Commentaries On The Laws Of England And The Early American Law: 1770-1860

Since the publication of Commentaries on the Laws of England written by the British jurist William Blackstone, its effect has reached other places outside Britain. The most significant effect of this legal classic is to play a crucial role in the formation of American law. The period from the founding of United States to the middle of the 19 th century is usually called the “Formation Era of American Law”, this article observes the spread of this book during this period, its application in legal education and legal practice and the relation between Commentaries and American Constitution, and aims to find out the role of this book in the formation of American law. The Commentaries is a crucial book in the process of following the common law. And American law was innovated based on its heritage of common law. This article has four parts. Part one first reviews the research history of the subject “relationship between Blackstone and formation of American law”, and points out that when there are several researches in foreign countries, there is no systematical domestic study. Secondly, part one explains what is the “Formation Era of American Law” and points out the origin of this saying and the mark of the formation of American law. In part two, this article briefly introduces the life and work of Blackstone, and also introduces the spread and reprint of the Commentaries in United States which show that the book was extremely popular in the country. At the same time, this part also examines the “Americanizing” Commentaries, which is the commentaries from American jurists on this book that reflects the efforts the American jurists did to makethe book fit for American practices. Lastly, this article examines the effect of Commentaries on some American legal classics. In part three, this article introduces the application of the Commentaries in legal education during 1770 to 1860 in United States. This article introduces three modes of legal education in America, “apprenticeship”, “proprietary law school” and “law school”, and examines the application of the Commentaries under the three modes. By introducing the way that law teachers such as James Gould, Henry Tucker, George Wythe, St. George Tucker, Nathaniel Tucker and Joseph Story applied the Commentaries in legal education, this article reflects that these law teachers did not simply retell the British common law, but adapted it to the practical situation of United States. In part four, this article examines the relation between Commentaries and the Constitution of United States in three paths: the relation between Commentaries and the framers, the application of Commentaries in making the constitution and the relation between Commentaries and the content of constitutions. This article discovers that the impact of Commentaries on the constitution shall not be exaggerated. In part five, this article studies the court practices in Supreme Court of the United States between 1770 and 1860. By researching key words, the number of cases that cited the Commentaries in the Supreme Court during this period was calculated, and compared with number of cases that cited the Commentaries on American Law, which shows that the citing rate of the Commentaries was very high. Meanwhile, this article selects six cases during the period, and examines how the six cases cited the Commentaries. By expounding the citation from the Commentaries by the four Justices, this article reflects that the book exerts great influence on Justices, and shows that American law followed the common law critically.