The Blackstone '1 Comm 107' Citation

Sir William Blackstone’s four-volume Commentaries on the Laws of England is perhaps the most influential legal treatise in common law history. I referenced Blackstone directly and indirectly three times in my first undergraduate law essay and, while reviewing it for publication here, I took note of this quotation:

For it is held, that if an uninhabited country be discovered and planted by English subjects, all the English laws are immediately there in force. For as the law is the birthright of every subject, so wherever they go they carry their laws with them.¹

Elsewhere in the essay, I referred to the below passage from Blackstone, quoted by the Privy Council in Cooper v Stuart (1889) 14 App Cas 286, 291:

It hath been held that, if an uninhabited country be discovered and planted by English subjects, all the English laws then in being, which are the birthright of every English subject, are immediately there in force … . But … colonists carry with them only so much of the English law as is applicable to the condition of an infant Colony …²

These passages are similar and come from different editions of Blackstone’s Commentaries. The former comes from the first edition (1765), while the latter is a revision published in the third edition (1768).

In Cooper v Stuart, the passage attributed to Blackstone is cited simply as ‘1 Comm 107’, almost like a standard case citation. A convention seems to have arisen among judges and legal scholars to cite it in the same manner. I have found it cited this way in other cases³ and in books,⁴ journal articles⁵ and speeches.⁶ It seems to appear almost exclusively in an Australian context.⁷

Blackstone’s Commentaries have been reprinted many times since 1765, with inconsistent pagination. The passage cited as ‘1 Comm 107’ appears on different pages of different editions from different publishers. It is remarkable that ‘1 Comm 107’ has been adopted as sufficient citation when it gives no indication of the edition, nor even the full title.

If these writers had at hand a specific edition of Blackstone’s Commentaries, it would be trivial to cite that edition accordingly, yet they do not. Further, I doubt many, if any, of them had access to the 1768 third edition in which the passage seemingly first appears. Instead, I suspect that these sources are all ultimately relying on the citation given in Cooper v Stuart, which itself does not give publication details. This seems to have been so for Gaudron J’s opinion in Wik Peoples v Queensland, where her Honour referred to ‘Blackstone, Commentaries, 1 Comm 107, approved by the Privy Council in Cooper v Stuart’.⁸

Copying the citation from Cooper v Stuart or another source is not necessarily a bad thing. Referencing is often a ‘best effort’ because it’s not always easy to track down the original sources used by other authors. In some of my law essays, particularly the earlier ones, I had to rely on quotes and citations in textbooks being accurate — something that should be avoided if possible and done with caution if not.

Further, if judges and scholars are simply using the citation given by the Privy Council, it vindicates Blackstone as the most eloquent statement of the common law. Blackstone’s Commentaries are influential precisely because judicial decisions have given them legal authority. Cooper v Stuart evidences Blackstone’s relevance to understanding fundamental common law principles by endorsing the passage it quotes.

So, this is not a criticism of other authors per se, but a criticism of a practice — a convention — that persists of citing ‘1 Comm 107’ rather than the more accessible Cooper v Stuart, and of not providing a reference to a specific edition of Blackstone’s Commentaries. If the purpose of a citation is to enable the reader to find the original work, this practice is best abandoned.