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Thomas Jefferson and the Uses of Equity

Published online by Cambridge University Press:  23 February 2015

Extract

In 1795, a disgruntled George Wythe published his own edition of decisions from Virginia's newly formed High Court of Chancery, of which he was the sitting judge. Wythe's volume was replete with rebukes of his fellow justices in the court system for their lack of erudition and grounding in the distinctive principles and procedures of common law and chancery jurisdictions. His own copy of the volume, which, like many of his books that found their way into the library of his prize pupil, Thomas Jefferson, includes Wythe's handwritten appendix to the series of references he had made to classical literature and rhetoric in his own remarks, including several to the legal arguments of Demosthenes, and most strikingly to Sophocles' Antigone. Like much of their correspondence, their respective legal arguments as attorneys, and Thomas Jefferson's own massive commonplace books of common law and equity jurisprudence, Wythe's extensive commentaries signify not only the continued appeal and display of an early modern humanist legal and intellectual culture, but also the centrality and power of the idea of equity in that culture and for its successors acting in the Atlantic and imperial constitutional crisis of the second half of the eighteenth century.

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References

1. Wythe quotes, from a contemporary translation, Antigone's rebuke of Creon's authority: …unwritten laws divine / Immutable, eternal, not like these / Of yesterday, but made e'er time began,” Francklin, Thomas, trans., The Tragedies of Sophocles, from the Greek (London: printed for R. Francklin, 1759)Google Scholar; Wythe, George, Decisions of Cases in Virginia by the High Court of Chancery (Richmond: Thomas Nicholson, 1795)Google Scholar, 130n; Wythe's inclusion of the more extensive original Greek passage in his personal appendix is in his, and later Jefferson's, copy of the volume in the Special Collections of the Library of the University of Virginia. The quotation comes in the middle of an extensive footnote to a 1793 case between the legal representatives of British creditors and an American debtor suing for protection from seizure of his property in final payment of his debts on the premise that the requirements of the Treaty of Paris were null and void, an argument that Wythe rejected on the basis of natural law, suggesting that for the Virginia assembly to exercise the power to cancel debts owed to a foreigner was to exercise the same arbitrary power of legislative supremacy for which the American colonists had rejected the authority of Parliament. The classical citation aptly demonstrates the connections between private and public law in the configuring and exercise of chancery jurisdiction, and, in particular, the uncertain nature of American revolutionary constitutionalism with regard to critiques of the constitution of the British Empire in the Atlantic; see Page v. Pendleton, Wythe, Decisions, 127–32.

2. Although Jefferson's literary and legal commonplace books have long been studied as keys to the development of his thought, with a few notable exceptions, scholars have often ignored Jefferson's equity commonplace book, composed for the most part concurrently with the others from the middle of the 1760s to the cusp of the early 1770s. On the equity commonplace book, see Dumbauld, Edward, “Thomas Jefferson's Equity Commonplace Book,” Washington and Lee Law Review 48 (1991): 1257–83Google Scholar. On the role of equity cases for Jefferson's legal career, see Hoffer, Peter Charles, Law's Conscience: Equitable Constitutionalism in America (Chapel Hill: University of North Carolina Press, 1990)Google Scholar. On Jefferson's commonplace books and their dating, see L.Wilson, Douglas, “Thomas Jefferson's Early Notebooks,” William and Mary Quarterly 42 (1985): 433–52CrossRefGoogle Scholar; and Hayes, Kevin J., The Road to Monticello: The Life and Mind of Thomas Jefferson (Oxford: Oxford University Press, 2008).Google Scholar

3. Here my thinking about the history of thought owes much to the work of James Tully and Paul Rabinow and their respective readings and appreciation of the importance of the work of Wittgenstein and Foucault for intellectual history and the social sciences: see Tully, James, Public Philosophy in a New Key: Volume 1: Democracy and Civic Freedom (Cambridge: Cambridge University Press, 2010)Google Scholar; and Rabinow, Paul, The Accompaniment: Assembling the Contemporary (Chicago: University of Chicago Press, 2011).CrossRefGoogle Scholar

4. Aristotle (Rackham, H., trans.), Nicomachean Ethics (Cambridge, MA: Harvard University Press, 1934), 1113Google Scholar; Cicero (Caplan, Harry, trans.), Rhetorica ad Herennium (Cambridge, MA: Harvard University Press, 1954)Google Scholar; and Schiavone, Aldo (Carden, Jeremy and Shugaar, Anthony, trans.), The Invention of Law in the West (Cambridge, MA: Harvard University Press, 2012), 299305Google Scholar. On the development of equity as supplementary to the English common law and dealings with wills and trusts, see Maitland, Frederic William (Brunyate, John, ed.), Equity: A Course of Lectures (Cambridge: Cambridge University Press, 1939), 142.Google Scholar

5. Sir Coke, Edward (Steve Sheppard, ed.), Coke upon Littleton (1628), Selected Writings and Speeches of Sir Edward Coke, (Indianapolis: Liberty Fund, 2005)Google Scholar, 2:701. Coke built on a tradition of English legal thought: understanding equitable interpretation of the law as part of the common law rather than strictly as a component of the sovereignty of the Crown, and he put this claim to work in his jurisdictional disputes with Lord Chancellor Ellesmere, particularly on the power of the courts to issue penalties of praemunire outside of the diminished jurisdiction of ecclesiastical law. See Cromartie, Alan, The Constitutionalist Revolution: An Essay on the History of England, 1450–1642 (Cambridge: Cambridge University Press, 2006).CrossRefGoogle Scholar

6. The most direct target of Coke's ambitions was his political rival Francis Bacon (1521–1626), Queen's Counsel to Elizabeth I, clerk of the Star Chamber, attorney general, and Lord Chancellor under James I until brought down by scandal. Bacon sought strengthening of the royal prerogative and a checking of the power of common law courts to adjudicate on royal and parliamentary action through a revisal and codification of the legal code, removing the monopoly on the art of legal interpretation assumed by Coke's cloaking of the legal legitimacy in immemoriality: Francis Bacon, Elements of the Common Lawes of England (London, 1630)Google Scholar, originally composed to gain favor with Elizabeth I in the 1590s. On the respective humanisms employed in the jurisprudential narratives of Coke and Bacon, see Tuck, Richard, Philosophy and Government, 1572–1621 (Cambridge: Cambridge University Press, 1993)Google Scholar; Peltonen, Markku, Classical Humanism and Republicanism in English Political Thought, 1570–1640 (Cambridge, Cambridge University Press, 1995)CrossRefGoogle Scholar; Alan Cromartie, The Constitutionalist Revolution (Cambridge: Cambridge University Press, 2006), chap. 7; Summit, Jennifer, Memory's Library: Medieval Books in Early Modern England (Chicago: University of Chicago Press, 2008)CrossRefGoogle Scholar; Musson, Anthony, “Myth, Mistake, and Invention: Excavating the Foundations of the English Legal Tradition,” Law and History: Current Legal Issues 6 (2003): 6381Google Scholar; and Lobban, Michael, “Custom, Nature, and Authority: The Origins of English Legal Positivism,” in The British and their Laws in the Eighteenth Century, ed. Lemmings, David (London: Boydell, 2005), 2758.Google Scholar

7. Hobbes, Thomas, “A Dialogue Between a Philosopher and a Student of the Common Laws of England (1681),” in Thomas Hobbes: Writings on Common Law and Hereditary Right, ed. Cromartie, Alan and Skinner, Quentin (Oxford: Oxford University Press, 2005)Google Scholar, 31. In his criticism of Coke in the Dialogue, Hobbes was continuing the skepticism of customary law as an authoritative guarantor of meaning against the ever-present threat of the utter disorder of signs that characterized the state of war: see Leviathan (New York: Penguin, 1982), 165–66. On the development of his thought from rhetorical humanism to the more skeptical, rationalist, and scientific materialism present in these later works, see Skinner, Quentin, Reason and Rhetoric in the Philosophy of Hobbes (Cambridge: Cambridge University Press, 1997)Google Scholar. For the importance of the organization of speech and writing to Hobbes' political philosophy, see Strong, Tracy B., “How to Write Scripture: Words, Authority, and Politics in Thomas Hobbes,” Critical Inquiry 20 (1993): 128–29CrossRefGoogle Scholar. Pettit, Philip, Made with Words: Hobbes on Language, Mind, and Politics (Princeton: Princeton University Press, 2009)CrossRefGoogle Scholar, and on Hobbes and legal thought, see Stoner, James R. Jr., Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism (Lawrence: University of Kansas Press, 1992)Google Scholar; and Dyzenhaus, David and Poole, Thomas, ed., Hobbes and the Law (Cambridge: Cambridge University Press, 2012).CrossRefGoogle Scholar

8. Pocock, J.G.A., The Ancient Constitution and the Feudal Law (Cambridge: Cambridge University Press, 1987), 94103CrossRefGoogle Scholar. Kunal Parker's recent study of the concepts of time in British and American jurisprudence before legal realism builds on Pocock's analysis of the mythical, even ahistorical character of the common law mind before the nineteenth century, but we risk overlooking how important antiquarian intellectual culture was to the self-image of the common lawyer, and how beset that self-image was by alternative political uses of historical narration on both the Leveller left and the Royalist right: see Parker, Kunal M., Common Law, History, and Democracy in America, 1790–1900: Legal Thought before Modernism (Cambridge: Cambridge University Press, 2011)CrossRefGoogle Scholar, chap. 1. One could go so far as to say that the historicality of the common law mind, in the midst of the upheavals of constitutional politics from 1628 through the Interregnum, forced on its adherents a confrontation with historicity and a participation in a politics of historiography.

9. As Charles M. Gray has shown, chancery provided an increasing path of access to legal protection and action on the part of villains and copyholders as the authority of manorial custom declined relative to courts of common law from the fifteenth to the early seventeenth centuries: see Gray, Charles M., Copy-Hold, Equity, and the Common Law (Cambridge: Harvard University Press, 1963)Google Scholar; see also Ibbetson, David, A Historical Introduction to the Law of Obligations (Oxford: Oxford University Press, 1999)Google Scholar; and Natural Law and Common Law,” Edinburgh Law Review 5 (2001), 420.CrossRefGoogle Scholar

10. Sir Hale, Matthew (Gray, Charles M., ed.), History of the Common Law of England, (Chicago: University of Chicago Press, 1971), 1619Google Scholar; Cromartie, Alan, Sir Matthew Hale, 1609–1676: Law, Religion, and Natural Philosophy (Cambridge: Cambridge University Press, 1995), 103–17CrossRefGoogle Scholar; and Pocock, The Ancient Constitution and the Feudal Law, 170–78.

11. Pocock, , The Ancient Constitution and the Feudal Law (Cambridge: Cambridge University Press, 1987)CrossRefGoogle Scholar and (Princeton: Princeton University Press, 1975), 385–87; The Machiavellian Moment: Florentine Political Thought in the Atlantic Republican Tradition; and Kramnick, Isaac, Bolingbroke and His Circle: The Politics of Nostalgia in the Age of Walpole (Cornell: Cornell University Press, 1992).Google Scholar

12. Selden, John, Table-Talk: Being the Discourses of John Selden (London: printed for E. Smith, 1689), 4344.Google Scholar

13. Fortescue–Aland, John, preface to The Difference between an Absolute and Limited Monarchy… by Sir John Fortescue (London: W. Bowyer, 1714)Google Scholar, xii.

14. Thomas Jefferson, Equity Commonplace Book, Huntington Library Special Collections, Manuscripts Division, San Marino, CA, #1077; and Kames, Lord, Principles of Equity (Edinburgh: A. Kincaid and J. Bell, 1767)Google Scholar, 5.

15. Hume, David, “On the Origin of Government,” in Political Essays, ed. Haakonnsen, Knud (Cambridge: Cambridge University Press, 1994)CrossRefGoogle Scholar, 21.

16. Blackstone, William, Commentaries on the Laws of England (Oxford: Clarendon Press, 1768), 3:428–42Google Scholar. See Thomas Jefferson to Philip Mazzei, November 28, 1785, in Boyd, Julian P., ed. The Papers of Thomas Jefferson, (Princeton: Princeton University Press, 1954), 9:67–72Google Scholar; Lieberman, David, The Province of Legislation Determined: Legal Theory in Eighteenth Century Britain (Cambridge: Cambridge University Press, 1989)CrossRefGoogle Scholar, chap. 3, 6–7. On earlier debates over developments in equity, see Keeton, George William, An Introduction to Equity (London: Pitman, 1961)Google Scholar; Macnair, Michael, “Common Law and Statutory Imitations of Equitable Relief under the Later Stuarts,” in Communities and Courts and Britain, 115–1900, ed. Brooks, Christopher and Lobban, Michael (London: Hambledon, 1997), 115–31Google Scholar; Mark Fortier, The Culture of Equity in Early Modern England (Farnham: Ashgate, 2005); Carpi, Daniela, ed. The Concept of Equity: An Interdisciplinary Assessment, (Heidelberg: Winter, 2007)Google Scholar; and Cormack, Bradin, A Power to Do Justice: Jurisdiction, English Literature, and the Rise of the Common Law, 1509–1625 (Chicago: University of Chicago Press, 2007)Google Scholar, chap. 2.

17. Kames, Lord, “Of the Introduction of the Feudal Law into Scotland,” in Essays upon Several Subjects Concerning British Antiquities (Edinburgh: A. Kincaid, 1757)Google Scholar; and preface, Lord Kames, “History of the Criminal Law,” in Historical Law-Tracts (Edinburgh: A. Kincaid and J. Bell, 1758)Google Scholar. See Lieberman, David, “Property, Commerice, and the Common Law: Attitudes to Legal Change in the Eighteenth Century,” in Early Modern Conceptions of Property, ed. Brewer, John and Staves, Susan, (London: Routledge, 1994), 144–58; David LiebermanGoogle Scholar, The Legal Needs of a Commercial Society: The Jurisprudence of Lord Kames,” in Wealth and Virtue: The Shaping of Political Economy in the Scottish Enlightenment, ed. Hont, Istvan and Ignatieff, Michael (Cambridge: Cambridge University Press, 1983), 203–34CrossRefGoogle Scholar; and Lobban, Michael, “The Ambition of Lord Kames' Equity,” Law and History: Current Legal Issues 6 (2003): 97121.Google Scholar

18. John Peter Zenger's Case,” in Documents in American Legal and Constitutional History: Volume 1: From the Founding to 1896, 3rd ed., ed. Urofsky, Melvin I. and Finkelman, Paul (Oxford: Oxford University Press, 2007), 2936Google Scholar. As Stanley Katz shows, equity courts in New York and throughout the colonies were widely regarded by colonists as convenient, even necessary, but constitutionally suspect at the same time, and colonial suspicions of conciliar courts not authorized and controlled by their respective assemblies went hand in hand with resentments of royal gubernatorial use of the courts for collection of quitrents from colonial litigants: Katz, Stanley, “The Politics of Law in Colonial America: Controversies over Chancery Courts and Equity Law in the Eighteenth Century,” in American Law and the Constitutional Order: Historical Perspectives, ed. Freidman, Lawrence M. and Sheiber, Harry N. (Cambridge, MA: Harvard University Press, 1988), 4652Google Scholar. In Virginia, the tension between jurisdiction and operation was unique and particularly acute: there, the cultural significance of Anglicization informed an insistence that the colony possessed the legislative sovereignty to establish and operate a court of chancery, an insistence that was met with matching constitutional trepidation by imperial officials.

19. William Byrd, “Westover Manuscripts,” (1692–1739), MS collections of the Virginia Historical Society, Mss10: no. 50, 350–3; the offending piece was “A Short Discourse on the Present State of the Colonies in America, with Respect to the Interest of Great Britain … .,” in Sir Keith, William, A Collection of Papers and other Tracts written occasionally on Various Subjects, to which is prefixed, by way of Preface, An Essay on the Nature of a Publick Spirit (London, 1711)Google Scholar, 175.

20. Black, Barbara A., “The Constitution of Empire: The Case for the Colonists,” University of Pennsylvania Law Review, 124 (1976): 1157–211CrossRefGoogle Scholar; Tomlins, Christopher, Freedom Bound: Law, Labor, and Civic Identity in Colonizing English America, 1580–1685 (Cambridge: Cambridge University Press, 2010)CrossRefGoogle Scholar; and Yirush, Craig, Settlers, Liberty and Empire: The Roots of Early American Political Theory, 1675–1775 (Cambridge: Cambridge University Press, 2011).CrossRefGoogle Scholar

21. Coke, Sir Edward, “Calvin's Case, or the case of the Postnati,” in Selected Writings of Sir Edward Coke (Indianapolis: Liberty Fund, 2005)Google Scholar, 1:207. The further stipulation Coke makes, that common law rules of descent restrict the legality of royal action to change the laws of a historically conquered and inherited infidel territory by requiring the consent of Parliament, had, by the eighteenth century, become absorbed into the regular constitution of imperial governance. By Blackstone's time, it was Parliament that was in a position to execute such action in the first place.

22. Although God had given the “world to men in common,” that did not mean that the world was meant to remain “common and uncultivated” so that just possession of the world belonged to the “Industrious and Rational” for the purposes of ownership and cultivation: Locke, John, Second Treatise on Government, in Two Treatises of Government, ed. Laslett, Peter (Cambridge: Cambridge University Press, 1970)Google Scholar, 291; Arneil, Barbara, John Locke and America: The Defense of English Colonialism (Oxford: Oxford University Press, 1996)CrossRefGoogle Scholar; Tully, James, “The Two Treatises and Aboriginal Rights,” in An Approach to Political Philosophy: Locke in Contexts (Cambridge: Cambridge University Press, 1993), 137–76.CrossRefGoogle Scholar

23. Rana, Aziz, The Two Faces of American Freedom (Cambridge, MA: Harvard University Press, 2010).Google Scholar

24. Waldstreicher, David, Slavery's Constitution: From Revolution to Ratification (New York: Hill and Wang, 2009)Google Scholar; and Van Cleve, George William, A Slaveholder's Union: Slavery, Constitution, and Politics in the Early American Republic (Chicago: University of Chicago Press, 2010), 158CrossRefGoogle Scholar; Jack Greene draws particular attention to the Debt Recovery Act of 1732, whereby Parliament allowed creditors to consider property in land, and, thereby, in slaves as legitimate targets of repossession, and to Lord Dunmore's Proclamation of 1775, which offered emancipation to Virginian slaves who joined British efforts to subdue colonial resistance: Greene, Jack, The Constitutional Origins of the American Revolution (Cambridge: Cambridge University Press, 2010).CrossRefGoogle Scholar

25. Lieberman, David, The Province of Legislation Determined: Legal Theory in Eighteenth Century Britain (Cambridge: Cambridge University Press, 1989)CrossRefGoogle Scholar; Lobban, Michael, The Common Law and English Jurisprudence, 1760–1850 (Oxford: Oxford University Press, 1991), 71121Google Scholar; and Oldham, James, English Common Law in the Age of Mansfield (Chapel Hill: University of North Carolina Press, 2004).Google Scholar

26. Chief Justice Mansfield, Somerset v. Stewart (1772), in Documents in American Legal and Constitutional History: Volume 1: From the Founding to 1896, 2nd ed.Urofsky, Melvin I. and Finkelman, Paul (Oxford: Oxford University Press, 2002), 4445Google Scholar. As a young attorney, Jefferson had, to a certain extent, anticipated the argument in his failed attempt the free the grandchildren of a mulatto slave woman bound by the 1705 slave laws to serve until the age of 31, whose owner had claimed the same right over the lives of the offspring. Jefferson sought their freedom with the overarching logic that “under the law of nature, all men are born free.” Pointing to the fact that the 1705 slave law formalizing a shift from patrimonial to matrimonial transmission of servitude was a pact between the legislature and churchwardens over ownership of descendants of slave relationships, Jefferson stipulated that as the servitude was conventional, a condition of compact rather than nature or conquest, the terms of the compact did not extend to the grandchildren of the slaves in 1705. The argument was ineffective at best; Jefferson was not allowed to finish his argument before the judges interrupted and decided the case for the opposing side. He could not have been surprised, because in his argument he had broached a number of fundamental components of the jurisprudence prevalent in eighteenth century Virginia, engaging a language of natural jurisprudence and equity to admit the children of slaves to legal subjectivity, in his argument contextualizing and limiting the reach of laws and contracts by urging what we can legitimately recognize as equitable consideration in deciding the application of the statute. See Jefferson, Thomas, “Howell v. Netherland (April, 1770),” in Reports of Cases Determined in the General Court of Virginia, from 1730 to 1740 and 1766 to 1772 (Richmond: F. Carr & Co., 1829), 9096Google Scholar. It is, however, important not to overstate the significance of Jefferson's argument here; in his Notes on the State of Virginia (which he began writing slightly more than a decade later) we find Jefferson turning to conjoined languages of sociability, natural jurisprudence, and natural history to define African Americans out of the possibilities of legal personhood altogether. And there is a definite legal context to that retrenchment: the opening to legal personhood in revolutionary natural law language and, with it, the potential potency of Jefferson's particular use of equity had been significantly minimized in Virginia certainly by 1795, if not earlier. In none of the nine cases dealing directly and substantively with the question of slaves in Wythe's chancery reports is the language of equity or the powers of its jurisdiction used for any purpose other than settling the appropriate transmission of or compensation for slave property: see Wythe, Decisions, 13–33, 55–57. On Jefferson, Wythe, and slavery, see Noonan, John T., Persons and Masks of the Law: Wythe, Jefferson, Cardozo, and Homes as Makers of the Masks (New York: Farrar, Strauss, and Giroux, 1976)Google Scholar. It could be said that if equity in eighteenth century British jurisprudence aided in what David Lieberman has called the legal needs of a commercial society, in Virginia by the beginning of the nineteenth century, equity was helping meet the needs of a commercial society with slaves: Lieberman, The Province of Legislation Determined.

27. Blackstone, Commentaries on the Laws of England, 1:105.

28. Douglas Wilson and Kevin Hayes highlight the importance of the theoretical treatment of equity in the first part of Kames' Principles of Equity and as recorded in Jefferson's equity commonplace book (#1077–1131), pointing out that writings by Kames alone makes up nearly half of Jefferson's pages. However, it is equally important to point that the other sources all point to a practical use of established rules of precedent in chancery case law. As Dumbauld illustrates, Jefferson's limited interpolations in the text testify to that: see Eyton v. Eyton, Champernoon v. Grubbs, Foster v. Foster (#395, #398) in the extensive entries from Vernon, Thomas, Cases Argued and Adjudged in the High Court of Chancery (Dublin: J. Watts, 1726)Google Scholar, #22–618, 1812, Dumbauld, “Thomas Jefferson's Equity Commonplace Book,” 1267–69; see also Atkyns, John Tracy, Reports of Cases Argued and Determined in the High Court of Chancery in the Time of Lord Chancellor Hardwicke (London: H. Woodfall and W. Strahan, 1765)Google Scholar, vol. 1, #2000–2017. Hardwicke's jurisprudence as recorded in these and other reports would have been particularly important, as it established and asserted against critics of an independent jurisdiction of equity that equity as a branch of jurisprudence had developed its own system of maxims: see Lieberman, David, The Province of Legislation Determined: Legal Theory in Eighteenth Century Britain (Cambridge: Cambridge University Press, 1989), 7678CrossRefGoogle Scholar, 81–83.

29. That equity was, at the very least retrospectively, an important part of how Wythe thought about the nature of the constitutional conflict between Britain and her American colonies is evident in his extended footnote to the decision in the 1793 case between Carter Page and Edmund Pendleton, representatives of Archibald Cary and his British creditors, respectively, noted in note 1. Wythe finds for the creditors on the grounds of natural jurisprudence and laws independent of positive law, arguing in an extended footnote that by the logic of the argument of the plaintiff, all manner of persons could be excused from their obligation to constituted legal authority: “women, infants, and many others, deprived of suffrage, cannot, either by themselves or their representatives, be truly said to yield their assent to any law. They would not be permitted, if they should be willing, and even after, with any ceremony whatever, to declare their assent, and yet they are bound by the law… Without society, mankind, if they could exist and propagate, would be wretched; their native rights would be frequently violated; the enjoyment of private rights would be precarious; nor could society be preserved without civil institutions and regulations. Hence the obligation to observe and conform to those institutions, by the law of nature, devolves upon men, who could not consent to them,” Wythe, Decisions, 130n. Here, natural law in the context of the jurisdiction of equity serves to recognize an opening of legal personhood while declining to acknowledge legal subjectivity on the grounds of the same historically oriented natural jurisprudence that gave rise to the opening in the first place. It was precisely the nature of the question of who has the capacity for consent and for legal subjectivity around which the use and application of natural law language turned.

30. Nelson, Eric, “Patriot Royalism: The Stuart Monarchy in American Political Thought, 1769–75,” William and Mary Quarterly 68 (2011): 533–72CrossRefGoogle Scholar; see also Wood, Gordon, “The Problem of Sovereignty,” William and Mary Quarterly 68 (2011): 573577CrossRefGoogle Scholar. On attachment to the crown in colonial and revolutionary American political thought, see also McConville, Brendan, The King's Three Faces: The Rise and Fall of Royal America, 1688–1776 (Chapel Hill: University of North Carolina Press, 2006)Google Scholar. The most promising aspect of McConville and Nelson's respective arguments here is the implication of the genealogical origins of the strong presidency in the inability of American political culture and thought to experience the fruition its own republican aspirations without quickly and dramatically turning to a personage in place of the King as the center of political life, an implication that is helpful in understanding not only the enormous cultural force of George Washington, but the increases in the power of the presidency that result, perhaps paradoxically, from the plebiscite nationalisms of Thomas Jefferson and Andrew Jackson.

31. Bilder, Mary Sarah, The Transatlantic Constitution (Harvard University Press: Cambridge, MA, 2004)Google Scholar; Black, “The Constitution of Empire: The Case for the Colonists;” and Hulsebosch, Daniel J., Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664–1830 (University of North Carolina Press: Chapel Hill, 2005).Google Scholar

32. Paine, Thomas (Kramnick, Isaac, ed.), Common Sense, (New York: Penguin Classics, 1986)Google Scholar, 98.

33. Constitution of Pennsylvania, September 28 1776. http://avalon.law.yale.edu/18th_century/pa08.asp (April 29, 2012).

34. David Waldstreicher, Slavery's Constitution, 41.

35. Declaration of Independence, The Avalon Project, Yale Law School, 2008. http://avalon.law.yale.edu/18th_century/declare.asp (April 29, 2012); the public philosophy of the Declaration and the legal tradition of the equity touch bases in their foregrounding of the problem of identifying legitimate grounds for the exercise of legal and political judgment. Gary Wills was correct to suggest the importance of the Scottish Enlightenment to Jefferson's thought here; however, we can identify greater influence by different aspects of Scottish thought, especially the overall work of Kames and the later, more historically configured moral sense philosophies of Adam Smith and David Hume: see Fliegelman, Jay, Declaring Independence: Jefferson, Natural Language, and the Culture of Performance (Stanford: Stanford University Press, 1993)Google Scholar; and Onuf, Peter and Helo, Ari, “Jefferson, Morality, and the Problem of Slavery,” in, The Mind of Thomas Jefferson (Charllotesville: University of Virginia Press, 2006), 236–70.Google Scholar

36. Jefferson to George Wythe, January 16, 1796, in The Papers of Thomas Jefferson, ed. John Catanzariti, 28:583–585. The collections were essential to Jefferson's preparedness for taking up the colonial laws as part of the revisal committee: see Cullen, Charles T., “Completing the Revisal of the Laws of Virginia,” Virginia Magazine of History and Biography, 82 (1974): 8499.Google Scholar

37. Marshall, John, Accounts and Law Notes, Swem Library Special Collections, College of William and Mary, 1776Google Scholar; and Konig, David T., “Whig Lawyering in the Legal Education of Thomas Jefferson,” in Libraries, Leadership, and Legacies of Thomas Jefferson and John Adams, ed. Baron, Robert C. and Wright, Conrad Edick (Golden: Fulcrum Publishing, 2010), 97112Google Scholar. On Madison's reading notes in law and their importance for the development of his thought on the necessity of security, perspicuity, and authority in constitutional text, see Bilder, Mary Sarah, “James Madison, Law Student and Demi-Lawyer,” Law and History Review 28 (2010): 389449CrossRefGoogle Scholar, which is powerfully suggestive for a number of reasons, not the least of which is that we can trace the differences in Madison's and Jefferson's dialogue on the revision in fundamental law to different attitudes toward the textuality of that law as developed in their different experiences of reading law and its history.

38. Duane, James referenced by Adams, John (Butterfield, Lyman H., ed.), “Autobiography,”The Diary and Autobiography of John Adams, (Cambridge, MA: Harvard University Press, 1961)Google Scholar, 3:335.

39. Coke, “Coke upon Littleton (1628),” in Selected Writings and Speeches of Sir Edward Coke, 2: 617.

40. James Madison to Samuel H. Smith, November 4, 1826, Letters and Other Writings of James Madison (Philadelphia: J.B. Lippincott and Co., 1865)Google Scholar, 3:534.

41. Aubrey, John, Aubrey's Brief Lives (New York: Penguin, 1949)Google Scholar, 163. On Coke's reading notes and their impact on his writing, see Baker, John Hamilton, “Coke's Notebooks and the Sources of His Reports,” Cambridge Law Journal 30 (1972): 5986CrossRefGoogle Scholar; and Boyer, Allen D., “Sir Edward Coke, Ciceronianus: Classical Rhetoric and the Common Law Tradition,” International Journal for the Semiotics of Law, 10 (1997): 336.CrossRefGoogle Scholar

42. Jefferson to Bernard Moore, date unknown (c. 1770s), included in Jefferson to John Minor, August 30, 1814, in Writings, ed. Peterson, Merrill D., (New York: Library of America, 1984), 1558–59Google Scholar. On Jefferson's critique of Blackstone, see Waterman, Julia S., “Jefferson and Blackstone's Commentaries,” Illinois Law Review 27 (1932–33): 629–59Google Scholar, Konig, David T., “Legal Fictions and the Rule(s) of Law: The Jeffersonian Critique of Common Law Adjudication,” in The Many Legalities of Early America, ed. Tomlins, Christopher and Mann, Bruce H. (Chapel Hill: University of North Carolina Press, 2000), 97117.Google Scholar

43. Tucker, St. George, preface to Blackstone's Commentaries on the Laws of England (Philadelphia: William Young Birch and Abraham Small, 1803).Google Scholar

44. Pocock, The Ancient Constitution and the Feudal Law, 94–97, 125–27.

45. Soll, Jacob, Publishing the Prince: History, Reading, and the Birth of Political Criticism (Ann Arbor: University of Michigan Press, 2005)CrossRefGoogle Scholar, 13. In a sense, Jefferson's method of commonplacing was more classically humanist and Erasmian than Lockean, and he owned a 1663 edition of Erasmus' printed book of Latin commonplaces, the Adagiorum... Epitome; see Sowerby, Catalogue of the Library of Thomas Jefferson, #1363. As Kirstie McClure suggests, “the practice of commonplacing encouraged the decomposition of printed texts into fragments and their reassemblage,” see McClure, Kirste M., “Between the Castigation of Texts and the Excess of Words: Political Theory in the Margins of Tradition,” in Democracy and Vision: Sheldon Wolin and the Vissictititudes of the Political, ed. Botninick, Areyh and Connolly, William E. (Princeton: Princeton University Press, 2001)Google Scholar, 199. On the importance of the commonplace book in early modern educational theory and practice, see Moss, Ann, Printed Commonplace Books and the Structuring of Renaissance Thought (Oxford: Clarendon Press, 1996)CrossRefGoogle Scholar; Cormack, Bradin and Mazzio, Carla, Book Use, Book Theory: 1500–1700 (Chicago: University of Chicago Library, 2005), 7073Google Scholar; and Blair, Ann M., Too Much to Know: Managing Scholarly Information before the Modern Age (New Haven: Yale University Press, 2010).Google Scholar

46. Jefferson, “A Bill for Proportioning Crimes and Punishments Heretofore Capital,” in Papers of Thomas Jefferson, ed. Boyd, 2: 492–507. It is easy to miss, and, therefore, dismiss, the intellectual context of Jefferson's concern for the rich textuality of the law: see Dubber, Markus D., “An Extraordinarily Beautiful Document:' Jefferson's Bill for Proportioning Crimes and Punishments and the Challenge of Republican Punishment,” in Modern Histories of Crime and Punishment, ed. Dubber, Markus D. and Farmer, Lindsay (Stanford: Stanford University Press, 2007), 115–50.Google Scholar

47. On which, see Brewer, Holly, “Entailing Aristocracy in Colonial Virginia: ‘Ancient Feudal Restraints’ and Revolutionary Reform,” William and Mary Quarterly, 54 (1997): 307–46CrossRefGoogle Scholar; and Curtis, Christopher Michael, Jefferson's Freeholders and the Politics of Ownership in the Old Dominion (Cambridge: Cambridge University Press, 2012).CrossRefGoogle Scholar

48. Jefferson to the Abbé Arnoux, July 19, 1789, Papers of Thomas Jefferson, 15:282–83; and Stimson, Shannon C., The American Revolution in the Law: Anglo-American Jurisprudence Before John Marshall, ed. Julian P. Boyd (Princeton: Princeton University Press, 1990), 8788.Google Scholar

49. Thomas Jefferson, “Jefferson's Third Draft,” Papers of Thomas Jefferson, ed. Julian P. Boyd 1:364.

50. Jefferson to James Madison, December 20, 1787, Papers of Thomas Jefferson, ed. Julian P. Boyd 12:441.

51. Jefferson, Thomas (Shuffleton, Frank, ed.), Notes on the State of Virginia, (New York: Penguin, 1999)Google Scholar, 155.

52. Ibid., 275; James Tully has read the educational and epistemological writings of John Locke in the context of different modes of implementing a particular kind of subjectivity, and to use Tully's analysis, we can see Jefferson following in Locke's footsteps, particularly in his concern to “impress” on the minds of the young, even while Jefferson persists in maintaining a particularly civic humanist bent on the education of the subject in a juridical polity, a subject measured in his capacity for critically engaged, historical, civic judgment against the assumed incapacity, or at least unequal capacity, of others, or in Jefferson's case specifically, African American slaves. See Tully, James, “Governing Conduct: Locke on the Reform of Thought and Behavior” and “Rights in Abilities,” in An Approach to Political Philosophy: John Locke in Contexts (Cambridge: Cambridge University Press, 1993), 233–34CrossRefGoogle Scholar, 252.

53. Jefferson, Notes on the State of Virginia, 129–30, 149.

54. Ibid., 144.

55. Jefferson, “Autobiography,” in Writings, Merrill D. Peterson, ed. (New York: Library of America, 1984), 38.

56. Jefferson to James Madison, September 6, 1789, The Papers of Thomas Jefferson, 15:392; on Jefferson's intellectual debts to the British doctor Richard Gem and their correspondence on generational liberty, see editorial note and correspondence, ibid., 384–399; and Sloan, Herbert E., Principle and Interest: Thomas Jefferson and the Problem of Debt (Oxford: Oxford University Press, 1995).Google Scholar

57. Jefferson, “Jefferson's Third Draft,” Papers of Thomas Jefferson, 1:362; Jefferson's belief in the fundamental importance of an equitable distribution of property stemmed from republican concepts of the importance of propertied independence to liberty and the necessity of relative equality for maintaining the public spirit of a democratic government, concepts he absorbed from his reading of Montesquieu's Sprit of the Laws: see Montesquieu, Des L'Espirit des Loix, Nouvelle Edition (Paris: Barrillot and Fils, 1749), 1:68–70Google Scholar; Jefferson, Legal Commonplace Book, Thomas Jefferson Papers, Series 5, Library of Congress, Manuscript Division, Washington DC, 1762–1767, #777–778; and Nelson, Eric, The Greek Tradition in Republican Thought (Cambridge: Cambridge University Press, 2004), 200–9.CrossRefGoogle Scholar

58. Jefferson continues: “The descent of property therefore to all the children, or to all the brothers and sisters, or other relations in equal degree, is a politic measure and a practicable one. Another means of silently lessening the inequality of property is to exempt all from taxation below a certain point, and to tax the higher portions or property in geometrical progression as they rise. Whenever there are in any country uncultivated lands and unemployed poor, it is clear that the laws of property have been so far extended as to violate natural right. The earth is given as a common stock for man to labor and live on. If for the encouragement of industry we allow it to be appropriated, we must take care that other employment be provided to those excluded from the appropriation. If we do not, the fundamental right to labor the earth returns to the unemployed,” Jefferson to Madison, October 28, 1785, Papers of Thomas Jefferson, 8:682; see Stanley N. Katz, “Thomas Jefferson and the Right to Property in Revolutionary America,” Journal of Law and Economics 19 (1976): 467–88CrossRefGoogle Scholar; Republicanism and the Law of Inheritance in the American Revolutionary Era,” Michigan Law Review 76 (1977–1978): 129CrossRefGoogle Scholar; Nedelsky, Jennifer, Private Property and the Limits of American Constitutionalism (Chicago: University of Chicago Press, 1990)Google Scholar; Schultz, David, “Political Theory and Legal History: Conflicting Depictions of Property in the American Political Founding,” The American Journal of Legal History 37 (1993): 464–95CrossRefGoogle Scholar; and Eric Nelson, who refers quite rightly to this passage as “perhaps the only genuinely proto-socialist statement to issue from the pen of an American founding father,” The Greek Tradition in Republican Thought, 206.

59. Jefferson to John Adams, August 15, 1820, Cappon, Lester J., ed. The Adams–Jefferson Correspondence (Chapel Hill: University of North Carolina Press, 1959)Google Scholar, 567.

60. Jefferson to John Waldo, August 16, 1813, Looney, J. Jefferson, ed. The Papers of Thomas Jefferson: Retirement Series, (Princeton: Princeton University Press, 2009)Google Scholar, 6:402.

61. Jefferson to Philip Mazzei, November 28, 1785, Papers of Thomas Jefferson, ed. Julian P. Boyd 9:68.

62. David Lieberman, “The Legal Needs of a Commercial Society: The Jurisprudence of Lord Kames,” in Wealth and Virtue, 203–34.

63. It is important to note here that the practical jurisdiction of equity, understood as it was by Adam Smith and Lord Kames to be the jurisprudential aspect of the science of humanity, is at some distance from the Aristotelian framework of attending to the purpose, end, or telos naturally and essentially inherent in a thing. Both Smith and Kames understood justice and utility as possibly competing goals that equitable consideration was meant to exercise proprietary judgment in balancing rather than simply restoring to natural harmony. See Smith, Adam, The Theory of Moral Sentiments (Edinburgh: A. Kincaid and J. Bell, 1759), 146–48Google Scholar, Kames, Principles of Equity, 373–74: John Robertson, “The Scottish Enlightenment at the Limits of the Civic Tradition;” Nicholas Phillipson, “Adam Smith as Civic Moralist;” Pocock, J.G.A., “Cambridge Paradigms and Scotch Philosophers: A Study of the Relations Between the Civic Humanist and the Civil Jurisprudential Interpretation of Eighteenth Century Social Thought,” in Wealth and Virtue: The Shaping of Political Economy in the Scottish Enlightenment, ed. Hont, Istvan and Ignatieff, Michael, (Cambridge: Cambridge University Press, 1983) 137202Google Scholar, 235–52; Burchell, Graham, “Peculiar Interests: Civil Society and the Governing ‘The System of Natural Liberty,” in The Foucault Effect: Studies in Governmentatlity, ed. Burchell, Gordon, Colin, and Miller, Peter (Chicago: University of Chicago Press, 1991), 119–50CrossRefGoogle Scholar; and Rothschild, Emma, Economic Sentiments: Adam Smith, Condorcet, and the Enlightenment (Cambridge, MA: Harvard University Press, 2001), 712Google Scholar, 88–115.

64. Smith, The Theory of Moral Sentiments, 435–436.

65. On the increased importance of propriety in usage where particular language has been unmoored from its metaphysical bearings, see Locke, John (Nidditch, Peter H., ed.), An Essay Concerning Human Understanding, (Oxford: Oxford University Press, 1975), 476–79Google Scholar; and Dawson, Hannah, Locke, Language, and Early Modern Philosophy (Cambridge: Cambridge University Press, 2007)CrossRefGoogle Scholar. See also Glat, Mark, “John Locke's Historical Sense,” Review of Politics 43 (1981): 321CrossRefGoogle Scholar. On the concept of propriety in Locke, Montesquieu, Adam Smith, John Stuart Mill and Thomas Hill. Green, see Kelley, Duncan, The Propriety of Liberty: Persons, Passions, and Judgment in Modern Political Thought (Princeton: Princeton University Press, 2011).Google Scholar

66. Jefferson to Mazzei, November 28, 1785, Papers of Thomas Jefferson, ed. Julian P. Boyd, 9:70.

67. Jefferson, ibid., 71.

68. Stimson, The American Revolution in the Law: Anglo-American Jurisprudence before John Marshall, 94–105; and LaCroix, Alison, The Ideological Origins of American Federalism (Cambridge, MA: Harvard University Press, 2010).Google Scholar