In terms of their defiance of the crown, the resolutions that had not passed on Thursday were even bolder than those that had. In a way, it ceased to matter which ones were approved or rejected: copies of the Virginia resolutions that circulated throughout colonial America both in manuscript and in print were not limited to the approved ones. They included some or all of the rejected ones, too, and often made no distinction between which were approved and which disapproved.
The story of the dissemination of the Virginia resolutions provides a fine example of the written word superseding the spoken. Once the written resolutions began to circulate, the verbal jousting that had occurred among the Virginia burgesses the last few days in May no longer mattered. Reprinted in the Maryland Gazette, for instance, the various resolutions were seven. They ended with the following: “That any Person who shall, by Speaking, or Writing, assert or maintain, That any Person or Persons, other than the General Assembly of this Colony, with such Consent as aforesaid, have any Right or Authority to lay or impose any Tax whatever on the Inhabitants thereof, shall be Deemed, AN ENEMY TO THIS HIS MAJESTY’S COLONY.”22
Circulated throughout colonial America, the resolutions steeled the resolve of the American colonists to resist the unjust laws British law-makers were attempting to impose upon their American subjects. Before summer’s end, news of the Virginia resolutions reached London. In England seeking to repeal the Stamp Act, Benjamin Franklin was endeavoring to find a more diplomatic solution. He, too, vehemently opposed the Act. He joked that he could make the Stamp Act meet his approval with a single change to its text: where the document stated the year the act would take effect—“one thousand seven hundred and sixty-five”—delete the word “one” and replace it with a “two.”23 Though generally agreeing with his fellow colonists, Franklin was still shocked to learn the actions of the Virginia burgesses. Hearing about their resolutions, he exclaimed, “The Rashness of the Assembly in Virginia is amazing!”
Governor Fauquier had a huge party planned the following Tuesday to celebrate the birthnight of King George III. Traditionally, Virginia gentlemen and ladies donned their finest silks and satins to attend the annual festivities at the Governor’s Palace to honor the king—birthnight celebrations had been taking place in Virginia for years, and many considered it the foremost social event of the year. Previously, everyone who was anyone in Virginia society, Jefferson included, eagerly anticipated the annual event.
Yet almost no one in Williamsburg attended the birthnight festivities in 1765. For Virginians, the birth of a king had stopped being something to celebrate. Still in town that evening, the mysterious French traveler visited the Governor’s Palace expecting to see a great deal of company. He was disappointed to find fewer than a dozen people there—so disappointed he did not even bother to stay for supper.
Episodes of violence soon erupted throughout colonial America as the colonists resisted British efforts to enforce the Stamp Act. Up and down the Atlantic coast, men formed groups known as the Sons of Liberty, who coerced the stamping officials, burned stamped paper, and incited fellow colonists to protest. Mobs in cities from Boston to Charleston rioted, attacking those who attempted to enforce the Stamp Act, removing them from their homes, and tossing their belongings into the street. In Virginia, a mob prevented the distributors from selling stamps, but Fauquier’s presence forestalled any further violence. During his administration, Fauquier had established a reputation for fairness and good governance that the people respected even as they protested the royal power he represented.
In terms of Jefferson’s intellectual life, the Stamp Act controversy prompted a significant crisis. He had devoted the past three years to legal study and had built a huge superstructure of knowledge on the foundations of English constitutional law. The Stamp Act threatened to destroy the foundation on which his knowledge was based. If acts of Parliament undermined the fundamental basis of English law, what law remained? If Parliament usurped the colonists’ rights as Englishmen, what rights did they have? The answers to these two questions, Jefferson gradually came to realize, were natural law and natural rights.
Continuing to maintain his literary commonplace book during this period, he made many entries treating the subject of natural law. The commonplace book contains more entries from Henry St. John, Lord Bolingbroke than any other single author. Several concern natural law. Toward its end, Bolingbroke’s Philosophical Works gathers isolated fragments of prose on several different topics. “Fragment 19” interprets marriage in relation to both natural law and positive law. Jefferson excerpted the following passage about the relationship between marriage and natural law: “‘Increase and multiply’ is the law of nature. The manner in which this precept shall be executed with greatest advantage to society, is the law of man.”24
Marriage provided Jefferson with an ideal subject for contemplating the importance of natural law. It involved a legal contract binding two people together who originally come together in the most natural and necessary way. While reading Bolingbroke on the subject, he recalled something he had read in Hume’s History of England. He set aside Bolingbroke to double-check his Hume, where he found a discussion of Henry VIII, which contained a lengthy passage about marriage and its relationship to positive and natural law.
Once he transcribed the pertinent passage, Jefferson set Hume aside and returned to where he had left off in Bolingbroke. The detour served to enhance his appreciation of Bolingbroke and prompted him to ponder the application of natural law further. Finding nothing noteworthy in “Fragment 20,” he lingered over “Fragment 21,” transcribing a passage that asserted the self-evident truth of the law of nature.
A vivid picture of Jefferson’s reading process emerges from these entries: reading one work, he would be impressed enough with an individual passage that he would take the time to enter it into his commonplace book. The passage would remind him of another work he had read, so he would temporarily set aside the volume he was reading, rise from his chair, walk to where he shelved his volumes of history, pull down another, and linger over its contents long enough to locate the remembered passage and make a note of it. Jefferson had purchased Hume’s History a few months earlier and obviously read it soon afterward. The commonplace book suggests that he was now familiar enough with its text to recall individual passages.
Dissatisfied with a cursory view of natural law, Jefferson, as he always did upon encountering a subject that intrigued him, yearned to read more deeply. He eventually accumulated nearly all of the fundamental treatises on the subject: Jean Jacques Burlamaqui’s Principes de Droit Naturel; Grotius’s De Jure Belli ac Pacis; Grotius’s Le Droit de la Guerre, et de la Paix, as edited by Jean Barbeyrac; Frieherr von Pufendorf’s Le Droit de la Nature et des Gens; Pufendorf’s Of the Law of Nature and Nations; Christian Wolff’s Institutions du Droit de la Nature et des Gens in Elie Luzac’s Latin/French parallel text edition; two different editions of Emer de Vattel’s Le Droit des Gens, which modernized the study of natural law and applied it to practical legal issues in the realm of international law; and Richard Cumberland’s Treatise of the Laws of Nature, in both its Latin original and English translation.
This last work Jefferson found especially persuasive. Cumberland argued that natural law compelled mankind to promote the common good. He reached his conclusions without recourse to Scripture and without reference to the afterlife. The secular modernity Cumberland exemplified strongly appealed to Jefferson. Cumberland’s application of recent scientific discoveries to support his system of ethics strengthened his argument among enlightened readers.25
To some contemporary thinkers, the growing number of treatises on natural law did not seem like a panacea. Jeremy Bentham, for one, found them vague, especially in terms of their purpose. He queried, “Are they political or ethical, historical or juridical, expository or censorial?” Natural law was “an obscure phantom.” Some treatises on the subject “seem to refer to manners, sometimes to laws; sometimes to what law is,
sometimes to what it ought to be.”26 Jefferson, too, recognized that the treatises on natural law could be vague, but he devised a practical way to remedy such imprecision. Instead of relying on a single treatise, a reader could and should consult many different authors on the subject. When several works of natural law reach a consensus, as Jefferson told George Washington, then they form a powerful and convincing legal argument.27 The marginal notations in his surviving copies of these treatises show him fulfilling the process he outlined to Washington. Encountering an aspect of natural law that caught his attention in one work, he consulted others to see what they said on the subject. Into his earlier edition of Vattel, for example, he inscribed marginal references to Wolff’s Institutions and Burlamaqui’s Principes de Droit Naturel.
Jefferson continued to update his knowledge of the subject throughout his life. His copy of the later edition of Vattel’s Le Droit de Gens, which survives at the Library of Congress, shows that Jefferson cross-referenced Vattel with a subsequent work on the law of nature and nations by G. F. de Martens. Not only did he update the text by inscribing a reference to Martens within his copy of the work; he also backdated Vattel by double-checking a reference to Jean Bodin’s Six Livres de la République and inscribing a cross-reference to book, chapter, and paragraph of Bodin in the margin. Bodin wrote of sovereign powers; Vattel wrote of laws that transcended the boundaries of sovereignty. Jefferson’s annotation to his copy of Vattel’s Le Droit de Gens, brief as it is, shows him scrupulously studying the relationship between sovereignty and international law.28
Of these works, few more significantly influenced his legal thinking than Pufendorf’s Of the Law of Nature and Nations. Citing Pufendorf in Howell vs. Netherland, a case he argued in 1770, Jefferson summarized his understanding of natural law: “Under the law of nature all men are born free, everyone comes into the world with a right to his own person, which includes the liberty of moving and using it at his own will. This is what is called personal liberty, and is given him by the author of nature, because necessary for his own sustenance.”29 He would refine and expand his understanding of natural law in his greatest political writings over the ensuing decade.
The case of Howell vs. Netherland shows that Jefferson had synthesized his study of natural law to such an extent that he could now apply it in his arguments in court. By 1770, he had reconciled the intellectual crisis the Stamp Act precipitated in 1765. This same case, however, presented a crisis of another sort, one that Jefferson never completely reconciled. His client, the plaintiff, was a grandson of a white woman and a black man. Jefferson argued that the law of nature dictated that the man was free and not a slave. Yet the case of Howell vs. Netherland leads to further questions: If, by natural right, the grandson is free, then why not the father? Why not the grandfather? Why not all?
Intensifying his study of natural law from the mid-1760s, Jefferson discovered how to solve the unjust laws the English imposed upon the American colonies. When something as venerable as the English rule of law could be undermined by capricious laws that abused its subjects, a more just and permanent system of laws remained, natural law, which transcended any laws a political state could devise. What Mark Akenside had said about poetry, Jefferson realized, applied equally to law: nature’s hand must point the path.
CHAPTER 7
A Shelf of Notebooks
The precise date Thomas Jefferson passed the bar remains a mystery. Some have suggested that he did not pass it until 1767, the year he recorded his first legal case, but he had to have passed it before then because he practiced law in the General Court of Virginia, not its lower county courts. In order to come before the bar of the General Court, a lawyer did not necessarily have to practice in the inferior courts, but he did have to hold for one year a license to practice in the inferior courts, which was granted upon passing the bar examination. Most likely Jefferson passed the bar in late 1765. The Virginia Gazette daybooks hint that he was studying for his examinations in early autumn, when he purchased a copy of Grounds and Rudiments of Law and Equity, a general survey that made an ideal study aid. The daybooks offer another clue to suggest that Jefferson’s legal training was reaching a point of culmination: in addition to the various other goods he acquired from the printing office that autumn, he also purchased “1 skin Parchment.”1 Jefferson, it seems, was getting ready to hang his sheepskin.
The end of 1765 marks the end of the period covered by the surviving daybooks from the Virginia Gazette office. From here on, Jefferson’s own voluminous records provide the chief source for much information regarding his intellectual pursuits and day-to-day activities. He continued to maintain his literary commonplace book. He also continued to study law independently, as his legal commonplace book indicates. In addition, he started a second legal commonplace book, one devoted specifically to equity law. He began other notebooks around this same time, too, all of which had the general purpose of keeping his life in order. In 1766, he took the first notes for what would become his Garden Book. Before another decade passed, he would start his Farm Book. The earliest of his memorandum books dates from 1767. His commonplace books are largely products of the 1760s and 1770s, though he made a few sporadic entries in them later. The others he maintained regularly all his life. The commonplace books pertain to the life of the mind; the others pertain to his personal and business life. Yet all contribute to his literary life and show him in the process of making a written record of himself.
Though each of these various notebooks is meticulous in its own way, all lack the regularity of the daybooks from the printing office. Before leaving these invaluable records behind, let’s linger over the purchases Jefferson made on Friday, October 11, 1765, one of the last days his name appears in them. He bought several different items that Friday, including six quires of mourning paper. This modest purchase recorded in a commercial ledger masks the well of emotions Jefferson was experiencing. Mourning paper was a special kind of stationery for announcing a death in the family. Each page was hand-painted with black borders to let recipients know the general purpose of the letter even before they read its text. Jane Jefferson, his big sister, had died the week before at the age of twenty-five, and now her brother faced the somber task of giving others the news.
Also that day, Jefferson bought a two-volume edition of William Shenstone’s Works at the Virginia Gazette office. This purchase, too, could have been motivated by his sister’s death. Shenstone, a melancholy poet, included numerous elegies, much funeral verse, and many tombstone inscriptions among his writings. In large part, Shenstone’s verse articulates the theme of rural retirement, a theme that struck a chord with Jefferson.2 Drafting his “Thoughts on English Prosody” two decades later, he incorporated the following lines from Shenstone’s ballad “The Princess Elizabeth”:
Bred on plains, or born in vallies,
Who would bid those scenes adieu?
Stranger to the arts of malice,
Who would ever courts pursue?
Shenstone ultimately left London to return to Leasowes, his family estate, where he became an expert landscape gardener. The edition of Works Jefferson obtained this day includes “Unconnected Thoughts on Gardening,” an essay that influenced his ideas on landscape gardening. Also forming a part of Shenstone’s Works are the inscriptions for the monuments that dotted his estate. The inscription for his sister’s tomb that Jefferson wrote echoes one of the memorial inscriptions at Leasowes. Following Shenstone, he wrote in Latin, but it can be translated as follows:
Ah, Joanna, best of girls.
Ah, torn away from the bloom of vigorous age.
May the earth be light upon you.
Farewell, forever and ever.3
After 1765, the story of Jefferson’s visits to the Virginia Gazette office becomes more complicated, not only because less evidence survives to document his purchases but also because the following year a second Virginia Gazette office opened. Frustrated with the current Gazette’s reluctance to contradict the g
overnor by voicing opposition to British policy in the wake of the Stamp Act, several Virginians sought to bring another printer to Williamsburg in order to establish a rival, independent newspaper. Jefferson himself took an active part in soliciting the services of Maryland printer William Rind. A longtime partner of Annapolis printer Jonas Green, Rind had helped him publish the Maryland Gazette for several years. In addition, Rind had been the proprietor of a large bookstore and circulating library in Annapolis.
The Virginians offered to support a new paper and invited Rind to relocate to Williamsburg. He accepted their offer and arrived with his family in late 1765 or early 1766. As Jefferson told Isaiah Thomas, “Until the beginning of our revolutionary disputes, we had but one press, and that having the whole business of the government, and no competitor for public favor, nothing disagreeable to the governor could be got into it. We procured Rind to come from Maryland to publish a free paper.”4 Rind began publishing his newspaper, also titled the Virginia Gazette, in May 1766, and Jefferson aggressively sought to obtain subscriptions for him. Rind’s motto was “Open to All Parties, but Influenced by None.”
Joseph Royle, the proprietor of the established Virginia Gazette, died later that year, but his Gazette was continued by his successors, Alexander Purdie and John Dixon. Through the next several years, therefore, a distinction must be made between the Purdie and Dixon Virginia Gazette and the Rind Virginia Gazette. Though Jefferson supported Rind’s paper, he continued to buy books from Purdie and Dixon occasionally. But when he had a choice, he bought from Rind. For example, Purdie and Dixon published almanacs of their own, but Jefferson preferred Rind’s Virginia Almanack.
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