, Baron Blackburn of Killearn (18131896), judge
, was born in Levenside, Dunbartonshire, on 18 May 1813, the second eldest son of John Blackburn (17561840) of Killearn, a Jamaican proprietor, and Rebecca Leslie (b
. 1788), daughter of the Revd Dr Gillies. He was educated at Edinburgh Academy and Eton College, before going to Trinity College, Cambridge. Having come up after being idle at Eton to be idle again at Cambridge, he was fortunate in having as his tutor at Trinity, not William Whewell, who would never have encouraged him to study, but George Peacock, who saw merit in Blackburn's mathematical paper and advised him to cultivate what he saw were his talents and he did (Trinity College, Cambridge, Add. MS b.49.199). A very serious student, he became a first-class mathematician, graduating as eighth wrangler in 1835. Two younger brothers, and Robert Bogle Blackburn (18211875), shared this academic pedigree: the former became professor of mathematics at Glasgow University, the latter an advocate and later sheriff of Stirlingshire.
Blackburn was admitted a student at Lincoln's Inn in April 1835, but he later migrated to the Inner Temple and was called to the bar on 23 November 1838. He joined the northern circuit. His early career was that of a relatively briefless barrister, without legal or political connections. Publicly he never expressed political views, although his older brother, Peter Blackburn (18111870), was the liberal conservative member for Stirlingshire in the parliaments of 1855 to 1865. His appearance, with his burly figure, strong face, and round bullet head, was not prepossessing. Moreover, as Ballantine observed, a scotch accent does not improve a naturally harsh voice and his demeanour can scarcely be termed graceful or his manner pleasant (Ballantine, 248). He was the antithesis of the suave advocate: his humour was dry, his personality grave. He studied human nature in Coke upon Littleton
without assistance from haunts of revelry; a confirmed bachelor, he was never a ladies' man (ibid., 332, 248).
It took many years for Blackburn's legal talents to be recognized. His ability to distil principle from raw case law became known with the publication of his much praised treatise on Sale
(1845) which led to his appearing as a junior in some heavy mercantile cases. During these years of obscurity he would be seen in the back row of the queen's bench and the exchequer chamber, with Thomas Flower Ellis, T. B. Macaulay's great friend, listening to arguments and judgments which they reported in eight volumes as Ellis and Blackburn and one as Ellis, Blackburn, and Ellis.
On 27 June 1859 Blackburn, who had never taken silk, was appointed a judge of the queen's bench by the lord chancellor, Lord Campbell, in succession to Sir William Erle, who had been appointed chief justice of the common pleas. He was invested with the coif on 2 November and knighted on 24 April 1860. His appointment was greeted with consternation by the profession. Campbell recorded in his diary the great disgrace he incurred
by disposing of [my] judicial patronage on the principle detur digniori … whereas several Whig Queen's Counsel, M.P.'s, were considering which of them would be the man, not dreaming that they could all be passed over. They got me well abused in the Times and other newspapers, but Lyndhurst has defended me gallantly in the House of Lords. (Hardcastle, 3723)
Blackburn's judicial career was a vindication of Campbell's bold appointment. In the course of his seventeen years in the queen's bench from 1859 to 1876, he came to be recognized as one of the ablest judges in a strong court. He was an excellent nisi prius
judge, very hard-working, sober in judgment, and fair-minded. There was, said Serjeant Ballantine, no one before whom I would sooner have practised (Ballantine, 333). Blackburn's manner on the bench was said to be harsh and uncongenial, but it was soon found that this was only his surface deportment (ibid.). He was a compassionate man.
As a judge, Blackburn rarely excited controversy. The one time his conduct was questioned arose from his charge to the grand jury in June 1868 in the trial of Edward Eyre, governor of Jamaica, who had been indicted for acts of oppression in suppressing an insurrection of black rioters in Jamaica and in executing its supposed ringleader, George William Gordon. After the grand jury had refused to return a bill of indictment, the chief justice, Sir Alexander Cockburn, questioned in open court Blackburn's direction that removing Gordon from Kingston into the proclaimed district for the purpose of subjecting him to martial law was legally justifiable, and that the execution of Gordon was justifiable if Eyre
bona fide thought … that it was really necessary and proper for the purpose of checking [the insurrection] that Gordon … should be summarily tried, and that it was of importance that he, as the head of the insurrection, should be made an example of at once, in order to stop the insurrection. (Annual Register, 1868, pt 2, 214)
The chief justice, who had given a different charge in the earlier case of R. v. Nelson and Brand
(1867), suggested that the queen's bench judges whom Blackburn had consulted before delivering his charge did not realize that he would so direct the jury.
In 1875 Blackburn became a justice of the newly constituted high court of judicature, and a year later was appointed to serve as one of the two lords of appeal in ordinary, offices created by the Appellate Jurisdiction Act
of 1876. This time his appointment was not greeted with consternation by the legal profession but was applauded. His judgments in the queen's bench had demonstrated his profound knowledge of the principles of the common law. They continue to be read with admiration and cited as authoritative, notably his judgment in Taylor v. Caldwell
(1863) which did much to formulate what modern lawyers call the doctrine of frustration of purpose and demonstrates Blackburn's considerable command of civilian sources. The defendants had agreed to let the plaintiffs have the use of the Surrey Gardens and Music Hall on four specific days for the purpose of giving concerts and fêtes. Before the date of the first concert the Music Hall was destroyed by fire. The question which the court had to decide was whether the loss which the plaintiffs had sustained should fall upon the defendants. The court, whose judgment Blackburn delivered, held that it should not. The defendants' promise was not an absolute one. It was an implied condition of the contract that the Music Hall should continue to be in existence. Both parties would be excused if performance becomes impossible from the perishing of the thing without default of the contractor. He pointed out that this principle was not novel; contracts had been discharged where performance was dependent on the existence of specific goods or the life of a human being, just as they were in Roman law (the Digest
) and contemporary civil law (Pothier's celebrated Traité du contrat de vente
Robust common sense as well as legal learning were the hallmarks of Blackburn's judgments and speeches in the House of Lords. In Orr-Ewing v. Colquhoun
(1877) he was not inclined to reject the evidence of practical men as to a fact, merely because they [gave] a bad theoretical reason for it, and [he was] not able to furnish the right one. In Foakes v. Beer
(1884) Blackburn, alone of the peers, accepted that prompt payment of a part payment of their demand may be more beneficial to [creditors] than it would be to insist on their rights and enforce payment of the whole. There are many other notable decisions, among them Pharmaceutical Society v. London and Provincial Supply Association
(1880) (important for his dictum that a corporation can be sued for a libel or convicted for committing a nuisance) and Erlanger v. New Sombrero Phosphate Co.
(1878) (discussing the fiduciary duties of company promoters and the principles determining rescission of contracts).
Blackburn was a member of the royal commission on the courts of law (1867) and on the stock exchange (1877), and chaired that on the draft criminal code (1878). In 1877 he became an honorary bencher of the Inner Temple.
After his retirement in December 1886, Blackburn rarely spoke in the house, possibly because he was a victim to that sad disease which often attacks the strongest brains (Manson, 263). His remaining years were lived quietly on his Scottish estate, Doonholm, Alloway, Ayrshire, where he died on 8 January 1896.
Gareth H. Jones