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

3. Here my thinking about the history of thought owes much to the work of James Tully and Paul Rabinow and their respective readings and appreciation of the importance of the work of Wittgenstein and Foucault for intellectual history and the social sciences: see Tully, James, Public Philosophy in a New Key: Volume 1: Democracy and Civic Freedom (Cambridge: Cambridge University Press, 2010)Google Scholar; and Rabinow, Paul, The Accompaniment: Assembling the Contemporary (Chicago: University of Chicago Press, 2011).CrossRefGoogle Scholar

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5. Sir Coke, Edward (Steve Sheppard, ed.), Coke upon Littleton (1628), Selected Writings and Speeches of Sir Edward Coke, (Indianapolis: Liberty Fund, 2005)Google Scholar, 2:701. Coke built on a tradition of English legal thought: understanding equitable interpretation of the law as part of the common law rather than strictly as a component of the sovereignty of the Crown, and he put this claim to work in his jurisdictional disputes with Lord Chancellor Ellesmere, particularly on the power of the courts to issue penalties of praemunire outside of the diminished jurisdiction of ecclesiastical law. See Cromartie, Alan, The Constitutionalist Revolution: An Essay on the History of England, 1450–1642 (Cambridge: Cambridge University Press, 2006).CrossRefGoogle Scholar

6. The most direct target of Coke's ambitions was his political rival Francis Bacon (1521–1626), Queen's Counsel to Elizabeth I, clerk of the Star Chamber, attorney general, and Lord Chancellor under James I until brought down by scandal. Bacon sought strengthening of the royal prerogative and a checking of the power of common law courts to adjudicate on royal and parliamentary action through a revisal and codification of the legal code, removing the monopoly on the art of legal interpretation assumed by Coke's cloaking of the legal legitimacy in immemoriality: Francis Bacon, Elements of the Common Lawes of England (London, 1630)Google Scholar, originally composed to gain favor with Elizabeth I in the 1590s. On the respective humanisms employed in the jurisprudential narratives of Coke and Bacon, see Tuck, Richard, Philosophy and Government, 1572–1621 (Cambridge: Cambridge University Press, 1993)Google Scholar; Peltonen, Markku, Classical Humanism and Republicanism in English Political Thought, 1570–1640 (Cambridge, Cambridge University Press, 1995)CrossRefGoogle Scholar; Alan Cromartie, The Constitutionalist Revolution (Cambridge: Cambridge University Press, 2006), chap. 7; Summit, Jennifer, Memory's Library: Medieval Books in Early Modern England (Chicago: University of Chicago Press, 2008)CrossRefGoogle Scholar; Musson, Anthony, “Myth, Mistake, and Invention: Excavating the Foundations of the English Legal Tradition,” Law and History: Current Legal Issues 6 (2003): 63–81Google Scholar; and Lobban, Michael, “Custom, Nature, and Authority: The Origins of English Legal Positivism,” in The British and their Laws in the Eighteenth Century, ed. Lemmings, David (London: Boydell, 2005), 27–58.Google Scholar

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9. As Charles M. Gray has shown, chancery provided an increasing path of access to legal protection and action on the part of villains and copyholders as the authority of manorial custom declined relative to courts of common law from the fifteenth to the early seventeenth centuries: see Gray, Charles M., Copy-Hold, Equity, and the Common Law (Cambridge: Harvard University Press, 1963)Google Scholar; see also Ibbetson, David, A Historical Introduction to the Law of Obligations (Oxford: Oxford University Press, 1999)Google Scholar; and “Natural Law and Common Law,” Edinburgh Law Review 5 (2001), 4–20.CrossRefGoogle Scholar

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17. Kames, Lord, “Of the Introduction of the Feudal Law into Scotland,” in Essays upon Several Subjects Concerning British Antiquities (Edinburgh: A. Kincaid, 1757)Google Scholar; and preface, Lord Kames, “History of the Criminal Law,” in Historical Law-Tracts (Edinburgh: A. Kincaid and J. Bell, 1758)Google Scholar. See Lieberman, David, “Property, Commerice, and the Common Law: Attitudes to Legal Change in the Eighteenth Century,” in Early Modern Conceptions of Property, ed. Brewer, John and Staves, Susan, (London: Routledge, 1994), 144–58; David LiebermanGoogle Scholar, “The Legal Needs of a Commercial Society: The Jurisprudence of Lord Kames,” in Wealth and Virtue: The Shaping of Political Economy in the Scottish Enlightenment, ed. Hont, Istvan and Ignatieff, Michael (Cambridge: Cambridge University Press, 1983), 203–34CrossRefGoogle Scholar; and Lobban, Michael, “The Ambition of Lord Kames' Equity,” Law and History: Current Legal Issues 6 (2003): 97–121.Google Scholar

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19. William Byrd, “Westover Manuscripts,” (1692–1739), MS collections of the Virginia Historical Society, Mss10: no. 50, 350–3; the offending piece was “A Short Discourse on the Present State of the Colonies in America, with Respect to the Interest of Great Britain … .,” in Sir Keith, William, A Collection of Papers and other Tracts written occasionally on Various Subjects, to which is prefixed, by way of Preface, An Essay on the Nature of a Publick Spirit (London, 1711)Google Scholar, 175.

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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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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

57. Jefferson, “Jefferson's Third Draft,” Papers of Thomas Jefferson, 1:362; Jefferson's belief in the fundamental importance of an equitable distribution of property stemmed from republican concepts of the importance of propertied independence to liberty and the necessity of relative equality for maintaining the public spirit of a democratic government, concepts he absorbed from his reading of Montesquieu's Sprit of the Laws: see Montesquieu, Des L'Espirit des Loix, Nouvelle Edition (Paris: Barrillot and Fils, 1749), 1:68–70Google Scholar; Jefferson, Legal Commonplace Book, Thomas Jefferson Papers, Series 5, Library of Congress, Manuscript Division, Washington DC, 1762–1767, #777–778; and Nelson, Eric, The Greek Tradition in Republican Thought (Cambridge: Cambridge University Press, 2004), 200–9.CrossRefGoogle Scholar

58. Jefferson continues: “The descent of property therefore to all the children, or to all the brothers and sisters, or other relations in equal degree, is a politic measure and a practicable one. Another means of silently lessening the inequality of property is to exempt all from taxation below a certain point, and to tax the higher portions or property in geometrical progression as they rise. Whenever there are in any country uncultivated lands and unemployed poor, it is clear that the laws of property have been so far extended as to violate natural right. The earth is given as a common stock for man to labor and live on. If for the encouragement of industry we allow it to be appropriated, we must take care that other employment be provided to those excluded from the appropriation. If we do not, the fundamental right to labor the earth returns to the unemployed,” Jefferson to Madison, October 28, 1785, Papers of Thomas Jefferson, 8:682; see Stanley N. Katz, “Thomas Jefferson and the Right to Property in Revolutionary America,” Journal of Law and Economics 19 (1976): 467–88CrossRefGoogle Scholar; “Republicanism and the Law of Inheritance in the American Revolutionary Era,” Michigan Law Review 76 (1977–1978): 1–29CrossRefGoogle Scholar; Nedelsky, Jennifer, Private Property and the Limits of American Constitutionalism (Chicago: University of Chicago Press, 1990)Google Scholar; Schultz, David, “Political Theory and Legal History: Conflicting Depictions of Property in the American Political Founding,” The American Journal of Legal History 37 (1993): 464–95CrossRefGoogle Scholar; and Eric Nelson, who refers quite rightly to this passage as “perhaps the only genuinely proto-socialist statement to issue from the pen of an American founding father,” The Greek Tradition in Republican Thought, 206.

59. Jefferson to John Adams, August 15, 1820, Cappon, Lester J., ed. The Adams–Jefferson Correspondence (Chapel Hill: University of North Carolina Press, 1959)Google Scholar, 567.

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.

65. On the increased importance of propriety in usage where particular language has been unmoored from its metaphysical bearings, see Locke, John (Nidditch, Peter H., ed.), An Essay Concerning Human Understanding, (Oxford: Oxford University Press, 1975), 476–79Google Scholar; and Dawson, Hannah, Locke, Language, and Early Modern Philosophy (Cambridge: Cambridge University Press, 2007)CrossRefGoogle Scholar. See also Glat, Mark, “John Locke's Historical Sense,” Review of Politics 43 (1981): 3–21CrossRefGoogle Scholar. On the concept of propriety in Locke, Montesquieu, Adam Smith, John Stuart Mill and Thomas Hill. Green, see Kelley, Duncan, The Propriety of Liberty: Persons, Passions, and Judgment in Modern Political Thought (Princeton: Princeton University Press, 2011).Google Scholar

66. Jefferson to Mazzei, November 28, 1785, Papers of Thomas Jefferson, ed. Julian P. Boyd, 9:70.

67. Jefferson, ibid., 71.

68. Stimson, The American Revolution in the Law: Anglo-American Jurisprudence before John Marshall, 94–105; and LaCroix, Alison, The Ideological Origins of American Federalism (Cambridge, MA: Harvard University Press, 2010).Google Scholar