LAW AND THOMAS JEFFERSON

by Richard E. Dixon

The talents of Thomas Jefferson reached into so many fields it is easy to overlook that he was educated as a lawyer and that was the activity of his early years. After he completed his studies at William and Mary in 1762, he returned to Charlottesville. During his stay there be prepared for the study of law by reading Coke on Littleton. Possibly that was suggested to him by George Wythe who became his preceptor on his return to Williamsburg. Wythe guided Jefferson’s legal studies for two years, for that time quite a long period, and in 1776, he was admitted to the General Court.

Law in Colonial Virginia

In the mid 1600's, Virginia struggled with the role of lawyers. Someone could call himself a lawyer even if he had little or no training. Perhaps an educated man would try to assist another. Often, parties would try to represent themselves. This lack of procedural and legal knowledge in the litigants led to disruption and confusion of the court. It was required by statute in 1643 that lawyers had to be licensed and sworn in by the court. Two years later the practice of law was declared illegal. Eleven years after that, the prohibition against lawyers was repealed. Problems in the court returned and two years later they were again forbidden to practice. In 1680, the first licensing act was passed, but that was repealed two years later. Much of this discontent arose from the lack of regulation because anyone could declare himself a lawyer. Finally, in 1715, all lawyers were required to be approved by the Governor and Council of State. An examination for admission was required for all Virginia lawyers except those who had graduated from the Inns of Court or had been admitted to practice by the General Court.

The Council of State was the upper house of the colonial assembly. The governor together with the Council of State served as the General Court, one of the three superior courts, along with the high court of chancery and the court of the Admiralty. The General Court was both a court of equity and a court of common law and accepted appeals from the inferior courts. From the General Court, an appeal could be made to the Court of Appeals, composed of the justices of the three superior courts.

A knowledge of law in the English tradition was the mark of an educated gentleman. Many of the Virginia gentry followed this tradition and tried to acquire some knowledge of legal principles and procedures. From this planter class, the governor appointed the magistrates (justices of the peace) to the county courts. They served without compensation and made possible the expansion of the county court system in colonial Virginia.

Becoming a Lawyer

The most common methods of studying law in the mid-eighteenth century were as an apprentice under a practicing lawyer or as an independent reading for the law. Although reading could be done independently, it did require dedication on the part of the candidate. Jefferson had a low opinion of the apprenticeship, even though he had the good fortune to serve his under George Wythe. Jefferson was concerned that an apprenticeship was often under an indifferent teacher and the apprentice was assigned menial and repetitive tasks. A number of letters show Jefferson over the years recommending a course of reading for aspiring lawyers.

Lawyers in colonial Virginia could not practice in both the General Court and in the county or inferior courts. Generally, a year's practice in the County Court was required before one could apply to practice in the General Court. There was an exception for barristers educated in England, who could practice in both. By far the most prestigious legal education was the English Inns of Court. The middle Temple was a favorite of Virginians. At the time Jefferson practiced, about twenty who had been educated at the Inns of Court were members of the Virginia bar. They elevated the competence of the bar and the confidence of the people in lawyers.

Jefferson was directly admitted to the General Court. He did take the examination, which was required by statute, to practice in the county courts. There is no evidence that he ever had a practice in the county courts, although some earlier writers assumed that he did.

There were few real law books at the time, so many lawyers practiced common placing, which was a form of note taking. The lawyer started with a large blank book and headed the pages with major divisions of the common law in alphabetical order. Then, various points of importance could be added. Slowly the lawyer created his personal digest. When Blackstone’s Commentaries were published in Philadelphia in 1771, it provided the lawyer a book that could be carried in his saddlebags as he rode the circuit.

Jefferson the Lawyer

Jefferson's entry into the practice of law in 1767 appeared promising. As the only lawyer in Western Virginia authorized to practice in the General Court, he immediately attracted clients. However, the slowness in the court docket caused many years of delay in resolving the cases. For example, 16 cases originated by Jefferson in his first year of practice were among those turned over to Edmund Randolph when Jefferson quit his law practice in 1774.

In order to be successful it was necessary to keep cases in various stages. More than half of Jefferson's practice consisted of caveats and petitions for lapsed land. Land grants were patents issued by the governor for unappropriated land to an applicant who had obtained the required survey and paid any tax owing. Caveats were challenges to a patent on the basis that the challenger had a better claim or that there was a procedural defect in the patent. Once the patent was granted, the holder of the patent was required to pay quitrents to the crown and to improve the property. If the patent holder failed to perform these conditions, a petition for lapsed land could be filed in which the petitioner would offer to pay the arrears and take over the patent.

Jefferson believed that the inheritance of his wife from his father-in-law’s death in 1773 made him a wealthy man. This is likely the reason that Jefferson gave up his law practice in early 1774, although he did retain his cases on caveats. As a result of the escalating tension with Great Britain, the General Court was closed in late 1774 and never reopened. Jefferson's legal talents would now be used in other ways.

Advocate of Rights

Jefferson’s career as a lawyer lasted about eight years, but in his subsequent activities, his organization of thought, and his reliance on reason and logic to reach his conclusions all reflect his legal training. Soon after Jefferson turned over his legal practice, he wrote a Summary View of the Rights of British America, which was essentially a legal argument that Americans were entitled to all of the civil rights of British citizens which parliament had gained through the long struggle over the divine right of kings. Jefferson asserted that the crown could not dissolve the legislature, could not suspend laws enacted by the colonies, and could not maintain standing armies in time of peace on colonial land. Rights were not derived from government but government was the servant of the people. It was this legalistic pattern of thought that made him the logical choice to write the Declaration of Independence that set forth in measured terms the right of America to dissolve its bands with Great Britain.

Court Reporter

There was no written record of the General Court before the revolution. Jefferson began making summaries of his cases and also cases in which he did not participate. He obtained notes of cases from other practitioners before the General Court. Even after he stopped practice, he continued to revise his notes. These cases now make up volume 1 of the Virginia reports.

Constitutional View

After the break with England, the fifth Virginia Convention met in Williamsburg in 1776 to adopt a new constitution. Jefferson could not participate because he was in Philadelphia as a delegate to the Second Continental Congress. In Jefferson’s view, there was no legal foundation for a constitution because that had not been the purpose of the convention. He took the position that a constitution could not be created by a legislature, as this was a power that resided solely in the people.

He was concerned that the power that should be reserved to the executive and judicial branches could be assumed by the legislature. If the legislature could adopt a constitution, Jefferson reasoned that they could also amend it and create even greater power for that body. He pointed out that the right to vote was unequal among those who were fighting the war and that suffrage favored the Tidewater region, which made it possible for that section to dominate the legislature. He tried unsuccessfully for a constitutional convention to address these issues, but it was only after his death in 1830 that a convention was held to adopt a new constitution. Jefferson discussed in detail his concerns over the 1776 Constitution in his Notes on Virginia.

Manual of Parliamentary practice

Thomas Jefferson became President of the Senate by a virtue of his election to the vice presidency in 1796. As the presiding officer of the Senate, he wanted to follow a known system of rules. He prepared for his own guidance a manual of parliamentary law, following the practice of the English Parliament. He solicited the opinions of George Wythe and Edmund Pendleton, but was mainly guided by his own research.

It is regarded as the best statement of Parliamentary Law as it existed at that time. Jefferson recognized that it might be inaccurate in some minor forms and in some instances incomplete, but he felt that he provided a sketch which those who followed him could correct and fill out. Two important areas of law Jefferson addressed in the manual were treaties and impeachment.

Revisal of the Laws

After the Declaration of Independence, the General Assembly appointed a committee to revise Virginia’s laws. Among the committee members, George Wythe contributed much, but the bulk of this laborious work fell to Jefferson. It was decided that the English common law would not be reduced to writing but would continue to be observed by its usual monuments. All of the statutes would be reviewed and reorganized so they would accord with the new Republican spirit.

The revisers submitted 126 bills in 1779. By this time, Jefferson had become governor and some of these bills were quickly passed, but others lingered on the Assembly’s docket. One of the most important was the Bill concerning Religious Freedom which was not passed until 1786 under the guidance of James Madison, while Jefferson was Minister to France. It remains a part of the Virginia code today. Another was a Bill for the More General Defusion of Knowledge in which Jefferson laid out a system of education from grammar schools to the university level. Jefferson would not live to see his bill for public education approved, but in 1819, he did get his new university.

Legal Educator

The Chair of Law at William & Mary, created in 1779 by the Board of Visitors at the urging of Thomas Jefferson, was the first established in the United States. The first occupant of the Chair was George Wythe, in whose offices studied Thomas Jefferson, John Marshall, James Monroe and Henry Clay. Wythe, a leader in the struggle for independence, was a signer of the Declaration of Independence and a member of the Federal Constitutional Convention. He would implement many of Jefferson’s concepts for legal education. Wythe became a powerful force in the development of American legal education. During the decade of his professorship, he developed a comprehensive course of law study which emphasized the acquisition of practical skills in such areas as legislative drafting and oral advocacy.

As early as 1790, Jefferson had outlined a system of state education which would provide males the opportunity for schooling from the earliest grades through the university level. His ideas were never supported by the General Assembly, so in his declining years, he conceived of building a college in Charlottesville. Jefferson designed an academical village for this new Central College and along with James Madison and James Monroe, he set the cornerstone for the beginning of Pavilion VII.

At the same time, there was a movement in the General Assembly to establish a new state university. The Board of visitors for Central College offered to donate the site in Charlottesville. A meeting of the committee to select the site met August 1, 1818 at Rockfish gap and in January 1819, Central College became the University of Virginia.

The design of the “academical village” featured a wide expanse of lawn, flanked by two parallel rows of buildings. Behind these rows were the ranges of additional student rooms. It was suggested to Jefferson that he provide a dominant building as a focal point on the open north end of the two rows. There he placed his magnificent Rotunda, a domed structure modeled on the Pantheon in Rome. Some in the legislature opposed this ornamental architecture because of its cost. In 1976, the American Institute of Architects deemed Jefferson’s design of the university the proudest achievement of American architecture in the past 200 years.

By 1824, the school was ready for the appointment of a faculty. Francis Walker Gilmore was a committee of one to recruit a faculty in England and Scotland. He met with little enthusiasm from the British academics both because of the low salary and the unknown certainty of life at a new university. Miraculously, he returned home with all the positions filled except the Professor of Law.

Jefferson’s plan for the new law school was to teach common and statute law, equity, federal law, civil and mercantile law, jurisprudence and international law, and the principles of government and political science. He intended it to be a two-year course but students could cram all the courses into one year.

It was of great concern to the Board of visitors that the law professor hold the Republican political view of the general principles of liberty and the rights of man. Jefferson was content to let the professors pick their textbooks, except the law professor. He was to conform to Jefferson’s list to avoid any political bias toward federalism. At the admonition of James Madison, Jefferson finally agreed to moderate the list to avoid framing a political creed and raising an issue that the law school would be controlled by political orthodoxy and excite a prejudice against the room university which might cause parents to withdraw their sons. The first professor at the law school was John Tayloe Lomax. Jefferson lived to see Lomax’s appointment, but died the day before he joined the faculty on July 5, 1826.

Epilogue

Thomas Jefferson’s thought and philosophy provided the foundation of American law and justice. At the time the founding fathers brought the nation into being with the adoption of the Constitution, they did not free those in slavery, and suffrage was unequal. It was Jefferson’s vision of human dignity by which the country found its way to equality for all its citizens. Without his legal concepts and articulation of individual constitutional rights there would today be a different America.

Sources: Thomas Jefferson and the Law, by Edward Dumbauld, University of Oklahoma press; Thomas Jefferson Lawyer, by Frank L. Dewey, University Press of Virginia; Thomas Jefferson: Notes on the State of Virginia, by Merrill D. Peterson, The Library of America; Justice in Colonial Virginia, by Oliver Perry Chitwood, The Lawbook Exchange