- Thomas Jefferson, Legal History, and the Art of Recollection by Matthew Crow
Thomas Jefferson is often cast as an ahistorical thinker who championed natural rights. "'Our Revolution,'" he wrote, unlike the English Glorious Revolution of 1688, "'presented us an album on which we were free to write [End Page 142] what we pleased. We had no occasion to search into any musty records, to hunt up royal parchments, or to investigate the laws and institutions of a semi-barbarous ancestry. We appealed to those of nature, and found them engraved on our hearts'" (p. 3). However, Matthew Crow claims in his engaging book, "Jefferson's forthright declaration was complete nonsense" (p. 4). "Jefferson was more attuned than most to the fact that Americans found themselves in a heated political contest over history, and … historiography" (p. 25). That realization played out in various ways over the course of Jefferson's life.
Two opening chapters set the contexts "out of which Jefferson's concerns for collecting and reading legal history emerged" (p. 39). Chapter 1 explores "debates over the historical and textual authority of written law in seventeenth-century England" in works by Edward Coke, Francis Bacon, Thomas Hobbes, and others (p. 11). In chapter 2 we see how Virginians such as William Byrd II and Robert Beverley "configured law as a fragile assemblage" that would be molded in the process of "forging historical identity" (pp. 42, 43). Law and history were "inseparable," and the Scottish Enlightenment taught Jefferson similar lessons (p. 45). His legal commonplace books were dominated by extracts from works by Henry Home, Lord Kames, especially Principles of Equity (1760). Kames's sense "that one could not study the law without studying it historically, without comparing it to other systems of jurisprudence, and without understanding the social and governmental contexts in which law had developed, was perhaps the single most important idea shaping Jefferson's approach to learning in the area of the law" (p. 80).
The remaining chapters trace the ebbs and flows of the impact of equity jurisdiction on Jefferson. As a revolutionary, "[c]odification, and the sealing off of particular aspects of the life of the law from potential revision and contestation, was the chief target of Jefferson's constitutional criticism" (p. 83). For Jefferson, the imperial crisis was "a kind of jurisprudential problem" about who should judge (p. 99). Later settings provided different problems. Chapters 4 and 5 largely center on Jefferson's confrontation with race: first, as author of Notes on the State of Virginia (1785), and second, as a president who pursued an empire but "refused to see and take into account the complex histories" of North America's inhabitants (p. 232). A concluding chapter follows Jefferson in retirement. Jefferson had "another turn in thinking," and he now embraced the idea of a participatory government "'where every man is a sharer in the direction of his ward republic'" (p. 235).
For all its novel ideas and solid scholarship, this book is not without its shortcomings. Its argument would be clearer with fewer references to Ludwig Wittgenstein, Stanley Cavell, and others, which do not much help us understand Jefferson. There are minor inconsistencies, including slips in book titles, repeated passages, and occasionally contradictory interpretations. And some avenues might have been more fully explored. For instance, Crow emphasizes Jefferson's engagement with David Hume's History of England (6 vols.; London, 1754–1762) without referencing its celebrated first American edition in 1795, which could have helped explain the urgency of Jefferson's critique. This is especially so given Crow's contention that "Jefferson was preoccupied in later years with designing a constitutional culture and a corresponding textual environment that could nurture a people in their capacity to judge in common [End Page 143] affairs" (p. 250). Hume's History would not be part of Jefferson's mix, as he banned it from the University of Virginia. Clearly, Jefferson appreciated all...