The Legal Education of Thomas Jefferson
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Corso di dottorato in Studi Giuridici Comparati ed Europei XXIX ciclo Tesi di dottorato The Legal Education of Thomas Jefferson Relatore Dottorando Prof. Diego Quaglioni Andrew J. Cecchinato Anno Accademico 2015/2016 candidato: Andrew J. Cecchinato The Legal Education of Thomas Jefferson Relatore Prof. Diego Quaglioni Anno Accademico 2015/2016 Indirizzo specialistico in Storia del diritto romano e del pensiero giuridico europeo XXIX ciclo Esame finale: 21/04/2017 Commissione esaminatrice: Prof. Gerhard Dilcher, Goethe-Universität Frankfurt am Main Prof.ssa Lea Campos Boralevi, Università di Firenze Prof. Diego Quaglioni, Università di Trento TABLE OF CONTENTS Abstract ii Introduction A Few Observations on Thomas Jefferson’s Copy of Les Six Livres de La 4 Republique Part One SOVEREIGNTY Chapter 1 The Constitutional Purpose of Jefferson’s Doctrine on Tyranny 1. Tyranny in Western Jurisprudence 37 2. Jefferson’s Doctrine on Tyranny 64 Chapter 2 The Titles of Sovereignty 1. Expatriation 90 2. Conquest 112 3. Citizenship 123 Chapter 3 Embodying Sovereignty 1. Jefferson at the «tournant rousseauiste» 143 2. The Subject of Popular Sovereignty: the Living Generation 151 3. The Form of Government of a Democratic Republic: the Ward Republics 179 Part Two RELIGION Chapter 4 The Freedom of Conscience 1. The Religious Foundation of 216 Jurisprudence 2. The Distinction Between Spiritual and 233 Temporal Jurisdiction Chapter 5 An Integrative Conception of Jurisprudence 1. Law’s Plurality 254 2. Natural Law 257 3. Positive Law 270 Bibliography 280 ii Abstract THE LEGAL EDUCATION OF THOMAS JEFFERSON Thomas Jefferson’s legal education offers a unique insight into the authoritative foundations of modern constitutionalism and sheds light on the revolutionary effort to digest American political experience according to the scientific legacy of Western jurisprudence. Much attention has been dedicated by contemporary literature to the sources of Jefferson’s thought. However, the interpretations offered over the past fifty years have told us more about Jefferson’s political alignment, than of his comprehensive engagement with the many strands and several authorities the Western legal tradition. The dissertation offers a study of Jefferson’s engagement with European jurisprudence. It tries, in particular, to connect Jefferson’s constitutionalism with medieval and early modern authorities addressing questions of sovereignty and religious freedom. These trans-Atlantic connections point equally to Common Law sources, as well to Continental Romano- iii Canonical jurisprudence and challenge, at the same time, the very distinction between the two traditions. In selecting the sources, preference has been given to those that belonged to Jefferson’s personal library. And, amongst these, particular attention has been dedicated to the ones that bear Jefferson’s annotations or inscriptions. The Introduction presents Jefferson’s copy of the foundational treatise on modern public law: Jean Bodin’s Les Six Livres de la Republique. Although Jefferson’s engagement with Bodin constitutes one of the main themes of the entire dissertation, the Introduction focuses mostly on the markings inscribed by Jefferson in his copy of the Republique and suggests that Jefferson may have been drawn to this work as it addressed the nature of power and of its constitutional limitations beyond any contingent concern. The dissertation’s first part is then dedicated to the exploration of Jefferson’s doctrine on sovereignty. It assumes, as its starting point, Jefferson’s “Bartolist” doctrine on tyranny. The first chapter traces the development of this doctrine from the Middle Ages to Modernity. It also evaluates the force of its various arguments in Jefferson’s own historical understanding of the conditions that defined the struggle for independence as the rational outcome of a legal process. The second chapter investigates, instead, the legal titles placed by Jefferson at the origins of the Americans’ lawful acquisition of power – expatriation, conquest, and citizenship – and their connection to the European jurisprudence on the iura naturalia. The third iv chapter closes the first part of the dissertation with an examination of Jefferson’s later reflections on the exercise of power. It focuses, in particular, on a two distinct groups of letters, dedicated to the independent exercise of sovereign power by each living generation, according to a Bodinian understanding of sovereignty, and to the constitutional relevance of intermediate bodies, maintained by Jefferson in keeping with Montesquieu. The second part of the dissertation is dedicated to religious freedom. The fourth chapter provides an examination of Jefferson’s participation in the “Grotian moment” and illustrates his understanding of religion as the naturalized foundation of morality and jurisprudence. Moreover, it traces the enduring relevance of the distinction between spiritual and temporal jurisdictions within his thought. The fifth and final chapter, instead, focuses on Jefferson’s integrative jurisprudence and insists that the multiple dimensions of law remained a fundamental feature of Jefferson’s legal persuasion, as he strived to substantiate the checks on power through his continuous engagement with the legacy of Western jurisprudence. 4 Introduction A FEW OBSERVATIONS ON THOMAS JEFFERSON’S COPY OF BODIN’S LES SIX LIVRES DE LA REPUBLIQUE The only exact knowledge there is, said Anatole France, is the knowledge of the date of publication and the format of books. Walter Benjamin, Unpacking my Library Among the many books belonging to Jefferson still treasured at the Library of Congress is a copy of Jean Bodin’s Les Six Livres de la Republique edited in Paris in 1580 by Jacques du Puys (1). The volume in octavo is well preserved and bears the 1 Jean BODIN, Les Six Livres de la Republique, a Paris: Chez Iacques du Puys, 1580, Thomas Jefferson Collection, Rare Books and Special Collections Division of the Library of Congress, Washington, D.C. A review of the ancient editions of the Republique is provided in Roland CRAHAY, Marie-Thérèse ISAAC, Marie-Thérèse LENGER, Bibliographie critique des éditions anciennes de Jean Bodin, Académie Royale de Belgique, Brussels, 1992. The 1580 edition is examined on pp. 117-119. For the Republique’s placement in Jefferson’s catalogues see Emily Millicent SOWERBY, (ed.), Catalogue of the Library of Thomas Jefferson, vol. III, The Library of Congress, Washington D.C., 1953, p. 24; as well as James GILREATH and Douglas L. WILSON, (eds.), Thomas Jefferson’s Library: A Catalogue With Entries in His Own Order, Library of Congress, Washington, D.C., 1989, p. 80. 5 characteristic ownership markings that Jefferson inscribed in most of his books: the dotted initials t. and i., recorded respectively at signatures i (p. 129) and t (p. 209) of the volume (2). In addition to these discrete ownership markings, Jefferson’s copy of the Republique bears three more sets of markings, which are all inscribed - with only two exceptions (on pp. 87 and 976) - in the margins of the text or in the margins of the lateral notes. These additional markings are made by short vertical dashes or long undulated vertical lines written in cuttlefish ink and by bookstand brackets written in pencil instead. The inconsistency of the markings and the difference in the medium employed to record them could suggest that more than one reader highlighted the Republique or that the same reader marked the volume over an extended period of time. Whether such reader could have been Jefferson is a question still open to speculation. Although Jefferson did not typically underline or annotate his books, marginal markings and notations do occasionally appear and while some have almost certainly been inscribed by previous owners, occasional borrowers, or perhaps subsequent readers, there are others which are commonly recognized as 2 The page number is erroneously printed as 209, while it should be 289. For a detailed description of Jefferson’s ownership markings see James A. BEAR, Jr., Thomas Jefferson’s Book-Marks, Charlottesville, 1958, re-issued in 1993; Douglas L. WILSON, Jefferson’s Books, Monticello Monograph Series, Monticello, 1996, p. 47; and Armand London FELL, Origins of Legislative Sovereignty and Legislative State, vol. VI, American Tradition and Innovation with Contemporary Import and Foreground, Book 1, Foundations (to Early 19th Century), Praeger, Westport, 2004, p. 90. 6 being his own (3). No such consensus has yet been reached on the markings inscribed in Jefferson’s copy of the Republique. Therefore, scrutiny of the highlighted passages in Bodin’s monumental treatise on sovereignty offers the opportunity not only to investigate the “authorship” of these markings, but also to assess just how closely did Jefferson actually read Bodin’s masterpiece. Moreover, it provides the opportunity to situate Jefferson within the long arch of the Western legal tradition and investigate his intellectual engagment with its modern authorities (4). The first set of markings inscribed in the Republique may be found in book one. Here the marginal dashes are well over one hundred and, although they highlight several different passages throughout the entire ten chapters of the first book, they appear 3 See Francis W. HIRST, Life and Letters of Thomas Jefferson, Macmillan, New York, 1926, pp. 508-513; as well as Mark DIMUNATION, ‘The Whole of Recorded Knowledge’: Jefferson as Collector and Reader, in Robert C. BARON and Conrad EDICK WRIGHT,