AUS U-Adelaide’s Wilfrid Prest on Sir William Blackstone & Anglo-American Common Law

The Learning Curve Wilfrid Prest

[00:00:00] Albert Cheng: Well, hello everybody. I hope you’re doing well. Welcome to another episode of The Learning Curve podcast. I’m one of your co-hosts this week, Dr. Albert Cheng, coming at you from Arkansas and co-hosting with me. This week from Minnesota is retired. Justice Barry Anderson, Justice Anderson, welcome back.

[00:00:41] Barry Anderson: Delighted to fill in here. As you mentioned, I retired from the court last May. This is now my hobby being the co-host on occasion with the Learning Curve Podcast. And I’m delighted to be here. But a lot of my time is now spent working on civic education and related matters, and so our topic today and our guest today fits in very well with that.

[00:01:00] Albert Cheng: That’s alright. Well, yeah, let’s get into our, our guest. I mean, we’re gonna have Wiled press professor to come chat with us about someone, you know, I bet you might’ve cited him in some of your opinions, or William Blackstone, um, where we get a lot of our legal thought today. But before we do that, let’s talk about some news and perhaps keeping in theme with legal tradition and.

[00:01:22] Judicial matters. We do have a important piece of breaking news that came out last week. The Supreme Court has issued their ruling on the St. Isidore case, and so I think if you’ve been listening to the show or following education policy, you know this is the significant case about a religious charter school.

[00:01:40] That initially was denied by the Oklahoma Supreme Court and they got appealed to the Nation Supreme Court. And at least from what I understand, there wasn’t much, um, in terms of an opinion or at least an explanation from our nation’s high court. All it says in a short one page decision is, and look, I’ll even read it to you per em, the judgment is affirmed.

[00:02:05] By an equally divided court. Justice Barrett took no part in the consideration or discussion of these cases, and that’s it. So it looks like the Oklahoma Supreme Court decision is upheld. Well, I don’t know, justice, am I missing anything here? This is, it’s pretty straightforward, I think, right? I mean, not, not the issue about the case, but just the decision and the procedure here.

[00:02:25] Barry Anderson: Yeah. Lemme just make a couple of quick comments about that. Sure. Because there’s been some, you know, criticism old, you know, why didn’t Barrett tell us why she recused? Mm-hmm. Typically, typically a judge recusing from a case does not offer an explanation. It would be unusual for her to say, I’m recusing because of this or that, or the other thing.

[00:02:42] So, you know, I wanna defend Justice Baird on that point. And then when you have an equally divided court. This happened to me during my time on the Minnesota Supreme Court. The judgment of the lower court is affirmed because the court’s not in a position to have a majority that is able to reverse or affirm the court.

[00:02:58] It doesn’t have any significance beyond that, and the issues that are teed up in the case that was considered by the court will be perhaps considered in some future case, but it won’t be this one. That’s right. That’s right.

[00:03:11] Albert Cheng: Well, this raises all sorts of things to think about in the future. I know we’ve had a string of cases ruled kind of in favor of religious liberty, and then this one seems to rule kind of something else, but lots of different kinds of arguments, and I’m sure there’ll be lots of other cases to think through in the future.

[00:03:29] Well, justice Anderson, I wanna give you a a shot as well. Did you see anything else in the news?

[00:03:34] Barry Anderson: I ran across this piece that appeared at the ED surge website. Career education is having a moment. Here’s how it’s adapting for future jobs. Now, the piece is quite lengthy, and I’m not gonna go into it here.

[00:03:44] I’m just gonna mention three highlights from it. It talks a little bit about the importance of a framework for what. I called in my relative youth long ago technical education or vocational education, and then it talks a little bit about the progress that’s been made in expanding technical or career education.

[00:04:04] And one of the really interesting things here is we have increasing emphasis here. The article notes that 15% of all public high school credits are now in career and technical education, and almost a hundred percent just short of a hundred percent of high school graduates have taken at least one.

[00:04:21] Career Technical Education course. This is all very good. It’s a very important piece of our education process. And then the piece goes on to note some of the challenges. We need better curriculum and more attention to this paid by legislatures. So lot to be said about this, probably for some Future Learning Curve podcast, but as the article observed, career education is in fact having a moment, and that’s a good thing.

[00:04:45] Albert Cheng: Yeah, that’s right. And we’ve talked about CTE and vocational education quite a bit, so this will definitely be a recurring theme, as you say, justice Sanderson. But hey, that’s it for the news. Really chomping at the bit to get to our guest to talk about Sir Willian Blackstone. So stick around. He’s coming up after the break.

[00:05:15] Press is Emeritus Professor and visiting research fellow in history and in law at the University of Adelaide and a fellow of Queens College, university of Melbourne. His books include William Blackstone Law and Letters in the 18th Century, Blackstone as a Barista, Albion Ascendant, English History, 60 to 1815.

[00:05:37] The Rise of the Baristas, A Social History of the English Bar. He edited Blackstone and his commentaries, biography, law, history, and the letters of Sir William Blackstone. 1743 to 1780. Professor Press is affiliated with the Australian Academy of the Humanities, the Academy of the Social Sciences in Australia, the Royal Historical Society, uk, and a member of the Council of the Selden Society, London.

[00:06:03] He was educated at the University of Melbourne and the University of Oxford. Dr. Press welcome to the

[00:06:10] Wilfrid Prest: show. Well, thank you very much for having me.

[00:06:13] Albert Cheng: Well, I’m excited to talk about Sir William Blackstone. I gather, you know, many folks, at least here in the States might not necessarily be familiar with him, so could you just start by telling about this important judge and the history of Ying English’s Common Law?

[00:06:26] Provide a brief overview of who Blackstone was and why he remains such a widely influential figure, at least Anglo American jurisprudence.

[00:06:34] Wilfrid Prest: Okie doke. Well, I guess that in some ways it’s not so much the man that is a familiar figure. It’s really his book he published in the 70 and sixties at the beginning of George II’s Reign, he published a four volume treatise on the laws of England.

[00:06:56] He called commentaries on the laws of England, and this was a terrific best seller. It earned him a lot of money, but it has had a remarkable global influence in the way that it. Expressed the basic structure. It set out the basic structure of English common law as it was at this time towards the end of the colonial period of American history on the Eve, you might say, really, of the War of Independence.

[00:07:33] And it has remained in print continuously ever since it was first published. I think that. There’s a bibliography, which shows some nearly 200 editions. Separate editions of blackston have been produced over the several hundred years since that work was first put into print and it. Has still a great deal of influence on the workings of judges and courts in the common law, or Anglo-American and Australian and New Zealand and Canadian and a few other places, system of law.

[00:08:16] So that’s basically his fame rests upon his book.

[00:08:21] Albert Cheng: Well, yeah, let’s get into that. I mean, let’s talk about some of the key touchstones of English law before Blackstone. So Sure. The Magna Carter comes to mind. There are a couple other English figures, Henry Deb Breton, so John Fortescu and Sir Edward Cook.

[00:08:36] Draw the contrast for us to give us a better idea of how things changed because of Blackstone.

[00:08:40] Wilfrid Prest: Oh, well, things did change things. Things changed quite a bit and it’s important, I guess, when we are talking about English law to recognize that it, it was a very ancient system. Even by the time that Blackston wrote, it really goes back.

[00:08:56] You could say, it goes back to even pre. Norman Conquest times. It goes back to the time of King Alfred and its first sort of major milestone in many ways was Magna Carter in 1215 when King John, bad, king John of his. You know, was basically confronted by his leading Nobles Barons who said, we are not happy with the way things are being run.

[00:09:27] We want to have a charter of rights. And Mag Carter, the great charter, was set out a whole series of all kinds of rights from what you could do on the River Thames to how. Free men could be treated by the courts, by the king’s courts, including a, a very specific provision that no free man could be proceeded against unless by indictment and trial by his peers his equals.

[00:10:02] So that’s one sort of major milestone. Then a little later in that 13th century, there is a book. That is brought together by probably a group of people. We used to think it was by a judge, a man called Henry de Bratton or Bratton, but we now think that it’s actually the work of a group of people who managed to compile.

[00:10:26] A systematic statement of English law as it was at that stage. Particularly, it was a law that was based upon what are known as rights of action, the ways in which you went about claiming what you considered to be your due, and Brockton makes some sort of sense of what. Otherwise would’ve been a rather complex and not easily comprehended, mishmash of various legal processes, and then moving on into the late middle ages in the 15th century.

[00:11:01] So, John, for. Who was a Chancellor of England, a high ranking state official, put together a volume or a series of volumes about the laws of England and setting out what he considered to be the special attributes and virtues of English law. And then in the 17th century, when we move on. So Edward Cook, well, late 16th into the 17th century, the time of Queen Elizabeth and the early Stuart Kings.

[00:11:32] So Edward Cook is really just a remarkably skilled legal scholar and legal advocate who becomes a judge. And then becomes chief justice and then falls out with King James, the first, who had been King James the sixth of Scotland, but came to England at the beginning of the 17th century, inherited the throne from Queen Elizabeth, and then he fell out with his chief justice and basically sacked Edward Cook, who then went on and wrote.

[00:12:07] A series of statements of the law, again, trying to provide a text of law. So Cook writes down, takes notes at every setting of every court that he attends, and then he publishes these and they become a basic source of information for law students. Mm-hmm. For practicing lawyers, and he also publishes a four volume set that he calls the Institutes of the Laws of England.

[00:12:38] Mm. Which again, a bit like Ton, it’s an attempt to provide an overview, a systematic statement of what the law is. So William Blackstone is in a sense. He’s inheriting a long tradition of English law. It’s becomes even more complex into the 18th century, and his great achievement is to make that law accessible, not only to practicing lawyers, but to lay persons.

[00:13:09] The people who didn’t have any legal qualifications. But just wanted to try and understand this system that had such a significant role in people’s lives.

[00:13:21] Albert Cheng: I think our listeners will keep that in mind, just the arc that you’ve described, and let’s talk about Blackstone’s life and get into a slot a bit more.

[00:13:29] Let so you wrote, William Blackstone was a true cockney born at home within the sound of the bells of St. Mary Lebo. So for folks who don’t know what that is, what is St. Mary Lebo, but tell us more. Also in addition about Blackstone’s family, his religion, his education, you know, what were his intellectual influences at at Pembroke, for instance,

[00:13:51] Wilfrid Prest: Blackton was a Londoner, and the Church of St. Mary Lebo is in the east end of London, and that’s where the true cockneys come from, as they’re called. And there’s a saying that. You are a true cockney if you were born within the sound of bee bells. And bee bells are the church bells and the steeple of Saint Mary Lebo.

[00:14:17] So ton’s family. Well, his father was a shopkeeper. He ran a. Upmarket, uh, high grade textile store in the area of London, known as cheap side It. Cheap side sounds like it might be the down market bit, but it was actually at this stage, very much the upmarket shopping area of 18th century London, which was a booming city and a very.

[00:14:46] Significant commercial center in Europe and indeed globally. And Blackstone never knew his father because his father died just before William himself was born. He was the third of his father’s children. He had elder brothers. His mother Mary, decided that she would try and keep trading and she went on running in store.

[00:15:10] Unfortunately, black’s father hadn’t been a terrifically good shop. Keeper. He may have spent a bit too much time on other things and he left a lot of debt and his widow had great difficulty in paying this off, and I think that that was pretty significant in Blackstone’s childhood. His mother actually died before, she also died before he was 12 years old.

[00:15:37] He was brought up pretty well by her brothers, one of whom was a surgeon in London. And he basically took over responsibility for William’s upbringing, and William got a scholarship to a very good school, the Charter House school in the east end of London. And there he was a brilliant student. He was, I think, probably more popular with his teachers than with his fellow students.

[00:16:06] He was perhaps a bit of a swat. A very hard worker and I think he got that, may have got that from his mother. And then he got a scholarship to, firstly to Pembroke College, one of the smallest of Oxford’s University colleges. And then he got a fellowship much prized at his second attempt by examination at All Souls College.

[00:16:30] Also quite a small college, but a very rich one. And Fellowship at all Soldiers is a pretty good thing to get. And what you ask about his, the influences on him? Well, he was brought up an Episcopalian, as you would call it. He was brought up in the Church of England and he took his religion pretty seriously.

[00:16:49] He had a very wide range of interests. He was keen on maths. He was keen on science. This is a time of great interest in the development of science. Isaac Newton, the great physicist, his works were around. There was a sense that at this time, which is the 1730s, 1740s. The whole intellectual world is, is a buzz with something called the enlightenment.

[00:17:16] People feel that they’re shrugging off superstition and that science is the way that human knowledge will, will proceed. Blackstone was also interested, actually, However, in poetry, he wrote poetry. He was interested in architecture. He did some terrific sketches and measured drawings, including of St.

[00:17:37] Paul’s Cathedral near where he’d been brought up. So he actually had a very wide range of intellectual and cultural interests.

[00:17:46] Albert Cheng: Well, I think folks who, who listen regularly to this show will know I’m a big fan of just liberal education.

[00:17:51] Wilfrid Prest: And so it sounds like Blackstone got one. I think that’s entirely correct.

[00:17:56] He had a classical education Yes. In Greek and Latin, of course, but he wasn’t confined by any means. Mm-hmm. To ancient knowledge that were, he was fascinated by electricity, he was fascinated by mechanics and machines, and so he really had a. You could almost call him a polymath. Yeah, yeah. With a very wide range of interests.

[00:18:20] Albert Cheng: Right. That that is exactly the word that came to my mind. So on you. Yeah. Let’s continue with his, his life. I mean, you left off at his fellowship at All Souls College, Oxford. And then later he gets admitted to the middle temple and then called to the bar. That’s right. And I’ll give you a chance to explain what those are.

[00:18:38] He was deeply involved with university administration and then in 1756 published an analysis of the laws of England. So you call this period between the university and the temple. So again, describe what those things are and discuss how do they shape Blackstone’s legal thinking and career moving forward.

[00:18:57] Wilfrid Prest: Right. Well, that’s it’s, it’s quite a big G, but I’ll try and do this as quickly as I can. Okay. He’s admitted to the middle temple Now. The middle temple is one of the four ends of court INNS ins of court, which were voluntary associations, collegiate associations on the border between the old city of London and the new.

[00:19:23] Part of Westminster outside the Temple bar, near the Temple Church, the old Knights Temples residence in London. And if you wanted to become a barrister, that is to say, a lawyer with the right to plead in the king’s courts, the common law courts of Westminster Hall in London, which were the dominant courts.

[00:19:47] Then you had to pursue a membership of one of the four ends of court, and once upon a time you had to actually go through quite a complex series of learning exercises. But the ends of court had pretty well ceased doing that. There was some little remnant of their former educational function, but on the whole, you.

[00:20:11] Got to the bar by a process of self-education. You read law books and you talked with your fellow students about law cases, and that was how you acquired the legal knowledge that was necessary to practice. But Braxton did this. He was called to the bar pretty. Quickly after he actually moved down to London from Oxford and he spent a bit of time trying to get legal work as a barrister, but he, his heart seems not really to have been very much in it.

[00:20:48] He was, I think, a never a, a terrific success. He wasn’t a natural. He had a bit of a problem speaking spontaneously, speaking on his feet. I think he found that the academic life had been something that he’d really enjoyed, and he, he wasn’t so keen on the Hurley Burley. Of being a practicing lawyer. And so he kept sort of slipping back to Oxford and doing things in Oxford when he probably should have been in London waiting for clients to come and knock on his door and ask him to represent them.

[00:21:22] And he decided after about six years of a kind of on and off. Attempt at legal practice that he’d, he’d give it up and he’d go back to Oxford. He might take some casual legal work in Oxford, but that basically he would try something else and something else turn out to be a real educational innovation, a pioneering step, because English law was not.

[00:21:50] Up until this point, caught at the University of Oxford and Blackstone decided that he would offer a lecture course a year long lecture course for both would be law students and general students with a general interest in law that who mightn’t wish to practice or need to practice law. This lecture course on English law.

[00:22:13] And he started to do that in 1753, and that was the basis, if you like, of academic legal education of legal education in the common law in a university. And he organized it very well. He. His lecture course ran through the year, but it was carefully timed so that it didn’t conflict with the law terms when the courts were sitting in London and it was very successful and it was really the, the basis of that law lecture series that provided the analysis of the laws of England, which you mentioned that published in 1756.

[00:22:57] And he was doing this while he was at the same time heavily involved in the university administration, he was a bit of a rebel. He was anxious to reform the administration of the university press, which he thought had fallen into the hands of too many old. College heads and fellows and academics who weren’t sufficiently interested in bringing out new material.

[00:23:22] And he also wanted the university to give more scope to the younger college fellows in the administration of university affairs. So he was a bit of a radical and he earned a certain amount of disapproval from his seniors, but. This didn’t matter so much because he’s about to become the first Ian professor of English law.

[00:23:48] Albert Cheng: Yeah. And, and so let’s pick up, I mean, look, it sounds like he was pretty entrepreneurial in some sense. I think he was within the academy. Yeah. No, he was, absolutely. Yeah. Yeah. And so let’s pick up the story. The Arian professor of English law, you know, he continues his work, I, I assume, at the academy. And it’s, at this point, the treaties, a discourse.

[00:24:07] The study of law comes out and this culminates into an election victory. He becomes a Tory member of Parliament. So talk about that period and how this all came together and how did you put this all together to have such a flourishing, legal and political career?

[00:24:23] Wilfrid Prest: I guess the critical thing was that he was ambitious for promotion and he was able to take this chair in English law because of a benefaction, which had come to the university from a man called Charles Vier.

[00:24:40] Who had made a lot of money from producing a series of guides to English law, alphabetical abridgments of law on a topical basis, and Blackstone felt that he was getting a bit older. Now, he wanted to marry and he needed some sort of. Form of income for that, and the Arian chair provided a good source of a, a salary, much which supplemented his earnings as a fellow of All Souls College

[00:25:15] And his election as a Tory. Well, that came after his marriage and it came his election to Parliament. It came partly, I think, through the influence of the former Prince of Wales just turned. King George ii, who had been reading Blackstone’s lectures on English law even before he became King, and they sufficiently impressed the young George.

[00:25:48] When he became King, he insisted that a seat in parliament should be found for this doctor. Now, professor William Blackstone his career as a member of Parliament again, he had the problem that he didn’t care much for the Hurley Burley of political life, but. He attended parliament, he spoke in parliament, and he found that his status as Arian professor and all the general fame that his lectures had brought him was sufficient to ensure that his second time as a practicing barrister was much more successful than his first attempt.

[00:26:34] Barry Anderson: Professor, let’s talk a little bit about Blackstone and his influence on the law generally. In 1765, he publishes the first of four volumes, which we know today as his commentaries on the laws of England, and that earned him much fame and wealth. I wonder if you could give us a brief overview of how the commentaries were seen.

[00:26:54] In his native country and what effect they had on the jurisprudence of English law. We know sort of generally that it’s wide ranging. Maybe you could give us a little detail about that.

[00:27:06] Wilfrid Prest: I think the main, uh, importance of ton’s commentaries is that they provide a compact, comprehensive, and coherent statement of.

[00:27:22] English law, which before that had best been presented for people trying to learn the law in alphabetical form, because there didn’t seem to be any guiding principles or structure, which made sense of the law. But what Blackstone did was to adopt a partly. Partly a Roman law influenced organization of his treatise.

[00:27:52] He brought it into four books, starting off with the rights of persons, then with looking at property law, the law of land law in the second volume, in the third volume, looking at legal procedure, how you brought a lawsuit into court, and how that. Court would deal with the lawsuit and then in the final volume, looking at the law of wrongs, as he said, or in fact what we would call criminal law.

[00:28:24] And it was a combination of things. It was very well written, it was very clearly written, much more clearly than in the other law books available. Even the typography was quite elegant. Blackstone had persuaded Oxford University Press. To buy in a new set of type with which to set his, because it was published from Oxford University Press with which to set his magnum opus, and it had the distinctive character of providing.

[00:28:58] A reason of providing a justification for each and every legal point that was expounded. And so instead of saying, this is the law and that’s the law, and this is the law, he actually explains how it is. What the law is derived from the principles on which the law is based and provides a rationalization or justification for every particular aspect of the law that he describes.

[00:29:33] And this is a, this is a great innovation. It makes the law accessible in a way it had not been previously.

[00:29:42] Barry Anderson: You know, when you talk about making the law accessible. His commentaries in the United States strongly influence, uh, the founders, including Hamilton Marshall, John Jay, John Adams, later Abraham Lincoln, who I’m most familiar with.

[00:29:57] Blackstone dies in 1780. And then in 18 60, 80 years later, Lincoln is responding to a young man who writes to him about how should I, you know, learn about the law. And he talks about. Joseph story on equity and those kinds of things. But the very first thing that Lincoln says in that letter is you should read Blackstone’s commentaries through two times.

[00:30:22] Carefully. Yes. That is remarkable. And I’m just wondering if you could talk a little bit about sort of his influence on early American law, recognize that’s not your field necessarily, but also would he have been. Surprised about this longstanding influence decades later. I mean, you know, he dies as the revolution is still underway.

[00:30:43] Wilfrid Prest: Yeah, it’s, and of course he’s a great opponent of the revolution and you know, this of course is, is one of the reasons why There are a number of founding fathers who take very much against Blackstone. There’s a strain of of hostility towards Blackstone, which goes on through I think Jerome Frank and various others express their disapproval of Blackstone’s antidemocratic, anti egalitarian principles.

[00:31:11] That is certainly the case, but Blackstone has his admirers and I think the admirers. Clearly outweighed the opponents and dissidents even from the very beginning. Edmund Burke in the British Parliament points out that almost as many copies of Blackstone had been sold up until the, about the, in the 1780s in America as had been sold in Great Britain.

[00:31:38] And of course, there were American editions of Blackstone from the very beginning. And why is he so influential? Well. There’s nobody else. Nobody else makes it possible to get an overview of the law in a way that can be turned into a useful, practical, uh. Application in court, or even if you are seeking to understand how the political system works, because things like the separation of powers in the American constitution clearly have a lot to do with Blackstone’s notion of how the British.

[00:32:20] Constitution that operates. So while there’s hostility to Braxton as a British anti Democrat, there’s a great deal of appreciation of him for the accessibility of his text, and it’s partly because of that style. It’s written in a language which. Sometimes today might seem a little heavy, a little ornate, but it’s if you prepared to spend the time reading as carefully as Lincoln advised that person, his correspondent.

[00:32:57] If you read the read the work through carefully, you’ll be very impressed by the skill with which he expounds his subject.

[00:33:07] Barry Anderson: You talked a little bit about Blackstone’s opponents. Let’s talk a bit about that. Jefferson writes that there should be none of the Tony Mansfield of Blackstone, whatever that is, or COism, which I think I understand.

[00:33:19] You know, weirdly Jefferson also, and others talk about, you know, the rights of Englishman, which Blackstone of course also writes about. So, uh, very much so. Jefferson may not be completely consistent here. What do you suppose he’s getting at here when he talks about.

[00:33:36] Wilfrid Prest: I think, and I’m of course an English historian, not an American one, but let me say that I think Jefferson’s concern is that he feels Blackston gives too much scope to the role of judges in making the law, in laying down precedents.

[00:33:57] And I think that Jefferson prefers the idea. A representative assembly, a parliament, a Senate, or or a Congress will make law because it will be representing the people who have chosen it and elected it. Whereas judges are appointed in the English system, of course, by the crown.

[00:34:21] Barry Anderson: Let’s move on to Sarah William Holdsworth, who sort of commending and recognizing the work that Blackstone does.

[00:34:29] Writes that quote, if the commentaries had not been written when they were written, I think it very doubtful that the United States and other English speaking countries would’ve so universally adopted the common law. Would you discuss some examples of his works transmitting the common law, the importance of common law to America, and actually I don’t know that many of our listeners understand that British common law really extends throughout the old empire, including India and other places.

[00:35:00] Absolutely. Talk about case law across the world.

[00:35:03] Wilfrid Prest: Yeah. Well, there really have been two great systems of law in, shall we say, the Western tradition. One, of course, is Roman law, which is still a major influence, especially in continental Europe and South America. And the other is a common law, the English system, which is a system that has grown up on the basis of a judge made law supplemented by.

[00:35:31] Uh, statute supplemented by legislation. Why has Blackstone had that influence? Well, I think partly, you know, there weren’t too many other law texts available. Certainly in Colonial and early independent post Independence America, Blackstone’s commentaries, they’re four volumes, but they could be slipped into the saddlebag and taken off.

[00:36:01] West as the frontier moved, there’s someone who says that in Texas, I think the, the basic equipment of a practicing attorney was a set of Blackstone and a branding iron. The branding iron to mark the cattle that were given you as a fee for your legal advice. And you know, Blackstone is. He doesn’t really have a rival, especially once American publishers and legal scholars start producing American editions of Blackstone Blackstone adapted to the law, the the laws of Pennsylvania, for example, and there are a, a number of Americanized Blackstone’s that are produced and they’re produced for use by practicing lawyers, but even more.

[00:36:46] By law students. And while Blackstone tried to establish a sort of law school at the University of Oxford that never got off the ground really until long after his death, but law schools and legal education as a university and academic process was something that America led the way in and up until. The 1870s, up until the late 19th century, Blackstone was absolutely the bedrock of American law teaching on American law schools.

[00:37:25] Barry Anderson: You know, his legal inheritance is enormous. Even today, his commentaries are still among the most often cited legal sources in the United States Supreme Court proceedings. This is a lot less significant than those proceedings, but I can tell our listeners that during my time as a member of the Minnesota Supreme Court, I’m now retired.

[00:37:44] I Blackstone. Yes. So maybe that’s a problem. Maybe that’s a benefit, I don’t know. But in an era where these principles of Anglo-American law. Seem, we don’t seem to teach them much. We tend to ignore them in light of the modern era and so forth. What should educators, students, and the public most remember about Blackstone and his legacy?

[00:38:06] What would you like them to remember about him?

[00:38:09] Wilfrid Prest: Well, that’s a very interesting question. I think that his influence is still a little bit there. Law students, for example, we mentioned India. Early on law students played a very significant role in the emancipation of India. Colonial or Imperial India. From British Rule.

[00:38:34] Gandhi was a lawyer, trained as a lawyer, and from the early 19th century onwards, the nationalist movement in India looked to Blackstone as providing a text on political rights, which. They claimed had been, and rightly so, they claimed were not granted to them by the British Empire. Blackstone has had less influence in Asia, but the first translations of Blackstone into Chinese were really only in the last 20 years or so.

[00:39:16] So I think that. Blackstone’s influence may still be there as a statement of human rights and political rights, as well as a simply a statement of law. Because his book is as much about government as it is about law.

[00:39:32] Barry Anderson: I don’t think we can close, uh, our discussion about Blackstone without hearing directly from your work about Blackstone.

[00:39:39] Would you be so kind as to share a paragraph or so of your book with our listeners today?

[00:39:45] Wilfrid Prest: Okay, well that’s very kind of you. It’s a book that’s been out now for quite some time, and I had to think hard about which bit I would read to you, but I think I’m gonna read from the conclusion this is from my bio biography, William Blackstone Law and Letters in the 18th Century.

[00:40:02] First published nearly 20 years ago, but it’s still going strong and it talks about Blackstone personality. He was no relaxed public performer. Nor was he the easiest man to get along with, especially in his mature years. An awkward combination of dissidence reserve, committed diligence and drive, lack of physical grace and social graces, some insensitivity to the feelings of others, not least when mining what they might well have considered their own business.

[00:40:35] Coupled with oversensitivity to personal slights, real or imagined were among his less attractive qualities. The quest for preferment on which he embarked in the 1760s, which was partly motivated by concern to provide for his recently acquired wife and growing brood of children was not a pretty or inspiring site, but it does betray more humanity, but might be suggested by monumental images of a be rigged, entitled judge in which the person is overwhelmed by the crackings of office.

[00:41:13] We should also note that the remarkable energy which Blackstone continued to expend even in the very last years of his life was on the whole. Then as before, devoted to projects other than personal or grandest. While doubtless ambitious Blackstone had a strong sense of obligation to others in an age dominated by elite patronage, he was also something of Arat.

[00:41:37] He not only owed his personal success very largely to his own efforts, but sought to extend that principle more widely, as in his attempts to restrict the role of founders kin, those related to the original founder of All Souls College in gaining fellowships at that institution. By the same token, if much of his praise for the Constitution, government laws and polity of Havi and Britain strikes modern ears as excessively complacent.

[00:42:12] It is a sobering to consider that the liberties, which Blackstone celebrated as the absolute rights of individuals. That’s a quotation, the absolute rights of individuals. Not just of every Englishman can, by no means be taken uniformly for granted today, even in those societies which continue to depend upon the inheritance of the common law.

[00:42:41] Albert Cheng: Well, we’ve been talking with Professor Press about William Blackstone, professor Press, thank you for sharing your expertise and your knowledge about such an important figure.

[00:42:49] Wilfrid Prest: Thank you, professor. That’s a great pleasure.

[00:43:04] Albert Cheng: Well, that was a great interview. I wasn’t at Justice Anderson.

[00:43:07] Barry Anderson: It was terrific. It was, yeah, it’s, it’s a significant and not well understood part of our American legal and civic history, and I think Professor Press did a great job of outlining why we should be paying more attention to William Blackstone and his commentaries.

[00:43:23] Albert Cheng: Yeah. Well, I couldn’t agree more, and I, I learned quite a bit about his life and more about his thought. Well, let’s wrap up the show. We’re nearing the end here, so let me leave you all with the tweet of the week. This is from Neil McCluskey. The federal government has constitutional authority to create military education savings accounts, otherwise has no authority to govern an education including school choice through the tax code.

[00:43:46] It also threatens national level regulation of. Private schools and look, I mean, we’ve got a lot going on at the federal level in terms of policy, what it should do, what it shouldn’t do. Lots of spirit debate about how its role should be delineated, and so I’ll leave you listeners with that quote, and so they check out some McCluskey thoughts, but as well as many others on these sorts of matters.

[00:44:09] Justice Anderson, pleasure to have you back on the show. It’s always great co-hosting with you.

[00:44:14] Barry Anderson: Thanks very much. Great to be here. Look forward to the next opportunity. Thanks. Yep,

[00:44:17] Albert Cheng: yep. And I hope it’s sooner than later. And speaking about next opportunities, we’re gonna talk baseball with Jane Levy, the bestselling American sports writer, biographer, and author of the Big Fella, babe Ruth, and the world he Created.

[00:44:32] So until then be well. Hey, it’s Albert Cheng here, and I just wanna thank you for listening to the Learning Curve podcast. If you’d like to support the podcast further, we’d invite you to donate to the Pioneer Institute at pioneerinstitute.org/donations.