Part 25

“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.