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 OUP CORRECTED PROOF – FINAL, 12/07/16, SPi

the oxford edition of blackstone

General Editor
Wilfrid Prest

Commentaries on
the Laws of England
OUP CORRECTED PROOF – FINAL, 12/07/16, SPi

The Oxford Edition of Blackstone

General Editor
Wilfrid Prest

Editorial Board
Sir John Baker, Paul Brand, Joshua Getzler,
John Langbein, and Steven Sheppard

Book I: Of the Rights of Persons

Volume Editor: David Lemmings

Book II: Of the Rights of Things

Volume Editor: Simon Stern

Book III: Of Private Wrongs

Volume Editor: Thomas P. Gallanis

Book IV: Of Public Wrongs

Volume Editor: Ruth Paley
 OUP CORRECTED PROOF – FINAL, 12/07/16, SPi

Commentaries on
the Laws of England
Book III: Of Private Wrongs

William Blackstone

With an introduction, NOTES,

AND TEXTUAL APPARATUS by
Thomas P. Gallanis

1
OUP CORRECTED PROOF – FINAL, 12/07/16, SPi

1
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 OUP CORRECTED PROOF – FINAL, 12/07/16, SPi

Contents

Editor’s Introduction to Book III  vii

Acknowledgements  xix
Note to the Reader  xxi
Abbreviations  xxiii

Chapter 1: Of the Redress of Private Wrongs by the Mere Act of the Parties  1
Chapter 2: Of Redress by the Mere Operation of Law  12
Chapter 3: Of Courts in General  15
Chapter 4: Of the Public Courts of Common Law and Equity  20
Chapter 5: Of Courts Ecclesiastical, Military, and Maritime  41
Chapter 6: Of Courts of a Special Jurisdiction  48
Chapter 7: Of the Cognizance of Private Wrongs  58
Chapter 8: Of Wrongs, and their Remedies, Respecting the Rights of Persons  78
Chapter 9: Of Injuries to Personal Property  98
Chapter 10: Of Injuries to Real Property, and First of Dispossession,
or Ouster, of the Freehold  113
Chapter 11: Of Dispossession, or Ouster, of Chattels Real  133
Chapter 12: Of Trespass  139
Chapter 13: Of Nusance  144
Chapter 14: Of Waste  149
Chapter 15: Of Subtraction  154
Chapter 16: Of Disturbance  158
Chapter 17: Of Injuries Proceeding from, or Affecting, the Crown  169
Chapter 18: Of the Pursuit of Remedies by Action; and, first, of the Original Writ  179
Chapter 19: Of Process  185
Chapter 20: Of Pleading  194
Chapter 21: Of Issue and Demurrer  208
Chapter 22: Of the Several Species of Trial  215
Chapter 23: Of the Trial by Jury  231
Chapter 24: Of Judgment, and its Incidents  254
Chapter 25: Of Proceedings, in the Nature of Appeals  264
Chapter 26: Of Execution  271
Chapter 27: Of Proceedings in the Courts of Equity  280
Appendix: Sample Forms and Instruments  299

Varia  323
Table of Cases 357
Table of Statutes  367
Index of Persons and Places  375
 Editor’s Introduction to Book III

This brief introduction aims to introduce Book III of Sir William Blackstone’s
Commentaries on the Laws of England to the modern reader. The first edition of Book
III was published in 1768.1 Thereafter, the numbering of the editions jumps.2 The next
edition of Book III was published as part of the fourth edition of the Commentaries
in 1770. Subsequent editions of Book III appeared during Blackstone’s lifetime as part
of the Commentaries’ fifth (1773), sixth (1774), seventh (1775), and eighth (1778)
editions. Blackstone died on 14 February 1780. The ninth edition of the Commentaries
appeared in 1783 with, as stated on the title page, ‘the last corrections of the author;
and continued to the present time by Ri[chard] Burn’.3
This introduction is divided into three parts. The first surveys the subject-matter
of Book III, a volume cryptically titled ‘Of Private Wrongs’, and identifies the principal
sources on which Blackstone relied in writing it. Part 1 also compares Book III to the
corresponding material in Blackstone’s earlier-published treatise titled An Analysis of
the Laws of England. Part 2 explores the reaction to Book III, focusing on the notices
and reviews appearing in the immediate aftermath of publication. Part 2 also analyses
Blackstone’s changes (‘varia’) to later editions of Book III. Finally, Part 3 offers some
reflections on the impact of Book III to the present day.

Subject Matter, Sources and Comparison with

Blackstone’s Analysis

Book III is titled ‘Of Private Wrongs’. To modern readers, this might suggest a volume
on matters of substantive private law, such as tort, contract, or property. But in fact,
as Blackstone explained in the volume’s introductory chapter, Book III is primarily
about the ‘redress of private wrongs, by suit or action in courts’ (III. 2)—in other
words, about courts and their procedures. In Blackstone’s words, ‘where there is a
legal right, there is also a legal remedy, by suit or action at law, whenever that right is
invaded’ (III. 15). Book III primarily concerns these remedies and their processes.
Like Gaul, Book III can be divided into three principal parts. The first describes
the multiple courts in England and their jurisdictions, including the wrongs
cognizable in each of them (Chapters 3–7). The second describes some aspects of the

1
 In the newspapers of the day, the first announcement of Book III’s publication appears in the Gazetteer and
New Daily Advertiser of 11 May 1768.
2
The reason for the jump in numbering is that the second and third editions of Books I and II appeared quickly.
The year Book III was first published (1768) also saw the publication of the third edition of Books I and II.
3
 Richard Burn (d. 1785) was a clergyman and legal author, perhaps best known for his first book, The Justice of
the Peace and Parish Officer, which went through thirty editions between 1755 and 1869. See N. Landau, ‘Burn,
Richard (1709–1785)’, Oxford Dictionary of National Biography, ed. C. Matthew and B. Harrison, 60 vols (Oxford,
2004) and at oxforddnb.com (henceforth ODNB). Books cited were published in London unless otherwise noted.
OUP CORRECTED PROOF – FINAL, 12/07/16, SPi

viii book iii

substantive common law: wrongs to persons (Chapter 8) and wrongs to personal and
real property (Chapters 9–16). The third describes the processes of litigation in the
courts of common law (Chapters 18–26) and equity (Chapter 27, which concludes
the volume). In addition to these three principal parts of Book III, Chapters 1 and 2
set the stage by explaining how the redress of private wrongs can be accomplished ‘by
the mere act of the parties’ (Chapter 1) or ‘by the mere operation of law’ (Chapter 2);
Chapter 17 explores ‘the mode of redressing those injuries to which the crown itself
is a party’ (III. 169); and an Appendix to Book III contains sample writs and other
documents illustrating the processes of litigation.4
Noteworthy is the brevity of treatment (Chapter 8 only) of the law of personal
wrongs, what we would today call the law of tort. The focus of that chapter is on
the actions to remedy a personal wrong. This should be unsurprising. Professor
Ibbetson rightly observed that the law of tort in Blackstone’s day was ‘recognizably
medieval … characterized by a division between the action of trespass and the action
on the case’.5 This would change dramatically in the nineteenth century. The word
‘negligence’ is absent from Blackstone’s chapter, yet it would come to describe much
of the law of tort in the Victorian period.6
Much of Book III is dry and technical, but there are some stirring and memorable
passages. One of these appears in Chapter 4—on ‘the Public Courts of Common Law
and Equity’—where Blackstone defended England’s multiple, often overlapping,
courts by invoking a riparian metaphor: ‘The course of justice flowing in large
streams from the king, as the fountain, to his superior courts of record; and being
then subdivided into smaller channels, till the whole and every part of the kingdom
were plentifully watered and refreshed. An institution that seems highly agreeable to
the dictates of natural reason, as well as of more enlightened policy’ (III. 20). Later in
the chapter, however, Blackstone acknowledged that the historical growth of the
central royal courts at the expense of local tribunals might have been the source of
delay as well as of justice: ‘whether for the better or the worse, may be matter of some
speculation; when we consider on the one hand the encrease of expense and delay,
and on the other the more upright and impartial decision, that follow from this
change of jurisdiction’ (III. 21).7 Indeed, when Blackstone enumerated the various

4
╇Some of these documents were reproduced from Blackstone’s Analysis of the Laws of England (Oxford, 1756):
compare pp. 158–76 of the Analysis with pp. 305–21 of the Appendix. As Blackstone explained in the Analysis
(p. ix), the documents ‘were judged to be necessary for explaining certain Principles, and Matters of daily Practice;
of which it was however impracticable to convey any adequate Idea by verbal Descriptions only’.
5
╇D. Ibbetson, A Historical Introduction to the Law of Obligations (Oxford, 1999), 169. Blackstone’s commitment
to this ‘medieval … division’ between trespass and case is evident in his dissenting opinion in Scott v Shepherd
(1773), 2 Black. W. 892, 894; 96 ER 525–6: ‘where the injury is immediate, an action of trespass will lie; where it is
only consequential, it must be an action on the case’.
6
╇See W. Cornish et al.,The Oxford History of the Laws of England, xii: 1820–1914 Private Law (Oxford, 2010),
903–57.
7
╇In his biography of Blackstone, Doolittle observed that Blackstone’s earlier lectures at Oxford contained
remarks highly critical of the decline of the lesser courts (‘poor people, to their great detriment, dragged away to
superior and more distant courts’) but that these, and similarly harsh remarks on some other topics, were excised
from the published Commentaries. See I. Doolittle, William Blackstone: A Biography (Haslemere, 2001), 83.
 editor’s introduction to book iii ix

courts one by one, it is striking that he began not with the most prestigious court but
with what he called ‘[t]he lowest,8 and at the same time the most expeditious, court
of justice known to the law of England’ (III. 21)—the court of piepowder (piepoudre),
which rendered speedy justice for personal wrongs committed at a fair or market.
Another stirring passage appears in Chapter 17—the chapter on ‘injuries proceeding
from, or affecting, the Crown’—wherein Blackstone detoured from his central subject
to defend the unusual ‘terms of art’ (III. 176), ‘intricacy’ (III. 177), and ‘fictions and
circuities’ (III. 178) of English civil procedure as being superior to any simplified code
promulgated by ‘the prince by his edict’ (III. 177). The unfolding evolution of English
civil process enabled procedural rules to be consistent with ‘the frame of our
constitution’ (ibid.) and to respond to changing social and economic conditions (‘the
gradual influence of foreign trade and domestic tranquillity’, III. 178) while still
‘answer[ing] the purpose of doing speedy and substantial justice’ (ibid.).  As Blackstone
put it in an evocative architectural metaphor, ‘We inherit an old Gothic castle, erected
in the days of chivalry, but fitted up for a modern inhabitant.  .. . The inferior
apartments, now converted into rooms of convenience, are chearful and commodious,
though their approaches are winding and difficult’ (ibid.).9
Blackstone took special effort in Book III to persuade his reader not to worry about
English law’s heavy reliance on legal fictions—to take but one example, the often-
used fiction that ‘a contract, really made at sea, was made at the royal exchange, or
other inland place’ (III. 72).10 The use of such fictions (in this case, as a device for
obtaining jurisdiction over the contract in the courts of common law, rather than in
the court of admiralty) was, for Blackstone, both well pedigreed and highly valuable.
In his words, ‘such fictions are adopted and encouraged in the Roman law’, which
declared for instance ‘that a son killed in battle is supposed to live forever for the
benefit of his parents’ (ibid.). As Blackstone explained in defence of all such fictional
strategems, ‘these fictions of law, though at first they may startle the student, he will
find upon farther consideration to be highly beneficial and useful: especially as this
maxim is ever invariably observed, that no fiction shall extend to work an injury; its
proper operation being to prevent a mischief, or remedy an inconvenience’ (III. 28).
Another remarkable excursus appears in Chapter 21—the chapter on ‘issue and
demurrer’—where Blackstone discussed the use of Latin and law French in the English
courts. According to Blackstone, law French was originally a ‘barbarous dialect’ and
‘[a]n evident and shameful badge . . . of tyranny and foreign servitude’ (III. 210), but
over time it came to be a language in which lawyers thought they ‘could express their
thoughts more aptly and more concisely . . . than in any other’ (ibid.). Blackstone
lamented the tendency of ‘many a student to throw away his Plowden and Littleton,

8
Precisely why Blackstone labeled the piepowder court the ‘lowest’ is unclear.
9
 For an elaboration of this theme in Blackstone’s writings and life, see C. Matthews, ‘A “Model of the Old
House”: Architecture in Blackstone’s Life and Commentaries’, in W. Prest (ed.), Blackstone and His Commentaries:
Biography, Law, History (Oxford, 2009), 15–34.
10
 Doolittle contrasted this aspect of Book III with Blackstone’s earlier Oxford lectures, which observed more
critically that fictitious actions were common but ‘attended with many absurdities and inconveniences’ (Doolittle,
William Blackstone, 83).
x book iii

without venturing to attack a page of them’ when in fact ‘upon a nearer acquaintance,
they would have found nothing very formidable in the language’ (III. 210–11). Turning
to Latin, he remarked that it was a ‘durable’ and ‘universal dialect’ (III. 211) throughout
the middle ages and, therefore, he asserted, its use cannot be considered a ‘blemish’
(ibid.) on the English nation. Indeed, the Latin of the law courts is ‘calculated for
eternal duration, and easy to be apprehended both in present and future times’
(ibid.). As Blackstone put it in a stirring metaphor, ‘[t]he rude pyramids of Egypt have
endured from the earliest ages, while the more modern and more elegant structures of
Attica, Rome, and Palmyra have sunk beneath the stroke of time’ (ibid.).
Book III occasionally reveals Blackstone’s sense of humour.11 In a footnote in
Chapter 9—the chapter on ‘injuries to personal property’—Blackstone recounted an
anecdote about the student days of Sir Thomas More. Studying in Flanders, More
encountered a professor ‘who gave a universal challenge to dispute with any person
in any science’ (III. 101, note w). More is said to have responded to the challenge by
sending the professor the following question: ‘whether beasts of the plough, taken in
withernam, are incapable of being replevied’ (ibid.).12 Frederic William Maitland
used the same anecdote (citing Blackstone) in his Rede lecture of 1901.13
Probably the best known passages in Book III appear in Chapter 23—the
chapter on ‘the trial by jury’. Near the end of the chapter, after describing the processes
of jury selection, evidence gathering, and verdict, Blackstone offered a lengthy
encomium, pronouncing trial by jury to be ‘the glory of the English law’ (III. 249) and
the ‘best preservative of English liberty’ (III. 251). This is not to say that Blackstone
thought jury trial to be flawless. He discussed some of its flaws—for example, the
absence of Chancery’s powers of discovery and subpoena, the inability to exam­
ine witnesses abroad and receive their depositions, and the potential for local
prejudice to affect the verdict (III. 251–2). Yet even taking the imperfections into
account, he concluded that trial by jury is the ‘best criterion, for investigating the
truth of facts, that was ever established in any country’ (III. 253).
Blackstone’s approach in the Commentaries to English procedure was often,
though not always, Panglossian—in the words of Voltaire’s memorable character,
‘everything is for the best’ in this the ‘best of all possible worlds’—and this approach
is carried through into his final chapter in Book III, on ‘proceedings in the courts of
equity’.14 There, Blackstone worked hard to downplay any substantive differences

11
Or perhaps mine. After reading Blackstone’s footnote, I laughed audibly.
12
 For an understanding of withernam, consider the following fact-pattern. Suppose that one person (A) sued
another (B) and that, as part of the pre-trial process, A distrained chattels of B in order to force B to answer A’s
accusation. Suppose that A’s claim against B was later dropped or was unsuccessful. B would be entitled to seek the
return of his chattels from A by way of replevin. However, if the chattels could not be found within the county—in
technical parlance, the chattels were ‘eloigned’—then B would have a writ of capias in withernam commanding the
sheriff to take other chattels of A as a substitute. A could not recover those chattels by replevin until A produced
the chattels originally taken from B. Thus, as Blackstone explained, ‘goods taken in withernam cannot be replevied,
till the original distress is forthcoming’ (III. 101).
13
 F. W. Maitland, English Law and the Renaissance (Cambridge, 1901), 17.
14
 Contrasted with Blackstone’s earlier lectures, the published Commentaries are noticeably more cautious.
Blackstone was ‘anxious to avoid controversy’, and ‘[r]emarks suitable for an Oxford academic could easily cause
difficulty in London and elsewhere’ (Doolittle, William Blackstone, 83).
 editor’s introduction to book iii xi

between law and equity in an effort to reassure the reader that the judge in equity is
not an ‘arbitrary legislator’ (III. 284). For example, Blackstone denied that a function
of equity is ‘to abate the rigour of the common law’ (III. 282). He also erected, then
demolished, the straw man that ‘a court of equity is not bound by rules or precedents’
(III. 284). This effort to minimize the distinctions between equity and law led Blackstone
onto thin ice, at least on one point, when he suggested that there are ‘trusts . . . cogniz­
able in a court of law’ (III. 283, referring to deposits, bailments, and assumpsit for money
had and received).15 He later clarified that the courts of equity, not law, determine
‘the form and effect of a trust’ (III. 287) and that the trusts jurisdiction of the courts
of equity is ‘exclusive’ (III. 289).
What can be said about the content of Book III by way of summary? Professor
Lobban rightly observed that, in Book III, ‘Blackstone found himself facing a tension
between his rule-based concept [of law] and the remedial common law system’.16
England’s multiple, often overlapping courts, and their differing, frequently fiction-
laden procedures for the resolution of disputes, did not fit well into any ‘rational
structure’.17 In a later century, Oliver Wendell Holmes wrote that ‘[t]he life of the
[common] law has not been logic: it has been experience’.18 Blackstone essentially
admitted this when he said—in Chapter 22, on ‘the several species of trial’—that ‘[t]he
causes therefore of the multiplicity of the English laws are, the extent of the
country which they govern; . . . Hence a multitude of decisions, or cases adjudged, will
arise; for seldom will it happen that any one rule will exactly suit with many cases’
(III. 216). Blackstone portrayed this as a strength of the English legal system, built on
real-world judicial decisions, in contrast to the academic commentary of the civil law
(see III. 217). This ‘superstructure’ (ibid.) of legal institutions and procedural law rested
on a foundation of history, the accretion over centuries of choices and accidents, not
on the reason or natural law so prominent elsewhere in the Commentaries.19 But this
was hardly Blackstone’s fault. The English courts and their processes were what they
were. Blackstone achieved much in Book III in mapping the institutional and
procedural terrain.20
In writing Book III, Blackstone relied on many sources, both primary and
secondary. Blackstone’s method in composing the Commentaries was noticeably
different from the method by which Sir William Holdsworth has been characterized
as writing the History of English Law, with a decanter of port and no more than three
books, often secondary authorities,21 in front of him at a time. Blackstone’s writing

15
On the distinction between such legal interests and the equitable interests in trust, see Scott and Ascher on
Trusts (5th edn., New York, 2006), §2.3.
16
 M. Lobban, The Common Law and English Jurisprudence 1760–1850 (Oxford, 1991), 38.
17
Ibid., 41.
18
O. W. Holmes, The Common Law (Boston, 1881), 1.
19
 See generally Lobban, Common Law and English Jurisprudence, 17–46.
20
 See generally S. F. C. Milsom, ‘The Nature of Blackstone’s Achievement’, Oxford Journal of Legal Studies, 1
(Spring 1981), 1–12.
21
On Holdsworth’s History of English Law, see H. G. Hanbury, ‘Holdsworth, Sir William Searle (1871–1944)’,
rev. D. Ibbetson, ODNB.
xii book iii

while at All Souls College admittedly was fuelled by port.22 (Indeed, so was the
writing of this introduction.) But, crucially, Blackstone cited directly to relevant
statutes and case reports—as, in fact, did Holdsworth. The tables of cases and statutes
in this variorum edition attest to that. Blackstone also, of course, cited secondary
authorities; such sources in Book III are too numerous to list, but among the most
frequently cited were Sir Edward Coke’s Institutes of the Laws of England (the first
part of which is known as Coke on Littleton),23 Finch’s Law (by the author and lawyer
Sir Henry Finch),24 Henry Rolle’s Abridgment des Plusieurs Cases et Resolutions del
Common Ley (‘Abridgment of Many Cases and Resolutions at Common Law’),25 Sir
Robert Brooke’s Graund Abridgement,26 Sir Anthony Fitzherbert’s La Novel Natura
Brevium (New Natura Brevium),27 and Sir Matthew Hale’s posthumously published
History and Analysis of the Common Law of England.28 Blackstone also used medieval
English sources, such as Glanvill, Bracton, and Fleta. Non-legal sources, such as The
Modern Part of an Universal History or the Journal of the Proceedings of the House of
Commons, also appear, as do sources of Roman or Continental law, such as Justinian’s
Digest and Code, as well as Johan Stiernhöök’s De Jure Sueonum et Gothorum Vetusto
(‘On the Ancient Swedish and Gothic Laws’), published in Stockholm in 1672.29
Book III is unsurprisingly similar to the corresponding material in Blackstone’s
one-volume Analysis of the Laws of England, first published in 1756.30 The Analysis
had started life as ‘four diagrammatic plans of [Blackstone’s] lecture course, provided
as printed broadsheets for the benefit of student audiences from 1753 onwards’.31 The
Analysis reached its fifth edition in 1762, and this was the edition in print when Book III

On Holdsworth and port see R. A. Cosgrove, ‘The Culture of Academic Legal History: Lawyers’ History and
Historians’ Law 1870–1930’, Cambrian Law Review, 33 (2002), 29 (observing that Holdsworth’s ‘habit of snagging
the All Souls’ port bottle in the evening and then writing until it ran out is famous’).
On Holdsworth and secondary authorities, see Cosgrove, ‘Academic Legal History’, 30 (stating that Holdsworth
‘rarely engaged in original research and freely admitted that he worked from secondary authorities almost
exclusively’). For a more careful assessment, see Hanbury, ‘Holdsworth’, ODNB.
22
 See N. Aubertin-Potter, ‘“A Mighty Consumption of Ale”: Blackstone, Buckler and All Souls College, Oxford’,
in Prest (ed.), Blackstone and His Commentaries, 40.
23
 See A. D. Boyer, ‘Coke, Sir Edward (1552–1634)’, ODNB.
24
 See W. Prest, ‘Finch, Sir Henry (c. 1558–1625)’, ODNB.
25
 See S. Handley, ‘Rolle, Henry (1589/90–1656)’, ODNB.
26
 See J. H. Baker, ‘Broke, Sir Robert (d. 1558)’, ODNB.
27
 See J. H. Baker, ‘Fitzherbert, Sir Anthony (c. 1470–1538)’, ODNB.
28
 See A. Cromartie, ‘Hale, Sir Mathew (1609–1676)’, ODNB, observing that ‘[t]he Analysis at its conclusion is a
complete taxonomy of matters handled by the common law; it was borrowed by William Blackstone with minimal
modification and therefore provides the structure of Blackstone’s Commentaries’.
29
Oxford University’s SOLO catalogue reveals that copies of Stiernhöök’s book are now held by the Bodleian
Library and in the libraries of New College and Queen’s College, but not all college library holdings are listed. As
the provenance of most copies (i.e. whether they were acquired before or after the publication date of Book III) is
unclear, it is impossible to say which copy Blackstone consulted, if indeed it was one of these.
30
This is confirmed by Doolittle: ‘There was certainly no opportunity to make wholesale changes to the lectures
in the years before they were published as Commentaries on the Laws of England. Thomas Bever’s full set of notes
in 1753–4 can be traced through to the printed form. With the assistance of another reasonably full set of notes
from the Vinerian period (1761–2), as well as the successive editions of the Analysis …, it is possible to establish
that Blackstone made few fundamental changes to the basic structure and content of his lectures’ (Doolittle,
William Blackstone, 82).
31
W. Prest, William Blackstone: Law and Letters in the Eighteenth Century (Oxford, 2008), 142.
 editor’s introduction to book iii xiii

of the Commentaries was published in 1768. The third book of the Analysis, on
‘private wrongs or civil injuries’, is divided into fewer chapters than Book III of the
Commentaries—it has fifteen chapters in the first edition of the Analysis, rising to
sixteen chapters in the fifth edition of the Analysis, compared with twenty-seven
chapters in Book III of the Commentaries—but the structure and topics in the
Analysis are fundamentally similar to Book III of the Commentaries. Every topic in
the third book of the Analysis is in Book III of the Commentaries, though not quite
the other way around. There is one chapter in Book III of the Commentaries the
material of which is wholly absent from pre-1768 editions of the Analysis: namely,
Chapter 17, on ‘injuries proceeding from, or affecting, the Crown’. Blackstone dis–
cussed this topic first in the Commentaries. Thereafter, he added it to the Analysis.32

Reception of Book III upon Publication; Blackstone’s Varia

In notices and reviews appearing directly after its publication, Book III of Black­
stone’s Commentaries generally received high praise.33 A notice in the 1768 Annual
Register consisted primarily of quotations from the volume, the author of the notice
observing that ‘[t]he utility of the work, and the great merit of the elegant and
masterly writer, are so generally understood as to require no additional illustration;
and our readers will justly think the little room that our limits afford, much better
supplied by quotations from the original, than by any observations we should make
on it’.34 Reviews with more substance appeared in 1768 in the Critical Review and the
Monthly Review.35 The Critical Review lauded the volume as an ‘excellent work’ and
said that
[i]t is paying Mr. Blackstone too poor a compliment to call him the English Cujas,36
or the modern Coke, as perhaps neither of these authors have equalled him in that
perspicuity and order, which has been so much wanting in the study of the law. He
has cleared it from technical terms; so that we can venture to assert, that every
gentleman of tolerable good sense, though he is no scholar, by carefully perusing this
work, may become no contemptible lawyer.37
The barrister Owen Ruffhead in the Monthly Review similarly described the volume
as ‘a work, in which knowledge, elegance, and spirit, are happily united with method
and perspicuity’ and an ‘incomparable performance’.38

32
 See W. Blackstone, An Analysis of the Laws of England (6th edn., Oxford, 1771), 106.
33
 See Prest, Blackstone, 221.
34
Annual Register for the Year 1768, 268. The notice also referred to Blackstone’s account of trial by jury as ‘very
full and accurate’ (ibid., 270).
35
 See Critical Review (June 1768), 401–10; (July 1768), 29–36; Monthly Review (Nov. 1768), 329–44; (Dec.
1768), 461–8.
36
Jacques Cujas (d. 1590), an eminent French jurist and scholar of Roman law.
37
Critical Review (July 1768), 36. On the possibility that this notice was authored by Edmund Burke, see T. W.
Copeland, Edmund Burke: Six Essays (1950), 144.
38
Monthly Review (Nov. 1768), 329; (Dec. 1768), 468.
OUP CORRECTED PROOF – FINAL, 12/07/16, SPi

xiv book iii

The reviews did have some minor criticisms, for example about Blackstone’s use of
the term ‘municipal’ law (III. 1) to describe the law of England;39 about whether there
was any real difference between the two etymologies offered by Blackstone (III. 32)
of piepoudre;40 and about whether the chancellor was truly ‘the general guardian of
all infants, idiots, and lunatics’ (III. 47) by virtue of office or instead only by virtue of
a writ from the king.41 The reviews also had suggestions for additions or clarifications,
for instance that Blackstone should emphasize that, before the estab�lishment of the
central royal courts, the county courts (discussed in Chapter 4) were the chief courts
of the kingdom;42 or that Blackstone should add to his list of the defects of trial by
jury (III. 382–5) the requirement of unanimity.43
Blackstone seems largely to have ignored these criticisms and suggestions as he
prepared subsequent editions. One suggestion that does correlate with subsequent
varia—though it may have been merely the product of Blackstone’s wordsmithing on
his own initiative rather than responding to critique—was to be clearer about the
distinction (III. 78) between the duchy of Lancaster and the county palatine.44
Blackstone has been aptly described as ‘the sort of writer who found it very difficult
to refrain from tinkering with his text’.45 This habit of wordsmithing is amply illustrated
by the varia in Book III (printed at the end of this volume). A good example of
Blackstone’s tinkering with language in an effort to enhance clarity and precision can
be found in the very first instance of a change in Chapter 1 (III. 3). Here in the first
edition of the Commentaries, Blackstone wrote: ‘But as some injuries are of such a
nature, that they furnish or require a more speedy remedy ...’. In the next edition to be
printed he changed this sentence to read as follows (additions are underlined and
deletions are struck through): ‘But as there are some certain injuries are of such a
nature, that they some of them furnish or and others require a more speedy remedy ...’. 46
The varia in Book III provide good evidence of Blackstone-as-tinkerer, but
otherwise they are unrevealing. In updating Book III, Blackstone did what most
authors would have done in preparing subsequent editions: he clarified his text;47 he
added or deleted references to the occasional case,48 statute,49 or treatise;50 and he
39
╇See Critical Review (June 1768), 401–2; Monthly Review (Nov. 1768), 329–30.
40
╇See Critical Review (June 1768), 403.
41
╇See Critical Review (June 1768), 408.
42
╇See Monthly Review (Nov. 1768), 335.
43
╇See Monthly Review (Dec. 1768), 468.
44
╇See Critical Review (July 1768), 34; ch. 6 〈11〉, III. 54, 328. The Duchy of Lancaster is a private estate held by
the monarch. See http://www.duchyoflancaster.co.uk/about-the-duchy. The county of Lancashire became a county
palatine in the mid-fourteenth century, with its own separate court system (like county Durham).
45
╇ W. Prest, ‘Blackstone and Biography’, in Prest (ed.), Blackstone and His Commentaries, 9.
46
╇Ch. 1 〈1〉, III. 2, 323.
47
╇ The example just cited at footnote 46 is typical.
48
╇See e.g. ch. 8 〈21〉, III. 350, adding a reference to Jones’s case (1677) 2 Mod 198, 86 ER 1023; ch. 11 〈8〉, III. 336,
adding a reference to Fair-Claim v Sham-Title (1762) Burr. 1290, 97 ER 837; ch. 16 〈2〉, III. 339, adding a reference
to Weekly v Wildman (1698) 1 Ld Raym 405, 91 ER 1169; ch. 18 〈13〉, III. 341, adding a reference to Walter v Bould
(1610) 1 Bulstr 31, 80 ER 735; ch. 24 〈21〉, III. 350, adding references to Griesley’s case (1588), 8 Rep 38, 77 ER 530,
and Beecher’s case (1608) 8 Rep 58, 77 ER 559.
49
╇See e.g. ch. 6 〈5〉, III. 327, adding references to five statutes, the most recent being 13 Geo. III c. 51 (1773);
ch. 17 〈3〉, III. 340, adding references to 21 Jac. I c. 2 (1623) and 9 Geo. III c. 16 (1769); ch. 23 〈43〉, III. 348, adding
a reference to 13 Geo. III c. 63 (1773).
50
╇See e.g. ch. 10 〈14〉, III. 340, adding a reference to Coke on Littleton; ch. 16 〈1〉, III. 339, adding a reference to
Finch’s Law; ch. 22 〈3〉, III. 345 adding a reference to Rolle’s Abridgment.
 editor’s introduction to book iii xv

added internal cross-references (to other parts of the Commentaries).51 None of this
is especially remarkable, nor does it shed much additional light on Blackstone’s
mind or method.
Perhaps the most interesting observation that can be made about the varia in Book
III is about the path not taken, the varia that do not exist. Ex ante one might speculate
that Blackstone would have made large changes from one edition to the next, with
whole paragraphs added or subtracted, large sections fundamentally re-worked—
especially in Chapters 4 (on the ‘public courts of common law and equity’), 22 (on
the ‘several species of trial’), 23 (on trial by jury), or 27 (on the court of equity). These
chapters do have ample varia. But here, as elsewhere in Book III, the varia are on the
margins, as it were: a clause reworded, a reference added. We do not see Blackstone
changing large swaths of his text. This is consistent with what we observed earlier: his
non-response to a suggestion in the Monthly Review that Blackstone add to his
critique of jury trial the requirement of unanimity.52 To adopt this suggestion would
have necessitated an entire paragraph, perhaps more, either to make the case that
unanimity, too, was a defect of jury trial or to explain why he did not view it as such.
Blackstone did neither. This kind of revision was not on the cards. He tinkered often
but declined more substantial rewriting, at least in Book III.

Impact of Book III to the Present Day

Professor Baker has rightly called Blackstone’s Commentaries ‘the first connected and
reasonably comprehensive survey of English law since [the thirteenth-century
treatise known as] Bracton’.53 A full assessment of the Commentaries’ impact over 250
years, and in the many countries in which it has been published, is far beyond the
scope of this essay.54 Instead, let me offer three observations, focusing on Book III.
First, Book III provided a remarkable map55 to the English courts and their
procedures designed primarily for students and for the ‘gentlemanly reader’,56 rather
than for practising lawyers. This focus, rooted in the Commentaries’ origin in
Blackstone’s Oxford lectures, had benefits and limitations. On the one hand, the

51
 See e.g. ch. 2 〈2〉, III. 323, adding a cross-reference to Book II.
52
 See Monthly Review (Dec. 1768), 468
53
J. H. Baker, An Introduction to English Legal History (4th edn., 2002), 191.
54
 See W. Prest, ‘Beyond England’ in W. Prest (ed.), Re-Interpreting Blackstone’s Commentaries: A Seminal Text
in National and International Contexts (Oxford, 2014), 71: ‘Tracing the dissemination, reception and impact of
Blackstone’s work within and beyond England, inside and outside the common law world, presents a scholarly
challenge of massive proportions. While a start has been made, much remains to be done by way of mapping the
extensive global dimensions and varying configurations of the influence exercised by the Commentaries over the
past two and a half centuries.’
55
The metaphor is Blackstone’s: ‘You will permit me however briefly to describe, rather what I conceive an
academical expounder of the laws should do, than what I have ever known to be done. He should consider his
course as a general map of the law, marking out the shape of the country, its connexions and boundaries, its greater
divisions and principal cities: it is not his business to describe minutely the subordinate limits, or to fix the
longitude and latitude of every inconsiderable hamlet’ (I. 30).
56
 Lobban, Common Law and English Jurisprudence, 47.
xvi book iii

many editions of the Commentaries produced and sold in England during Blackstone’s
lifetime, and for decades thereafter,57 attest to the book’s popularity and utility for its
intended purposes. On the other hand, English lawyers in the second half of the
eighteenth century typically looked for guidance elsewhere, to more detailed and
specialized treatises. Among these, in the realm of procedure, were Sir Jeffrey Gilbert’s
History and Practice of Civil Actions and Law of Evidence, and Sir Francis Buller’s
Introduction to the Law Relative to Trials at Nisi Prius (based on the notes of his
uncle, Henry Bathurst). Indeed, some lawyers were dismissive of the Commen­taries’
relevance to the practising bar, William (later Sir William) Jones, for example, writing
that the Commentaries ‘will no more form a lawyer, than a general map of the world,
how accurately and elegantly soever it may be delineated, will make a geographer’.58
This understates the importance of Blackstone’s map as a foundation, as Professor
Milsom has rightly reminded us.59 In assessing the impact of Book III, therefore, we
must be mindful of Blackstone’s intended audiences, and also of the groundwork that
he laid and upon which so many others built.
Second, it must be acknowledged that, in England, the durability of Book III was
blunted by Victorian reforms. The courts and procedures described by Blackstone
lasted for decades, but not centuries, after Book III’s initial publication. This was
noticed by the legal historian Frederic William Maitland in his lectures on the forms
of action at common law: ‘Let us then for a while place ourselves in Blackstone’s day,
or, for this matters not, some seventy years later in 1830, and let us look for a moment
at English civil procedure.’60 By the beginning of the nineteenth century, the ‘delay,
vexation, and expense’61 of English civil process attracted considerable criticism,
most notably from Jeremy Bentham62 and his ardent supporter in Parliament, Henry
Brougham.63 Commissions were appointed throughout the nineteenth century to
examine the functioning of the courts and to recommend reforms. These reforms
came piecemeal, culminating in transformative statutes enacted after Brougham and
Bentham had died.64 By the end of Victoria’s reign in 1901, the reforms had brought
together the three common-law courts of King’s Bench, Common Pleas, and
Exchequer within one Queen’s Bench Division, and the separate jurisdictions of law
and equity within one High Court; archaic and complex procedures had been

57
 See Milsom, ‘Blackstone’s Achievement’, 1: ‘working editions [of the Commentaries] appeared in England
until about the time of the Judicature Acts [of the 1870s]’.
58
W. Jones, An Essay on the Law of Bailments (1781), 3–4.
59
 Milsom, ‘Blackstone’s Achievement’, 10–12.
60
 F. W. Maitland, The Forms of Action at Common Law, ed. A. H. Chaytor and W. J. Whittaker (Cambridge,
1971), 1.
61
Bentham used the phrase repeatedly. For example, a search in the ‘Making of Modern Law: Legal Treatises
1800–1926’ database reveals 117 uses in the Rationale of Judicial Evidence, 5 vols (1827).
62
 See F. Rosen, ‘Bentham, Jeremy (1748–1832)’, ODNB. For examples of Bentham’s criticisms of Book III, see J.
Bentham, A Fragment on Government, ed. J. H. Burns and H. L. A. Hart (Cambridge, 1988), 20–2, 30 (originally
published 1776).
63
 See M. Lobban, ‘Brougham, Henry Peter, first Baron Brougham and Vaux (1778–1868)’, ODNB.
64
 For discussion, see T. P. Gallanis, ‘Victorian Reform of Civil Litigation in the Superior Courts of Common
Law’, in C. H. Van Rhee (ed.), Within a Reasonable Time: The History of Due and Undue Delay in Civil Litigation
(Berlin, 2010), 233–53.
 editor’s introduction to book iii xvii

replaced with more straightforward and sensible ones; and judges had been given
more power to control and shape their procedural environment, at the ‘macro’ level
through the promulgation of rules of court but also in the individual case to permit
amendments of pleadings or the temporary adjournment of trial.65 English courts
and procedure looked very different at the close of the Victorian era than they had
done in the age of Blackstone. This blunted the duration and nature of Book III’s
impact in England.
Third, Book III had a longer and greater impact outside England, and especially in
the United States. Much has been written, and rightly, about the importance of
Blackstone’s Commentaries in the American colonies and the early United States.66
This impact included an influential role for Book III. Blackstone’s affection for trial
by jury, in particular, was shared by the American founders,67 as reflected in the Sixth
and Seventh Amendments to the US Constitution.68 As a consequence of the central
role of the jury in American procedure, Blackstone’s panegyric on jury trial continues
to be quoted by American judges and legal scholars.69 Moreover, American courts,
including the US Supreme Court, have repeatedly looked to Book III of Blackstone’s
Commentaries for guidance on the common law as it stood in the era of the Con­
stitution’s framing.70

65
Ibid., 249–50.
66
The scholarly literature addressing Blackstone’s impact in America is extensive. See e.g. M. H. Hoeflich,
‘American Blackstones’, in Prest (ed.), Blackstone and His Commentaries, 171–84; S. Sheppard, ‘Casebooks,
Commentaries, and Curmudgeons: An Introductory History of Law in the Lecture Hall’, Iowa Law Review, 82
(1997), 552–64; A. W. Alschuler, ‘Rediscovering Blackstone’, University of Pennsylvania Law Review, 45 (1996),
4–19.
67
This is not to say that it was not at all shared in England. By way of illustration, Book III was quoted extensively
in the preface to the London 1794 edition of Hamilton’s Juryman’s Guide or the Englishman’s Right, pp iii–vii.
Blackstone’s influence on the American founders remains a subject of debate. Compare, for example, D. J. Boorstin,
The Mysterious Science of the Law (Chicago, 1941), 3 (‘[t]he influence of Blackstone’s ideas on the framers of the
Federal Constitution is well known’) with D. R. Nolan, ‘Sir William Blackstone and the New American Republic:
A Study of Intellectual Impact’, New York University Law Review, 51 (1976), 731 (Blackstone’s influence on the
Constitution ‘was indirect and delayed, not direct and immediate’).
68
The Sixth Amendment provides: ‘In all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation;
to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor,
and to have the Assistance of Counsel for his defence.’ The Seventh Amendment provides: ‘In suits at common
law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no
fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules
of the common law’.
69
On quotations by American judges see e.g. Chauffeurs, Teamsters and Helpers, Local No. 391 v Terry, 494 US
558, 580 (1990) (Brennan J, concurring); Snow v State, 216 P3d 505 (Wyo 2009).
On quotations by American scholars see, for a recent example, S. A. Thomas, ‘Blackstone’s Curse: The Fall of
the Criminal, Civil, and Grand Juries and the Rise of the Executive, the Legislature, the Judiciary, and the States’,
William & Mary Law Review, 55 (2014), 1207.
70
 See e.g. Alleyne v United States, 133 SCt 2151, 2158 (2013); Munaf v Geren, 553 US 674, 693 (2008);
Pasquantino v United States, 544 US 349, 356 (2005); Crawford v Washington, 541 US 36, 43 (2004); City of
Monterey v Del Monte Dunes at Monterey Ltd, 526 US 687, 716 (1999); Haddle v Garrison, 525 US 121, 127
(1998); Likety v United States, 510 US 540, 543–4 (1994). See also J. Allen, ‘Reading Blackstone in the Twenty-First
Century and the Twenty-First Century Through Blackstone’, in Prest (ed.), Re-Interpreting Blackstone’s
Commentaries, 215–20.
xviii book iii

In 1841, Henry John Stephen published the first of his four volumes of New
Commen­taries on the Laws of England (Partly Founded on Blackstone).71 As he
explained in the preface, ‘Though the celebrated Treatise of Blackstone still remains
without a rival, as an introductory and popular work on the Laws of England, the
positions it contains have been nevertheless so entrenched upon by recent alterations
in the law itself, that if a student were to rely upon its text, as containing an accurate
account of our present system of jurisprudence, he would be led continually
astray.’72 Stephen’s New Commentaries not only updated Blackstone’s text but also
reordered and refashioned it. Indeed, Stephen ventured that ‘it is in that which regards
the general arrangement, that the strongest claim of the present work to originality
will be found. The order adopted by Blackstone is, in all its principal lineaments,
derived from the Analysis of Hale; but though rendered venerable by the combined
authority of names like these, I have not felt myself able to accede to it, without
alteration.’73 The part corresponding to Blackstone’s Book III is Stephen’s Book 5, ‘Of
Civil Injuries’—twenty chapters spanning part of the third and part of the fourth of
Stephen’s four volumes. Much of the content was familiar from Blackstone, yet also
much was restructured and revised by Stephen. The New Commentaries was a success
throughout the Victorian era and well beyond it, the final edition appearing in
1950.74 This reflects well on the achievement of Blackstone’s original. ‘If I have seen
further it is by standing on [th]e sho[u]lders of Giants.’75

Thomas P. Gallanis

71
 See L. Stephen, ‘Stephen, Henry John (1787–1864)’, rev. P. Polden, ODNB.
72
 H. J. Stephen, New Commentaries on the Laws of England (Partly Founded on Blackstone), vol. i (1841),
p. iv.
73
Ibid., p. vii.
74
Stephen’s Commentaries on the Laws of England, ed. L. C. Warmington et al. (21st edn., 1950).
75
 Letter from Isaac Newton to Robert Hooke, 5 February 1675/6, in H. W. Turnbull (ed.), The Correspondence
of Isaac Newton, i: 1661–1675 (Cambridge, 1959), 416.
 Acknowledgements

It is a pleasure to record my thanks to the Warden and Fellows of All Souls College,
Oxford, and to the Master and Fellows of Magdalene College, Cambridge, for electing
me to visiting fellowships, and to the Faculty of Law at Cambridge University for
electing me to the Herbert Smith Visitorship. The colleges and the Faculty provided
superb environments in which to work on this project, especially (at All Souls) literally
in the shadow of Blackstone’s statue in the Codrington Library. It is also a pleasure to
thank the University of Iowa Provost’s Office, the University of Iowa College of Law
(and my superb dean, Gail Agrawal), and the University of Iowa Law Library for
research support and research assistance. For their dedicated help in the preparation
of this variorum edition, I am delighted to thank my student research assistants:
Matthew Blumenreich, Michael Bouts, Jessica Burton, Robert Fitzgerald, Thomas
Gerberding, Hallie Goodman, Armin Halilovic, Iain Johnson, Wesley Kimmel, Daniel
McGrath, Robert Nietupski, Joshua Orewiler, Brian Page, and Maximilian Traut. It is
also a pleasure to thank my fellow editors, David Lemmings, Ruth Paley, and Simon
Stern, our general editor, Wilfrid Prest, and the members of our editorial advisory
board, Sir John Baker, Paul Brand, Joshua Getzler, John Langbein, and Stephen
Sheppard, for their wise counsel and comradeship throughout this project.

Thomas P. Gallanis
 OUP CORRECTED PROOF – FINAL, 12/07/16, SPi

Note to the Reader

This edition seeks to identify Blackstone’s changes to the text of the Commentaries
between the first edition of 1765–9 and the ninth and first posthumous edition which
appeared in 1783 under the editorship of Dr Richard Burn.1 All such authorial ‘varia’
are marked in each chapter by a preceding numeral enclosed in angled brackets.
These cues are keyed to sequential lists, similarly numbered and grouped by chapter,
at the end of each volume. Here, every item is preceded by the number of the edition
in which the authorial change first occurred, enclosed in square brackets. The listing
commences with the relevant word, clause, sentence, or longer passage from the first
edition, followed by a vertical divider | separating the original from the altered text.
Omitted text or footnotes are annotated accordingly, or indicated by an omission on
the right-hand side of the divider. Textual changes to the same sentence or paragraph
over more than one edition are represented by inserting the relevant information in
square brackets, or listed sequentially following the first numbered entry.
To keep the varia lists within manageable proportions, the following are generally
ignored: (i) changes in punctuation and/or spelling; (ii) unambiguous typographical
errors, including misspellings, omissions, and erroneous repetition of single words
corrected in subsequent editions; (iii) incorporation of footnotes in text or vice versa;
(iv) changes in cross-references due to different pagination in later editions; (v)
alterations made in one edition reversed in the next or following editions; (vi) changes
of form which do not change meaning, as where adjacent words are transposed, or
paragraphs are recast.
No attempt has been made to modernize Blackstone’s language. While his spelling
often does not accord with current usage, most variants are simply phonetic
equivalents of the modern form. Except for removing the apostrophe from the
possessive ‘it’s’, a similar policy applies to punctuation, italics, and the use of capital
letters, although evident misspellings and typographical errors are silently corrected.
Blackstone’s footnotes present difficulties of a different kind. Apart from the use of
lower-case letters of the alphabet rather than numerals, both for in-text cues and
foot-of-page markers (usually, but not always, without the letters ‘j’ and ‘v’), the notes
themselves include often cryptic and inconsistent bibliographical citations, to which no
key was originally provided. While the following list of Abbreviations identifies most
such references, a few uncertainties remain. It should also be noted that Blackstone’s
quotation marks often denote paraphrases rather than verbatim transcriptions.
Editorial annotations and interventions are enclosed in square brackets, while
editorial footnotes are placed below those of Blackstone. Where his footnotes refer to
published reports of identifiable law cases, the case name is added before the citation.
An appended Table of Cases provides dates and, where possible, a reference to the

1
╇A fuller account of editorial methodology appears in the first volume (I. xliii–xlvi).
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