“James Madison, Law Student and Demi-Lawyer”

August 31st, 2011

The Law & History Blog links to a cool article, about James Madison’s studies as a law student, and a demi-lawyer (he never actually became a lawyer). The abstract is on SSRN, but the article is not free. I pulled some quotes.

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.

Very Cool. Apparently, Madison read the law, but never was admitted to the bar. Cartel hater!

Yet by the summer of 1785, Madison hesitated to become a lawyer. Awkward circumlocution characterizes his comments about the profession. He explained that he was “far from being determined ever to make a professional use of it.” [FN86] He hoped for a “decent & independent subsistence” but saw some “difficulties” with the “line” apparently of joining the profession. [FN87]
Biographers have presumed that Madison decided not to become a lawyer because of his concern about public speaking or the inherently distasteful nature of the legal profession. Most of Madison’s best friends and closest correspondents during these years were all lawyers (Bradford, Randolph, Jefferson, Edmund Pendleton, and James Monroe), and he left no evidence of any particular dislike of the profession. He did think himself a poor public speaker; however, that does not seem to have prevented him from giving any number of speeches in legislatures and conventions, and he could have easily sought appointment as a judge. One wonders whether his personality–often apparently shy–would have made dealing with clients an awkward endeavor.
After 1785, Madison seems to have gratefully abandoned admission to the bar. In 1786, after a brief trip to the Annapolis Convention, he returned to the Virginia legislature to work on the revisal. In the spring of 1787, Madison headed first to New York for Congress and then on to Philadelphia for the Convention that would not only bring him lasting fame but also, at the time likely of greater importance, a series of salaried government positions.

And the author discovered some long-lost notes from Madison:

Although Rives knew Madison, he based these specific conclusions on an examination of a set of Madison’s notes on Salkeld’s Reports. In 1858, Inman Horner, a Virginia lawyer, undertook to compare “the Manuscript Digest of Mr. Madison” with “the original Reports of Salkeld.” [FN92] Horner explained that Madison was not “a mere copyist” and that the manuscript was “worthy of preservation as a memorial of industry, patience and clear, strong and discriminating mind.” [FN93] In a longer letter that transcribed certain sections, Horner hoped “that it is sufficient to satisfy Mr. Rives as to the general character and merits of the compilation of Mr. M. If not, I should be pleased to make further enquiry.” [FN94]
Unfortunately, these notes subsequently went missing. In 1962, the Madison Papers editors included a listing for the manuscript in volume 1 but declared it “not found.” [FN95] I was curious whether the advent of electronic archival resources would surface this hitherto unfound manuscript. My initial search turned up only one known volume of notes on Salkeld’s Reports: a manuscript by Thomas Jefferson in the Library of*406 Congress, Thomas Jefferson Papers. [FN96] The digitized microfilm version available on the Library of Congress’s Web page of Jefferson Papers displayed the attribution on the label: “JEFFERSON, THOMAS // NOTES ON “SALKELD’S REPORTS.” [FN97] The Notes were not reproduced in the printed Jefferson papers. [FN98] Although they were microfilmed along with the other Jefferson papers, Jefferson scholars have not emphasized them. [FN99]
This “Jefferson” manuscript–hereafter referred to as the Notes–however, matched Horner’s brief transcription of the Madison law notes. [FN100] The provenance supported the possibility of Madison’s authorship. In 1931, the Library of Congress received the Notes from Miss Mary *407 M. McGuire of New York City. [FN101] She apparently was a grandchild of James C. McGuire, the administrator of the Dolley Payne Madison estate and afterwards the largest collector of Madison manuscripts. [FN102]
Which attribution was correct? Could Rives and Horner have mistakenly assumed that notes taken by Jefferson were those of Madison? [FN103] Granted, the Notes did not share many characteristics with the distinctive style of Jefferson’s later writing. They did, however, bear a distinct initial resemblance to the earlier sections of Jefferson’s Legal Commonplace, particularly when viewed as digitized microfilm.[FN104]
So was it Jefferson, or Madison? Analytical word count helps.
Some readers may be familiar with scholarship that seeks to identify the authorship of late eighteenth-century essays using statistical word counts. [FN119] An informal effort to count words proved sufficiently difficult and inconclusive that I abandoned it. The theoretical problems of comparing word counts derived from published political essays with heavily abbreviated law commonplaces also suggested little advantage.[FN120] Nevertheless, one interesting comparison did arise. In their important study of The Federalist Papers, Frederick Mosteller and David Wallace suggested that also was an important marker word for Madison, at least as against Hamilton’s writing. [FN121] The Notes show a repeated use of also where one would expect “in addition.” For example, the Notes author writes, “On breach of promise to marry, action lies for man as well as woman, also for scandalous words per quod he lost his marriage.” [FN122] Or, adding to the fourth rationale in a case, “also that if disseisee [sic] devises, and after re-enters, ye devise is good.” [FN123] Interestingly, this use of also appears in occasion in Salkeld itself. [FN124] In addition, the watermarks on the paper are consistent with the types of paper that Madison was using during this period, although this evidence is itself inconclusive. [FN125]
Rives and Horner would seem to have been correct in their belief that Madison authored the Notes. Existing evidence suggests that they date *413 from the mid-1780s. Madison thus took the Notes while engaged in his second attempt to study law and shortly before he attended the Philadelphia Convention.
So what were the notes?
But what to do with the Notes? They are not long, a mere thirty-nine pages plus two lines. They are not expansive, any number of entries consist of a case name and one brief sentence. They are not from a particularly interesting source but are summaries of common-law cases from Salkeld’s Reports. They appear to contain little original or intellectual content. They seem to bear no relation to some larger system of learning law. We know the note taker never went on to use them in professional sense as a lawyer.
Yet, in a peculiar sense, this apparent intellectual barrenness of the Notes offers a perfect opportunity to think about whether law student notes have a value beyond telling us “about colonial legal education.” Several decades ago, Walter Ong emphasizes, the technology of writing itself “separates interpretation from data.” [FN143] Even cursory written notes *417 necessarily involve interpretation of the original text. Can we find in these notes something of the mind of Madison?
And comments on how Madison outlined!
Although Madison did not sort the cases, he was highly selective. This selectivity is one of the most interesting aspect of the Notes. Salkeld contained approximately 240 heads. Madison copied material from approximately half. This selective approach whittled the 702 pages of Salkeld down to the thirty-nine pages plus two lines of the Notes. (A list in the *425 appendix to this article shows the heads contained in the third edition of Salkeld’s Reports and the heads that Madison omitted.)
Though selective, Madison’s approach nonetheless retained an impressive array of topics. The breadth can be appreciated if the heads that he copied are rearranged roughly under modern categories. His heads covered contract and commercial law, [FN183] property, [FN184] criminal law, [FN185] procedure,[FN186] torts, [FN187] and institutions and personnel. [FN188] The copied heads described an important core of law–one which remains at the heart of the modern first-year curriculum. Moreover, in less than forty pages, Madison recorded over 430 cases. In almost every case, Madison copied less than the entire version of the case in Salkeld. Regardless of how carefully he copied, he read over 400 cases and likely skimmed at least all the heads.
The omitted heads help to define the boundaries of Madison’s project. Madison dropped heads that did not appear applicable to postrevolutionary American law. In the A section, Madison dropped heads that related to uniquely English forms of property (ancient demesne, annuity), the Church of England (advowson), English criminal law not strictly followed (appeal and attainder), English citizenship (aliens), English regulatory *426 authority (alehouses), and English officials (authority). Revealing the degree to which an “American” law had developed by the mid-1780s, the list also reminds us that many cases and issues that appeared in English legal texts were viewed as irrelevant by American readers.
Overall, Madison’s selection reveals his tendency towards enthusiasm at the outset of a project and boredom by the end. (Recall that Hamilton is the author of the last twenty essays of The Federalist.)[FN189]A comprises the first twelve pages. B, C, D, and E each take four to five pages. But by page 31 (F), Madison has tired of the project. Indeed, he copied page 32 upside down. The entire rest of the alphabet of heads (F-W) are copied into the nine pages. To put it differently, Madison took thirty pages to copy approximately 300 pages– and then spent less than ten pages copying nearly 500 pages. He skips an increasing number of heads and, by W, Madison omits Wager of Law, Warranty, Waifs, Estrays, &c, Weights and Measures, Wills and Testaments, Witnesses, Words. He concludes with only one case underWrit.
Surprisingly, certain heads held no apparent interest. He skipped Law, common & civil and with it the case on the theoretical rationale for English law in the American colonies (Blankard). He omitted Aliensand its discussion of “Turks and Infidels” that “tho’ there be a Difference between our Religion and theirs, that does not oblige us to be Enemies to their Persons; they are the Creatures of God, and of the same Kind as we are, and it would be a Sin in us to hurt their Persons.” [FN190] And he omitted Villeins and Villenage.
Madison took zero notes about slavery cases.
Although villeins was a category unique to England, the only two cases listed in the section involved slavery. As noted above, in Smith v. Browne and Cooper, Holt held “that as soon as a Negro comes into England, he becomes free.” Yet, in Virginia, “by the Laws of that Country, Negroes are saleable.” [FN191] The following case, Smith v. Gould, involved an extended discussion of whether trover lay “not for a Negro, for that the Owner had not an absolute property in him; he could not kill him as he could an Ox.” The case report distinguished property in slaves as having only a civil, as opposed to natural, existence. Although the result implied slavery was a recognizable form of property, Salkeld ended the entry with the argument “Men may be the Owners, and therefore cannot be the Subject of Property.”[FN192] The cases could be read to suggest that slavery was only legal where authorized by positive *427law and that slavery itself was legally problematic. Jefferson copied Smith, and Adams commented upon the cases in the margin of his Notes. Madison was completely silent.
It seems Madison was particularly interested in the law of sex:
Sex, of course, was not a head in Salkeld. Nonetheless, Madison managed to copy a significant number of cases related to the subject. Perhaps recalling the end of his engagement to Kitty Floyd, he copied “On breach of promise to marry, action lies for man as well as woman, also for scandalous words per quod he lost his marriage.” [FN214] Madison similarly copied many of the cases involving cohabitation. [FN215]Lastly, he seemed particularly interested in bastards–but what motivated his fascination with the subject has to remain purely speculative. [FN216]
One link to the constitutional convention (weak link):
Another subject–time–held equal interest. Under various heads, Madison copied cases that showed the difficulty of figuring out precisely what was a year or a week. For example, under Age, he wrote, “It has been adjd that if one bee [sic] born the first of February at eleven at night, & ye last of Jany in his 21 year at one in the morning he makes *432 his will of lands & dies, he was of age and will good.” [FN217]In another example, Madison explained that where an insurance policy dated September 3, 1697, was to insure for “one year from ye day of the date thereof” and the insured died at 1 a.m. on September 3, 1698, the words “excludes ye day” and the insurer is liable. [FN218] One of the best examples of direct influence relates to this case. According to Madison’s Convention notes, on September 13, 1787, Madison moved to amend a constitutional requirement of ten days for return of a bill. He wanted to insert “the words ‘the day on which’–in order to prevent a question whether the day on which the bill be presented, ought to be counted or not as one of the ten days–.” [FN219] The members were “very impatient” with Madison. Madison recorded Gouverneur Morris’s statement: “The amendment is unnecessary. The law knows no fractions of days–.” [FN220]
This part, about how Madison, a non-lawyer, was so adept at constitutional interpretation:
A second and related point about the Notes returns us to Madison’s status as a demi-lawyer. Madison wrote and spoke extensively on constitutional interpretation; yet, he never was a lawyer or a judge. He embraced with relative comfort constitutional interpretation carried out by nonprofessionals (often himself). At the Convention, he supported proposals for a negativing power and council of revision.[FN276] In Congress in 1789, he suggested departmentalism. [FN277] Throughout congressional debates during the 1790s over the constitutionality of legislation, Madison advanced various interpretations of the Constitution. Later in the 1790s, he contemplated state interposition. [FN278] Yet he never completely rejected *442 judicial review and, as the editors of the Madison Papers point out, suggested that the “‘judicial bench, when happily filled,’ was ‘the surest expositor of the Constitution.”’ [FN279] Excellent and extensive scholarship has debated whether Madison was consistent or inconsistent in these views, whether he changed his views over time or remained true to some deep core belief (described variously, for example, as popular sovereignty or separation of powers), and whether these views were consonant with or opposed to the Founding vision (whatever that might be). [FN280] This study does not attempt to contribute significantly to the debates within this work.
But this small study may help to further illuminate Madison’s understanding of himself. In a book devoted to exploring the apparent contradictions in Madison’s thought, Lance Banning suggests that the problem with the scholarly disputes has been that “our interpretive container simply would not hold the founder’s understanding of himself.” [FN281] Although recent studies have continued to demonstrate the relationship between his study during the 1770s and 1780s and his later political thought, demilawyer status plays no role. [FN282] Jack Rakove has argued that “the framers worried about how the Constitution would be interpreted not as lawyers but as legislators.” [FN283] Yet in Madison’s mind, these two categories may have been blurrier than we tend to view them today.
For Madison, I think significant law study without professional status may have been critical to his self-understanding. Could he have arrived at his varied approaches to constitutional interpretation without some *443 study of law?–I doubt it. Could he have advocated these positions as a lawyer?– possibly. But he might not have been so uncertain or ambivalent. His law study and demi-lawyer status supported and made easier his ambivalent feelings about the location and boundaries of constitutional interpretation. Indeed, why would Madison–as insightful at the problems of language as the next man and with some significant study of the law–cede constitutional interpretation to others? How could someone for whom interpretation and language had been a lifelong love give it up because certain visions of post-1787 American constitutional structure suggested only judges and lawyers were supposed to participate? Even inFederalist 37, we see the guarded suggestion that discussions can help to ascertain meaning: “New laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.” Nevertheless, Madison also grasped–particularly as time passed–that the way in which constitutional questions were presented in litigation rather than as legislation might prove significant.
In an older, imperial world in which a Privy Council reviewed colonial legislation on its face for constitutional conformity, a law student or demi-lawyer such as Madison could play an important role.[FN284] In a new American world of judges, cases and controversies, a new Supreme Court, a developing Supreme Court bar, and a growing American constitutional tradition, a demi-lawyer may have desired but also been less certain about a role. Just as Madison never “formed any absolute determination” to become a lawyer, so he hesitated to form an absolute determination about the role of lawyers and judges in the new republic. [FN285] 
Well, where the hell does this leave us? Madison had no clue what he thought. Wonderful.