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Thomas Jefferson and the Uses of Equity

Published online by Cambridge University Press:  23 February 2015

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

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Law and History Review , Volume 33 , Issue 1 , February 2015 , pp. 151 - 180
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Copyright © the American Society for Legal History, Inc. 2015 

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References

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

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

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

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

28. Douglas Wilson and Kevin Hayes highlight the importance of the theoretical treatment of equity in the first part of Kames' Principles of Equity and as recorded in Jefferson's equity commonplace book (#1077–1131), pointing out that writings by Kames alone makes up nearly half of Jefferson's pages. However, it is equally important to point that the other sources all point to a practical use of established rules of precedent in chancery case law. As Dumbauld illustrates, Jefferson's limited interpolations in the text testify to that: see Eyton v. Eyton, Champernoon v. Grubbs, Foster v. Foster (#395, #398) in the extensive entries from Vernon, Thomas, Cases Argued and Adjudged in the High Court of Chancery (Dublin: J. Watts, 1726)Google Scholar, #22–618, 1812, Dumbauld, “Thomas Jefferson's Equity Commonplace Book,” 1267–69; see also Atkyns, John Tracy, Reports of Cases Argued and Determined in the High Court of Chancery in the Time of Lord Chancellor Hardwicke (London: H. Woodfall and W. Strahan, 1765)Google Scholar, vol. 1, #2000–2017. Hardwicke's jurisprudence as recorded in these and other reports would have been particularly important, as it established and asserted against critics of an independent jurisdiction of equity that equity as a branch of jurisprudence had developed its own system of maxims: see Lieberman, David, The Province of Legislation Determined: Legal Theory in Eighteenth Century Britain (Cambridge: Cambridge University Press, 1989), 76–78CrossRefGoogle Scholar, 81–83.

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

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

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

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

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

54. Ibid., 144.

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

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

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

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

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

63. It is important to note here that the practical jurisdiction of equity, understood as it was by Adam Smith and Lord Kames to be the jurisprudential aspect of the science of humanity, is at some distance from the Aristotelian framework of attending to the purpose, end, or telos naturally and essentially inherent in a thing. Both Smith and Kames understood justice and utility as possibly competing goals that equitable consideration was meant to exercise proprietary judgment in balancing rather than simply restoring to natural harmony. See Smith, Adam, The Theory of Moral Sentiments (Edinburgh: A. Kincaid and J. Bell, 1759), 146–48Google Scholar, Kames, Principles of Equity, 373–74: John Robertson, “The Scottish Enlightenment at the Limits of the Civic Tradition;” Nicholas Phillipson, “Adam Smith as Civic Moralist;” Pocock, J.G.A., “Cambridge Paradigms and Scotch Philosophers: A Study of the Relations Between the Civic Humanist and the Civil Jurisprudential Interpretation of Eighteenth Century Social Thought,” in Wealth and Virtue: The Shaping of Political Economy in the Scottish Enlightenment, ed. Hont, Istvan and Ignatieff, Michael, (Cambridge: Cambridge University Press, 1983) 137–202Google Scholar, 235–52; Burchell, Graham, “Peculiar Interests: Civil Society and the Governing ‘The System of Natural Liberty,” in The Foucault Effect: Studies in Governmentatlity, ed. Burchell, Gordon, Colin, and Miller, Peter (Chicago: University of Chicago Press, 1991), 119–50CrossRefGoogle Scholar; and Rothschild, Emma, Economic Sentiments: Adam Smith, Condorcet, and the Enlightenment (Cambridge, MA: Harvard University Press, 2001), 7–12Google Scholar, 88–115.

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

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67. Jefferson, ibid., 71.

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