The Writings of Thomas Jefferson, Vol. 1 (of 9)

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 manœuvres, 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 that 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 originally been 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 Alleghany; 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.14

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, were 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 forever 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; and 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 parcenary 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 eldest 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 aforesaids, 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. 1. 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.

The bill for establishing religious freedom, the principles of which had, to a certain degree, been enacted before, I had drawn in all the latitude of reason and right. It still met with opposition; but, with some mutilations in the preamble, it was finally passed; and a singular proposition proved that its protection of opinion was meant to be universal. Where the preamble declares, that coercion is a departure from the plan of the holy author of our religion, an amendment was proposed, by inserting the word "Jesus Christ," so that it should read, "a departure from the plan of Jesus Christ, the holy author of our religion;" the insertion was rejected by a great majority, in proof that they meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and Infidel of every denomination.

Beccaria, and other writers on crimes and punishments, had satisfied the reasonable world of the unrightfulness and inefficacy of the punishment of crimes by death; and hard labor on roads, canals and other public works, had been suggested as a proper substitute. The Revisors had adopted these opinions; but the general idea of our country had not yet advanced to that point. The bill, therefore, for proportioning crimes and punishments, was lost in the House of Delegates by a majority of a single vote. I learned afterwards, that the substitute of hard labor in public, was tried (I believe it was in Pennsylvania) without success. Exhibited as a public spectacle, with shaved heads and mean clothing, working on the high roads, produced in the criminals such a prostration of character, such an abandonment of self-respect, as, instead of reforming, plunged them into the most desperate and hardened depravity of morals and character. To pursue the subject of this law.—I was written to in 1785 (being then in Paris) by directors appointed to superintend the building of a Capitol in Richmond, to advise them as to a plan, and to add to it one of a Prison. Thinking it a favorable opportunity of introducing into the State an example of architecture, in the classic style of antiquity, and the Maison quarrée of Nismes, an ancient Roman temple, being considered as the most perfect model existing of what may be called Cubic architecture, I applied to M. Clerissault, who had published drawings of the Antiquities of Nismes, to have me a model of the building made in stucco, only changing the order from Corinthian to Ionic, on account of the difficulty of the Corinthian capitals. I yielded, with reluctance, to the taste of Clerissault, in his preference of the modern capital of Scamozzi to the more noble capital of antiquity. This was executed by the artist whom Choiseul Gouffier had carried with him to Constantinople, and employed, while Ambassador there, in making those beautiful models of the remains of Grecian architecture which are to be seen at Paris. To adapt the exterior to our use, I drew a plan for the interior, with the apartments necessary for legislative, executive, and judiciary purposes; and accommodated in their size and distribution to the form and dimensions of the building. These were forwarded to the Directors, in 1786, and were carried into execution, with some variations, not for the better, the most important of which, however, admit of future correction. With respect to the plan of a Prison, requested at the same time, I had heard of a benevolent society, in England, which had been indulged by the government, in an experiment of the effect of labor, in solitary confinement, on some of their criminals; which experiment had succeeded beyond expectation. The same idea had been suggested in France, and an Architect of Lyons had proposed a plan of a well-contrived edifice, on the principle of solitary confinement. I procured a copy, and as it was too large for our purposes, I drew one on a scale less extensive, but susceptible of additions as they should be wanting. This I sent to the Directors, instead of a plan of a common prison, in the hope that it would suggest the idea of labor in solitary confinement, instead of that on the public works, which we had adopted in our Revised Code. Its principle, accordingly, but not its exact form, was adopted by Latrobe in carrying the plan into execution, by the erection of what is now called the Penitentiary, built under his direction. In the meanwhile, the public opinion was ripening, by time, by reflection, and by the example of Pennsylvania, where labor on the highways had been tried, without approbation, from 1786 to '89, and had been followed by their Penitentiary system on the principle of confinement and labor, which was proceeding auspiciously. In 1796, our legislature resumed the subject, and passed the law for amending the Penal laws of the commonwealth. They adopted solitary, instead of public, labor, established a gradation in the duration of the confinement, approximated the style of the law more to the modern usage, and, instead of the settled distinctions of murder and manslaughter, preserved in my bill, they introduced the new terms of murder in the first and second degree. Whether these have produced more or fewer questions of definition, I am not sufficiently informed of our judiciary transactions to say. I will here, however, insert the text of my bill, with the notes I made in the course of my researches into the subject.15