Thomas Jefferson's Autobiography Review and Reform of the Law
by Thomas Jefferson
So far we were proceeding in the details of reformation only;
selecting points of legislation prominent in character & 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 & Kings to restrain us from doing right, that it should be
corrected, in all it's parts, with a single eye to reason, & 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 antient 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colony, omitting the expired, the repealed and the obsolete, amending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 &
judgment; and when reduced to a text, every word of that text, from
the imperfection of human language, and it's incompetence to express
distinctly every shade of idea, would become a subject of question &
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 &
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 & 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, & the criminal law fell of course within my portion, I
wished the commee 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 & 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 antient
people. But the modern mind had left it far in the rear of it's
advances. These points however being settled, we repaired to our
respective homes for the preparation of the work.
Feb. 6. In the execution of my part I thought it material not
to vary the diction of the antient 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, do
really render them more perplexed and incomprehensible, not only to
common readers, but to the lawyers themselves. We were employed in
this work from that time to Feb. 1779, when we met at Williamsburg,
that is to say, Mr. Pendleton, Mr. Wythe & 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 126 bills, making a
printed folio of 90 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 & right. It still met with opposition;
but, with some mutilations in the preamble, it was finally passed;
and a singular proposition proved that it's 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 it's protection, the Jew and the Gentile, the Christian and
Mahometan, the Hindoo, and infidel of every denomination.