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Blackstone and Bentham: The Law of Nations and International Law

Mark Weston Janis

in America and the Law of Nations 1776-1939

English jurist, William Blackstone's Commentaries, published between 1765 and 1769, transmitted the common law's traditional perception of the law of nations to American lawyers who would declare ... More

English jurist, William Blackstone's Commentaries, published between 1765 and 1769, transmitted the common law's traditional perception of the law of nations to American lawyers who would declare national independence, structure a government, and lead a New Republic. English philosopher Jeremy Bentham, displeased with Blackstone's law of nations, fashioned a new and lasting term international law in 1789, notably also the first year of US Constitutional government, Washington's inaugural term as President, and the French Revolution. Although Americans happily conflate the two terms, they have long struggled to reconcile Blackstone's and Bentham's competing notions about the nature of the discipline, however it be named. This chapter begins with Blackstone's use and understanding of the traditional concept of the law of nations. It moves on to the creation of Bentham's new term, international law, then to Bentham's reconciliation of international law with his views about law in general, contrasting Bentham's perceptions with those of his disciple, John Austin. I0074 presents Bentham's notions about the possible role of international law in a universal and perpetual peace. Finally, the chapter offers an analysis of some of the implications of Bentham's posited and widely accepted equivalence of international law and the law of nations. By understanding the important differences between Blackstone's classical concept of the law of nations and Bentham's influential conception of international law, we put ourselves in a better position to comprehend and appraise some of the conflicts among subsequent American approaches to the discipline. The general aim is to help explain how Americans have gotten to where they are with this discipline.Less

Legal Christianity Conceived

Steven K. Green

in The Second Disestablishment: Church and State in Nineteenth-Century America

This begins a three-chapter discussion of legal disestablishment, of the development and decline of the maxim that Christianity formed part of the common law. It traces the origins of the maxim in ... More

This begins a three-chapter discussion of legal disestablishment, of the development and decline of the maxim that Christianity formed part of the common law. It traces the origins of the maxim in higher-law notions, British common law, and Puritan legal codes. It discusses the influence of jurists William Blackstone, Joseph Story, and James Kent and the maxim’s early application in blasphemy and Sunday law cases. The chapter argues that the maxim influenced early legal attitudes toward understandings of disestablishment.Less

The English Public Lawyers' Constitution

Iain McLean

in What's Wrong with the British Constitution?

Sir Alan Lascelles states the constitution (except the bits we are not allowed to know about) in an anonymous letter ‘The doctrine of parliamentary supremacy since Blackstone’. Bagehot; Dicey; Low; ... More

Sir Alan Lascelles states the constitution (except the bits we are not allowed to know about) in an anonymous letter ‘The doctrine of parliamentary supremacy since Blackstone’. Bagehot; Dicey; Low; Amery; Jennings; Laski. The rule of law.Less

Blackstone, an English Institutist: Legal Literature and the Rise of the Nation State

John W Cairns

in Law, Lawyers, and Humanism: Selected Essays on the History of Scots Law, Volume 1

The publication of Blackstone’s Commentaries in the 1760s initially gained a favourable reception. However, the criticisms made in 1776 by Bentham in the Fragment on Government did such serious ... More

The publication of Blackstone’s Commentaries in the 1760s initially gained a favourable reception. However, the criticisms made in 1776 by Bentham in the Fragment on Government did such serious damage to Blackstone’s reputation that, in the nineteenth century, among many scholars, his standing was low. This chapter argues that an important way of understanding Blackstone’s book is as an institutional work. This argument is developed in three parts: first, institutional writings as a genre will briefly be discussed; second, the recognition of this genre in England will be described; and third, Blackstone’s status as an institutional writer will be argued for, and the solution this provides to some of the problems related to his Commentaries will be demonstrated.Less

Blackstone’s and Hale’s Doctrines of Land and Water Use

JOSHUA GETZLER

in A History of Water Rights at Common Law

In the early 17th century, Sir Edward Coke (1552-1634) in his Institutes and Reports gives some treatment of incorporeal rights and prescriptions, especially in relation to commons and fisheries; but ... More

In the early 17th century, Sir Edward Coke (1552-1634) in his Institutes and Reports gives some treatment of incorporeal rights and prescriptions, especially in relation to commons and fisheries; but Coke’s main concern is with tenures and estates: with title to land, not use of land. By contrast, Sir Matthew Hale (1609-76) and Sir William Blackstone (1723-80) provided detailed and systematic treatments of the rights of enjoyment incidental to land ownership. A justifiable claim can be made that these writers, Blackstone in particular, laid the foundations for the 19th-century law of land and water use. Here Blackstone, like Coke, was cited by the judges in leading cases as a direct authority in the search for right answers. This chapter reconstructs these modern institutionalists’ schemes of property and water law, which in turn reveals much of their legal technique and ideology.Less

The Blackstone Reforms 1755–1780

Matthew Kilburn

in The History of Oxford University Press: Volume I: Beginnings to 1780

By the mid-eighteenth century the working practices and management of the Press were again in need of reform, as evidenced by an inquiry launched by William Blackstone, who became a Delegate of the ... More

By the mid-eighteenth century the working practices and management of the Press were again in need of reform, as evidenced by an inquiry launched by William Blackstone, who became a Delegate of the Press in 1755. Blackstone suggested changes to price structures, rates of pay for workers, record keeping, and a reformed Delegacy who would more closely oversee the finances and publications of the Press. New types were ordered and the quality of production improved; the re-animated press began to establish again its reputation for authoritative classical texts. As sales of Bibles increased greater competition among printers led to larger sums paid to the Delegates for the lease of the privilege to publish them, but legal challenges to the privilege covering almanacs and Bibles and to perpetual copyright involved Oxford, Cambridge, and the Stationers' Company in costly court proceedings, and necessitated the complete reorganization of the Bible Press in 1780.Less

William Blackstone: Teacher of Revolution⋆

in From Vienna to Chicago and Back: Essays on Intellectual History and Political Thought in Europe and America

This chapter addresses some light on a little known aspect of Revolutionary newspaper and pamphlet warfare in South Carolina in the years from 1769 to 1776. It concentrates on a feature of William ... More

This chapter addresses some light on a little known aspect of Revolutionary newspaper and pamphlet warfare in South Carolina in the years from 1769 to 1776. It concentrates on a feature of William Blackstone's constitutional thought which has been misted by his championship of parliamentary sovereignty. John McKenzie deserves a special place in a story that has not yet been written, the story of Blackstone's significance for American Revolutionary thought. Based on “Revolution principles,” McKenzie's ideas had a peculiar fortune. William Henry Drayton in South Carolina is also addressed. Furthermore, it discusses Thomas Jefferson and the Declaration of Independence. In the Declaration of Independence, Jefferson does not speak of the king abandoning the helm of government. As Jefferson put it, the cliché of Blackstone's “Toryism,” of his “honeyed Mansfieldism,” his championship of parliamentary sovereignty has obscured too long the fact that the “Tory” Blackstone was no Jacobite.Less

Original Understanding: Preconstitutional Sources and the Drafting and Ratification Process

Lackland H. Bloom

in Methods of Interpretation: How the Supreme Court Reads the Constitution

This chapter considers the various pre-constitutional sources that the Court relies on to discover the original understanding as well as the uses that it has made of material relating to the drafting ... More

This chapter considers the various pre-constitutional sources that the Court relies on to discover the original understanding as well as the uses that it has made of material relating to the drafting and ratification process. First, it discusses the Court's use of English and common law history, the influence of William Blackstone, colonial history, the Declaration of Independence, the Articles of Confederation, and the Virginia experience with freedom of religion. It then considers the Court's use of several different historical sources including statements, debates, and changes to the text during the drafting process, rejected provisions, understanding during the ratification process, the absence of discussion and the Federalist Papers.Less

: Blackstone's Liberal Education for Law and Politics

in The Cloaking of Power: Montesquieu, Blackstone, and the Rise of Judicial Activism

This chapter focuses on the influence of Sir William Blackstone's training of lawyers and judges in liberal constitutions and states that he also had an important influence on liberal politics. ... More

This chapter focuses on the influence of Sir William Blackstone's training of lawyers and judges in liberal constitutions and states that he also had an important influence on liberal politics. Contrary to the portrait of him painted by Jeremy Bentham and others impatient for progress toward more radical reforms of liberal constitutionalism, he understood the Commentaries as embodying a reform project in English law. The contempt of Blackstone's critics is proportional, ironically, to this striking achievement in the history of Anglo-American and modern law. Blackstone like Montesquieu would get the benefits of modern philosophy as evident in the Commentaries' subsequent discussion of the state of nature, or of Beccaria on a precise scale of punishments. Analysis of Blackstone's debt to Montesquieu confirms that such “public spirit” represents the jurisprudence of The Spirit of the Laws—not least with regard to the role of the judicial power in a complex constitution of liberty.Less

Politicizing the Jew: William E. Blackstone and The Mobilization of Cultural Fundamentalism

Robert O. Smith

in More Desired than Our Owne Salvation: The Roots of Christian Zionism

William Blackstone made a central contribution to American evangelical Judeo-centrism by offering a nationalist adaptation of Darby’s premillennial dispensationalism. Blackstone crafted a middle path ... More

William Blackstone made a central contribution to American evangelical Judeo-centrism by offering a nationalist adaptation of Darby’s premillennial dispensationalism. Blackstone crafted a middle path between futurist and historicist prophecy interpretation. His efforts to shape political discourse generated a great deal of intra-Jewish debate. Blackstone matched Jewish ambivalence toward his efforts with his own ambivalence toward Jews and Judaism. Blackstone’s patriotic conservatism was shaped in the context of US expansionism in the early twentieth century.Less

Forward to the Eighteenth Century

in No Law: Intellectual Property in the Image of an Absolute First Amendment

This chapter draws upon Sir William Blackstone's views to examine the relationship between the First Amendment and intellectual property. Blackstone held a view of liberty of the press narrower in ... More

This chapter draws upon Sir William Blackstone's views to examine the relationship between the First Amendment and intellectual property. Blackstone held a view of liberty of the press narrower in many ways than modern American free speech doctrine understands the First Amendment. He did not see after-the-fact punishment for “improper, mischievous, or illegal” publications as a violation of press freedom. The chapter looks at Blackstone's own discussion of copyright and identifies seeds of a justification for the application of Blackstone's logic to a case where Blackstone himself did not go. It also addresses some issues that can help clarify the absolute reading of the First Amendment proposed in Chapter 13.Less

Supremacy and the Supervisory Power

JAMES E. PFANDER

in One Supreme Court: Supremacy, Inferiority, and the Judicial Department of the United States

This chapter concentrates on the meaning of supremacy and its close association in the minds of the Framers of the Constitution with the supervisory powers of King's Bench in England. These ... More

This chapter concentrates on the meaning of supremacy and its close association in the minds of the Framers of the Constitution with the supervisory powers of King's Bench in England. These supervisory powers were what William Blackstone had in mind when he referred to the high and transcendent power of King's Bench to issue the common-law writs of mandamus, habeas corpus, and prohibition, among others. Differing from appellate jurisdiction, these supervisory writs enabled the court to direct the progress of litigation in inferior tribunals, to correct errors when necessary, and to confine the lower courts within the bounds of their proper jurisdiction. The chapter shows that these supervisory powers were incorporated into the remedial arsenal of supreme courts in America and were understood to form a part of the judicial toolkit of the “one Supreme Court”identified in Article III of the Constitution.Less

: The Fugitive Slave Problem to 1850

Don E. Fehrenbacher and Ward M. McAfee

in The Slaveholding Republic: An Account of the United States Government's Relations to Slavery

Runaways were a common feature of late colonial society, and from Virginia northward, especially, they included white persons as well as black. George Washington, who had a relatively small number of ... More

Runaways were a common feature of late colonial society, and from Virginia northward, especially, they included white persons as well as black. George Washington, who had a relatively small number of white servants on his plantation, was more often bothered by the flight of a slave or truancy of a slave. Colonial laws dealing with runaway servants and slaves dated back to the 17th century. Some responsibility for enforcement rested with sheriffs, magistrates, and other public officers, but more often than not, recovery depended largely on the initiative of the owner. Men like Washington, acting for themselves or through intermediaries, and usually took their own steps to locate a fugitive and compel his return to servitude. In doing so, they were presumably exercising a common-law right of “recaption”, which, as defined by Sir William Blackstone, permitted private action to recover property wrongfully taken.Less

The Stamp Act and the State of Nature

Mark Somos

in American States of Nature: The Origins of Independence, 1761-1775

Chapter 4 begins with Warren’s Case to highlight public engagement with the state of nature discourse and reveal the pervasive importance of the state of nature in colonial reactions to the Stamp ... More

Chapter 4 begins with Warren’s Case to highlight public engagement with the state of nature discourse and reveal the pervasive importance of the state of nature in colonial reactions to the Stamp Act. These reactions stood in contrast to Blackstone’s conceptualization of the state of nature in his Commentaries, which is often but mistakenly seen as shaping the earliest stage of American revolutionary ideology. To elaborate the contrast, the chapter describes competing interpretations of the Glorious Revolution and of the state of nature as the standard for measuring the excellence and failure of constitutions. The chapter narrates the first instances when colonists disputed the meaning of the state of nature among themselves, with loyalists dismissing its significance, and patriots endorsing it in attempts to formulate juridically effective expressions of protest. By the time the Stamp Act was repealed, the state of nature became an unavoidable trope in constitutional debates.Less

William Blackstone (1723–1780)

Lisa L. Moore, Joanna Brooks, and Caroline Wigginton (eds)

in Transatlantic Feminisms in the Age of Revolutions

In his Commentaries on the Laws of England (1765–1769), Sir William Blackstone articulated the legal doctrine of coverture or feme covert (l“covered woman”). According to Blackstone, women lose the ... More

In his Commentaries on the Laws of England (1765–1769), Sir William Blackstone articulated the legal doctrine of coverture or feme covert (l“covered woman”). According to Blackstone, women lose the right to make their own contracts and own their own property upon marriage; those rights are transferred to their husbands. He also calls on husbands to discipline their wives like “children” or “servants.” This chapter features Blackstone’s “Of Husband and Wife,” which is part of Commentaries on the Laws of England.Less

Law and Enlightenment: Ivan Tret’iakov and Semen Desnitskii

G. M. Hamburg

in Russia's Path Toward Enlightenment: Faith, Politics, and Reason, 1500-1801

This chapter examines the place of law in Russian Enlightenment thought by focusing on the views of Ivan Andreevich Tret’iakov (1735–1776) and Semen Efimovich Desnitskii. Outside of the government ... More

This chapter examines the place of law in Russian Enlightenment thought by focusing on the views of Ivan Andreevich Tret’iakov (1735–1776) and Semen Efimovich Desnitskii. Outside of the government and the Church, the most important institutional venue for the propagation of Enlightenment ideas in Russia was probably Moscow University, where Tret’iakov and Desnitskii taught courses on Roman law, Russian law, and comparative jurisprudence. Tret’iakov and Desnitskii studied at Glasgow University from 1761 to 1767, listening to lectures from leading figures of the Scottish intellectual scene, including Adam Smith. This chapter considers the influence of William Blackstone, John Millar, and Adam Smith on Desnitskii. In particular, it discusses the ways that Smith’s The Theory of Moral Sentiments, especially its exploration of moral philosophy and social psychology, impressed Desnitskii. It also looks at Desnitskii’s “Proposal on the Establishment of Legislative, Judicial, and Executive Authority in the Russian Empire” and “A Lecture on a Direct and Most Sensible Method of Studying Jurisprudence.”Less

Prologue Liberty and Maturity in Enlightenment Thought

Corinne T. Field

in The Struggle for Equal Adulthood: Gender, Race, and the Fight for Citizenship in Antebellum America

This prologue explains how political theorists during the Enlightenment linked individual liberty to white male maturity in debates about the nature of just authority. It examines the argument put ... More

This prologue explains how political theorists during the Enlightenment linked individual liberty to white male maturity in debates about the nature of just authority. It examines the argument put forward by Puritan, Whig, and Enlightenment reformers in England and America that legitimate authority must be based on consent, thus giving a new emphasis on the concept of white male maturation. More specifically, it analyzes the views of John Locke, William Blackstone, and Jean-Jacques Rousseau. It also considers how the connection between white men's maturity and liberty spread throughout the Atlantic world.Less