Thomas Jefferson and the Revision of the Virginia Laws

Thomas Jefferson and the Revision of the Virginia Laws

Sources

Background. The first actions by the Virginia House of Delegates after the Declaration of Independence were to prepare two significant pieces of legislation. One was a bill to eliminate fee tails, and the second was to appoint a committee of five to propose a general revision of the laws of the new commonwealth. Thomas Jefferson was assigned responsibility for the first, and he served on the committee of five, together with Edmund Pendleton, George Wythe, Thomas Lee, and George Mason. The five met to decide how they would approach this task and determined that they would “take up the whole body of statutes and Virginia laws, to leave out everything obsolete or improper, insert what was wanting, and reduce the whole within as moderate a compass as it would bear, and to the plain language of common sense, divested of the verbiage, the barbarous tautologies and redundancies which render the British statutes unintelligible.” Mason resigned before the work started, and Lee died shortly thereafter. Jefferson was assigned the areas of crimes and punishments, descent, and religion.

Fee Tail. One provision of the English law of real estate, dating back to medieval times, was the fee tail, or the ability of a grantor (someone who sold real estate or left it to another by will) to provide that the grantee could not dispose of the property except to one or more of his heirs. This limitation, once attached to a piece of real estate, remained intact forever although a landowner could petition to end the restriction. This ability of a landowner to restrict the disposition of his property long after his death was fundamental to the maintenance of an aristocracy and was detested for just that reason. Jefferson introduced a bill that eliminated all existing tails and barred the creation of new ones. The bill was passed in a matter of days.

Law of Descent. Another key element of the law relating to real estate and inheritance was that of primogeniture, that the first-born son would inherit all of a father’s real estate, regardless of the father’s wishes. Entail allowed a landowner to will his estate to his family in perpetuity. Primogeniture and entail were vestiges of the feudal past and enabled the Old World-style aristocracy to continue in Virginia. With the elimination of primogeniture, a father could leave parts of his property to each of his children rather than being forced to favor one over all the others. Jefferson, by eliminating primogeniture and entail, saw himself as promoting social mobility and economic change.

Crimes and Punishments. Jefferson sought to relax the severity of the punishments meted out under the criminal laws. He believed that too many offenses were punishable by death and proposed that only murder and treason be capital offenses. Other crimes would be less severely punished, with a range of penalties that had a rational basis. In taking this approach Jefferson was reflecting the enlightened liberalism of the period. To demonstrate the development of the criminal code of the time, he traced many topics back to medieval period. In an impressive, scholarly fashion he compared laws of various eras by setting them forth in columns written in the languages in which the laws were originally adopted, including Latin and Old French. He suggested that public labor be a substitute for the death penalty. Prisoners would work on roads and canals, with the expectation that they would be reformed. The public was not yet ready for such an advanced notion, however, and his bill was defeated in the assembly.

Religious Freedom. Jefferson framed a bill for religious freedom as part of his work as a reviser. The Anglican Church, as the established church, was supported, and the clergy paid, by tax revenues. Every taxpayer contributed to the support of the established church even if he was a member of another sect. Jefferson believed that religion was a strictly private affair. While government should protect the public from possible injury, such a power did not extend to religion. “It does me no injury for my neighbor to say that there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.” Jefferson’s view was that the state should neither support nor oppose any particular religion but should leave them alone. His notion of the separation of church and state eventually became the official American position.

Disestablishment. Jefferson’s proposal extended beyond disestablishment of the Anglican Church and granted full religious liberty. However, public sentiment against the church had been building up. The dissenters, the term used to describe Presbyterians, Baptists, and Methodists, outnumbered the Anglicans. The Anglican clergy, “having been secured against rivalship by fixed salaries, did not give themselves the trouble of acquiring influence over the people,” Jefferson noted in a letter to John Adams. The assembly in 1776 exempted dissenters from taxes for the church. Jefferson’s bill provided that “no man shall be compelled to frequent or support any religious worship, place or ministry.” While religious liberty was the subject of much discussion at the time, along with all the revolutionary notions about freedom, Jefferson’s bill was so controversial that the bill was not introduced in the House of Delegates until 1779 and was not enacted until seven years later.

Sources

Dumas Malone, Jefferson the Virginian (Boston: Little, Brown, 1948);

Bernard Schwartz, Thomas Jefferson and Boiling v. Boiling: Law and the Legal Profession in Pre-Revolutionary America (San Marino, Cal.: Huntington Library, 1997).