, with justice, as belonging to the sphere of morals
rather than of law.

"Its true defect," says Professor Dicey of the _Commentaries_, "is the
hopeless confusion both of language and of thought introduced into the
whole subject of constitutional law by Blackstone's habit--common to all
the lawyers of his time--of applying old and inapplicable terms to new
institutions." This is severe enough; yet Blackstone's sins are deeper
than the criticism would suggest. He introduced into English political
philosophy that systematic attention to forms instead of substance upon
which the whole vicious theory of checks and balances was erected. He
made no distinction between the unlimited sovereignty of law and the
very obviously limited sovereignty of reality. He must have known that
to talk of the independence of the branches of the legislature was
simple nonsense at a time when King and peers competed for the control
of elections to the House of Commons. His idealization of a peerage
whose typical spiritual member was Archbishop Cornwallis and whose
temporal embodiment was the Duke of Bedford would not have deceived a
schoolboy had it not provided a bulwark against improvement. It was
ridiculous to describe the Commons as representative of property so long
as places like Manchester and Sheffield were virtually disfranchised.
His picture of the royal prerogative was a portrait against every detail
of which what was best in England had struggled in the preceding century
and a half. He has nothing to say of the cabinet, nothing of ministerial
responsibility, nothing of the party system. What he did was to produce
the defence of a non-existent system which acted as a barrier to all
legal, and much political, progress in the next half-century. He gave
men material without cause for satisfaction.

As a description of the existing government there is thus hardly an
element of Blackstone's work which could stand the test of critical
inquiry. But even worse was its philosophy. As Bentham pointed out, he
was unaware of the distinction between society and government. The state
of nature exists, or fails to exist, with startling inconsistency.
Blackstone, in fact, was a Lockian who knows that Hume and Montesquieu
have cut the ground from under his master's feet, and yet cannot
understand how, without him, a foundation is to be supplied. Locke,
indeed, seems to him, as a natural conservative, to go too far, and he
rejects the original contr