posed by some that the experiment was likely to result in the general decline of religion. They said, that if the support of the ministers of religion and the teachers of its doctrines are left to depend on voluntary contributions, these would commonly be inadequate and precarious: that although the fervour of new-born zeal may occasionally call forth sufficient liberality, it cannot be expected to prevail permanently against a feeling so steady and powerful with the mass of mankind, as the love of property: and that the ministers, worse and worse paid, would lessen in number, and deteriorate in quality, until they fell into insignificance and utter disgrace: that nothing but the resistless force of law can extract from the community the means of supporting an adequate and respectable ministry; and consequently, for religion to be permanent, it must be established and maintained by legal authority. Yet, contrary to this plausible reasoning, it is found that the emulation produced among the several sects, since they have all been put on an equal footing, has the effect of increasing their fervour, their sanctity, and exertions, which again produce a correspondent effect on the community. They all find, that it is only by being more orthodox expounders of the scriptures, by having more of the unction of piety, by more cogent reasoning, or more persuasive eloquence, that they can extend the influence of their particular sect, as well as increase their individual fame. There is, therefore, an energy, and an extensive diffusion of religious sentiment at this time, which was unknown before the Revolution, and it has been for some years on the increase. It is true, that the rewards of its ministers are more moderate than they probably would be if there was an establishment, and less than in any of the nations of Europe; but it is still found sufficient to keep up an adequate number of preachers, aided as it is by the additional zeal and piety which this state of things calls forth: and if many individuals now pay nothing, or very little towards the support of a minister, there are some who contribute more liberally than they might be required to do under an establish

ment.

There is another consequence to be observed from this entire

freedom of religion in the United States, and its dependance on the public favour for support. The emulation for popularity is not confined to the different sects, but even extends to the members of the same church; and their rivalships sometimes proceed so far as to divide the same sect in the same town into two parts, forming distinct congregations, under separate pastors, and assembling in separate churches. Occasionally, the seceders lay the foundation for a new sect, which being propagated by zeal and talent, comes in time to rival its parent in numbers and influence. It is for time to show how far this course of ramification will be extended, and what will be its remote effects on the cause of religion generally.

In October, of this year, Mr. Jefferson, having a regard to the present centre of population which was steadily travelling westwardly, as well as the exposure of Williamsburg to the incursions of an enemy, proposed to remove the seat of government sixty miles farther west, to Richmond. But this measure, like the preceding, was in advance of public opinion, and did not prevail until three years afterwards.

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CHAPTER V.

Mr. Jefferson proposes a general revision of the laws. Appointed one of the Committee. His objections to Codification. Distribution of the labour. Character of the Revisal. Edmund Pendleton. Criminal Law. James Madison. The right of Expatriation declared. System of Education. Jefferson's opinions on Slavery. Arguments for and against the practicability of Emancipation. His hospitable and humane attentions to the English prisoners quartered in Albemarle. Prevents their removal from the county.

1777-1779.

ONE of the first measures which Mr. Jefferson had proposed at this session, was a general revision of the laws, for the purpose of adapting them to the new form of government, as well as of introducing particular ameliorations. The plan was adopted by the house; and early in November, Edmund Pendleton, George Wythe, George Mason, Thomas L. Lee, were appointed a committee, with him, for its execution. The committee met at Fredericksburg, in January, 1777, to settle their plan of proceeding, and to distribute to each one his part of the work. The first question they discussed was, whether they would recommend the substitution of an entirely new code for the existing system of laws, or merely a modification of the latter, to suit the present circumstances of the country-a question which must recur, after certain intervals, in all free and civilized communities; and, in deciding which, men are reduced, as in many other matters of human policy, to a choice of evils.

Under the best digested and most cautiously worded code that the wit of man could devise, cases would soon arise in which the application of the rule of law would be uncertain; sometimes by reason of inherent uncertainty of language, and sometimes

because the legislatures did not foresee those cases, or deemed them too unimportant to be provided for. At other times, the case, though clearly within the words of the statute, is yet accompanied with such peculiar circumstances, that it seems doubtful, to those whose duty it is to administer the law, whether it is within the spirit and intention of the rule. And lastly, a case may appear to be comprehended within two different and incompatible rules, and the question is, which is to prevail. In all of these contingencies, we must find our way through the labyrinth of uncertainty, by arguments drawn from analogy, or considerations of public utility, or the presumed intention of the framer, in the application of which, there is great scope for difference of opinion. Hence has arisen the proverbial uncertainty of law, invariably incidental to all codes; and hence, the numerous judicial decisions by which the clear omissions of the Legislature are supplied, and their ambiguities explained. But every new adjudication makes a new rule of action, or right; and when, in process of time, these decisions have been greatly multiplied, a new evil arises from this very multiplicity, both from the nicety of the principles which they have settled, and from the difficulty of reconciling some of the rules with others on kindred subjects, so as to erect the knowledge of such multifarious rules into a separate science, which it requires the acutest intellect, and the study of a whole life to understand.

For the purposes of abridging this labour, of making the laws intelligible to a greater number, and of removing much of this uncertainty, it has been proposed to revise these judicial decisions from time to time; and after rejecting some, and amalgamating others, to embody them thus improved in the written, or statute law. This course, on which Mr. Bentham has conferred celebrity, under the name of codification, was proposed by the committee on this occasion; but a majority, including Mr. Jefferson, were opposed to it, so far as respects the unwritten law,

*

* On this question of codifying the common law, I learn from Mr. Madison, that Mr. Pendleton and Mr. Lee were strongly in favour of it. Mr. Wythe and Mr. Jefferson as decidedly opposed to it, and Mr. Mason gave the casting vote against it.

for reasons which must be deemed cogent, though they should fail to convince.

"To compose a new institute, they said, like those of Justinian and Bracton, or that of Blackstone, which was the model proposed by Mr. Pendleton, would be an arduous undertaking, of vast research, of great consideration and judgment; and when reduced to a text, every word of that text, from the imperfection of human language, and its incompetence to express distinctly every shade of idea, would become a subject of question and chicanery, until settled by repeated adjudications; that this would involve us for ages in litigation, and render property uncertain, until, like the statutes of old, every word had been tried and settled, by numerous decisions, and by new volumes of reports and commentaries; and that no one of us, probably, would undertake such a work, which, to be systematical, must be the work of one hand."

Two of the committee, Mr. Mason and Mr. Lee, having soon after resigned, on the ground that not being lawyers, they did not feel themselves fit for the undertaking, the other three members distributed the work among themselves in the following manner: The common law and the British statutes to the fourth year of James the First, (when Virginia first had a separate legislature,) were allotted to Mr. Jefferson: the same statutes, from that period to the present day, to Mr. Wythe; and the statute law of Virginia to Mr. Pendleton. As the most important part of the duty was assigned to Mr. Jefferson, it is an evidence of the high respect in which he was held by his associates, themselves esteemed as the best lawyers in Virginia, and two of the ablest men in the union.

As the law of descents, and that for the punishment of crimes fell within his province, he proposed to the committee to settle their leading principles before he entered on the duty of draughting the statutes; and having proposed to abolish the right of primogeniture, and to put females on the same footing as males, in inheritances, he was opposed by Mr. Pendleton, with whom partiality for the ancient law prevailed; and who, finding he could not preserve to the first born the whole rights he had VOL. I.-14