Blackstone

commentaries

My memory of Enid Campbell’s lectures on William Blackstone was a bit hazy, so David Pannick’s article about him in The Times (‘A sour, morose and imperious judge of the common law’) was welcome.  Until I pulled this picture off Wikipedia, I had no idea the famous author was in fact a hare.  He was the first Vinerian Professor of Law at Oxford. He wrote down the whole of the English common law in his Commentaries on the Laws of England (you can have the pictured copy for US$15,000), back in the days when serious moollah was to be had for doing such things (he netted £14,000, which equates to about £1.5 million according to this calculator based on the retail price index). Volume 1 was published in 1765, when Bach was not long dead, Mozart was 9, Captain Cook had not set sail for Australia, and the first restaurant had just opened in Paris. The average Australian lawyer’s most frequent intercourse with Blackstone is probably the Mabo decision, in which the common law’s view about ‘desert and uncultivated’ colonies featured.  This is the passage:

“Plantations or colonies, in distant countries, are either such where the lands are claimed by right of occupancy only, by finding them desert and uncultivated, and peopling them from the mother-country; or where, when already cultivated, they have been either gained by conquest, or ceded to us by treaties. And both these rights are founded upon the law of nature, or at least upon that of nations. But there is a difference between these two species of colonies, with respect to the laws by which they are bound. For it hath been held, that if an uninhabited country be discovered and planted by English subjects, all the English laws then in being, which are the birthright of every subject, are immediately there in force. But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law, as is applicable to their own situation and the condition of an infant colony; … What shall be admitted and what rejected, at what times, and under what restrictions, must, in case of dispute, be decided in the first instance by their own provincial judicature, subject to the revision and control of the king in council: the whole of their constitution being also liable to be new- modelled and reformed by the general superintending power of the legislature in the mother-country. But in conquered or ceded countries, that have already laws of their own, the king may indeed alter and change those laws; but, till he does actually change them, the ancient laws of the country remain, unless such as are against the law of God, as in the case of an infidel country. Our American plantations are principally of this latter sort, being obtained in the last century either by right of conquest and driving out the natives (with what natural justice I shall not at present inquire) or by treaties. And therefore the common law of England, as such, has no allowance or authority there; they being no part of the mother-country, but distinct (though dependent) dominions. They are subject, however, to the control of the parliament”.

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