Life of Thomas Jefferson

10. Revising Virginia's Legal Code

The preceding chapter considered some of the efforts in legislation with which Mr. Jefferson commenced the process of republicanizing the institutions of America in the first State Legislature that was organized after the dissolution of the monarchy. They were all, it will be perceived, of an elementary character and highly democratic in their object and tendency. But still, the interesting work was only begun. The plan he originally proposed on determining to leave the floor of Congress comprehended the recasting into other republican forms the anciently established and generally received basis of civil government.

In pursuance of his original design, therefore, he now brought forward a proposition which was recorded in the statute books of Virginia in the following terms:

The resolution was passed on the 24th of October, 1776, and on the 5th of November, Mr. Jefferson, as chairman, was associated in a commission with Edmund Pendleton, George Wythe, George Mason and Thomas Ludwell Lee to execute the contemplated revisal. The commissioners were elected by a joint ballot of both houses; and the choice resulted in the selection of an assemblage of characters which united the first order of capacity, intelligence, and legal research to the highest revolutionary principles. Suitable provisions were added to render the execution of a work of such magnitude and difficulty as easy and expeditious as practicable, and such was the importance attached to the result of their labors that the assembly excused Mr. Wythe from his attendance in Congress, to secure his undivided cooperation. Having accepted the arduous charge, the committee of revisors immediately came to an agreement to meet at Fredericksburg, in January ensuing, to settle the plan of operation and to distribute the work. The foundation was thus laid for the great republican lawgiver to pursue his system of reform so auspiciously commenced in all the latitude of his long-cherished and well-expressed purpose: "with a single eye to reason and the good of mankind."

 
In the midst of this brisk action of the republican administration, an irregularity occurred which, had it been permitted to prevail, would have been a standing evidence of the incapacity of man for self-government. The autumn of 1776 was one of the most distressing periods of the revolution. The courage of the country seemed to be breaking down. The fortitude of the Virginia legislature fell for a season, and in a moment of terror and despondency, the frantic project was seriously meditated of creating a Dictator, invested with every power: legislative, executive and judiciary, civil and military, of life and of death. The scheme originated with an anti-republican portion of the House and excited a tempest of altercation, threatening a violent dissolution. A discordancy of political views was immediately developed which before was thought impossible in that legislature. The republican and the monarchist stood unveiled as if by the power of magic, and such was the spirit of mutual hostility that they walked the streets on different sides. It was on this occasion that Col. Archibald Cary, mover of the celebrated resolutions of Independence and the Speaker of the Senate, manifested a patriotic sternness which should place him in history by the side of Cato and Brutus. (Girardin, p. 192) Meeting Col. Syme, the step-brother of Patrick Henry, in the lobby of the House during the agitation, he accosted him with great fierceness in the following terms: "I am told that your brother wishes to be dictator. Tell him from me that the day of his appointment shall be the day of his death; for he shall feel my dagger in his heart before the sunset of that day." [note] The emotions excited in the mind of Mr. Jefferson, who was eminently instrumental in crushing the parricidal project, may be inferred from that nervous and able development of its nature and tendency which he wrote soon after this event. The following is an extract:

 
On the 13th of January, 1777, the committee appointed to revise the laws assembled at Fredericksburg to settle the general principles of execution and to distribute the labor. In relation to the first business of the consultation, the primary question was: Whether they 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," writes Mr. Jefferson, "contrary to his usual disposition in favor of ancient things, was for the former proposition, in which he was joined by Mr. Lee." (Autobiography, 1821. ME 1:62) To this it was objected by Mr. Jefferson that to abrogate the 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 that they probably now intended the committee should 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, to be systematical, it must be the work of one hand. This last was the opinion also of Mr. Wythe and Mr. Mason, and was consequently adopted as the rule. They then proceeded to the distribution of the labor, upon which Mr. Mason excused himself as, being no lawyer, he felt himself unqualified to participate in the execution of the work. Mr. Lee excused himself on the same ground. The whole undertaking consequently devolved on Mr. Jefferson, Mr. Pendleton and Mr. Wythe, who divided it among themselves in the following manner: The common law and statutes to the 4th James I, when Virginia's separate legislature was established, were assigned to Mr. Jefferson; the British statutes from that period to the present time, to Mr. Wythe; and the Virginia laws to Mr. Pendleton.

As the law of descents and the criminal law fell within the portion assigned to Mr. Jefferson, in both of which he designed to introduce certain fundamental changes, he submitted his intentions to the committee for their approbation. First, with respect to descents, he proposed to abolish the law of primogeniture and to make real estate heritable in equal partition to the next of kin as personal property was by the statute of distribution. Mr. Pendleton objected to the plan and insisted upon preserving the right of primogeniture; but finding he could not maintain the whole, he proposed to give a double portion to the elder son. In reply, Mr. Jefferson 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." (Autobiography, 1821. ME 1:64) The argument was conclusive, and the other members of the committee concurring with him, the principle was adopted.

On the subject of the criminal law, he proposed as a fundamental rule that the punishment of death should be abolished in all cases except for treason and murder. The humanity of this proposition is illustrated by the fact that at this time, the penal code of Great Britain comprehended more than two hundred offenses, besides treason and murder, punishable by hanging, many of which were of so venial a nature as scarcely to deserve punishment at all. The innovation recommended would sweep from the parent code all its cruel and sanguinary features without impairing its energy, as modern experience has proved, and present an example to mankind of wise and philanthropic legislation, which of itself would be enough to immortalize the revolution. The proposition was approved by the committee, and for all felonies less than treason and murder, it was agreed to substitute in the place of capital punishment, hard labor in the public works, and in some cases the lex talionis, or law of retaliation. With the last mentioned substitute, Mr. Jefferson was dissatisfied, but acquiesced in the decision of the board. "How this revolting principle," says he, "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." (Autobiography, 1821. ME 1:65) Having decided upon these general principles as the basis of revision, they repaired to their respective abodes to accomplish the magnificent design.

Go to Next Chapter

Top | Previous Chapter | Next Chapter | Front Page

© 1997 by Eyler Robert Coates, Sr.