Thomas Jefferson - Memoir, Correspondence, And Miscellanies, From The Papers Of Thomas Jefferson

T >> Thomas Jefferson >> Memoir, Correspondence, And Miscellanies, From The Papers Of Thomas Jefferson

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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.*

* Here terminate the author's notes of the 'earlier debates
on the confederation,' and recommences the MS. begun by him
in 1821.

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.

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 words '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.