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the laws of the colony, omitting the expired, the repealed, and the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.
Beccaria, and other writers on crimes and punishments, had satisfied the
reasonable world of the unrightfulness and inefficacy of the punishment
of crimes by death; and hard labor on roads, canals, and other public
works, had been suggested as a proper substitute. The Revisors had
adopted these opinions; but the general idea of our country had not yet
advanced to that point. The bill, therefore, for proportioning crimes
and punishments, was lost in the House of Delegates by a majority of a
single vote. I learned afterwards, that the substitute of hard labor in
public, was tried (I believe it was in Pennsylvania) without success.
Exhibited as a public spectacle, with shaved heads, and mean clothing,
working on the high roads, produced in the criminals such a prostration
of character, such an abandonment of self-respect, as, instead of
reforming, plunged them into the most desperate and hardened depravity
of morals and character. To pursue the subject of this law.--I was
written to in 1785 (being then in Paris) by Directors appointed to
superintend the building of a Capitol in Richmond, to advise them as
to a plan, and to add to it one of a Prison. Thinking it a favorable
opportunity of introducing into the state an example of architecture, in
the classic style of antiquity, and the _Maison Quarrée_ of Nismes,
an ancient Roman temple, being considered as the most perfect model
existing of what may be called Cubic architecture, I applied to M.
Clerissault, who had published drawings of the antiquities of Nismes, to
have me a model of the building made in stucco, only changing the order
from Corinthian to Ionic, on account of the difficulty of the Corinthian
capitals. I yielded, with reluctance, to the taste of Clerissault,
in his preference of the modern capital of Scamozzi to the more noble
capital of antiquity. This was executed by the artist whom Choiseul
Gouffier had carried with him to Constantinople, and employed, while
Ambassador there, in making those beautiful models of the remains
of Grecian architecture, which are to be seen at Paris. To adapt the
exterior to our use, I drew a plan for the interior, with the apartments
necessary for legislative, executive, and judiciary purposes; and
accommodated in their size and distribution to the form and dimensions
of the building. These were forwarded to the Directors, in 1786, and
were carried into execution, with some variations, not for the better,
the most important of which, however, admit of future correction. With
respect to the plan of a Prison, requested at the same time, I had heard
of a benevolent society, in England, which had been indulged by the
government, in an experiment of the effect of labor, in solitary
confinement, on some of their criminals; which experiment had succeeded
beyond expectation. The same idea had been suggested in France, and an
Architect of Lyons had proposed a plan of a well contrived edifice, on
the principle of solitary confinement. I procured a copy, and as it was
too large for our purposes, I drew one on a scale less extensive, but
susceptible of additions as they should be wanting. This I sent to the
Directors, instead of a plan of a common prison, in the hope that it
would suggest the idea of labor in solitary confinement, instead of
that on the public works, which we had adopted in our Revised Code. Its
principle, accordingly, but not its exact form, was adopted by Latrobe
in carrying the plan into execution, by the erection of what is now
called the Penitentiary, built under his direction. In the mean while,
the public opinion was ripening, by time, by reflection, and by the
example of Pennsylvania, where labor on the highways had been tried,
without approbation, from 1786 to ‘89, and had been followed by their
Penitentiary system on the principle of confinement and labor, which was
proceeding auspiciously. In 1796, our legislature resumed the subject,
and passed the law for amending the Penal laws of the commonwealth. They
adopted solitary, instead of public, labor, established a gradation in
the duration of the confinement, approximated the style of the law more
to the modern usage, and, instead of the settled distinctions of murder
and manslaughter, preserved in my bill, they introduced the new terms of
murder in the first and second degree. Whether these have produced more
or fewer questions of definition, I am not sufficiently informed of our
judiciary transactions, to say. I will here, however, insert the text of
my bill, with the notes I made in the course of my researches into the
subject. [See Appendix, Note E.]
The acts of Assembly concerning the College of William and Mary, were
properly within Mr. Pendleton’s portion of the work; but these related
chiefly to its revenue, while its constitution, organization, and scope
of science, were derived from its charter. We thought that on this
subject, a systematical plan of general education should be proposed,
and I was requested to undertake it. I accordingly prepared three bills
for the Revisal, proposing three distinct grades of education, reaching
all classes. 1st. Elementary schools, for all children generally, rich
and poor. 2nd. 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. And, 3rd., an ultimate grade for
teaching the sciences generally, and in their highest degree. The first
bill proposed to lay off every county into Hundreds, or Wards, of a
proper size and population for a school, in which reading, writing, and
common arithmetic should be taught; and that the whole state should be
divided into twenty-four districts, in each of which should be a school
for classical learning, grammar, geography, and the higher branches of
numerical arithmetic. The second bill proposed to amend the constitution
of William and Mary college, to enlarge its sphere of science, and to
make it in fact a University. The third was for the establishment of
a library. These bills were not acted on until the same year, ‘96, and
then only so much of the first as provided for elementary schools. The
College of William and Mary was an establishment purely of the Church
of England; the Visitors were required to be all of that Church; the
Professors to subscribe its Thirty-nine Articles; its Students to learn
its Catechism; and one of its fundamental objects was declared to be, to
raise up Ministers for that Church. The religious jealousies, therefore,
of all the dissenters, took alarm lest this might give an ascendancy
to the Anglican sect, and refused acting on that bill. Its local
eccentricity, too, and unhealthy autumnal climate, lessened the general
inclination towards it. And in the Elementary bill, they inserted a
provision which completely defeated it; for they left it to the court
of each county to determine for itself, when this act should be carried
into execution, within their county. One provision of the bill was, that
the expenses of these schools should be borne by the inhabitants of
the county, every one in proportion to his general tax rate. This would
throw on wealth the education of the poor; and the justices, being
generally of the more wealthy class, were unwilling to incur that
burthen, and I believe it was not suffered to commence in a single
county. I shall recur again to this subject, towards the close of my
story, if I should have life and resolution enough to reach that term;
for I am already tired of talking about myself.
The bill on the subject of slaves, was a mere digest of the existing
laws respecting them, without any intimation of a plan for a future and
general emancipation. It was thought better that this should be kept
back, and attempted only by way of amendment, whenever the bill should
be brought on. The principles of the amendment, however, were agreed
on, that is to say, the freedom of all born after a certain day, and
deportation at a proper age. But it was found that the public mind would
not yet bear the proposition, nor will it bear it even at this day. Yet
the day is not distant when it must bear and adopt it, or worse will
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. It
is still in our power to direct the process of emancipation and
deportation, peaceably, and in such slow degree, as that the evil will
wear off insensibly, and their place be, _pari passu_, filled up by
free white laborers. If, on the contrary, it is left to force itself
on, human nature must shudder at the prospect held up. We should in vain
look for an example in the Spanish deportation or deletion of the Moors.
This precedent would fall far short of our case.
I considered four of these bills, passed or reported, as forming a
system by which every fibre would be eradicated of ancient or future
aristocracy; and a foundation laid for a government truly republican.
The repeal of the laws of entail would prevent the accumulation and
perpetuation of wealth, in select families, and preserve the soil of
the country from being daily more and more absorbed in mortmain. The
abolition of primogeniture, and equal partition of inheritances, removed
the feudal and unnatural distinctions which made one member of every
family rich, and all the rest poor, substituting equal partition, the
best of all Agrarian laws. The restoration of the rights of conscience
relieved the people from taxation for the support of a religion not
theirs; for the establishment was truly of the religion of the rich, the
dissenting sects being entirely composed of the less wealthy people;
and these, by the bill for a general education, would be qualified
to understand their rights, to maintain them, and to exercise with
intelligence their parts in self-government: and all this would be
effected, without the violation of a single natural right of any
one individual citizen. To these, too, might be added, as a further
security, the introduction of the trial by jury into the Chancery
courts, which have already ingulphed, and continue to ingulph, so great
a proportion of the jurisdiction over our property.
On the 1st of June, 1779, I was appointed Governor of the Commonwealth,
and retired from the legislature. Being elected, also, one of the
Visitors of William and Mary college, a self-electing body, I effected,
during my residence in Williamsburg that year, a change in the
organization of that institution, by abolishing the Grammar school,
and the two professorships of Divinity and Oriental languages, and
substituting a professorship of Law and Police, one of Anatomy,
Medicine, and Chemistry, and one of Modern Languages; and the charter
confining us to six professorships, We added the Law of Nature and
Nations, and the Fine Arts, to the duties of the Moral professor, and
Natural History to those of the professor of Mathematics and Natural
Philosophy.
Being now, as it were, identified with the Commonwealth itself, to write
my own history, during the two years of my administration, would be to
write the public history of that portion of the revolution within this
state. This has been done by others, and particularly by Mr. Girardin,
who wrote his Continuation of Burke’s History of Virginia, while at
Milton in this neighborhood, had free access to all my papers while
composing it, and has given as faithful an account as I could myself.
For this portion, therefore, of my own life, I refer altogether to his
history. From a belief that, under the pressure of the invasion under
which we were then laboring, the public would have more confidence in a
military chief, and that the military commander, being invested with the
civil power also, both might be wielded with more energy, promptitude,
and effect for the defence of the state, I resigned the administration
at the end of my second year, and General Nelson was appointed to
succeed me.
Soon after my leaving Congress, in September, ‘76, to wit, on the last
day of that month, I had been appointed, with Dr. Franklin, to go to
France, as a Commissioner to negotiate treaties of alliance and commerce
with that government. Silas Deane, then in France, acting as agent for
procuring military stores,* was joined with us in commission. But such
was the state of my family that I could not leave it, nor could I expose
it to the dangers of the sea, and of capture by the British ships, then
covering the ocean. I saw, too, that the laboring oar was really at
home, where much was to be done, of the most permanent interest,
in new-modelling our governments, and much to defend our fanes and
fire-sides from the desolations of an invading enemy, pressing on our
country in every point. I declined, therefore, and Dr. Lee was appointed
in my place. On the 15th of June, 1781, I had been appointed, with
Mr. Adams, Dr. Franklin, Mr. Jay, and Mr. Laurens, a Minister
Plenipotentiary for negotiating peace, then expected to be effected
through the mediation of the Empress of Russia. The same reasons obliged
me still to decline; and the negotiation was in fact never entered on.
But, in the autumn of the next year, 1782, Congress receiving assurances
that a general peace would be concluded in the winter and spring, they
renewed my appointment on the 13th of November of that year. I had, two
months before that, lost the cherished companion of my life, in whose
affections, unabated on both sides, I had lived the last ten years in
unchequered happiness. With the public interests, the state of my mind
concurred in recommending the change of scene proposed; and I accepted
the appointment, and left Monticello on the 19th of December, 1782,
for Philadelphia, where I arrived on the 27th. The Minister of France,
Luzerne, offered me a passage in the Romulus frigate, which I accepted;
but she was then lying a few miles below Baltimore, blocked up in the
ice. I remained, therefore, a month in Philadelphia, looking over the
papers in the office of State, in order to possess myself of the general
state of our foreign relations, and then went to Baltimore, to await
the liberation of the frigate from the ice. After waiting there nearly
a month, we received information that a Provisional treaty of peace
had been signed by our Commissioners on the 3rd of September, 1782, to
become absolute, on the conclusion of peace between France and Great
Britain. Considering my proceeding to Europe as now of no utility to the
public, I returned immediately to Philadelphia, to take the orders of
Congress, and was excused by them from further proceeding. I therefore
returned home, where I arrived on the 15th of May, 1783.
* His ostensible character was to be that of a merchant, his
real one that of agent for military supplies, and also for
sounding the dispositions of the government of France, and
seeing how far they would favor us, either secretly or
openly. His appointment had been by the Committee of Foreign
Correspondence, March, 1776.
On the 6th of the following month, I was appointed by the legislature
a delegate to Congress, the appointment to take place on the 1st of
November ensuing, when that of the existing delegation would expire. I
accordingly left home on the 16th of October, arrived at Trenton, where
Congress was sitting, on the 3rd of November, and took my seat on the
4th, on which day Congress adjourned, to meet at Annapolis on the 26th.
Congress had now become a very small body, and the members very remiss
in their attendance on its duties, insomuch that a majority of the
states, necessary by the Confederation to constitute a House, even for
minor business, did not assemble until the 13th of December.