Memoir, Correspondence, And Miscellanies, From The Papers Of Thomas Jefferson, Volume 1

John Adams advocated the voting in proportion to numbers. He said, that we stand here as the representatives of the people; that in some states the people are many, in others they are few; that therefore their vote here should be proportioned to the numbers from whom it comes. Reason, justice, and equity never had weight enough on the face of the earth, to govern the councils of men. It is interest alone which does it, and it is interest alone which can be trusted; that therefore the interests, within doors, should be the mathematical representatives of the interests without doors; that the individuality of the colonies is a mere sound. Does the individuality of a colony increase its wealth or numbers? If it does, pay equally. If it does not add weight in the scale of the confederacy, it cannot add to their rights, nor weigh in argument. A. has £50, B. £500, C. £1000, in partnership. Is it just they should equally dispose of the monies of the partnership? It has been said, we are independent individuals, making a bargain together. The question is not, what we are now, but what we ought to be, when our bargain shall be made. The confederacy is to make us one individual only; it is to form us, like separate parcels of metal, into one common mass. We shall no longer retain our separate individuality, but become a single individual as to all questions submitted to the confederacy. Therefore all those reasons, which prove the justice and expediency of equal representation in other assemblies, hold good here. It has been objected, that a proportional vote will endanger the smaller states. We answer, that an equal vote will endanger the larger. Virginia, Pennsylvania, and Massachusetts, are the three greater colonies. Consider their distance, their difference of produce, of interests, and of manners, and it is apparent they can never have an interest or inclination to combine for the oppression of the smaller; that the smaller will naturally divide on all questions with the larger. Rhode Island, from its relation, similarity, and intercourse, will generally pursue the same objects with Massachusetts; Jersey, Delaware, and Maryland, with Pennsylvania.

Dr. Rush took notice, that the decay of the liberties of the Dutch republic proceeded from three causes. 1. The perfect unanimity requisite on all occasions. 2. Their obligation to consult their constituents. 3. Their voting by provinces. This last destroyed the equality of representation, and the liberties of Great Britain also are sinking from the same defect. That a part of our rights is deposited in the hands of our legislatures. There, it was admitted, there should be an equality of representation. Another part of our rights is deposited in the hands of Congress; why is it not equally necessary, there should be an equal representation there? Were it possible to collect the whole body of the people together, they would determine the questions submitted to them by their majority. Why should not the same majority decide, when voting here, by their representatives? The larger colonies are so providentially divided in situation, as to render every fear of their combining visionary. Their interests are different, and their circumstances dissimilar. It is more probable they will become rivals, and leave it in the power of the smaller states to give preponderance to any scale they please. The voting by the number of free inhabitants, will have one excellent effect, that of inducing the colonies to discourage slavery, and to encourage the increase of their free inhabitants.

Mr. Hopkins observed, there were four larger, four smaller, and four middle-sized colonies. That the four largest would contain more than half the inhabitants of the confederating states, and therefore would govern the others as they should please. That history affords no instance of such a thing as equal representation. The Germanic body votes by states. The Helvetic body does the same; and so does the Belgic confederacy. That too little is known of the ancient confederations, to say what was their practice.

Mr. Wilson thought, that taxation should be in proportion to wealth, but that representation should accord with the number of freemen. That government is a collection or result of the wills of all: that if any government could speak the will of all, it would be perfect; and that, so far as it departs from this, it becomes imperfect. It has been said, that Congress is a representation of states, not of individuals. I say, that the objects of its care are all the individuals of the states. It is strange, that annexing the name of ‘State’ to ten thousand men, should give them an equal right with forty thousand. This must be the effect of magic, not of reason. As to those matters which are referred to Congress, we are not so many states; we are one large state. We lay aside our individuality, whenever we come here. The Germanic body is a burlesque on government: and their practice on any point, is a sufficient authority and proof that it is wrong. The greatest imperfection in the constitution of the Belgic confederacy is their voting by provinces. The interest of the whole is constantly sacrificed to that of the small, states. The history of the war in the reign of Queen Anne, sufficiently proves this. It is asked, shall nine colonies put it into the power of four, to govern them as they please? I invert the question, and ask, shall two millions of people put it into the power of one million, to govern them as they please? It is pretended, too, that the smaller colonies will be in danger from the greater. Speak in honest language and say, the minority will be in danger from the majority. And is there an assembly on earth, where this danger may not be equally pretended? The truth is, that our proceedings will then be consentaneous with the interests of the majority, and so they ought to be. The probability is much greater, that the larger states will disagree, than that they will combine. I defy the wit of man to invent a possible case, or to suggest any one thing on earth, which shall be for the interests of Virginia, Pennsylvania, and Massachusetts, and which will not also be for the interest of the other states.9

These articles, reported July 12, ‘76, were debated from day to day, and time to time, for two years, were ratified July 9, ‘78, by ten states, by New-Jersey on the 26th of November of the same year, and by Delaware on the 23rd of February following. Maryland alone held off two years more, acceding to them March 1, ‘81, and thus closing the obligation.

Our delegation had been renewed for the ensuing year, commencing August 11; but the new government was now organized, a meeting of the legislature was to be held in October, and I had been elected a member by my county. I knew that our legislation, under the regal government, had many very vicious points which urgently required reformation, and I thought I could be of more use in forwarding that work. I therefore retired from my seat in Congress on the 2nd of September, resigned it, and took my place in the legislature of my state, on the 7th of October.

On the 11th, I moved for leave to bring in a bill for the establishment of courts of justice, the organization of which was of importance. I drew the bill; it was approved by the committee, reported and passed, after going through its due course.

On the 12th, I obtained leave to bring in a bill declaring tenants in tail to hold their lands in fee simple. In the earlier times of the colony, when lands were to be obtained for little or nothing, some provident individuals procured large grants; and, desirous of founding great families for themselves, settled them on their descendants in fee tail. The transmission of this property from generation to generation, in the same name, raised up a distinct set of families, who, being privileged by law in the perpetuation of their wealth, were thus formed into a Patrician order, distinguished by the splendor and luxury of their establishments. From this order, too, the king habitually selected his Counsellors of state; the hope of which distinction devoted the whole corps to the interests and will of the crown. To annul this privilege, and instead of an aristocracy of wealth, of more harm and danger, than benefit, to society, to make an opening for the aristocracy of virtue and talent, which nature has wisely provided for the direction of the interests of society, and scattered with equal hand through all its conditions, was deemed essential to a well ordered republic. To effect it, no violence was necessary, no deprivation of natural right, but rather an enlargement of it by a repeal of the law. For this would authorize the present holder to divide the property among his children equally, as his affections were divided; and would place them, by natural generation, on the level of their fellow citizens. But this repeal was strongly opposed by Mr. Pendleton, who was zealously attached to ancient establishments; and who, taken all in all, was the ablest man in debate I have ever met with. He had not indeed the poetical fancy of Mr. Henry, his sublime imagination, his lofty and overwhelming diction; but he was cool, smooth, and persuasive; his language flowing, chaste, and embellished; his conceptions quick, acute, and full of resource; never vanquished; for if he lost the main battle, he returned upon you, and regained so much of it as to make it a drawn one, by dexterous manoeuvres, skirmishes in detail, and the recovery of small advantages which, little singly, were important all together. You never knew when you were clear of him, but were harassed by his perseverance, until the patience was worn down of all who had less of it than himself. Add to this, that he was one of the most virtuous and benevolent of men, the kindest friend, the most amiable and pleasant of companions, which ensured a favorable reception to whatever came from him. Finding that the general principle of entails could not be maintained, he took his stand on an amendment which he proposed, instead of an absolute abolition, to permit the tenant in tail to convey in fee simple, if he chose it: and he was within a few votes of saving so much of the old law. But the bill passed finally for entire abolition.

In that one of the bills for organizing our judiciary system, which proposed a court of Chancery, I had provided for a trial by jury of all matters of fact, in that as well as in the courts of law. He defeated it by the introduction of four words only, ‘if either party choose?’ The consequence has been, that as no suitor will say to his judge, ‘Sir, I distrust you, give me a jury,’ juries are rarely, I might say perhaps never, seen in that court, but when called for by the Chancellor of his own accord.

The first establishment in Virginia, which became permanent, was made in 1607. I have found no mention of negroes in the colony until about 1650. The first brought here as slaves were by a Dutch ship; after which the English commenced the trade, and continued it until the revolutionary war. That suspended, ipso facto, their further importation for the present, and the business of the war pressing constantly on the legislature, this subject was not acted on finally until the year ‘78, when I brought in a bill to prevent their further importation. This passed without opposition, and stopped the increase of the evil by importation, leaving to future efforts its final eradication.

The first settlers of this colony were Englishmen, loyal subjects to their king and church; and the grant to Sir Walter Raleigh contained an express proviso, that their laws should not be against the true Christian faith, now professed in the church of England.’ As soon as the state of the colony admitted, it was divided into parishes, in each of which was established a minister of the Anglican church, endowed with a fixed salary, in tobacco, a glebe house and land, with the other necessary appendages. To meet these expenses, all the inhabitants of the parishes were assessed, whether they were or not members of the established church. Towards Quakers, who came here, they were most cruelly intolerant, driving them from the colony by the severest penalties. In process of time, however, other sectarisms were introduced, chiefly of the Presbyterian family; and the established clergy, secure for life in their glebes and salaries, adding to these, generally, the emoluments of a classical school, found employment enough in their farms and school-rooms, for the rest of the week, and devoted Sunday only to the edification of their flock, by service, and a sermon at their parish church. Their other pastoral functions were little attended to. Against this inactivity, the zeal and industry of sectarian preachers had an open and undisputed field; and by the time of the revolution, a majority of the inhabitants had become dissenters from the established church, but were still obliged to pay contributions to support the pastors of the minority. This unrighteous compulsion, to maintain teachers of what they deemed religious errors, was grievously felt during the regal government, and without a hope of relief. But the first republican legislature, which met in ‘76, was crowded with petitions to abolish, this spiritual tyranny. These brought on the severest contests in which I have ever been engaged. Our great opponents were Mr. Pendleton and Robert Carter Nicholas; honest men, but zealous churchmen. The petitions were referred to the committee of the whole House on the state of the country; and, after desperate contests in that committee, almost daily, from the 11th of October to the 5th of December, we prevailed so far only, as to repeal the laws, which rendered criminal the maintenance of any religious opinions, the forbearance of repairing to church, or the exercise of any mode of worship: and further, to exempt dissenters from contributions to the support of the established church; and to suspend, only until the next session, levies on the members of the church for the salaries of their own incumbents. For although the majority of our citizens were dissenters, as has been observed, a majority of the legislature were churchmen. Among these, however, were some reasonable and liberal men, who enabled us, on some points, to obtain feeble majorities. But our opponents carried, in the general resolutions of the committee of November 19, a declaration, that religious assemblies ought to be regulated, and that provision ought to be made for continuing the succession of the clergy, and superintending their conduct. And in the bill now passed, was inserted an express reservation of the question, Whether a general assessment should not be established by law, on every one, to the support of the pastor of his choice; or whether all should be left to voluntary contributions: and on this question, debated at every session from ‘76 to ‘79 (some of our dissenting allies, having now secured their particular object, going over to the advocates of a general assessment), we could only obtain a suspension from session to session until ‘79, when the question against a general assessment was finally carried, and the establishment of the Anglican church entirely put down. In justice to the two honest but zealous opponents, who have been named, I must add, that although, from their natural temperaments, they were more disposed generally to acquiesce in things as they are, than to risk innovations; yet, whenever the public will had once decided, none were more faithful or exact in their obedience to it.

The seat of our government had been originally fixed in the peninsula of Jamestown, the first settlement of the colonists; and had been afterwards removed a few miles inland to Williamsburg. But this was at a time when our settlements had not extended beyond the tide waters. Now they had crossed the Allegany; and the centre of population was very far removed from what it had been. Yet Williamsburg was still the depository of our archives, the habitual residence of the Governor, and many other of the public functionaries, the established place for the sessions of the legislature, and the magazine of our military stores: and its situation was so exposed, that it might be taken at any time in war, and, at this time particularly, an enemy might in the night run up either of the rivers, between which it lies, land a force above, and take possession of the place, without the possibility of saving either persons or things. I had proposed its removal so early as October, ‘76; but it did not prevail until the session of May, ‘79.

Early in the session of May, ‘79, I prepared, and obtained leave to bring in a bill, declaring who should be deemed citizens, asserting the natural right of expatriation, and prescribing the mode of exercising it. This, when I withdrew from the house on the 1st of June following, I left in the hands of George Mason, and it was passed on the 26th of that month.

In giving this account of the laws, of which I was myself the mover and draughtsman, I by no means mean to claim to myself the merit of obtaining their passage. I had many occasional and strenuous coadjutors in debate, and one, most steadfast, able, and zealous; who was himself a host. This was George Mason, a man of the first order of wisdom among those who acted on the theatre of the revolution, of expansive mind, profound judgment, cogent in argument, learned in the lore of our former constitution, and earnest for the republican change, on democratic principles. His elocution was neither flowing nor smooth; but his language was strong, his manner most impressive, and strengthened by a dash of biting cynicism, when provocation made it seasonable.

Mr. Wythe, while speaker in the two sessions of 1777, between his return from Congress and his appointment to the Chancery, was an able and constant associate in whatever was before a committee of the whole. His pure integrity, judgment, and reasoning powers gave him great weight. Of him, see more in some notes inclosed in my letter of August 31, 1821, to Mr. John Saunderson. [See Appendix, note A.]

Mr. Madison came into the House in 1776, a new member, and young; which circumstances, concurring with his extreme modesty, prevented his venturing himself in debate before his removal to the Council of State, in November, ‘77. From thence he went to Congress, then consisting of few members. Trained in these successive schools, he acquired a habit of self-possession, which placed at ready command the rich resources of his luminous and discriminating mind, and of his extensive information, and rendered him the first of every assembly afterwards, of which he became a member. Never wandering from his subject into vain declamation, but pursuing it closely, in language pure, classical, and copious, soothing always the feelings of his adversaries by civilities and softness of expression, he rose to the eminent station which he held in the great National Convention of 1787; and in that of Virginia, which followed, he sustained the new constitution in all its parts, bearing off the palm against the logic of George Mason, and the fervid declamation of Mr. Henry. With these consummate powers, was united a pure and spotless virtue, which no calumny has ever attempted to sully. Of the powers and polish of his pen, and of the wisdom of his administration in the highest office of the nation, I need say nothing. They have spoken, and will for ever speak for themselves.

So far we were proceeding in the details of reformation only; selecting points of legislation, prominent in character and principle, urgent, and indicative of the strength of the general pulse of reformation. When I left Congress in ‘76, it was in the persuasion, that our whole code must be reviewed, adapted to our republican form of government, and, now that we had no negatives of Councils, Governors, and Kings to restrain us from doing right, that it should be corrected, in all its parts, with a single eye to reason, and the good of those for whose government it was framed. Early, therefore, in the session of ‘76, to which I returned, I moved and presented a bill for the revision of the laws; which was passed on the 24th of October, and on the 5th of November, Mr. Pendleton, Mr. Wythe, George Mason, Thomas L. Lee, and myself, were appointed a committee to execute the work. We agreed to meet at Fredericksburg to settle the plan of operation, and to distribute the work. We met there accordingly, on the 13th of January, 1777. The first question was, whether we should propose to abolish the whole existing system of laws, and prepare a new and complete Institute, or preserve the general system, and only modify it to the present state of things. Mr. Pendleton, contrary to his usual disposition in favor of ancient things, was for the former proposition, in which he was joined by Mr. Lee. To this it was objected, that to abrogate our whole system would be a bold measure, and probably far beyond the views of the legislature; that they had been in the practice of revising, from time to time, the laws of the colony, omitting the expired, the repealed, and the obsolete, amending only those retained, and probably meant we should now do the same, only including the British statutes as well as our own: that to compose a new Institute, like those of Justinian and Bracton, or that of Blackstone, which was the model proposed by Mr. Pendleton, would be an arduous undertaking, of vast research, of great consideration and judgment; and when reduced to a text, every word of that text, from the imperfection of human language, and its incompetence to express distinctly every shade of idea, would become a subject of question and chicanery, until settled by repeated adjudications; that this would involve us for ages in litigation, and render property uncertain, until, like the statutes of old, every word had been tried and settled by numerous decisions, and by new volumes of reports and commentaries; and that no one of us, probably, would undertake such a work, which, to be systematical, must be the work of one hand. This last was the opinion of Mr. Wythe, Mr. Mason, and myself. When we proceeded to the distribution of the work, Mr. Mason excused himself, as, being no lawyer, he felt himself unqualified for the work, and he resigned soon after. Mr. Lee excused himself on the same ground, and died indeed in a short time. The other two gentlemen, therefore, and myself, divided the work among us. The common law and statutes to the 4 James I. (when our separate legislature was established) were assigned to me; the British statutes, from that period to the present day, to Mr. Wythe; and the Virginia laws to Mr. Pendleton. As the law of Descents, and the Criminal law, fell of course within my portion, I wished the committee to settle the leading principles of these, as a guide for me in framing them; and, with respect to the first, I proposed to abolish the law of primogeniture, and to make real estate descendible in parcenery to the next of kin, as personal property is, by the statute of distribution. Mr. Pendleton wished to preserve the right of primogeniture; but seeing at once that that could not prevail, he proposed we should adopt the Hebrew principle, and give a double portion to the elder son. I observed, that if the elder son could eat twice as much, or do double work, it might be a natural evidence of his right to a double portion; but being on a par, in his powers and wants, with his brothers and sisters, he should be on a par also in the partition of the patrimony; and such was the decision of the other members.

On the subject of the Criminal law, all were agreed, that the punishment of death should be abolished, except for treason and murder; and that, for other felonies, should be substituted hard labor in the public works, and, in some cases, the Lex talionis. How this last revolting principle came to obtain our approbation, I do not remember. There remained, indeed, in our laws, a vestige of it in a single case of a slave; it was the English law, in the time of the Anglo-Saxons, copied probably from the Hebrew law of an ‘eye for an eye, a tooth for a tooth,’ and it was the law of several ancient people; but the modern mind had left it far in the rear of its advances. These points, however, being settled, we repaired to our respective homes for the preparation of the work.

In the execution of my part, I thought it material not to vary the diction of the ancient statutes by modernizing it, nor to give rise to new questions by new expressions. The text of these statutes had been so fully explained and defined, by numerous adjudications, as scarcely ever now to produce a question in our courts. I thought it would be useful, also, in all new draughts, to reform the style of the later British statutes, and of our own acts of Assembly; which, from their verbosity, their endless tautologies, their involutions of case within case, and parenthesis within parenthesis, and their multiplied efforts at certainty, by saids and afore-saids, by ors and by ands, to make them more plain, are really rendered more perplexed and incomprehensible, not only to common readers, but to the lawyers themselves. We were employed in this work from that time to February, 1779, when we met at Williamsburg; that is to say, Mr. Pendleton, Mr. Wythe, and myself; and meeting day by day, we examined critically our several parts, sentence by sentence, scrutinizing and amending, until we had agreed on the whole. We then returned home, had fair copies made of our several parts, which were reported to the General Assembly, June 18, 1779, by Mr. Wythe and myself, Mr. Pendleton’s residence being distant, and he having authorized us by letter to declare his approbation. We had, in this work, brought so much of the Common law as it was thought necessary to alter, all the British statutes from Magna Charta to the present day, and all the laws of Virginia, from the establishment of our legislature in the 4th Jac. I. to the present time, which we thought should be retained, within the compass of one hundred and twenty-six bills, making a printed folio of ninety pages only. Some bills were taken out, occasionally, from time to time, and passed; but the main body of the work was not entered on by the legislature, until after the general peace, in 1785, when, by the unwearied exertions of Mr. Madison, in opposition to the endless quibbles, chicaneries, perversions, vexations, and delays of lawyers and demi-lawyers, most of the bills were passed by the legislature, with little alteration.