Blackstone’s Long Tail

This chapter returns to the idea of harmonic justice, suggesting its association with tyranny, an association formally legible in intolerance for deviations from form. The happiness it promises is undone by Blackstone's ambivalent and shifting position on slavery and the uses his text served in America. Blackstone's reach is demonstrated through a reading of Harper Lee's To Kill a Mockingbird, where the children of enslaved people learn to read from the Commentaries as Lee celebrates Blackstone's claims for liberty as a fundamental value of the English common law. But the irony inherent in this argument is as cruel as the cruel optimism Blackstone inspired. The novel inspires not racial justice, but complacent acceptance of glacially slow change, in which gradualism cloaks the most brutal racism. Difference here is represented as deformity and deformity is erased by the end of the novel, replaced with a false sense of ease and comfort.

Terror, Torture, and the Tender Heart of the Law

This chapter examines what Blackstone referred to as “the tenderness of the law” in light of the English practice of peine forte et dure (pressing). By using gothic tropes in his discussion of what was a common English, not French, practice, Blackstone attempts but fails to distance ideas of English justice from the European acceptance of torture. Buried beneath the surface of his text are experiences such as those of Nathaniel Hawes, a young rebel robber “persuaded” to comply with the law through the judicial application of peine forte et dure. Blackstone's treatment of peine forte et dure offers analogies to recent US discussions of torture at Guantanamo Bay, but also provides an opening for what has in recent years become a new understanding of the value of tenderness, with its implied partners, empathy and sympathy, as a legal standard.

Introduction

This chapter establishes Blackstone's prominence, discusses his influence on Enlightenment thought about law and justice, and reveals his investment in legal emotions as related to harmonic justice. In a reading of his early poem “The Lawyer's Farewel,” it introduces Blackstone's poetics and illustrates methods of both close and surface reading common to literary analysis. The chapter argues that although Blackstone has been the subject of historical study, both Law and Humanities and history of emotions approaches can further illuminate Blackstone's method and impact. The chapter argues for a curatorial approach to Blackstone's work that takes into account his exercise of affective aesthetics and its impact on the history of emotions in law. It closes with a summary of the chapters to come and an argument in favor of foregrounding aesthetics and emotion in legal studies.

Coda

This brief coda takes up the value of sympathy in the context of resistance. Inspired by Mary Wollstonecraft's agitated reaction to Blackstone, the coda rereads agitation as a trigger for sympathetic review in light of a recent Texas case in which an agitated defendant undermined the court's “decorum.” Wollstonecraft was quieted by an early death and the cultural suppression of her work; the Texas defendant discussed in this coda was silenced by the administration of seizure-inducing electric shocks amounting to torture. Both Wollstonecraft and the Texas defendant, the hapless Terry Lee Morris, offered threats to form, to the formal trappings of justice, to its harmonic balance, or to what is termed “decorum” in the Texas case. Thus, their agitation can be reinterpreted in light of recent work on “excessive subjectivity.” Read at a slant, decorum seems just another name for harmonic justice, agitation another word for resistance.

The Orator’s Dilemma

This chapter shifts registers to focus on Blackstone's own embarrassment as marking the importance of the Commentaries as a written text, a materialized object that came to symbolize the permanence and reliability of written law. Blackstone's “diffidence,” his deficiencies as an orator, operated as legible affective signs of discomfort with the orally based theatricality of legal practice. Reading Blackstone's expressive body as a text in itself available for scrutiny in the famous libel case Onslow v. Horne (1770) suggests that although Blackstone's “stuttering” affect in Westminster Hall may have seemed to undermine his authority, it instead played a symbolic role in the global dissemination of the print text Commentaries. The inadequacy of his authentic but imperfect performance shifted attention to the perfectible text where Blackstone could perfect his style, if not always his content.

Blackstone’s “Last Tear”

This chapter focuses on loss to develop a reading of Blackstone's melancholic treatment of the gaps in the English legal historical record as an extended elegy in the graveyard poets’ tradition. In his analysis of real property, Blackstone reifies traditions that reinforce lineage and the retention of estates across multiple generations. His preservation of remnants of Saxon property law stands in for the preservation of property as a concept and as a memorial to the lost bodies of the past; that property would forever be attached to a genetic heritage would seem an attempt to thwart not only the mortality of the human body, but the mortality of the English common law system.

What’s Love Got to Do with It?

By examining “zones of desire” and “zones of disgust,” first in Blackstone's poetry and then in the Commentaries, this chapter unpacks Blackstone's reliance on these twinned emotions as instrumental to his efforts to construct a new understanding of and loyalty to the English common law. Marriage law and orientalism are interrelated here with a discussion of Blackstone's celebration of the trial as a unique English contribution to justice. In these discussions, desire and disgust worked together to suggest an English legal tradition able to accommodate the forces of commodification and expansion that defined modernity.