The Writings of Thomas Jefferson, Vol. 5 (of 9) / Being His Autobiography, Correspondence, Reports, Messages, Addresses, and Other Writings, Official and Private

by Thomas Jefferson

TO SKELTON JONES.

Monticello, July 28, 1809.

Dear Sir,—Your favor of June 19th, did not come to hand till the 29th, and I have not been able to take it up till now. I lent to Mr. Burke, my collection of newspapers from 1741 to 1760, and the further matter which I suggested I might be able to furnish him after my return to Monticello, was the collection of MS. laws of Virginia, which I expected would furnish some proper and authentic materials for history, not extant anywhere else. These I lent the last year to Mr. Hening, who is now in possession of them and is printing them. But though this was within Mr. Burke's period, it is entirely anterior to yours. The collection of newspapers which I lent to Mr. Burke, I have never been able to recover, nor to learn where they are. They were all well bound, and of course have not probably been destroyed. If you can aid me in the recovery, you will oblige me. I consider their preservation as a duty, because I believe certainly there does not exist another collection of the same period. I have examined the sequel of my collection of newspapers, and find that it has but one paper of 1778. That is one of Piordie's of the month of May. But my not having them is no evidence they were not printed; because I was so continually itinerant during the revolution, that I was rarely in a situation to preserve the papers I received. And although there were probably occasional suspensions for want of paper, yet I do not believe there was a total one at any time. I think, however, you might procure a file for that or any other year, in Philadelphia or Boston. These would furnish all the material occurrences of Virginia. You ask, what has the historian to do with the latter part of 1776, the whole of 1777 and 1778, and a part of 1779? This is precisely the period which was occupied in the reformation of the laws to the new organization and principles of our government. The committee was appointed in the latter part of 1776, and reported in the spring or summer of 1779. At the first and only meeting of the whole committee, (of five persons,) the question was discussed whether we would attempt to reduce the whole body of the law into a code, the text of which should become the law of the land? We decided against that, because every word and phrase in that text would become a new subject of criticism and litigation, until its sense should have been settled by numerous decisions, and that, in the meantime, the rights of property would be in the air. We concluded not to meddle with the common law, i. e., the law preceding the existence of the statutes, further than to accommodate it to our new principles and circumstances; but to 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. From this, however, were excepted the ancient statutes, particularly those commented on by Lord Coke, the language of which is simple, and the meaning of every word so well settled by decisions, as so make it safest not to change words where the sense was to be retained. After setting our plan, Col. Mason declined undertaking the execution of any part of it, as not being sufficiently read in the law. Mr. Lee very soon afterwards died, and the work was distributed between Mr. Wythe, Mr. Pendleton and myself. To me was assigned the common law, (so far as we thought of altering it,) and the statutes down to the Reformation, or end of the reign of Elizabeth; to Mr. Wythe, the subsequent body of the statutes, and to Mr. Pendleton the Virginia laws. This distribution threw into my part the laws concerning crimes and punishments, the law of descents, and the laws concerning religion. After completing our work separately, we met, (Mr. W., Mr. P. and myself,) in Williamsburg, and held a long session, in which we went over the first and second parts in the order of time, weighing and correcting every word, and reducing them to the form in which they were afterwards reported. When we proceeded to the third part, we found that Mr. Pendleton had not exactly seized the intentions of the committee, which were to reform the language of the Virginia laws, and reduce the matter to a simple style and form. He had copied the acts verbatim, only omitting what was disapproved; and some family occurrence calling him indispensably home, he desired Mr. Wythe and myself to make it what we thought it ought to be, and authorized us to report him as concurring in the work. We accordingly divided the work, and re-executed it entirely, so as to assimilate its plan and execution to the other parts, as well as the shortness of the time would admit, and we brought the whole body of British statutes and laws of Virginia into 127 acts, most of them short. This is the history of that work as to its execution. Its matter and the nature of the changes made, will be a proper subject for the consideration of the historian. Experience has convinced me that the change in the style of the laws was for the better, and it has sensibly reformed the style of our laws from that time downwards, insomuch that they have obtained, in that respect, the approbation of men of consideration on both sides of the Atlantic. Whether the change in the style and form of the criminal law, as introduced by Mr. Taylor, was for the better, is not for me to judge. The digest of that act employed me longer than I believe all the rest of the work, for it rendered it necessary for me to go with great care over Bracton, Britton, the Saxon statutes, and the works of authority on criminal law; and it gave me great satisfaction to find that in general I had only to reduce the law to its ancient Saxon condition, stripping it of all the innovations and rigorisms of subsequent times, to make it what it should be. The substitution of the penitentiary, instead of labor on the high road and of some other punishments truly objectionable, is a just merit to be ascribed to Mr. Taylor's law. When our report was made, the idea of a penitentiary had never been suggested, the happy experiment of Pennsylvania we had not then the benefit of.

To assist in filling up those years of exemption from military invasion, an inquiry into the exertions of Virginia in the common cause during that period, would be proper for the patriotic historian, because her character has been very unjustly impeached by the writers of other States, as having used no equal exertions at that time. I know it to be false; because having all that time been a member of the legislature, I know that our whole occupation was in straining the resources of the State to the utmost, to furnish men, money, provisions and other necessaries to the common cause. The proofs of this will be found in the journals and acts of the legislature, in executive proceedings and papers, and in the auditor's accounts. Not that Virginia furnished her quota of requisitions of either men or money; but that she was always above par, in what was actually furnished by the other States. A letter of mine written in 1779 or '80, if still among the executive papers, will furnish full evidence of these facts. It was addressed to our delegates in answer to a formal complaint on the subject, and was founded in unquestionable vouchers.

The inquiries in your printed letter of August, 1808, would lead to the writing the history of my whole life, than which nothing could be more repugnant to my feelings. I have been connected, as many fellow laborers were, with the great events which happened to mark the epoch of our lives. But these belong to no one in particular, all of us did our parts, and no one can claim the transactions to himself. The most I could do would be to revise, correct or supply any statements which should be made respecting public transactions in which I had a part, or which may have otherwise come within my knowledge.

I have to apologize for the delay of this answer. The active hours of the day are all devoted to employments without doors, so that I have rarely an interval, and more rarely the inclination, to set down to my writing table, the divorce from which is among the greatest reliefs in my late change of life. Still, I will always answer with pleasure any particular inquiries you may wish to address to me, sincerely desiring for the public good as well as your own personal concern, to contribute to the perfection of a work from which I hope much to both; and I beg leave to tender you the assurances of my great esteem and respect.