Bills for a Revised State Code of Laws, [31 October] 1785
Bills for a Revised State Code of Laws
Editorial Note
A revision of the Virginia code of laws was already overdue when the colony forsook its royal allegiance in 1776. Changing circumstances made it necessary to enact new laws in the transition from colony to commonwealth while retaining the bedrock of English common law. JM was barely on the legislative scene and no lawyer, but he was more than an interested spectator as Jefferson attempted to direct the process. What Jefferson had in mind was no mere collection of laws already in force but a complete revision of old statutes and the enactment of new ones necessary to eliminate all vestiges of monarchism and substitute republican tenets. To press the matter Jefferson refused a diplomatic appointment, a decision “largely determined by his zeal to remake the legal structure of the commonwealth” (, II, 306). But as Jefferson found, his impatience made few converts among legislative colleagues, although they voted for his bill creating a committee of revisors on 26 October 1776. One result of this measure was the joint election of a committee of revisors by the General Assembly, with Jefferson as the de facto chairman (, Oct. 1776, p. 41). Expediency left the old laws in force, for all practical purposes, and only those antiquated laws which special situations demanded were repealed or replaced by new legislation. The result was a breakdown for Jefferson’s original plan of swift revision. By 1779 most of the work had been done by the three lawyer-committeemen (Jefferson, Pendleton, and Wythe), but Speaker Benjamin Harrison, no friend to sudden reform, took his time about distributing copies of the committee report. The committee plan was still in a pigeonhole five years later when JM, at Jefferson’s urging, resurrected the ambitious scheme at the May 1784 session of the General Assembly, and talked the legislature into printing the revisors’ report for public distribution (, May 1784, p. 27).
Apparently prodded by a promise to Jefferson made before they parted company—one headed toward Paris and the other toward Orange County—JM kept the legal reform movement alive. His admirer, Archibald Stuart, probably overstated the situation when he reported on JM’s legislative adroitness. JM, Stuart wrote, “has by means perfectly constitutional become almost a Dictator.… His influence alone has overcome the impatience of the house & carried them half thro the Revis[e]d Code” (Stuart to John Breckinridge, 7 Dec. 1785 [DLC: Breckinridge Family Papers]). Because of JM’s preliminary work on the printed revisors’ report and the appropriation for the revisors’ fees, after small doses the House of Delegates was ready (in JM’s judgment) for the main medicine. Since the idea of a general revision had first been broached in 1776, a number of bills had been lifted from the revisors’ hopper and passed into law because of urgent problems, but on 31 October 1785 JM took the long-delayed step of introducing 118 separate bills that remained from the 126 in Jefferson’s original scheme (, Oct. 1785, pp. 12–14; , II, 305–33). The objects of the laws were broad, ranging from the relatively unimportant act “concerning seamen” to the far-reaching statute “for establishing religious freedom.” By this time, JM was in an advantageous position to carry the business forward, for as chairman of the Committee for Courts of Justice he reported them to the House of Delegates and guided both the committee deliberation and the general debate. His selection for this key assignment—in view of JM’s regard for the law as an avocation rather than his means of livelihood—could not have been a capricious decision. Instead, JM’s selection as chairman reflected an assumption that JM was learned in the law although not a lawyer. No man in the legislature was better qualified to work for the legal reformation necessary to blend the colonial past with the newly wrought republican frame of government.
As JM explained to Jefferson on 22 January 1786, the legislators were not unanimous on their zeal for change. After some preliminary skirmishing, the House of Delegates agreed to spend three sessions each week debating the revision. Progress was made until the bill “for proportioning crimes and punishments in cases heretofore capital” was under discussion. Age-old fears were aroused by this bill, which Jefferson had written after much research and with a reformer’s view that crimes were not deterred “at all by capital punishment”—a statement of principle not overly apparent in the bill itself (Malone, Jefferson the Virginian, pp. 269–72; Ford, Writings of Jefferson, I, 60). The impact of the Enlightenment, particularly Beccaria’s Tratto dei Delitti e delle Pene (1764), with its strictures on the futility of torture and execution, remained as an ideal. Then, as now, there was much disagreement over the possibilities that a drastic change in the treatment of criminals would be effective. JM lived to recall the debate with misgivings, for in retrospect he concluded “the Revisors were unfortunately misled into some of the specious errors of Beccaria, then in the Zenith of his form as a philosophical Legislator.” The smooth course of the revising calendar was checked, with more than half of the business still untouched (JM to Monroe, 17 Dec. 1785). Thereafter, the House was in no mood to go further; so as JM sensed the situation he deemed it unwise to press for a longer session and undoubtedly greater obstructionism from “the adversaries of the Code.” Thirty-six bills were adopted, and all but two of those remaining were postponed until the next legislative session. On the whole, JM believed the work had been readily accepted in its main parts, and if Speaker Benjamin Harrison had been a friend to the reform instead of its enemy, a great deal more might have been accomplished. JM took some solace from the fact that the mood of the House still allowed him to bring forward Jefferson’s bill on religious freedom which would have been delayed for at least another year. The reaction to arch-conservative efforts to keep a semblance of the old official Anglican connection intact had “all the effect that could have been wished,” JM told Jefferson; so the opportunity was exploited and the bill “establishing religious freedom” was coaxed through the General Assembly despite some haggling over the preamble.
The first stride had carried Virginia some distance toward an exemplary civil and criminal code that would have an impact in other states. The tendency of other legislatures, particularly in North Carolina, was to follow Virginia’s lead. There was one joker in the deck. The bills enacted were not to become law until 1 January 1787, a delaying device used so that the entire work could be finished at the October 1786 session, whereupon the whole revision would take effect at the same time. Few of the bills left dangling at the adjournment in January 1786 survived the legislative ordeal, however. The enthusiasm for reform was about spent by late 1785, and a year later JM was too concerned over national survival to place himself again into a situation where local concerns were all-important. Thus despite the effort and expectations, the major share of the Revised Code never was enacted into law. In retrospect the work upon which Jefferson had “exacted perhaps the most severe of his public labours,” produced much public discussion but accounted for far less change in the Virginia code than the leaders of 1776 anticipated (JM to Samuel Harris Smith, 4 Nov. 1826 [DLC]). Jefferson himself was disappointed, and before JM’s yeoman service had brought some results the principal author of the revision suggested that it “digests only the British statutes and our own acts” and held that its only merit was “that it may remove from our book shelves about twenty folio volumes of statutes” (, VIII, 632). JM would have considered his friend’s judgment too harsh. As JM well knew, part of the value of reform movements lay in the legislative mood they helped create.
[31 October 1785]
A bill, “to arrange the counties into Senatorial districts.”
A bill, “concerning election of members of the General Assembly.”
A bill, “empowering one of the Privy Council to officiate in certain cases as Lieutenant Governor.”
A bill, “empowering the Governor, with the advice of the Privy Council, to lay embargoes.”
A bill, “for regulating and disciplining the militia.”1
A bill, “making provisions against invasions and insurrections.”
A bill, “for the annual appointment of delegates to Congress, and of a member for the committee of the States.”2
A bill, “establishing a Board of Auditors.”3
A bill, “concerning the public treasurer.”
A bill, “for appointing naval officers.”
A bill, “for the appointment of clerks to the Governor and Council.”
A bill, “concerning seamen.”
A bill, “for establishing cross posts.”
A bill, “directing the course of descents.”
A bill, “concerning wills, the distribution of intestates’ estates and the duty of executors and administrators.”
A bill, “for regulating conveyances.”
A bill, “securing the rights derived from grants to aliens.”4
A bill, “concerning escheats.”
A bill, “to prevent frauds and perjuries.”
A bill, “of mortmain.”
A bill, “concerning the dower and jointures of widows.”
A bill, “for the preservation of the estates of idiots and lunatics.”
A bill, “providing that wrongful alienations of land shall be void so far as they be wrongful.”
A bill, “for levying county rates.”
A bill, “for the support of the poor.”5
A bill, “for ascertaining the salaries and fees of certain officers.”
A bill, “declaring bills of credit to be equal to gold and silver coin of the same denominations.”
A bill, “to prevent the circulation of private bank notes.”
A bill, “to prevent losses by pirates, enemies and others, on the high seas.”
A bill, “for the preservation of vessels wrecked or in distress, and of their crews and cargoes.”
A bill, “concerning estrays.”
A bill, “for the restitution of stolen goods.”
A bill, “for preventing infection of the horned cattle.”
A bill, “for improving the breed of horses.”
A bill, “for preservation of deer.”
A bill, “for preventing frauds by the dealers in flour, beef, pork, tar, pitch and turpentine.”
A bill, “for licensing and regulating taverns.”
A bill, “concerning public roads.”
A bill, “for establishing public ferries.”6
A bill, “concerning milldams and other obstructions of water courses.”
A bill, “for unlading ballast and burial of dead bodies from on board ships.”
A bill, “concerning public store houses.”
A bill, “concerning slaves.”7
A bill, “concerning servants.”
A bill, “for apprehending and securing runaways.”
A bill, “declaring what persons shall be deemed mulattoes.”
A bill, “declaring who shall be deemed citizens of this Commonwealth.”
A bill, “concerning aliens.”
A bill, “declaring that none shall be condemmed without trial, and that justice shall not be sold or deferred.”
A bill, “directing what prisoners shall be let to bail.”
A bill, “directing the mode of giving out and prosecuting writs of habeas corpus.”8
A bill, “concerning guardians, infants, masters and apprentices.”
A bill, “to enable guardians and committees to perform certain acts for the benefit of those who are under their care.”
A bill, “for the restraint, maintenance and cure of persons not sound in mind.”
A bill, “for registering births and deaths.”
A bill, “for proportioning crimes and punishments in cases heretofore capital.”9
A bill, “punishing persons guilty of certain forgeries.”
A bill, “concerning treasons, felonies and other offences committed out of the jurisdiction of this Commonwealth.”
A bill, “concerning truces, safe conducts, passports, licences and letters of marque.”
A bill, “for the employment, government and support of malefactors condemned to labor for the Commonwealth.”
A bill, “to encourage the apprehenders of horse stealers.”
A bill, “for preserving the privileges of ambassadors.”
A bill, “for the suppression and punishment of riots, routs and unlawful assemblies.”
A bill, “forbidding and punishing affrays.”
A bill, “against conspirators.”
A bill, “against conveying or taking pretended titles.”
A bill, “for punishing bribery and extortion.”
A bill, “prescribing the punishment of those who sell unwholesome meat or drink.”
A bill, “to prevent the spreading of the smallpox.”
A bill, “for compelling vessels and persons coming, and goods brought from infected places, to perform quarantine.”
A bill, “for the more general diffusion of knowledge.”
A bill, “for amending the constitution of the college of William and Mary, and establishing more certain revenues for its support.”
A bill, “for establishing a public library.”
A bill, “for establishing religious freedom.”
A bill, “for saving the property of the church heretofore by law established.”
A bill “for punishing disturbers of religious worship and sabbath breakers.”
A bill, “for appointing days of public fasting and thanksgiving.”
A bill, “annulling marriages prohibited by the Livitical law, and appointing the mode of solemnizing lawful marriages.”
A bill, “against usury.”
A bill, “to prevent gaming.”
A bill, “to prevent forestalling, regrating, engrossing and sales by auction.”
A bill, “constituting the high court of chancery.”
A bill, “constituting the general court.”
A bill, “constituting the court of admiralty.”
A bill, “constituting the court of appeals.”
A bill, “for constituting courts martial.”
A bill, “constituting justices of the peace and county courts.”
A bill, “concerning sheriffs.”
A bill, “for licensing counsel, attornies at law, and proctors.”
A bill, “prescribing the oaths of fidelity, and the oaths of certain public officers.”
A bill, “to prevent the sale of public offices.”
A bill, “directing the method of proceeding upon impeachments.”
A bill, “for regulating proceedings in courts of equity.”
A bill, “for regulating proceedings in courts of common law.”
A bill, “directing the method of proceeding against and trying free persons charged with certain crimes.”
A bill, “directing the method of trying slaves charged with treason or felony.”
A bill, “for reforming the method of proceeding in writs of right.”
A bill, “concerning partitions and joint rights and obligations.”
A bill, “for the speedy determination of suits wherein foreigners are parties.”
A bill, “for the speedy recovery of money due from certain persons to the public.”
A bill, “for recovering demands of small value in a summary way.”
A bill, “providing that actions popular, prosecuted by collusion, shall be no bar to those which be pursued with good faith.”
A bill, “for preventing vexatious and malicious prosecutions, and moderating amercements.”
A bill, “providing a mean[s] to help and speed poor persons in their suits.”
A bill, “providing that an infant may sue by his next friend.”
A bill, “declaring when the death of persons absenting themselves, shall be presumed.”
A bill, “prescribing a method of protecting inland bills of exchange, and allowing assignees of obligations to bring actions thereupon in their own names.”
A bill, “for limitation of actions.”
A bill, “for granting attachments against the estates of debtors removing privately, or absconding.”
A bill, “concerning inquests.”
A bill, “permitting those who will not take oaths, to be otherwise qualified.”
A bill, “for regulating the commencement of the year, and the computation of time.”
A bill, “allowing a bill of exceptions to be sealed.”
A bill, “for enforcing performance of awards made by rule of court.”
A bill, “concerning executions.”
A bill, “concerning rents and distresses.”
A bill, “providing remedy and punishment in cases of forcible entries and detainers.”
A bill, “for repealing certain acts of Parliament and of General Assembly.”
Printed copy (, Oct. 1785, pp. 12–14). Titles in italics were enacted into law at this session. JM was serving as an agent of legislative reform and wrote none of these bills, which were drafted by the Committee of Revisors in 1776–1779. JM took 118 of the original 126 bills, omitting only those which had been wartime measures and were no longer needed, or had been repealed by post-1779 legislation (, II, 322–24).
1. The militia bill passed at the Oct. 1784 session had many flaws. One result of these imperfections was the presentation of petitions from Amherst and Washington counties calling for outright repeal of that act at this session. The House ordered the petitioners’ grievances incorporated in a new militia bill (, Oct. 1785, pp. 34, 85–86). After debate in the Committee of the Whole, this bill was amended and joined with JM’s next offering on “invasions and insurrections.” The surviving version was “An act to amend and reduce into one act, the several laws for regulating and disciplining the militia, and guarding against invasions and insurrections” (, XII, 9–24).
2. This is not the original bill which Jefferson drafted, although the older title was retained. A revision of the 1779 act was passed at the May 1784 session (ibid., XI, 365–66). As it turned out, that act needed some clarification so that Virginia would have a delegation in Congress for the session scheduled to begin 7 Nov. 1785 (ibid., XII, 26–27; , II, 367–70).
3. This bill was superseded by another measure “for the reform of certain public Boards,” which was first introduced by Thomas Underwood on 1 Dec. 1785 as a bill to amend the “act for establishing a board of auditors for publick accounts” passed in 1778.
4. JM had tried to secure the property titles of heirs of aliens who served in the Revolution, but his bill of 30 Nov. 1784 was sidetracked, as was this measure.
5. A committee headed by Carter Braxton was ordered on 27 Oct. 1785 to prepare a bill “to provide for the poor of the respective parishes in this Commonwealth” (, Oct. 1785, p. 9). When Braxton’s committee considered the revisors’ bill it borrowed only a few portions, causing Jefferson to comment later that this bill “passd. with great alterns.” (, II, 423 n.). Dropped by the committee was a provision for a superintendent of the poor who was prohibited from whipping an indigent person “with more stripes than ten, at one time, or for one offence” (ibid., II, 420).
6. The General Assembly passed another act at this session “for establishing new ferries” instead of this bill, which contained a comprehensive listing of all crossings with statutory fees or tolls.
7. For an example of the changing legislative climate between 1779 and 1785, compare the final version (, XII, 182–83) with Jefferson’s draft (, II, 470–72). The bill that finally passed on 9 Dec. 1785 reiterated a provision in the 1778 ban on slave importations which exempted slaveowners moving into Virginia from the prohibition (, IX, 471–72).
8. JM’s motive in offering this bill, which was so similar to the 1784 act of the same title, is not clear, inasmuch as other revisors’ bills previously enacted were ordinarily passed over. Perhaps because of the redundancy, JM’s fellow legislators prevented this bill from reaching a final vote.
9. After passing thirty-five of the revisors’ bills, the House of Delegates balked on this measure. JM reported that this bill was “assailed on all sides. Mr. Mercer has proclaimed unceasing hostility against it” (JM to Monroe, 9 Dec. 1785). The basis for Mercer’s assault is not known, thus precluding a judgment as to whether the penalties were too light or too severe for the opposition’s views on criminal justice. However, JM later reported the bill failed again (at the 1786 session) by a single vote, owing to the “rage agst. Horse stealers,” who were sentenced to three years at hard labor in the original bill (JM to Jefferson, 15 Feb. 1787 [DLC]). Thus it is possible JM’s colleagues in both 1785 and 1786 thought three years’ confinement insufficient punishment for a felony that was considered one of the worst crimes in a saddle-oriented society where “a horse must be mounted, if only to fetch a prise of snuff from across the way” (Schoepf, Travels in the Confederation, II, 65).