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US Legal History : New Previously Unpublished Materials re James Madison, by Law Prof Mary Sarah Bilder of Boston College, at Law and History Review

By Andis Kaulins

Cambridge Journals - Press release
Release Date: 06/23/2010
Country of Issue: New York, NY, USA

Law student Madison rediscovered through lost law notes

The unearthing of law notes made by a young James Madison sheds new light on the shaping of the mind of the great man.

Rediscovered by Mary Sarah Bilder, Professor of Law at Boston College, the 39 sewn-together pages of notes on common law cases were found among the papers of Thomas Jefferson at the Library of Congress.

Long thought to be Jefferson?s notes, Bilder?s painstaking study of the handwriting, style of language, summarising technique, paper watermarks and numbering system has led her to conclude that the notes were in fact Madison?s.

Bilder?s account of the discovery, and what it reveals about Madison, is published in the latest edition of America's leading legal history journal, Law and History Review, published on behalf of the American Society for Legal History by Cambridge University Press. Bilder contends that the law notes demand a reassessment of Madison who, unlike other important early national leaders such as John Adams, Thomas Jefferson and John Marshall, had been thought to have had little interest in law beyond some desultory early studies.

The notes cover a wide range of topics including criminal law, the make-up of courts, elections, how to accurately measure time and even sex and relationships.

The error of assuming the notes were made by Jefferson is not surprising, writes Bilder, as the two men?s handwriting was very similar: ?Late in life, Madison successfully ?faked? Jefferson?s handwriting in altering a letter....and the two men exchanged numerous letters.?

Provenance is also supportive of Madison?s authorship of the notes, which came to the Library of Congress in 1931 from Mary M. McGuire of New York City, grandchild of James C. McGuire, the administrator of the Dolley Payne Madison estate and the largest collector of Madison manuscripts.

In revealing something of the ?mind of Madison? Bilder admits that there is disappointment for any reader, ?looking for a protoconstitutional mind?. But she does find a foreshadowing of the Fifth Amendment in Madison?s notes on a case of an indictment for treason: ?you shall not ask a witness or a juror any question yt wd make a man discover what tends to his shame, crime, infamy or misdemeanor.? He also made notes on cases relating to Habeas Corpus, legislatures and elections.

Many of the notes relate to Madison?s contemporary concerns during his work in the Virginia legislature, including the possible make-up of court systems. He avoided anything that was not relevant to post-revolutionary America such as uniquely English forms of property law.

The private Madison also emerges from the notes as he appears to seek enlightenment on matters in his personal situation. As an eldest son, he would become his father?s executor and the two lengthiest notes involve the settling of estates. Given his dependence on the Virginia legislature for a living, he was, not surprisingly, interested in cases about salaries for various offices.

That the Notes have survived at all Bilder describes as ?serendipitous?, for, at the end of his life, Madison destroyed many of his papers. She argues that the restoration of the notes to the authorship of Madison reveals the inaccuracy of the long-held view that he had little interest in law: ?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.

The private and publicly irrelevant character of the Notes offer an uncensored glimpse of Madison?s mind.?

Madison also made a surprising number of notes on cases relating to sex and relationships. Perhaps recalling erstwhile love, Kitty Floyd, who broke off their engagement, he made notes on breaches of promise to marry. He also made notes on cases involving cohabitation and seemed particularly interested in bastards. Bilder concludes wryly: ?What motivated his fascination with the subject has to remain purely speculative.?

David B. Mattern, Research Professor and Senior Associate Editor of the Papers of James Madison at the University of Virginia, refers to the research as "a remarkable feat of detective work".

To read the entire article free of charge, please go to http://journals.cambridge.org/bilder


ENDS

Notes for Editors:

For further information, please contact Hannah Gregory on +44(0)1223 325544 or email press@cambridge.org

About the author

Mary Sarah Bilder is Professor of Law at Boston College and is also a Michael and Helen Lee Distinguished Scholar. The Lee Scholars program supports the research of select senior faculty members over a five-year term.

About the Law and History Review (LHR)

LHR, America's leading legal history journal, is published by Cambridge University Press on behalf of the American Society for Legal History. The Journal encompasses American, European, and ancient legal history issues. Its purpose is to further research in the fields of the social history of law and the history of legal ideas and institutions. LHR features articles, essays, commentaries by international authorities, and reviews of important books on legal history. The journal is edited by David Tanenhaus, University of Nevada, Las Vegas.

Find out more at :http://journals.cambridge.org/lhr

About American Society for Legal History

The American Society for Legal History, founded in 1956, is a nonprofit membership organization dedicated to fostering scholarship, teaching, and study concerning the law and institutions of all legal systems, both Anglo-American and those that do not operate in the Anglo-American tradition.

For more information, go to http://www.legalhistorian.org/

About Cambridge Journals

Cambridge University Press publishes over 230 peer-reviewed academic journals across a wide spread of subject areas, in print and online. Many of these journals are the leading academic publications in their fields and together they form one of the most valuable and comprehensive bodies of research available today.

For further information about Cambridge Journals, go to http://www.journals.cambridge.org

About Cambridge University Press

Cambridge University Press is the publishing business of the University of Cambridge, one of the world?s leading research institutions. It is the oldest publisher and printer in the world, having been operating continuously since 1584.

Throughout its history, the Press has maintained a reputation for innovation and enterprise, through publishing the latest research, and through supporting the latest methodologies for teaching and learning. Its purpose is to advance learning, knowledge and research worldwide. It publishes 240 journals and over 2,500 books annually for distribution in nearly every country in the world.

Full post as published by LawPundit on July 03, 2010 (boomark / email).