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10. Revising Virginia's Legal Code
he 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.
"So far," says he in his brief notes of these transactions, "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 1776, 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." (Autobiography, 1821. ME 1:62)
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:
"Whereas, on the late change which hath of necessity been introduced into the form of government in this country, it is become also necessary to make corresponding changes in the laws heretofore in force; many of which are inapplicable to the powers of government as now organized, others are founded on principles heterogeneous to the republican spirit; others, which long before such change, had been oppressive to the people, could yet never be repealed while the regal power continued; and others, having taken their origin while our ancestors remained in Britain, are not so well adapted to our present circumstances of time and place; and it is also necessary to introduce certain other laws, which, though proved by the experience of other States to be friendly to liberty and the rights of mankind, we have not heretofore been permitted to adopt; and whereas a work of such magnitude, labor, and difficulty, may not be effected during the short and busy term of a session of assembly:
"Be it therefore enacted, by the General Assembly of the Commonwealth of Virginia, and it is hereby enacted by the authority of the same,--That a committee, to consist of five persons, shall be appointed by joint ballot of both houses, (three of whom to be a quorum,) who shall have full power and authority to revise, alter, amend, repeal, or introduce all or any of the said laws, to form the same into bills, and report them to the next meeting of the General Assembly."
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."
n 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:
"One who entered into this contest from a pure love of liberty and a sense of injured rights, who determined to make every sacrifice, and to meet every danger for the re-establishment of those rights on a firm basis, who did not mean to expend his blood and substance for the wretched purpose of changing this master for that, but to place the powers of governing him in a plurality of hands of his own choice so that the corrupt will of no one man might in future oppress him, must stand confounded and dismayed when he is told that a considerable portion of that plurality had meditated the surrender of them into a single hand, and, in lieu of a limited monarch, to deliver him over to a despotic one! How must we find his efforts and sacrifices abused and baffled, if he may still by a single vote be laid prostrate at the feet of one man! In God's name, from whence have they derived this power? Is it from our ancient laws? None such can be produced. Is it from any principle in our new constitution, expressed or implied? Every lineament of that, expressed or implied, is in full opposition to it. Its fundamental principle is, that the state shall be governed as a commonwealth. It provides a republican organization, proscribes under the name of prerogative the exercise of all powers undefined by the laws; places on this basis the whole system of our laws; and, by consolidating them together, chooses that they shall be left to stand or fall together, never providing for any circumstances, nor admitting that such could arise, wherein either should be suspended, no, not for a moment. Our ancient laws expressly declare, that those who are but delegates themselves shall not delegate to others powers which require judgment and integrity in their exercise. -- Or was this proposition moved on a supposed right in the movers of abandoning their posts in a moment of distress? The same laws forbid the abandonment of that post, even on ordinary occasions; and much more a transfer of their powers into other hands and other forms, without consulting the people. They never admit the idea that these, like sheep or cattle, may be given from hand to hand without an appeal to their own will. -- Was it from the necessity of the case? Necessities which dissolve a government, do not convey its authority to an oligarchy or a monarchy. They throw back, into the hands of the people, the powers they had delegated, and leave them as individuals to shift for themselves. A leader may offer, but not impose himself, nor be imposed on them. Much less can their necks be submitted to his sword, their breath be held at his will or caprice. The necessity which should operate these tremendous effects should at least be palpable and irresistible... [note] In this state alone did there exist so little virtue, that fear was to be fixed in the hearts of the people, and to become the motive of their exertions and the principle of their government? The very thought alone was treason against the people; was treason against mankind in general; as riveting forever the chains which bow down their necks by giving to their oppressors a proof, which they would have trumpeted through the universe, of the imbecility of republican government in times of pressing danger to shield them from harm. Those who assume the right of giving away the reins of government in any case, must be sure that the herd, whom they hand on to the rods and hatchet of the dictator, will lay their necks on the block when he shall nod to them. But if our assemblies supposed such a resignation in the people, I hope they mistook their character. I am of opinion, that the government, instead of being braced and invigorated for greater exertions under their difficulties, would have been thrown back upon the bungling machinery of county committees for administration, till a convention could have been called, and its wheels again set into regular motion. What a cruel moment was this for creating such an embarrassment, for putting to the proof the attachment of our countrymen to republican government!" (Notes on Virginia, 1782. ME 2:174)
n 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.
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