53 2. Tl o-mas» Jeff ersoii a^ a leffislatcr :b^,'r.g.h.k eatx Class F^^^ Book M 2-4 ^ ^. >^s From Virginia Law Journal, roR December, 1887. Thomas Jefferson AS A LEGISLATOR. R. G. H. Kean. THOMAS JEFFERSON AS A LEQISIvATOR. Thomas Jefferson was born on the 2d of April, 1743, old style. He studied law in Williamsburg, Virginia, then the colonial capital, under the great lawyer and patriot, George Wythe; and, while a law student, in 1765, when the reso- lutions against the Stamp Act were under discussion in the House of Burgesses, heard Patrick Henry's celebrated speech. At twenty-four years of age, in 17(37, he was ad- mitted to the bar, and rose at once into a large practice. His account books, still extant, show that in 1771, the fourth 3"ear of his practice, he was engaged in four hundred and thirt}'' causes. In 1769 he was elected a member of the House of Burgesses from Albemarle county. His success as a practising lawyer and as a legislator are the more re- markable in view of the fact that he was not noted either as an advocate or a debater. It therefore furnishes a col- lateral proof of his eminent qualifications in other respects. For the time and country in which he lived, his attain- ments appear to have been quite remarkable for their variet}- as well as for the precision of his knowledge and the range and diversity of his learning. In modern times facility in travelling has tended in many ways to render the knowl- edge of a number of languages comparatively frequent among well educated persons. A hundred years ago the opportunities and instruments of learning, especial!}' in the modern languages, were comparatively few and poor. Even as late as 1815, George Ticknor, when he wished to begin the study of the German, was obliged to seek a text-book by borrowing a copy of " Werther" in one place, a grammar 45 2 Thomas Jefferson as a Legislator. (an indifferent one) in another, and sending to another State for a dictionary. Mr. Jefferson's writings indicate no slight acquaintance with Greek literature, though he was probably less addicted to it than his friend, Mr. Wythe, who was wont to fill the blank leaves of his law books with extracts from the Greek poets and historians, in exquisitely neat Greek text. Of the Latin, Mr. Jefferson was a master. Few of his cotempora- ries were as well versed as he in Anglo-Saxon, in which he took, early in life, great interest, as the parent stock of the Enghsh and the language in which the foundations of the common law had been laid.* He wrote and spoke French with fiuenc}^ and elegance, having perfected himself in it during his four years' residence in Paris. While in Europe he also acquired some familiarity with Italian and German — enough of the former, at least, to give him access to the literature. He was a pioneer in the critical study of the languages of North American Indians. His mathematical attainments were such that he made ready use of fluxiona as an instrument of investigation. I have seen the discussion, made with the neatness which marked everything from his pen, to determine the curvature of the dome to his house at Monticello. An eminent pro- fessor of comparative anatomy told me many years ago that next to Cuvier, he regarded Mr. Jefferson as the best in- formed com})arative anatomist of his time. For over thirty years he had availed himself of every opportunity for pro- curing vocabularies of the various Indian dialects, oppor- tunities which he described as " probably better than will ever occur again to any person having the same desire." He had digested these in parallel columns for more ready comparison, and the whole accumulated treasure only awaited the addition of the collections made for him by Capt. Lewis, being so nearly ready for the press, when the box containing the manuscripts was stolen on the vessel by which it was shipped with his other goods from Washington to Richmond, and broken open. The disappointed thief threw the box and contents into James River. A few leaves floated ashore and were found in the mud, so few and so de- faced as to be of no practical use. Before the Revolutionary War, when he was only from twenty-five to thirty years of age, he had designed, by *Mr. George Ticknor, describing a visit lie made to Monticello in 1825, (just the year before Mr. Jefferson's death) says : " He reads much Greek and Saxon."— Life and Letters by Hillard, Vol. I, p. 343. / / Thomas Jefferson as a Legislator. 3 using his extensive acquaintance in tlie State, to arrange a system of daily observations of the winds and temperature. These it was his purpose to arrange and tabuhite and pre- sent to the Philosophical Society at Philadelphia, "in order to engage them, by means of their correspondents, to have the same thing done in every State and through a series of years." The object of this was to determine the relations between the winds and temperature (see his letter to Volney of 8th January, 1797.) Thus he anticipated by more than a century the Meteorological Bureaux of our own and other countries. In a letter to Dr. Styles from Paris, 17th July, 1785, he made a distinct suggestion of the screw propelleV. In 1796 he mentions in a letter to General Washington, that he had made trial of a drill, to which he refers as "the Caroline drill," for sowing a single row of seeds ; and says he shall try to make one to sow four rows atc«-time of wdieat or peas. While in Paris in 1786, he had a discussion with Boutfon on certain points of natural histor}'-; found him " absolutely unacquainted" with the elk and deer of North America, and procured horns and skeletons to be sent him whereby he established his own correctness. In 1785 he brought to the notice of the Government the invention of muskets so made as to be interchangeable in all their parts, and took all the steps to cause the introduction of the sys- tem into the United States. Every detail for enabling the United States to employ this system was furnished by him to General Knox, Secretary of War, in 1789. And so on, almost without end. No one can read the col- lected writings of Mr. Jefferson, especially his letters, im- perfectly as they have hitherto been edited, without aston- ishment at the variety and minuteness of his observation, the boldness and sagacity of his inductions, and the emi- nently practical character of his intellect. The directions and scope of his speculations and inquiries force one to the conclusion that if he had lived at a period or in a State where he would have been free to i)ursue the studies in wdiich he chiefly delighted, instead of being known to the w^orld as a political philosopher, statesman and party-leader, he would have been in the very front rank of naturalists and inventors. In the literature-making portions of the United States it has long been the fasliion either to ignore Mr. Jefferson or refer to him slightly. If he had lived and done his work east of the Hudson or north of the Susquehanna, he would be rated to-day far higher among the greatest minds Amer- 4 Thomas Jefferson as a Legislator. ica has produced than he actually is rated, even among- well informed people. That due care which his reputation has not received in the current literature of the country, would then have been bestowed. It would seem that now, time enough has elapsed for the antagonisms felt towards the party-leader to abate, at least sufficiently for us to begin to do justice to the man. As the generation which was young when he died has nearly died out, he is falling into something like oblivion. Yet he belongs to that order of men which no people in justice to themselves can fail to keep in perpetual and green remembrance. There is one aspect especially of this many-sided intellect which the ap- preciation of the public even in his own time and State has largely overlooked, namely, his work as a legislator. This is not difficult to explain. It is not surprising that the high career of the party organizer and politician should have thrown into the shade, almost of temporary oblivion, the earlier work which Mr. Jefferson did in this less conspicu- ous capacity. The arena was comparatively a narrow one — the Legislature of his native State. The time when it was done was amidst the throes of Revolution and the struggles of a war of doubtful issue. The very skill with which most of it was adapted to accomplish its ends without any shock to society or invasion of vested interests, made the transition it was designed to effect from the old to the new order, nearly an insensible one. Its leading objects were twofold. First, the adaptation of the municipal law of the State, to the conditions of Republican life and of civil and religious liberty ; and secondly, to effect substantial reforms in both the civil and criminal Codes — reforms in many re- spects far in advance of any which had then been effected in the laws of any English-speaking State. Young as Mr. Jefferson was when he entered the Legisla- ture of Virginia and the Continental Congress, his acknowl- edged abilities as a thinker, a statesman, a jurist, and a master of the art of drafting, by the use of language at once clear, simple, concise and comprehensive, led to his being put in the lead of important committees, by which such work was to be done, in every deliberative body of which he was a member. When the first Congresses under the Fede- ral Constitution met he was Secretary of State, and then Vice- President, so that he never sat in the Congress of the United States under the Constitution of '89; and hence his skill had no opportunity to be exercised (save by way of private sug- gestion) in the framing of the statutes by which the present Thomas Jefferson as a Legislator. 5 'Government of the United States was put in operation. The body of laws which he drew, or aided in drawing for Vir- ginia (excepting a few immediately put on their passage), was not enacted at once, but was taken up piecemeal and brought upon tlie statute-book, one at a time, tlirough several years, and chiefly during the years he was in Europe; so that there was little opportunity for his agency in them to become gen- erally known. Some of them were never adopted at all, notabl}^ his plan for the gradual abolition of slavery in Vir- ginia, and his comprehensive scheme for the education of the youth of the State, from the earliest primary grades to the most advanced fields of the higher education His re- formation of the criminal code, too, as we shall see in the following pages, proved somewhat in advance of the time, and found acceptance a few years later in a modified form. The foregoing are some of the causes which have contributed to the result, that only among lawyers, and comparatively a few of them, is there any appreciation of the very high rank Mr. Jefierson deserves to hold as a legislator and a law re- former. Another reason is found in his rare and almost excessive modesty in the matter of claiming before the world his part in any work in which others co-operated at all. After the Declaration of Independence had been adopted, and the Articles of Confederation reported, in the Continental Congress of 1776, on the 2d of September of that year he re- signed his seat in Congress, to which he had been re-elected by the State Legislature against his protest, and returned to A^irginia, to take his seat, by preference, in the lower branch of the General Assembly. This body met on the 7th of Oc- tober. At this time Mr. Jefferson w^as thirty-three years of age. His reason for preferring a seat in the House of Dele- gates of his State, to one in Congress, he has himself ex- plained. In his " Memoir " he says : " When I left Congress in 1776, it was in the persuasion that our whole Code must be revised, adapted to our republican form of government, and, now that we had no negations of councils, governors and kmgs to restram us from doing right, that it should be cor- rected in all its parts, with a single eye to reason, and the good of those for whose government it was formed." On one of the early days of this session he introduced and car- ried through an act defining treason, and fixing its punish- ment, abolishing corruption of blood. At the same session he brought in and carried his act defining " citizenship," and recognizing the individual right of ex])atriation, and the act abolishing estates tail. The last named, dealing as 6 Thomas Jefferson as a Legislator. it did with a subject on which the ingenuity of the common lawyers had exhausted itself in the invention of technicalir ties, is drawn with that precision and comprehensiveness so characteristic of all his work as a legislator. This was one- of the measures b}^ which he designed to root up the feudal and aristocratic idea of keeping up the wealth and impor- tance of families, and with its twin measure, the statute of descents, by which primogeniture and the preference of males were abolished (to which more particular attention will be given further on), fully accomplished that object. At an early day in the same session (October, 1776) he introduced a bill " for the revision of the laws." It passed October 24th, and on November 5th, by a joint vote of the twO' Houses, Thomas Jefferson, Edmund Pendleton, George Wythe, George Mason and Thomas Lightfoot Lee were ap- pointed a committee to do the work. Naturally Mr. Jeffer- son, as the patron and author of the measure, was the chair- man of the committee. He was first named in the resolution appointing them, and his name is first signed to the report subsequently made when the work was done. But nowhere in his writings have I found that he has stated that he was the chairman. The members of this committee met in Jan- uary, 1777, at Fredericksburg (a point central and relatively convenient to all except INIr. Jefferson), to take a general view of the work to be done, settle a few leading principles, and distribute the task among the members of the commit- tee. When the distribution came to be made, Mr. Mason and Mr. Lee excused themselves, on the ground that not being lawyers they felt unqualified to take any part of it. Soon after this meeting Mr. Lee died, and Mr. Mason re- signed from the committee. Under the bill for their ap- pointment the committee had the power to fill vacancies; but this the remaining members did not feel called on to do, the leading principles fixing the lines on which the work should proceed having been already agreed on by the whole original committee. In the distribution made, the common law and British statutes down to the fourth year of James I (1607), the date of the foundation of the colony, were assigned to i\Ir. Jefferson ; the British statutes from that date to 1776 to Mr. Wythe ; and the colonial statutes to Mr. Pendleton. Obviously Mr. Jefferson had the laboring oar. These three, having respectively gone through their sev- eral tasks, met again at Williamsburg in February, 1779, ta compare their work. Together they went critically over the- whole, sentence by sentence, and separated again, that each Thomas Jefferson as a Legislator. 7 might have made fair corrected copies of his portion. On the 18th June, 1779, tlie whole was reported to the Legisla- ture by Jefferson and Wythe. Mr. Pendleton (owing to the illness of a child) did not attend, and his colleagues, linding that in preparing his portion he had simply copied out the original text of such of the colonial statutes as had been agreed to be retained, they re-drew the whole of them, to purge them of redundant words, and, as Mr. Jefferson ex- l^ressed it, " to assimilate the plan and execution of this to the other parts of the work." While this revisal was in hand, an annual session of the General Assembly came on, in the fall of 1778, and Mr. Jef- ferson was in his seat. At the preceding session he had brought in bills for organizing the courts — a court of ap- peals, a court of chancery, a general court (with appellate jurisdiction in criminal cases), and courts of assize. These measures had been crowded out by other work having rela- tion to the state of war. They were now brought forward by him again, and passed. His former preceptof and vene- rated friend was elected one of the three Chancellors. A later act provided that upon the death or resignation of two of the Chancellors, no appointments should be made, to the end that there should ultimately be but one. By survivor- ship Mr. Wythe became, and for many years continued to be, the sole Chancellor of Virginia, and is known and reve- renced in that State, as "Chancellor Wythe," much as "Chan- cellor Kent " is in New York — clarum et venerahile nomen. The report of the revisors embraced 126 separate bills, some of which were introduced and passed before the gene- ral report was submitted. Of these the act prohibiting the slave trade was one. These bills w^ere not adopted as a code, or single statute, nor otherwise acted on as one harmonious whole. Some idea of the condensation which had been ef- fected may be gathered from the fact that they were all printed on ninety folio pages. It was one of the cherished hopes of the authors that the style of these bills, in which clearness and succinctness w^ere sought to be combined, would tend to work a reformation in the vicious tautological style of the more recent British and colonial legislation — a hope realized in the period which has intervened, only to a mod- erate extent, in current legislation. But its iniluence was distinctly manifest in the Virginia Code of 1840, prepared by the late Conway Robinson and John M. Patton. " Inter arma leges silent. Mr. Jefferson was elected Governor' of A^irginia a few days after the Revisal was reported to the 8 Thomas Jefferson as a Legislator. Legislature (June, 1779). His term was a storni}^ one. The invasions of Arnold and Conwallis, and the conquest by Virginia of the Northwest Territory, gave the executive and Legislature much to occupy their attention, apart from the lowering aspect of the general affairs. Accordingly nothing- was attempted to be done with the revision, except to print the proposed bills, until after peace with Great Britain had been signed, and Mr. Jefferson had gone to Europe as one of the plenipotentiaries of the United States with Mr. Adams, whom he regarded and treated as his senior in that com- . mission. His residence in Paris in that character continued from 1784 until the fall of 17S9, when, having returned to the United States, he became Secretary of State in the first Cabinet. _ During his absence abroad, and after a year of peace had given the country a breathing space, the General Assembly in 1785, and subsequent sessions, adopted a number of the bills reported by the revisers. It was unfortunate that none of them w«*e at hand to explain and advocate their work as a ivhole.^ Mr. Jefferson was in Europe; Pendleton and Wythe were judges. Among the earher bills so passed, championed by Mr. Madison, then a young man, but already great in de- bate, as well as in council, was the celebrated "Act for Es- tablishing Religious Freedom." On the 13th August 1786, Mr. Jefferson wrote from Paris to Chancellor Wythe as follows: " The European papers have announced that the Assembly of Virginia were occupied on the revisal of their Code of laws. This, with some other similar intelligence, has contributed much to convince the people of Europe that what the English papers are constantly publishing of our anarchy is false ; as they are sensible that such a work is that only of a people who are in perfect tranquility. Our act for freedom of religion is extremely applauded. The ambassadors and ministers of the several nations of Europe, resident at this court, have asked of me copies of it, to send to their sovereigns, and it is inserted at full length in several books now in the press, among others in the New Encyclopaedia." The concluding clause of this celebrated statute has fur- nished a striking instance of a repealable act, admiting on its face that it is repealable at the pleasure of any other General Assembly, but coupling that declaration with a statement of principle so cogent as to give to the law a char- acter more durable than any mere constitutional provision. It is in these lofty words: "And though we well know that this Assembly, elected by the people for the ordinary purposes of legislation only, have no power to restrain Tliomas Jefferson as a Legislator. 9 the acts of siu-cedin^ Asseml)lies, constituted with })owers equal to our own, and tliat therefore to declare this act irrevocable would be of no effect in law, yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present, or to narrow its opera- tion, such act will be an infringement of natural right." Among the bills of a general character drawn by Mr. Jefferson were three upon a subject which always lay near his heart. He describes them as parts of a connected whole, •embracing "a systematic plan for general education, reach- ing all classes of free persons: 1st, Elementary schools for all children generally, rich and poor; 2d, Colleges for a middle degree of instruction, calculated for the common purposes of life, and such as would be desirable for all who were in easy circumstances; 3d, An ultimate grade for teaching the sciences generally, and in their highest degree." These bills were never taken up by the Legislature. Their author, throughout his life, had the disappointment of find- ing his people in this matter, as in many others, a century, or a large part of it, behind himself. The later years of his life, from 1816 to his death, in 1826, were in some measure solaced by the establishment* under his eye and moulding hand, and largely by his unremitting personal exertions (nobly seconded by the late Joseph C. Cabell), of the Uni- versity of Virginia. This institution he founded upon a plan and system far in advance of any institution of learn- ing of like grade then in America. Among the essential features embodied in the original statutes of this institution by its founder are the independence of the schools, and the elective principle, gradually introduced by tentative stages at Harvard by the unwearied efforts and urgency of Presi- dent Eliot, and adopted to a greater or less extent by other large and richly endowed institutions of learning, nearly fifty years after Mr. Jefferson's views had been formulated, and put into practical and successful operation, continuing to the jiresent time. The reformation of the criminal law embodied in the re- vision was Mr. Jefferson's work At the first conference of the committee, when all the five members were present, one vast stride in ameliorating the barbarous cruelty of the English penal laws was unanimously agreed on. This was to confine the penalty of death to the two offences of treason and murder, abolishing the revolting practice of drawing and quartering. All other felonies were punishable by con- finement aiid hard labor, except a few, in which, against his 10 Thomas Jefferson as a Legislator. protest, the majority retained what he afterwards character- ized as "the revoUing feature of the lex talionis." This re- form proved somewhat too far in advance of the times. It was not adopted in the form proposed, but seventeen years later (1796) a bill substantially its equivalent was passed. The spirit of the proposed act is shown in its title — "A bill for proportioning crimes and punishments in cases heretofore J capital" — and in the following paragraph from its preamble: ^T^'Mnd forasmuch as the experience of all ages and countries hath shown, that cruel and sanguinary laws defeat their own purpose, by en- gaging the benevolence.of mankind towithiiold prosecutions, to smother testimony, or to listen to it with bias, when, if the punishment were only proportioned to the injury, men would feel it their inclination, as well as their duty, to see the laws observed. For rendering crimes and I punishments, therefore, more proportionate to each other. Be it enacted ;; by the General Assembly, that no crime shall be henceforth punished .') by deprivation of life or limb, except those hereinafter ordained to be sa [ / punishedJ;^ By this bill the death penalty was removed in about twenty-seven felonies, including offences by free persons and slaves, more than the life of a generation before similar re- sults crowned the efforts of Romilly, Macintosh and Broug- ham in England.* The whole bill occupies about six pages of ordinary octavo print; or with the copious notes and refer- ences — made for his own use — to the English statutes, and cases, and the Anglo-Saxon laws (which last were written in that language, accompanied in the copy he sent to Mr. Wythe by a literal translation into either English or Latin), about thirteen pages. It is a model of condensation, without loss of clearness or precision, and may be seen in the publication of the "Writings of Thomas Jefferson," edited by his grand- son, T. J. Randolph, published at Charlottesville, Va., 1829,. Vol. I, pp. 120 to 133, where the Saxon notes are printed with English type for want of the t3^pe for the Saxon letters. The same apology cannot be allowed for the reprint made by Congress in 1853, in nine volumes. Some idea of the sloven- liness with which this work was done may be obtained from the fact that the appendix to the "Memoir," as Mr. Jefferson called it — autobiography, as the editor of the Congressional publication chose to call it — containing Mr. Jefferson's letter to Mr. Wythe of November 1, 1778, and the annotated draft of this bill, is copied bodily from Mr. Randolph's book, in- "The annual Register for 1780 shows 87 capital convictions at the Old Baily in that year, of which 38 were for stealing, counterfeiting, or rob- bery, and 49 for riot. Thomas Jefferson as a Legislator. 11 chiding the foot-note apologizing for the use of the English letters for want of Anglo-Saxon tgpe. Hee Vol. IV, p. 140. Another of Mr. Jefferson's bills in the revision was that upon the subject of slaves. The first section, by defining who should be slaves, supplemented the act already passed, and in force since October, 177S, suppressing; the African slave trade. This bill " concerning slaves" was passed in 1785. This policy of obstructing, or suppressing altogether, the importation of slaves into tlie State had been one deeply cherished by the leading minds of Virginia from an early day (1G99). The Colonial Legislature had passed as many as three and twenty acts, having that object, before the Rev- olution, every one of which had been vetoed by, or by au- thority of, the Crown.* Against these vetoes the original draft of the Declaration of Independence launched one of its most burning paragraphs, which was stricken out in com- mittee. The history of this alteration is thus given by Mr. Jefferson : "The clause, too, reprobating: the enslaving; the inhabitants of Africa, ■was struck out" (from his draft of the Dechiratiou) "in complaisance to South Carolina and Georgia, who had never attempted to restrain the im- portation of slaves, and who, on the contrary, wished to continue it. Our Northern brethren also, I believe, felt a little tender under those cen- sures; for though their people had very few slaves themselves, yet they had been pretty considerable carriers of them to others." The last of the prohibitory acts passed by the House of Burgesses, before independence gave the State the power to act, was in 1772, only four years before the Declaration was written; so that the wrong complained of was fresh, as well as of long standing. This act was accompanied by an earn- est petition to the Crown to "remove all restraints wdiich in- hibited his Majesty's Governors assenting to such laws as might check so very pernicious a commerce as that of slavery, "t The "Act for preventing the further importation of slaves" was one of the first general laws passed by the State on as- suming independence (9 Henning's Statutes at Large, 171). Section 1 provides that from that date " no slave shall be * By what was known as the Contract of Assiento, in the Peace of Utrecht, England accjuired the monopoly of the slave trade (to the dis- gust of the Dutch) in 1713, and thenceforth was the great slave trader of the world. 1 Lecky Hist, of l'>ng. 18th Century, pp. V.V.\ and loS. t Any one interested to pursue this subject of the steady and persistent resistance of the Colony of \'irginia to the slave trade may consult 1 Tucker's Blackstone, Appendix .51, note, and 1 Minor's Institutes, Bk. I, ch. 14. 12 Thomas Jefferson as a Legislator. imported into this Commonwealth by sea or land, nor shall any so imported be sold or bought." Section 2 imposes the jDenalty of a thousand pounds for each slave imported, and of five hundred pounds for every slave so bought or sold. Section 3 declared all slaves so imported to be free.* The first section of the revisor's (Jefferson's) bill "concerning slaves" was in these words: "That no persons shall hence- forth be slaves within this Commonwealth, except such as were so on the first day of this present session of Assembly, and the descendants of the females of them. Slaves which shall hereafter be brought into this Commonwealth, and kept therein one whole year, or so long at diff'erent times as shall amount to one year, shall be free." It is plain that the qualification of a year's detention in the State was in tenderness for the people of the neighboring States, all of which being slaveholding, the intercourse with Virginia would be materially interfered with, if their people should be deprived of the services of their domestics, when visiting Virginia for business or pleasure, or passing through her territories. All traveling (save along the seacoast) at that day was either by private carriages, driven by slave coach- men, or on horseback attended by a mounted body-servant of the same condition. In his "Notes on Virginia," prepared two years after the Report of the Revisors (1781), Mr. Jefferson says that it was a part of the plan of legislation agreed on by the committee •on the subject of slavery (not only to root up the slave trade, as had already been done by the act of 1778, but) to put the institution itself in the way of speedy extinction, by the adoption of the principle of post nati emancipation — that is, to enact that all born after the passing of the act should be free. " The bill," says he, "reported by the revisors does not contain this proposition ; but an amendment containing it was prepared, to be offered to the Legislature whenever the bill should be taken up." He proceeds to give the elab- orate provisions contemplated for the education of the post nati freedmen, in such manner, according to their capacity, as might best fit them for the responsibilities of a free con- dition; and their colonization was to be provided for in such place as circumstances at the time should indicate as the most proper. In his "Memoir," written in 1821, he re- marks on the fate of this scheme as follows: *This bill was drawn and proposed by Mr. -Jefferson, and passed with- •>out opposition. See Complete Works (Congressional), Vol. I, p. 38. Thomas Jefferson as a Legislator. 13 " But it was found that the public mind would not yet bear the propo- sition, nor will it bear it even at this day. Yet the day is not_ distant when it must bear and adopt it, or ivorse ivill follow. Nothing is more certainly written in the book of fate than that these people are to be free. Nor is it less certain that the two races, equally free, cannot live in the same government. Nature, habit, opinion, have drawn indelible lines of distinction between them. * * * If * * it-Cenfancipation) is left to force itself on, human nature must shudder at the prospect held up." For forty years these were like the prophecies of Cassan- dra. The first half has now been fulfilled. Whether the rest was forecasted with equal prescience, only the develop- ments of an inscrutable future can decide. The men of 1785, and of 1821-32, stood appalled at the cost of any scheme of deportation as beyond the resources of the State. Whether it would not in the end have been a wise economy to have met that strain at every sacrifice at the earlier of those dates, when the slave population of Virginia was esti- mated at 270,762, may well be doubted, if, as I believe may be plausibly shown, the losses in values to the white people of Virginia by the war between the States, including the slave property, was near $1,000,000,000. Another element of the computation is the relative wealth of the State as it is, and as it would have been, if emancipation had been ac- complished early in the present century. And again, we have not seen the end of the negro question in America, nor do we know what expenses it may yet entail. In the mass of legislation for his State prepared by Mr. Jefferson on her new departure, not only as an independent Commonwealth, but as one founded on principles of pure republicanism, some of the laws were necessarily of a kind liable to changes with the advance of society, the growth of population, and the changing conditions of the community. This was especially the case with the acts which had for their object the organization of the courts, providing the of- ficers to administer the government, and defining their du- ties, their terms of office, modes of selection, &c. Others were original departures, intended, and effectual, to work a radical change, in the texture and condition of society. Of the latter chiss were those whose importance largely influ- enced Mr. Jefferson to prefer service in the State Legislature from 1776 to 1779 to a seat in Congress. "I considered," he said, in his "Memoir," "four of these bills passed/ or reported, as forming a si/sttm by which every li])re would be eradi-IJ cated of ancient or future aristocracy, and a foun^ vided into two moieties, one going to the paternal and the / ^ other to the maternal kindred, and if there be no kindred on one sidcj^the whole goes to the kindred on the other side in the following course : 1. To the grandfather, if one be living. 2. If none, to the grandmother, uncles and aunts on the same side and their descendants. 3. If none of these, to the great grandfathers or the great grandfather, if there be but one. 4. If none, to the great grandmothers or the great grandmother, if there be but one, and the brothers and sisters of the grandfathers and grandmothers and their descendants. And so on without end, passing to the near- est lineal male ancestors, and for want of them, to the near- est lineal female ancestors in the same degree, and the de- scendants of such male and female ancestors. If there be neither paternal nor maternal kindred, the wliole goes first to the husband or wife, and if neither, to the kindred of the husband or wife as if he or she had died entitled to the es- tate according to the course above set out. When some of the heirs are of the whole blood and others of the half | blood, the latter take half so much as those of the whole 16 Thomas Jefferson as a Legislator. blood. When a class inherits, all of the class take per capita,. if all the class be living. If some have died leaving de- scendants, such descendants take yer stripes (or by stocks), that is, the share their deceased ancestor of the class would have taken if alive. Advancements made to children by a parent are to be brought into hotch-pot with the estate de- i scended. Alienage of an ancestor is no bar to tracing a de- scent through him. Bastards may inherit and transmit inheritance on the part of the mother. Marriage and re- cognition by the father, legitimates children born out of wed- lock, and the issue of marriages deemed null in law are , nevertheless legitimate. j^ /^Thus every shred of the pre-existing (English) law of de- ^ ^ scents was demolished, and a scheme based on new princi- ples, contradictory to it, was substituted in its place. The act as adopted (and it was adopted j)recisely as Mr. Jefferson drew it), consists of eighteen clauses and occupies a-little ; over a single page in the Statute Book^ One feels that to (5' state this matchless piece of work in otnfer than its author's A^ words is little short of profanation, and I am tempted to give its text in a note, but forbear. J' y. Now it has not been without definite purpose that so much V' of the substance of the act has been stated, even at the peril ^- of disgusting the lay- reader. It was needful to illustrate I what now follows. Under the provisions of this new act, which subverted and reversed all the rules which had pre- viously existed in the State, all the real estate which has descended in Virginia to the heirs of the generations of a hundred years, has passed to those entitled by these pro- visions. So precise, so comprehensive and exhaustive, so simple and clear, were the terms in which they were ex- pressed, that in the experience of a completed century hut one single doubt as to the construction and effect of any part of , it has arisen. That single doubt was resolved by the case of (i Davis V. Rowe, 6 Randolph, 355.,.^ The doubt was this. It was provided that when a class of heirs came to the inheri- tance, if all were alive, they should take per capita equal shares. If some were living and others of the class were dead, leaving descendants, the living members of the class take as before, while the descendants of the dead members were to take per stripes ; that is, they take the share their dead ancestor would take if alive. There was a third case possible, not exp)ressly provided for, namely, when all of the class were dead, leaving descendants, should those de- scendants take per capita or jjer stripes f Thomas Jefferson as a Legislator. 17 Anthony Gardner, a wealtliy bachelor, died. He had had one brother and one sister, both of whom had died be- fore him, leaving issue who survived Mr. Gardner. The brother left one child, Mrs. Davis. The sister left two sons, who were living at A. G's death, and two families of grand- children, the issue of two daughters who had died be- fore Anthony Gardner. Was Mrs. Davis to stand in the place of her father and take one-half of her uncle's estate, th* other half being divided among her cousins, one-eighth to each ; or, as she and her cousins were all alike the ne- phews and neices of their uncle, was the estate to be divided into five equal parts, one of which should go to Mrs. Davis, one to each of the Rowes, her living cousins, and one pass to each family of the dead cousins ? The difference to Mrs. Davis was between one-half and one fifth, and was worth a struggle. A powerful effort was made by very able counsel to maintain her claim to one-half the property by the ap- plication of the English canon of the jus representationis. The decision was against her. The court, in a discussion spoken of by Chancellor Kent as one " marked by great industry and legal erudition," held that the statute of descents was a total destruction of each and all of the rules of the common law of descents, including the jus representationis ; and that it furnished a complete rule in itself; that while the case before the court was not expressly provided for, the act con- tained the principle which governed it, namely, that it fol lows the natural course of the affections of the heart, pre- ferring as heirs the classes nearest in blood, and in the same class giving the individuals nearest the intestate larger por- tions, and allowing those more remote to take per stripes. After this decision, the ruling of the court was incorporated into the act by an amendment. 4- While in regard to this statute it may be said, as prob-/ abl}'- could not be said of any other specimen of humanj legislation of the like importance, that in a hundred vears but one doubt could be raised as to the meaning and effect of any part of it, a single section added by the LegislaturQ • in 1790, by another hand, to meet a special and compara- tively rare state of facts, has been a fruitful source of litiga-iu tion. The cases in which inheritances pass under thial change in the scheme of Mr. Jefferson's bill are probably! 1 not one-tenth of one per centum in number or value, oi\ those which are controlled by the rest of the statute ; yet while no question can be raised as to his workmanship, the amendment has given rise to quite a swarm of cases in the 2 18 Thomas Jefferson ns a Lcf/islafor. I Supreme Court of the State to construe its meaning and \ effect.- Such is the difference between perfect and imper- ii: 'feet workc. jy It would be an extremely interesting study to trace how far these various acts and proposed bills of which Mr. Jeffer- l, son, while still a young man, was the author, were original Kvith him, as law reforms. Many of them embodied the earliest advances in the way of reform to the condition of statute law, made by any English-speaking people on either side of the Atlantic, so far at least as I have been able to ascertain. For example : the act defining citizenship con- tained, I believe, the first statutory declaration of the right of expatriation. His amelioration of the brutal severity of the English and colonial criminal law was man}^ years in advance of any substantial step in that direction in Great Britain, where, as late as 1828-30, Lords Eldon and Tenter- den were obstructing what the Report of Revision offered in 1779, and the Legislature adopted in 1796. His drafts of the bills for general education by the State were, it is be- lieved, many years before such an attempt was formulated anywhere else in the world. His act of 1778 was the first abolition and prohibition of the African slave trade. On this cherished policy of Virginia, to which she had adhered from 1699, and which she introduced into her deed of cession of the Northwest Territory, she was outvoted in the Conven- tion which framed the Federal Constitution, and had to sub- mit to see it superseded for twenty years b}" the " supreme law." But Mr. Jefferson never lost sight of it. In his mes- .sage in 1806 he calls the attention of Congress to the approach of the period when under the Constitution it would have power to prohibit the slave trade, and suggests timely pros- pective legislation, so as to take away all pretext that expe- ditions bad been set on foot before it could be known that prohibitory acts would be passed. Mr. Jefferson was the owner of immense bodies of unimproved, lands. His con- sistent action on this subject was therefore disinterested, as well as early, dating from a time before the l)irth of the 1 movement in England. He was legislating prohibition when Thomas Clarkson was a school bov. The Virginia Bill of Rights (1776) and the statute of Re- ligious Liberty were the first formal sovereign declarations of their kind in Christendom. They struck the key-note of modern progress towards real freedom of religious opinion — tlie sovereign right in each individual imax to regulate his raith and his religious associations according to tlie dictates TJiomas Jefferson as a Legislator. 19 of Ids own conscience. It was not " toleration," but freedom of belief, absolute and universal, first then made a funda- mental law, under which no form of persecution could be possible. So again with the acts abolishing estates tail, the preference for males and primogeniture. Estates tail ap- pear to have survived in some of the States for many years. In most of them the effect of that kind of settlement of property, in keeping up the wealth and consequence of families, was greatly impaired by provisions a'ffording easy means of docking the entail, as by the mere deed of the ten- ant in tail in possession. Virginia led the vanguard in their deletion. New York followed in 1782; North Carolina in 1784; Kentucky in 1706; New Jersey in 1820. In Mary- land, Pennsylvania, Georgia and the New England States they have lingered in a more or less crippled condition, far into the present century. So, too, j\Ir. Jefferson was the first legislator using the English language to uproot and sweep away the principle of primogeniture, and along with it every trace of the feudal rules by which preference was given to males, and to estab- lish, in the place of that highly artificial system, the rational and simple principle that real property, like personal, should go, on the death of the owner intestate, to those whose rela- tion to the owner indicates, according to the laws of natural, affection, that they should succeed to his estate. One con-/ sequence of this legislation has been that in Virginia it is much less the rule for persons to make wills than (as I be- lieve) is the case generally elsewhere. It is a common re- mark of men, in whose families no special cause for special provision in case of death exists, that " the law makes as good a will as they care to have." No one who will take the trouble to compare the work done by Jefierson with that of other framers of statutes of a general nature, can fail to rise from such comparison with the conviction that he was a master workman of the highest order. Great achievements in codification have been made from time to time, from the days of Justinian to the present — I had nearly said to the days of David Dudley Field. The Code Napoleon has stood the test of nearly three quar- ters of a century, and throughout the world is recognized as vindicating the Emperor's boast, " I shall go down to pos- terity witli the Code in my hand." Many of the great Eng- lish statutes have dealt with special subjects in a masterly way. Much work of the same qualit}^ has been done in the United States, especially in the earlier Congresses, in not a 20 Thomas Jefferson as a Legislator. little of which the hand of Mr. Madison may be regarded as visible.^ But however admirable the style in which such work has been done elsewhere or in other times, I believe ' that, beyond all cavil, the Virginia Statute of Descents is the only important statute in the history of human society which in a century of experience has given rise to but one single controversy as to the meaning and effect of any of its provi- sions. In all the essentials of excellence it is unique. Ex- , haustive, precise, perspicuous, simple, comprehensive, it is I j the only know^n specimen of human legislation which came ■ ' from the hand of its author simply perfect. I sa}^ " perfect," for while one question over sixty years ago was raised as to its effect, the decision determined that the case was not casus omissus, but that it was ruled by the principles embodied in \ithe act^^ ; In view of the quality of this statute, it may fairly be said / that if Mr. Jefferson had done nothing else as a legislator ' than to frame it as he did, that single exploit would suffice to entitle him to a place in the front rank of the law makers ' of the world. But when we remember that in the few years I of his service in legislative bodies he was the author and draftsman of most of the acts moulding the frame of the first constitutional representative republic, organizing its government, establishing its judicature, reforming its civil and criminal codes, anticipating in these reforms those en- tered on elsewhere by years in most cases, and by many years in many others; that he was always in the lead in law reforms, striking out principles and stamping them on ithe life of the state and country, embalming them in laws so eloquent in their untechnical simplicity and exactness that no change was ever an amendment, — I say, when these 'things are considered, it cannot be doubted that in this com- -paratively youthful legislator we find one of the first law- makers of modern times. j Indications are not wanting that society in Great Britain ihas outgrown the half- feudal common law of real property. The recent striking article of Sir J. F. Stephens on this sub- ject is a significant indication that the law of inheritance there will not be much longer endured. When the time shall come for pulling down, and the work of reconstruction must be done, English lawyers and legislators may find in the Virginia Statute of Descents the work ready done to their hands, over a hundred years ago. Lynchburg, Va., January 5, 1881. -"Y^ LEJa'12