Given the complex project Jefferson had undertaken shortly before acquiring Randolph’s books, these manuscript statute collections gather importance not only as archival material but also as practical works. During the legislative session just ending, Jefferson was appointed chairman of the committee to oversee the revision of the laws of Virginia. Now more than ever, he needed as full a collection of laws as he could assemble.
Proud to come away from the autumn legislative session with this responsibility, Jefferson was quietly relieved that the current Assembly was coming to a close. It had been an especially trying session, the most difficult one he had endured so far. In his autobiography, he described the debates in the House of Delegates that fall as “the severest contests in which I have ever been engaged.”31 The contests Jefferson referred to pitted church against state. It is no coincidence that this head-to-head battle happened when it did: political freedom typically prompts a resurgence of religious freedom. With the declaration of American independence, those Virginians who dissented from the Church of England now clamored for their religious independence.
By 1776, dissenters had come to form a significant percentage of Virginia’s population. Though free to practice their beliefs, the law required them to support the Anglican clergy, who remained responsible for the education of Virginia’s youth and who were compensated for their efforts through public funds. Reluctant to support the Anglican Church, the dissenters petitioned the Virginia legislature to repeal these legally mandated contributions. Though Jefferson took his catechism in an Anglican church, received his education from Anglican priests, worshiped in an Anglican church, served on the vestry of an Anglican church, and understood how much the Anglican clergy had contributed to the book culture and intellectual life of colonial Virginia, he recognized that in a democracy, no government should dictate religion to its people. Church and state should and must be separate. Though Jefferson knew he would be battling fellow members of the Anglican Church, who were also good friends and shrewd debaters, he felt compelled to try his hardest to achieve the complete separation of church and state. He made the dissenters’ cause his own.
Having declared freedom from political tyranny, Jefferson now sought to declare freedom from what he termed “spiritual tyranny.” His goal was nothing short of total religious freedom, the freedom for everyone to believe what they want to believe. By the end of this difficult legislative session, he had managed to exempt the dissenters from having to contribute to the Anglican Church, but he knew there would be more battles to come before he achieved his goal.
Acquired at a time when Jefferson was engaged in what amounted to a pitched battle between church and state, the books he purchased from Peyton Randolph’s library take on further significance. Randolph’s copy of Gilbert Burnet’s History of the Reformation of the Church of England—formerly in the possession of Arthur Blackamore, a master of the William and Mary grammar school who had left Virginia ignominiously decades earlier—provided an authoritative and compelling story of what could happen when church and state clash.32
Randolph’s copy of William Fulbecke’s Parallel of Conference of the Civil Law, the Canon Law, and the Common Law gave Jefferson a useful methodology to deepen his studies. Fulbecke offered a critical approach to the study of law that Jefferson had applied to other fields of study, namely, the comparative method. In this, one of the earliest English texts of comparative jurisprudence, Fulbecke sought to reconcile how different legal issues were interpreted according to different legal systems.33 In Fulbecke’s Parallel, which is grounded in the study of natural law, Jefferson found an amenable approach to understanding the relationship between church and state.
Jefferson’s efforts would culminate in his “Bill for Establishing Religious Freedom,” which he would draft the following year. Preparing this bill required much intellectual work. His personal library supplied him with the resources he needed. Some idiosyncratic notes survive to show him working out his concept of religious freedom, which his editors have grouped together under the general title “Notes and Proceedings on Discontinuing the Establishment of the Church of England.” These miscellaneous papers show Jefferson making use of books from many different parts of his library. He delved into his collections of statutes to compile a list of Acts passed in both Parliament and the Virginia Assembly pertaining to religion.
Jefferson took the philosophical basis of his concept of religious freedom from John Milton’s Reason of Church-Government and Of Reformation in England, John Locke’s “Letter Concerning Toleration,” and the Earl of Shaftesbury’s “Letter Concerning Enthusiasm.” He consulted his collection of religious books for much additional information regarding the various faiths around the world. The works of Daniel Waterland and Conyers Middleton, which helped to form the basis of Jefferson’s own faith, offered ideas that entered his notes at several points.34
The “Bill for Establishing Religious Freedom” came before the Virginia House of Delegates in 1779. It was not adopted then, but when James Madison reintroduced the bill to the House in 1785, it underwent much debate and amendment but was ultimately approved. In early 1786, it passed both the House of Delegates and the Virginia Senate and became law.
Living in France when the bill became law, Jefferson, needless to say, received the news with elation. He ultimately ranked this bill with the Declaration of Independence among his proudest accomplishments. Considered as a single Act passed in the legislature of the State of Virginia, the bill seems fairly modest, but in terms of philosophical, social, and political significance, its implications were vast.
News of the bill spread throughout Europe, and it was widely reprinted as an example of American enlightenment. Jefferson explained to Madison:
The Virginia act for religious freedom has been received with infinite approbation in Europe and propagated with enthusiasm. I do not mean by the governments, but by the individuals which compose them. It has been translated into French and Italian, has been sent to most of the courts of Europe, and has been the best evidence of the falshood of those reports which stated us to be in anarchy. It is inserted in the new Encyclopedie, and is appearing in most of the publications respecting America. In fact it is comfortable to see the standard of reason at length erected, after so many ages during which the human mind has been held in vassalage by kings, priests and nobles; and it is honorable for us to have produced the first legislature who has had the courage to declare that the reason of man may be trusted with the formation of his own opinions.35
This excerpt shows how much the bill meant to Jefferson. Not only does it represent the triumph of reason over tyranny, prejudice, and superstition, it also represents the United States and, specifically, Virginia. It represents something else, too: it personally represents Thomas Jefferson. It demonstrates his will, his perseverance, and his desire to work toward the freedom of all men.
Expanding his fine personal library in both Philadelphia and Williamsburg, Jefferson gathered what he needed to broaden his legal and philosophical knowledge in the service of his nation. An ocean may have separated the New World from the Old, but Jefferson saw no reason why he could not recreate at Monticello the intellectual world of Europe, past and present, and surround himself with what the greatest writers and thinkers had to offer.
His aggressive efforts to expand his library during the mid- to late 1770s provide a good context for understanding his comments in this letter to Madison, which identify the “Bill for Establishing Religious Freedom” as a landmark in the history of Western thought: Jefferson had steeped himself in the history of ideas to write the bill, and now, having written it, and having seen it enacted, he was situating his own words and ideas within the intellectual world his books represented. As part of both the Encyclopedie and other contemporary publications, the “Bill for Establishing Religious Freedom” showed European readers that America was a place where new thinking was made real.
James Madison, engraved by H. B. Hall’s Sons,
New York. From Lyon Gardiner Tyler, Encyclopedia of Virginia Biography (1915). (Collection of Kevin J. Hayes)
CHAPTER 15
Of Law and Learning
On Christmas night, 1776, a powerful winter storm covered Virginia with more than twenty inches of snow. During the next few weeks, the weather remained crisp and cold, the temperature seldom creeping above the twenties, the Christmas snow continuing to blanket the land. Though this was the severest winter he could remember, Jefferson had no intention of letting either the snow or the cold hinder his plans. The second week of January 1777, he ventured to Fredericksburg to meet other members of the committee named by the Virginia legislature to revise its laws: Thomas Ludwell Lee, George Mason, Edmund Pendleton, and George Wythe. Since the creation of the United States, all laws present and in force needed to be scrutinized and, in many cases, reworked.
After leaving Philadelphia in September, Jefferson had been thinking much about revising the laws of Virginia. With “no negatives of Councils, Governors and Kings to restrain us from doing right,” he observed, the laws could be thoroughly revised “with a single eye to reason, and the good of those for whose government it was framed.” Other Virginia legislators agreed, and that autumn the House of Delegates had adopted the “Bill for the Revision of the Laws,” elected a committee to undertake the revision, and named Jefferson to chair the committee. This wintertime gathering in Fredericksburg was planned as an organizational meeting. In Jefferson’s words, its object was “to settle the plan of operation and to distribute the work.”1
Regularly laid out in parallel streets and commanding a handsome view, Fredericksburg was an ideal place to begin work on such an important project. Here, the committee had to decide whether to “abolish the whole existing system of laws, and prepare a new and complete Institute” or to “preserve the general system, and only modify it to the present state of things.”2 They decided to keep the parts of the existing system that remained valid, drafted new legislation to replace some of the laws, and added new laws as needed. Less work than drafting an entirely new system, the task they faced was a daunting one nonetheless. Before the committee was through, it would draft a set of more than one hundred bills proposing new laws for Virginia.
Upon determining the scope of the project, these men had to decide who would do what. Some committee members were reluctant to assume the weighty and time-consuming responsibilities involved. “When we proceeded to the distribution of the work,” Jefferson recalled, “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.”3 So, Jefferson, Wythe, and Pendleton assumed the responsibility for revising the laws. And Jefferson himself ultimately did the lion’s share of the work.
Rewriting the laws of Virginia was a task for which he was well prepared. From his training under George Wythe through his years before the bar of the General Court of Virginia and within the legislative chambers of the House of Burgesses and the Continental Congress, Jefferson had plenty of practical experience making, interpreting, and upholding the law. What might have served him best, however, was his experience within his library at Monticello. At this time, he had the fullest collection of law books in the nation, and he may have been better read in the law than anyone else in the United States, surpassing even his former teacher and fellow committee member, George Wythe.
The month Jefferson and his committee began their task of rewriting the laws of Virginia, their countryman George Washington was busy to the north retaking ground he had given up to British forces the previous year. That January he routed the British at the Battle of Princeton, established winter quarters at Morristown, and began sending out raiding parties to torment nearby British forces and push them back farther. Though Washington’s efforts with his sword were more urgent that Jefferson’s efforts with his pen, both endeavors were essential for defining and legitimizing the new nation. Battling the British, Washington was fighting for the principles the United States represented; drafting new laws, Jefferson was taking those general principles and applying them in specific contexts and situations. Jefferson saw rewriting the laws of Virginia not only as a legal task, but also as a literary endeavor. He believed that recent British statutes, not to mention many of the Acts of the Virginia Assembly, were hindered by “their verbosity, their endless tautologies, their involutions of case within case, and parenthesis within parenthesis, and their multiplied efforts at certainty by saids and aforesaids, by ors and by ands.”4 Such awkward diction and syntax made them quite difficult to read, not only by the general public but also by the lawyers and judges whose responsibility it was to interpret them. Jefferson began his revision of the laws with the ambitious design of reforming the legalistic prose style.
Once he finished drafting the “Bill for Proportioning Crimes and Punishments,” he sent a copy of it to Wythe. In a cover letter, he described the bill and explained the general literary and stylistic approach he was taking. Accuracy, brevity, and simplicity were his watchwords. Though he preserved the wording of laws that had been established and sanctioned by judicial decision, he otherwise avoided “modern statutory language” in the new laws he drafted. As he told Wythe, he was seeking to rescue the statutory language from “the barbarous style into which modern statutes have degenerated from their antient simplicity.”5 Indeed, much of early American literature had a similar impulse. With this particular bill, Jefferson reinforced the value of ancient languages and indulged his linguistic curiosity by adding numerous explanatory notes, citing precedent and quoting them in Anglo-Saxon, Latin, or Law French.
He devoted nearly two years to the task of rewriting the laws, but other activities also kept him busy during this time. His wife, Martha, gave birth to two more children: on May 28, 1777, she gave birth to their only son, who did not live long enough to receive a name, and on August 1, 1778, their daughter Mary was born. Jefferson also had much work to do in the state legislature, which took him away from Monticello for long periods of time. The voters of Albemarle County kept reelecting him to the House of Delegates, so he spent some months in Williamsburg each year attending the increasingly lengthy legislative sessions.
Home at Monticello, Jefferson enjoyed being with his family, keeping up his correspondence, and gathering scientific data. He collected much information about the natural phenomena surrounding him, from the flora that broke through the rich crust of Virginia earth every spring to the rain that poured from the heavens. The war remained far enough away that he could enjoy his home life without feeling threatened and devote his few leisure hours to pursuing personal interests in literature and science.
His time in the Continental Congress had put him in touch with some of the brightest minds in America, and he was eager to maintain these connections. His correspondence was a way not only to continue the business of the new nation but also to enjoy lively intellectual and literary discourse. Benjamin Franklin was the most prominent of his new correspondents. Writing to Franklin, Jefferson made full use of his literary skills. For example, he applied an apt simile to express how easily Virginians had accepted American independence: “With respect to the state of Virginia in particular, the people seem to have deposited the monarchical and taken up the republican government with as much ease as would have attended their throwing off an old and putting on a new suit of clothes.”6 Writing to Silas Deane—after Congress had sent Deane to Paris yet before he compromised his position there by selling his diplomatic correspondence for ready cash—Jefferson told him, “I feel within myself the same kind of desire of an hour’s conversation with yourself or Dr. Franklyn which I have often had for a confabulation with those who have passed the irremeable bourne.”7 As he often did, Jefferson became nostalgic when he imagined intellectual conversations from his past and longed to recapture such experiences. Though no substitute for face-to-face e
ncounters, a correspondence did have its own pleasures.
In the spring of 1777, Jefferson established the most important correspondence of his literary life. The third Friday that May he took time from the busy legislative session, put pen to paper, and initiated a correspondence with John Adams, who was still serving in the Continental Congress. In this first letter, Jefferson discussed many different topics—the Continental army, in which Virginia soldiers, he was proud to boast, were serving in great numbers; the Articles of Confederation, which Congress had yet to adopt; the postal system, which was in dire need of reorganization—but he saved his most impassioned comments for a discussion of the importance of the printed word to democracy.
Jefferson voiced concern that the Congressional journals had yet to be published. Without their publication, state legislators were forced to make local policy decisions unaware of what national legislators had resolved. Expressing his dismay, Jefferson summarized what many of his fellow delegates in the Virginia House were feeling: “The journals of congress not being printed earlier gives more uneasiness than I would ever wish to see produced by any act of that body, from whom alone I know our salvation can proceed. In our assembly even the best affected think it an indignity to freemen to be voted away life and fortune in the dark.”8 The printed word not only offers a way to disseminate information, but also helps to ensure freedom.
The Road to Monticello Page 28