Thomas Jefferson and the Practice of Law

Thomas Jefferson's life in the law has been generally overlooked, despite the years he devoted to its practice and the impact it had on the American Revolution (1775–1783) and subsequent generations. Admitted to the Virginia bar in 1765 after more than two years of reading law under the tutelage of George Wythe, Jefferson practiced before the General Court in Williamsburg, specializing in land cases. By the time Edmund Randolph took over his practice in 1774, he had handled more than 900 matters, with clients ranging from common farmers and indentured servants to the most powerful and wealthy of the colony's planter elite. In Bolling v. Bolling (1771) and Blair v. Blair (1772) he became involved in the private, often sensational affairs of the gentry, while in Howell v. Netherland (1770) he attempted to win the freedom of a mixed-race man he believed to be illegally bound to servitude. Jefferson was influenced by an English tradition distinguishing between common law—a tradition preserved by courts through precedent—and natural law, or rights ordained by God. In this way, his legal training left its mark on his revolutionary writings, in particular the "Summary View of the Rights of British America" (1774) and the Declaration of Independence (1776). Following the Revolution, he used these principles to campaign for legal reform in Virginia, drafting, among many other bills, the Virginia Statute for Establishing Religious Freedom (1786). MORE...

 

Legal Training

Jefferson attended the College of William and Mary, in Williamsburg, from 1760 to 1762. After ending his studies, he was back in Williamsburg by 1763, this time to study law. No formal law schools existed at the time; instead, students spent years serving as apprentices or clerks to established attorneys. Jefferson studied under George Wythe, with whom he had formed a close bond while in college. An eminent lawyer with liberal views on religion, slavery, and republicanism, Wythe saw little benefit in the drudgery of traditional legal training and preferred to have his students read law reports and foundational English legal writings, such as those by Sir Edward Coke. (Jefferson later came to strongly dislike the commentaries of Sir William Blackstone, insisting that American law was being degraded by the increasing use of that work, at the expense of Coke, in the training of lawyers.) Wythe paired this academic foundation with the practical training necessary to understand how Virginia landowners managed their own affairs and those of the colony. He accomplished the latter by sending his students to observe cases being argued before the General Court and by supervising moot-court exercises.

These two aspects of Jefferson's legal training—the study of law as political philosophy and as practical grounding for the management of plantation property—served Jefferson's gentry clients well, but they also shaped Jefferson's intellectual and political roles in nation-building. In the decades to come, the law played a critical role in Jefferson's project to create, as he wrote in his Autobiography (1821), a "system by which every fibre would be eradicated of antient or future aristocracy; and a foundation laid for a government truly republican."

Upon being examined late in 1765 by a panel of three men—Wythe, Jefferson's cousin John Randolph, and Robert Carter Nicholas—Jefferson qualified to practice before Virginia's county courts. He chose to practice at the General Court, however, a bar that required another year's wait for admission. He attended his first session in October 1767, and in so doing became the youngest member of an elite group. In his eight years of practice, only ten other lawyers qualified to practice before the General Court.

Building a Practice

With the exception of a few men trained in Britain's Inns of Court and admitted as barristers there, Virginia lawyers were prohibited from practicing in both the county courts and the General Court. This meant that General Court lawyers like Jefferson could specialize in representing clients with business in the capital, where the court convened. Additionally, of those lawyers admitted to practice in Williamsburg, Jefferson, in Albemarle County, resided the farthest west, making him well positioned to serve clients at the forefront of westward migration and investment.

As a result, Jefferson's practice grew rapidly, with his first cases involving the quieting of titles. A procedure by which clients sought to be assured that their land titles were legitimate, quieting required someone to research government records to check that the title had been properly registered and its quitrents paid. The Crown collected a fee called a quitrent on lands patented in its colonies, but in Virginia, it was common practice for buyers, and especially land speculators, to avoid paying the quitrent by taking out a warrant of survey on a piece of land and holding it indefinitely, without a patent. Other owners allowed their patents to lapse without the land-use requirements having been met, leaving titles open to challenge and even grant to another claimant.

Jefferson generally tasked such research to several agents in Williamsburg, but on those occasions when actual title challenges occurred, he dutifully represented his clients before a judge. Still, a large practice built on transactions allowed Jefferson, not a skilled public speaker, to spend less time inside a courtroom than other lawyers, and to instead exploit his meticulous attention to detail and his deep knowledge of English law. Soon becoming an expert in the highly complex world of estate law, Jefferson was especially active in drawing wills and in offering counsel to other attorneys on difficult matters related to wills and trusts.

In order to build his practice, Jefferson acquainted himself with county-court lawyers by regularly traveling to western counties on those days when local attorneys gathered to do their courts' business. Occasionally he had the good fortune to be introduced to the local bar by someone such as John Madison Sr., the clerk of the Augusta County Court, whose son Jefferson had met while a student. As the Virginia colony's westernmost county, Augusta lay over the Blue Ridge Mountains in the Shenandoah Valley and extended as far west as the Mississippi River. By the end of 1768, his first full year of practice, Jefferson had visited eight other western counties as well as several to the east of Albemarle.

Meanwhile, Jefferson's knowledge of the personnel and workings of legal institutions in Williamsburg became a lucrative source of clients, and he soon was able to build a network of attorneys who brought him business from dozens of counties across the colony. Although it took him five days on horseback, he made the 120-mile trip to Williamsburg three times a year—for the April and October sessions of the General Court and for the June meeting of the governor's Council. His collaborations there with such men as Wythe, Thomson Mason, Edmund Pendleton, John Blair Jr., and John Randolph enhanced his reputation and, moreover, provided contact with the leading attorneys of the county bar, which, in turn, brought him more business. With such an advantage, Jefferson was able to gradually reduce his travel and limit his regular trips beyond Albemarle to Williamsburg and Staunton, the seat of Augusta County.

Land and the Law

Jefferson's involvement in the land business, which included his own dealings, represented the largest number of cases that he handled. For Jefferson, the frontier became central to his vision of a successful republic: it provided yeoman freeholders enough land for their subsistence, but land ownership also provided the common interests by which such men banded together as citizens of a single nation. Yet what Jefferson saw of the land market offered troubling reminders of the elitist quality of society and politics, and how that pattern was being replicated on the frontier. Wealthy landowners in the eastern Tidewater were granted vast tracts of land by the colony, and ambitious speculators assembled dozens of grants into baronial holdings. Jefferson represented many of these men and provided necessary counsel for their land acquisitions. Yet at the same time—especially after an embarrassing venture in support of speculators backfired—he also represented many small landholders. In fact, such clients made up the vast majority of those whose land claims he handled; more than four out of five clients dealt in small to middling tracts of 400 acres or less.

Jefferson's practice, therefore, was hardly a simple matter of preserving the status quo. When he asserted that "Those who labour in the earth are the chosen people of God," he was not just reflecting on a way of life; he was articulating his belief that the personal autonomy of the freeholder was essential to the creation of the "government truly republican" that he envisioned. By this way of thinking, land served as more than an economic commodity. It also had social and political purpose. Its accumulation by a few families threatened to reproduce the world of rural England, with a small number of landed aristocrats and a large body of renters. It was a situation that concerned many in Virginia—including some of its wealthiest citizens, who recognized that such an unwieldy accumulation of property prevented land from circulating and being put into productive use.

The use of primogeniture and entail epitomized this system. These feudal English property rules, respectively, kept land in the hands of a single heir (the eldest son) and protected it from answering any debts accumulated by spendthrift offspring; the result, Jefferson complained in his Autobiography, was the "accumulation and perpetuation of wealth, in select families." Far preferable, he believed, was the distribution of lands "appropriated in small quantities." To circumvent these rules required a skilled lawyer such as Jefferson, who could disencumber large blocks of land for clients. His efforts against primogeniture and entail did not end in the courtroom, and after the American colonies declared independence he drafted the statutes that helped to abolish the system—entail in 1776 and primogeniture in 1785.

Three Cases

By handling land cases, Jefferson witnessed the tension between the interests of wealthy landowners and small landholders. Jefferson himself, however, moved in Virginia's upper echelons of society and politics. And by dint of this social prestige, coupled with his legal acumen, he was entrusted with a variety of often-delicate cases, two of which put him in the middle of warring elite families.

In Bolling v. Bolling (1771), Jefferson argued against his old teacher, George Wythe. The case involved a dispute between two brothers, Robert Bolling and Archibald Bolling, over the will of their brother Edward Bolling, who had died the year before. Already connected to the family—Jefferson's sister Mary Jefferson Bolling was married to a fourth brother, John Bolling—Jefferson agreed on September 13, 1771, to represent the defendant, Robert Bolling. Jefferson's and Wythe's arguments, preserved in a 239-page handwritten manuscript, were often highly technical and for that reason were presented to a qualified arbitrator rather than to the lay members of the General Court. The prevailing party in Bolling v. Bolling is not known, but the case has been hailed for the erudition of its arguments and for what it reveals about the law in Jefferson's time. According to the historian Bernard Schwartz, the case "strikingly demonstrates that American law was still essentially the common law" and that "with regard to both substance and technique, Westminster Hall and the Virginia General Court were not as far apart as they might have seemed."

Two years later, Jefferson became involved in another family dispute, this one centered on a sensational scandal. The marriage between Dr. James Blair, of Williamsburg, and Catherine "Kitty" Eustace, of New York, consecrated in 1771, dissolved quickly amid rumors of Blair's "incompetence" and an affair between Kitty Blair and the governor, John Murray, earl of Dunmore. Sometime around November 25, 1772, when he made note of the case in his account book, Jefferson was asked to investigate the possibility of divorce, for which there was no legal precedent in Virginia. Jefferson took notes outlining the history of divorce and how legislation granting it might read, but such a bill was never presented to the General Assembly.

Then, on December 26, Dr. Blair died, and, in apparent contradiction to Virginia law, his will left the widow no portion of the estate. In Blair v. Blair—an appeal before the General Court after the James City County Court denied Kitty Blair's claim—Virginia's attorney general, John Randolph (acting privately), and Patrick Henry argued on behalf of the widow, while Edmund Pendleton and James Mercer argued on behalf of the estate. Jefferson also was retained by the estate but did not participate in oral arguments. He later provided a thorough account of the arguments made and the case's outcome, in favor of Kitty Blair.

Jefferson did not always represent elite interests, however. As a student, he had closely examined all the major precedents concerning the status of slavery in English law and concluded that it had no basis in either common law or statute. In the course of his practice, he became known as an advocate for those whose enslavement he could challenge in novel ways based on precedent and statutory interpretation. The most famous of these cases was Howell v. Netherland (1770). Samuel Howell was a mixed-race indentured servant whose grandmother had been a free white woman; his grandfather was black. While Virginia law prescribed that the offspring of white women and black men be made servants until they reached the age of thirty-one, their children's children were held to no such commitment. (If a child's mother was black, then the law had long been clear: her children were slaves.)

"Now it is plain," Jefferson maintained, applying a strict construction to the law, "the plaintiff does not come within the description of the act." Without positive law, no legal means existed to enforce the enslavement, and natural law thus governed: "under that law we are all born free." Howell lost his case, but Jefferson charged him no fee, a practice he followed in six other suits for freedom.

Law and Liberties

Jefferson's interest in natural law, as opposed to common law or the statutes written by legislatures, dated back to his early legal studies. While under Wythe's tutelage, Jefferson had meticulously "commonplaced," or summarized, the reports of English judges. In doing so, he found himself attracted to the writings of a particular group of judges who had been active during the tumultuous seventeenth century. Their decisions provided Jefferson with precedents and principles for his developing philosophy of rights. Although Jefferson's philosophy is commonly seen as one of natural rights assured, as he wrote in the Declaration of Independence, by "the Laws of Nature and of Nature's God," he actually drew far more heavily on an English "whig" tradition of resistance to arbitrary power. Jefferson later wrote about how, when he wrote summaries, he "sometimes mix[ed] my own reflections on the subject … [T]hey were written at a time of life when I was bold in the pursuit of knolege, never fearing to follow truth and reason to whatever results they led, & bearding every authority which stood in their way."

Among the authorities who influenced him most were Sir Edward Coke, who championed the guarantees of the Magna Carta (1215) in Parliament's opposition to the Crown early in the seventeenth century, and Sir John Holt, chief justice of the King's Bench from 1689 to 1710, whom Jefferson called "the greatest lawyer England ever had, except Coke." From them he assembled his own principles of government based on personal freedom and limited government. Jefferson's "Summary View of the Rights of British America," written as instructions for Virginia's delegation to the First Continental Congress in July 1774, rejected the feudal origins of American rights. Instead, he drew heavily on principles of land law to argue that the colonists held their rights, like their property, in freehold and beyond royal demands. His Declaration of Independence presented the liberties of Americans as held in trust by the Crown. In violating those liberties, King George III forfeited his role as trustee.

Though he had seen the importance of judicial opposition to tyranny, Jefferson remained skeptical of broad judicial authority. As such, he firmly believed that judges must adhere to the will of the people by interpreting laws faithfully, according to a strict construction of their language. He also sharply criticized Virginia's first constitution for its lack of a bill of rights, believing that it left the power of the General Assembly dangerously unrestrained.

Law Reform

Jefferson returned to Virginia shortly after the Continental Congress declared independence in 1776, convinced, as he wrote in his Autobiography, "that our whole code must be reviewed, adapted to our republican form of government." Sharply critical of Virginia's laws for including "vicious points which urgently required reformation," he accepted appointment to the General Assembly's committee to revise its code. "Lawcraft," he believed, had worked with "priestcraft" to hobble the rights of Virginians, and the broad agenda of reform that he produced—a huge body of work that takes up most of the second volume of the Papers of Thomas Jefferson—embodied the ideas he had nurtured while practicing law.

Many years later, also in his Autobiography, he highlighted three particular reforms. First, he lauded the abolition of primogeniture and entail, which loosened the stranglehold of wealth and power held by a few families. He also singled out the Virginia Statute for Establishing Religious Freedom. In 1777, Jefferson drafted a bill "for establishing religious freedom," which affirmed the rights of Virginians to choose their faiths without coercion and which separated church and state; it was not passed until 1786. Finally, Jefferson noted a third major legal project, a system of widespread public education designed to produce a well-informed citizenry, which he believed was critical to the republic. Although it failed, Jefferson did reform Virginia's only college. Acting in his role as a member of the Board of Visitors, he purged the College of William and Mary of its chair in theology in 1779. He replaced it with a chair in "Law & Police" and appointed his mentor George Wythe as its first holder.

It would be another four decades before Jefferson established the University of Virginia. But he would then include among the school's faculty a professor of law, whose mission was a summary of Jefferson's own career: to use the law to contemplate the proper republican principles of government and to inform how those principles are enacted in the real world.

Time Line

  • 1760–1762 - Thomas Jefferson studies at the College of William and Mary in Williamsburg.
  • 1763–1765 - Thomas Jefferson studies law in Williamsburg under the tutelage of George Wythe.
  • Late 1765 - Thomas Jefferson passes the Virginia bar exam after being examined by a panel of three men: George Wythe, Jefferson's cousin John Randolph, and Robert Carter Nicholas.
  • February 12, 1767 - Sometime before this date Thomas Jefferson is admitted to the bar of the General Court of Virginia.
  • August 18–September 4, 1767 - During this time, Thomas Jefferson travels to county courts in Augusta, Bedford, Amherst, Orange, Culpeper, Frederick, and Fauquier counties.
  • October 1767 - Thomas Jefferson attends his first session of the General Court of Virginia. He is tasked with sixty-eight cases.
  • 1770–1771 - Robert Bolling's youngest brother, Archibald Bolling, sues him over the inheritance of their brother Edward Bolling, who died in 1770. Archibald's attorney is George Wythe, Robert's is Thomas Jefferson. Jefferson's argument remains one of the best examples of his abilities as a lawyer.
  • April 1770 - In Howell v. Netherland, a case argued before the General Court of Virginia, Thomas Jefferson represents Samuel Howell, a mixed-race man being held as an indentured servant because his grandmother was white and his grandfather black. Jefferson loses the case.
  • November 1773 - In Blair v. Blair, a case argued before the General Court of Virginia, Thomas Jefferson helps to represent the estate of Dr. James Blair against a claim by his widow, Catherine "Kitty" Eustace Blair. The court finds in favor of Mrs. Blair.
  • August 1774 - Thomas Jefferson drafts instructions intended for the Virginia delegates to the First Continental Congress. These are later published in Williamsburg as A Summary View of the Rights of British America, and are reprinted in Philadelphia and England.
  • August 1774 - Thomas Jefferson retires from his law practice, turning it over to Edmund Randolph.
  • October 1776 - The General Assembly passes "An Act declaring tenants of lands or slaves in taille to hold the same in fee simple" abolishing entail, which protected land from answering any debts accumulated by spendthrift offspring.
  • Autumn 1776 - Thomas Jefferson is appointed to the General Assembly's Committee of Revisors, tasked with revising the state code.
  • June 12, 1779 - Because Thomas Jefferson had since been elected governor, John Harvie introduces Jefferson's bill "for establishing religious freedom" to the House of Delegates. It is eventually tabled.
  • October 1785 - The General Assembly passes "An act for regulating conveyances," abolishing primogeniture, which automatically passed inheritances to the eldest son.
  • January 19, 1786 - "An Act for establishing religious Freedom" is signed into law in Virginia.

References

Further Reading
Brewer, Holly. "Entailing Aristocracy in Colonial Virginia: 'Ancient Feudal Restraints' and Revolutionary Reform." William and Mary Quarterly, 3d ser., 54 (1997): 307–346.
Dewey, Frank L. Thomas Jefferson, Lawyer. Charlottesville: University Press of Virginia, 1986.
Dumbauld, Edward. Thomas Jefferson and the Law. Norman: University of Oklahoma Press, 1978.
Kern, Susan. The Jeffersons at Shadwell. New Haven, Connecticut: Yale University Press, 2010.
Konig, David Thomas. "Jurisprudence and Social Policy in the New Republic," in David Thomas Konig, ed., Devising Liberty: Preserving and Creating Freedom in the New American Republic. Stanford, California: Stanford University Press, 1995.
Konig, David Thomas. "Legal Fictions and the Rule(s) of Law: The Jeffersonian Critique of Common Law Adjudication," in Bruce H. Mann and Christopher L. Tomlins, eds., The Many Legalities of Early America. Chapel Hill: University of North Carolina Press, 2001.
Malone, Dumas. Jefferson the Virginian. Boston, Massachusetts: Little, Brown and Company, 1948.
McCleskey, Turk. "Rich Land, Poor Prospects: Real Estate and the Formation of a Social Elite in Augusta County, Virginia, 1738–1770." Virginia Magazine of History and Biography 98 (1990): 449–486.
Roeber, A. G. "Faithful Magistrates and Republican Lawyers": Creators of Virginia's Legal Culture, 1680–1810. Chapel Hill: University of North Carolina Press, 1981.
Schwartz, Bernard, ed. Thomas Jefferson and Bolling v. Bolling: Law and the Legal Profession in Pre-Revolutionary America. San Marino, California: The Huntington Library, 1997.
Waterman, Julius S. "Thomas Jefferson and Blackstone's Commentaries." Illinois Law Review 27 (1933).
Voorhis, Manning C. "Crown Versus Council in the Virginia Land Policy." William and Mary Quarterly, 3rd ser., 3 (1946): 499–514.
Wilson, Douglas L. "Thomas Jefferson's Early Notebooks." William and Mary Quarterly, 3rd ser., 42 (1985): 433–452.
Cite This Entry
  • APA Citation:

    Konig, D. T. Thomas Jefferson and the Practice of Law. (2012, December 20). In Encyclopedia Virginia. Retrieved from http://www.EncyclopediaVirginia.org/Jefferson_Thomas_and_the_Practice_of_Law.

  • MLA Citation:

    Konig, David T. "Thomas Jefferson and the Practice of Law." Encyclopedia Virginia. Virginia Foundation for the Humanities, 20 Dec. 2012. Web. READ_DATE.

First published: December 12, 2012 | Last modified: December 20, 2012


Contributed by David T. Konig, professor of history and professor of law at Washington University in Saint Louis. He is co-editor of The Legal Commonplace Book of Thomas Jefferson, forthcoming in The Papers of Thomas Jefferson, second series.