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.Footnote 1 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.
At 2,008 entries of theory and precedent from Scottish and English chancery courts, Thomas Jefferson's equity commonplace book contains more than twice the number of entries as his legal commonplace book, but has received far less attention from scholars.Footnote 2 Admittedly, the equity commonplace book lacks the breadth of sources from case reports, legal treatises, civil histories, and political theory, just as it lacks much of the additional commentary by Jefferson himself that students of his legal career and political thought have long found valuable in the legal commonplace book. I argue, however, that overlooking Jefferson's law notes in equity is a small part of a larger failure to appreciate the importance of variable uses of the concept of equity to the legal and political theory of constitutional conflict in the early modern British Atlantic world. Equity was both a legal institution and a political idea, and, as such, it was a bridge that linked law with political thought and private law with contests over sovereignty, jurisdiction, and civic identity on the eve of the imperial crisis. The goal here is not to analyze the contents of Jefferson's equity commonplace book or Wythe's chancery reports, but to situate Jefferson's interest in equity in the plurality of discussions of equity and the broader legal and intellectual contexts from which that interest emerged. In short, the goal is to study the language of equity in Jefferson's thinking and attempt to see what it can show us about the conceptual world in which a legal mind such as Jefferson's operated. What we will see is that not only did equitable concepts play an enormous role in Jefferson's legal thought and practice, but also that Jefferson's reading in equity, his creative fusion of common law and equitable constitutionalism in the service of republican politics, and his immersion in the historically inflected natural jurisprudence appropriate to equity shaped his politics and constitutional thought in significant ways. His use of equity exploded the normal boundaries of jurisdictional authority and interpretive rules that he initially absorbed as a young law student, and the story of this particular use is at the center of a wider story of his unique practice and theorization of a way of reading, and the close relationship between a way of reading and a way of life that he came to envision for revolutionary politics.
Jefferson turned equitable interpretation and the early modern and colonial contestations over its appropriate use into a crucial aspect of the material, textual, writerly republican constitutionalism that he advocated. Jefferson's interest in and use of the legal idea of equity spanned his several careers as an attorney, revolutionary constitutionalist, and national politician, and the trajectory of his wide-ranging engagement with equity illustrates the historically dynamic quality of use itself.Footnote 3 Equity and the historically inflected natural law discourse appropriate to equitable consideration allowed for Jefferson to think of the Revolution as an opening in the history of law and constitutionalism, and therefore as a breach in inherited understandings of legal temporality, capacity for legal and political judgment, and legal subjectivity. It is around the question of legal subjectivity that Jefferson's use of the language of equity turns. Jefferson relocated the responsibility of judgment inherent in conciliar jurisdiction to assemblies of the citizenry. This practice was part of a larger constitutional project imagining and instituting a subject with the cultivated capacity to exercise historically informed political and even legal judgment, and to do so by considering the textual material of legal and constitutional tradition as subject to the possibility of recollection and reassembly, and new use. Jefferson's efforts to institute a constitutional culture of equitable usage of law, of language, and of landed property had its roots in his own collecting, reading, writing, and rewriting of the law and its history.
Equity in Legal and Political Thought
By its very nature, equity was a malleable, contested, and uncertain concept, and that is a large part of what made it a central and useful one. To understand the context in which Jefferson's profound interest in equity can make sense, we need to understand the variety of ways in which legal theorists configured chancery jurisdiction and principles of equity in the intellectual worlds to which Jefferson had access. Equity's contested and changing definitions played an enormously important part in the development of early modern legal and political theory and in the legal culture of the British North American colonies. Aristotle had defined epieikeia as the rules of an unchanging natural order that subsisted amidst the processes of change that characterized politics and civil law, lending itself in particular cases to the “rectification of legal justice.” Focusing on institutions, the author of the Rhetorica ad Herennium understood aequitas as the totality of justice that encompassed all of the legal and political strands of Roman life: maxims that guaranteed “each his own right, for the dignity of all.”Footnote 4 Right in this case was class specific, and corresponded not to an anonymous equality before the law but to a consideration of what general principles of justice were due to particular members of a polity in particular cases. This tension between universal, natural justice and contextual, case-specific particularity would prove a persistent one. Equity was a border concept, existing astride the boundary of both customary and positive law on the one hand and the constitution of sovereignty on the other. Natural law, comprehended through the jurisdiction of equity, could range from an entirely external and undetermined standard of judgment that existed almost independently of regular legal authority, to a fixed ground for the operation of regular legal authority and even as a hermeneutic tool in common law statutory interpretation. The question for early modern legal theory was where this power of equity and the corresponding right to define it were located in the constitutional structures of states and empires. Debates over the proper role of chancery courts were inseparable from debates about the nature of sovereignty.
In the early modern England that generated the conceptual tools with which Americans of Jefferson's era thought about law and constitutionalism, defining the proper place of equitable jurisdiction was a central aspect of political conflict. In his 1628 appraisal of Thomas Littleton's late medieval tract on land tenures, Sir Edward Coke, chief justice of the Court of Common Pleas and later of the Court of King's Bench, defined equity as “the assemblage of things that make equality among all people” and “the perfection of that reason… that interprets and improves the written law.”Footnote 5 Building on the classical concept, Coke understood equity as an interpretive tool that allowed the common law judge to adhere, when appropriate, to the spirit, rather than the strict letter, of written law. Coke's definition of equity, like his larger historically inflected jurisprudence, was polemical. Coke was claiming equity as an interpretive tool in the hands of the common law judge, and in doing so, he staked out grounds for challenging a powerful alternative idea of equity as sovereign jurisdiction. Equity was formally recognized as the province of the High Court of Chancery and the Star Chamber, courts presided over respectively by the Lord Chancellor and members of the King's Council who adjudicated in the name of the royal prerogative, and the jurisdiction of chancery was recognized as the court of the conscience of the Crown.Footnote 6 Trying to build the constitutional supremacy of the common law and its guardians in the courts and Parliament, hoping to check the independence of conciliar jurisdiction and with it the extension of royal prerogative, Coke claimed equity as part of the adjudicatory powers of common law courts. He attempted nothing less than an extension of the authority of the common law over the entirety of the English constitutional structure, and a marginalizing of the power of rival legal philosophies at the level of English high constitutional politics. Equity, even for Coke, was not just a different branch of the court system. It was a concept that needed to be made safe for common law constitutionalism.
Although Coke's project of defining the common law as all encompassing, while including within its provenance equitable consideration, would not be confidently and authoritatively asserted until the age of Blackstone and Mansfield in the second half of the eighteenth century, tensions in Coke's configuring of equity persisted as constitutional conflict over the balance of power intensified in the seventeenth century. If equity was merely the perfection of the normal course of law and judgments, then it would not need to be a distinct mode of interpretation at all, let alone a separate jurisdiction. In his Dialogue between a Philosopher and a Student of the Common Laws of England, Thomas Hobbes delivered an extended battering of Coke's failure to square the relationship between equity and the common law. As the student suggests, “seeing all Judges in all Courts out to Judge according to Equity, which is the Law of Reason, a distinct Court of Equity seemeth to me to be unnecessary.” Indeed, responded Hobbes, the philosopher, a court of equity would be unnecessary “if Judges could not err; but since they may err, and that the King is not Bound to any other Law but that of Equity, it belongs to him alone to give Remedy to them that by the Ignorance, or Corruption of a Judge shall suffer damage.”Footnote 7 Law, or equity, in this logic, was nothing other than the published command of the sovereign. Hobbes enshrined equitable interpretation as the key to the sole and superior jurisdiction of the sovereign, theorizing equity as the conceptual and constitutional superior to the highest branch of the common law: the conscience of the sovereign alone as the final maker of law and of legal meaning.
In his critique, Hobbes affirmed a body of research into legal history that cast doubt on Coke's narrative of the untroubled continuity of the common law. Historical theorists of English law pursued Coke's depiction of law as in large part an antiquarian discipline, and did so with much greater erudition than Coke had been able or willing to do himself. Specifically, Hobbes' skeptical critique of customary concepts of law, which went hand in hand in with his critique of republican concepts of liberty, continued the work of the royalist scholar Henry Spelman, who argued against Coke and his successors that the Norman Conquest had indeed brought about a revolution in both private and public law, introducing feudal land tenures and the historical primacy of the Crown.Footnote 8 Finding linguistic evidence of the European origins of the laws governing real property and inheritance from even before the Norman Conquest up to the recent past (and the use of chancery jurisdiction to get around feudal constraints on increasingly commercial, moveable property), Spelman employed a historical critique to cast irreparable doubt on the common law tradition.Footnote 9 Even while this constitutional skepticism was at least partially incorporated by the common lawyers of the Restoration period into a revised, more complicated picture of the development of the institution of Parliament and the historical inseparability of written from immemorial or natural, unwritten law, historical theorists such as Hale remained driven to refute the royalist edge of doubt as to the antiquity of Parliament and with it, the primacy of the customary grounds of law.Footnote 10
As the Whig ascendency and the Glorious Revolution solidified Parliamentary sovereignty and the basis of the language of the common law as the lingua franca of English jurisprudence and constitutional politics, it was nevertheless possible in the eighteenth century to attach to the independence of equitable jurisdiction the threat of the undoing of the structural integrity of the entire British constitutional edifice as it was by then understood.Footnote 11 Equity, John Selden wrote in the posthumously published Table Talk, is in law “the same that the Spirit is in Religion, what everyone pleases to make it.” It was, in fact, a “Rouguish thing,” nearly the direct opposite of law, where “we have a measure” and “know what to trust to.”Footnote 12 As John Fortescue-Aland, whose edition of the writings of the early theorist of English law, John Fortescue, Jefferson recorded in his legal commonplace book, suggested, “to have no rule to decide controversies, but the rule of Equity, is to begin the world again.” Equity threatened to unravel “the fine and close texture of the law which has been so many hundred years in the making.”Footnote 13 The concept of equity entered the period leading up to the American Revolution characterized by the fears and uncertainties associated with a tripod of historical tendencies: absolutist tyranny; a skepticism in the form of historical bias against legitimating narratives of continuity and tradition; and a multifaceted, untethered, and, thereby, potentially dangerous language of natural law.
Equity, as mentioned, was, even by the second half of the eighteenth century, still a contested concept whose theoretical life existed on the boundary of legal legitimacy, and, as such, its use was tied as before to the more general, although equally dangerous, vocabularies of natural jurisprudence. Later champions of equity, such as the Scottish jurist and judge Lord Kames, who is the most frequently recorded author in Jefferson's equity and legal commonplace books taken together, embraced the possibility of equity as an external corrective. Equity for Kames, as Jefferson recorded in his commonplace book, consisted of “every matter of law that by the common law is left without remedy.”Footnote 14 Kames embraced equity as a vehicle for what we would call judicial activism, working around feudal constraints on land tenures and advancing legal reform in the service of Scottish historical development toward the promise of commercial society, theorized by Kames and other leaders of the Scottish Enlightenment, and he did so directly from his seat in the Scottish Court of Session. In contrast to in England in the eighteenth century, in both Scotland and Virginia high civil courts such as the Court of Session in Scotland and the General Court in Virginia possessed chancery along with common law jurisdiction and could meet as exercising either, thereby doing so with at least a potential freedom of movement that would have been alarming to observers of the substantively more developed court systems and division of labor between equity and common law in the English context, even as Blackstone followed Coke in claiming equitable reading as a tool kit in the hands of the common law judge. For Kames, chancery jurisdiction was a tool to encourage what was perceived to be lagging Scottish economic and social development, to bring Scotland to the forefront of humanity's stadial progress toward commercial sociability, and to fulfill the promise of what his great contemporary David Hume called “the tyes of equity.”Footnote 15
In his Commentaries on the Laws of England, published in four volumes between 1765 and 1769, and in the colonies in 1771, William Blackstone defined equity as “the reason and spirit of the law.” Although chancery practice had played an important role in getting around the feudal constraints of common law rules regarding real property and inheritance, it was in part out of concern for the theoretical and constitutional fears attached to the perception of the growing power of this alternative jurisdiction that Blackstone and Chief Justice Mansfield began defending the legitimacy of common law judges interpreting the law with the assistance of principles of equity.Footnote 16 For Blackstone, it was imperative to de-emphasize the distinctions between equity and common law, at some length discussing the strict rules by which equity jurisprudence was bound, and the liberality of interpretation that had always been a component of common law adjudication. The assumption behind that assertion was that equity by itself could lead anywhere. While Blackstone sought to deflate the constitutional fears and ramifications of the idea of equity unbound, Kames was busy using his position to openly effect legal reform from the bench, bringing about significant reform surrounding his two pet projects: the undoing of feudal restraints on landed property, particularly entail and primogeniture, and the reformation of the criminal law.Footnote 17 Both of these aims would be pillars of Jefferson's own proposals for a new constitution and law reform in the newly declared Commonwealth of Virginia.
Before Jefferson's radical and redescriptive use of the concept of equity, chancery jurisdiction as an idea existed in a similar manner in the colonies as it had in British legal thought: as a fraught, even anxiety-producing concept. John Peter Zenger famously got himself into trouble not simply for public criticism of the colonial governor, but for identifying the governor's effort to strengthen the court of chancery in the colony of New York as an attempt to do nothing less than establish Stuart tyranny over the free subjects there.Footnote 18 At the same time, in Scotland and England as well in Virginia, chancery jurisdiction allowed for mobility in landed property that sidestepped common law rules of inheritance. William Byrd II recorded in his personal notebooks that on his last trip to London he had encountered the argument of a British trade official, Sir William Keith, urging fellow officials and members of Parliament to exercise greater control over colonial law and politics. Colonists, Keith correctly perceived, had convinced themselves that their colonial assemblies were the American equivalent of Parliament for each colony, and he sought to remind his readers that as dependent dominions, the colonies had no legislative authority, “properly so called.”Footnote 19 Keith particularly attacked the growth of chancery courts in the colonies, arguing that the sovereignty of chancery, or equitable jurisdiction, rested with the Crown itself, and did not devolve to colonial governments. Virginians defending colonial rights in London, including the governor William Gooch and Byrd himself, had responded before the Board of Trade by asserting the legitimacy of colonial institutions, including their chancery court, which did, indeed, persist in until the suspension of the law courts on the eve of the American Revolution. As these colonial disputes demonstrate, broader theoretical and constitutional concerns inflected debates and practices surrounding the institution and regular operation of chancery courts.
To an extent that we have not yet realized, the terms of imperial governance in British North America and the eventual collapse of that governance were set in terms of the power of the sovereign exercise of equity. In what would become a foundational case for how both metropolitan officials and colonial essayists understood their positions at the beginning of the imperial crisis, Coke ruled in Calvin's Case (1608) that Calvin, a Scottish subject born after the union of the crowns in the ascension of James I in 1603, was the same as a natural born subject of the same king, entitled to legal protection of the unified Crown, and could, therefore, hold property in England. Coke took the opportunity to extend the effect of his ruling on the post-nati, those born after the union of the crowns, and in doing so, adapted the Roman juridical distinction between the ius gentium and the ius civilis, to arrive at a comprehensive legal theory of the acquisition of sovereignty for a Christian empire.Footnote 20 As Coke laid out the theory of settlement and conquest, settlement of an empty land carried with it the civil law (in the case of England, the English common law), effectively making newly settled territory an extension of the realm.
Conquest, however, was of two sorts: the conquest of a Christian people, as in the case of Ireland, established the sovereignty of the conquering agent in the territory, but left the laws of the conquered in place until such time as the sovereign deemed it necessary to change them. Conquest of a non-Christian people, as in the case of the original inhabitants of the North American continent, abrogated the laws of the conquered and established rule in the territory such that “the King himself, and such Judges as he shall appoint, shall judge them and their causes according to natural equity.”Footnote 21 From the outset of the imperial crisis, colonists asserted on Cokean and Lockean grounds that they had settled an uncultivated and so effectively empty land, and necessarily therefore enjoyed the rights of Englishmen. What they met in the form of Blackstone's exposition of the theory of conquest and the Declaratory Act of 1766 was the assertion that the juridical space of the North American continent was conquered territory, and that, therefore, the sovereign, Parliament, was effectively unbound in its governance of the colonists and Native Americans alike.Footnote 22 As Aziz Rana has demonstrated, the fact that the colonists found themselves occupying a shared legal status with Native Americans, and that as a result of the Quebec Act French Canadians in newly acquired British territory retained an apparently greater constitutional self-governance than their fellow subjects to the south, made the legal terms of the debates taking place leading up to 1776 a crisis in American legal identity.Footnote 23 Formerly confident “transplanted Englishmen” found themselves living with a host of others, against whom they had always measured their civilization, in the borderlands of law, in the realm of equity.
An acute episode of uncertainty in the legal status of settlers in the thirteen British North American colonies occurred in the famous case of Somerset v. Stewart in 1772, in which Lord Mansfield, Chief Justice of the Court of King's Bench, ruled on the case of James Somerset, a slave brought to England by his American master only to escape and later be captured and re-enslaved. Slavery, Mansfield wrote, was everywhere a product of positive law and repugnant to nature. As no such positive law existed in England, there was no legal protection of human property, and, therefore, Somerset was set free. As has been widely noted, Somerset not only put into question the safety of transporting slave property throughout the Empire (an already contentious issue for planters) but in his ruling, Mansfield anchored the decision to recognize Somerset's freedom in an appeal to natural law.Footnote 24 In the eyes of colonists, Mansfield thus exhibited the liberality of judiciary discretion that was widely believed to characterize his tenure as the chief justice of the Court of King's Bench (a perception that reflected, in part, the development of the theoretical legitimacy of equitable consideration throughout the English court system).Footnote 25 The real significance of Somerset lay just as much in what it said about the constitutional politics of the Empire as it did about the security of property in slaves (which issues were inseparable in the first place). Mansfield stated that the real question of the case was “whether any dominion, authority, or coercion can be exercised in this country, on a slave according to the American laws?”Footnote 26 That is to say, the question was whether the decision he might reach was bound to any extent by the Virginian laws protecting the institution of slavery and the individual property rights of slave owners, and his answer was a resounding no. This reflected the status of the colonies as, in Blackstone's wording, “distinct (though dependent) dominions” within the constitutional structure of the Empire, as conquered territory, and in the eyes of agitated colonial legal elites as a territory whose inhabitants were subject to a centralized judgment seemingly unrestrained by a system of customary, historically legitimate rules, governed by will as opposed to law.Footnote 27
The concept of equity, therefore, was fundamental to the worlds of both private and public law in which Jefferson came of age as an attorney and politician. The private infused the public and vice versa, because no clean separation could be made between the perceived stability of the laws protecting the holding and transmission of property on the one hand, and what was at stake for political leaders in the debates concerning the nature of the Atlantic imperial constitution from the end of the Seven Years War to the outbreak of the American Revolution, on the other. The phenomenon of Jefferson's commonplace book of precedent in equitable jurisprudence only makes sense in this imperial context, and it was Jefferson's unique perception of the importance of equity to the constitutional crisis he was experiencing (and fomenting) that made equitable language a nearly omnipresent character of his legal and political theorizing.Footnote 28 Jefferson found himself confronted by a foundational crisis in legal legitimacy, a crisis in which the multivalent directions in which the concept of equity could lead played a determinant role. In addition to the pragmatic uses of equity in facilitating the mobility of entailed property in land, the tyranny of unbounded, arbitrary rule, the possibly destructive skepticism of the transmissibility of tradition as such, and the overlap with a more generalized natural law framework each inflected Jefferson's choice to seize on equity not only as a way to understand the dissolution of the constitution of empire in the British Atlantic (at least with respect to the American colonies), but also as a tool for thinking about the place of constitutional judgment within a republican polity, or in short, what democratic, revolutionary practice with respect to law might look like, if such a thing was possible at all.
Legal Learning and Revolutionary Constitutionalism
In so far as the power to judge according to equity was a (perhaps the) key marker of sovereignty in Anglo-American constitutional theory in the seventeenth and eighteenth centuries, equity itself was a critical part of the vocabulary in which contestants of constitutional discourse engaged.Footnote 29 Jefferson took up the concept of equity, which was in many quarters regarded as the paradigmatic example of the incompatibility of liberty with arbitrary rule and judgment, a specter of Stuart tyranny, and reworked it as part of the criteria of public judgment in a revolutionary polity where, at least initially, sovereignty had not so much been flipped on its head as fragmented. Eric Nelson argues that a major strand of American political thought consisted of adherence to Stuart theories of royal sovereignty, and cites the variety of appeals to the king in the pamphlet literature of the imperial crisis.Footnote 30 As important as the seventeenth century intellectual context is for understanding even late eighteenth century American political thought, including Stuart constitutionalism, Nelson's analysis risks overlooking the particularly imperial, legal dimension to that context, especially the contested issue of sovereignty as it was framed by the structure of the “transatlantic constitution.”Footnote 31 Second, in assuming that use of aspects of a past conceptual vocabulary demonstrates a continuity of doctrine, Nelson's argument, despite declared intentions, leaves us insufficiently attentive to the dynamism of political language in time, or to the possibility redescription and new use. Jefferson's interventions amidst the late stages of the imperial crisis can be understood as part of a practice of reassembling and reaccessing the contents of the concepts with which Americans were thinking. Equity not only was a central concept in that effort, it also was a concept that when reconsidered provided a language in which one could think practically about the practices of forming judgment outside of the normal parameters of inheritance.
When patriot theorists appealed to the Crown, they also looked to their charters and, therefore, to textual support for royal responsibilities of protection and the checking of Parliamentary absolutism. Jefferson carried the logic of that appeal to radical conclusions: he went about the project of constituting a republican polity by relocating and transforming the power of sovereign judgment and its jurisdiction within constitutional structure to varied assemblies of the people. Thomas Paine had written in Common Sense that not only did the crown have to be removed from the head of the king, it also had to be “demolished, and scattered among the people whose right it is.”Footnote 32 The revolutionary constitution of Pennsylvania announced the fundamental principle of the public's ultimate, active authority to judge their representatives as well as the adequacy of constitutional structures themselves.Footnote 33 In his 1774 Summary View of the Rights of British America, an extended defense of the historical agency of American settlers themselves in the conquest and cultivation of the country, in direct conversation with the theoretical underpinning of the constitution of the Empire, Jefferson nevertheless framed his argument as a dutiful appeal to the king's conscience. The conscience of the king was the final arbiter of legal and constitutional debate in an imperial constitution through which the Crown ruled and appointed judges who decided on the basis of natural equity.
Ultimately, the Declaration of Independence itself can be understood as a purposive response to the condition of being subject to the distant judgment associated not only with the vetoing power of the Privy Council and the legislative authority of Parliament, but also with the “Mansfieldian Moment” in English jurisprudence.Footnote 34 Such judgment was based on criteria and took place within institutional structures that the judged had not had a hand in making, and the argumentative logic of Jefferson's text makes a critical move that indicates a reworking and relocation of equity itself. The people, in taking action to dissolve constituted legal bonds that had become harmful to the spirit in which they were originally made with appeal to natural justice, inherited not so much the overall political sovereignty of the Crown as the responsibility for constitutional judgment invested in offices of conciliar adjudication.Footnote 35 Jefferson's revolutionary constitutionalism can be understood as an attempt to institute in practice the people's inheritance of the burden of equitable judgment. The people themselves, in this framework, inherit the awesome responsibility to exercise judgment about the conditions for the operation of law and governance. The people assume the powers and responsibilities to step into the borderlands of law and make a judgment on their own, when, “in the course of human events,” such action seems necessary. Using the framework of equity jurisprudence, Jefferson sought to make this kind of activity a legitimate and essential part of politics.
An experience of the freedom of reading, interpreting, and using law and its history lay at the basis of Jefferson's constitutional theory. Jefferson was famously an obsessive collector of the manuscript copies of Virginia Company records and the Virginia laws dating back to the origins of English settlement. He tracked down book and manuscript collections of William Byrd as well as of Richard Bland, and preserved state legal records from both private and public libraries. Referring later to the records as being both remains and monuments to the history and property of Virginia, Jefferson thought it necessary to have a textual, historical basis that was as comprehensive as possible for everything from the legitimacy of colonial land claims and the jurisdiction of colonial institutions to the historical identity of elite Virginians as acting out a distinct but conjoined constitutional history with that of England.Footnote 36 His massive commonplace books of literature, common law and political theory, and equity jurisprudence are testaments to an immense engagement with the study of law and its history, far beyond that of his fellow students George Wythe, John Marshall, or, for that matter James Madison.Footnote 37 Among Virginians as well as the others he met at the Continental Congress in Philadelphia, Jefferson was recognized not simply as a young idealist or a good writer, but first and foremost as a scholar, an antiquary, and a “great rubber-off of dust.”Footnote 38 Such recognition reflected Jefferson's own immersion in the collection and reading of the law, particularly as the practice of the study of law had been handed down by Coke, who depicted legal study as a challenging exercise in erudition for which only the very few were fit.
In setting down his critical summations of law in the four volumes of the Institutes, Coke saw himself as giving to readers the “signification” of the “ancient bookes, charters, deeds, and records” they would encounter in their study so as to instruct them to “know how to work into with delight these rough mines of hidden treasure.” Knowledge of the law for Coke was akin to a “deep well,” into which only the sage reached most deeply, and, in doing so, could bring the hidden treasure to the light of understanding.Footnote 39 This almost esoteric draping of legal knowledge in the cloak of a barely penetrable history was identified by the skeptical Hobbes as a mask for claiming constitutional power against the sovereignty of the Crown. At the same time, the profoundly textual, antiquarian image of the study of law had tremendous cultural importance to elite colonial Virginians eager to display their claim to the inheritance of English law and legal culture. Jefferson was the chief inheritor of this legacy, and he was widely seen as such: Madison, describing Jefferson's depth, remarked that Jefferson had studied the law “to its bottom, and in its greatest breadth,” an echo of Coke's metaphor of the deep well.Footnote 40 Jefferson's enthusiasm for both Coke's common law methods of learning and the distinctness of the jurisdiction of equity might seem contradictory, but such blending is fairly representative of the acts of bricolage that characterized his thinking over the course of his life. The productive tension between common law and equity as Jefferson seized on it is an important sign of his thinking's mobile eccentricity. That Jefferson's collection of conceptually distinct legal histories was itself conducted through the theory and practice of commonplacing and assembling is an equally important sign of the material plasticity of those histories in his hands.
Oddly, perhaps, for someone so often depicted as a rationalist, ahistorical, and modernizing liberal, Jefferson remained at pains to keep alive in practice Coke's immersive, archival self-understanding for the student of law. The antiquarian John Aubrey wrote of Coke's tract on Thomas Littleton, the first volume of the Institutes and the most widely possessed law book in eighteenth century Virginia, that whereas readers had expected a treatise by Coke, what they got was, in effect, a commonplace book of Coke's reading and thinking in legal history.Footnote 41 Against the developments in contemporary English jurisprudence associated with Blackstone and Mansfield, which Jefferson understood as a centralization of constitutional judgment, Jefferson suggested that American law students continue to read Coke, and, more importantly, that they continue to read the law as an assemblage of texts and practices rather than as a rational system reducible to codification either in the form of a treatise or a law code itself. Jefferson urged a young law student to anchor his reading in older law reports and Coke's famously arcane texts as opposed to the more recent alphabetized reports in common law and equity or the Commentaries of Blackstone.Footnote 42 Whereas the increase in legislative activity experienced in the eighteenth century had perhaps made the digests of Bacon and Blackstone necessary, he admitted, it was the loss of the more historically inflected presentation of Coke and the earlier medieval legal theorists that Jefferson mourned. St. George Tucker, a fellow Virginian, jurist, and Jeffersonian, wrote in the preface to his 1803 edition of Blackstone's Commentaries that with the appearance of the Commentaries, the Laws of England, from a rude chaos, instantly assumed the semblance of a regular system… The crude and immethodical hours of Sir Edward Coke were laid aside, and that rich mine of learning, his Commentary upon Littleton, was thought to be no longer worthy of the labor requisite for extracting its precious ore.”Footnote 43 Jefferson and Tucker both were concerned to keep hold of a particular way of approaching the texts of law and legal knowledge, one that kept the law as a “rude chaos” in view.
That is not to say that Jefferson and Tucker endorsed Coke's historical narrative of the common law or the polemical force of Coke's intent, making the ruling the common law judge impenetrably robed in an image of uncontestable learning. In his understanding of consequences of the Conquest for the ancient constitution, Jefferson was much closer to Spelman (and, for that matter, to the Levellers) who could agree that whatever the historical reality and substance of the ancient constitution had been, its social conditions, spirit, and structures were no longer around.Footnote 44 What seems to have shaped Jefferson's worry about Blackstone's work was less that it pushed Coke aside than it indicated a sense that students were losing an explicitly, self-consciously textual experience of the law and legal knowledge. Mediated through the “material rhetoric” of the commonplace book, this was law understood as a body of assembled history that was capable of being recognized as such by its reader, and was, therefore, capable of being reassembled and reinterpreted.Footnote 45 That is precisely why the method of the humanist commonplace book mattered so much to Jefferson, and it was in this framework of exploring keeping legal and constitutional text open that he looked for ways to confront the problem of designing institutional structures where the burdens of political and legal judgment were shared and never located in the power of a sovereign singularity. The impulse behind Jefferson's constitutional thinking was a skepticism of projects representing law as authoritatively traditional and comprehensively rule-bound, or as a rationalized system, and it was the contested concept of equity and its central place in British Atlantic constitutionalism that provided fuel for that impulse. In equity, Jefferson found a logic of reassembling and rereading the law, and in the context of revolutionary constitutionalism that logic itself could be transformed, reconstituted, and reapplied liberally.
One could say that it not so much a reading of legal history as an experience of the freedom of reading legal history with an eye to reordering it that Jefferson came to understand as a critical aspect of forming the capacity to judge in the realms of law and politics. Among his proposals for legal reform in Virginia, Jefferson included a proposal on the criminal law that included extensive legal and historical commentary on both existing and proposed changes in the law. The text of the actual bill as submitted to his fellow members on the committee continued in precisely the manner of Coke's first volume of the Institutes, replicating the glossator's assemblage not in a legal treatise but in the text of the law itself.Footnote 46 This was part and parcel of a project of exploring how to divide and spread responsibility for jurisprudence, or to arrive at a kind of public capacity for aristocratic reading, a project for which a particular system of public education in history was absolutely necessary.
Jefferson took inspiration from Kames in his projects of abolishing “feudal” common law rules of entail and primogeniture, but in doing so, he was implementing only part of a wider project of establishing what he considered to be a republican constitutional culture.Footnote 47 In contrast to many of the other leading legal theorists among the founding generation, the jury for Jefferson was not the only avenue through which he sought to “introduce the people into every department of government as far as they are capable of exercising it.”Footnote 48 This was especially the case in Jefferson's plan to introduce trial by jury into the chancery cases of a newly constituted High Court of Chancery, which placed an institution of popular assembly next to, and in some cases in place of, the conciliar judge. Juries in chancery cases, Jefferson proposed in the bill for chancery, would have the power to decide in matters of fact, whereas judges decided matters of law unless the jury suspected biased or compromised judgment, in which case it would assume powers of deciding matters of law.
Juries, however, were only one entity among many in Jefferson's imagined constitutional polity in which institutions and practices of public deliberation would be essential. In his 1776 draft of a constitution for Virginia, Jefferson discussed an elaborate amendment process, writing that “none of these fundamental laws and principles of government shall be repealed or altered, but by the personal consent of the people on summons to meet in their respective counties on one and the same day” to vote in small bodies on the repeals of or alterations to the text of the constitution.Footnote 49 Similarly, Jefferson would write to Madison from Paris that among his disappointments in the federal constitution was the lack of the text having been “duly weighed & canvassed by the people.”Footnote 50 Resting constitutional politics on the capacity of the citizenry for exercising judgment required a heavy investment in the “education of the common people.” In Jefferson's mind, one of the most egregious failures of the first state constitutional convention in 1776, and the second one in 1783, was the failure to adopt his plans for a codified right to basic economic security and free access to public education, which he proposed “to be chiefly historical.” History would enable students “to judge of the future; it will avail them of the experience of other times and other nations; it will qualify them as judges of the actions and designs of men.” If it was true that “every government degenerates when trusted to the rulers of the people alone,” and that therefore “the people themselves are its only safe depositories,” then embedding of law and politics in an institutional setting of an actively engaged populace armed with a conceptual museum for their own thinking and actions. Footnote 51 The last part of Jefferson's recommendations for further law reform not adopted by the General Assembly, called for a public library and gallery, “laying out a certain sum annually in books, paintings, and statutes” to further allow for solid material bases of shaping and practicing judgment, of using books and other media of transmitting historical memory to “impress” the minds of the young and to create citizens possessed of the capacity to exercise constitutional judgment.Footnote 52
In its emphasis on the conditions and criteria for judgment, the language of equity framed Jefferson's efforts to think about the design of institutions. His efforts to multiply the spaces within a polity where the burdens of judgment were taken up, and to diffuse power across “several bodies of magistracy” and a “plurality of hands,” necessitated thinking about the practices that would be appropriate to collective life in such institutions.Footnote 53 Jefferson's theory demanded of itself a particular kind of reader, one capable of seeing the tradition and structure of constituted legal authority as assembled, as a kind of collective commonplace book of the polity. Such a reader was to be created and sustained through a particular kind of textuality. When a special committee was appointed to take stock of the laws of Virginia and propose reform bills to the General Assembly and the members debated whether to propose reform bills or produce a new Institutes along the lines of that of Justinian, the more reformist members inclined to the former, fearing the fixed status a foundational text of fundamental law would come to have in subsequent legal and constitutional disputes. As Jefferson wrote of the common law in the query on laws in Notes on the State of Virginia, “it was thought dangerous to reduce it to a text.”Footnote 54 The new code, “when reduced to a text, every word of that text, from the imperfection of human language, and its incompetence to express distinctly every shade of idea,” would become the object of questioning and endless turning over in adjudication of subsequent cases.Footnote 55 A codification would, Jefferson feared, unjustly obfuscate and bind the redefining power of future legislatures and generations.
Jefferson persistently maintained a criticism of constitutional text and thought that had the tendency to put, or had been constructed expressly for the purpose of putting, itself beyond its status as an object always susceptible to the dynamism of continued use. Equity, understood as a framework within which to challenge, correct, disrupt, or ameliorate the normal and traditional grounds for usage, can, therefore, be said to have had an enormous impact on Jefferson's thinking. “The earth belongs in usufruct to the living,” he famously informed James Madison.Footnote 56 This assumption was spread across Jefferson's career. Constitutions, for Jefferson, were not the only thing that needed to be submitted to democratic processes of reconsideration in every generation. His draft of a constitution for Virginia in 1776 called for the distribution of land to every adult white male in the state.Footnote 57 When property rights had accumulated or been construed to leave people without property, Jefferson also wrote to Madison, it was plain to him that the right of property had been allowed to run afoul of natural right, and in such a circumstance, the people had the right to appropriate adequate property. “Legislators,” he wrote, “could not invent too many devices for subdividing property.”Footnote 58 A healthy republic required an equitable economic basis, and, therefore, property, like law, should be subject to rearrangement, reconsideration, and redistribution.
Language, too, was subject to reformulation. “Dictionaries,” he wrote to John Adams, “are the repositories of words already legitimated by usage.”Footnote 59 In language, Jefferson reasoned, the only arbiter was usage, because he saw usage as “giving law to grammar, rather than grammar to usage.” Recognizing this was the only way to keep language “ductile and copious.”Footnote 60 Such an understanding of language flowed from his understanding of the place of law in a democratic culture. Jefferson, uniquely among his peers, understood democracy as a commitment to enabling the potential for new and critical usage of law and language, the stuff of constitutional and cultural inheritance.
Conclusion
Debates over the legitimacy and location of equitable consideration centered around a dialectic of the universally authoritative formality of rules and the case-by-case dynamism of usage and judgment. In a letter to Philip Mazzei in 1785, Jefferson explained, in agreement with the narrative of Kames, that a distinctive jurisdiction of equity had arisen in England “when commerce began to make progress, when the transfer of property came into daily use, when the modifications of these transfers were infinitely diversified,” and when “with the improvement of other faculties that of the moral sense became also improved.”Footnote 61 A regular jurisdiction of equity developed in the face of what David Lieberman has called the “legal needs of a commercial society,” and institutions arose that distributed powers of adjudication in new conditions and new cases away from the ecclesiastical monopoly on mostly Roman legal learning and into an established court system.Footnote 62 In the developmental historical narratives sketched by Scottish moral philosophers, changes in the moral sensibility of members of society and, therefore, of society itself allowed for and depended upon entrusting the carrying out of justice to the cultivated and improved faculty of judgment.
The achievement of equity in a particular case was the product of the complex development of the capacity of human beings in specific social environments over time.Footnote 63 No positive law or jurisdiction could ever be fully aligned with natural law, but equity allowed for bringing the human ordering of cases and actions into proximity with natural justice. As Adam Smith suggested, the inclination to theorize a natural jurisprudence, or a general system of laws underlying the particular laws of all nations, was itself a product of recent history, and such a theoretical inquiry was to be conducted through the study of human nature, as it had interacted with the world in time in the varieties of practices and institutions that different societies had created, maintained, and adapted.Footnote 64 Jefferson took equity a step further in his projects of exploring institutional arrangements that nurtured the abilities of citizen participants to exercise judgment and to inherit the responsibility for applying jurisprudence to the operation of the laws. This was to give greater emphasis to the importance of judgment and of the capacity of citizens for the exercise of self-possession and propriety in their political usages of law and language.Footnote 65
The key to success in this project was equipping the citizenry not only with critical educational tools but with a textual inheritance that remained open for perpetual submission to new use. This was why Jefferson felt comfortable suggesting to Mazzei that state legislatures should take the developed precedents of equity courts and “reduce these rules to a text, and transplant them into the department of the common law,” keeping the common law responsive to change from an external, more open conduit of rule formation while maintaining a distinction between equity and common law jurisdictions.Footnote 66 It was the unification of the open quality of equitable judgment and the power of common law judges that Jefferson saw as the danger in the jurisprudences of Blackstone and Mansfield. The whole legal system became subject to the central and arbitrary rule when we “relieve the judges of the rigour of text law, and permit them, with pretorian discretion, to wander into it's equity,” as had been the fate of every nation “where the fixed, and the discretionary law had been committed into the same hands.”Footnote 67 Discretionary law, or equitable judgment, when practiced in construing the common law, made itself sovereign and uncontestable. If there is a constancy to Jefferson's revolutionary era constitutionalism, as well as his later embrace of the idea of council democracy in the form of ward republics, it is the firm belief that public liberty cannot survive being subject to a singular and potentially arbitrary will or judgment. Rather, public liberty required a fragmenting and diffusion of sovereign judgment across multiple spaces of both legal and political deliberative activity.Footnote 68
Equity was a flexible and uncertain but useful concept in early modern legal and political thought. As such, it lent itself to use in a variety of contexts that ranged from the mundane to the extraconstitutional, and it behooves legal historians to appreciate not only the centrality of equity as a political and constitutional idea in the early modern context, but also its attractive applicability within a multitude of subcontexts. Equity was at the very least a way of thinking about the presence of broader constitutional issues in the everyday operation of legal practice, as well as the reality of legal, political, and intellectual practice for philosophical reflection on the foundation of sovereignty and the exercise of high constitutional politics, but for Jefferson, equity was something even more—a way of reading and representing the law's civic status—and that particular use of equity not only played a central role in his thinking, it was also tied directly to his understanding of modes of possible political life. For Jefferson, equity was more than an avenue of legal practice, although it certainly was that, and it was more than a legal philosophy, although it certainly was that, as well. Equity for Jefferson was a hermeneutic tool for thinking about what law and constitutionalism could look like in a revolutionary republican polity, and the fact that he used the tool for things other than those that many of its previous makers and users had intended should alert us to the dynamic quality of conceptual use in intellectual history. Jefferson's multivalent use of equity illustrates the importance of the history of thought to the history of law, and vice versa, because both, in the end, are material histories of use. In the final analysis, Jefferson broke law and equity out of their respective contexts and used them differently, and our histories should be attuned to such moments in thought, not only in the service of a richer understanding of the past, but also to build courage for thinking originally and historically in the present.
