Page:Dictionary of National Biography volume 05.djvu/146

 As Lord Ellenborough suggested, he made himself a learned lawyer by writing the ‘Commentaries’ (see the discussion on Blackstone's merits in 23 Parl. Hist. 1078). But within his own sphere of exposition his merits are very great. ‘It requires, perhaps,’ says Coleridge, in the preface to his edition of the ‘Commentaries,’ ‘the study necessarily imposed upon an editor to understand fully the whole extent of praise to which the author is entitled; his materials should be seen in their crude and scattered state; the controversies examined, of which the sum only is shortly given; what he has rejected, what he has forborne to say should be known; before his learning, judgment, taste, and, above all, his total want of self-display can be justly appreciated.’ To this just eulogy one need only add that Blackstone had formed the true conception of an institutional work, which not merely should state the principles of existing law, but by means of ‘the learning out of use’ should explain their growth. And so well did he carry out his plan that in the ‘Commentaries’ there is still to be found the best general history of English law, needing comparatively little correction, and told with admirable clearness and spirit. To his style Austin did less than justice. It lacks variety and restraint; but, except amid the loose generalities of the introductory chapters, it is never obscure, and at its best it rises to considerable dignity. Fox thought it ‘the very best among our modern writers, always easy and intelligible; far more correct than Hume, and less studied and made up than Robertson’ (, Memoirs; see also Fox's speech on Lord Ellenborough's admission to the cabinet).

In 1766 Blackstone, with a growing practice and failing health, resigned both his professorship and his principalship. He still continued to sit in the House of Commons, being returned for the new parliament of 1768 as member for Westbury, in Wiltshire. But beyond a slight connection with Dr. Musgrave's report on the peace of 1763 (16 Parl. Hist. 763), his political career was marked by only a single incident. In the exciting debates on Wilkes he played an unfortunate part. On the motion to declare Luttrell elected, Blackstone gave it as his opinion that Wilkes was by common law disqualified from sitting in the house. Grenville retorted by quoting from the ‘Commentaries’ (i. 162) the causes of disqualification, none of which applied to Wilkes. ‘It is well known,’ says Philo-Junius, describing the scene, ‘that there was a pause of some minutes in the house, from a general expectation that the doctor would say something in his own defence; but it seems his faculties were too much overpowered to think of those subtleties and refinements which have since occurred to him.’ The matter gave rise to a prolonged paper controversy, in which Sir W. Meredith, Blackstone, Junius, Dr. Johnson, and others took part. Blackstone, who argued that the expulsion of a member creates in him an incapacity of being re-elected, had certainly the worst of the controversy, maintaining without great dignity an indefensible position (see Parliamentary Practice, p. 63). Without allowing himself to have been in the wrong, he took pains in his next edition to state the causes of disqualification so as to include such a case as that of Wilkes (i. 162–3; the last sentence of the paragraph does not occur in the first edition). Hence came the toast at opposition banquets: ‘The first edition of Dr. Blackstone's “Commentaries on the Laws of England”’ (, Hist. v. 352).

After this experience, Blackstone was no doubt glad to retire from parliament. He was invited to be solicitor-general, but he declined the office, as hopes of a judgeship were at the same time held out to him. In February 1770 he was made a justice of the Common Pleas, but he immediately exchanged places with Mr. Justice Yates, and for a few months sat with Lord Mansfield in the court of King's Bench. On Yates's death in the same year he returned to the Common Pleas. He acquired the reputation of being a painstaking judge, and nothing more. Although he had now unquestionably made himself a learned lawyer, his excessive caution and a scrupulous adherence to formalities stood sadly in his way. What Malone tells us of him is in keeping with his general character: ‘There were more new trials granted in causes which came before him on circuit than were granted on the decisions of any other judge who sat at Westminster in his time. The reason was that, being extremely diffident of his opinion, he never supported it with much warmth or pertinacity in the court above if a new trial was moved for’ (, Malone, p. 432; see the chief cases in which he took part in his own reports, vol. ii., also in Burrow's and in Wilson's reports. His most famous judgment is that delivered in Perrin v. Blake, in which he discussed the reason, the antiquity, and the extent of the rule in Shelley's case. He took part also in the leading case of Scott v. Shepherd, where he differed from the rest of the court in holding that the action was not maintainable; and in the case of Crosby, the lord mayor, reported also in 8 St. Tr. 31, and 19 St. Tr. 1137). In his later years he suc-