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THOMAS JEFFERSON: LAWYER FOR DEMOCRACY
Thomas Jefferson (1743-1826), the third President of the United States, was a Renaissance man. In an often-quoted comment, John F. Kennedy told at a dinner for Nobel Prize laureates, "I think this is the most extraordinary collection of talent, of human knowledge, that has ever been gathered together at the White House, with the possible exception of when Thomas Jefferson dined alone."
Jefferson received his formal education at the College of William and Mary. After graduating in 1762, Jefferson studied law with his friend and mentor George Wythe and was admitted to the Virginia bar in 1767. Jefferson's law practice continued until he gave up this practice in 1774. Until the end of his presidency, Jefferson then devoted himself to the public stage. During his entire career, however, he continued to take an interest in legal matters and approached issues with a law-trained mind. Aaron Burr was heard to say of him, "Our president is a lawyer and a great one, too."
Alexis de Tocqueville called Jefferson "the greatest democrat whom the democracy of America has as yet produced." It was natural for him to use the revision as an instrument to help create the democratic society that he favored. In particular, the revision presented the opportunity to destroy the economic base of the planter aristocracy that dominated Virginia life. The existing land law fostered the concentration of land ownership that Jefferson deplored. In addition, primogeniture, entailed estates, and the other common-law fundamentals were the worst possible foundations for American property law, for they destroyed the incentive that would induce men to settle and develop the expanding frontier. For Jefferson, the solution was a simple one: a "repeal of the law" authorizing entailed estates and primogeniture. This, Jefferson said, was essential for "forming a system by which every fibre would be eradicated of antient or future aristocracy; and a foundation laid for a government truly republican."
Jefferson's bills reformed land tenure. Under his lead, the English law gave way to a system in which land became readily transferable. Feudal land tenure was abolished, and the freehold established as the basic land title. Freedom of contract and the autonomy of private decision-making could capture the land, as it was soon to capture other areas of American law.
Perhaps the most celebrated of Jefferson's bills was his "Bill for Establishing Religious Freedom." It was also a product of Jefferson's conception of government and law. As the Declaration of Independence asserted the right of people to choose any form of government, so the bill for religious freedom asserted the right of a person to choose his beliefs free of compulsion. If government and law rest ultimately on consent, the same must be true of religious belief.
By now, freedom of belief has become so deeply ingrained that we tend to forget how far-reaching Jefferson's bill was in its day. When he sought "to establish religious freedom on the broadest bottom," heresy was still a capital crime at common law and a statute imposed imprisonment as a penalty "for not comprehending the mysteries of the trinity." Jefferson's bill swept away both state support and state coercion from the field of religion. Instead, it affirmed the right to have beliefs reign in the private kingdom of the mind.
Jefferson's revision also demonstrates his humanitarian legal approach—particularly to criminal law. As Jefferson explained it, his principal bill on the subject "proposes to proportion crimes and punishments." Jefferson sought to mitigate the harshness of the common law, which made all felonies punishable by death. He got the revisers to agree "that the punishment of death should be abolished except for treason and murder." For other felonies, Jefferson's bill substituted "hard labor in the public works."
Jefferson's humanitarian approach also extended to his day's greatest human violation—the law of slavery. As part of his revision, Jefferson prepared a bill "to emancipate all slaves born after passing the act." It was not, however, included among the bills presented by the revisers because, Jefferson wrote, "it was found that the public mind would not yet bear the proposition." In writing about his aborted slavery bill, Jefferson did, however, declare, "Nothing is more certainly written in the book of fate than that these people are to be free."
In history, of course, it is not Jefferson the lawyer or Jefferson the law reformer who is of significance, but the Jefferson who made his indelible mark on the new nation. For Jefferson, the step from law to politics was a short one. The knowledge he had acquired as a lawyer enabled him to play his part in history.
Jefferson's entry on the broader stage begins, of course, with the Declaration of Independence. That famous document was essentially a lawyer's brief to justify the separation from Britain, though written with unusual non lawyer-like elegance. To one interested in Jefferson as a jurist, the most interesting part of the Declaration is the statement that among men's "unalienable Rights" are "Life, Liberty and the pursuit of Happiness." This was a distinctly American version of John Locke's trilogy of "life, liberty and property," with which the Founders were familiar.
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