Blackstone’s Criminal Law: Common-Law Harmonization and ... · discussion of criminal law, a subject that he seems to have deemed eligible for such treatment insofar as it was aligned

3Blackstone’s Criminal Law: Common-Law

Harmonization and Legislative Reform (1769)

Simon Stern

IntroductionWell known as an apologist for the status quo and an elegant stylist whose stately cadences and perfectly balanced sentences strive to present the common law as an impermeable system, Blackstone is often seen as an exponent of contemporaneous law, one whose efforts were devoted to synthesis and generalization rather than criticism or normative appraisal.1 Indeed, when modern jurists turn to Blackstone, it is usually because of their assumption that the Commentaries can be taken to provide an accu-rate picture of eighteenth-century English legal thought and practice, a picture whose objectivity is guaranteed because of the author’s aim to give a comprehensive account of the law as it stood, not of the law as he wished it to be. There is much to be said for the view of Blackstone as an advocate for the correctness of the law—a view found among commentators from Bentham to Kennedy.2 Moreover, Blackstone’s style has a deep affinity with his celebratory aims: his style does not simply amplify those aims but is itself a means of achieving them, as we may see from some of his most famously rhe-torical statements, which strive to evoke, through their use of metaphor, the value of gradual legal change and the danger of attempting to hasten it.

Nevertheless, Blackstone was also an advocate of legal reform, most notably in his discussion of criminal law, a subject that he seems to have deemed eligible for such treatment insofar as it was aligned with statutory law rather than common law. Thus Blackstone was among the first in the Anglo-American legal tradition to combine the roles of expositor of contemporary doctrine and advocate for reform, a combination that today is taken for granted as a primary task of legal scholarship. He recommends the benefits of his comparative method in terms that are certain to leave the modern reader disappointed: despite the evaluative aims and the search for coherent principles that ostensibly guide the inquiry, Blackstone accepts and even rationalizes numerous common-law doctrines that are open to question, and he often seems to be preparing a

1 Blackstone, Commentaries on the Laws of England (1765-69).2 Bentham called Blackstone a “corrupt defender” of laws that were “never to be censured . . . [or]

found fault with” and a “tranquil copyist and indiscriminate apologist”; J Bentham, A Comment on the Commentaries (1977) 398–400, 202. Austin could not find “a single particle of original and discriminating thought” in the Commentaries; J Austin, The Province of Jurisprudence Determined (1832) lxiii. For Dicey, Blackstone “perpetually plays the part of the apologist” and is so intent on “fix[ing] a reasonable ground for the pettiest customs” that he “occasionally . . . forget[s] the common-sense characteristic of his time”; AV Dicey, “Blackstone’s Commentaries” (1932) 4 CLJ 286, 292.

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challenge only to deflect it or ignore it completely. This is particularly true for his dis-cussion of mens rea, a subject that he initially seems eager to investigate, but quickly forecloses. Yet his efforts at comprehensive analysis, even when their results are unsat-isfying, lay the groundwork for a kind of critical investigation that we rarely see in his precursors. In what follows, I begin by examining this method in more detail, and then turn to his discussion of the mental element in criminal offenses. The next section takes up Blackstone’s reliance on Beccaria in arguing for reform in criminal punishment, and the final section contrasts Blackstone’s views on legislative reform with his treatment of the common law, which he strives to shield from rash and inexperienced legislators.

2. The Method of IntegrationBlackstone is usually credited (if he is credited at all) as the first English scholar to attempt a comprehensive and detailed account of the common law in all its facets.3 Indeed, the most obvious way in which his account of criminal law differs from earlier ones is that he examines the subject as part of an overall scheme, looking at its place in the legal system more generally. The significance of this detail is evident not only from the appearance of the criminal law volume as the last one in his four-volume arrange-ment, but also from his numerous cross-references to points addressed in the other volumes—a feature that highlights the connections animating the whole enterprise and that models, for the “industrious student,” what it means to study in a “scholarlike sci-entifical manner” through analogy and alignment, thus showing by example how the student might continue independently to investigate the law’s status as a “rational sci-ence.”4 Blackstone’s emphasis on underlying principles and his concern with overall coherence are among the most important attributes that differentiate his work from earlier, more practice-oriented texts such as those by Hale and Hawkins, and this ori-entation is closely linked to the Commentaries’ origins as a series of lectures. The peda-gogical function was crucial to Blackstone’s mode of presentation, just as it would be for James Kent’s Commentaries on American Law in the 1820s.5

Another reminder of the Commentaries’ origins in the lecture hall, and a feature that enhances Blackstone’s mode of exposition, involves his wide range of literary and his-torical reference. Like the other volumes of the Commentaries, the volume on crimi-nal law evokes a full array of English legal commentators—in this case spanning from Bracton and Fleta, to Sir Edward Coke and Francis Bacon, to Sir Michael Foster and Richard Burn—and also includes numerous references to classical sources (such as Cicero, Horace, and Tacitus) and more contemporary writers such as Locke, Addison, Swift, Voltaire, Montesquieu, and Beccaria. As his casual allusions sometimes suggest,

3 Other institutional writers had also given synthetic accounts of English law, but they did not focus on the common law, as Blackstone did. Instead, they tended to argue for the importance of civil law within the English legal system (and even within the common law); JW Cairns, “Blackstone, an English Institutist: Legal Literature and the Rise of the Nation State” (1984) 4 OJLS 318.

4 Blackstone, Commentaries, vol 2, 44, 2. On the use of cross-referencing in early modern texts, see A Blair, Too Much to Know: Managing Scholarly Information before the Modern Age (2010) 140–1, 171–2, 260–2.

5 Girard, “Of Institutes and Treatises” in A Fernandez and MD Dubber (eds), Law Books in Action: Essays on the Anglo-American Treatise (2012) 43, 47; R Pound, The Formative Era of American Law (1938) 163.


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Blackstone could take it for granted that his students were already familiar with some of these figures; in fact, that appears to be the very reason for citing them. For exam-ple, rather than identifying Swift by name, Blackstone mentions Gulliver’s Travels in a manner that signals a shared frame of reference. Punishing the authors of seditious publications, he writes, does nothing to restrain the freedom of thought in private: “A man (says a fine writer on this subject) may be allowed to keep poisons in his closet, but not publicly to vend them as cordials.”6 The turn to Swift, rather than a philosopher or legal commentator, is of a piece with the broader aim of Blackstone’s allusive tech-nique, which serves not simply to impart a literary flavor to the discussion, but to show, through a diverse range of reference, how numerous writers in both classical and native traditions—as well as prominent continental thinkers—concur in the common sense that informs English criminal law. As Nicole Wright has observed, in describing the lectures of Robert Chambers (Blackstone’s successor in the Vinerian Chair), “legal con-cepts are more persuasive when characterized as the product of consensus,” achieved by consulting “a welter of sources.”7 As even the short list above shows, Blackstone relies heavily on legal authorities; however, rather than displaying this consensus in Coke’s fashion, as the “artificial perfection of reason” produced over “many succes-sions of Ages” by “an infinite number” of jurists,8 Blackstone could say that the law is “fraught with the accumulated wisdom of the ages”9 while also deriving this wisdom from sources familiar to the many in his audience who had no legal background and no desire to pursue their legal studies any further.

As others have noted, Blackstone’s mode of organization closely tracks those of his two most recent precursors in the area of criminal law, Sir Matthew Hale and William Hawkins.10 Both followed a similar pattern, covering the subject in two volumes that dealt with substantive issues in the first book and procedural issues in the second, just as Blackstone does. Each of the three approaches crimes in a slightly different order. Blackstone opens with a discussion of the “nature of crimes” found in neither of his precursors, and then orders the discussion according to the magnitude of the breach, moving from religious offenses, to offenses against the law of nations (one of his inno-vations), to crimes against the state, public peace, and public health, and finally to crimes against individuals (murder, assault, property damage). Hale and Hawkins cov-ered most of the same offenses, but ordered them very differently; Blackstone proceeds in a fashion that might be likened to a novelistic plot, making it easier for the reader to

6 Blackstone, Commentaries, vol 4, 156. The King of Brobdingnag offers this analogy in precisely the same context: “He said, ‘he knew no reason why those, who entertain opinions prejudicial to the public, should be obliged to change, or should not be obliged to conceal them. And as it was tyranny in any govern-ment to require the first, so it was weakness not to enforce the second: for a man may be allowed to keep poisons in his closet, but not to vend them about for cordials.’ ” See J Swift, Gulliver’s Travels (1726) pt 2, ch 6.

7 NM Wright, “‘A More Exact Purity’: Legal Authority and Conspicuous Amalgamation in Eighteenth-Century English Law Guides” (2013) 82 U Toronto Q 864, 882.

8 Coke, The First Part of the Institutes of the Lawes of England (1628) 97b. Blackstone echoes this view, and evidently has Coke in mind, when commending “our lawyers” for their “copious . . . encomiums on the reason of the common law” to the effect that “the law is the perfection of reason, . . . it always intends to conform thereto, and . . .what is not reason is not law”; Blackstone, Commentaries, vol 1, 70.

9 Blackstone, Commentaries, vol 4, 435.10 Hale, Historia Placitorum Coronæ: The History of the Pleas of the Crown (1736); W Hawkins, A Treatise

of the Pleas of the Crown (1716-21). Hale, whose treatise was published posthumously, died in 1676.


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navigate and implicitly advancing an argument about the gravity of any given offense in the overall scheme. In dealing with procedural matters, Blackstone offers a new contri-bution by starting with a chapter on preventive justice, covering “pledges and securities for keeping the peace, or for . . . good behaviour”11 —a topic that surfaces only fragmen-tarily in Hale and Hawkins. The remainder of Blackstone’s discussion, again, is largely narrative, starting with jurisdiction and then considering the criminal process from arrest, bail, and trial up to conviction, appeal, and execution. In this respect Blackstone repeats the structure that the other two writers had already made conventional.

Criminal law was a particularly opportune field for Blackstone’s unifying effort because of the jurisdictional changes of the seventeenth century, which had expanded the range of offenses that the common-law courts were authorized to hear, with the result that the violent crimes categorized as “pleas of the crown” no longer exhausted the list of criminal offenses. In addition to the “crimes of force” that had traditionally filled their criminal dockets, courts of common law were now also assigned the “crimes of cunning,” and various offenses relating to morals and religion, that had previously been the concern of the Star Chamber and the prerogative courts.12 Crimes involving deception and furtive conduct—such as extortion, forgery, fraud, and conspiracy—had fallen within the jurisdiction of the Star Chamber until its abolition in 1641.13 Offenses against religion—such as apostasy, heresy, blasphemy, and witchcraft—had been the province of the Court of High Commission, which was abolished along with the Star Chamber.14 The result was to supplement the common-law courts’ jurisdiction over pleas of the crown with a new and diverse array of offenses, many of which involved more complicated questions about the match between act and intention, or about the means of discerning intent. In attempting to map out a body of criminal law as a uni-fied field after this consolidation, Blackstone was presented with the question of how to organize these various crimes within a coherent framework.

To be sure, this question might also have occupied Hale and Hawkins, both of whom had included the full range of newly transferred crimes in their texts on criminal law. Yet neither of them had sought to explain what connected the acts and omissions in this catalogue, so as to unite them in a distinct and well-defined sphere. Blackstone’s solu-tion was to present them all as disruptions of the social order: “[P] ublic wrongs . . . are a breach and violation of the public rights and duties, due to the whole community, considered . . . in its social aggregate capacity”.15 Although this was not a novel theory of crime, Blackstone would use it to structure and develop his account of the field in a way that his precursors had not. As others have observed, this approach often leads him into circular or specious arguments. He suggests, for example, that libels have an impact on the community as a whole because their “direct tendency . . . is the breach of the pub-lic peace, by stirring up the objects of them to revenge, and perhaps to bloodshed,”16

11 Blackstone, Commentaries, vol 4, 248.12 TG Barnes, “The Making of the English Criminal Law: Star Chamber and the Sophistication of the

Criminal Law” (1977) Crim LR 316, 316.13 HJ Berman, Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal

Tradition (2003) 311. Berman notes that “as late as 1640, the common law did not punish the crimes of bribery, extortion, forgery, perjury, fraud, libel, sedition, or conspiracy.” 14 Berman (n 13) 312.

15 Blackstone, Commentaries, vol 4, 5. 16 Blackstone, Commentaries, vol 4, 150.


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but any number of civil wrongs might be turned into crimes on this basis.17 Similarly, in struggling to explain why the game laws are crimes, Blackstone points to the ten-dency “in low and idle persons . . . [to] promot[e] idleness . . . which is an offence against the . . . œconomy of the commonwealth.”18 As with the habit of cross-referencing, the frequent gestures towards coherence are significant even when unpersuasive, because of the aspiration that Blackstone keeps so prominently in view. By reiterating the basic theme, he shows how jurists should proceed when examining law as a rational science, and furnishes the reader with the means to criticize the argument being advanced—an opportunity that would not even arise in a practice manual that does without the con-nective tissue. The search for coherent principles would provide an evaluative model for other commentators, including Bentham, whose general hostility towards the Commentaries gave way to muted praise for Blackstone’s treatment of criminal law.19 Blackstone’s effort to organize the field and to align its scattered parts would remain a distinctive feature for some time to come. While treatises published over the following decades would often continue to do without any discussion of the fundamental princi-ples that characterize crimes,20 the few that did seem clearly to have been inspired by the Commentaries.21

3. Intention, Will, and CapacityFor modern readers, Blackstone’s interest in presenting the conceptual basis of the criminal law often seems to promise more than it delivers. It might seem obvious that the taxonomic exercise of surveying the legal system as a whole, and assigning its com-ponents to their respective places, would yield normative insights at a level of abstrac-tion that cannot be achieved from a close examination of particular subjects. A survey of criminal law might be expected to set out the existing conceptual distinctions that bear on liability, and to probe those distinctions and their purported rationales in order to place them on a stronger footing and to eliminate asymmetries that cannot be discerned when the law is studied at a more granular level. Hence a modern reader

17 Lieberman, “Blackstone and the Categories of English Jurisprudence” in N Landau (ed), Law, Crime and English Society, 1660-1830 (2002) 139, 156.

18 Blackstone, Commentaries, vol 4, 174–5. Indeed, the potentially vast range of such offenses becomes apparent in light of the obligation of “[t] he individuals of the state . . . to conform their general behaviour to the rules of propriety, good neighbourhood, and good manners: and to be decent, industrious, and inof-fensive in their respective stations” (Blackstone, Commentaries, vol 4, 162).

19 Bentham wrote that Blackstone’s method, in vol 4, helps to reveal “[t] he mischievousness of a bad Law” and organizes offenses “by those properties which are reasons for their being made offences”; J Bentham, A Fragment on Government (1776) li, xlvi, xlvii. Lieberman observes that Bentham’s “own jurisprudence fully sustained the Blackstonean project to systematize analytically the law”; Lieberman (n 17) 161; see also Lieberman (n 17) 259–60.

20 See eg EH East, A Treatise of the Pleas of the Crown (1803); J Burnett, A Treatise on Various Branches of the Criminal Law of Scotland (1811); I Espinasse, A Treatise on the Law of Actions on Penal Statutes (1813); J Nares, A Summary of the Law on Penal Convictions (1814); T Starkie, A Treatise on Criminal Pleading (1814); WO Russell, A Treatise on Crimes and Misdemeanors (1819); JF Archbold, A Summary of the Law Relative to Pleading and Evidence in Criminal Cases (1822).

21 See eg H Dagge, Considerations on Criminal Law (1772); M Dawes, An Essay on Crimes and Punishments (1782); D Hume, Commentaries on the Law of Scotland Respecting the Description and Punishment of Crimes (1797).


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might expect to find, in Blackstone’s account, some discussion of acts versus intentions, attempts versus completed offenses, and civil versus criminal proof standards, among other topics. That Blackstone pursues these subjects only tangentially and intermit-tently may be explained by the relatively scant attention devoted to them in the treatises and cases he had at his disposal. It was only in the nineteenth century, in a body of theo-retical literature (and with the aid of an analytical method) facilitated to some extent by Blackstone’s model, that many of these distinctions came into visibility.22

Thus, for example, in his treatment of standards of proof in criminal law, Blackstone ventures little beyond a few comments about the number of witnesses required to secure a conviction for certain crimes. To be sure, the courts had not yet settled on the phrase “beyond reasonable doubt” to describe the level of certainty required to justify a criminal conviction, but despite his insistence that “it is better that ten guilty persons escape, than that one innocent suffer,”23 Blackstone says little about how the jury should determine guilt, except to observe that “the truth of every accusation . . . should . . . be confirmed” unanimously by the jury.24

His perfunctory treatment of criminal intent, as a matter that might seem distinct from criminal acts, is entirely consistent with this lack of interest in proof standards. Blackstone’s treatment of criminal law includes no “general part,” nor does he even quote the maxim “actus non facit reum nisi mens sit rea.” Further, at various points that might serve as opportunities to probe the mental requirement for crimes, he provides only a cursory discussion of the subject. Consider, for example, his maneuvers around the issue when discussing what is meant by “compassing or imagining the death of the king” in a prosecution for treason.25 Private thoughts, he observes, cannot be action-able: “[A] n act of the mind . . . cannot possibly fall under any judicial cognizance, unless it be demonstrated by some open, or overt, act.”26 Moreover, even when they are pub-lished, “there can be nothing more equivocal and ambiguous than words,” and therefore “it would . . . be unreasonable to make them amount to high treason.”27 Nevertheless, “[i]f the words be written out, it argues more deliberate intention” and thus it is not “the bare words . . . but the deliberate act of writing them” that constitutes the overt treason-ous act.28 An equivocal expression, however, becomes no clearer for having been pub-lished. Blackstone ultimately dodges the issue, contenting himself with the observation that formerly, “publication . . . was a sufficient overt act” to support a charge of treason, but “of late even that has been questioned.”29 By whom, and with what result, are not explained, nor does he even support the proposition with a marginal note. Thus what

22 Milsom observes that “[Blackstone’s] work was . . . followed by a new kind of legal literature,” adding that “the nineteenth-century text-books . . . are expansions from his reduction and simplification of the mechanical learning of practitioners. In trying to give laymen a view from above the procedural technicali-ties, he had given lawyers a new vision of the law”; SFC Milsom, “The Nature of Blackstone’s Achievement” (1981) 1 OJLS 1, 9, 10. Simpson writes, “The success of Blackstone encouraged the writing of more detailed studies of branches of the law that had been treated only in outline form by the master. Furthermore, the discursive literary style of the Commentaries, which sharply differentiated such a work from glosses or lists of maxims, must have furthered the idea that this was the better way to expound the principled science of the law”; AWB Simpson, “The Rise and Fall of the Legal Treatise” (1981) U Chi L Rev 632, 658.

23 Blackstone, Commentaries, vol 4, 352. 24 Blackstone, Commentaries, vol 4, 343.25 Blackstone, Commentaries, vol 4, 78. 26 Blackstone, Commentaries, vol 4, 79.27 Blackstone, Commentaries, vol 4, 80. 28 Blackstone, Commentaries, vol 4, 80.29 Blackstone, Commentaries, vol 4, 81.


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begins promisingly, as an argument that mere words are poor evidence of intention, turns into an effort that vacillates between justification of the old policy and doubt as to the current state of the law.

Again, in his treatment of homicide by misadventure, Blackstone focuses on the noble purpose of the presumption of fault rather than dwelling on any problems it might raise. As he explains, “the law sets so high a value upon the life of a man, that it always intends [ie presumes] some misbehaviour in the person who takes it away,” and therefore “[i] n the case of misadventure, it presumes negligence, or at least a want of sufficient caution in him who was so unfortunate as to commit it; who therefore is not altogether faultless.”30 Hence even though “all presumptive evidence of fel-ony should be admitted cautiously” lest an innocent person be convicted,31 this con-cern yields advice about the need to take care in accepting evidence of incriminating facts, but does not extend to presumptions about the defendant’s will. “[A]ll homi-cide,” Blackstone notes, “is presumed to be malicious, until the contrary appeareth on evidence.”32

Another opportunity for probing the mental requirement might seem to arise when Blackstone emphasizes the need “to ascertain the intent” for various crimes, but by this phrase he turns out to mean only that the indictment must use the adverbs which “express the very offence” (eg “burglariously” for a burglary), not that these pose any difficult questions for the trier of fact. Even when probing the “animus furandi” required to prove larceny, Blackstone only goes so far as to explain when intent can-not be presumed: “bare non-delivery [of goods by a carrier] shall not of course be intended to arise from a felonious design; since that may happen from a variety of other accidents.”33 In short, he remains content to explain how the criminal law has applied presumptions involving mental states, rather than subjecting these doctrines to the scrutiny that the method of comparison and alignment makes possible.

Insofar as Blackstone addresses mens rea, he treats the issue as one of capacity, explaining in his second chapter (on “the persons capable of committing crimes”) that all persons may be prosecuted criminally unless there is a “want or defect of will.”34 More precisely, he says that a conviction requires a “vitious will,” observing that “an overt act, or some open evidence of an intended crime, is necessary, in order to dem-onstrate the depravity of the will.”35 To modern readers, this formulation might sug-gest that the prosecution must present evidence as to intent, but Blackstone’s discussion assumes that viciousness may be discerned from the act itself—that is, that an overtly criminal act is the very thing that reveals the actor’s state of mind.36 That capacity serves as the primary setting for his discussion of mens rea may seem odd, but the issue had been handled in precisely this manner by Hale and Hawkins, whom Blackstone closely tracks in this section.

30 Blackstone, Commentaries, vol 4, 186. Similarly, “a man who kills another” in self-defence has some share of the guilt, because “the law intends that the quarrel or assault rose from some unknown wrong” (Blackstone, Commentaries, vol 4, 186–7). 31 Blackstone, Commentaries, vol 4, 352.

32 Blackstone, Commentaries, vol 4, 201. 33 Blackstone, Commentaries, vol 4,230.34 Blackstone, Commentaries, vol 4, 20. 35 Blackstone, Commentaries, vol 4, 21.36 Fletcher, Rethinking Criminal Law (1978) ch 3; N Lacey, “In Search of the Responsible Subject: History,

Philosophy and Social Sciences in Criminal Law Theory” (2001) 64 MLR 350, 361–2.


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Hale’s treatment, in particular, proceeds according to the structure and underly-ing assumptions that Blackstone adopts in a much more compact form. Indeed, Hale begins by spelling out more fully the view of intentional action that Blackstone seems to take for granted: “Man is naturally endowed with these two great faculties, under-standing and liberty of will, and therefore is a subject” on whom criminal sanctions are legitimately imposed, whenever he disobeys a law “which in respect of these two great faculties he hath a capacity to obey.”37 This statement, often quoted by criminal law theorists, delineates the subject who is eligible for punishment, setting out the grounds of subject-hood more concretely than Blackstone does. Hale next considers situations in which these faculties are absent, moving from infancy and lunacy to mistake and accident, and closing with persons whose legal status deprives them of independent volition, or who act under coercion, duress, or necessity. Blackstone follows exactly the same pattern, but does not see this an opportunity to offer an account of personhood in the criminal context, nor does he even provide a cross-reference to the account of persons in his first volume.

The difference between Blackstone’s account and Hale’s—if it is a difference—is that while both commentators focus on capacity, Blackstone’s comments on overt acts and vicious wills bring intention more emphatically into play, even if that issue is quickly collapsed back into capacity. As a means of getting at intent, Blackstone’s “open evi-dence of an intended crime” may seem too thin to sustain any plausible conception of the requisite “vitious will,” but in presenting the formula, Blackstone offers a means of tracing the role of intent in the rest of this chapter and in the volume as a whole. Both writers agree that a defect of the will deprives a person of the ability to form a vicious intention. Turning the analysis around, we see that in Blackstone’s view, inten-tion is nothing more than a question of capacity because the defendant’s state of mind can always be inferred from the act, except when the person cannot form a vicious intention (or is acting under compulsion, so that her ability to form an intention is irrelevant).

Where Hale writes that anyone with sufficient understanding has the capacity to obey the law, Blackstone simply adds that breaking the law therefore manifests the req-uisite degree of intention. No general account of mens rea is required (nor anything like a “general part” distinguishing among degrees of culpable intent) because “open evidence of an intended crime” is always sufficient to show a vicious will unless that assumption can be rebutted by virtue of the defendant’s status. Blackstone might seem to move beyond a status-based view of mens rea by including the possibilities of mis-take and accident, which could open the door for more complicated questions (such as whether the mistake must be reasonable, or whether it should be regarded as an accident if the risk of harm was apparent). But those questions do not even figure in Blackstone’s account, which gives less than a page to mistake and accident. He men-tions them as items on a list of the ways in which act and will might not coincide, but they appear as passing considerations, sandwiched in between the more fully delin-eated figures of the infant, the lunatic, and the feme sole. Notably, Blackstone’s most intensive inquiry into cognitive states involves procedural questions about delaying

37 Hale (n 10) vol 1, 14.


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legal process for persons who become mentally incompetent after committing a crime, but before being arraigned, or during trial, or after conviction.38 Competency to stand trial (and to be sentenced) thus corresponds to the capacity requirement that resolves questions of intention.

By making capacity the touchstone of the inquiry, Blackstone brackets the questions that might have been prompted by closer analysis of the “crimes of cunning” that had been transferred to the common-law courts. He takes the model of “manifest criminal-ity” associated with the “crimes of force” that had already been treated under pleas of the crown, and applies that model to the crimes of cunning as well. For those crimes, too, a court cannot “fathom the intentions of the mind, otherwise than as they are demonstrated by outward actions.”39 To modern eyes, this formula fails to account for crimes in which the characterization of the outward action itself depends crucially on the role of the actor’s intentions, but as Nicola Lacey has observed, in Blackstone’s era “the institutional mechanisms needed to render subjective responsibility an object of proof in a criminal trial were not yet in place . . . nor was the lack of them yet felt to be a pressing practical or ethical problem.”40

4. Blackstone’s Beccarian Reform AgendaThis account of capacity, in turn, informs Blackstone’s account of the law’s deterrent effects and the proper way to craft it, in light of those effects. He sees persons in general as responding rationally to the law’s concern (or disregard) for proportional distinc-tions in punishment, and so he predicts that without well-justified distinctions,

men . . . will be led to conclude there is no distinction in the guilt. Thus in France the punishment of robbery, either with or without murder, is the same: hence it is, that though perhaps they are therefore subject to fewer robberies, yet they never rob but they also murder . . . [whereas] in England, . . . robbers have a hope of transportation, which seldom is extended to murderers. This has the . . . effect . . . [of] preventing fre-quent assassination and slaughter.41

The view of human motivation and deliberation displayed here is strikingly unreal-istic, and elsewhere Blackstone acknowledges that people behave unpredictably and irrationally.42 Nevertheless, the reform agenda that Blackstone pursues proceeds from

38 Blackstone, Commentaries, vol 4, 24–5. 39 Blackstone, Commentaries, vol 4, 21.40 N Lacey, “Psychologising Jekyll, Demonising Hyde: The Strange Case of Criminal Responsibility”

(2010) 4 Crim L & Phil 109, 118.41 Blackstone, Commentaries, vol 4, 18. Blackstone cites Montesquieu’s Spirit of the Laws (1748) bk 6, ch

16, for these observations. Others would later take up this idea. Sade, for example, places it in the mouth of a criminal who uses it to defend himself: “These crimes are the law’s fault and not ours. If thieves are punished like murderers, they will kill to avoid being caught”; DAF de Sade, La nouvelle Justine (1797) vol 1, 104 (my translation). Alessandro Verri, one of Beccaria’s associates, observed that thieves in fact do not kill their victims, even though that would make it easier for them to escape prosecution, and therefore would be the usual course if thieves were behaving rationally; A Verri, Lettere e scritti inediti di Pietro e di Alessandro Verri (1879) vol 2, 97–8 (letter dated 2 Feb 1767).

42 eg he underscores the importance of a general familiarity with the criminal law because anyone may “at some time or other” be embroiled in its meshes, given “[t] he infirmities of the best among us, [and] the vices and ungovernable passions of others” (Blackstone, Commentaries, vol 4, 2).


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the assumption that the capacity to control one’s actions is sufficient to make human behavior legible according to the criminal law, so that properly crafted penalties, with the differences appropriately calibrated, will produce the right incentives.

Thus it turns out that insofar as the concern with unification and coherence leads Blackstone to consider theoretical issues involving the legitimacy of criminal law, these are not primarily questions embedded in the common law of substantive crimes, but questions associated with punishment, a topic that he considers in its statutory mani-festations. In particular, Blackstone emphasizes the need for proportionality in sen-tencing (which leads him to question the appropriateness of capital punishment for numerous crimes) and the importance of swift and certain punishment if criminal law is to have a deterrent effect. Both points are borrowed from Beccaria’s Essay on Crimes and Punishments.43 Blackstone also addresses the need for clarity in the definition of crimes, a topic that embraces both common law and statutory law.

This is a notable pattern because the Commentaries prepares the reader, at the outset, for a discussion of legal reform as one of the benefits made possible by the scientific approach that distinguishes this enterprise—and in articulating this goal, Blackstone suggests that reform of the common law will be the focus. In his introductory com-ments at the start of the first volume, he presents law as a “science . . . to be . . . method-ized,”44 and enumerates various “advantages that might result to the science of the law” from this mode of study, including the prospect of “suggest[ing] expedients . . . for improving [the law’s] methods, retrenching its superfluities, and reconciling the little contrarieties, which the practice of many centuries will necessarily create in any human system.”45 While statutory law could potentially fall under this description, common law seems the more obvious target of a discussion about the need to readjust incon-sistencies arising in a “system” that has developed over “many centuries.” Yet in the first three volumes, Blackstone makes few suggestions for reform, and the recommen-dations he does offer relate primarily to concerns about the undue expansion of royal power rather than the need to iron out discrepancies that have crept into the common law over time.46 It is easy to imagine that Blackstone might have completed the pro-ject in the same spirit, showing in the fourth volume how English criminal law may be traced from its historical roots and examined methodically in its substantive and pro-cedural aspects, without the need to direct attention to any particularly serious prob-lems requiring correction.

Nor would his audience necessarily have objected to this procedure, despite his introductory remarks about the value of retrenching excesses and reconciling contra-dictions. English legal treatises up to Blackstone’s time had made it their business to describe and, perhaps, to organize particular fields of law, not to identify deficiencies that stood in need of correction.47 As a late-eighteenth-century commentator would observe,

43 Beccaria, An Essay on Crimes and Punishments (1767) (1st edn, 1764); see also AJ Draper, “Cesare Beccaria’s Influence on English Discussions of Punishment, 1764–1789” (2000) 26 History of European Ideas 177. 44 Blackstone, Commentaries, vol 1, 4. 45 Blackstone, Commentaries, vol 1, 30.

46 See eg Blackstone, Commentaries, vol 1, 260–1.47 This point is implicit in Simpson’s account (n 22); see eg 638, 641.


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Most of our treatises on particular titles of the law, contain little more, than a collec-tion of the cases that are to be found in the reporters on such title, disposed without method, and without establishing or deducing any general principles, . . . so that they consist merely of a number of bare facts.48

If the advocate, in his professional capacity, was often required to argue for change in the particular circumstances that thwarted his client, for eighteenth-century law-yers this task did not apply to the production of treatises, which presented themselves as summations of extant law, statements about what the law was rather than what it should be. This is not to say that criticisms of the legal system or of certain laws or doc-trines were unknown until Blackstone’s time, but rather that such criticism was not a routine feature of treatises or guides to the law in a particular area.49 Commentators and pamphleteers might argue for reform, but this was not seen as part of the task of someone who undertook to explain the law of conveyancing, or evidence, or crimes.

Hence the surprising feature is not so much that Blackstone affords little space to questions of legal reform in the course of his four volumes, but rather that he even men-tions the topic as one of his aims. Indeed, one may doubt that he considered this to be an especially important aspect of his enterprise. Having been elected to the Vinerian Chair in 1758, Blackstone had been lecturing in that capacity for seven years by the time he came to publish the first volume of the Commentaries, and had established an overall scheme in which law reform did not play a significant role. The passage quoted earlier, in which he delineates the various means of readjusting the laws, first appeared in the “introductory discourse” prefixed to the third edition of An Analysis of the Laws of England, accompanied with a notation that the lecture had been delivered “in the public schools at Oxford, October XXV, M.DCC.LVIII.”50 In this account of the critical perspective afforded by methodical scrutiny and comprehensive coverage, Blackstone conveys an optimism that befits the occasion, and he sets out a rationale of the precisely the sort that seems necessary to justify the treatment of the common law as a subject of university study, serving at once to endow his lectures with the kind of sophistication already associated with education in civil law and to contrast his course of study against the practical training offered in the Inns of Court. Since commenc-ing the lectures, however, he must have seen that reform did not feature significantly in his presentation of the law, and indeed in the course of the Commentaries he tends to counsel against reform as rash and misguided. Yet he did not revise the “introduc-tory discourse” accordingly, presumably because he thought these lofty words lent the enterprise a dignity and seriousness that were worth retaining.

48 W. Cruise, An Essay on the Nature and Operation of Fines (1783) sigs A2r-v. By the early-nineteenth century, Cruise could rephrase this characterization to indicate that the treatise literature was becoming more sophisticated; see W. Cruise, A Digest of the Laws of England Respecting Real Property (1804) vol 1, v–vi; Milsom (n 22) 9.

49 B Shapiro, “Law Reform in Seventeenth Century England” (1975) 19 Am J Legal History 280; L Farmer, “Of Treatises and Textbooks: The Literature of the Criminal Law in Nineteenth-Century Britain” in Fernandez and Dubber (n 5) 145, 169.

50 Blackstone, An Analysis of the Laws of England (3rd edn, 1758) lviii, xii. The Analysis was first published in 1756. The “introductory discourse” appeared in the following two editions of Blackstone’s Analysis (1759 and 1762) but was dropped from the sixth edition (1771).


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After reading Beccaria, however, Blackstone would find a means of pursuing a reform agenda in the final volume of the Commentaries. Beccaria’s On Crimes and Punishments, first published in Italian in 1764, was translated into English in 1767, and it supplied Blackstone with a basis for normative appraisal of the law that suffuses the volume on criminal law. If the Beccarian aspect is excluded, Blackstone’s introductory treatment of the basis for imposing criminal liability is significantly shorter than the equivalent account that he provides, for example, in his treatment of the grounds of property. The latter dis-cussion, occupying some 15 pages in the first edition, ranges through natural law and a mythical-historical presentation of the rise of agriculture and urbanization, to arrive at practical considerations involving the beneficial results of an established scheme for inher-itance and intestacy.51 In contrast, Blackstone’s rationale for the distinctive classification of certain acts as crimes, and the distinctive forms of punishment they elicit, is quickly summarized by stating that crimes affect the community generally,52 and that “the king, in whom centers the majesty of the whole community, is supposed by the law to be the per-son injured by every infraction of the public rights belonging to that community.”53 These pronouncements do not necessarily translate into the conclusions they are sometimes used to demonstrate, such as the idea that criminal liability always swallows any associated civil liability, depriving victims of any individual claims.54 However, it is not surprising that some commentators have taken this view, because Blackstone has little more to say about any complications posed by this account, opting instead (as we have seen) to hunt for jus-tifications showing that certain kinds of wrongdoing are shaded with a public aspect.

Besides the question of what qualifies an act as criminal, however, Blackstone also takes up the subject of punishment in his introductory chapter. This part of his dis-cussion, reflecting his reading of Beccaria, occupies a significant amount of space in the first chapter, and informs his views on criminal law reform throughout the vol-ume. He observes near the outset that in some respects the law requires “revision and amendment,”55 and while he suggests that the problems arise equally from archaic common-law principles and from outdated statutes,56 he focuses almost exclusively on the latter. Blackstone cites Beccaria five times in the opening chapter, more than any other authority. Two of the references involve the need for proportionality in punish-ment. Blackstone writes, for example, that “as punishments are chiefly intended for the prevention of future crimes, it is but reasonable that among crimes of different natures those should be most severely punished, which are the most destructive of the public safety and happiness.”57 He returns to this idea frequently, observing that capital pun-ishment should be reserved for the most serious crimes, because “multiply[ing] capi-tal punishments lessens their effect, when applied to crimes of the deepest dye.”58 He

51 Blackstone, Commentaries, vol 2, 1–15. 52 See text accompanying nn 15 and 16.53 Blackstone, Commentaries, vol 4, 2.54 See eg Blackstone, Commentaries, vol 4, 176; D Boorstin, The Mysterious Science of the Law (1941) 126;

J Austin, Lectures on Jurisprudence (1863) vol 2, 71–2. 55 Blackstone, Commentaries, vol 4, 3.56 “These [problems] have chiefly arisen from too scrupulous an adherence to some rules of the antient

common law, when the reasons have ceased upon which those rules were founded; from not repealing such of the old penal laws as are either obsolete or absurd; and from too little care and attention in framing and passing new ones”; Blackstone, Commentaries, vol 4, 3–4.

57 Blackstone, Commentaries, vol 4, 16 (citing Beccaria (n 43) ch 6).58 Blackstone, Commentaries, vol 4, 138.


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previews this argument in the first chapter, emphasizing its statutory dimensions: “we shall find it . . . difficult to justify the frequency of capital punishment . . . inflicted (per-haps inattentively) by a multitude of successive independent statutes, upon crimes very different in their natures.”59 Indeed, “no less than [one] hundred and sixty [differ-ent actions] have been declared by act of parliament to be felonies without benefit of clergy; or, in other words, to be worthy of instant death.”60 This profligate resort to capi-tal punishment, he explains, only leads criminals to act rationally by maximizing the harm they impose on others whenever the penalty for any additional act is coextensive with the penalty that already applies. Ideally, then—in a proposition that Blackstone also attributes to Beccaria—each state should specify “a scale of crimes . . . with a cor-responding scale of punishments, descending from the greatest to the least.”61 Though he concedes that the suggestion may be “too romantic” to be implemented perfectly,62 Blackstone later returns to this idea when opposing capital punishment in favor of “cor-poral and pecuniary punishments, exile and perpetual infamy,” as “more suited to the genius of the English law.”63.

Besides the need for proportionality, Blackstone also adopts Beccaria’s argument for certainty in punishment, observing that “it is the sentiment of an ingenious writer, who seems to have well studied the springs of human action, that crimes are more effectually prevented by the certainty, than by the severity, of punishment.”64 This argu-ment requires less emphasis, he adds, because “with us in England,” as opposed to the Continent, “crimes are more accurately defined, and penalties less uncertain and arbi-trary,” but the issue nevertheless arises at various points in the volume, with respect both to clarity in defining crimes and regularity in imposing punishment. The parlia-ment during the reign of Edward III is praised for “specify[ing] and reduc[ing] to a cer-tainty the vague notions of treason, that had formerly prevailed”65. Heresy, on the other hand, is treated as a questionable offense because even after having been “reduced to a greater certainty than before,” nevertheless it still “ought to be more strictly defined.”66 Other doubtful matters involving criminal liability include the form of treason that involves “get[ting] possession of the crown (a term, by the way, of very loose and indis-tinct signification),”67 and the qualifications for killing game (the condition of “[b] eing the son and heir apparent of an esquire” is “a very loose and vague description.”68 Similarly, the eligibility of freeholders to serve on grand juries is unclear because the requisite income “is uncertain: which seems to be . . . as proper to be supplied by the legislature as the qualifications of the petit jury; which were formerly equally vague and uncertain, but are now settled by several acts of parliament.”69

The need to impress wrongdoers with the inevitability of punishment receives less attention. It arises most prominently in the chapter on execution, which, Blackstone

59 Blackstone, Commentaries, vol 4, 18. 60 Blackstone, Commentaries, vol 4, 18.61 Blackstone, Commentaries, vol 4 (citing Beccaria (n 43) ch 6).62 Blackstone, Commentaries, vol 4, 18. 63 Blackstone, Commentaries, vol 4, 138.64 Blackstone, Commentaries, vol 4, 17 (citing Beccaria (n 43) ch 7). Blackstone later calls Beccaria “an ele-

gant writer, (who pleads with equal strength for the certainty as for the lenity of punishment)” (Blackstone, Commentaries, vol 4, 357, citing Beccaria ch 46). 65 Blackstone, Commentaries, vol 4, 84–5.

66 Blackstone, Commentaries, vol 4, 49. 67 Blackstone, Commentaries, vol 4, 77.68 Blackstone, Commentaries, vol 4, 175. 69 Blackstone, Commentaries, vol 4, 299.


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explains, should follow swiftly after the sentence: “the punishment should follow the crime as early as possible; that the prospect of gratification or advantage, which tempts a man to commit the crime, should instantly awake the attendant idea of punishment.”70 Yet if Blackstone devotes less time to the issue than we might expect, he also draws on Beccaria for a related topic—the question of preventive justice—which constitutes one of the distinctive features in Blackstone’s treatment of criminal law.

As noted earlier, Blackstone’s chapter on preventive justice, which begins the proce-dural half of the volume, is one of his most innovative contributions. For Blackstone, prevention is not an exception to punishment, but rather is a preferable alternative.71 Because of its superiority, he allows for considerably more latitude in its enforce-ment than he considers acceptable in the punitive form of criminal law. Starting again with a reference to Beccaria, Blackstone observes that “it is an honour, and almost a singular one, to our English laws, that they furnish a title . . . [on] preventive justice [which] is upon every principle of reason, of humanity, and of sound policy, preferable in all respects to punishing justice.”72 The emphasis of this short chapter is on deter-rence: pledges, securities, and recognizances are all “rather calculated to prevent future crimes, than to expiate the past,” and for once Blackstone remains undisturbed by the vague grounds that characterize these measures. Thus for example a Justice of the Peace may “bind over . . . all them that be not of good fame, wherever they be found,” which extends generally to “persons, whose misbehaviour may reasonably bring them within the general words of the statute, as persons not of good fame: an expression, it must be owned, of so great a latitude, as leaves much to be determined by the discretion of the magistrate himself.”73

That in this context Blackstone relaxes his hostility to poorly defined provisions is telling: the practice appears to be comparatively acceptable because it is used anticipa-torily rather than retrospectively. If the system creates hardships in some instances, this seems to be mitigated by an overall improvement in deterrence resulting from a pro-cedure that matches injury with penalty far better than would a system of punishment after the fact. In the Beccarian concern to link crimes with clearly defined and antici-pated penalties, Blackstone finds a tool for critical appraisal that allows him to chal-lenge certain aspects of criminal law while also celebrating others.

5. Legislative Reform and Common-Law ChangeAs noted above, the primary focus of Blackstone’s criticism involves the use of dispro-portionately harsh punishments, and this subject forms the basis of his arguments for reform. Legislators, he observes, should be “extremely cautious of establishing laws that

70 Blackstone, Commentaries, vol 4, 397 (citing Beccaria (n 43) ch 19). The implicit reliance on Hume’s theory of the association of ideas is explicit in Beccaria’s discussion; see Harcourt’s essay on Beccaria in the present volume.

71 MD Dubber, “Preventive Justice: The Quest for Principle” in A Ashworth, L Zedner, and P Tomlin (eds), Prevention and the Limits of the Criminal Law (2013) 47, 53; MD Dubber, The Police Power: Patriarchy and The Foundations Of American Government (2005) 53–4.

72 Blackstone, Commentaries, vol 4, 248 (citing Beccaria (n 43) ch 41).73 Blackstone, Commentaries, vol 4, 253.


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inflict the penalty of death, especially for slight offences, or such as are merely posi-tive.”74 He warns that “the passions or interests of a few, . . . upon temporary motives” may lead to unjustified measures that remain on the statute books, and the failure to observe this warning explains how, “in the eighteenth century it could ever have been made a capital crime, to break down (however maliciously) the mound of a fishpond, whereby any fish shall escape; or to cut down a cherry tree in an orchard.”75 Later exam-ples of improvidently imposed capital penalties include those that classify coining as a form of treason (“this method of reasoning is a little overstrained: counterfeiting or debasing the coin being usually practiced, rather for the sake of private and unlawful lucre, than out of any disaffection to the sovereign”) and the subjection of “idle soldiers and mariners wandering about the realm” to felony without benefit of clergy (a “san-guinary law . . . [that] remains a disgrace to our statute-book”).76 Similarly, the statutes of praemunire, though formerly maintained “within the bounds of their original insti-tution,” have completely escaped these bounds, yielding a wide array of prohibitions, “some of which bear more, and some less resemblance to this original offence, and some no relation at all.”77 The game laws, a topic of extensive legislation in the eight-eenth century, have become “so numerous and so confused, and the crime itself of so questionable a nature,” that Blackstone finds the whole subject distasteful.78 The legis-lation in this area, he adds, is “obscure and intricate,” and indeed one statute includes “false grammar in no fewer than six places,” a deficiency that prompts him to hint deli-cately at the conclusions this affords about the authors: “what denomination of persons were probably the penners of these statutes, I shall not at present enquire.”79

The implication flowing from these criticisms is readily apparent: while common-law doctrines are to be rationalized, and are worth taking some pains to defend, statutory provisions enjoy no such immunity. Unlike the dangerously random provisions adopted by legislators, common law coheres in a grand pattern with innumerable interrelated parts. Blackstone’s style becomes loftiest, and his rhetoric most forceful, in the passages that counsel caution in altering the common law because of the danger of destabilizing unperceived symmetries. Thus, for instance, in the first rendition of the architectural metaphor that he pursues occasionally throughout the Commentaries, Blackstone con-demns statutory innovation halfway through the opening chapter of the first volume:

The common law of England has fared like other venerable edifices of antiquity, which rash and unexperienced workmen have ventured to new-dress and refine, with all the rage of modern improvement. Hence frequently its symmetry has been destroyed, its proportions distorted, and its majestic simplicity exchanged for specious embellish-ments and fantastic novelties.80

74 Blackstone, Commentaries, vol 4, 10. 75 Blackstone, Commentaries, vol 4, 4.76 Blackstone, Commentaries, vol 4, 165. 77 Blackstone, Commentaries, vol 4, 115.78 Blackstone, Commentaries, vol 4, 174.79 Blackstone, Commentaries, vol 4, 175. The observation about false grammar comes from Burn’s Justice

of the Peace, but the use of occultatio, which makes a point of refusing to inquire into the source of the fault, was Blackstone’s addition; R Burn, The Justice of the Peace, and Parish Officer 443 (1755) 1: 433. A later commentator made the point more bluntly, observing that “one is led to conclude, that this part of our boasted code was drawn up by a committee of boorish country esquires and stupid fox hunters”; J Chitty, “Observations on the Game Laws” (1817) 9 The Pamphleteer 171, 186.

80 Blackstone, Commentaries, vol 1, 10.


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Blackstone pursues this metaphor throughout the Commentaries, as others have noted.81 For present purposes it is sufficient to turn to the last volume’s final paragraph. He returns again to the importance of preserving the symmetry of the common law, reminding his readers of the need to “explain the use and distribution of [the law’s] parts, and from the harmonious concurrence of those several parts to demonstrate the elegant proportion of the whole.” The law’s defects, he adds, are the result of “the decays of time, or the rage of unskilful improvements in later ages,” and he ends by exhort-ing his audience to “sustain, to repair, to beautify this noble pile.”82 While the pleasure of contemplating magnificent ruins is an underlying current in these reflections, the emphasis throughout is on the danger of rash innovation and the importance of pre-serving the structure intact, of maintaining a “harmonious concurrence” that struc-tures and adjusts the relations among the parts.

Blackstone’s conservative treatment of the common law is perhaps nowhere more apparent than in his elaboration of Coke’s view of the “artificial reason” that distin-guishes the lawyer’s wisdom. The cases are only evidence of the law (as Coke held) because the underlying reasons may be so deeply immured as to be concealed from apprehension: they “may not be quite obvious to every body,” and indeed it may be impossible to give “the particular reason . . . at this distance of time.”83 Nevertheless, the law should be retained so long as there is “nothing in the rule flatly contradictory to reason” because experience shows that “whenever a standing rule of law, of which the reason perhaps could not be remembered or discerned, hath been wantonly broke in upon by statutes or new resolutions,” inevitably the result has been to reveal “the wis-dom of the rule . . . from the inconveniences that have followed the innovation.”84 The web that makes up the common law is so intricate that its patterns may remain indis-cernible until they are disrupted. Because an incautiously pulled thread in one part of the design may produce disastrous results elsewhere, it is better to leave the fabric alone, and to rely instead on the “series of minute contrivances”85 that common-law judges have wisely adopted to advance the law incrementally.

Given his comparatively dismissive treatment of statutory law, Blackstone might be taken to doubt that it could ever partake of the same kind of principled renovation that governs the new-modeling of the gothic castle, but he does allow for this possibil-ity, though in a strikingly different metaphor. Discussing the process by which benefit of clergy was first introduced by the “popish ecclesiastics” to exploit the “pious regard paid by christian princes to the church,”86 and was eventually turned into a means of moderating the punishment for felonies, Blackstone draws not on architecture but alchemy to describe this slow and steady transformation:

the wisdom of the English legislature ha[s] , in the course of a long and laborious process, extracted by a noble alchemy rich medicines out of poisonous ingredients; and converted, by gradual mutations, what was at first an unreasonable exemption

81 W Prest, “Blackstone as Architect: Constructing the Commentaries” (2003) 15 Yale JL & Humanities 103.82 Blackstone, Commentaries, vol 4, 436. 83 Blackstone, Commentaries, vol 1, 71, 70.84 Blackstone, Commentaries, vol 1, 70.85 Blackstone, Commentaries, vol 3, 268. See also D Lieberman, The Province of Legislation

Determined: Legal Theory in Eighteenth-Century (1989) 47–8.86 Blackstone, Commentaries, vol 4, 358.


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of particular popish ecclesiastics, into a merciful mitigation of the general law, with respect to capital punishment.87

An organic elixir, while perhaps ingenious and beneficial, would not, in Blackstone’s era, have been seen as fitting into a larger structure of affiliated components. Notably, poison figures elsewhere in Blackstone’s treatment of criminal law because of its signifi-cance in showing malice aforethought: “in many cases where no malice is expressed, the law will imply it: as, where a man wilfully poisons another, in such a deliberate act the law presumes malice, though no particular enmity can be proved.”88 The laborious parliamentary alteration of a lethal compound thus is a very different kind of opera-tion from the judges’ refitting of an aging edifice: while both processes require steady determination, the judges are striving, at each stage, to maintain the proportions in a serviceable structure, while the legislators are attempting to save an endangered body from a premeditated threat. There is no symmetry, no equilibrium of parts, to be pre-served in the process of legislative change, because the presumption is against the com-pound in its original form, not in favor it.

In his first volume, Blackstone treats the study of law as a matter of self-interest for his audience before arriving at the more public-spirited rationales involving those who will serve on juries or sit in Parliament.89 By contrast, in volume four he speaks much more self-consciously about the latter consideration, which not only serves as a reason why his readers should strive to inform themselves about the workings of the legal sys-tem, but also explains why he considers it worthwhile to spell out arguments for reform in areas such as capital punishment, a subject that he raises not simply to register per-sonal doubts about its appropriateness but to “suggest a few hints for the consideration of such as are, or may hereafter become, legislators.”90 Advocacy of reform is justified precisely because he can assume that his audience includes those who will be qualified to implement the suggestions. Again, commenting on the deprivation of counsel to those accused of felonies, Blackstone observes that while judges may sometimes inter-vene on the defendant’s behalf, “this is a matter of too much importance to be left to the good pleasure of any judge, and is worthy the interposition of the legislature” on the same lines already established by the 1696 Treason Act.91 Corruption of blood, an effect of attainder that Blackstone finds to be a Norman importation, similarly mer-its “aboli[tion] by act of parliament.”92 His open advocacy of legal reform—a novel feature in a genre whose aims had been primarily descriptive—is prompted not only by his view of criminal law as a subject filled with dispensable statutes, but also by his

87 Blackstone, Commentaries, vol 4, 364.88 Blackstone, Commentaries, vol 4, 200. Blackstone elsewhere calls poisoning “the most detestable of all

[forms of murder]; because it can of all others be the least prevented either by manhood or forethought” (Blackstone, Commentaries, vol 4,196), and he writes that no “mode of killing, whether by stabbing, stran-gling or shooting, can either extenuate or enhance the guilt: unless where, as in the case of poisoning, it carries with it an internal evidence of cool and deliberate malice” (Blackstone, Commentaries, vol 4,193).

89 eg the first concrete reason he gives for studying law is that “the understanding of a few leading prin-ciples, relating to estates and conveyancing, may form some check and guard upon a gentleman’s inferior agents” (Blackstone, Commentaries, vol 1, 7). 90 Blackstone, Commentaries, vol 4, 11.

91 Blackstone, Commentaries, vol 4, 350.92 Blackstone, Commentaries, vol 4, 381. See also 382 (“it seems to be highly reasonable and expedient to

antiquate the whole of this doctrine by one undistinguishing law”).


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understanding of his own pedagogical role vis-à-vis his audience. Common law no less than statutory law is open to such inquiry and advocacy, but it seems to have required the conjunction of a statutory subject matter and an audience well-positioned to alter it, to introduce this kind of normative evaluation into a treatise literature that would later extend the same treatment to common-law matters.

6. ConclusionBlackstone’s importance in English criminal law relates in part to his role as one of Beccaria’s first English exponents, and in part to the overarching perspective that he offers in his fourth volume. One consequence of that effort is to reveal connections that Blackstone does not address explicitly. Thus, for example, besides defining treason as the “renunciation of [the] allegiance . . . due from every subject to his sovereign”93 and exploring it as a political crime, Blackstone also throws out scattered observations on the subject that hint at a more fully developed theory. He attaches the label to rebel-lion within the household, remarking that “if a servant kills his master, it is a spe-cies of treason,”94 and he characterizes some forms of open hostility as amounting to treason: “lying in wait for one on the highway . . . or destroying and ravaging a coun-try . . . [or] the burning of houses . . . are a kind of hostile acts, and in some degree border upon treason.”95 Taken together, these comments hint at an implicit theory of treason that emerges alongside the one Blackstone presents directly. Again, in his treatment of “offenses against the law of nations,” he borrows the conventional tag for the pirate as “hosti humani generis,”96 and he later portrays certain kinds of haphazard violence as similarly alien and lawless: someone shows “him[self] to be an enemy to all mankind in general,” Blackstone observes, by “going deliberately with a horse used to strike, or discharging a gun, among a multitude of people.”97 The similarities in these two exam-ples dealing with widespread or indiscriminate aggression, in turn, suggest that he sees affinities in treason and piracy that distinguish them from other crimes. He thereby renders his own account open to further development, or to criticism by the reader who takes issue with his premises.

In short, Blackstone’s text provides the fodder for comparative analyses and legal interpretations that he does not pursue, but that his method suggests. Even if his own recommendations for reform are confined to statutory law, his presentation of the common law opens up avenues of research that later commentators would explore. Blackstone would probably have been dismayed to realize that his advocacy of legisla-tive reform could also be turned on the common law. His evaluative method, perhaps even more than his orderly elaboration of legal doctrine, marks his distinctive contri-bution to English criminal law.

93 Blackstone, Commentaries, vol 4, 74. 94 Blackstone, Commentaries, vol 4, 16.95 Blackstone, Commentaries, vol 4, 366. 96 Blackstone, Commentaries, vol 4, 71.97 Blackstone, Commentaries, vol 4, 200.


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Blackstone’s Criminal Law: Common-Law Harmonization and ... · discussion of criminal law, a subject that he seems to have deemed eligible for such treatment insofar as it was aligned