We think of James Madison as a political theorist, legislative drafter, and constitutional interpreter. Recent scholarship has fought fiercely over the nature of his political thought. Unlike other important early national leaders—John Adams, Alexander Hamilton, Thomas Jefferson, John Marshall, Edmund Randolph, James Wilson—law has been seen as largely irrelevant to Madison's intellectual biography. Madison, however, studied law and, at least in one extant manuscript, took careful notes. These notes have been missing for over a century, and their loss contributed to the sense that Madison must not have been that interested in law. Now located, these notes reveal Madison's significant grasp of law and his striking curiosity about the problem of language. Madison's interest in interpretation is certainly not news to scholars. These notes, however, help to establish that this interest predated the Constitution and that his interest in constitutional interpretation was an application of a larger interest in language. Moreover, Madison thought about the problem of legal interpretation as a student of law, never from the secure status of lawyer. Over his lifetime, he advocated a variety of institutional approaches to constitutional interpretation, and this comfort with nonjudicial interpreters, along with a peculiar ambivalence about the proper location of constitutional interpretation, may owe a great deal to his self-perception as a law student but never a lawyer.
1. Compare James Madison Museum, http://www.jamesmadisonmus.org/resource.htm (listing occupation as “planter and politician”); Miller Center, University of Virginia, http://millercenter.org/academic/americanpresident/madison (listing career as “lawyer”); White House 101, http://www.whitehouse.gov/about/presidents/jamesmadison (describing him as “well-read in law”); U.S. Constitution Online, http://www.usconstitution.net/constframedata.html (listing occupation as a “politician”). For lists, see Pierce, William, “Character Sketches of Delegates to the Federal Convention,” in Records of the Federal Convention, ed. Farrand, Max (1911; New Haven, Conn.: Yale University Press, 1966), 3:87–97 (legal references to twenty-five Framers); Vidal, Gore, Imperial America: Reflections on the United States of Amnesia (New York: Nation Books, 2004), 132 (thirty-three Framers were lawyers); Sol Bloom, “Questions and Answers Pertaining to the Constitution,” The United States National Archives and Records Administration (http://www.archives.gov/exhibits/charters/constitution_q_and_a.html) (thirty-four probably had studied law).
2. For recent overviews of the extensive debate, see Bernstein, R. B., The Founding Fathers Reconsidered (Oxford: Oxford University Press, 2009), 148–67; Treanor, William Michael, “Taking Text Too Seriously: Modern Textualism, Original Meaning, and the Case of Amar's Bill of Rights,” Michigan Law Review 106 (2007): 487–543; see also Natelson, Robert, “The Founders' Hermeneutic: The Real Original Understanding of Original Intent,” Ohio State Law Journal 68 (2007): 1239, 1240n2 (collecting secondary source treatments of the subject); Maggs, Gregory E., “The Federalist Papers as a Source of the Original Meaning of the United States Constitution,” Boston University Law Review 87 (2007): 801–42; Sirico, Louis J. Jr., “Original Intent in the First Congress” Missouri Law Review 71 (2006): 687–719. Discussions of Madison and constitutional interpretation have focused on his post-Convention views; see, for example, Rakove, Jack N., “Mr. Meese, Meet Mr. Madison,” in Interpreting the Constitution: The Debate over Original Intent, ed. Rakove, Jack P. (Boston: Northeastern University Press, 1990), 179–94; Rakove, Jack N., Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Alfred A. Knopf, 1996); Dewey, Donald O., “James Madison Helps Clio Interpret the Constitution,” American Journal of Legal History 15 (1971): 38. One of the few studies of Madison's writing style is Schaedler, Louis C., “James Madison, Literary Craftsman,” William and Mary Quarterly 3 (1946): 515–33.
3. On legal literacy, see Bilder, Mary Sarah, “The Lost Lawyers: Early American Legal Literates and Transatlantic Legal Culture,” Yale Journal of Law and the Humanities 11 (1999): 47.
4. Rakove, Original Meanings, 343.
5. See Legal Papers of John Adams, ed. L. Kinvin Wroth and Hiller B. Zobel (Cambridge, Mass.: Belknap, 1965), 1:1–25 (reprinting his student Notes c. 1758 and his Commonplace Book c. 1759); The Law Practice of Alexander Hamilton: Documents and Commentary, ed. Julius Goebel Jr. and Joseph H. Smith (New York: Columbia University Press, 1964), vol. 1; Jefferson, Thomas, The Commonplace Book of Thomas Jefferson, ed. Chinard, Gilbert (Baltimore: Johns Hopkins University Press, 1926); Papers of John Marshall, ed. Herbert A. Johnson (Chapel Hill: University of North Carolina Press, 1974), vol. 1; see also Smith, Joseph, “Review of Papers of John Marshall,” Columbia Law Review 75 (1975): 687, 690–91; Cullen, Charles T., “New Light on John Marshall's Legal Education and Admission to the Bar,” American Journal of Legal History 16 (1972): 345; Swindler, William F., “John Marshall's Preparation for the Bar—Some Observations on His Law Notes,” American Journal of Legal History 11 (1967): 207.
6. See, for example, Labunski, Richard, James Madison and the Struggle for the Bill of Rights (Oxford: Oxford University Press, 2006), 88–89.
7. Ketcham, Ralph, James Madison: A Biography (1971; Charlottesville: University of Virginia Press, 1990), 145; see also ibid., 56 (stating that he “never intended to practice, and he never qualified as a counsel-at-law”). For similar comments, see Rakove, Jack, James Madison and the Creation of the American Republic, 3rd ed. (New York: Pearson/Longman, 2007), 34 (noting “Madison resumed reading law, but with no more idea of practicing than he had shown a decade earlier”); Cerami, Charles, Young Patriots (Naperville, Ill.: Sourcebooks, 2005), 16 (declaring “his training soon qualified him to practice law, but … Madison decided against the grubby business of representing clients whose routine affairs held little interest for him.”); Wills, Gary, James Madison (New York: Times Books, 2002), 88 (making no mention of Madison's law reading); Banning, Lance, The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic (Ithaca, N.Y.: Cornell University Press, 1995), 80–81 (suggesting reasons Madison did not follow a law career); Rutland, Robert Allen, James Madison: The Founding Father (New York: Macmillan, 1987), 5–6 (noting “Madison was no lawyer”) and index entry at 282 (“disdains legal career”); Adair, Douglass, Fame and The Founding Fathers, ed. Colburn, Trevor (New York: W. W. Norton, 1974), 130 (describing Madison's disinclination towards the practice of law); Brant, Irving, James Madison (Indianapolis, Ind.: Bobbs-Merrill, 1941–1961), 1:111–12 (referring to “Madison's much-controverted study of law”), 2:309–310, 336–37 (emphasizing interest in government over common law); Adair, Douglass, “James Madison's Autobiography,” William and Mary Quarterly 2 (1945): 195–96 (only briefly mentioning his study of law). Exceptions are Morris, Richard B., Witnesses at the Creation: Hamilton, Madison, Jay, and the Constitution (New York: Holt, Rinehart and Winston, 1985), 95 (declaring Madison a “deep student of law, particularly international law and political theory”), and Berger, Raoul, “Jack Rakove's Rendition of Original Meaning,” Indiana Law Journal 72 (1997): 619, 621 (Madison had studied law for years).
8. A related problem befalls those of us with PhDs who teach in law schools and wonder whether we should or should not describe ourselves as historians.
9. See Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 136 (1810): “It is the peculiar province of the legislature, to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other departments.”
10. Bryson, W. Hamilton, Legal Education in Virginia, 1779–1979: A Biographical Approach (Charlottesville: University Press of Virginia, 1982), 17.
11. Letter to the Editor, Virginia Gazette, December 30, 1773, quoted in Bryson, Legal Education in Virginia, 20.
12. Jefferson, Thomas, “Autobiography” (1821), in The Works of Thomas Jefferson, ed. Ford, Paul L. (New York: G. P. Putnam's, 1904), 1:3, 71 (describing Madison's efforts to shepherd the Virginia revisal bill despite the “endless quibbles, chicaneries, perversions, vexations and delays of lawyers and demi-lawyers”).
13. Adair, “James Madison's Autobiography,” 191.
14. Ibid., 197.
15. Ibid., 198.
16. Ibid., 200.
17. His library eventually had nearly 4,000 volumes. Most were sold by John Payne Todd.
18. See Jones, Alfred E., American Members of the Inns of Court (London: Saint Catherine, 1924); Bryson, Legal Education in Virginia; Alan M. Smith, “Virginia Lawyers, 1660–1776: The Birth of an American Profession” (PhD diss., John Hopkins University, 1967).
19. See Bryson, W. H., “Legal Education,” in Virginia Law Books: Essays and Bibliographies, ed. Bryson, W. Hamilton (Philadelphia: American Philosophical Society, 2000), 335–39.
20. Madison to William Bradford, December 1, 1773, The Papers of James Madison, ed. Robert A. Rutland and William M. E. Rachal (Chicago: University of Chicago Press, 1962) [hereafter PJM], 1:100.
22. Ibid., 101.
23. Brant, James Madison, 2:13 (quoting Diary of Thomas Rodney, March 10, 1781).
24. “List of Books Reported by a Committee,” Papers of the Continental Congress, 1784–1789 (National Archives), Roll 196, item 183. “Law of Nature and Nations” included works on the law of nature (Grotius, Puffendorf, Vatel, Burlamaqui, Selden, Bynkershoek, Barbyrac), the law merchant, law of the sea (Grotius, Selden, Molloy, Lee), prizes, and legislation of European countries. Some of these works were on Madison's college reading list. See Thompson, Dennis F., “The Education of a Founding Father: The Reading List for John Witherspoon's Course in Political Theory, as Taken by James Madison,” Political Theory 4 (1976): 523–29.
25. On the list, see Rutland, Robert A., “Well Acquainted with Books”: The Founding Framers of 1787 (Washington, D.C.: Library of Congress, 1987); Glynn, Tom and Hagensick, Craig C., “Books for the Use of the United States in Congress Assembled, 1783 and 1800,” Libraries & Culture 37 (2002), 109–22. Towards the end of Madison's work on the list, Jefferson arrived in Philadelphia and likely shared his library list. See Koch, Adrienne, Jefferson and Madison: The Great Collaboration (1950; Gloucester, Mass.: Peter Smith, 1970), 7–14. Although other sections of the list show Jefferson's influence, scholars presume little Jefferson influence in the law section (Rutland, “Well Acquainted,” 29–30 [Robert L. Scribner introduction]). For additional discussion, see PJM, 6:64–65.
26. See Tyler, Moses Coit, Patrick Henry (Boston: Houghton, Mifflin, 1894), 20–25.
27. Papers of John Marshall, 1:37–41; Cullen, “New Light,” 345.
28. See Rev. James Madison to Madison, August 2, 1782, PJM, 5:16—“I hope you have not laid aside your Attention to the Law, for it seems absolutely necessary here to give Importance to an active Character, as well as the most profitable Business one can be engaged in.”
29. See Brant, James Madison, 2:283–87 (discussing the affair in a chapter titled, “Romance”).
30. Jefferson to Madison, April 14, 1783, PJM, 6:459.
31. See, for example, Wills, James Madison, 5–6 (stating that “Madison was so humiliated by this rejection that he later scored out the passage” discussing the breakup). Madison may have been trying to protect his wife of nearly forty years, Dolley Madison, to whom he intended to leave his papers.
32. See Didier, Eugene L., “Thomas Jefferson as a Lawyer,” Green Bag 15 (1903): 153 (describing how Jefferson turned to law after “disappointment in love,” the end of his relationship with Rebecca Burwell).
33. Adair, “James Madison's Autobiography,” 198.
34. See Brant, James Madison, 2:307–9, 338–42; Ketcham, James Madison, 141–42.
35. See Writings of James Madison, Comprising his Public Papers and his Private Correspondence, ed. Gaillard Hunt (New York: G. P. Putnam's Sons, 1900–1910) [hereafter WJM], 2:46n1 (August 19, 1784); Brant, James Madison, 2:324 (dating deed to August 1784).
36. Madison to Edmund Randolph, July 26, 1785, PJM, 8:328; see Ketcham, James Madison, 146–49.
37. Jefferson to Thomas Mann Randolph, July 6, 1787, The Papers of Thomas Jefferson, ed. Julian P. Boyd (Princeton, N.J.: Princeton University Press, 1950–) [hereafter PTJ], 11:556, 557, 558.
38. Madison to Jefferson, December 10, 1783, PJM, 7:401.
39. Madison to Randolph, March 10, 1784, PJM, 8:3.
40. Madison to Jefferson, February 11, 1784, PJM, 7:418–19.
41. Rives, William C., Life and Times (Boston: Little, Brown & Company, 1859–1868; reprint, 1970), Life and Times, 2:7–38.
42. Madison to Lafayette, March 20, 1785, PJM, 8:250, 254.
43. Madison to Randolph, July 26, 1785, PJM, 8:327, 328.
44. See Madison to Jefferson, December 10, 1783, PJM, 7:401 (describing sending “draught on your library”).
45. Rives, Life and Times, 2:19.
46. See McCoy, Drew, Last of the Fathers (Cambridge: Cambridge University Press, 1989), 331–32.
47. Jefferson to John Garland Jefferson, June 11, 1790, PTJ, 16:481; Jefferson to James Monroe, June 11, 1790, PTJ, 16:483; 487–88 (arranging the books and mentioning Coke); see also letter to Nicholas Lewis, June 11, 1790 (referring to lending books to Garland Jefferson).
48. Jefferson to Thomas Mann Randolph, August 27, 1786, PTJ, 10:305, 307.
49. Ibid.; see Jefferson to John Garland Jefferson, June 11, 1790, PTJ, 16:480–82: “all that is necessary for a student is access to a library, and directions in what order the books are to be read.”
50. See Jefferson to John Minor, August 30, 1814, Writings of Thomas Jefferson, ed. Paul L. Ford (New York: G. P. Putnam's, 1898), 9:480–85; Jefferson to Dabney Terrell, February 26, 1821, Writings of Thomas Jefferson, ed. H. A. Washington (Washington, D.C.: Taylor & Maury, 1854), 7:208–9; Cohen, M. L., “Thomas Jefferson Recommends a Course of Law Study,” University of Pennsylvania Law Review 119 (1971): 823–44.
51. PTJ, 16:481; see also Jefferson to Herault, July 5, 1787, PTJ, 11:547, 548 (containing Thomas Jefferson's list for a “law library as suffices for lawyers of the ordinary class in England or America” and including the 1773 edition of Salkeld's Reports).
52. Madison to Edmund Randolph, March 10, 1784, PJM, 8:3 (“Co: Litt:”).
53. Madison to Thomas Jefferson, March 16, 1784, PTJ, 7:32, 37. Jefferson searched almost every book shop in Philadelphia for “Hawk’ abr' Co. Lit.” to no avail. Jefferson to James Madison, May 25, 1784, PJM, 8:42. Jefferson owned a copy of the 1751 edition (E. Millicent Sowerby, Catalogue of the Library of Thomas Jefferson [Washington, D.C., 1952–1959], 2:219 [no. 1785]).
54. Madison to Randolph, March 10, 1784, PJM, 8:3.
55. William Bradford to Madison, November 5, 1773, PJM, 1:98. Madison referred to “the course and dry study of the Law.” He hastened to add that it was not a “barren dessert [sic]” because “the Law does bear fruit but it is sour fruit that must be gathered and pressed and distilled before it can bring pleasure or profit” (Madison to Bradford, January 24, 1774, PJM, 1:104, 105; Bradford to Madison, March 4, 1774, PJM, 1:108, 109 [discussing the appeal of money, “Golden fruit,” but bemoaning the “the dry Pages of Little and Coke”]).
56. Farrand, Records, 2:448 (August 29 [Madison's Notes]).
57. Raymond, Robert, Reports of cases argued and adjudged in the courts of King's Bench and Common Pleas, 2nd ed. (London: H. Woodfall and W. Strahan; for T. Osborne, 1765).
58. Lord Chief Justice Reeve to his Nephew [containing instructions for the study of law], Hargrave, Francis, Collectanea Juridica (London: E. and R. Brooke, 1791), 1:79, 80; see Portrait of a Patriot: The Major Political and Legal Papers of Josiah Quincy Junior, ed. Daniel R. Coquillette and Neil Longley York (Boston: Colonial Society of Massachusetts, 2007), vol. 2 (The Law Commonplace), 2:89–90 (including Reeve's instructions); Story, Joseph, “Course of Legal Study” (N. A. Review, 1817) in The Miscellaneous Writings of Joseph Story, ed. Story, William (Boston: C. C. Little and J. Brown, 1852), 66, 74 (discussing Reeve's letter).
59. See, for example, New-York Daily Gazette, May 9, 1789, [114:453] (announcement of James Rivington, a prominent New York bookseller, that he had “Salkeld, with many of the reports, and law writers.”).
60. See Newmyer, R. Kent, Supreme Court Justice Joseph Story (Chapel Hill: University of North Carolina Press, 1985), 42 (emphasizing order in which Salkeld came among the first reports read).
61. Van Vechten Veeder, , “The English Reports, 1292–1865,” Harvard Law Review 15 (1901): 1, 19.
62. Ibid., 17–19 (emphasizing that Lord Hardwicke had supervised publication).
63. See Wallace, John William, The Reporters: Arranged and Characterized with Incidental Remarks, 4th ed. (Boston: Soule and Bugbee, 1882), 399–400; Sweet and Maxwell's A Legal Bibliography of the British Commonwealth of Nations, ed. W. Harold Maxwell and Leslie F. Maxwell (1955: 2nd ed., London: John Rees, 1989), 1:308.
64. See Wallace, Reporters, 399 (criticizing some of the cases for being too short).
65. Salkeld, William, Reports of cases adjudg'd in the Court of King's Bench; with some special cases in the courts of Chancery, Common Pleas and Exchequer (London: Eliz. Nutt and R. Gosling, 1717–1718), 2:411 (distinguishing uninhabited countries “found out and planted” by English subjects and conquered countries).
66. See Hulsebosch, Daniel, Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664–1830 (Chapel Hill: University of North Carolina Press, 2005), 1–74; Bilder, Mary Sarah, The Transatlantic Constitution: Colonial Legal Culture and the Empire (Cambridge: Harvard University Press, 2004), 31–40; Bilder, Mary Sarah, “English Settlement and Local Governance,” in The Cambridge History of Law in America, ed. Tomlins, Christopher and Grossberg, Michael (Cambridge: Cambridge University Press, 2008): 1:96–103; Leslie, William R., “Similarities in Lord Mansfield's and Joseph Story's View of Fundamental Law,” American Journal of Legal History 1 (1957): 278.
67. Salkeld, Reports, 2:666.
68. Ibid. The case ended with the comment—the Attorney General noted that it had been an inheritance rather than sale and “nothing was done” (ibid).
69. See, for example, John Adams (Adams Library 1724 edition with minor annotations (Adams 72.9) and 1731 edition with significant annotations (Adams 72.10), Boston Public Library); John Chambers (Johnson, Herbert A., “John Jay: Lawyer in a Time of Transition, 1764–1775,” University of Pennsylvania Law Review 124 (1976): 1260, 1282); Charles Chauncey (inscription in 1773 edition, Yale University, MORRIS catalog entry); Benjamin Chew (e-mail correspondence from Phillip Seitz, Cliveden); Eliphalet Dyer (inscription in 1722 edition, Yale University, MORRIS catalog entry); Oliver Ellsworth (inscription in 1717 edition, Yale University, MORRIS catalog entry); Thomas Gibbons (inscription in 1773 edition, e-mail correspondence from Laura Stalker, Huntington Library); James Grindlay (Johnson, Herbert A., Imported Eighteenth-Century Law Treatises in American Libraries, 1700–1799 [Knoxville: University of Tennessee Press, 1978], 68); Matthew Griswold (inscription in volume 3 of 1724 and 1742 editions, Yale University, MORRIS catalog entry); John Jay (Johnson, “John Jay,” 1282); Samuel Johnston (The John Johnston Donaldson Collection, Thurgood Marshall Law Library); Peter Leigh (Johnson, Imported Eighteenth-Century, 86); Nathaniel Newdigate (Bilder, Transatlantic Constitution, 235–237n24); William Smith Sr. (Hoffer, Peter, “Law and Liberty: In the Matter of Provost William Smith of Philadelphia, 1758,” William and Mary Quarterly 38 (1981): 681, 686n22; John Trumbull (1717 edition, Indiana Law Library, e-mail from Keith Buckley, Reference/Collection Development Librarian); John Worthington inscription in 1742 edition (Yale University, MORRIS catalog entry); William Wylly (e-mail from Laura Stalker, Huntington Library); Jaspar Yeates (e-mail correspondence from Heather Tennies, Director of Archival Services, Lancaster County Historical Society; Rengier, John, “The Law in Judge Jasper Yeates's Library,” Journal of the Lancaster County Historical Society 62 : 96–108). For additional Virginia owners, including King Carter, Henry Churchill, George Johnston, John Mercer, John Tarpley, and John Waller, see Bryson, William H., Census of Law Books in Colonial Virginia (Charlottesville: University of Virginia Press, 1978), xii, 13; Johnson, Imported Eighteenth-Century, 79; see also Bryson, “Private Law Libraries,” in Virginia Law Books, 482 (counting thirteen copies in colonial Virginia law libraries).
70. Salkeld, Reports (1731) (Adams 72.10, Boston Public Library), 2:667, http://www.archive.org/stream/reportsofcasesad00grea#page/666/mode/2up.
71. Sowerby, Catalogue, 2:345–46 [No. 2073]. In 1770, the library that Jefferson used while studying law at his parents' home burned. He noted that the loss “‘fell principally on my books of Common Law, of which I have but one left, at that time lent out.’” Chinard, The Commonplace Book, 1 (quoting Jefferson). Jefferson's Catalog of Books (1783) has a “2” in the listing for the number of volumes of Salkeld carefully converted to a “3,” suggesting that Jefferson originally owned a two-volume edition (“1783 Catalog of Books,” Thomas Jefferson Papers: An Electronic Archive [Massachusetts Historical Society], 126, http://www.masshist.org/thomasjeffersonpapers/catalog1783/); see also Wilson, Douglas, “Sowerby Revisited: The Unfinished Catalogue of Thomas Jefferson's Library,” William and Mary Quarterly 41 (1984): 615, 619. A letter to Archibald Stuart, July 20, 1795, seems to imply a sale of a copy of Salkeld Reports. Jefferson to Archibald Stuart, PTJ, 28:410.
72. Madison to Randolph, March 10, 1784, PJM, 8:3.
73. Madison to Thomas Jefferson, February 17, 1784, PJM, 7:421.
74. Jefferson to James Madison, May 25, 1784, PTJ, 7:288.
75. Bailyn, Bernard, To Begin the World Anew: The Genius and Ambiguities of the American Founders (New York: Knopf, 2003), 103.
76. Dill, Alonzo Thomas, George Wythe: Teacher of Liberty (Williamsburg: Virginia Independence Bicentennial Commission, 1979), 44.
77. Hughes, Robert M., “William and Mary: The First American Law School,” William and Mary Quarterly 2 (1922): 40, 41 (quoting John Brown, February 15, 1780).
78. Editorial Note, PJM, 8:163–64.
79. PJM, 8:163.
80. Jefferson to James Madison, January 22, 1786, PJM, 8:472 (commenting on the ninety-seven-day session and the revisal). Indeed, in February 1784, as Madison read law, he was corresponding with Jefferson about the possibility of reintroducing Jefferson's revision of Virginia law (Madison to Thomas Jefferson, Feb. 11, 1784, PJM, 7:419).
81. See Schmidt, Frederika Teute and Wilhelm, Barbara Ripel, “Early Pro-Slavery Petitions in Virginia,” William and Mary Quarterly 30 (1976): 133, 135 (describing 52–35 vote against repeal and failed efforts for statewide abolition).
82. Madison to James Madison Sr., January 6, 1785, PJM, 8:216, 217.
83. Madison to Jefferson, January 22, 1785, PJM, 8:236 (bottom half of letter cut off); see Brandt, James Madison, 2:337 (discussing letter). The Madison Papers approximate the dates as January 7 to 22. Chronology, PJM, 8:xxviii.
84. PJM, 8:237. Jefferson and de Chattelux were the prior recipients. Randolph would be subsequently given an honorary degree.
85. Smith, Virginia Lawyer, 261–66, 294–96, 350.
86. Madison to Randolph, July 26, 1785, PJM, 8:328.
87. Ibid.; see Ketcham, James Madison, 146–48.
88. George Ticknor Curtis, Life of Daniel Webster (New York: D. Appleton and Co., 1893), 44.
89. Charles Warren, A History of the American Bar (Boston: Little, Brown, 1911), 187.
90. Rives, Life and Times, 1:526.
91. Ibid., 512, 524.
92. Inman Horner to W. C. Rives, November 27, 1858, William C. Rives Papers, Manuscript Division, Library of Congress, Box 90, Folder, November 1858. Horner had a “Law Library.” I. Horner's Will, Will Book 29 (Fauquier County, VA), 33 (clause 7 referring to “Law Books”). The Library was appraised at $700.00. J. Horner Appraisal, Will Book 29, at 110, 112 (recording “Law Library”).
93. Horner to Rives, November 27, 1858; see PJM, 1:70.
94. I. Horner Notes, Mss. 2988, McGregor Collection: Madison family, Box 4 (Special Collections, University of Virginia Library). Rives used Horner's comments. Compare Horner, Notes: “If he adopted the Law as a profession, his rank at the Bar would have been coequal with is eminence as a Statesman,” with Rives, Life and Times, 1:526— Madison “gave such proof of the depth and accuracy of those attainments, even in the most abstruse and recondite parts of the law, as to leave no doubt that, if he had made it his profession, he could not have failed to attain the very highest eminence in it.” Rives may have intended that the second volume section on Madison “resumes his Literary, Legal, and Scientific Studies” would further analyze the manuscript (Rives, Life and Times, 2:ix).
95. PJM, 1:70. They added that “to conclude that he took them when he was reading law in the early 1770's is at best no more than a reasonable assumption” (PJM, 1:71).
96. See Thomas Jefferson Papers, series 7, vol. 5, Library of Congress: American Memory, http://memory.loc.gov/ammem/collections/jefferson_papers/mtjser7.html.
97. Notes on Salkeld, The Thomas Jefferson Papers (Library of Congress) [hereafter TJP] series 7, vol. 5, http://memory.loc.gov/cgi-bin/ampage?collId=mtj7&fileName=mtj7page059.db&recNum=284&itemLink=/ammem/mtjhtml/mtjser7.html&linkText=6 (listed as Thomas Jefferson, Notes on “Salkeld's Reports”) [hereafter Notes]. It is not known whether the Library of Congress made the identification or whether the Jefferson attribution was made prior to the gift. The Notes are listed in the Index to the Thomas Jefferson Papers (Washington, D.C.: Library of Congress, 1976): xix, 75. The volume does not appear to be referenced or reprinted in the Papers of Thomas Jefferson. The bound volume contains two other manuscripts, “in an unknown handwriting,” “An act further to amend the judicial system of the United States,” and “An act to punish certain offences against the United States” (LC description). I have transcribed the Notes from digital images. I have not expanded the thorn or other abbreviations. Regardless of form, I have rendered all s's as s. Madison's capitalization and punctuation is hard to discern. I have not shown interlineations as such. See Stevens, Michael E. and Burg, Steven B., Editing Historical Documents: A Handbook of Practice (Walnut Creek, Calif.: Altamira, 1997). 127–45. The editors of the Madison Papers could produce a much improved version.
98. The Papers of Thomas Jefferson's chronological series focuses on correspondence and public papers. The undated legal notes thus would have fallen, regardless of authorship, outside of the scope of the series. Moreover, Jefferson never seems to have mentioned them in his correspondence. My thanks for this information to Barbara Oberg and W. Bland Whitley at The Papers of Thomas Jefferson.
99. They are not mentioned in Dewey's work on Jefferson as a lawyer, in Wilson's work on Jefferson's early Notebooks, in Dumbauld's work on Jefferson's Equity Commonplace, or in Chinard's edition of the Legal Commonplace. See Dewey, Frank L., Thomas Jefferson: Lawyer (Charlottesville: University Press of Virginia, 1986), 130–43 (describing Jefferson's law practice manuscripts in various collections); Dumbauld, Edward, “Thomas Jefferson's Equity Commonplace Book,” Washington and Lee Law Review 48 (1991): 1257, 1259; Wilson, Douglas L., “Jefferson's Early Notebooks,” William and Mary Quarterly 42 (1985): 433, 449.
100. Horner's description of cases listed under “Abatement” match the cases selected in the Notes. His description of page numbers matches the pages in the Notes. Lastly, quoted portions of the transcription match the Notes (I. Horner Notes, Mss. 2988, McGregor Collection: Madison family, Box 4 [Special Collections, University of Virginia Library], 4 pp).
101. See e-mail correspondence from Barbara Bair (April 3, 2007) (on file with author).
102. She is listed as the sister of James Clark McGuire in the New York Social Blue Book (1930), http://www.bklyn-genealogy-info.com/Directory/Blue/1930.BlueM.html. The McGuires acquired many of Madison's manuscripts from John Payne Todd, Madison's stepson (Eaton, Dorothy C., Provenance, Index to the Madison Papers [Washington, D.C.: Library of Congress, 1965], http://lcweb2.loc.gov/ammem/collections/madison_papers/mjmabout2.html). Many papers were auctioned in 1892 after James McGuire's death, but other manuscripts remained in family hands and eventually were given to the Library of Congress.
103. Although the Notes theoretically could be those of a third person, this essay compares the more probable two authors, Madison and Jefferson. The most plausible alternative would be Edmund Randolph. Randolph and Madison were nearly the same age, best friends, and close correspondents. Randolph usually had an upstroke on the t in the and to. Madison more commonly wrote t with either only a downstroke or the upstroke nearly imperceptible. However, Randolph also almost always gave a left-trailing tail on final y and g. Madison rarely tended towards this convention. Another word that usually differs between the two is The. Randolph almost always seems to start the connection to the h from the bottom of the T; Madison usually strokes back part way up the T before connecting to the h. Lastly, Randolph usually connects the minuscule serpentine s at the beginning of a word with the following letter; Madison and the Notes author does not. With respect to the Notes, compare constitution in the Notes, 16 (Borough v. Perkins) with its cursive s with the serpentine s in Randolph's Draft for the Committee of Detail; see Meigs, William M., The Growth of the Constitution in the Federal Convention of 1787 (Philadelphia: J. B. Lippincott, 1900), at [between 316 and 317].
104. Thomas Jefferson, Legal Commonplace Book, TJP, series 5 [hereafter Jefferson, LCB], entries 1–695, http://memory.loc.gov/cgi-bin/ampage?collId=mtj5&fileName=mtj5page059.db&recNum=2&itemLink=/ammem/mtjhtml/mtjser5.html&linkText=6; http://memory.loc.gov/cgi-bin/ampage?collId=mtj5&fileName=mtj5page059.db&recNum=149&itemLink=%2Fammem%2Fmtjhtml%2Fmtjser5.html&linkText=6.
105. Thomas Jefferson, Equity Commonplace Book (Huntington Library) [hereafter Jefferson, ECB]. The listing for the microfilmed copy refers to it as Commonplace Book, 1765–1766. The Equity Commonplace is 171 pages and includes Salkeld's Reports and at least six other reports.
106. In the Legal Commonplace, Jefferson's notes on Salkeld run from entry 79 to 241. Jefferson next turned to read Raymond's Reports (Jefferson, LCB, 10v, 29r). In the Equity Commonplace, the entries run from 1 to 21. Jefferson only begins to emphasize the head with entry 92 (Bailments); see Jefferson, LCB, 12r. The Commonplaces have been dated to 1765–1767. Jefferson began the Equity Commonplace Book while taking notes on Salkeld's Reports, likely between entry 113 and 114 (Wilson, Douglas, “The Handwriting of the Literary Commonplace Book,” in Jefferson's Literary Commonplace Book, ed. Wilson, Douglas L. [Princeton, N.J.: Princeton University Press, 1989], 199). In 1774, Jefferson ceased to practice but resumed practice briefly in 1783; see Wylie, John Cook, “The Second Mrs. Wayland: An Unpublished Jefferson Opinion on a Case in Equity,” American Journal of Legal History 9 (1965): 65. His later interest in law focused on the collection of early Virginia laws (Kimball, Marie, Jefferson: The Road to Glory, 1743 to 1776 [1943; Westport, Conn.: Greenwood, 1977)], 96–97).
107. Wilson, “Handwriting,” 194.
108. Because the first part of the Legal Commonplace bears the closest resemblance to the Notes, examples of differences have been drawn from this section. For detailed discussion of Jefferson, see Wilson, “Handwriting,” 191–207; Marie Kimball, Jefferson; see also Wilson, “Thomas Jefferson's Early Notebooks,” 440. The page numbers following quotations refer to Wilson, “Handwriting.” In the early 1760s, Jefferson's hand slants “noticeably to the right” (191), although by the time of his law notes the “slant to the right is … much less pronounced” (192); the Notes hand has almost no slant. Compare Jefferson, LCB, 1[v], http://memory.loc.gov/cgi-bin/ampage?collId=mtj5&fileName=mtj5page059.db&recNum=3&itemLink=/ammem/mtjhtml/mtjser5.html&linkText=6; with Notes, 7, http://memory.loc.gov/cgi-bin/ampage?collId=mtj7&fileName=mtj7page059.db&recNum=292&itemLink=/ammem/mtjhtml/mtjser7.html&linkText=6. In the late 1760s, Jefferson's hand crosses t “without lifting the pen from the paper” (192); the Notes hand crosses t with a separate stroke. In 1767–1772, Jefferson suppressed the long s, used a serpentine s often connected at the top to the following letter, and then abandons the serpentine s for the cursive s (193). The Notes hand does not suppress the long s, uses a serpentine initial s and a cursive final s, and does not consistently connect the serpentine s to the following letter. Compare Jefferson, LCB, 2[r], http://memory.loc.gov/cgi-bin/ampage?collId=mtj5&fileName=mtj5page059.db&recNum=4&itemLink=/ammem/mtjhtml/mtjser5.html&linkText=6; with Notes, 10, http://memory.loc.gov/cgi-bin/ampage?collId=mtj7&fileName=mtj7page059.db&recNum=295&itemLink=/ammem/mtjhtml/mtjser7.html&linkText=6. In 1770–1772, Jefferson used “open or spread” ascenders in l, b, t (194); the Notes hand does not have such ascenders. Other differences beyond Wilson/Kimball description are noticeable. Jefferson almost always has an open loop in the minuscule y; the Notes has a simple downstroke. Compare Jefferson, LCB, 3[v], http://memory.loc.gov/cgi-bin/ampage?collId=mtj5&fileName=mtj5page059.db&recNum=7&itemLink=/ammem/mtjhtml/mtjser5.html&linkText=6; with Notes, 6, http://memory.loc.gov/cgi-bin/ampage?collId=mtj7&fileName=mtj7page059.db&recNum=291&itemLink=/ammem/mtjhtml/mtjser7.html&linkText=6.
109. For example, a Jefferson citation: Howard v. Tremaine, Salkeld, 1:278. The same citation in Notes: Howard v. Tremaine 4 W & M (3); see Salkeld, Reports (3rd ed.), 1:278. The Legal Commonplace includes Blankard and Smith (the two colonial cases); the Notes omit both of them (suggesting post-independence authorship).
110. Compare Jefferson, LCB, with Notes. Jefferson seems more likely to have used the first or second editions and, as discussed below, the Notes author a later edition. Jefferson's notes on Salkeld contain almost no citations aside from those to Lord Raymond. The first and second editions contained relatively few citations. Jefferson may have added the citations to Raymond himself because they do not always match the citations to Lord Raymond added to later editions. See, for example, Jefferson, LCB, 25 [No. 185] Greeves v. Rolls (Jefferson citing to 1 Raym. 718; fifth edition citing to 1 Ld. Raym. 706).
111. Wilson, “Jefferson's Early Notebooks,” 440, 435; see Wilson, “Handwriting,” 193. For examples of round and Italian hands, see Nash, Ray, American Writing Masters and Copybooks: History and Bibliography through Colonial Times (Boston: Colonial Society of Massachusetts, 1959), plates III–V.
112. See, for example, “In James Madison's Early Hand, Biblical Quotation, Nov. 22, 1772,” James Madison Papers (Library of Congress) [hereafter JMP], http://memory.loc.gov/cgi-bin/ampage?collId=mjm&fileName=01/mjm01.db&recNum=51&itemLink=r?ammem/mjm:@FIELD(DOCID+@BAND(@lit(mjm011994).
113. See, for example, Madison, Notes for Speech, Virginia House of Delegates (1784), JMP, http://memory.loc.gov/cgi-bin/ampage?collId=mjm&fileName=02/mjm02.db&recNum=302&itemLink=D?mjm:66:./temp/~ammem_yfp0::; Madison, Notes on Debate on Bill for Relig Estabt proposed by Mr Henry (Oct.-Nov. 1785), JMP, http://memory.loc.gov/cgi-bin/ampage?collId=mjm&fileName=02/mjm02.db&recNum=517&itemLink=D?mjm:21:./temp/~ammem_jKf2::; [Madison], Citizens' “Memorial and Remonstrance” to Virginia (July 28, 1785), JMP, http://memory.loc.gov/cgi-bin/ampage?collId=mjm&fileName=02/mjm02.db&recNum=448&itemLink=S?ammem/mjm:@FIELD(AUTHOR+@od1(+citizens%27+memorial+and+remonstrance++to+virginia+)).
114. See Notes, 21, http://memory.loc.gov/cgi-bin/ampage?collId=mtj7&fileName=mtj7page059.db&recNum=306&itemLink=%2Fammem%2Fmtjhtml%2Fmtjser7.html&linkText=6. His Notes for Plan of Government (1788) also reveal use of the “yt” and “ye.” Madison, Notes for Plan of Government (1788), JMP, http://memory.loc.gov/cgi-bin/ampage?collId=mjm&fileName=03/mjm03.db&recNum=879&itemLink=r?ammem/mjm:@FIELD(DOCID+@BAND(@lit(mjm023429))).
115. PJM, 8:xxiii. My appreciation to David Mattern of the Madison Papers for bringing the editors' comment to my attention. As is evident from the transcript of the Madison's Notes, even his rewritten Convention notes contained similar references; see, for example, Documentary History of the Constitution of the United States, 1786–1870, (Washington, D.C.: Department of State, 1900), 3:248, 324.
116. For Stat., compare Notes, 38 (near bottom of page), http://memory.loc.gov/cgi-bin/ampage?collId=mtj7&fileName=mtj7page059.db&recNum=323&itemLink=%2Fammem%2Fmtjhtml%2Fmtjser7.html&linkText=6, with Madison, Extracts … Sheffield (1780) bound with Notes on Exports and Navigation (1769), JMP, http://memory.loc.gov/cgi-bin/ampage?collId=mjm&fileName=28/mjm28.db&recNum=1695&itemLink=D?mjm:3:./temp/~ammem_xTKW:: (near bottom of page). For Parliam t, compare Notes, page 37 (under Parliament), http://memory.loc.gov/cgi-bin/ampage?collId=mtj7&fileName=mtj7page059.db&recNum=322&itemLink=%2Fammem%2Fmtjhtml%2Fmtjser7.html&linkText=6, with Madison, [Notes on Charters of Incorporation,] verso of Resolution and Notes on Opening and Repair of Roads (1784–1785) (right column near top third), JMP, http://memory.loc.gov/cgi-bin/ampage?collId=mjm&fileName=02/mjm02.db&recNum=308&itemLink=r?ammem/mjm:@FIELD(DOCID+@BAND(@lit(mjm012448))). For habeas corpus, compare Notes, 32, http://memory.loc.gov/cgi-bin/ampage?collId=mtj7&fileName=mtj7page059.db&recNum=317&itemLink=%2Fammem%2Fmtjhtml%2Fmtjser7.html&linkText=6, with Madison, Notes for a Speech on Revising 1776 Virginia Constitution (June 1784), JMP, http://memory.loc.gov/cgi-bin/ampage?collId=mjm&fileName=02/mjm02.db&recNum=182&itemLink=r?ammem/mjm:@FIELD(DOCID+@BAND(@lit(mjm012402))). For Case of, compare Notes, 19, http://memory.loc.gov/cgi-bin/ampage?collId=mtj7&fileName=mtj7page059.db&recNum=304&itemLink=%2Fammem%2Fmtjhtml%2Fmtjser7.html&linkText=6, with Madison, Notes for Debate on Trade and Paper Money in Virginia Legislature (Nov. 1786), JMP, http://memory.loc.gov/cgi-bin/ampage?collId=mjm&fileName=02/mjm02.db&recNum=794&itemLink=r?ammem/mjm:@FIELD(DOCID+@BAND(@lit(mjm012075))), and Madison, [Notes on Charters of Incorporation,] verso of Resolution and Notes on Opening and Repair of Roads (1784–1785), JMP, http://memory.loc.gov/cgi-bin/ampage?collId=mjm&fileName=02/mjm02.db&recNum=308&itemLink=r?ammem/mjm:@FIELD(DOCID+@BAND(@lit(mjm012448))); see PJM, 8:467–69. For necessary, compare Notes, 32 (under first case), http://memory.loc.gov/cgi-bin/ampage?collId=mtj7&fileName=mtj7page059.db&recNum=317&itemLink=%2Fammem%2Fmtjhtml%2Fmtjser7.html&linkText=6, with Madison, Notes for Debate on Trade and Paper Money in Virginia Legislature (Nov. 1786), JMP, http://memory.loc.gov/cgi-bin/ampage?collId=mjm&fileName=02/mjm02.db&recNum=794&itemLink=r?ammem/mjm:@FIELD(DOCID+@BAND(@lit(mjm012075))). For judge with Madison's distinct J, compare Notes, 34, http://memory.loc.gov/cgi-bin/ampage?collId=mtj7&fileName=mtj7page059.db&recNum=319&itemLink=%2Fammem%2Fmtjhtml%2Fmtjser7.html&linkText=6, with Madison, Notes on Debate on Bill for Relig Estabt proposed by Mr. Henry and JM (Oct.-Nov. 1785), JMP, http://memory.loc.gov/cgi-bin/ampage?collId=mjm&fileName=02/mjm02.db&recNum=517&itemLink=D?mjm:21:./temp/~ammem_jKf2.
117. See, for example, Brief System of Logick (1763–1765), JMP, http://memory.loc.gov/cgi-bin/ampage?collId=mjm&fileName=28/mjm28.db&recNum=1620&itemLink=/ammem/collections/madison_papers/mjmser6.html&linkText=6; Ancient & Modern Confederacies [1787?], JMP, http://memory.loc.gov/cgi-bin/ampage?collId=mjm&fileName=02/mjm02.db&recNum=1035&itemLink=r?ammem/mjm:@FIELD(DOCID+@BAND(@lit(mjm01278))).
118. PTJ, 7:451; see Wills, James Madison, 162.
119. See, for example, Mosteller, Frederick and Wallace, David L., Applied Bayesian and Classical Inference: The Case of the Federalist Papers, 2nd ed. (New York: Springer-Verlag, 1984).
120. See Mosteller and Wallace, Applied Bayesian, 195, 243–48 (discussing variations among texts).
121. Ibid., 244, 252.
122. Notes, 5 (Harrison v. Cage).
123. Notes, 24 (Bunter v. Coke).
124. Compare Salkeld, Reports (3rd ed.), 1:71; Notes, 9 (Anon.) (awards should not be set aside for “want of notice of the meeting. Also you shall not take exceptions to the formality of it.”).
125. The Notes measure approximately 10.1 inches by 7.5 inches. The paper has ten chain lines. Much of the paper appears to have a watermark with a GR on it. Page 7 is marked T. French. Similar types of paper appear in Madison's Philadelphia Convention Notes. See Hutson, James H., “The Creation of the Constitution: The Integrity of the Documentary Record,” Texas Law Review 65 (1986): 1, 27–30. The watermark evidence itself is inconclusive as Jefferson also used similar papers.
126. Beck, Karen S., “One Step at a Time: The Research Value of Law Student Notebooks,” Law Library Journal 91 (1999): 29.
127. Even Jefferson's Commonplace receives only brief citation; see, for example, Cornell, Saul, “A New Paradigm for the Second Amendment,” Law and History Review 22 (2004): 163 (referring to Jefferson's “fondness to Beccaria”); Keller, Linda, “The American Rejection of Economic Rights as Human Rights and the Declaration of Independence: Does the Pursuit of Happiness Require Basic Human Rights,” New York Law School Journal of Human Rights 19 (2003): 571; Staab, James B., “The Tenth Amendment and Justice Scalia's ‘Split Personality,’” Journal of Law and Politics 16 (2000): 245 (referring to belief that humans are social animals); Banner, Stuart, “When Christianity Was Part of the Common Law,” Law and History Review 16 (1998): 27, 53–54.
128. See Jefferson, Commonplace Book (Chinard), 3.
129. See Jefferson, Commonplace Book (Chinard), 14–16 (noting these sources “only serve to show with what care and thoroughness Jefferson had prepared himself for the bar”), 76–81 (listing cases). Chinard did reprint 231 (Smith v. Brown and Cooper) and 242 (R. v. Tucker) (ibid., 15, 80–81).
130. Grounds & Rudiments, TJP, Series 5, http://memory.loc.gov/cgi-bin/ampage?collId=mtj5&fileName=mtj5page059.db&recNum=318&itemLink=%2Fammem%2Fmtjhtml%2Fmtjser5.html&linkText=6. The manuscript seems to be a copy of the maxim heads in The grounds and rudiments of law and equity, alphabetically digested: containing a collection of rules or maxims (1749).
131. George Washington, Forms of Writing, George Washington Papers (Library of Congress) [hereafter GWP], ser. 1A (despite title, pages 2–24 contain law materials), http://lcweb2.loc.gov/cgi-bin/ampage?collId=mgw1&fileName=mgw1a/gwpage001.db&recNum=0&tempFile=./temp/~ammem_aQat&filecode=mgw&next_filecode=mgw&itemnum=1&ndocs=100; George Washington, 1778, Extracts from John Mercer's 1737 Abridgment of the Public Acts, ser. 8d (containing twenty-eight pages of legal materials), GWP, http://lcweb2.loc.gov/cgi-bin/ampage?collId=mgw8&fileName=mgw8d/gwpage001.db&recNum=2&tempFile=./temp/~ammem_7ZBY&filecode=mgw&next_filecode=mgw&itemnum=1&ndocs=100.
132. See, for example, Jacob Hubley, Commonplace Book of Law, 1754–1768, Princeton University, Gen. Mss. No.. 533; Thomas Gibbons, Law Notebook of Thomas Gibbons, 1788 (Drew University Archives) (likely of Gibbons v. Ogden fame); [Charles Carroll], [Commonplace book] [1750–1770] (Thurgood Marshall Law Library, University of Maryland) (7 vols.).
133. See, for example, Clanchy, M. T., From Memory to Written Record: England, 1066–1307, 2nd ed. (1979; Cambridge: Blackwell, 1993); Ong, Walter J., Orality and Literacy: The Technologizing of the Word (London: Methuen, 1982); Monaghan, E. Jennifer, Learning to Read and Write in Colonial America (Amherst: University of Massachusetts Press, 2005); Hellinga, Lotte and Trapp, J. B., eds., The Cambridge History of the Book in Britain (Cambridge: Cambridge University Press, 1998–2002), vol. 3; Thornton, Tamara Platkin, Handwriting in America: A Cultural History (New Haven, Conn.: Yale University Press, 1996); A History of the Book in America, Vol. 1: The Colonial Book in the Atlantic World, ed. Hugh Amory and David D. Hall (Cambridge: Cambridge University Press, 2000); Hall, David D., Cultures of Print: Essays in the History of the Book (Amherst: University of Massachusetts Press, 1996); Brown, Richard D., Knowledge Is Power: The Diffusion of Information in Early America, 1700–1865 (Oxford: Oxford University Press, 1989); Raven, James, The Business of Books: Booksellers and the English Book Trade, 1450–1850 (New Haven, Conn.: Yale University Press, 2007); Rubin, Joan Shelley, “What Is the History of the History of the Book?” Journal of American History 90 (2003): 555; Blair, Ann, “Humanist Methods in Natural Philosophy: The Commonplace Book,” Journal of the History of Ideas 53 (1992): 541. For works specifically on law notebooks, see Commonplace Books of Law: A Selection of Law-Related Notebooks from the Seventeenth Century to the Mid-Twentieth Century, ed. Paul Pruitt and David Durham (Tuscaloosa: University of Alabama School of Law, 2005); Brophy, Alfred L., “The Law Book in Colonial America,” Buffalo Law Review 51 (2003): 1119; Hoeflich, M. H., “The Lawyer as Pragmatic Reader: The History of Legal Common-Placing,” Arkansas Law Review 55 (2003): 87–122; Beck, “One Step at a Time,” 29.
134. The Legal Commonplace Book of Thomas Jefferson, ed. David Konig and Michael Zuckert (in development for inclusion in the Second Series, The Papers of Thomas Jefferson). For use of the commonplace, see, for example, Lockridge, Kenneth A., On the Sources of Patriarchal Rage: The Commonplace Books of William Byrd and Thomas Jefferson and the Gendering of Power in the Eighteenth Century (New York: New York University Press, 1992).
135. Portrait of a Patriot, vol. 2 (The Law Commonplace); Coquillette, Daniel R., “Legal Education of a Patriot: Josiah Quincy Jr.'s Law Commonplace (1763),” Arizona State Law Journal 39 (2007): 317–76.
136. Portrait of a Patriot, 2:75.
137. See, for example, McDonald, Forrest, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence: University Press of Kansas, 1985), 9–55, 111–13 (relying on Blackstone as source for English common-law thought).
138. See Natelson, Robert G., “Judicial Review of Special Interest Spending: The General Welfare Clause and the Fiduciary Law of the Founders,” Texas Review of Law and Politics 11 (2007): 249n39 (providing statistical evidence of dominance of Blackstone and Coke). A Westlaw search for articles mentioning “Salkeld's Reports” produced eleven results. The only ones to discuss the work in relation to a constitutional question were Natelson, “Judicial Review”; Davies, Thomas Y., “What Did the Framers Know, and When Did they Know It? Fictional Originalism in Crawford v. Washington,” Brooklyn Law Review 71 (2005): 105; Wetmore, Edward, “Patent Law,” Yale Law Journal 17 (1907): 101 (Salkeld contained the first reported patent case). Articles referring, however, to cases in Salkeld's Reports (Salk.) are numerous.
139. See, for example, Natelson, “The Founders' Hermeneutic”; Meyler, Bernadette, “Towards a Common Law Originalism,” Stanford Law Review 59 (2005): 551; Powell, H. Jefferson, “The Original Understanding of Original Intent,” Harvard Law Review 98 (1984): 894–902; Lofgren, Charles A., “The Original Understanding of Original Intent?” Constitutional Commentary 5 (1988): 77. A significant debate over the common- law interpretive tradition involves the relevance of common-law interpretive methodologies for legislation; see, for example, Manning, John F., “Textualism and the Equity of the Statute,” Columbia Law Review 101 (2001): 1; Baade, Hans W., “‘Original Intent’ in Historical Perspective: Some Critical Glosses,” Texas Law Review 69 (1991): 1001.
140. Recent effort to establish readership include Arcila, Fabio Jr., “In the Trenches: Searches and the Misunderstood Common-Law History of Suspicion and Probable Cause,” University of Pennsylvania Journal of Constitutional Law 10 (2007): 1; Davies, “What Did the Framers Know,” 105. For discussion with respect to the Court and the foreign precedent question, see O'Scannlain, Diarmuid F., “What Role Should Foreign Practice and Precedent Play in the Interpretation of Domestic Law,” Notre Dame Law Review 80 (2005): 1893. Because of the extensive publication of eighteenth-century criminal cases, common-law decisions appear often in discussions of constitutional criminal procedure.
141. Jefferson, ECB, 171.
142. Portrait of a Patriot, 2:21–23.
143. Ong, Walter J., “Writing Is a Technology That Restructures Thought,” in The Written Word: Literacy in Transition, ed. Baumann, Gerd (Oxford: Oxford University Press, 1986), 23, 38.
144. Rolle, Henry, Un abridgment des plusiers cases et resolutions del common ley: alphabeticalment digest desouth severall titles (London: A. Crooke, 1668) (copy in EEBO has preface added at end of copy, [quotation at 8]) (attributed to Hale by Francis Hargrave); see Havens, Earle, Commonplace Books: A History of Manuscripts and Printed Books from Antiquity to the Twentieth Century (New Haven, Conn.: Yale University, 2001), 38–39.
145. Ann Blair, “Note Taking as an Art of Transmission,” Critical Inquiry (2004), http://criticalinquiry.uchicago.edu/features/artsstatements/arts.blair.htm.
148. Allan, David, “A Reader Writes: Negotiating The Wealth of Nations in an Eighteenth-Century English Commonplace Book,” Philological Quarterly 81 (2002): 207, 226.
149. Salkeld, William, Reports of cases adjudged in the Court of King's Bench; with some special cases in the courts of Chancery, Common Pleas and Exchequer, 3rd ed. ([London]: E. and R. Nutt and R. Gosling, (assigns of E. Sayer, Esq;) for J. Walthoe, 1731–1732), 1:title page [hereafter Salkeld, Reports (3rd ed.).] The ESTC number is T097360 and the Gale Document Number on Eighteenth-Century Collections Online is CW106867468 (vol. 1) and CW106867892 (vol. 2). A third volume of cases appeared in 1724 and later editions. No material from the third volume appears in the Notes.
150. Salkeld, William, Reports of cases adjudg'd in the Court of King's Bench; with some special cases in the courts of Chancery, Common Pleas and Exchequer (London: Eliz. Nutt and R. Gosling, 1717–1718), 1:6, 1:27. The ESTC number is T097358 and the Gale Document Number on Eighteenth-Century Collections Online is CW124034935 (vol. 1) and CW124035360 (vol. 2). The case, Holman v. Waldon, was reported in that edition as Waldon v. Holman, whereas later editions listed it as Madison copied. Birkmyr v. Darnell was listed as Bourkermire; Madison wrote the former.
151. Salkeld, William, Reports of cases adjudged in the Court of King's Bench; with some special cases in the courts of Chancery, Common Pleas and Exchequer, 2nd ed. ([London]: Eliz. Nutt, and R. Gosling, (assigns of Edw. Sayer, Esq;) for J. Walthoe; and J. Walthoe Jr., 1721–1722), 1:6 (Holman v. Warden with no citations) with Notes, 1 (Holman v. Warden with citations to 1 Inst. 2a Noy 135). The ESTC number is T097359 and the Gale Document Number on Eighteenth Century Collections Online is CW124040138 (vol. 1) and CW125289115 (vol. 2).
152. Salkeld, Reports (3rd ed.), 1:6 (Holman v. Warden has marginalia citations beginning with citations to 1 Inst. 3a and ending with Noy 135). Other citations do not appear in the first and second edition; see, for example, the reference to Co. Lit. 303 in the first case, Duncombe v. Church. In the third edition, the running head and some misnumbering may have confused Madison. Erby v. Erby was numbered as (1) even though it was number (3); Madison listed it as (0) and neglected to include Assets and Assignment (ibid., 1:79–81; Notes, 11).
153. Salkeld, William, Reports of cases adjudged in the Court of King's Bench: with some special cases in the courts of Chancery, Common Pleas and Exchequer, 4th ed. (London: Henry Lintot (assignee of Edward Sayer, Esq.) for T. Osborne, 1742), 1:79–80 (Erby listed as (3)). The ESTC number is T150070 and the Gale Document Number on Eighteenth Century Collections Online is CW124829655 (vol. 1) and CW124149692 (vol. 2).
154. Salkeld, William, Reports of cases adjudged in the Court of King's Bench: with some special cases in the courts of Chancery, Common Pleas, and Exchequer, 5th ed. (London: W. Strahan and M. Woodfall; for Edward Johnston, 1773). The ESTC number is T108112 and the Gale Document Number on Eighteenth Century Collections Online is CW124151040 (vol. 1) and CW124151306 (vol. 2). None of the substantive notes added to the fifth edition appear to be in the Notes.
155. On humanistic commonplacing, see Havens, Commonplace Books: A History of the Book in America, vol. 1; Wilson, “Thomas Jefferson's Early Notebooks,” 433. On law commonplacing, see Hoeflich, “Lawyer,” 87–122; Holdsworth, W. S., “Charles Viner and the Abridgments of English Law,” Law Quarterly Review 39 (January 1923): 17–39; Konig, David, “Legal Fictions and the Rule(s) of Law: The Jeffersonians Critique of Common-Law Adjudication,” The Many Legalities of Early America, ed. Mann, Bruce H. and Tomlins, Christopher L. (Chapel Hill: University of North Carolina Press, 2001), 97–117; Beck, “One Step at a Time,” 31–32. On the influence of Blackstone, see Nolan, Dennis R., “Sir William Blackstone and the New American Republic: A Study of Intellectual Impact,” New York University Law Review 51 (1976): 731; see also Brophy, “The Law Book in Colonial America,” 1119; Ross, Richard J., “Memorial Culture of Early Modern English Lawyers: Memory as Keyword, Shelter, and Identity, 1560–1640,” Yale Journal of Law & the Humanities 10 (1998): 229, 281–95 (discussing seventeenth-century organizational methods).
156. For printed guides, see Sowerby, Catalogue, 2:227 [No. 1802] (describing Giles Jacob's Common Law Commonplaced ). For manuscripts, see ibid., 2:224 [No. 1795] (Abridgment of the Common Law, 364 pages apparently in a seventeenth-century hand in an alphabetical arrangement beginning with “Forfeiture”); 2:225 [No. 1797] (Common-place Book, 228 pages containing excerpts from various treatises).
157. Sir John Randolph, Common-place Book, TJP, series 8, vol. 4; Sowerby, Catalogue, 2:225 [No. 1798]; Jefferson, “1783 Catalog,” 104, http://www.masshist.org/thomasjeffersonpapers/catalog1783/.
158. Horner to Rives, November 27, 1858.
160. See, for example, Viner, Charles, A General Abridgment of Law and Equity, Alphabetically digested under proper Titles (Aldershot: printed for the author, 1741–1753:title page.
161. See, for example, [Brewster, Samuel], A Brief Method of the Law: being an exact Alphabetical Disposition of all the Heads Necessary for a Perfect Common-place: Useful to all Students and Professors of the Law (London: Assignees of Richard and Edward Atkins for John Kidgell, 1680) (the subtitle emphasized that it had been “Printed in this Volume for the conveniencey of Binding with Common-place-books”); A collection of heads and titles proper for a common place-book in law and equity. interspers'd with many useful words for the benefit of references to the titles (London: E. and R. Nutt and R. Gosling for J. Worrall, 1733).
162. The first case discussed is Duncombe v. Church; the last case is Tochins Case (Notes, 1, 40).
163. See Johnson, Herbert A., Imported Eighteenth-Century Law Treatises in American Libraries, 1700–1799 (Knoxville: University of Tennessee Press, 1978), 59.
164. Nelson, William, An abridgment of the common law: being a collection of the principal cases ([London], E. and R. Nutt and R. Gosling for R. Gosling, 1725–1726), 1:[title page].
165. Jacob, Giles, The Common Law Common-plac'd: containing, The Substance and Effect of all the Common Law Cases … collected as well from Abridgments as Reports, in a perfect new Method, 2nd ed. (London, E. and R. Nutt and R. Gosling for F. Clay, 1733); see also An attorney's practice common-plac'd … ([London]: Henry Lintot, 1743); Crompton, George, Practice common-placed: or, the rules and cases of practice in the courts of King's Bench and Common Pleas, methodically arranged (London: W. Strahan and M. Woodfall, 1780).
166. Bacon, Matthew, A new abridgment of the law ([London]: E. and R. Nutt and R. Gosling for H. Lintot, 1736–1766).
167. Viner, 22:550 (“(A) Year, Day, and Waste”).
168. Simpson, A. W. B., “The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature,” University of Chicago Law Review 48 (1981): 632, 639.
169. See Dacome, Lucia, “Noting the Mind: Commonplace Books and the Pursuit of the Self in Eighteenth-Century Britain,” Journal of the History of Ideas 65 (2004): 603.
170. Holdsworth, “Charles Viner,” 28.
171. Ibid., 29.
172. “Abatement” is now West Key Number 2, following “Abandoned and Lost Property.” For a discussion regarding the abandonment of the alphabetical arrangement in the first American digest, see Dane, Nathan, General Abridgment of American Law (1823–1829); see Hicks, Frederick C., Materials and Methods of Legal Research, 3rd ed. (New York: Lawyers Co-operative, 1942): 231–32 (summarizing shortcomings of alphabetical arrangement). For the original Digest headings, see ibid., 234–42.
173. Holdsworth, “Charles Viner,” 37.
174. Havens, Commonplace Books, 39 (quoting Abraham Fraunce, The Lawiers Logike, exemplifying the praecepts of logike by the practise of the common lawe ).
175. Holdsworth, “Charles Viner,” 39.
176. David J. Seipp, The Structure of the Common Law, 1180–1880, chap. 4: “METHOD: Institutes and Reports from the Fifteenth to the Seventeenth Century.” Unpublished manuscript (provided to author, 2008).
177. Hoeflich, “The Lawyer,” 103 (using Stanley Fish's concept of “interpretative community”).
178. Notes, 4.
179. The reference does not appear in the third edition and, although the fourth and fifth edition added references to Lord Raymond, there is no such reference. Jefferson, Legal Commonplace, 11v (85). Madison corrected his initial page number. The original number is difficult to read; it looks as if he altered 486 to 495. The change would suggest a decision to more precisely note the discussion rather than simply the first page of the case. The case appears at pages 486–495 in Lord Raymond, volume 1.
180. Notes, 5. Beyond these two instances, I have not attempted to sort out which references were added by Madison and which appeared in Salkeld.
181. Jefferson, Legal Commonplace, 11v-12r (87–88).
182. On pages 27 and 28, Madison writes “see (32) contra,” “see (20) contra” and “see (13) contra,” “see (6) contra.”
183. For example, account, assignment, bankrupts, bargain and sale of goods, bills of exchange, covenant, joint and several, merchants, merchandize, money, payment and satisfaction, tender and refusal.
184. For example, administrator, age, apportionment and division, apprentice, assets, attornment, baron and feme, bastard, copyholder, deeds and charters, devise, detinue, discent, disseisin, dower, ejectment, executors, grants, highways (rivers, bridges), incidents (appendant, appurtenant), joint-tenants and tenants in common, leases, legacy, marriage, master and servant, mortgages, nusances, oyer and shewing of deeds, records, rents, trespass, uses and trusts.
185. For example, arrest de corps, amerciaments & fines, assize, bail in criminal cases, deceit, escape, felony, forgery, gaming, habeas corpus, indictment, outlawry, treason.
186. For example, abatement, action in general, action sur le case, action sur le case, sur assumpsit, action popular, amendment, arbitrement, arrest of judgment, attachment, audita querela, avowry, bail in civil cases, breach in actions of debt, covenant, &c, certiorari, challenge, costs, condition, contempt, continuance & discontinuance, covenant, damages, debt, deceit, declaration, demurrer, departure, exposition of words, error, evidence, execution, extinguishment, imparlance, issue general, jeofails, judgments, limitations, mandamus, motion, novel assignment, nonsuit, oaths & affidavits, pleas & pleadings, restitution, revocation, scire facias, trial, variance, writ.
187. For example, cases involving tort concepts appear under actions sur le case sur assumpsit.
188. For example, admiralty, attorney & solicitor, bailiff, chancery, constable, coroner, corporations, courts & jurisdictions inferior, fees, judge, jury and jurors, office & officers, office of the king, orders of the justices of the peace, parliament, powers, rules of court, sessions general & quarter, statutes in general and the exposition thereof, statutes of hue & cry, term time & computation.
189. See The Federalist, ed. J. R. Pole (Indianapolis: Hackett, 2005), xlii–xlvii.
190. Reports (3rd ed.), 1:46 (case 2).
191. Reports (3rd ed.), 2:666 (explaining that “Negroes by the Law and Statutes of Virginia, are saleable as Chattels”).
192. Ibid., 2:666–67.
193. See Notes, 40 (“Writ. Touchins case. 12 W III (1) / In all continued writs the alias must be tested the day the former was returnable.”).
194. Notes, 39 (Dom. Regina v. Dr. Drake).
195. Notes, 17 (Anon.).
196. Notes, 32 (header omitted) (page upside down in original).
197. Reports (3rd ed.), 1:388.
198. Notes, 33 (Regina v. Cranage).
199. Notes, 32 (Warren v. Matthews).
200. Notes, 37 ([Prideaux v. Morris; Regina v. Paty]).
201. Reports (3rd ed.), 1:20–21.
202. See, for example, Bill for the Establishment of Courts of Assize (James Madison introduces December 2, 1784); Bill to prevent the further operation of the Laws concerning Escheats and forfeitures from British subjects (James Madison on drafting committee). PJM, 8:163–74.
203. PJM, 8:191–94 (Bill for opening and Extending the Navigation of James River (James Madison's hand)); Notes, 32.
204. For legislation introduced by Madison, see PJM, 8:512–14.
205. See, for example, Notes, 34 (Duke's Case) (“Jdgt cannot be given vs any man in his absence for corporal punishmt, there is no such precedent.”); Reports (3rd ed.), 1:400; PJM, 8:48 (editorial note). On the history of the revisal, see “Some Virginia Law Books in a Virginia Law Office,” Virginia Law Register 12 (1926): 385; Preyer, Kathryn, “Crime, the Criminal Law and Reform in Post-Revolutionary Virginia,” Law and History Review 1 (1983): 53–85, reprinted in Blackstone in America: Selected Essays of Kathryn Preyer, ed. Mary Sarah Bilder, R. Kent Newmyer, and Maeva Marcus (Cambridge: Cambridge University Press, 2009), 147–84; PTJ, 2:308. In November 1784, the draft was published by the legislature: Report of the Committee of Revisors appointed by the General Assembly of Virginia in MDCCLXXVI , 4–5 (listing the 126 separate bills).
206. See PJM, 8:47–49, 514; 9:193–96.
207. Madison to Thomas Jefferson, Jan 22, 1786, PJM, 8:472–73.
208. Rives, Life and Times, 2:76.
209. Preyer, “Crime,” 70. Although the revisors had been influenced in particular, by Beccaria, they had ended up with a bill with often extreme results: punishments that denied burial to the body; dissection after hanging for petty treason (including a husband's murder of his wife); gibbeting for the challenger in a duel (hanging the body for public display); death by poison, a means of murder usually associated with slaves, for death by poison; for maiming or intentional bodily injury, lex talionis with monetary compensation. One amendment in Madison's handwriting would have replaced lex talionis with hard labor and financial compensation; see [amendment to sec. xv], PJM, 17:510–11. The other amendment related to the counterfeiting provisions and seems to have been intended to more specifically cover the types of actions covered; see [amendment to sec. xvi], ibid. For other problems with Jefferson's draft, see Cullen, Charles T., “Completing the Revisal of the Laws in Post-Revolutionary Virginia,” Virginia Magazine of History & Biography 82 (1974): 84, 86. In 1796, a revised criminal bill was passed with graduated sentences and the elimination of benefit of clergy; see Preyer, “Crime,” 76–79.
210. Madison to Thomas Jefferson, Feb. 15, 1787, PTJ, 11:152.
211. Notes, 2 (Lepiot v. Browne).
212. Notes, 23 (Scattergood v. Edge); Notes, 29–30 (Wankford v. Wankford). Wankford is one of the lengthiest cases, covering ten printed pages (Salkeld, Reports (3rd ed.), 1:299–309).
213. See Notes, 36 (Godolphin v. Tudor).
214. Notes, 5 (Harrison v. Cage).
215. See, for example, Notes, 6 (Hasser v. Wallis), 15 (Warr v. Huntley, cohabitation; Robinson v. Greinold, separation; Haydon v. Gould, marriage by layman and cohabitation). He copied a number of other cases involving feme soles and feme coverts; see, for example, Notes, 2 (Lynch v. Hooke, Hetherington v. Reynolds), 14 (Baron & Feme), 18 (Best v. Stamford), 30 (Shardelow v. Naylor).
216. Notes, 15 ( Pride v. Earls of Bath, distinction based on case of bastard eigne & mulier puisne (the concept distinguishes a child born after the parents marry from a sibling born prior to the marriage); Regina v. Murray, wife has child while husband is at sea is bastard; Inter Paroch St. George & St. Margaret, whether children of woman separated from husband by divorce a mensa et thoro (e.g., by act of law) are bastards; however, children of separated couple without sentence are legitimate) (the first part of the sentence is not legally correct)), 36 (Rex v. Albertson, another case where wife has child while husband is at sea).
217. Notes, 8 (Anon.).
218. Notes, 39 (Sir Robt Howard's Case); see also ibid., 39 (Asmole v. Sergeant Goodwin) (where rule requires pleading in four days, “Sundays and Holidays are to be computed”); ibid., 38 (Goodwin v. Peek) (holding that, where the first scire facias had been tested on October 24 and returned on November 7, “15 days inclusive sufficient.”).
219. Farrand, Records, 2:608.
221. See Notes, 14, 15–16.
222. See Notes, 8, 9, 18, 23–26, 29–30, 34–35, 39.
223. Notes, 24 (Popham v. Banfield).
224. Rives, Life and Times, 1:526n1 (professor and Coke on Littleton).
225. Ibid., 1:526–527n1.
226. Salkeld, Reports (4th ed.), 1:title page.
227. On shorthand at the time of the Convention, see Tinling, Marion, “Thomas Lloyd's Reports of the First Federal Congress,” William and Mary Quarterly 18 (1961): 519.
228. Madison to Jefferson, October 24, 1787, JMP, series 1, http://memory.loc.gov/cgi-bin/ampage?collId=mjm&fileName=03/mjm03.db&recNum=69&itemLink=%2Fammem%2Fcollections%2Fmadison_papers%2Fmjmser1.html&linkText=6.
229. See, for example, under “Parliament” where he simply numbers (1) (3) and omits the names of Prideaux vs. Morris and Coundell vs. John; under “Trial” where he again uses numbers only “(2 &3) &4) (5) (14) (17” [sic]).
230. When he did make mistakes, he tended to cross out lines or insert a phrase; see, for example, Notes, 3 (Tuberville v. Stampe) (inserting after “Case” superscripted words: “on custom of the realm”).
231. See, for example, Notes, 18 (Anon.): “Held, that if a Trustee or Ex˜r buy in debts or mortgages for less yn is due on them, he shall [not] be allowed the benefit of them”; Salkeld, Reports (3rd ed.), 1:155.
232. See appendix: Assets, Assignment, Habeas Corpus, Indictments, Jury and Jurors.
233. Notes, 8 (Thomson v. Crocker). Salkeld was inconsistent in using both King and Rex.
234. Madison used it in the first case, West v. Sutton, in which it appears in Salkeld: “Where alienee is pleaded in abatement tis triable where the writ is brought, viz on replication ought to conclude to the Country[.] aliter where it is pleaded in bar, ergo in that case the replic. must conclude et hoc par. est ver” (Notes, 1; Salkeld, Reports (3rd ed.), 1:2). The cf. signal comprehends certain aspects of this idea of diversity or distinction.
235. See, for example, Notes, 1 (Duncombe v. Church): “Held that want of a prout patet per recordum is only a matter of form, and helped by general demurrer because without such conclusion, if a record be pleaded, the other side may reply nul tiel record.”
236. On the relevance of this choice to constitutional questions, see Natelson, “Founders' Hermeneutic,” 1244n13–14 (describing debate over whether the Constitution originally permitted a woman to be elected president).
237. Notes, 2 (Stroud v. Lady Gerrard); Salkeld, Reports (3rd ed.), 8. Madison used she in rules applying to women only. See, for example, ibid., 2 (Lynch v. Hooke): “If feme covert be arrested by wrong name & give bail bond by that name, she is not estopped from pleading misnomer.”
238. See, for example, Salkeld, Reports (3rd ed.), 1:127 (Lambert v. Pack); Notes, 16 (listing seven reasons).
239. On adding numbers, compare, for example, Salkeld, Reports (3rd ed.), 1:132–33 (Hill & al. v. Lewis) with Notes, 16 (Madison numbering eight reasons; no numbers in original); Salkeld, Reports, 1:137–38 (Coleman v. Sherwin) with Notes, 16 (Madison numbering three reasons with fewer in original); compare Salkeld, Reports, 1:176 (Toler's Case), with Notes, 19 (Madison numbering two reasons with none in original). On omitting numbers, see Notes, 33 (King v. Chandler) (listing only three of five reasons given on a conviction of deer-stealing and omitting statement by Holt that “the Right of an Englishman of being tried … was taken away”); Salkeld, Reports (3rd ed.), 1:378.
240. Salkeld reports the case: York contra Stone & al. Nov. 16, Mich. 8 Ann. In Canc. // [Marginalia] A Mortgage does not revoke a Will in toto, but severs the Jointenancy of the Trust of a Term. // Three Persons being jointly interested in the Trust of a Term of Years, one of them mortgaged his third Part; and the Question was, Whether the Jointenancy was severed in this Case: It was admitted to be a settled Point in Chancery, That if H. makes his Will, and devises his Land to one in Fee, and after mortgages his Land to another in Fee. this is no total Revocation, but the Equity of Redemption shall pass by the Devise: But Cowper, Lord Chancellor held, That a Jointenancy is an odious Thing in Equity; that as to the Case of the Will, it might be for the Benefit of the Mortgagor, that this Will should not be revoked; but that it is to the Disadvantage of the Mortgagor, that the Jointenancy should continue; because, if he happened to dye first, all his Estate and Interest goes from his Representatives to the Survivor, unless it be construed a Severance” (Salkeld, Reports (3rd ed.), 1:158).
241. ECB (No. 7).
242. Notes, 18.
243. See, for example, Notes, 2 (Poulter v. Cornwall) (Madison employing omission); Salkeld, Reports (3rd ed.) (not using word).
244. Notes, 21 (Butterfield v. Burroughs). “Money” may be incorrect transcription.
245. Notes, 9 (Rex v. Johnson).
246. PJM, 1:xv–xvii.
247. For various interpretations of Madison's post-1787 approaches to constitutional interpretation, see Rosen, Gary, American Compact: James Madison and the Problem of Founding (Lawrence: University Press of Kansas, 1999), 156–77; Riemer, Neal, James Madison: Creating the American Constitution (Washington, D.C.: Congressional Quarterly Press, 1986), 87–98, 145–50.
248. Ulman, H. Lewis, Things, Thoughts, Words, and Actions: The Problem of Language in Late Eighteenth-Century British Rhetorical Theory (Carbondale: Southern Illinois University Press, 1994); see Moran, Michael G., “Introduction,” in Eighteenth-Century British and American Rhetorics and Rhetoricians: Critical Studies and Sources, ed. Moran, Michael G. (Westport, Conn.: Greenwood Press, 1994), 4–5 (discussing interest in “the interpretive act”).
249. James Madison, James Madison Commonplace-book [1762–1796] (Massachusetts Historical Society). This book is described in PJM, 1:4–6.
250. Engell, James, “The New Rhetoric and Romantic Poetics,” in Rhetorical Traditions and British Romantic Literature, ed. Bialostosky, Don H. and Needham, Lawrence D. (Bloomington: Indiana University Press, 1995), 217 (including Adam Smith, George Campbell, Joseph Priestley, Hugh Blair, James Beattie, Thomas Gibbons, Lord Kames, Thomas Sheridan, and Robert Lowth). As Carey McIntosh points out, “the New Rhetoric did not think of itself as a school or movement” and the term is a twentieth-century innovation (McIntosh, Carey, The Evolution of English Prose, 1700–1800: Style, Politeness, and Print Culture [Cambridge: Cambridge University Press, 1998], 157).
251. Engell, “New Rhetoric,” 228. He adds, “This helps to explain the neoclassical and eighteenth-century obsession with clarity—not that writers and critics trusted words, but that they distrusted them and their possible abuses so much.”
252. See Notes, 13 (Lord Mohuns Case): “If a man be found guilty of murder by Coroner's inquest, we sometimes bail him, because he proceeds upon depositions in writing which we may look into. otherwise if found guilty by Grand Jury because Ct. cannot take notice of their evidence which they are by oath to conceal”; ibid., 39 (Dom. Regina v. Dr. Drake): “a difference between words spoken & written. in former case there can not be a tenor. & it is sufficient if so many words be proved as are themselves actionable … in pleading libel or other writing may be described either in the very words, or by its meaning & substance.”
253. See Notes, 20 (The Mayor of Thetfords Case): “Tho’ a corporation can not do an Act in Pais without their common seal, yet they may do an act upon record, and ye reason is because they are estopped by ye record to say it is not their act.”
254. See Notes, 22 (Hill v. Aland): “Where a writing is only evidence, & ye action not founded on it, as a note which is evidence on parol contract, dft. has no right to copy.”
255. See Notes, 17 (Anon.): “A certiorari was to remove an order vs J.S touching foreign salt. which being removed appeared to be an order touching salt (without foreign) & it was held not to be removed, there being no such order.”
256. See Notes, 18 (Anon.) (distinguishing debts by “design of ye settlement”); see also ibid., (Whitecomb v. Jacob): “for money has no ear marks to guide equity.”
257. See Notes, 8 (Thomson v. Crocker): “Writ of error recited Jdgt in curia of the King, when in the record it was Regis & Regina. variance not amendable. 1. it wd make new writ. 2dly 8. H. 6. authorises amendts only precedent to ye Jdgt. 3dly Writ of Error is com˜ission to Ct & they cannot amend their own Com˜ission”; see also Notes, 21 (Cone v. Bowles): “All statutes that give costs are to be taken strictly, as being a kind of penalty.”
258. Notes, 23 (Blisset v. Cranwell).
259. Notes, 22–23 (Milford v. Smith): where will devises “all estates given & granted” will passes only estates “intended to be conveyed by the deed & fine; for the will had reference to deed & grant here not to be taken strictly but largely for any agreement.”
260. See Notes, 31 (Wyat v. Aland): “that where a matter is capable of different meanings, that shall be taken wch will support, not yt which will defeat, the declaration or agreement.”
261. See Notes, 10 (Winter v. Garlick): “Award to pay costs of ‘a suit now depending in an inferior court’ bad for uncertainty. To pay such costs as the Master shall tax is good”; ibid., 31 (Rex v. Stocker): indictment using Latin pleading to allege fabrication “held naught on demurrer for uncertainty.”
262. See Notes, 35 (Mayor & Com˜onalty of London v. Wilks): “A Merchant includes all sorts of traders as well as properly merchant adventurers… . A merchant-Taylor is a com˜on term”; ibid., 31 (Pope v. Sd Leger): “Wager concerning rule of a game, not within ye Stat. of Gaming.”
263. Notes, 38 (Rex & Reg. v. Barlow): “Where a Stat. directs ye doing a thing for sake of justice or ye public good may has the force of shall.” On the may/shall distinction, see Robert A. Goldwin, From Parchment to Power: How James Madison Used the Bill of Rights to Save the Constitution (Washington, D.C.: AEI Press, 1997), 85 (suggesting that interweaving emphasized “all the formulations are imperative, and almost all are negative); Nora Rotter Tillman and Seth Barrett Tillman, A Fragment on Shall and May (working paper 2008), available at http://works.bepress.com/seth_barrett_tillman/21/.
264. Notes, 33 (Regina v. Smith): “Usitata; ‘used’ speaks ye present as well as the past time.”
265. Notes, 37 (Anon.): “An Act printed by ye King's printer is always good evidence of ye Act to a Jury; but was never to be a record yet: you must get an exemplification under ye great Seal, & then plead it exemplified, & then no man can deny it.”
266. Madison to Randolph, Mar. 10, 1784, PJM, 8:3–4.
267. See Madison to Thomas Jefferson, January 22, 1786, PJM, 8:472–73; Rives, Life and Times, 2:46, 2:75.
268. [Madison,] [Notes on Criminal Law Bill]. In the Library of Congress, the notes appear labeled as Edmund Randolph, Notes, Common Law, 1790, LC, http://memory.loc.gov/cgi-bin/ampage?collId=mjm&fileName=04/mjm04.db&recNum=704&itemLink=D?mjm:1:./temp/~ammem_IIKl::. They do not appear to be Randolph's handwriting. The editors of the Madison Papers were uncertain where to place this document and located it in 1800. Madison's emphasis on proportionality and the repeated references to the elimination of benefit of clergy suggest the earlier 1780s revisal effort. The numbers at the bottom of the second page (11, 19, 26, 30, 31, 33, 34) correspond to appropriate sections of the crime bill. The descriptive categories of the notes (petty treason, murder, mayhem, rape, sodomy, manslaughter, arson, burglary, grand larceny, larceny, robbery) also correspond to the crime bill. Witchcraft is the only significant category not covered in bill 64. The amendments listed on page 1 refer to sections 15 and 16 of the bill 64. See PJM, 17:510–511; A Bill for proportioning crimes and punishments in cases heretofore capital, chap. 64, Report of the Committee of Revisors, at 46–47 (sec. 11 (defining murder and manslaughter by intent only), 19 (crimes at sea given hard labor and payment for loss), 26 (crimes relating to commercial paper to be treated like crimes on the money or goods themselves), 30 (accessories), 31 (penalty for refusal to plead), 33 (attainder not working corruption of blood), 34 (saving of widow's dower)); see also PTJ, 2:492–507. The bill's stated purpose was to make punishments explicit and proportionate, to decrease significantly the number of capital crimes, to provide for compensation, and to eliminate benefit of clergy in most instances; see Sawyer, Jeffrey K., “Benefit of Clergy in Maryland and Virginia,” American Journal of Legal History 34 (1990): 49–68; Preyer, “Crime,” 53–85.
269. Perspicuity is “clearness of statement or exposition; freedom from obscurity or ambiguity; lucidity” in Oxford English Dictionary, 2nd ed. (Oxford: Oxford University Press, 1989–), 11:608 (2). For works, see Burrow, James, A few thoughts upon pointing and some other helps towards perspicuity of expression ([London]: J. Worrall and B. Tovey, 1768); Quintilian, Quintilian's Institutes of the Orator (London: B. Law and J. Wilkie, 1774): 2:35–39 (chapter on perspicuity); Campbell, George, The Philosophy of Rhetoric (London: W. Strahan and T. Cadell and W. Creech, 1776), 2:5–92 (chapter on perspicuity); Priestley, Joseph, A Course of Lectures on Oratory and Criticism (London: J. Johnson, 1777), 3, 143, 281–88; Blair, Hugh, Lectures on Rhetoric and Belles Lettres (Dublin: Whitestone, Colles, Burnet, Moncrieffe, Gilbert, 1783), 1:217–40 (Lecture X); Adams, John Quincy, Lectures on Rhetoric and Oratory (Cambridge: Hilliard and Metcalf, 1810), chap. 26 (“On Perspicuity”), 161–84; see also Golden, James L. and Corbett, Edward P. J., The Rhetoric of Blair, Campbell, and Whately (Carbondale: Southern Illinois University Press, 1990), 1–18.
270. For use of term at the Convention, see, for example, Farrand, Records, 1:138–39 (Madison, June 6) (suggesting judicial interpretation in the revisionary function would bring perspicuity), and 2:74 (Madison, July 21) (suggesting inclusion of judiciary with revisionary power would provide assistance in “preserving a consistency, conciseness, perspicuity, & technical propriety in laws”); see also 3:88 (describing Charles Pinckney). Madison also returned to use the term in Letters of Helvidius, No. V (1793) in describing interpretation of government. See Writings of James Madison, ed. Gaillard Hunt (New York: G. P. Putnam's Sons, 1906), 6:177, 180. See also Madison to W. T. Barry (August 4, 1822), ibid., 9:103, 105 (referring to framing of laws); Madison to A. B. Woodward (September 11, 1824), ibid., 9:206, 207 (referring to essay observations). In Jefferson's famous letter about whether one generation of men has a right to bind another he urged Madison to turn to the problem and develop it with that “perspicuity & cogent logic so peculiarly yours” Jefferson to Madison, dated September 6, 1789, PJM, 12:382, 386 [RC].
271. [James Madison], “Concerning the Difficulties Which the Convention Must Have Experienced in the Formation of a Proper Plan” (January 11, 1788), The Federalist (Pole), 196. On this passage, see Kaminski, John P., James Madison: Champion of Liberty and Justice (Madison, Wis.: Parallel, 2006), 7.
272. Madison to James Madison Sr., December 3, 1784, PJM, 8:172. He grasped the “dilatory artifices” that were employed to obscure discussion on the merits; see Madison to Thomas Jefferson, January 22, 1786, PJM, 8:472–73.
273. Federalist (Pole), 196.
276. See Hobson, Charles F., “The Negative on State Laws: James Madison, the Constitution, and the Crisis of Republican Government,” William and Mary Quarterly, 36 (1979), 215–35.
277. PJM, 12: 237–239, 255–45 (over removal power).
278. Banning, Sacred Fire of Liberty, 387–394.
279. PJM, 11:285 (quoting letter dated 1834?).
280. See, for example, James Madison: Philosopher, Founder, and Statesman, ed. John R. Vile et al. (Athens: Ohio University Press, 2008) (particularly essays by Vile, Brown, Hoff, and Read); James Madison: The Theory and Practice of Republican Government, ed. Samuel Kernell (Stanford, Calif.: Stanford University Press, 2003) (particularly essays by Iain McClean, Samuel Kernell, John Ferejohn, and Jenna Bednar); James Madison and the Future of Limited Government, ed. John Samples (Washington, D.C.: Cato Institute, 2002) (particularly Joyce Malcolm); Rosen, American Compact (particularly chap. 6, “The Legitimate Meaning of the Constitution”); McCoy, Last of the Fathers (particularly chap. 4); Rutland, Robert Allen, James Madison: The Founding Father (Columbia: University of Missouri Press, 1987), 97–98, 156–68; Riemer, Neal, James Madison: Creating the American Constitution (Washington, D.C.: Congressional Quarterly Press, 1986) (particularly 131–56).
281. Banning, Sacred Fire of Liberty, 8.
282. See, for example, David Nordquest, “Madison and Philosophy: His Coursework and his Statesmanship,” and Craig Grau, “More than an Intellectual Scribe: The Political Drives and Traits of James Madison,” in John R. Vile et al., James Madison, 3–20, 21–36; Iain McLean, “Before and after Publius: The Sources and Influence of Madison's Political Thought,” in Kernell, James Madison, 14–40.
283. Rakove, Original Meanings, 343.
284. Bilder, “English Settlement and Local Governance,” 63–103.
285. Adair, “James Madison's Autobiography,” 198.
286. Salkeld, Reports (3rd ed.), vols. 1 and 2, table of general titles [appears following table of cases]. Italics in original have not been shown. All s's have been rendered as s. “Vide” references have been omitted. Entries under I and J have been left together as in original.
This essay could only have been written with the invaluable help with respect to handwriting, manuscript, and archival inquiries of Barbara Bair (Library of Congress, Manuscript Division), J. H. Baker (Cambridge University), Cecilia Brown (University of Virginia Law Library), Kathy Brown (Fauquier County Courthouse, Virginia), Dee Ann Buck (Independent Researcher), Keith Buckley (Indiana University Law Library), Hannah E. Clarke (Boston College Law Library), Gayle Cooper (Small Special Collections, the University of Virginia), Peter Drummey (Massachusetts Historical Society), Roy Haywood (Wildy & Sons), Diane Jacob (VMI Archives), Helen Lacouture (Boston College Law Library), David Lemmings (University of Adelaide), Joseph Luttrell (Meyer-Boswell Books), Marguerite Most (Boston College Law Library), Jennifer Nelson (Berkeley), Barbara Oberg (Jefferson Papers), Cheryl Oestreicher (Drew University Archives), Elizabeth Prindle (Boston Public Library), Margaret Rich (Princeton, Special Collections), John Reardon (Loyola University of Chicago), Susan Riggs (Earl Gregg Swem Library, William and Mary), Amy Schindler (Earl Gregg Swem Library, William and Mary), Meredith Shedd-Driskel (Library of Congress), Phillip Seitz (Cliveden), Bill Sleeman (Thurgood Marshall Law Library, University of Maryland), Katherine Sosnoff (Boston College Law Library), Ann Southwell (Small Special Collections Library, University of Virginia), Laura Stalker (Huntington Library), James M. Storey (Boston), Anthony Taussig (London), Heather Tennies (Lancaster County Historical Society), David Warrington (Harvard Law Library), Minor Weisiger (Library of Virginia), W. Bland Whitley (Jefferson Papers), George Yetter (Colonial Williamsburg), and Georgiana Ziegler (Folger Library).
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