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William Blackstone: Courtroom Dramatist?

Re-Interpreting Blackstone's Commentaries: A Seminal Text in National and International Contexts, ed. Wilfrid Prest (Oxford: Hart, 2014)

17 Pages Posted: 8 Feb 2014 Last revised: 16 Nov 2014

Simon Stern

University of Toronto - Faculty of Law

Date Written: February 6, 2014

Abstract

This book chapter discusses William Blackstone's role as a judge, in relation to accounts (such as Bentham's) that portrayed him as "formal, precise, and affected." Rather than evaluating legal performance, in the courtroom, by reference to binaries such as formal/informal, cautious/inquisitive, or stolid/creative, I argue that the success of a legal performance depends on the speaker (e.g., witness, lawyer, judge), the audience (e.g., jury, judge, public), and the subject (e.g., the prosecution’s motives, the defendant’s alibi, the majesty of the common law). To explore this idea, I look at eighteenth- and early nineteenth-century commentators who praised or criticized particular lawyers or judges (in the course of offering "strictures on the bar") by invoking the language of theatricality. As I show, this language was most prevalent in discussions of jury trials, and was often pointedly abandoned in discussions of purely legal arguments (e.g., arguments before appellate courts). The figures in question include William Garrow, Sir John Scott, Sir Francis Buller, and Richard Sheridan. I also consider portrayals of inarticulate lawyers on the eighteenth-century stage, arguing that for the most part, these portrayals make none of the distinctions suggested here, as to audience and subject, but instead simply treat this character as a figure of fun because he is incompetent to perform his task, whatever that task may be. I close by reconsidering a shorthand transcription of Blackstone's performance on the bench in the 1770 trial of Onslow v. Horne, arguing that his conduct comports with an emerging sense of what makes for a good legal argument -- namely, one that takes written explanation as the template for an effective style of oral presentation, and one that Blackstone's own Commentaries helped to promote.

Keywords: Blackstone, judging, courtroom oratory, legal history, theatricality

Suggested Citation

Stern, Simon, William Blackstone: Courtroom Dramatist? (February 6, 2014). Re-Interpreting Blackstone's Commentaries: A Seminal Text in National and International Contexts, ed. Wilfrid Prest (Oxford: Hart, 2014) . Available at SSRN: https://ssrn.com/abstract=2392100

Simon Stern (Contact Author)

University of Toronto - Faculty of Law ( email )

78 Queen's Park
Toronto, Ontario M5S 2C5
Canada

HOME PAGE: http://www.law.utoronto.ca/faculty-staff/full-time-faculty/simon-stern

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