Madison’s “Notes on Salkeld”

Editorial Note

The first editors of The Papers of James Madison were aware that JM had at some point made a “digest” of William Salkeld’s 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, from the First Year of K. William and Q. Mary, to the Tenth Year of Queen Anne, six editions of which were published in London between 1717 and 1795. Salkeld (1671–1715) was an English serjeant-at-law and law reporter whose case notes were widely read in both England and the American colonies as part of the training for aspiring lawyers. John Adams, Alexander Hamilton, and Thomas Jefferson were among the leading lights of the revolutionary generation in America who read Salkeld’s reports. There was, therefore, nothing unusual about JM turning to that source when he decided he might acquire a knowledge of the law to qualify for the bar.

JM’s early editors deduced the existence of JM’s digest from an 1858 letter from Inman Horner, a Warrenton, Virginia, lawyer, to William Cabell Rives, who had embarked on a biography of JM. Horner indicated that he possessed JM’s digest of Salkeld and believed that JM had a keen eye for grasping the essence of the law that would have made him an eminent legal statesman had he persevered in the profession (PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (1st ser.; vols. 1–10, Chicago, 1962–77; vols. 11–17, Charlottesville, Va., 1977–91). description ends , 1:70–71). But the editors were unable either to locate JM’s digest of Salkeld or to determine whether JM ever acquired a personal copy of Salkeld’s reports, although JM did mention on multiple occasions that he had obtained books to further his legal studies. The editors surmised that JM had created the digest after his 1771 graduation from the College of New Jersey in Princeton, probably around the time he was corresponding with his college friend William Bradford, who eventually became U.S. attorney general during George Washington’s second administration, about the advantages and disadvantages of a career in the law. (JM appears to have been more impressed by the disadvantages.) The editors thus presumed that JM’s digest was a relatively youthful work from around 1774 that belongs in the same category as his student commonplace book, his “notes on a brief system of logick,” and his commonplacing of a 1765 London reprint of William Burkitt’s Expository Notes, with Practical Observations, on the New Testament of Our Lord and Saviour Jesus Christ (PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (1st ser.; vols. 1–10, Chicago, 1962–77; vols. 11–17, Charlottesville, Va., 1977–91). description ends , 1:7–24, 37–41, 52–59, 70–71, 74–76, 79–81, 83–122).

However, thanks to the investigative efforts of Professor Mary Sarah Bilder of Boston College Law School, we now know that JM’s digest had been hiding in plain sight for nearly a century. In 1931 Mary McGuire, a granddaughter of James C. McGuire, who had acquired some of JM’s papers from Dolley Payne Madison and John Payne Todd, presented the digest (bound together in a marbled volume with manuscript copies of two laws) to the Library of Congress. The librarians concluded that the digest had been written by Thomas Jefferson, presumably because Jefferson owned a copy of Salkeld’s reports, despite the fact that Jefferson had also made—in his Legal Commonplace Book and his Equity Commonplace Book—two very different sorts of commonplaces of Salkeld than the digest donated by Mary McGuire. The digest was thus preserved among the Library of Congress’s collection of Jefferson materials in series 7, volume 5 of the Thomas Jefferson Papers microfilm as well as among the digital images of Jefferson’s papers on the American Memory website (https://www.loc.gov/item/mtjbib026577/).

Bilder realized that the handwriting in the digest of Salkeld was not that of Jefferson, nor could it be said to resemble very closely the hand in JM’s youthful writings of the 1770s. But the handwriting did resemble that in the notes JM made in the 1780s on such subjects as the preparations for his 1785 Memorial and Remonstrance against Religious Assessments. It seemed reasonable, therefore, to conclude that JM’s digest dated from the 1780s, particularly since JM mentioned in his correspondence and in his autobiography that he had resumed the study of the law at that time and had devoted many mornings to that pursuit (Mary Sarah Bilder, “James Madison, Law Student and Demi-Lawyer,” Law and History Review 28 [2010]: 389–449; PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (1st ser.; vols. 1–10, Chicago, 1962–77; vols. 11–17, Charlottesville, Va., 1977–91). description ends , 8:195–99).

JM returned to the law in the 1780s for several reasons. By 1783 American independence had been won, and JM had been term-limited after the conclusion of his service in the Continental Congress. That year also saw his brief engagement to Kitty Floyd of New York, and he needed both an income and a more stable profession than that of a Virginia planter and an occasional member of the Virginia House of Delegates. The need for an income probably led James Madison Sr. to gift his son 560 acres of land in Orange County, Virginia, in August 1784, but JM was not at all reconciled to becoming the master of a plantation. As late as 1786 he and James Monroe purchased land in the New York’s Mohawk Valley to avoid depending on slave labor for their livings. JM may well have considered the possibility of relocating to New York and supporting himself by practicing law (PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (1st ser.; vols. 1–10, Chicago, 1962–77; vols. 11–17, Charlottesville, Va., 1977–91). description ends , 8:99, 328, 505, 506 n. 2, 9:25).

One measure of the widespread popularity of Salkeld’s reports was the publication of so many editions. Which of these did JM consult? It is difficult to answer that question with certainty, but the fifth edition (1773) seems the most likely. JM’s digest notes a handful of cases—Robins v. Robins, Iveson v. Moore, Ashby v. White, and Harrison v. Cage & Ux—that mention Robert, Lord Raymond’s two volumes of Reports of Cases Argued and Adjudged in the Courts of King’s Bench and Common Pleas, in the Reigns of the Late King William, Queen Anne, King George the First, and His Present Majesty as one of the references on which Salkeld’s reports were based. Raymond served as chief justice on the King’s Bench between 1725 and 1733, and his reports were intended as a continuation of and a supplement to those of Salkeld. But Raymond’s volumes did not appear until 1743, and Raymond was not cited as a reference in any of the four editions of Salkeld that appeared between 1717 and 1742. That might suggest that JM was familiar with Lord Raymond as a law reporter, though whether JM ever consulted Raymond’s volumes firsthand remains uncertain. JM may well have done so, as Raymond was frequently mentioned in eighteenth-century legal reporting in conjunction with Salkeld, although Salkeld’s reports were generally regarded as more accurate than those of Raymond.

In preparing his commonplace of Salkeld, JM followed the standard arrangement observed by most law students in the eighteenth century—that is, an alphabetical listing of headings starting with “Abatement” and finishing with “Writ.” JM’s notes were written out on thirty-nine octavo pages, with wide margins on both edges of the paper and spaces left between the case summaries, presumably to allow for the addition of later remarks. However, after about the first dozen pages, JM left fewer and smaller spaces between his notes, and his handwriting became increasingly miniscule, as if he sought to minimize the number of pages used. Indeed, rather than add another page, JM wrote his last two lines of notes on the reverse of the thirty-ninth page. Salkeld’s headings were organized into 241 topics, of which JM summarized approximately half (124). Why JM chose to select some headings and neglect others is unclear. His omission of English cases that would have had no relevance in postrevolutionary Virginia is easily understood, and he might well have felt no need to summarize cases or issues with which he was already familar. But there seem to be no discernable links between JM’s selections of cases from Salkeld and the issues that dominated JM’s career as a politician and as a framer and expounder of constitutions.

Studying JM’s notes leads to questions regarding just how much law JM learned and whether he ever made any other sets of legal notes. If he did, they have been lost; the Salkeld notes are the only ones to have survived. Yet JM almost certainly read many other sources when he returned to the study of the law in the 1780s. In 1784 JM asked his father to obtain the five volumes of Sir James Burrow’s Reports of Cases Adjudged in the Court of King’s Bench, since the Death of Lord Raymond (London, 1766–80) (PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (1st ser.; vols. 1–10, Chicago, 1962–77; vols. 11–17, Charlottesville, Va., 1977–91). description ends , 8:67 and n. 3, 80). Reading Salkeld and Burrows would have meant that JM had studied a considerable volume of English case law written between 1689 and 1760. And we know that in January 1785 JM spent some time reading law in the office of Edmund Randolph, the attorney general of Virginia (PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (1st ser.; vols. 1–10, Chicago, 1962–77; vols. 11–17, Charlottesville, Va., 1977–91). description ends , 8:217). We also know that in 1784 JM asked Jefferson for a copy of William Hawkins’s An Abridgment of the First Part of My Ld. Coke’s Institutes: With Some Additions Explaining Many of the Difficult Cases, and Shewing in What Points the Law Has Been Altered by Late Resolutions and Acts of Parliament ([London], 1711). Hawkins’s Abridgment sought to simplify the complexities of the notoriously difficult text of Edward Coke’s first volume as a means of preventing prospective lawyers from abandoning the profession in despair. That might suggest that JM, like most law students, was struggling with Coke’s Commentarie upon Littleton, but Jefferson was unable to locate a copy for JM (PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (1st ser.; vols. 1–10, Chicago, 1962–77; vols. 11–17, Charlottesville, Va., 1977–91). description ends , 8:11, 42).

In 1783, when JM drew up a list of volumes he thought Congress should acquire for its library, he had few suggestions in the way of lawbooks—fourteen titles, among them Coke’s Institutes, Blackstone’s Commentaries on the Laws of England, Justinian’s Institutes, and a handful of works on statutes, commercial law, and civil law. Missing are many of the classics on English common law, such as those by Lord Raymond, Sir Matthew Hale, Ranulf Glanville, Henry de Bracton, Sir John Fortescue, Matthew Bacon, Sir John Comyns, Sir John Dalrymple, and Sir William Hawkins. In comparison, JM recommended more than four dozen titles on the law of nations and maritime law. The imbalance surely tells us something about where JM’s legal interests really lay (PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (1st ser.; vols. 1–10, Chicago, 1962–77; vols. 11–17, Charlottesville, Va., 1977–91). description ends , 6:66–73, 90–92).

We are thus left with something of a paradox when we contemplate JM’s knowledge of the law. Even though JM never became a lawyer, he undoubtedly acquired enough knowledge by the standards of the day to be admitted to the bar. According to Jefferson, Patrick Henry—JM’s principal rival in Virginia politics in the 1780s—was said to have qualified for the bar after a mere six weeks of study (Looney et al., Papers of Thomas Jefferson: Retirement Series description begins J. Jefferson Looney et al., eds., The Papers of Thomas Jefferson: Retirement Series (Princeton, N.J., 2004–). description ends , 4:598). And JM’s colleagues during his service in the Virginia House of Delegates between 1784 and 1786 had few hesitations about charging him with establishing the courts of assize and seeing the 1777 revisal of the laws—as drafted by Jefferson, Edmund Pendleton, and George Wythe—through the legislative process. Moreover, the College of William and Mary awarded JM an honorary doctor of laws degree in 1785 (PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (1st ser.; vols. 1–10, Chicago, 1962–77; vols. 11–17, Charlottesville, Va., 1977–91). description ends , 8:262–63, 263 n. 1). But JM’s work on the revisal of the laws met with only limited success, which may have contributed something toward his reluctance to seek admission to the bar and to practice as a lawyer (PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (1st ser.; vols. 1–10, Chicago, 1962–77; vols. 11–17, Charlottesville, Va., 1977–91). description ends , 8:163–72, 391–99). Whether he also sensed that the rapidly growing number of lawyers in Virginia after the revolution was bringing the profession into some public disfavor can only be a matter of speculation.

JM never took the final steps to qualify as a lawyer, and the reality seems to have been that he could never muster much enthusiasm for the discipline. With his first attempt in the 1770s, he admitted to Bradford that he found the subject dry, dusty, and unrewarding and that he found “divinity” more meaningful (PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (1st ser.; vols. 1–10, Chicago, 1962–77; vols. 11–17, Charlottesville, Va., 1977–91). description ends , 1:75, 105). JM’s second effort in the 1780s went little better. Despite devoting more time to the project, he found his commitment flagging and occasionally reprimanded himself for lacking the willpower to do better (PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (1st ser.; vols. 1–10, Chicago, 1962–77; vols. 11–17, Charlottesville, Va., 1977–91). description ends , 8:3, 328, 346). This is not to say that JM had no use at all for his legal studies or that he failed to understand the importance of common-law thinking in the development of American constitutionalism. Moreover, some knowledge of the law was generally considered desirable for a gentleman of high social status. But by 1786 JM’s interests had turned in other directions—toward the history of confederations and to Buffon’s natural history (PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (1st ser.; vols. 1–10, Chicago, 1962–77; vols. 11–17, Charlottesville, Va., 1977–91). description ends , 9:3–24, 29–47). The Virginian now remembered as the Father of the Constitution and as the leading constitutional theorist of the founding era was probably bored by the study of the law—a strange paradox indeed.

In taking his notes, JM employed a system of abbreviations, presumably to save himself both space and time. For example, “defendant” became “dft.,” “Regina” became “Reg.,” “statute” became “stat.,” and “executor” became “exr.” or “extr.” Common abbreviations that are clear in context (e.g., “agst.” for “against,” “assignmt.” for “assignment,” “cd.” for “could”) have been reproduced as written with no editorial intervention. For more obscure abbreviations or those where JM’s meaning is unclear, appendix A lists terms that appear multiple times; other abbreviations have been expanded in brackets in the text. In some cases, JM also used the thorns “y” and “yt” rather than writing out “the” and “that.” The editors have expanded the thorns in conformity with the decision to do so in earlier volumes of the edition (PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (1st ser.; vols. 1–10, Chicago, 1962–77; vols. 11–17, Charlottesville, Va., 1977–91). description ends , 8:xxiii).

Appendix B lists the abbreviations for legal works cited multiple times in JM’s notes. Legal works cited only once in the document are explained in the endnotes.

Appendix C contains brief identifiers of all persons mentioned in JM’s notes.

Citations of the form P. 21 H. 7. 21. pl.8 refer to the Year Books (the earliest English law reports). This example means Paschal term of the 21st year of Henry VII, at page 21, plea 8.

The editors gratefully acknowledge the assistance of Professor Jon Lendon of the University of Virginia and Professor Tom Gallanis of the University of Iowa for the translation of Latin terms in this document. Randall Flaherty and Kent Olson of the University of Virginia School of Law Library graciously provided help in deciphering early English law reports and abbreviations.

(Secondary sources used in this note: “James Madison’s Autobiography,” ed. Douglass Adair, William and Mary Quarterly, 3rd ser., 2 [1945]: 191–209; Mary Sarah Bilder, “James Madison, Law Student and Demi-Lawyer,” Law and History Review 28 [2010]: 389–449; Warren M. Billings and Brent Tarter, eds., “Esteemed Bookes of Lawe” and the Legal Culture of Early Virginia [Charlottesville, Va., 2017]; Black’s Law Dictionary [11th ed.]; Edward S. Corwin, “The Posthumous Career of James Madison as Lawyer,” American Bar Association Journal 25 [1939]: 821–24; David Thomas Konig and Michael P. Zuckert, eds., Jefferson’s Legal Commonplace Book [Princeton, 2019]; David Lemmings, Professors of the Law: Barristers and English Legal Culture in the Eighteenth Century [Oxford, 2000]; A. G. Roeber, Faithful Magistrates and Republican Lawyers: Creators of Virginia Legal Culture, 1680–1810 [Chapel Hill, 1981]; and Douglas L. Wilson, ed., Jefferson’s Literary Commonplace Book [Princeton, 1989].)