September 12, 2011

Blackstone and Oxford: a polemical claim

The continuity of English law is important for Blackstone as it was for most common lawyers in the seventeenth and eighteenth centuries. Its importance is both political and theological. We have covered some of the political angles in some of the articles I wrote back in June about the Commentaries. Early on though Blackstone also introduces religious reasons for seeing that continuity as important. In particular he comments that at William's introduction as a King in England, he was followed by numerous foreign clergy who were 'utter strangers' to the British constitution. These clergy men so Blackstone argues had their heads filled with the papal adoption of Justinian's Analects, attractive as continental law unlike English law had been interrupted by alien conquest, and became the basis of papal canon law. This law, Blackstone argues was rejected by the English Barons at the Parliament of Merton and a century later when he quotes them declaring that 'the realm of England hath never been unto this hour, neither by consent of our Lord the King and the lords of Parliament shall it ever be, ruled or governed by the civil law'. Blackstone argues that as a direct consequence the clergy developed the law of equity and the universities studied civil rather than English law- as they were controlled and in some cases (Trinity Hall, Cambridge) founded by the Church. This accounted for the exile of the common law to the inns of court in the fifteenth and sixteenth century.

Blackstone's account is meant to place common law in the inns of court and canon law in the universities. He is trying to explain the reason why the latter ought to embrace the subject of the former. Oxford should in his view admit common lawyers and he argues that there are civic reasons for the university to behave in this way. However he also argues that the reasons for the university to do this are tied up with its Anglican nature. Canon law he seems to be suggesting is the law of Rome, a law rejected equally by all English communities in the past as by good theological scholars. The point of his argument is to assert both the independence of common law- and the imposition of canon law by the Church. It is interesting to read this because of what the argument ellides- there were Englishmen in the courts of Chancery who were content in the seventeenth century at least with canon law- Blackstone's rhetorical ellision places Charles I or even more impressively Francis Bacon and Lord Ellesmere on the side of Roman Catholicism. This should suggest to us the polemical nature of the union that Blackstone is promoting: by linking hte common law to anglicanism, Blackstone like St Germain before him is making a case.