tinian 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. This last was the opinion of Mr. Wythe, Mr. Mason and myself. When we proceeded to the distribution of the work, Mr. Mason excused himself, as, being no lawyer, he felt himself unqualified for the work, and he resigned soon after. Mr. Lee excused himself on the same ground, and died indeed in a short time. The other two gentlemen, therefore, and myself divided the work among us. The common law and statutes to the 4. James 1. (when our separate legislature was established) were assigned to me; the British statutes, from that period to the present day, to Mr. Wythe; and the Virginia laws to Mr. Pendleton. As the law of Descents, and the Criminal law fell of course within my portion, I wished the committee to settle the leading principles of these, as a guide for me in framing them; and, with respect to the first, I proposed to abolish the law of primogeniture, and to make real estate descendible in parcenary to the next of kin, as personal property is, by the statute of distribution. Mr. Pendleton wished to preserve the right of primogeniture, but seeing at once that that could not prevail, he proposed we should adopt the Hebrew principle, and give a double portion to the elder son. I observed, that if the elder son could eat twice as much, or do double work, it might be a natural evidence of his right to a double portion; but being on par in his powers and wants, with his brothers and sisters, he should be on a par also in the partition of the patrimony; and such was the decision of the other members.
On the subject of the Criminal law, all were agreed, that the punishment of death should be abolished, except for treason and murder; and that, for other felonies, should be substituted hard labor in the public works, and in some cases, the Lex talionis. How this last revolting principle came to obtain our approbation, I do not remember. There remained, indeed, in our laws, a vestige of it in a single case of a slave; it was the English law, in the time of the Anglo-Saxons, copied probably from the Hebrew law of ‘an
