I am perfectly aware of the undeniable influence of Locke upon the theory of Kames; and it would be very unlikely that Jefferson had not read at that date Locke's "Treatise on Civil Government." The fact remains, however, that neither Locke, nor so far as I know any political thinker of the period, had yet so clearly defined that particular combination of individualism and respect for peace and order so characteristic of American democracy. We shall see in one of the following chapters how Jefferson, elaborating on this statement of Kames, derived from it all his conception of natural rights. The Scottish Lord was for him a master and a guide.
In Sir John Dalrymple, author of an "Essay Towards a General History of Feudal Property", in Francis Stoughton Sullivan's "An Historical Treatise of the Feudal Laws and the Constitution of the Laws of England", Jefferson studied the history of primogeniture and of entails and came to the conclusion that both of them had foundation neither in nature nor in law, and certainly did not appear in England before the Norman Conquest. He reached to the same finding in his long dissertation on the original common law, and thus we can trace directly through the "Commonplace Book" the sources of the Bill on Primogeniture, of the Bill for Religious Freedom, and of the Law to Abolish Entails, which Jefferson considered as forming a system "which would eradicate every fibre of ancient or future aristocracy and lay a foundation for a government truly republican."
Some of the entries in the "Commonplace Book" were evidently made after the period with which we are dealing in this chapter, although most of them can be dated before 1776. We have no means of determining whether Jefferson had undertaken a systematic study of federative governments when he was still a student, or at what time he copied the many extracts and quotations from Montesquieu. Nor can we enter here into a detailed discussion of all the articles. One or two facts, however, stand out even after a superficial glimpse of this repertory of ideas on government and society. The first is that Jefferson at that date, and indeed during most of his life, was not interested in abstract principles or in theoretical discussions. His was eminently the mind of a lawyer, and it is not for a lawyer to arrive at a definition of justice but to determine what the law says on a particular point. Yet in a country where law is not codified and the common law is the basis of the legal structure, it is impossible to find out what the law is without undertaking a historical study of the cases at hand in the different repertories. Men are either fallible or dishonest, false interpretations creep in, texts are distorted from their original meaning, and thus it becomes necessary to apply to legal decisions the rules of historical evidence formulated by Bolingbroke.