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26 5. William Blackstone, Patrick Henry, and Edmund Burke on Liberty (1765–1790) I William Blackstone brought his four-volume Commentaries on the Laws of England to a close with the chapter “Of the Rise, Progress, and Gradual Improvements, of the Laws of England.” He proposed “to mark out [there] some outline of an English juridical history, by taking a chronological view of the state of our laws, and their successive mutations at different periods of time.” This 1769 Blackstonian account, of “an English juridical history,” provided many American lawyers (for a century thereafter) an instructive, if not even an authoritative, account of English (and hence American) constitutional history prior to 1776. “The several periods, under which I shall consider the state of our legal polity,” Blackstone wrote, “are the following six”: 1. From the earliest times to the Norman conquest [in 1066]: 2. From the Norman conquest to the reign of king Edward the first [1272–1307]: 3. From thence to the reformation [1509–1603]: 4. From the reformation to the restoration of king Charles the second [in 1660]: 5. From thence to the revolution in 1688: 6. From the revolution to the present time [1769]. This concluding chapter of the Commentaries ends with the observation: “The protection of THE LIBERTY OF BRITAIN is a duty which they owe to themselves, who enjoy it; to their ancestors, who transmitted it down; and to their posterity, who will claim at their hands this, the best birthright, and noblest inheritance of mankind.” An American scholar, Thomas A. Green, calling this concluding chapter “a Whig panegyric,” described it in language echoing Blackstone’s enthusiasm: 5. William Blackstone, Patrick Henry, and Edmund Burke 27 Sweeping in scope, majestic in style, this final paean to the elegance , wisdom, and humanity of English laws displays both Blackstone the optimistic and complacent eighteenth-century gentleman and Blackstone the proponent of measured reform. It was the duty of the nobility and gentlemen in Parliament “to sustain , to repair, to beautify this noble pile.” The American lawyers who relied on Blackstone had reservations, of course, about his respect for, if not even his dependence upon, both the Monarchy and the Church of England. The six-stage history that Blackstone laid out has come to be supplemented, on our side of the Atlantic, by a seventh stage: the emergence of the American Republic grounded in Anglo-American constitutionalism. That emergence was heralded by adventurous Englishmen such as Patrick Henry. II Blackstone’s historical account traces the development in Great Britain of an effective recognition of liberty under law. This development has consisted in large part, he argues, of a restoration of the liberty that had prevailed “from the earliest times” among the Saxons—that is, before “the Norman Conquest.” One can wonder whether this is one of those salutary “pious fictions” that Blackstone endorses for a healthy system of law. Perhaps this use of the Saxons serves for him as a respectable means for drawing upon a vision of “the best regime.” Certainly, the specialness of English liberty is insisted upon. The suspicion of Continental influences , of which the vigorous Normans had been carriers, is something that continues down to our day, as may be seen in the tentativeness of the English, with respect both to the European Union and to European currency. A generation after Blackstone, the suspicion of Continental influences found expression in the Napoleonic Wars. Another way of putting the differences here is to distinguish the Civil Code from the Common Law. Once Americans had separated themselves politically from the English, with the help of the French, they too could exhibit toward Continental influences many of the reservations that they had acquired with their language and their political heritage from the English. Part One 28 III A major stage in the restoration of the liberty “natural” for Englishmen was the recourse to Magna Carta. That Charter, originally exacted from King John in 1215, had to be affirmed several times by Monarchs before it was permanently established. It is seen by Blackstone as, at least in part, a repudiation of Continental impositions upon the English Constitution . Various provisions of Magna Carta are reviewed, some of which (such as “grievances incident to feudal tenures”), although “of no small moment at [that] time,” can now seem to the inattentive “but of trifling concern.” Other provisions, of course, are generally still recognized as vital to the English regime. Thus, Blackstone can conclude his review of the provisions of Magna Carta...


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