, moreover, have been alien from the purpose of a work in which he sought to interpret the laws and to teach respect for them; and therefore he does not guard himself against exaggeration, sharing the opinion of Burke, that we only lessen the authority of the constitution if we circulate among the people a notion that it is not so perfect as it might be, before we are sure of mending it. He has in his mind the idea of a theoretical perfection not incompatible with practical injustice. In a well-known passage he says that _by the law_ as it stood in the time of Charles II., “the people had as large a portion of real liberty as is consistent with a state of society,” naming the year 1679 as the point of time at which he would fix what he calls the _theoretical_ perfection of our public law; and yet he observes that “the years which immediately followed it were times of great _practical_ oppression.”[11] This is in substance the view of Burke when he says that the machine is well enough for the purpose, provided the materials were sound. Indeed there is scarcely one of Blackstone’s thoughts on politics and government which may not be paralleled in the writings and speeches of Burke. They were agreed that our representative system was practically perfect; that religious dissent is subversive of civil government; and that the people were bound by their original contract to a scheme of government fundamentally and inviolably fixed on king, lords, and commons. Burke was among the first to read and admire the _Commentaries_; and had Blackstone lived ten years longer he would have read the _Reflections on the Revolution in France_, and applauded every word. We might describe him, in fact, as a Burke with the genius left out.

[11] This is Fox’s comment on the passage:—“How vain, then, how idle, how presumptuous is the opinion that laws can do everything! and how weak and pernicious the maxim founded upon it, that measures, not men, are to be attended to!”

Over Blackstone’s mind the antiquity of the constitution exercised a potent spell. The retrospective imagination, as it has been called, made him regard with reverence institutions that reach back to a time whereof the memory of man runneth not to the contrary. The parliament and the monarchy, the sheriff, the corner, and trial by jury, seemed to be less the work of man’s hands than to partake of the dignity and immutability of the laws of nature; and the sense of trivial anomalies was lots in the veneration which he felt for a system of laws embodying in unbroken continuity the wisdom of a thousand years. It is not an unworthy emotion. There are few, let us hope, who have never been stirred by reflecting on the growth of that English liberty, which finds splendid voice in the prose of Milton, and whose presence, with “its gallery of portraits, its monumental inscriptions, its records, evidences, and titles,” glows in every line of Burke. On its practical side the emotion may be healthy or may be baneful. We call him the crudest of politicians who never reflects that our laws have grown with the people, that they contain the experience of a nation, and are not the paper schemes of clever theorists, and that they are surrounded by traditions which no convulsion ever swept away and which give them half their strength. It is this that a greater lawyer than Blackstone meant when he said that time is the wisest thing in the inferior world. But to timid natures antiquity becomes the proof, and not merely the evidences of excellence; so that the mind is led to make a severance between the past and the present, and while respecting the constitution as a thing of gradual growth to forget that the growth continues. Blackstone’s whole nature was affected by this illusion of distance. It distorted alike his historical beliefs and his practical judgments. It made him maintain, as Bolingbroke did, that our liberties are but the restoration of the ancient constitution of which our Saxon forefathers were deprived by the policy and force of the Normans. To Montesquieu’s opinion that as Rome, Sparta, and Carthage lost their liberties, so those of England must in time perish, it made him give the naïve reply that Rome, Sparta, and Carthage, at the time when their liberties were lost, were strangers to trial by jury. It made him spend all his ingenuity in defending the rule of descent which excluded kinsmen of the half-blood. And it was the chief cause of the contempt which, like Coke, he had for statute law. Though he never ventures to say so in plain terms, as his predecessors did with something more than rhetorical belief, yet at heart he is convinced that the common law is the perfection of reason.

Yet to represent Blackstone’s mind as absolutely stationary would be unjust; for now and again he puts forward a gentle suggestion of improvement. He draws attention to defects in the system of trial by jury, and makes several excellent proposals for its amendment. He even anticipates the legislation of our own day when he points out that our laws are faulty in not constraining parents to bestow a proper education on their children. He recognises the possibility of a change in political representation, which would admit the people to a somewhat larger share; and it is doubtless on the strength of that mild admission that Major Cartwright included him in the list of men conversant with public affairs who had expressed themselves in favor either of a fair representation or of short parliaments. The criminal law seemed to him very far from perfect. Within his own lifetime it had been made a capital crime to break down the mound of a fish-pond whereby any fish should escape, or to cut down a cherry-tree in an orchard. These laws would never have been passed, he says, with a confidence which it is not easy to share, if, as was usual with private bills in his days, public bills had been first referred to some of the learned judges for their consideration. It was still felony without benefit of clergy to be seen for one month in the company of the persons called Egyptians. He believed that this would not have continued, if a committee were appointed at least once in a hundred years to revise the criminal law—a proposal which his friend Daines Barrington made about the same time and worked out in some detail.

His conservatism, or, to give it the harsher name, his hostility to reform, was in great part due to timidity and insufficient knowledge of the world. He was a shy and reserved man, whose life was divided between one kind of narrowness at Westminster, and another kind of narrowness at Oxford. He was shut off from the real life of England. Among his books, which taught him that the state should foster trade, he could know only by hearsay of the new industrial movement then beginning to transform the country, and destined soon to sweep away the absurdities which he upheld, such as the innumerable attempts to fix the rate of wages, the navigation laws, and the statute of Charles II., commanding the people to bury their dead in wool. The very fact that he does not suggest a compromise between restriction of trade and its freedom, leads one to infer that he had never seriously thought about the question. Only with regard to apprenticeship does he mention that a doubt could exist, and then he refrains from giving a clear opinion. Amid the Toryism of Oxford, where he had seen students expelled for Methodists, Blackstone was hardly likely to understand what toleration, much less what religious freedom, meant. He deprecated persecution, once indeed he uses with unwonted energy the phrase “dæmon of persecution,”[12] but it is rather under the impulse of a mild humanity than from any trust in the people or any large love of liberty. When a strong protest was raised by Dr. Priestley and Dr. Furneaux against his account of the laws relating to Protestant Dissenters, whom almost in so many words he called dangerous citizens, he seems to have been quite surprised at the attack. He wrote a pamphlet in reply to Priestley, explaining that his aim had been to expound the law not justify it, which was not quite accurate, and declaring that he was all for tolerance; and he went so far as to expunge the most obnoxious sentence, and to give in subsequent editions a fuller and somewhat fairer account of the law. Even in its final form the passage is not worthy of one who was speaking from a position of really high authority, which should have induced judicial calmness. “They have made him sophisticate,” said Bentham, referring to Priestley’s and Furneaux’s attack; “they have made him even expunge; but all the doctors in the world, I doubt, would not bring him to confession.” Yet it is not so much utter illiberality of nature that the passage suggests as simple inexperience, and his fixed belief that truth must always be a compromise. He was but echoing the opinion commonly held by churchmen in his time, an opinion which he had never tested by contact with the people.

[12] He is referring, however, to persecution on the Continent and by the Pope.