Paper presented at the 23rd Annual Australia and New Zealand Law and History Society Conference, Murdoch University, Western Australia (2-4th July, 2004)

Author:	Wilfrid Prest BA, DPhil (Oxford), FRHistS, FASSA Professorial Fellow, University of Adelaide School of Law
Subjects:	Blackstone, William, Sir, 1723-1780 Judges (Other articles) Law - history (Other articles)
Issue:	Volume 11, Number 4 (December 2004)
Category:	Refereed Articles

Contents

• Introduction
• Becoming a judge
• Blackstone as Judge
• Conclusion
• Notes

Introduction

1. When his enormously successful Commentaries on the Laws of England first appeared in four volumes between 1765 and 1769, William Blackstone was still plain Dr, or Mr, and held no higher legal office than that of solicitor-general to George III’s Queen Charlotte. Thus the title page of his first (1765) volume reads ‘Book the first. By William Blackstone, esq.Vinerian professor of law and Solicitor General to Her Majesty’.

2. But following his appointment as a puisne justice of King’s Bench in February 1770, whence he transferred to Common Pleas in June of that year, Blackstone’s judicial status was inscribed as a kind of quality assurance label on the title page of successive editions of the Commentaries: ‘By Sir William Blackstone, one of His Majesty’s Justices of the honourable Court of Common Pleas’. An engraved frontispiece showing Blackstone in full judicial robes, after Thomas Gainsborough’s portrait of 1774, provided graphic reinforcement of the same message. Henceforth the author of perhaps the most influential law book in the English language would be firmly identified as ‘Judge Blackstone’, and nowhere more so than across the Atlantic. There, early in the next century, a versified account of an American law student’s life had it that

   I sometimes at the lasses look,
   Sometimes hurrah for Jackson!
   Sometimes I read a musty book,
   Compiled by old Judge Blackstone’. [1]

3. Sir William Blackstone died at the relatively early age of 56 in February 1780, having served as a high court judge for ten years. This final decade of his life is often depicted as something of an anti-climax, following the enormous success of his pioneering Oxford lectures on English law and government first delivered in 1753 then repeatedly polished and revised over the next thirteen years before their appearance in initially self-published form as the Commentaries. To quote the weighty - not to say leaden - words of Sir William Holdsworth (who as Vinerian Professor and Fellow of All Souls might otherwise regard himself as Blackstone’s lineal descendant and successor), Blackstone’s ‘decisions as judge show the same qualities as his writings. They are clear and logical , and they show a familiarity with both the ancienct and the modern authorities, and with the history of the law... He was an able judge; but Foss’s statement that he was “as distinguished as a judge as he had been as a commentator” cannot be supported.’[2]

4. Noting that Holdsworth’s ‘cool appraisal’ may be ‘as generous as any’, Gareth Jones’s introduction to his 1973 edition of extracts from the Commentaries went on to cite the retrospective near-contemporary assessment of the legally-trained critic and literary scholar Edmund Malone (1741-1812), who in turn relayed reminiscences of the barrister John Scott (1751-1838), the later conservative Lord Chancellon Eldon, to the effect that Blackstone’s assize judgments were more often overruled than those of any other circuit judge of the era, simply because excessive modesty inhibited him from upholding them on appeal: ‘There were more new trials granted in causes that came before [Blackstone] 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.’[3]

5. In his 1959 article on ‘Blackstone as a Judge’, which provides the most detailed evaluation to date of Blackstone’s reported judgments, Holdsworth’s successor H. G. Hanbury broadly endorsed Holdsworth’s dissent from Edward Foss’s ‘extravagant’ praise of Blackstone’s judicial attainments. Yet while suggesting that his talents may have been ‘academic rather than practical’, Hanbury nevertheless assessed Blackstone as ‘outstanding’ vis-à-vis his judicial colleagues on the Common Pleas bench, especially when compared to their King’s Bench counterparts under Chief Justice Mansfield. Hanbury made two further points. First, what we know of Blackstone’s judicial work comes largely from his own reports, which may well have been ‘too modest, too generous to the judgments of his colleagues and unfair to his own’. Second, judges and their reputations are to some considerable extent at the mercy of their dockets; with few exceptions (such as the so-called ‘squib case’ of Scott v Shepherd, or Perrin v. Blake in Exchequer Chamber), Blackstone’s judgments dealt with issues of relatively limited legal significance, hence obviously restricting his opportunities to achieve the highest peaks of judicial eminence.[4]

6. Blackstone’s most recent biographer endorses Hanbury’s assessment of the Commentator, based on the evidence of his own published Reports, as a better than average, if hardly stellar quality judge. Dr Ian Doolittle goes on to canvass other aspects of Blackstone’s judicial persona, including his public role and self-presentation, interactions with his judicial brethren, and his commitment to the cause of judicial reform.[5] Yet Doolittle’s discussion of these matters is confined to three short paragraphs. Nowhere does he directly address some of the important broader issues of judicial corruption and integrity which have been raised by the Australian scholar David Lemmings over the past decade or so. Lemmings essentially argues that the much-vaunted independence of England’s judiciary following the Glorious Revolution and the Act of Settlement was in practice seriously compromised, as loyal parliamentary service by barrister MPs increasingly became the necessary qualification for promotion to judicial offiut ce, resulting in an excessively intimate relationship between Westminster Hall judges and Hanoverian governments.[6]

7. In this paper I shall draw upon some of the evidence which Doolittle has already cited (and some he has not) from Blackstone’s surviving correspondence - a biographical source hitherto insufficiently exploited - to explore Blackstone’s judicial attitudes and behaviour in more detail. My basic question is simply stated. How far did Blackstone as a judge remain true to his own sentiments on judicial independence as expressed in the following passage from Book I of the Commentaries: ‘In this distinct and separate existence of the judicial power, in a peculiar body of men, nominated indeed, but not removeable at pleasure, by the crown, consists one main preservative of the public liberty; which cannot subsist long in any state, unless the administration of common justice be in some degree separated both from the legislative and also the executive power.... Nothing therefore is more to be avoided, in a free constitution, than uniting the provinces of a judge and a minister of state’.[7]

   Becoming a judge

8. Lemmings has shown that after 1688 barristers promoted to the judiciary rarely pursued the common law’s traditional cursus honorum, from the bench of the inns of court to membership of the order of the coif as serjeant at law, and finally to the Westminster Hall judiciary. Instead loyal service as a member of the House of Commons and crown law officer, plus the assistance of a well-placed aristocratic patron, became the leading qualifications for judicial preferment. In some respects Blackstone’s career clearly fits this pattern. Thus having apparently ‘declined the Honour of the Coif’ as early as 1758, the year he became foundationVinerian Professor at Oxford, he subsequently served as a back-bencher in George III’s first parliament for ten years.[8] Yet despite assiduous and well-documented efforts to obtain a judgeship during this period, as we shall now see. Blackstone was turned down on numerous occasions and did not actually achieve his goal until 1770. His previous failures may be attributed in part at least to the alienation of influential political patrons.

9. Called to the bar of the Middle Temple in 1747, William Blackstone spent the next few years attempting to build a Westminster Hall practice, while also busying himself in college and university matters at Oxford, and taking over from his uncle as recorder of the nearby borough of Wallingford, where he eventually established a family home. Following the success of his pioneering lectures on English law and government, Blackstone resumed attendance at the Westminster courts and bought chambers at the Temple in 1759 the same year that copies of his lectures were supplied to Lord Bute, for the benefit of Bute’s royal pupil, the then prince of Wales, shortly to become King George III. The intermediary in this last transaction was one of Blackstone’s own Oxford pupils, young William Petty, Viscount Fitzmaurice (1737-1805), better known to history as the second earl of Shelburne, which title he assumed in 1761 at the age of 24. By then Shelburne’s influence with Bute had secured Blackstone’s return as MP for the Wiltshire pocket borough of Hindon. Shelburne had also offered what Blackstone delicately referred to as ‘Your Lordship’s Interposition’ in respect of a vacant chief-justiceship in Ireland, a favour which was as politely declined, on the stated grounds that ‘I have so much of a provincial Narrowness in my Constitution, that I could rather wish to exert the little Share of Abilities I am Master of , & which your Lordship greatly over-rates. in my own native Country’.[9]

10. Neither as member of parliament, nor in his lingering concerns with Oxford University politics, did Blackstone prove a wholly satisfactory client to either Shelburne or Bute. But by the same token, and perhaps partly for that very reason, Blackstone may well have felt some justified dissatisfaction with the patronage efforts of his powerful aristocratic friends. Thus in December 1761 he pointed out that the patent of precedence at the bar (equivalent to a KC’s silk gown) which he had received last spring was merely an

    ‘honorary Distinction... it has no Emolument annexed to it, but is rather attended with some Degree of additional Expence. In my Turn therefore, whenever that Turn shall come, I may be bold to hope that some futher Advancement may be intended me; the Time, the Manner, & the Circumstance of which must be submitted entirely to the King’s Pleasure, & the Discretion of those who have done, or may do, me the Honour to mention my Name to his Majesty. In the late Vacancy of a Baron of the Exchequer, & in the present Revolutions of the Law occasioned by the death of Lord Chief Justice Willes, I have not presumed to interfere; being conscious of my own Inferiority, & of the much better Title which other Gentlemen had to the Preferments that thus became vacant. But, by the promotion of Mr Norton to the Place of Solicitor General[10]

    I presume there is now Room to apply for the Reversion of an Office, to which He had for some time been looked upon as Heir apparent; I mean the Office of Chief Justice of Chester, now held by Mr Justice Noel[11]

    I should hope that those honourable Persons, who were so partial to my Abilities as to think me qualified to be Chief Justice in Ireland, will not think my Ambition pointed at too high an Object, in desiring this provincial Trust. And indeed it is an Object, the best suited of any in the Law, to my Situation and Wishes...’.[12]

11. Nothing came of this elaborately-phrased request, perhaps because the succession to the Chief Justiceship of Chester was already bespoken. But six months later, in July 1762, Blackstone was again importuning Shelburne ‘that you may prevail upon Lord Bute to recommend me to his Majesty’s notice’, this time following a report from ‘A Friend of mine upon the Western Circuit, that Judge Noel was then (the 25th instant) so extremely ill at Salisbury, that it was doubted whether he would ever be able to leave that Town, much less get through the Circuit’. Accepting that the Chief Justiceship of Chester was not for him,

    ‘My Ambition now rises to the Post of an English Judge; for which I hope that my Studies have in some degree qualified me (else I should be ashamed to think of it) though I fear that my natural Diffidence will never permit me to make any very great Progress at the Bar; for which Talents very different are required than those [which: written over] that will qualify for the Bench.’

    Of course, Blackstone went on, he would quite understand if

    ‘Lord Bute is at present engaged, or His Majesty’s Affairs require the Promotion of some other person’ - in which case ‘I should only hope for some Assurance that I should be remembered at a proper time; & I have the pleasure to acquaint You that I believe my Lord Chancellor,[13] who is necessarily consulted upon these Occasions, would not be averse to such a Measure. For when I once took the Liberty of mentioning [to Him: interlined] my Hopes of Advancement in my Profession, when others who had better Pretensions were provided for, he was pleased to tell me that my Rank at the Bar (& other Reasons which it would not become me to repeat) very fairly intitled me to ask it.’[14]

12. Alas, for such hopes - Judge Noel recovered, although he did not live out the year.[15] Blackstone’s next surviving letter to Shelburne, on 7 September, expresses some embarrassment at

    ‘troubling your Lordship upon the false alarm (for such it seems it was) that was given me out of Wilts[hire]. Nor would I have You by any means esteem me in the Light of an importunate Petitioner. It is one thing to present oneself to View in the Circle, and another to press insolently forward before those who have better Pretensions to their Prince’s Notice. I could not in Justice to myself & my Connexions, neglect taking the Opportunity which I thought was offered of reviving the Recollection of my Name; but, if such an Occasion should really happen, shall cheerfully submit to a Disappointment.’

13. Although we have only Blackstone’s side of the correspondence, it seems that the former pupil may have attempted to deflect or divert his older client with talk of the importance of the work Blackstone was doing at Oxford as Vinerian Professor and Principal of New Inn Hall. But if so, Blackstone was having none of it:

    ‘As to Oxford, undoubtedly (my Lord) my first Wishes concur with Yours, to stay there & do the little Service in my Power to that Place, & its Plan of Education. But I cannot answer it to my Friends & my growing Family (for such I may call it, being lately increased by the Birth of a Son)[16] to confine my Prospects to that narrow Spot; unless I could be assured of some Equivalent for those Advantages, which I may reasonably expect, in the common Track of my Profession. I have no such Attachments to Furs & Coifs, as to wish for the Parade of a Judgeship, otherwise than as an Advancement. Chester was a private Thing, & compatible with the Oxford Plan, I know nothing else in the Law that is so; - & out of the Law I have never extended my Views; - though I should not be so delicate as to object to any easy & comfortable Situation merely upon that Account.’

14. Fatefully, Blackstone now turned to what was plainly the outstanding public issue of the moment at Oxford, a forthcoming election for the office of Chancellor, a contest of sufficient importance to engage the partisan involvement of national politicians, up to and including Bute. This fact put Blackstone in a peculiarly awkward spot, because at the university’s previous chancellorship election three years before he had run a vigorous and successful campaign against John Fane, earl of Westmorland, the very man who was now Bute’s favoured candidate. So Blackstone’s public opposition to Litchfield, which he sought to justify in a lengthy exculpatory letter written to Shelburne a month after the contest, certainly cannot have done anything to endear the Vinerian Professor to his powerful aristocractic friends.

15. For this reason Blackstone may not have been particularly surprised at his failure to be appointed to fill a vacancy which occurred on the Exchequer bench in December 1762, although he was then still hopeful enough of Shelburne’s favour to raise yet another possibility

    ‘to put me in that Situation in which many of my noble & other Friends have wished to see me placed... Judge Forster wishes to retire upon a Pension (which his Character & Service well deserve) from an Office which his advanced Age & Infirmities have rendered [him: interlined] incapable to discharge.[17]

    His Life, poor Man, is hardly worth half a Year’s Purchase, & such a Quietus, to a Judge so well esteemed, would be both a kind & a popular Measure. If, through Your Lordship’s good Offices with Lord Bute & Mr Fox, such a thing could be immediately effected, the Arrangement we discoursed of ... might still take place; and as I am confident that my Lord Chancellor has no personal Exceptions to me (though previously engaged to Perrot)[18]

    I might still keep Pace with that Gentleman & we might take our Seats together next Term. This I know would be a great Satisfaction to some of mine & Your Lordship’s Friends, who are inclinable to surmise that (notwithstanding all Appearances to the contrary) my Attachment to a Friend, whom I honour & esteem most highly, in the late Election at Oxford, is taken amiss where (for my own Part) I am thoroughly convinced it is not, nor ever has been.’[19]

16. These hopes - or fantasies - were again dashed. And although Blackstone did receive promotion the following year, it was to the relatively insignificant, and unremunerative, office of Queen’s Solicitor-General, to which he was nominated by Lord Suffolk, another young aristocratic politician, whose unsuccessful candidacy for Chancellor he had supported at Oxford in 1762, and with whom Blackstone was professionally engaged throughout the 1760s as a trustee of the estates of the late earl of Abingdon.[20] The sequence of Blackstone’s correspondence with Shelburne now falters until October 1766, when he made one last attempt to fill a judge’s vacant place with Shelburne’s assistance.[21] His letter is a remarkable autobiographical document, besides casting much light on the torturous workings of judicial patronage in Hanoverian England:

    ‘My Lord

    The many unmerited Favours, which I have formerly received from Your Lordship, make me hope You will pardon this Trouble. It was to Your Lordship’s Partiality towards me, that I owed the great Honour of having my Name & Writings made known to a Person, then the second & now the first in the Kngdom. It was Your Friendship and pressing Instances that drew me out of my Retirement at Oxford, introduced me into a more public Scene, and recommended me above five years ago to the Honour of wearing his Majesty’s Gown.

    Your Lordship is no Stranger to the Wishes I had formed, of sometime or other obtaining a Seat on the Bench; a Situation for which my Friends flatter me that my Talents (if I have any) are better adapted than for the Bar; and to which my Rank in the Profession, and the Character in which I have the Honour to serve the Queen, make it no Presumption to aspire. My Lord President, when he held the great Seal[22] was acquainted with these my Wishes; but can witness for me that they never were troublesome or importunate; as I always esteemed it an indecent thing to be overforward in soliciting for a judicial Office; & therefore waited till those who are the proper Judges of legal Merit should of themselves advise his Majesty, that he might without much Impropriety extend his royal Favour to one, from whom he had (when a private Man) condescended to receive Instruction.

    Upon the Vacancy made by the promotion of Lord Chief Justice Wilmot,[23] I have still held the same Conduct not knowing how far the Engagements & Obligations of Government might be interested in the Chain of Removals which that Event might occasion. But since the Vacancy continues still open, I am now told I should be wanting to myself were I not to make a Tender of my Services on so fair an Occasion.

    But it is my great Misfortune to be less known to the present Lord Chancellor[24] than to any other of the Judges. It would therefore be impertinent in me to propose myself to his Lordship as a Candidate; and yet I am sensible of the Respect indispensably due to the great Seal upon these occasions. May I then hope that Your Lordship’s former good Opinion of me so far continues, as to mention me to Lord Chancellor as One that would receive such a Promotion with a becoming Humility & Thankfulness, & would endeavour to the best of his Abilities to perform the Duties of the Office? - I have not the Presumption to ask any farther Recommendation:

    But have the Honour to be,
    My Lord, Your much obliged and
    most faithful humble Servant

    W Blackstone[25]

17. This was clearly a desperate throw, and from a not very confident supplicant. Besides Blackstone’s evident doubts about his current standing with Shelburne, he could have had no high hopes of any special favours from the Wilkite pro-American Whig Camden, or his political ally and master, the increasingly erratic William Pitt, now earl of Chatham and prime minister. But since vacant judgeships were by no means everyday occurrences, every possibly opportunity had to be followed up, while Bute’s falling out with his former royal tutorial pupil in the summer of 1766 might have been thought to remove at least one barrier to Blackstone’s chances of promotion. No record has come to light of any intervention by Blackstone, or others on his behalf, in respect of the next judicial vacancy, which was filled by Edward Willes, himself the son of a former Chief Justice of Common Pleas, in January 1768. nor of the one after that, which followed Sir Edward Clive’s surrender of his place of justice of Common Pleas on 13 February 1770.[26]

18. But Clive’s resignation created a consequent vacancy on King’s Bench, when Sir Joseph Yates transferred from that court to Common Pleas (it was said, to get away from Chief Justice Mansfield), leaving an opening to which Blackstone was appointed on 16 February 1770, only to relinquish it six months later, following Yates’s death, when Blackstone took his place in Common Pleas.[27] While the formal details of this round of judicial musical chairs are fully recorded, the personalities and politics involved remain largely undocumented, with the exception of one particularly intriguing but hitherto undiscussed fragment of evidence. Its source is the voluminous but in other respects unrewarding diary of one John Baker (1712-1779), who after being called to the bar of the Middle Temple spent much of his life in the West Indies, before retiring to Horsham, Sussex, where in June 1775 he met James Clitherow, Blackstone’s brother-in-law and biographer. Baker’s subsequent diary entry records that ‘Judge Blackstone married Capt. Clitheroe’s sister... the King insisted on his being Judge, contre le gré [against the will] of Lord Bute and others, who opposed it’.[28]

19. Even if Clitherow’s account of the circumstances behind his eminent brother-in-law’s promotion to the bench was calculated to enhance his standing among his fellow dinner guests, there is nothing inherently implausible about this anecdote. While Bute’s enmity towards Blackstone as an unreliable parliamentary follower and academic politician may have ceased to carry much weight after the Favourite’s falling out with his former royal pupil in 1766, it was evidently not Bute alone who sought to keep Blackstone back. But by 1770 all four volumes of the Commentaries had appeared in print to general applause, while their author had reached his late forties (the average age of judges appointed in the previous reign was 44 years).[29]

20. It is also worth remarking that the vacancy which Blackstone filled was created by the somewhat unusual circumstance of a judicial resignation, as distinct from a death in office. Wheareas the lack of any regular superannuation arrangements still kept most judges hanging on until they themselves dropped, Sir Edward Clive was among the few favoured with a royal pension, the prospect of which may well have been offered as an inducement for him to step aside in Blackstone’s favour.[30]

21. Finally, it is worth noting that Blackstone’s promotion coincided with the political transformation which brought in Lord North as prime minister on 28 January 1770, having terminated Camden’s tenure as lord chancellor ten days earlier, changes which might well have made it easier for George III to translate his ‘insistence’ into action.[31]

    Blackstone as Judge

22. According to the posthumous ‘Memoirs’ compiled by his brother in law, James Clitherow, and prefixed to the first volume of his law reports published in 1781, Blackstone ‘now seemed arrived at the Point he always wished for, and might justly be said to enjoy Otium cum Dignitate’.[32] Despite asserting that ‘nothing shall be said here of his Conduct as a Judge’, the ‘Character’ which concludes this biographical sketch portrays Blackstone ‘In his publick Line of Life... [as] an able, upright, impartial Judge; perfectly acquainted with the Laws of his Country, and making them the invariable Rule of his Conduct’.[33]

23. Yet anxious ‘not to incur ‘the Imputation of Flattery’, and to ‘touch on its Imperfections (and such the most Perfect human Characters have) with Truth and Delicacy’, Clitherow also noted that ‘A natural Reserve and Diffidence which accompanied him from his earliest Youth, and which he could never shake off, appeared to a casual Observer, though it was only Appearance, like Pride; especially after he became a Judge, when he thought it his Duty to keep strictly up to Forms (which as he was wont to observe, are now too much laid aside) and not to lessen the Respect due to the Dignity and Gravity of his Office, by any outward Levity of Behaviour’.[34]

24. Doolittle glosses this passage as indicating that Blackstone ‘was too comfortable in his judicial role... over-conscious of the dignity and gravity of his office... haughty, even offensive to those before him’.[35] That Blackstone had a considerable preoccupation with correct judicial behaviour is certainly apparent from sources other than Clitherow’s Memoirs. His first surviving letter after resigning from the House of Commons on 9 February 1770, preparatory to his appointment as justice of King’s Bench a week later, concerned arrangements for his successor as ‘manager or adviser’ to an aristocratic client, Lord Abingdon, since ‘it will be improper for me to appear any more’ in that capacity.[36]

25. In August 1774 he expressed himself ‘much obliged’ to Lord Suffolk, by now secretary of state, ‘for his Delicacy in not sending me an Official Letter’ in relation to an application for clemency in the case of a convicted sheep stealer.[37] And in January 1778 he commissioned the printer, publisher and bookseller William Strahan to help him sell a duplicate set of Viner’s Abridgement, ‘23 volumes folio, well bound & nearly as good as new’ which Strahan had previously told him ‘would fetch a considerable Sum, I think You mentioned thirty or forty Pounds. Now, Sir, as this is a Matter that I cannot appear in or be named in with any Propriety, I have taken the Liberty to desire the Favour of you to avail Yourself of some Opportunity (which may frequently offer in Your Way) of disposing of these Duplicates for me...’.[38]

26. For all his self-avowed ‘natural Diffidence’,[39] Blackstone’s drive, foresight and ‘ambition for Improvement’[40] may have given him some of the characteristics of what today would be called an authoritarian personality. Yet these instances just cited hardly reveal him as someone who relished exercising judicial prerogatives; we may here recall his earlier claim, to ‘ have no such Attachments to Furs & Coifs, as to wish for the Parade of a Judgeship, otherwise than as an Advancement’ . In support of a more damning verdict Doolittle cites one of Blackstone’s Oxford enemies, Thomas Fry, President of St John’s College, on Blackstone’s ‘rude behaviour’ and ‘uncivil manner’ towards counsel pleading before him.While the details may be disputable, there seems no good reason to doubt the basic truth of Fry’s anecdote.[41]

27. Yet it surely admits of more than one intepretation. Besides his increasingly monumental build and myopic frown, Blackstone had a notoriously short fuse. Even Clitherow admitted that his ‘rigid Sense of Obligation, added to a certain Irritability of Temper, derived from Nature, and encreased in his latter Years by a strong nervous Affection, together with his Countenance and Figure, conveyed an Idea of Sternness....’.[42] For his part Scott recalled Blackstone as ‘extremely irritable’, adding however, that ‘He was the only man... he had ever known who acknowledged and lamented his bad temper’.[43] Whatever the discomfort of barristers targeted by angry outbursts from the bench, it is striking that Blackstone himself admitted and regretted this tendency to lose control of his emotions. Such lapses could hardly help maintain the good order, decorum and dignity to which he was otherwise so attached in his judicial persona, and which would increasingly come to be seen as a distinctive characteristic of England’s courts of law.[44]

28. Rather than a means of flaunting judicial majesty and power, Judge Blackstone’s concern for propriety seems to reflect a more principled determination, ‘to maintain’ as he put it in Book I of the Commentaries, ‘both the dignity and independence of the judges in the superior courts’.[45] As he had explained in that context, ‘the distinct and separate existence of the judicial power’ depended on judges being commissioned to hold office not only during good behaviour, but also with ‘their salaries ascertained and established’ . The particular significance of such financial arrangements is further emphasised in his immediately following account of ‘the noble improvements of that law in the statute of 1 Geo. III. c. 23, enacted at the earnest recommendation of the king himself from the throne’ whereby judges’ commissions were continued ‘notwithstanding any demise of the crown... and their full salaries are absolutely secured to them during the continuance of their commissions’.[46]

29. This passage gains added significance in light of the hard-fought but eventually successful campaign for a judicial pay rise to which Blackstone devoted much of his energies in the last two years of his life. The details of that struggle are not easy to reconstruct, but its origins can be traced in a series of letter to his younger protégé, the politician and penal reformer William Eden, in March 1778, the first of which merely asks ‘whether any Steps are taken in either of the Businesses that have lately employed out joint Attention’.[47]

30. As soon becomes clear, the two matters engaging the cooperation of Blackstone and his former Oxford pupil were parliamentary bills, dealing respectively with judges’ salaries and penal sanctions, or what eventually became the pathbreaking Penitentiary Act of 1779. The first explicit mention of the former legislation appears just over a week later, in a formal note telling Eden of Blackstone’s intention to ‘wait on Him in Downing Street tomorrow at 3 o’clock’, and asking meanwhile ‘in what State the Judges Bill now is, & when it is meant to be brought forward; as he has received Inquiries [after it: interlined] from his Bretheren on the distant Circuits’.

31. After another week Blackstone again wrote to Eden on the same subject, in considerable alarm, following a report that the secretary to the Treasury, Sir Grey Cooper, had taken serious exception to a scheme advanced by Blackstone for ‘a small Extension’ to the plan for a judicial payrise which had evidently been announced in February by the prime minister, Lord North, ‘& by him communicated in the most solemn Manner, in a message to the Chief Justices & All the Judges’. Blackstone protested that if his own proposal were to endanger the entire project, it would involve a serious betrayal of the judges, who had already been ‘sufficiently mortified by the Treatment they received in 1772 & 1774’ (presumably referrring to previous unsuccessful attempts at securing an increase in judicial salaries). It would also ‘draw down on me the Resentment of all my Brethren’. Blackstone was clearly very upset:

    I am ashamed to have troubled You so long, at such a time, on such a Subject. But You will judge of my Feelings by Your own, as I am sure that neither You nor any Man of Honour would tamely sit down under an unmerited Imputation.[48]

    A Return, which I should not have expected for the Pains I have lately taken, & am at all times ready to take, where I think it can be of public Service. But though I can submit without a Murmur to be a Slave to the Public I will never be so to any Individual whatever.[49]

    Eden’s response does not survive, but he was apparently disposed to be helpful, providing Blackstone with a copy of a letter from Grey Cooper, which was returned next day with thanks ‘for Your sincere Assistance & manly Conduct on this Occasion’.[50]

32. The matter dragged on for another year and more, provoking some of Blackstone’s more memorable outbursts of disgust and disillusionment at politicians and their ways: ‘being persuaded that all the pompous Professions of Lord North are intended to end in nothing... I have seen so much Tergiversation in the professed Patrons of this Measure, that I am quite sick of it (‘, as he wrote to the MP Alexander Popham, another former All Souls colleague.[51] He confided to Eden the following year, on the news that a new bill was to be introduced by the independent Yorkshire back-bencher Sir George Savile, ‘I cannot conceive that Lord N. is very anxious about losing the popularity due to such an Arrangement. If so, he has had marvellous Self denial for these seven Years past, in declining to bring it forward himself’.[52]

33. On this matter at least, Blackstone was certainly no mere tool of the administration, but rather intent on organizing as much parliamentary support as he could muster to ensure the measure’s safe passage. His significant role in achieving that end is symbolised by a brief note to his old Oxfordshire political ally, Sir Roger Newdigate, on 1 May 1779, expressing thanks ‘for Your early & authentick Intelligence of what passed last night in the Committee’ and ‘the grateful Sense of my Brethren (I am sure) as well as myself to Yourself & all other of our Friends who supported our Interests last Night.’[53] Next sitting day the Commons agreed to add £400 to the salaries of all puisne justices.

    Conclusion

34. In a characteristically waspish letter of September 1789, bemoaning ‘what delays and difficulties do attend the man who meddles with legal and landed business’, the historian Edward Gibbon told his correspondent that ‘The elderly Lady in a male habit who informed me that Yorkshire was a register County [i.e. a county where all purchases and sales of real estate were centrally registered] is a certain Judge, one Sir William Blackstone whose name you may possibly have heard of.’[54]

35. Cautious, fussy, moralistic, pedantic, and self-satisfied, Blackstone may indeed have appeared as something of an old woman to contemporaries, in real life no less than his books. The awkward self-consciousness which prevented him from shining as a court room orator carried through to social interaction; unlike the perennial bachelor Gibbon, he was not a clubbable man, and according to his brother-in-law, ‘passed near nineteen years in the Enjoyment of the purest domestic and conjugal Felicity (for which no man was better calculated) and which, he used often to declare, was the happiest part of his Life’.[55]

36. He was also doubtless self-deceived, or self-deceiving, about the unselfishness of his motives and concern for the public good. But understandable anxiety to augment the inheritance which he would leave his widow and their seven surviving children was hardly incompatible with a concern to maintain what his royal pupil had once referred to as ‘the independency and uprightness of the Judges of the land...’.[56] Nor did Blackstone’s shyness, status consciousness and at times exaggerated deference to institutional and social superiors make him a malleable instrument of what may have been fast becoming an imperial state. If Hanoverian judges were lions under the parliamentary mace, not the throne, their independence was something more than empty constitutionalist rhetoric, in so far as we may safely generalize from the case of Mr Justice Blackstone.