Thomas Jefferson, the Apostle of Americanism

by Gilbert Chinard

I wished to exhibit a sample of reformation in the barbarous style into which our modern statutes have degenerated from their ancient simplicity. In its style, I have aimed at accuracy, brevity, simplicity, preserving however the words of the established law, wherever their meaning had been sanctioned by judicial decision, as rendered technical by usage.[64]

The transformation undergone by the old statutes can more easily be observed because Jefferson was careful to indicate in footnotes his authorities from the old texts, in Latin, and even in French and Anglo-Saxon. But the very title of the bill indicates that Jefferson's purpose went farther than a mere codification of the old law. He could not be entirely satisfied with the scale of punishments determined by the committee; he regretted particularly the maintainance of the Lex Talionis, "an eye for an eye and a hand for a hand" (Section XV), and he attempted to restrict the penalty of death to a few limited cases, for it was "the last melancholy resource against those whose existence is become inconsistent with the safety of their fellow citizens." His preamble reflects to a large extent the views of Montesquieu and Beccaria which he copied in the "Commonplace Book." But it could hardly be called humanitarian in the modern and sometimes derogatory sense of the word. The provisions of the code itself are far from showing any weakness or sentimentality: the death penalty is provided for treason against the Commonwealth and for whomsoever committeth murder by way of duel; manslaughter, previously "punishable at law by burning in the hands, and forfeiture of chattels", is punished by hard labor for seven years in the public works, and the murderer "shall forfeit one half of his lands and goods to the next of kin of the person slain, the other half to be sequestered during such times, in the hands, and to the use, of the commonwealth." Rape, polygamy, or sodomy "shall be punished if a man by castration, if a woman by boring through the cartilage of her nose a hole of one half inch in diameter at least." Witchcraft, conjuration, or sorcery "shall be punished by ducking and whipping, at the discretion of a jury, not exceeding fifteen stripes", and, most extraordinary for modern readers, "Whenever sentences of death shall be pronounced against any person for treason or murder, execution thereof shall be done on the next day but one, after such sentence, unless it be Sunday, and then on Monday following" (Section XIII). Truly enough the law of nature is once mentioned in a footnote to the effect that if a prisoner tries to escape from prison he shall not be considered as a capital offender. "The law of nature impels every one to escape from confinement; he should not therefore be subjected to punishment. Let the legislature restrain his criminal by walls, not by parchment." If there is "philosophy" in this statement it is common sense and certainly not sentimentality.

The Bill for the more General Diffusion of Knowledge is far more philosophical in its terms. There for the first time will be found a picture of democracy as Jefferson pictured it to himself at that date. The general statement at the beginning may be an echo from Montesquieu; but while the French philosopher had not indicated any remedy for such a situation, Jefferson was interested in it only in so far as it could be amended.

Experience has shewn, that even under the best forms, those entrusted with power have, in time, and by slow operations, perverted it into tyranny; and it is believed that the most effectual means of preventing this would be, to illuminate, as far as practicable, the minds of the people at large, and more especially to give them knowledge of those facts, which history exhibiteth,... and whereas it is generally true that people will be happiest whose laws are best, and are best administered, and that laws will be wisely formed, and honestly administered, in proportion as those who form and administer them are wise and honest; whence it becomes expedient for promoting the publick happiness that those persons, whom nature hath endowed with genius and virtue, should be rendered by liberal education worthy to receive, and able to guard the sacred deposit of the rights and liberties of their fellow citizens, and that they should be called to that charge without regard to wealth, birth or other accidental condition or circumstance; but the indigence of the greater number disabling them from so educating, at their own expence, those of their children whom nature hath fitly formed and disposed to become useful instruments for the public, it is better that such should be sought for and educated at the common expence of all, than that the happiness of all should be confined to the weak or wicked.

Is this a democratic view in the modern sense of the word? At any rate it is not the democratic phraseology of a modern politician. There is no protest at all in the name of immanent justice against the unequality of conditions, there is no desire to give every boy a fair chance in life, no indication that men being born equal, all children should have equal opportunities. We are perfectly free to believe that Jefferson entertained such sentiments at that date. Historically, however, there is no evidence that he did so. All we have here is a hard-headed proposition with the corrective that, under the new system, a child of genius or great talent was to be given an opportunity to develop his native qualities, for it was both the duty and the interest of society to prevent such a waste of intellectual potentialities. Furthermore, Jefferson was manifestly of the opinion that no man could properly participate in the government of society unless he had been rendered worthy to receive and able to guard the sacred deposit of the rights and liberties of his fellow citizens. Neither wealth, birth, nor accidental circumstances should determine who is fit for public office, but education should be the criterion. As he was doing his utmost to abolish the last privileges and prestige of the landed hereditary aristocracy of Virginia, Jefferson was striving to constitute and to get recognition for another aristocracy, an aristocracy of learning and intelligence, a true ruling class, or more exactly a governing and legislative class; for he was persuaded that the business of the legislator cannot be learned in a day, that it requires, besides native qualities of mind, a certain expert knowledge of the subject.

The provisions of the bill are most extraordinary for the time. Jefferson provided for the division of the State into a certain number of districts or hundreds; in each hundred a schoolhouse was to be built and so located that all the children within it might daily attend the school.

In each of the schools shall be taught reading, writing, and common arithmetick, and the books which shall be used therein for instructing the children to read shall be such as will at the same time make them acquainted with Graecian, Roman, English and American history. At these schools all the free children, male and female, resident within the respective hundred, shall be entitled to receive tuition gratis for the term of three years.

In addition, the bill provided that a certain number of grammar schools would be erected, "their situation to be as central as possible for the inhabitants of the said counties, the schools to be furnished with good water, convenient to plentiful supplies of provision and fuel and above all things that it be healthy." In all of these grammar schools, which shall receive boarders

shall be taught the Latin and Greek languages, English Grammar, geography, and the higher part of numerical arithmetick, to wit., vulgar and decimal fractions, and the extrication of the square and cube roots. In order to provide proper facilities for children of particular ability, the overseer of the hundred schools (one for ten schools) shall appoint from among the boys who shall have been two years at the least at some one of the schools under his superintendance and whose parents are too poor to give them farther education some one of the best and most promising genius and dispositions to proceed to the grammar schools.

At the end of the first year one third of the boys shall be discontinued as public foundations after examination; "all shall be discontinued at the end of two years save one only, the best in genius and disposition, who shall be at liberty to continue there four years longer on the public foundation, and shall thence forward be deemed a senior." Finally, "the visitors will select one among the said seniors of the best learning and most hopeful genius and disposition who shall be authorized by them to proceed to William and Mary College; there to be educated, boarded, and clothed three years: the expense of which shall be paid by the Treasurer."