“Laws,” from Notes on the State of Virginia, Query XIV (1783)

Notes on the State of Virginia, Query XIV: Laws

Thomas Jefferson, 1781

The administration of justice and description of the laws?

…. Many of the laws which were in force during the monarchy being relative merely to that form
of government, or inculcating principles inconsistent with republicanism, the first assembly
which met after the establishment of the commonwealth appointed a committee to revise the
whole code, to reduce it into proper form and volume, and report it to the assembly. This work
has been executed by three gentlemen, and reported; but probably will not be taken up till a
restoration of peace shall leave to the legislature leisure to go through such a work.
The plan of the revisal was this. The common law of England, by which is meant, that part of the
English law which was anterior to the date of the oldest statutes extant, is made the basis of the
work. It was thought dangerous to attempt to reduce it to a text: it was therefore left to be
collected from the usual monuments of it. Necessary alterations in that, and so much of the
whole body of the British statutes, and of acts of assembly, as were thought proper to be retained,
were digested into 126 new acts, in which simplicity of stile was aimed at, as far as was safe. The
following are the most remarkable alterations proposed:

-To change the rules of descent, so as that the lands of any person dying intestate shall be
divisible equally among all his children, or other representatives, in equal degree.
-To make slaves distributable among the next of kin, as other moveables.
-To have all public expences, whether of the general treasury, or of a parish or county, (as for the
maintenance of the poor, building bridges, court-houses, &c.) supplied by assessments on the
citizens, in proportion to their property.
-To hire undertakers for keeping the public roads in repair, and indemnify individuals through
whose lands new roads shall be opened.
-To define with precision the rules whereby aliens should become citizens, and citizens make
themselves aliens.
-To establish religious freedom on the broadest bottom.
-To emancipate all slaves born after passing the act. The bill reported by the revisors does not
itself contain this proposition; but an amendment containing it was prepared, to be offered to the
legislature whenever the bill should be taken up, and further directing, that they should continue
with their parents to a certain age, then be brought up, at the public expence, to tillage, arts or
sciences, according to their geniusses, till the females should be eighteen, and the males twentyone
years of age, when they should be colonized to such place as the circumstances of the time,
should render most proper, sending them out with arms, implements of houshold and of the
handicraft arts, feeds, pairs of the useful domestic animals, &c. to declare them a free and
independant people, and extend to them our alliance and protection, till they shall have acquired
strength; and to send vessels at the same time to other parts of the world for an equal number of
white inhabitants; to induce whom to migrate hither, proper encouragements were to be
proposed. It will probably be asked, Why not retain and incorporate the blacks into the state, and
thus save the expence of supplying, by importation of white settlers, the vacancies they will
leave? Deep rooted prejudices entertained by the whites; ten thousand recollections, by the
blacks, of the injuries they have sustained; new provocations; the real distinctions which nature
has made; and many other circumstances, will divide us into parties, and produce convulsions
which will probably never end but in the extermination of the one or the other race. –To these
objections, which are political, may be added others, which are physical and moral. The first
difference which strikes us is that of colour. Whether the black of the negro resides in the
reticular membrane between the skin and scarf-skin, or in the scarf-skin itself; whether it
proceeds from the colour of the blood, the colour of the bile, or from that of some other
secretion, the difference is fixed in nature, and is as real as if its seat and cause were better
known to us. And is this difference of no importance? Is it not the foundation of a greater or less
share of beauty in the two races? Are not the fine mixtures of red and white, the expressions of
every passion by greater or less suffusions of colour in the one, preferable to that eternal
monotony, which reigns in the countenances, that immoveable veil of black which covers all the
emotions of the other race? Add to these, flowing hair, a more elegant symmetry of form, their
own judgment in favour of the whites, declared by their preference of them, as uniformly as is
the preference of the Oranootan for the black women over those of his own species. The
circumstance of superior beauty, is thought worthy attention in the propagation of our horses,
dogs, and other domestic animals; why not in that of man? Besides those of colour, figure, and
hair, there are other physical distinctions proving a difference of race. They have less hair on the
face and body. They secrete less by the kidnies, and more by the glands of the skin, which gives
them a very strong and disagreeable odour. This greater degree of transpiration renders them
more tolerant of heat, and less so of cold, than the whites. Perhaps too a difference of structure in
the pulmonary apparatus, which a late ingenious1 experimentalist has discovered to be the
principal regulator of animal heat, may have disabled them from extricating, in the act of
inspiration, so much of that fluid from the outer air, or obliged them in expiration, to part with
more of it. They seem to require less sleep. A black, after hard labour through the day, will be
induced by the slightest amusements to sit up till midnight, or later, though knowing he must be
out with the first dawn of the morning. They are at least as brave, and more adventuresome. But
this may perhaps proceed from a want of forethought, which prevents their seeing a danger till it
be present. When present, they do not go through it with more coolness or steadiness than the
whites. They are more ardent after their female: but love seems with them to be more an eager
desire, than a tender delicate mixture of sentiment and sensation. Their griefs are transient. Those
numberless afflictions, which render it doubtful whether heaven has given life to us in mercy or
in wrath, are less felt, and sooner forgotten with them. In general, their existence appears to
participate more of sensation than reflection. To this must be ascribed their disposition to sleep
when abstracted from their diversions, and unemployed in labour. An animal whose body is at
rest, and who does not reflect, must be disposed to sleep of course. Comparing them by their
faculties of memory, reason, and imagination, it appears to me, that in memory they are equal to
the whites; in reason much inferior, as I think one could scarcely be found capable of tracing and
comprehending the investigations of Euclid; and that in imagination they are dull, tasteless, and
anomalous. It would be unfair to follow them to Africa for this investigation. We will consider
them here, on the same stage with the whites, and where the facts are not apocryphal on which a
judgment is to be formed. It will be right to make great allowances for the difference of
condition, of education, of conversation, of the sphere in which they move. Many millions of
them have been brought to, and born in America. Most of them indeed have been confined to
tillage, to their own homes, and their own society: yet many have been so situated, that they
might have availed themselves of the conversation of their masters; many have been brought up
to the handicraft arts, and from that circumstance have always been associated with the whites.
Some have been liberally educated, and all have lived in countries where the arts and sciences
are cultivated to a considerable degree, and have had before their eyes samples of the best works
from abroad. The Indians, with no advantages of this kind, will often carve figures on their pipes
not destitute of design and merit. They will crayon out an animal, a plant, or a country, so as to
prove the existence of a germ in their minds which only wants cultivation. They astonish you
with strokes of the most sublime oratory; such as prove their reason and sentiment strong, their
imagination glowing and elevated. But never yet could I find that a black had uttered a thought
above the level of plain narration; never see even an elementary trait of painting or sculpture. In
music they are more generally gifted than the whites with accurate ears for tune and time, and
they have been found capable of imagining a small catch2. Whether they will be equal to the
composition of a more extensive run of melody, or of complicated harmony, is yet to be proved.
Misery is often the parent of the most affecting touches in poetry. — Among the blacks is misery
enough, God knows, but no poetry. Love is the peculiar estrum of the poet. Their love is ardent,
but it kindles the senses only, not the imagination. Religion indeed has produced a Phyllis
Whately; but it could not produce a poet. The compositions published under her name are below
the dignity of criticism. The heroes of the Dunciad are to her, as Hercules to the author of that
poem. Ignatius Sancho has approached nearer to merit in composition; yet his letters do more
honour to the heart than the head. They breathe the purest effusions of friendship and general
philanthropy, and shew how great a degree of the latter may be compounded with strong
religious zeal. He is often happy in the turn of his compliments, and his stile is easy and familiar,
except when he affects a Shandean fabrication of words. But his imagination is wild and
extravagant, escapes incessantly from every restraint of reason and taste, and, in the course of its
vagaries, leaves a tract of thought as incoherent and eccentric, as is the course of a meteor
through the sky. His subjects should often have led him to a process of sober reasoning: yet we
find him always substituting sentiment for demonstration. Upon the whole, though we admit him
to the first place among those of his own colour who have presented themselves to the public
judgment, yet when we compare him with the writers of the race among whom he lived, and
particularly with the epistolary class, in which he has taken his own stand, we are compelled to
enroll him at the bottom of the column. This criticism supposes the letters published under his
name to be genuine, and to have received amendment from no other hand; points which would
not be of easy investigation. The improvement of the blacks in body and mind, in the first
instance of their mixture with the whites, has been observed by every one, and proves that their
inferiority is not the effect merely of their condition of life. We know that among the Romans,
about the Augustan age especially, the condition of their slaves was much more deplorable than
that of the blacks on the continent of America. The two sexes were confined in separate
apartments, because to raise a child cost the master more than to buy one. Cato, for a very
restricted indulgence to his slaves in this particular3, took from them a certain price. But in this
country the slaves multiply as fast as the free inhabitants. Their situation and manners place the
commerce between the two sexes almost without restraint. — The same Cato, on a principle of
economy, always sold his sick and superannuated slaves. He gives it as a standing precept to a
master visiting his farm, to sell his old oxen, old waggons, old tools, old and diseased servants,
and every thing else become useless. ’Vendat boves vetulos, plaustrum vetus, ferramenta vetera,
servum senem, servum morbosum, & si quid aliud supersit vendat.’ Cato de re rustica. c. 2. The
American slaves cannot enumerate this among the injuries and insults they receive. It was the
common practice to expose in the island of AEsculapius, in the Tyber, diseased slaves, whose
cure was like to become tedious. The Emperor Claudius, by an edict, gave freedom to such of
them as should recover, and first declared, that if any person chose to kill rather than to expose
them, it should be deemed homicide. The exposing them is a crime of which no instance has
existed with us; and were it to be followed by death, it would be punished capitally. We are told
of a certain Vedius Pollio, who, in the presence of Augustus, would have given a slave as food to
his fish, for having broken a glass. With the Romans, the regular method of taking the evidence
of their slaves was under torture. Here it has been thought better never to resort to their evidence.
When a master was murdered, all his slaves, in the same house, or within hearing, were
condemned to death. Here punishment falls on the guilty only, and as precise proof is required
against him as against a freeman. Yet notwithstanding these and other discouraging
circumstances among the Romans, their slaves were often their rarest artists. They excelled too
in science, insomuch as to be usually employed as tutors to their master’s children. Epictetus,
Terence, and Phaedrus, were slaves. But they were of the race of whites. It is not their condition
then, but nature, which has produced the distinction. –Whether further observation will or will
not verify the conjecture, that nature has been less bountiful to them in the endowments of the
head, I believe that in those of the heart she will be found to have done them justice. That
disposition to theft with which they have been branded, must be ascribed to their situation, and
not to any depravity of the moral sense. The man, in whose favour no laws of property exist,
probably feels himself less bound to respect those made in favour of others. When arguing for
ourselves, we lay it down as a fundamental, that laws, to be just, must give a reciprocation of
right: that, without this, they are mere arbitrary rules of conduct, founded in force, and not in
conscience: and it is a problem which I give to the master to solve, whether the religious precepts
against the violation of property were not framed for him as well as his slave? And whether the
slave may not as justifiably take a little from one, who has taken all from him, as he may slay
one who would slay him? That a change in the relations in which a man is placed should change
his ideas of moral right and wrong, is neither new, nor peculiar to the colour of the blacks.
Homer tells us it was so 2600 years ago.

‘Emisy, gaz t’ aretes apoainylai eyrythpa Zeys Aneros, eyt, an min kata dolion emaz elesin.
Od. 17. 323.

Jove fix’d it certain, that whatever day Makes man a slave, takes half his worth away.
But the slaves of which Homer speaks were whites. Notwithstanding these considerations which
must weaken their respect for the laws of property, we find among them numerous instances of
the most rigid integrity, and as many as among their better instructed masters, of benevolence,
gratitude, and unshaken fidelity. –The opinion, that they are inferior in the faculties of reason
and imagination, must be hazarded with great diffidence. To justify a general conclusion,
requires many observations, even where the subject may be submitted to the Anatomical knife, to
Optical glasses, to analysis by fire, or by solvents. How much more then where it is a faculty, not
a substance, we are examining; where it eludes the research of all the senses; where the
conditions of its existence are various and variously combined; where the effects of those which
are present or absent bid defiance to calculation; let me add too, as a circumstance of great
tenderness, where our conclusion would degrade a whole race of men from the rank in the scale
of beings which their Creator may perhaps have given them. To our reproach it must be said, that
though for a century and a half we have had under our eyes the races of black and of red men,
they have never yet been viewed by us as subjects of natural history. I advance it therefore as a
suspicion only, that the blacks, whether originally a distinct race, or made distinct by time and
circumstances, are inferior to the whites in the endowments both of body and mind. It is not
against experience to suppose, that different species of the same genus, or varieties of the same
species, may possess different qualifications. Will not a lover of natural history then, one who
views the gradations in all the races of animals with the eye of philosophy, excuse an effort to
keep those in the department of man as distinct as nature has formed them? This unfortunate
difference of colour, and perhaps of faculty, is a powerful obstacle to the emancipation of these
people. Many of their advocates, while they wish to vindicate the liberty of human nature, are
anxious also to preserve its dignity and beauty. Some of these, embarrassed by the question
’What further is to be done with them?’ join themselves in opposition with those who are
actuated by sordid avarice only. Among the Romans emancipation required but one effort. The
slave, when made free, might mix with, without staining the blood of his master. But with us a
second is necessary, unknown to history. When freed, he is to be removed beyond the reach of

1. Crawford.
2. The instrument proper to them is the Banjar, which they brought hither from Africa, and which is the
original of the guitar, its chords being precisely the four lower chords of the guitar.
3. {Tos dolos etaxen orismeno nomismatos omilein tais therapainisin.}– Plutarch. Cato.

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