Drafts of Bills Establishing Courts of Justice
Editorial Note

The remodeling of the judiciary was among Jefferson’s first objects as he embarked in Oct. 1776 on one of the most far-reaching legislative reforms ever undertaken by a single person. His ideas concerning an independent judiciary for the new commonwealth had been set forth in his proposed Constitution. Though the principal elements of his judicial system had at least been recognized in the Constitution adopted by the Convention, legislation was necessary to establish the various courts. The full impact of Jefferson’s creative reforms with respect to the judiciary has not been fully realized, perhaps because his various Bills suffered differing fates, one being delayed for over two years before adoption and one failing of enactment altogether. The opposition that these judicial reforms encountered has, as a result, received relatively more attention than the system that he endeavored to establish. This opposition was, as Jefferson himself fully realized, a strenuous one, and it was grounded not only upon the conservative antipathies that most of his reform program had to encounter but also upon the fear of many of Virginia’s planters that they would be exposed to ruin if courts were opened and British creditors enabled to sue for the payment of long-overdue debts (Malone, Jefferson, i, 250, 259–60; I. S. Harrell, Loyalism in Virginia, Durham, N.C., 1926, 154ff.; TJ’s Autobiography, Ford, i, 48). Nevertheless, the important fact to be noted here is that all of the Judiciary Bills introduced in 1776 were drawn by him, all reflected the ideas set forth in his Constitution, and all were, in his view, intended to harmonize with the republican principles that he endeavored to introduce in all branches of Virginia’s polity. The varying fates that his Bills experienced should not be allowed to minimize the creative achievement that he attempted in the autumn of 1776. Hence, for the first time, all of his Judiciary Bills are brought together in one sequence and presented both in the form as originally written and, through notes appended to each, in the form as finally enacted. In the light of these Bills, though some were long delayed in enactment, it is not too much to recognize him as the preeminent architect of Virginia’s judiciary under the new Constitution.

On this important subject, however, Jefferson’s later statement was in error: “On the 11th. I moved for leave to bring in a bill for the establishmt of courts of justice, the organization of which was of importance; I drew the bill. It was approved by the commee, reported and passed after going thro’ it’s due course” (Autobiography, Ford, I, 48). This remembered statement is quite different from the actual history of his judicial reform. On 11 Oct. 1776, the House of Delegates granted leave to bring in a Bill “for the establishment of courts of justice within this Commonwealth,” and for the purpose appointed the following committee, in the order named: Jefferson, Smith, Bullitt, Fleming, Watts, Williams, Gray, Bland, Braxton, and Curle. On 1 Nov., possibly as a result of the committee’s request, the House of Delegates instructed the committee to “divide the subject … into five distinct bills, under the following titles: A bill for establishing a Court of Appeals, A bill for establishing a High Court of Chancery, A bill for establishing a General Court, A bill for establishing a Court of Admiralty, and A bill for regulating the proceedings of County Courts” (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends ,1776, 1828 edn., p. 9, 35). This judicial structure conforms to that advocated by Jefferson in his Constitution.

The first three of these Bills were introduced by Jefferson for the committee on 25 Nov. and immediately encountered determined resistance, if indeed they had not already experienced opposition in committee from such conservatives as Braxton. The remaining two Bills were presented on 4 Dec.

The Bill for establishing a Court of Admiralty passed almost at once. Virginia was a maritime state, and the establishment of a court having jurisdiction over prizes and other objects of maritime law was therefore a matter of first importance. The other four Bills, however, were opposed strongly. Jefferson endeavored to allay the fears of debtridden planters by introducing a Bill for suspending executions for debts in order, as the preamble to this Bill stated, to make it possible to establish and open the courts. But this device was unsuccessful. The Bill for creating a Court of Appeals did not become law until 15 Dec. 1778; those for establishing a High Court of Chancery and a General Court were not adopted by the legislature until 9 and 19 Jan. 1778, respectively.

As for the Bill for regulating the proceedings in the County Courts, introduced 4 Dec. 1776, no action was ever taken on it. This fact is illuminating. It indicates that opposition to Jefferson’s judiciary program was not solely that of fear of exposure to judgment for debt, a reason that was undoubtedly present but has probably been exaggerated. In the first place, the county courts were already open. This most important of all local governmental units remained virtually unchanged by the Revolution and indeed continued so, in most respects, until the Constitution of 1867 (A. O. Porter, County Government in Virginia, N.Y., 1947, p. 100–54). Almost exempt from local control, violating the universally accepted principle of the separation of powers by embracing judicial, legislative, and administrative authority, and having the key office of sheriff under its domination, these courts were the bulwark of the old order, and little had been done by the Constitution of 1776 to change the system. Jefferson had assaulted this stronghold of political power in his proposed Constitution by providing, among other things, that sheriffs should be popularly elected and should hold office for limited terms, but his proposal had had little if any chance of being adopted. In the second place, the fear of executions for debts could scarcely apply to the Bill for regulating the proceedings of County Courts, since the jurisdiction of these courts was limited to civil suits involving not more than £10. Their continuance, therefore, did not frighten the planters who labored under mountainous debts to British creditors, and few British debt cases, if any, came into these courts since the debts were almost always for larger amounts (James Monroe to TJ, 1 May 1792). For these reasons, it seems clear that the failure of the legislature to adopt the Bill for regulating proceedings in the County Courts must have been due to some other cause or combination of causes. Among these, undoubtedly, is the fact that Jefferson’s Bill intended to regularize proceedings; to elevate the character of the judicial process (for example, his provision for the purchase of law books); to require the courts to be more attentive to their local constituency by receiving at all times, instead of one stated time, such propositions and grievances as the people of the county might care to submit; and to repeal the authority given by the law of 1748 to county courts to grant commissions for the examination of witnesses.

Though it is obvious that Jefferson’s judicial reforms were far less radical than those he attempted in other areas affecting the legal, political, and economic structure of society in Virginia, it is equally obvious that any attempt to remold an institution so surrounded by tradition and custom as the judiciary would meet with opposition on the part of those attached to accustomed ways. Fear of executions for debt explains some but by no means all of the opposition that Jefferson’s judiciary Bills encountered.