Illustration: Chris Sharp

Boston College law professor Mary Sarah Bilder was deep into research on how many lawyers attended the 1787 Constitutional Convention in Philadelphia when she paused to consider: What about James Madison? Bilder knew that Madison (1751–1836) had embarked on independent legal study after attending Princeton, while in his early twenties, and then again in his mid-thirties in the years before going to Philadelphia. But the Virginian never tried a case—and didn’t seek admittance to the bar. He was not quite a lawyer, yet he had as much legal education as some who were.

Consulting the work of Madison’s first biographer, William C. Rives, Bilder came upon an intriguing reference. Rives, who knew Madison, mentioned a set of handwritten notes Madison made while studying William Salkeld’s Reports, a book of summaries of important cases in English common law, originally published in 1717. Rives had received a letter from a Virginia lawyer named Inman Horner who had studied Madison’s notes and reported them to be worth saving, as “a memorial of industry, patience and clear, strong and discriminating mind.” Horner’s letter quoted directly from the notes.

So Bilder decided to take a look. But when she consulted an index of Madison’s papers at the Library of Congress, she discovered an entry for the notebook on Salkeld accompanied by the notation “not found.” Hoping that “the advent of electronic archival resources” would help her unearth the lost manuscript, Bilder says, she cast a wider net.

The only notes on Salkeld she could find were a set attributed to Thomas Jefferson. While reading that sewn-together “commonplace book” at the Library of Congress, she found some familiar-sounding passages. “‘Wait!” she recalls thinking. “I’ve read that before.'” In fact, she had read the passages in Horner’s letter to Rives. Had she stumbled on the long-lost Madison notes? There followed extensive consultation with Madison scholars, archivists, and experts on colonial handwriting. The deeper Bilder dug, the stronger her case became. She lays out the evidence that the notes are Madison’s in the May issue of Law and History Review, in an article entitled “James Madison, Law Student and Demi-Lawyer.”

Playing the historical detective was “great fun,” she says. “It’s what people think you get to do as a historian, but you usually don’t.”

Bilder found “significant differences in handwriting” when comparing notebooks known to be Jefferson’s with the Madison notes. Further, she learned that Jefferson had also studied Salkeld’s Reports, and had included his notes in two other legal commonplace books. A third version—a quite different one—by Jefferson seemed unlikely. Also telling is the fact that cases appearing early in the Reports are summarized at some length, whereas cases toward the end of the Reports are summarized in few words or skipped altogether. “That’s a part of Madison I’m totally sympathetic with,” Bilder says. “It was typical of him. He wrote most of the early Federalist Papers, and Hamilton wrote most of the later parts. Madison got bored. He was always like this.” By the end, “Madison had resorted to squishing words to avoid starting a new page.”

Judging from Madison’s letters to friends about his legal studies, Bilder traces the Salkeld notes to the years Madison spent at his family’s plantation in the mid-1780s. This was a period of study that prepared him for the Constitutional Convention. Madison summarized the 702 pages of Salkeld in “thirty-nine pages plus two lines,” she writes, digesting 430 cases and omitting many others.

Horner’s praise notwithstanding, the notes “appear to contain little original or intellectual content,” says Bilder. They do reveal one striking characteristic, however: Madison focused on “cases where words were not taken according to their strict meaning,” Bilder writes: “What problems arose from the uncertainty of words? How did one interpret words in statutes?” The man who became one of the most important figures in constitutional interpretation is recognizable here, Bilder concludes. “Repeatedly the notes reveal Madison’s fascination with these problems of language.”

During her study of the notes on Salkeld, Bilder caught the Madison bug. She’s now writing a book for Harvard University Press based on another set of Madison jottings, his notes on the Constitutional Convention.

David Reich is a writer in the Boston area.

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