USA > Virginia > A history of Virginia : from its discovery and settlement by Europeans to the present time. Vol. II > Part 13
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VIRGINIA had boldly opened the work of the
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LAW IN VIRGINIA.
Revolution. The changes she had wrought may not have been sensibly felt by her citizens for years, but they went to the very foundations of national happiness. Her conduct had been directed by reason. That enthusiasm had been felt in her bosom, is true; but it was enthusiasm which nei- ther blinded her eyes, nor misguided her arm. Her statesmen were already looking to the future ; they saw before them a singular crisis; such a concurrence of events favourable to human free- dom, as had never before existed ; and they hasten- ed to seize its advantages. They prepared to carry their reforms into every department of life in which they were required, and to establish them upon a basis broad as the welfare of the people.
It was natural that the system of Law proper for the new Commonwealth should have been one of the first objects of their attention. Virginia had brought from her mother country the English Common Law, and early Statutes, and these were held to be binding wherever they were applicable to the circumstances of the Colony. In addition, her own Assemblies had enacted several volumes of statutes, and, frequently, the English Parliament had expressly extended to her the effect of their legis- lation. These sources furnished to her the law which bound her people when the Revolution commenced. It ought not to surprise us that many of her most accomplished citizens had learned to revere this time-honoured system, under which they had so long lived. The Common Law and the general current of early English enactments, had much to
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[CHAP. IV.
commend them even beyond the venerated memo- ries of the past, which encircled them. They breathed a sturdy and honest spirit; they loved the trial by jury; they fostered a temper of inde- pendence and moral purity. Yet with their ac- knowledged merits, they combined vices, rendered only the more dangerous by their inveteracy, and wholly incompatible with the principles which had been already announced in Virginia. To these vices her law-makers turned their thoughts, and, while they retained the general system as the basis of their jurisprudence, they laboured to take from it every rule inconsistent with freedom.
It would not be proper, in this work, to review the laws of the state in detail, and to trace with minuteness the various changes through which they have passed in assuming their present form. This would be the province of the professed jurist, rather than of the historian. Yet the laws of every people constitute a most important part of its history ; they mould its character, and, in turn, are shaped by its dispositions. They act and react upon it, and often furnish the soundest test of its welfare. And there are some laws which, in their very nature, are in- separable from the destinies of their subjects ; they do so entwine themselves around the social interests of man, and so constantly affect his practice, that he cannot be impartially considered without them. Upon such laws it is the duty of history to bestow due attention. And of this character were some which engaged the thoughts of Virginia's sages, in
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ENTAILS.
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the very infancy of her existence as a sovereign state.
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The first of these upon which notice shall be bestowed, was the law of entail. A very early period of English history had witnessed its rise, and succeeding years had moulded it into form.ª Under this law, landed property was fixed for per- petuity in the same family; the father held it for his life without power to sell or encumber, and at his death his oldest son succeeded to the same rights and the same restrictions. If the first son died without issue, the second and other sons took the property in the same way, and thus a succes- sion almost unlimited was provided. This scheme has planted itself deeply in the heart of England ; it is congenial to her constitution, and keeps alive the aristocratic spirit which many of her sages have held to be necessary to her welfare. Yet her enlightened sons have not been blind to the enor- mous evils flowing from entails, and long ago these evils were great enough to make the courts look with jealous eyes upon the system. Children were prone to disobedience when they knew their parents could not disinherit them. Creditors were de- frauded, for the heir could not be compelled to pay debts contracted by an extravagant father ; treasons were encouraged, for the lands could not be for- feited by crime. Hence, in England, gradually
a The statute " De donis condi-
b See Blackstone's remarks, i. tionalibus," which was the origin of book ii. 91, 92; Tucker's Commen- estates tail, was enacted in the 13th taries, i. book ii. 47. year of King Edward I .- Black- stone, i. book ii. 88.
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ENTAILS.
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arose the doctrine that entails might be destroyed by a judicial process known as a fine and common recovery. In this, the ancestor, the heir, and all other parties interested, usually joined, and the effect was to give to the possessor a title in fee simple, so that the property might be sold, or divided, or charged with debts, or otherwise appro- priated, according to the general law of the land. This mode of breaking entails has been constantly used in England, but so strong is the tendency to privileged order there, that many thousand broad acres are yet locked in the embrace of the statute of King Edward the First.
Hardly had the settlement of Virginia been com- menced, before the working of this system was seen. Her cavaliers and gentlemen were the very people who would be most partial to its use. They had grown up in contact with classes in the mother country, who loved it as a national privilege, and in their eyes a genuine entail was connected with all that was gentlemanly and dignified. Gradually plantations were established, and were bound in rigorous family settlements. The preference of sons to daughters was of course admitted in full strength, and the oldest son was still the favourite tenant in tail. Down from ancestor to heir, the lands skirting the Rappahannocand the Powhatan descended in endless line. For a long time before the Revolution, the law operated in power ; large possessions in land were held without encumbrance by the same family. The father was lord in his lifetime, and the son was lord in expectancy and
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EVILS ATTENDING THEM.
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legal right. Nothing can convey a more vivid idea of the strong aristocratic feeling pervading Virginia, than her course as to this scheme. We have seen that in England the courts set their faces against entails, and permitted them to be docked by a fine and recovery; but the law-makers of the " Old Dominion" held all such innovations in high contempt, and by a statute enacted in 1705, for- bade their use, and declared that no estate-tail should be destroyed, except by act of Assembly.ª And to complete their work, in 1727 they enacted that slaves might be attached to lands, and might be entailed with them, subject to all the incidents proper to the system.b
Under these circumstances, the policy was allowed its full influence in Virginia. A special act of the legislature was sometimes asked and granted to break a settlement, but such cases were comparatively few, and were not favoured. All the evils attending the system in England existed in the Colony, with divers aggravations. Over the whole eastern region, fine lands were held by families who guarded their privileges with more than English jealousy. An aristocracy neither of talent, nor learning, nor moral worth, but of landed and slave interest, was fostered. The members of the Council of State were always chosen from this class,e and in many respects they were regarded
a Hening, iii. 320 .- This was in the revisal of 1705; the law was Com., i. book ii. 49. virtually repeated in Oct. 1710, iii. 518; see Tueker's Com. book ii. 49. er's Jefferson, i. 92, 93.
b Hening, iv. 225, 226; Tucker's
c Jefferson's Works, i. 30 ; Tuck-
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MR. JEFFERSON'S BILL.
[CHAP. IV.
as the peerage of the land. The hope of enjoying special marks of kingly favour kept the whole body in watchful dependence on the Crown. And dan- gerous distinctions of another kind flowed from the policy. Where lands could neither be sold nor mortgaged, debts must often have been contracted which were never paid, yet the tenants in tail lived in luxurious ease, to which others were strangers. The rich people of Virginia were then richer than at present, and the poor were poorer. There was no prospect for that equal distribution of property which is the legitimate reward of industry. Coaches drawn by four horses rolled from the doors of the aristocracy, and plate of gold and silver in the utmost profusion glittered on their boards, while the poor artisan and labourer worked for the neces- saries of life without hope of ever gaining any por- tion of the property guarded by entail. Thus an artificial state of society was produced, unfavourable to freedom, and fruitful in discontent.
On the 12th day of October, Mr. Jefferson opened his batteries upon this fortress of Virginian pride. He obtained leave to bring in a bill which provided that thereafter all estates tail should be converted into fee simple, so that the owner might sell, de- vise, mortgage, or otherwise dispose of them as he pleased.ª He encountered warm opposition. Ed- mund Pendleton was the great champion of anti- quity, the enemy of innovation. We are not to suppose that this distinguished man was wanting in patriotism, but he was cautious and cool. He had
a Jefferson's Works, i. 29; Tucker's Jefferson, i. 92.
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ENTAILS ABOLISHED.
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drank so deeply of the fountains of English lore, that he did not relish the new spring of waters opened in America. He feared they would intoxi- cate and destroy. He was virtuous and benevolent, kind as a friend, philanthropic as a man, and there- fore the more formidable as an opponent. He was an elegant and impressive speaker, quick as light- ning to seize a point, and persevering to maintain it. He brought all his powers to bear against Mr. Jefferson's bill, and nearly defeated it. Finding that popular opinion was running too strongly against entails to permit him to save the entire policy, he introduced an amendment to the effect that the tenant in tail might convey in fee simple if he thought proper so to do." This amendment came within a few votes of success, and it would have left the evil nearly as great as before, for the aristocratic feeling was yet strong enough to have preserved many family settlements from destruc- tion. But, finally, the friends of the bill prevailed; it passed without material amendment. The axe was applied, and the tree of entails, which had been growing for centuries, was levelled with the ground.b
The wise men of the state were convinced that
a See Mr. Jefferson's remarks, of litigation, notwithstanding statute Works, i. 30; Tucker's Jefferson, i. after statute intended to destroy 93. them. This subject is more inte- b Henry Lee's remarks on Jeffer- resting to the lawyer than to the ge- son, 123; Jefferson's Works, i. 30; Tucker's Jefferson, i. 93. Though the tree was felled, its roots remained, and they have produced a full growth neral reader, but he who wishes to examine it, may consult Judge Tuc- ker's Commentaries, vol. i., book ii. page 155, &c.
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REVISAL OF LAWS.
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their whole system of jurisprudence needed revi- sion. The law we have just noticed was so impor- tant, that immediate action had been applied to it, but Mr. Jefferson was resolved that, if possible, the whole legal fabric should be remodelled, that it might be fitted to the wants of a free people. Early in the session he brought in a bill for the purpose, which was passed on the 24th of October, and, on the 5th of November, revisors were appointed, to whom was committed the whole subject, with in- structions to take the Common Law, the English and Virginia Statutes, to examine them, to suggest reforms, to arrange their suggestions in the shape of bills, and to report their labours to the Legislature, in order that the bills might be considered, and, if approved, passed into laws. The revisors were Thomas Jefferson, Edmund Pendleton, George Wythe, George Mason, and Thomas Ludwell Lee ; but, after the work was commenced, Mr. Mason and Mr. Lee withdrew.ª They were not lawyers by profession, and though their views might some- times have been useful, they felt themselves incom- petent to a task requiring the highest legal learning. The three remaining gentlemen proceeded to their work with zeal, and in three years they were pre- pared to make a report.
As this subject is perfectly distinct in its cha- racter, it will be best at once to follow the revisors in their learned labours, instead of recurring to them in the history of the years that succeeded. Early
a Jefferson's Works, i. 34, 35; Tucker's Jefferson, i. 103-105 ; Girardin, 187, 347.
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in the year 1777 the committee met and distributed their task. With great propriety they determined to retain the Common Law as the basis of their reforms, and to embrace in their bills only such alterations as they thought should be applied to it, together with such enactments as would supply the place of all prior British and Virginia Statutes.a To have swept away at once the whole existing system, with the thousands of judicial decisions made upon it, and to have substituted for it a com- pact code, would have been a work of great labour and delicacy, and would have diminished the cer- tainty of the law. Errors of opinion on this sub- ject are common to the inexperienced. A simple code may suffice for an infant people. But as so- ciety widens, as orders are established, as property increases, as intricate relations arise, so must rules vary and distinctions be drawn. Therefore, the most accurate written laws that human wisdom could devise, would become subjects of litigation ; every phrase would involve a context, every word would be weighed and found wanting, and until centuries of judicial proceedings had passed, un- certainty would prevail.b Considerations like these determined the revisors of Virginia, although, for a time, Mr. Pendleton was strongly in favour of an original code.
They divided the work by assigning to Mr. Jefferson the whole Common Law and the English
a Tucker's Jefferson, i. 103, 104; on the "Code Napoleon," as com- Jefferson's Works, i. 34, 35.
b See Remarks of Sir Walter Scott
pared with English Jurisprudence. Life of Napoleon, vol. ii. 154-157.
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JAMES MADISON.
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Statutes prior to the fourth year of King James the First, when the Articles of Instruction for the Co- lony took effect.a To Mr. Wythe, the British Sta- tutes from that date to the Revolution ; and to Mr. Pendleton, all the Virginia enactments. They went to their homes, and in time not devoted to other duties, they laboured assiduously upon the new code. By the 18th of June, 1779, they were ready to report, and presented to the Legislature the result of their work, in a volume of ninety pages, containing one hundred and twenty-six bills.
Some of these reforms were adopted in a short time, but the greater part of the work was not taken up until 1785. James Madison had entered the Legislature in the session of 1776. He was then a young man, and had hardly tried his noble powers ; but in subsequent years he became more and more eminent. To his exertions in 1785, the new code was principally indebted. Many objec- tions were made, some sound, some senseless ; " endless quibbles, chicaneries, perversions, vexa- tions, and delays of lawyers and demi-lawyers,"c but at length most of the bills were passed with little alteration.
To a few only of these reforms will it be proper in this work to refer. The law of descents had engaged the special thought of Mr. Jefferson. The English system had been loved in Virginia. The oldest son was the heir and inherited all the lands of the father, while other sons and all the daughters
a See vol. i. 83, 87.
c Jefferson, Works, i. 36.
b Jefferson, i. 35; Tucker, i. 105.
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LAW OF DESCENTS.
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were fain to be content with scanty portions. The injustice of this scheme had availed nothing in ar- gument with the aristocracy. Mr. Pendleton was anxious to preserve it, and finding that his com- panions were inexorable, he begged at least that the Jewish rule might prevail, and that the first born son might receive a double portion ;ª but Mr. Jefferson replied that unless the eldest son required a double portion of food, or could do a double amount of work, he did not see the justice of giving him a double share of property. Thus the dispute was ended-nature prevailed-the law of primogeniture was abolished; and the statute of descents substituted for it in our state, is a beautiful illustration of natural principles. It gives to all children equal portions, and when there are no children, it directs property into channels which the heart and the head of every sane man would be prone to choose. In proof of this, it is certain that, except under very peculiar circumstances, wills in Virginia have been found to make almost the same disposition of property that the law would have made had the owner died intestate.b Mr. Jef- ferson's statute of descents has been very slightly altered in subsequent years, and a learned mind has said that the only important change has de- formed rather than improved the graceful symmetry of the original ..
It had been Mr. Jefferson's ardent desire to in-
a Deuteronomy, xxi. 16, 17.
b Tucker's Jefferson, i. 93, 94.
c See Judge Tucker's Commen- taries, i. book ii. 193.
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PROPOSED CRIMINAL CODE.
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troduce into the laws permanent enactments for the support of education among the people. He proposed to have William and Mary elevated into a university, to establish colleges as an intermediate grade of schools, and to divide the state into dis- tricts, in each of which a public school should be supported. But this plan, though sometimes feebly urged, was never carried out. The strong Epis- copal odour of William and Mary, made it un- grateful to those who had been called Dissenters,a and it may be that Virginia already exhibited some of that apathy on the subject of education which has since covered her with shame in the eyes of her sister states !
The proposed law of crimes and punishments seems to be the most exceptionable part of the work done by the revisors. It is true, they sought to cleanse the blood-stained code of England; the one hundred and sixty capital crimes made by the British Parliament,b were not to exist. Only trea- son and murder were to be punished with death, but for other deep felonies they provided the penalty of hard labour on the public works. This policy is more than doubtful; shaved heads, mean clothing, and limbs fettered with iron shackles, when openly shown, have seldom done any thing either for the reformation of offenders, or for general morals. By some unaccountable perversion of judgment and feeling, the revisors had established the barbarous " lex talionis," the law of retaliation for some
a Jefferson's Works, i. 39.
b See Blackstone's Commen., ii. book iv. 13.
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DEFEATED BY ONE VOTE. 209
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offences.ª Poison for poison, maim for maim, wound for wound ; this was literally their system,b and for certain infamous crimes the punishment denounced was so revolting, that it is hard to be- lieve it ever could have obtained the sanction of statesmen and sages! The bill was defeated in the Legislature by a single vote. We have every reason to rejoice that it was lost; it might have darkened the reputation of its distinguished authors; it would not have met the demands of the age, and it would probably have retarded Virginia in her subsequent efforts to ameliorate her criminal code.
Thus a gradual but decisive change was wrought in the law of the state, and was reflected upon the social system. Lord Bacon has said that Time is the greatest innovator, but that he works slowly and imperceptibly, and it were well that man should imitate him. Nothing ought more to raise our esteem for the wise men of the Revolu- tion, than a view of the caution-the apparent de- lay-with which they worked reform. There was change, but there was no shock; no sudden rend- ing. They applied the principles of freedom from time to time, and slowly and gracefully wove them into their system.c The innovations we have already noticed were, of all others, best adapted to secure human liberty. The conscience was re- leased from bondage by the laws as to religion ; the forbidding of entails prevented the rise of
a Jefferson's Works, i. 35, 36. c See W. C. Rives' Discourse on b Draft of bill for apportioning History, delivered 29th June, 1847, crimes, &c., Jefferson's Works, i. page 22. 123-126.
VOL. II.
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HORRORS OF WAR.
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hereditary privileges, and of any aristocracy other than that of worth and talent; the law of descents divided property according to nature, and promoted equality among men. Under such a system, the highest guarantees would be afforded for content- ment and happiness.
Turning immediately back from this review, we find the Legislature of Virginia contemplating a most singular and dangerous measure. It is humi- liating to fall from wisdom to folly, from liberty to slavery. Yet, before we pass sentence of condem- nation upon the conduct of such men as lived in 1776, it will be proper to give them the benefit of every circumstance explaining their action, and covering, in some degree, its deformity. While they were in session, war was raging in the Nor- thern States. Washington had struggled in vain against the disciplined troops under the British generals. He had been defeated on Long Island, and after the enemy took possession of New York, he had been driven through the Jerseys before a powerful force. Patriot hearts sank; the cause of the Revolution seemed lost ; resistance was hardly opposed to the progress of the enemy, and their course was marked with rapine and violence. As the British and Hessian troops passed through the Jerseys, they committed horrible excesses. A Hessian soldier ravished a young girl, and while her unhappy father was endeavouring to release her, he was mortally wounded by the comrades of the ravisher.ª Another girl, young and modest,
a Letter from Bucks County, Pa., and see Gordon's America, ii. 165, in Virginia Gazette, Dec. 27, 1776, 166.
١
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A DICTATOR PROPOSED.
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was forcibly violated by a British officer, and was afterwards found by a small party of Americans in company with some of her female companions, who had with difficulty made their escape.ª Fields were wasted, cattle destroyed, fruit trees cut down, houses burned ; it seemed as though the conquerors were resolved to teach America her duty to Eng- land by reducing her to original desolation.
At this time the legislators of Virginia seemed to lose all hope. In perfect despair they listened to a proposal, startling even to themselves. This was neither more nor less than the appointment of a dictator, with absolute powers, military and civil, united in himself! Those friendly to this project sought a precedent in Roman history, which tells that in times of extreme danger, a dictator was ap- pointed to take care of the commonwealth. They might have remembered that if such a step had ever produced transient good, it had at last been fatal ; that example is dangerous, and power se- ducing ; and that Rome was lost when her Cæsars had gained a permanent dictatorship. But it is needless to argue against a scheme, the very state- ment of which is enough to expose its madness.
There is little doubt that Patrick Henry was the man intended by the advocates of the dictatorship for this office, but we have no reason to believe that he favoured or even knew of the scheme.b As the matter went forward, fierce passions arose ;. the friends and opponents of the measure often ex- changed angry remonstrances, and, at last, so high
ª Ibid. Virginia Gazette. b Wirt, 149; Girardin, 190.
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COLONEL SYME.
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did their excitement become, that they walked on different sides of the streets of Williamsburg.a No member was more distinguished for stern opposi- tion to the plan than Archibald Cary, the venerable speaker of the Senate. He had introduced the re- solutions of May 15, declaring Virginia to be free and independent, and his unbending patriotism made him formidable to the enemies of freedom. Meeting Colonel Syme, the brother-in-law of Patrick Henry, in the lobby of the House, Mr. Cary is said to have addressed him in a voice of fierce feeling : "Sir, I am told that your brother wishes to be dictator; tell him from me that the day of his appointment shall be the day of his death ; for he shall feel my dagger in his heart be- fore the sunset of that day."b The spirit of antiquity was not lost: another Brutus was ready to stab another Cæsar in the person of his friend. But the sacrifice was not demanded. Colonel Syme replied, in amazement, that his brother had never given countenance to the scheme, or to any other that would endanger liberty. Only a short time before, Mr. Henry had been so much indisposed that he was obliged to go into the country, and he had not resumed his duties when the dictatorship was proposed. It is probable that he would have used all his influence against it. The project was soon abandoned, and, though it was renewed in 1781, and wanted only a few votes of success, yet, since the Revolution, the people of Virginia have
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