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1771 - to thomas adams 1 - Thomas Jefferson, The Works, vol. 2 (1771-1779) 
The Works of Thomas Jefferson, Federal Edition (New York and London, G.P. Putnam’s Sons, 1904-5). Vol. 2.
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to thomas adams1
Monticello, Feb. 20, 1771.
—Not expecting to have the pleasure of seeing you again before you leave the country, I inclose you an order on the inspectors at Shockoe for two hhds of tobo. which I consign to you, and give you also the trouble of shipping as I am too far from the spot to do it myself. They are to be laid out in the purchase of the articles on the back hereof. You will observe that part of these articles (such as are licensed by the association) are to be sent at any event. Another part (being prohibited) are only to be sent if the tea act should be repealed before you get home; if it is not, you will observe a third class to be sent instead of those which are prohibited. I am not without expectation that the repeal may take place. I believe the parliament want nothing but a colorable motive to adopt this measure. The conduct of our brethren of New York affords them this. You will observe by my invoice that I have supposed my tobo. to clear me £50. sterl. per hhd; should it be less, dock the invoice of such articles as you think I may get in the country.—In consequence of your recommendation I wrote to Waller last June for £45 sterl. worth of books inclosing him a bill of exchange to that amount. Having written to Benson Pearson for another parcel of nearly the same amount, I directed him to purchase them also of Waller. I acquainted both of the necessity of my situation brought on by the unlucky loss of my library, and pressed them most earnestly to lose not a day in sending them; yet I have heard not a tittle from either gentlemen.—I mentioned to you that I had become one of several securities for a gentleman of my acquaintance lately engaged in trade. I hope and indeed hear he is doing very well; I would not therefore take any step to wound his credit; but as far as it can possibly be done without affecting that, I must beg you to have me secured. It can surely do no mischief to see that his remittances are placed to the credit of the money for which we stand engaged, and not of any new importations of goods made afterwards. I must rely entirely on your friendly assistance in the matter, which I assure you gives me concern, as should my friend prove unsuccessful, (and ill foe. may render any person unsuccessful,) it might sweep away the whole of my little fortune.—I must once more trouble you for my friend Ogilvie. The commissary promised to write in his favor to the bishop by Neeks. I did not see his letter, and with this gentleman I believe no farther than I see. I wrote by the same opportunity to Ogilvie and apprised him of the commissary’s engagement. Should your route to the ship be thro’ Wms.burgh I would trouble you to know whether he has in truth written or not. The inclosed letter to Ogilvie you will please to deliver with our most earnest advice that he lose not a day in coming over.—One farther favor and I am done; to search the Herald’s office for the arms of my family. I have what I have been told were the family arms, but on what authority I know not. It is possible there may be none. If so, I would with your assistance become a purchaser, having Sterne’s word for it that a coat of arms may be purchased as cheap as any other coat.—The things I have desired you to purchase for me I would beg you to hasten, particularly the Clavichord, which I have directed to be purchased in Hamburgh, because they are better made there, and much cheaper. Leave me a line before you go away with instructions how to direct to you.
to james ogilvie1
Monticello, Feb. 20, 1771.
—I wrote you a line from Wmsburgh last October; but lest that may have miscarried I take this oppty of repeating what was material in that. On receipt of your letter (and, oh shame! of your only letter) of March 28, 1770, which came not to hand till August we took proper measures for prevailing on the commissary to withdraw his opposition. But lest you should be uneasy in your situation in the mean time I directed mr T. Adams by the means of his partners Perkins and Brown to let you know they would answer any calls from you. In this your friend mr Walker insisted on joining me. In October I transmitted to the commissary a certificate of your conduct in life, on which he promised to write in your favor by Neeks, and tho I did not see the letter I expect he did. By the same oppty I wrote to you inclosing a duplicate of the certificate of which you might avail yourself if the commissary should fail us again. About the same time I wrote from Wmsburgh to a gentleman of the vestry in Orange to secure for you a vacancy which had happened in that parish by the death of Martin. I have had no answer, but the parish is still vacant, which gives me hopes it is kept for you. Mr Maury incumbent in Fredericksville parish (of which I was when you were here) has a tempting offer from another quarter. I know not whether he will accept of it. If he should we shall do for you all that can be done in your absence. But for god’s sake let not that be a moment longer than is of absolute necessity. Your settlement here would make your friends happy, & I think would be agreeable to yourself. Your Dulcinea is in health. Her brother T. Strachan is settled with Y. Walker for life. Another reason for her and you to wish for a residence with us. He is wishing to take to himself a wife; and nothing obstructs it but the unfeeling temper of a parent who delays, perhaps refuses to approve her daughter’s choice. I too am in that way; and have still greater difficulties to encounter not from the forwardness of parents, nor perhaps want of feeling in the fair one, but from other causes as unpliable to my wishes as these. Since you left us I was unlucky enough to lose the house in which we lived, and in which all it’s contents were consumed. A very few books, two or three beds &c were with difficulty saved from the flames. I have lately removed to the mountain from whence this is dated, and with which you are not unacquainted. I have here but one room, which, like the cobblers, serves me for parlour for kitchen and hall. I may add, for bedchamber and study too. My friends sometimes take a temperate dinner with me and then retire to look for beds elsewhere. I have hope however of getting more elbow room this summer. But be this as may happen, whether my tenements be great or small, homely or elegant they will always receive you with a hearty welcome. If any thing should obstruct your setting out immediately for Virginia I would beg the favor of you to send the things I asked of you to purchase by some careful captain coming on James river. Such of them as were for my buildings, or for house keeping I am particularly in want of. Nothing material occurs relative to the health and fortunes of your friends here. They are well in both as far as I can recollect them. I conclude my epistle with every wish for your felicity which friendship can inspire. Adieu and believe me to be yours sincerely,
“inscription for an african slave”1
Shores there are, bless’d shores for us remain, And favor’d isles with golden fruitage crown’s Where tufted flow’rets paint the verdant plain, Where ev’ry breeze shall med’cine every wound. There the stern tyrant that embitters life, Shall vainly suppliant, spread his asking hand; There shall we view the billow’s raging strife, Aid the kind breast, and waft his boat to land.
agreement with john randolph2
April 11th, 1771.
It is agreed between John Randolph, Esq., of the city of Williamsburg, and Thomas Jefferson, of the County of Albemarle, that in case the said John shall survive the said Thomas, that the Exr’s or Adm’rs of the said Thomas shall deliver to the said John 800 pounds sterling of the books of the said Thomas, to be chosen by the said John or if not books sufficient, the deficiency to be made up in money: And in case the said Thomas should survive the said John, that the Executors of the said John shall deliver to the said Thomas the violin which the said John brought with him into Virginia, together with all his music composed for the violin, or in lieu thereof, if destroyed by any accident, 60 pounds sterling worth of books of the said John, to be chosen by the said Thomas. In witness thereof the said John and Thomas have hereunto subscribed their names and affixed their seals the day and year above written.
John Randolph (L. S.)
Th. Jefferson (L. S.)
Sealed and delivered in presence of:
P. Henry, Jr.
Virginia, S. S.
At the general court held at the capital on the 12th day of April, 1771, this agreement was acknowledged by John Randolph and Thomas Jefferson, parties thereto, and ordered to be recorded. Teste,
Ben. Waller, C. C. Cur.
to inglis and long, merchants at portsmouth1
Williamsburgh, May 11, 1771.
—Yours of the eighth of April I have received, & since that your favour of five pounds as counsel for Messrs. Cunningham & Nisbett at the suit of Jamieson & Taylor. Before we can regularly proceed to take any proofs in the cause it will be necessary for Messrs. Cunningham & Nisbett to send us their answer denying or admitting the several charges in the bill as far as their own knowledge enables them. For this purpose a copy of the bill should be transmitted them. The answer must be sworn to before some justice of the peace, & that he is such must be certified under the seal of their province. As soon as I shall receive the answer immediate care shall be taken to send a commission for the examination of any witnesses Messrs. Cunningham & Nisbett may choose to call on, with directions what matters it will most avail them to prove. This I shall be the better enabled to do when their answer shall have apprised me of the nature of their defence.
With respect to the part yourselves are to act, it will be very plain, as you are not concerned in interest. You must declare what effects of Cunningham & Nisbett you have in your hands, and submit them to the direction of the Court. If you will be pleased by way of letter to state these matters to me I will put them into the usual form of answers & return them to be sworn to. Any further instructions you may think proper to give in this matter shall be diligently attended to by Gent., your very hble servt,
to thomas adams1
Monticello, June 1, 1771.
—As it was somewhat doubtful when you left the country how far my little invoice delivered you might be complied with till we should know the fate of the association,2 I desired you to withhold purchasing the things till you should hear farther from me. The day appointed for the meeting of the associates is not yet arrived; however from the universal sense of those who are likely to attend, it seems reduced to a certainty that the restrictions will be taken off everything but the dutied articles. I will therefore venture to desire that branch of my invoice may be complied with in which were some shoes and other prohibited articles; since if contrary to our expectations the restrictions should be continued, I can store, or otherwise dispose of them as our committees please. I must alter one article in the invoice. I wrote therein for a Clavichord. I have since seen a Forte-piano and am charmed with it. Send me this instrument then instead of the Clavichord: let the case be of fine mahogany, solid, not veneered, the compass from Double G. to F. in alt, a plenty of spare strings; and the workmanship of the whole very handsome and worthy the acceptance of a lady for whom I intend it. I must add also ½ doz pr India cotton stockings for myself @ 10/ sterl pr pair, ½ doz pr best white silk do.; and a large umbrella with brass ribs, covered with green silk, and neatly finished. By this change of the Clavichord into a Forte-piano and addition of the other things, I shall be brought in debt to you, to discharge which I will ship you of the first tobacco I get to the warehouse in the fall. I expect by that time, and also from year to year afterwards, I must send you an invoice, with tobacco, somewhat enlarged, as I have it in prospect to become more regularly a pater-familias.—I desired the favor of you to procure me an architect. I must repeat the request earnestly, and that you will send him in as soon as you can.—I shall conclude with one petition: that you send me the articles contained in my invoice and written for above as soon as you receive this, as I suppose they may be bought ready made; and particularly the Forte-piano, for which I shall be very impatient. By this means I may get them in Octob., which will prevent my being obliged to purchase as I must do if they do not come in time.
to robert skipwith
Monticello, Aug. 3, 1771.
I sat down with a design of executing your request to form a catalogue of books to the amount of about 50 lib. sterl. But could by no means satisfy myself with any partial choice I could make. Thinking therefore it might be as agreeable to you I have framed such a general collection as I think you would wish and might in time find convenient to procure. Out of this you will chuse for yourself to the amount you mentioned for the present year and may hereafter as shall be convenient proceed in completing the whole. A view of the second column in this catalogue would I suppose extort a smile from the face of gravity. Peace to its wisdom! Let me not awaken it. A little attention however to the nature of the human mind evinces that the entertainments of fiction are useful as well as pleasant. That they are pleasant when well written every person feels who reads. But wherein is its utility asks the reverend sage, big with the notion that nothing can be useful but the learned lumber of Greek and Roman reading with which his head is stored?
I answer, everything is useful which contributes to fix in the principles and practices of virtue. When any original act of charity or of gratitude, for instance, is presented either to our sight or imagination, we are deeply impressed with its beauty and feel a strong desire in ourselves of doing charitable and grateful acts also. On the contrary when we see or read of any atrocious deed, we are disgusted with it’s deformity, and conceive an abhorence of vice. Now every emotion of this kind is an exercise of our virtuous dispositions, and dispositions of the mind, like limbs of the body acquire strength by exercise. But exercise produces habit, and in the instance of which we speak the exercise being of the moral feelings produces a habit of thinking and acting virtuously. We never reflect whether the story we read be truth or fiction. If the painting be lively, and a tolerable picture of nature, we are thrown into a reverie, from which if we awaken it is the fault of the writer. I appeal to every reader of feeling and sentiment whether the fictitious murther of Duncan by Macbeth in Shakespeare does not excite in him as great a horror of villany, as the real one of Henry IV. by Ravaillac as related by Davila? And whether the fidelity of Nelson and generosity of Blandford in Marmontel do not dilate his breast and elevate his sentiments as much as any similar incident which real history can furnish? Does he not in fact feel himself a better man while reading them, and privately covenant to copy the fair example? We neither know nor care whether Lawrence Sterne really went to France, whether he was there accosted by the Franciscan, at first rebuked him unkindly, and then gave him a peace offering: or whether the whole be not fiction. In either case we equally are sorrowful at the rebuke, and secretly resolve we will never do so: we are pleased with the subsequent atonement, and view with emulation a soul candidly acknowleging it’s fault and making a just reparation. Considering history as a moral exercise, her lessons would be too infrequent if confined to real life. Of those recorded by historians few incidents have been attended with such circumstances as to excite in any high degree this sympathetic emotion of virtue. We are therefore wisely framed to be as warmly interested for a fictitious as for a real personage. The field of imagination is thus laid open to our use and lessons may be formed to illustrate and carry home to the heart every moral rule of life. Thus a lively and lasting sense of filial duty is more effectually impressed on the mind of a son or daughter by reading King Lear, than by all the dry volumes of ethics, and divinity that ever were written. This is my idea of well written Romance, of Tragedy, Comedy and Epic poetry.—If you are fond of speculation the books under the head of Criticism will afford you much pleasure. Of Politics and Trade I have given you a few only of the best books, as you would probably chuse to be not unacquainted with those commercial principles which bring wealth into our country, and the constitutional security we have for the enjoiment of that wealth. In Law I mention a few systematical books, as a knowledge of the minutiae of that science is not necessary for a private gentleman. In Religion History, Natural philosophy, I have followed the same plan in general,—But whence the necessity of this collection? Come to the new Rowanty, from which you may reach your hand to a library formed on a more extensive plan. Separated from each other but a few paces the possessions of each would be open to the other. A spring centrically situated might be the scene of every evening’s joy. There we should talk over the lessons of the day, or lose them in music, chess or the merriments of our family companions. The heart thus lightened our pillows would be soft, and health and long life would attend the happy scene. Come then and bring our dear Tibby with you, the first in your affections, and second in mine. Offer prayers for me too at that shrine to which tho’ absent I pray continual devotions.1 In every scheme of happiness she is placed in the foreground of the picture, as the principal figure. Take that away, and it is no picture for me. Bear my affections to Wintipock clothed in the warmest expressions of sincerity; and to yourself be every human felicity. Adieu.
argument in godwinet al. vs.lunan1
I was of counsel for the libellant also, and though I thought the ecclesiastical jurisdiction of the court established beyond a doubt, yet I conceived it did not follow thence that they might deprive the defendant of his parish, because visitation and deprivation are no parts of the office of an ecclesiastical judge. To prove this it was proposed,
To enquire into the first establishment of Christian churches in Great Britain;
To develope their several kinds and constitutions;
To see who is entrusted with their care and visitation; and to apply the principles which this enquiry would evolve to the parochial churches of our own country.
On the first introduction of Christianity into Great Britain, it is certain there were no parochial divisions. The bishops and their clergy lived in common, and occasionally sent out itinerant preachers, to those places where the people seemed disposed to receive them. But when the number of converts became considerable, and the tract of country they occupied extensive, this occasional mission was found inconvenient, and a division into districts or parishes took place. This is supposed by some to have been in the time of Archbishop Honorius, anno 636. But Mr. Selden and others think it of later origin. It is not pretended that this division was then made, as it now remains, into small parishes: it is probable that at first they were few and large, till time and the progress of conversion, made it necessary to divide and subdivide them. 3 Burn’s Eccles. Law, 58.
The King, his great Lords and thanes, for the accommodation of their tenants, having built churches on their manors, obliged their tenants to pay tythes to these churches: for though a law of Ethelwolf, so early as the year 854 (Hume’s History of England) had given tythes to the clergy, yet it left the people at liberty to pay them where and to whom they pleased; a grievance to the drones among the ecclesiastics, not entirely rectified till a law of King Edgar, c. 1. obliged them to pay them to the mother church of the parish. “Debtur omnes decimæ primariæ, ecclesiæ, and quam parochia pertinet.” 1. Bl. 112. The church being situated then on the soil of the lord, being built by himself, and the tythes paid from his tenements and tenants, gave him a natural right to employ any clerk for the celebration of divine service, whom he should choose. 1 Inst. 119. b. The same circumstances would give him a right to remove the clerk whenever he should become deficient in duty. Hence arose the rights of donation, or the disposition of church livings, by laymen. 1 Bl. 111. Gibs. 819. Watson c. 15.
In process of time, however, an encroachment was made by the bishops, on some of the lay patrons who possessed churches of the donative kind. They insisted, and in some instances prevailed on the patron, to give the bishop a right of previously examining the person to whom the church was to be given. For this purpose the patron was to present him to the bishop, who on examination admitted him able, and instituted him into the cure, or refused him altogether; and a maxim was soon established of “once presentative and always presentative.” 1 Inst. 344. a. This innovation is said by Selden, to have been introduced by that pious saint and martyr Thomas à Becket, in the time of Henry II. Seld. tyth. c. 12. But Lord Coke, seems to think that it was not done till the time of Pope Innocent III., which was in the reign of our John. 3. Inst. 201. And thus was introduced a second class of churches distinguished by the name of presentatives.
Of the residue of the parishes, after the donatives and presentatives were taken off, the bishops and clergy still retained the care, and appointed persons to officiate at the several churches. These churches, they doubtless, sometimes built themselves, and sometimes procured leave to convert the old British temples into Christian churches, and so may, in some degree be considered as the founders of them. 3. Bum. E. L. 59. Light as this foundation was, it gave them some color for collating the clerk, and this having been exercised by them from the infancy of Christianity, has acquired the force of immemorial custom, and given reality to the right now known by the name of collation. So that at present, churches are comprehended as Dr. Blackstone rightly says, under the classes of donatives, presentatives and collatives. 2 Bl. 22. Donatives are those churches originally founded and endowed by the crown or lay subject, or perhaps by both, which lie merely in the gift of the lay patron, whose deed of donation is an absolute investiture of the clerk, without presentation to the bishop or any other ceremony. Presentatives are churches originally founded in the same manner by a lay patron, and which, though at first, donatives, were by encroachment by the bishops subjected to presentation to them for their examination, admission, or refusal. The reasons of refusal, are, however, examinable by the temporal courts on an action of Quare impedit, if brought by the patron. 2 Inst. 631. Collatives are those remnants of the old parishes, left after the King and great men had taken off their manors, the right of collating to which, is by immemorial custom, vested in the bishop. Of the donative and presentative church, the lay founder is patron; a right acquired by the acts of foundation (fundi-datio) and endowment (donatio). Of the collative church the bishop is patron, because he is quasi the founder of that, having built it himself, or been principally instrumental in procuring it to be built, or applied to the purpose of religion. See 1 Bl. 111, 112, 113. 2 Bl. 21, 22, 23, 25. 3 Inst. 201.
Having investigated the nature of the several kinds of churches and shewn the origin of the rights of patronage, it remains to enquire what these rights are. 1st. Nomination, or the right of naming the clerk. 2nd. Donation or induction, which is the investing with actual possession. 3rd. Visitation, which is the superintending his conduct after he is in possession. The latter is the object of the present enquiry; as it includes deprivation; which is only one of the higher degrees of punishment exercisable by the visitor. So said my Lord Holt, in the case of the Bishop of St Davids v. Lucy. Salk. 134. “By allowing his power to visit, all is admitted; for he that may visit, may deprive as well as censure, these being but several degrees of ecclesiastical punishment, and by the 26 Henry VIII., and the 1 El. c. 1. the only power given to the ecclesiastical commissioners was to visit without a word of deprivation, yet they were always allowed a power to deprive.” So that the visitor of the church, whoever he be, is the person empowered to deprive the incumbent. With respect therefore to the right of visitation, as it is one of the rights of patronage arising from foundation and endowment, so it will, in general, be found coupled with them. Thus in collative churches, the bishop alone visits, he having, in some degree, been the founder of the church. In a donative church, the patron is visitor, because he originally founded the church, and so its constitution is the work of his hands; a point which I shall presently incontestably prove. In presentative churches indeed, the right of continuing to superintend, or in other words to visit, seems to have been encroached on, when the right of approving the nominee was first acquired to the bishop. 1 Mod. 12. It might, perhaps, be thought that if the bishop was the proper person to judge of the fitness of the clerk, he would be the proper person to judge also how long that fitness continued. But whatever may be the cause why the presentative church varies, in this instance, from the general rule, “that the right of visitation follows the foundation,” is immaterial, because it will be shown that our churches are donatives, to the visitation of which, therefore, I shall confine my future enquiries. Lord Holt, in his argument in the case of Philips v. Bury, Holt’s Rep. 724, expressed himself in these words: “But private and particular corporations for charity, founded and endowed by private persons, are subject to the private government of those who erect them; and therefore if there be no visitor appointed by the founder, I am of opinion that the law doth appoint the founder and his heirs to be visitors. The founder and his heirs are patrons, and not to be guided by the common known laws of the kingdom. But such corporations are, as to their own affairs, to be governed by the particular laws and constitutions assigned by the founder. It was said, the common law doth not appoint a visitation at all; I am of another opinion; the law doth, in defect of a particular appointment, make the founder visitor; if he is silent during his own time, the right will descend to his heirs. Yelv. 65. and 2 Cro. 60. So 8 Edward III., 70 and 8 Ass. 29. So that patronage and visitation are necessary consequences, one upon another. For this visitorial power was not introduced by any canons or constitutions ecclesiastical; it is an appointment of law; it arises from the property which the founder had in the lands assigned to support the charity; and so he is the author of the charity; the law gives him and his heirs a visitorial power, that is, an authority to inspect their actions, and regulate their behavior, as he pleaseth. Indeed, where the poor are not incorporated, according to the case in 10 Co. there is no visitorial power; because the interest of the revenue is not vested in them; but where they are incorporated, there, to prevent all perverting of the charity, there is by law a visitorial power; and it being a creature of the founder’s own, it is reason he and his heirs should have that power, unless they please to devolve it elsewhere.
“In our old books, deprived by patron and deprived by visitor, are all one. For it is a benefit that naturally springs out of foundation; and it is in his power to transfer it to another.” And so in 2 Jur. Eccles. 473. by Twisten. “Whenever there is a cure of souls, the church is visitable, either by the bishop if it belongs to him; if to a layman he must make delegates, if to the King my Lord Keeper does it.” And he cites 1 Mod. 12. And the author adds, “I presume the Judge, in this case, is to be understood as to the man’s making delegates, to mean if he finds himself unequal to his duty, then he is bound in conscience to delegate commissioners qualified for it; but not that he may not do it himself, though he be really able; for it is to be observed, if his commissioners do otherwise than he is convinced in his conscience they ought, he may still undertake and determine it himself, according to conscience, and as he may so take it up. I conceive, no reason can be shewn, why he cannot do it in the first instance; for his commissioners are but in aid of him, and I conceive, in this case, his power, though more absolute, may be compared to the Ordinary’s authority, who, though ordinarily he judges by his Chancellor, or other official; yet he may sit himself and determine matters within his limited jurisdiction, if he pleases, and have, as is to be presumed, abilities.” Moore, 765. Fayrechild v. Gayre. “Pasch. 3. Jac. En bank le roy, sur un special verdict suit adjudged que l’incumbent dun benefice donative poit resigner a son patron, et que il esteant del foundacon le Patron est auxi de son Visitation et correction, et l’ordinary n’ada ove luy. 8 Ass. 29. and 32.” S. C. Cro. Jac. 63. S. P. l Mod. 90. Dean of Ferne’s case, Dav. 44. a. 46. b. 47. a. And by Co. Lit. 344. a. “A church parochial may be Donative and exempt from all ordinary jurisdiction, and the incumbent may resign to the patron, and not to the Ordinary; neither can the Ordinary Visit, but the Patron by commissioners to be appointed by him.” So that this much is certain, that in donative churches the right of visitation is in the Patron. And here we must note that in the case of the King’s donatives, he does not visit in person, but may make commissioners for that purpose; and if he does not make them his Chancellor acts ex officio for him. Thus by F. N. B. 42 a. “The King may have a prohibition directed to the Ordinary, that he shall not visit the hospitals, which are of the King’s foundation, or of the foundation of his predecessors; because that the Chancellor of England ought to visit them and no other. And so is it of the King’s or his progenitors free chapels, no Ordinary shall visit them, but the Chancellor of England.” S. P. Dav. 26. b. “If the King doth found a church Hospital, or free chapel, donative, he may exempt the same from ordinary jurisdiction, and then his Chancellor shall visit the same. Nay, if the King do found the same without any special exemption, the Ordinary is not, but the King’s Chancellor, to visit the same.” Co. Lit. 344. a. But “the King may, if he pleases, make a special commission.” 6. H. 4. 14. Dy. 273. As in the case of Waldron v. Pollard, Dyer 273, the King gave a commission to visit his donative. So in the case of the college of William and Mary in this country, which is of royal foundation, the King did by his charter appoint commissioners for the purpose of visitation, and prescribed the rules for keeping up a perpetual succession of them. So that it appears that the patron of a donative is visitor of right, and where the King is patron, he may appoint commissioners, but if he does not, his Chancellor visits ex officio for him. And indeed, it is worthy the attention of this court, that if as an ecclesiastical court they should take on them to visit our clergy, and it should appear they are not visitable for any ecclesiastical court, the error is not excused by the law in this as in other cases, where a judge happens to be mistaken in his opinion, but he incurs the penalties of a premunire, which are a forfeiture of property, outlawry, and perpetual imprisonment of the person. These were first introduced by the stat. 16. R. 2. for drawing causes of temporal cognisance (and all cases of advowsons are tryable by the temporal courts only) “in curiam Romanam vel alibi.” The word “alibi” has been construed to extend to any ecclesiastical court. Thus in 12 Co. 38. “For as it was resolved by all the Justices, Pasch. 4 Jac. reg. est contra coronam et dignitatem regiam, when any ecclesiastical Judge doth usurp upon the temporal law, because, as in all those writs it appeareth, the interest or cause of the subject is drawn ad aliud examen, that is, when the subject ought to have his cause ended by the common law, where unto by birthright he is inheritable, he is drawn in aliud examen (viz) to be decided and determined by the ecclesiastical law; and this is truly said contra coronam et dignitatem regiam. And this appears by all the prohibitions (which are infinite) which have been directed to the high commissioners and others, after the said act. By 1 Eliz. a fortiori, he who offends in a premunire shall be said to offend contra coronam et dignitatem regiam. And this in effect answers to all the aforesaid objections; but yet other particular answers shall be given to every of them.
As to the third, although the court by force of high commission is the court of the King, yet their proceedings are ecclesiastical: and for this, if they usurp upon the temporal law, this is the same offence which was before the said act of 10 Eliz. For this was the end of all the antient acts, that the temporal law shall not in any manner be emblemished by any ecclesiastical proceedings.
As to the fourth, although it be a new court, yet the antient statutes extend to it within this word alibi, and divers new Bishopricks were erected in the time of Henry VIII., and yet there was never any question but that the antient acts of premunire, extended to them.” And in Bro. Abr. I find it expressly determined to be a premunire to call the incumbent of a donative before an ecclesiastical visitation. “Per aliquos benefice donative per le patron tantum est lay chose et levesque ne visitera, et ideo ned deprivera, et donque sil mella in ce il est in le case de premunire, et in ce case suit Barloo evesque de Bathe tempore. E. 6. Et suit arct de obteiner un pardon, eo que il avoit deprive le deane de Welles que suit un donative per letters patents le ray per acte de parlament ent sait, tamen 8. E. 3. supra ne adjudge. (8 Ass. p 29.”) Bro. Abr. Premunire 21. So that my conclusions from the premises, so far as necessary in the present question are, That donative churches, being originally founded by a lay-patron, and being still subject to his donation, are likewise subject to his sole visitation, the ecclesiastical judge having no right to intermeddle: and again, That if the patron be a subject, he may visit either in person or by commissioners; if he be the King, he may also appoint commissioners, but if he make no appointment, the Chancellor visits ex officio.
Our last enquiry is, To what class belong the churches of our government? are they collatives? are they presentatives? or are they donatives? Collatives they are not: because these were described as having existed immemorially, and been all that time disposed of by the bishop, which immemorial usage had confirmed the right in law. But our parishes pretend to no immemorial existence, for that would make them older than our government itself: they have been erected by acts of Assembly long within memory, to be found by any one who will recur to our records. Nor was there ever an instance of collation to one of them by a bishop. “If an act of Parliament make a particular district a particular separate distinct parish, the jurisdiction of the ecclesiastical court does not attach upon it, for this clear reason, that it was not such immemorially. Parish St. John, Clerkenwell, 9 Geo. 2. B. R.” 2 Jur. Eccl. 348. Neither are our churches of the presentative kind because of these the distinguishing characteristic is, that, though of lay foundation, yet the bishop has acquired a right of having the clerk presented for his examination, admission or refusal. But no such right was ever pretended in our churches, nor was there ever an instance in them of presentation to a bishop. But they are of the donative kind. These were said, 1st. to have been founded by laymen; 2nd. not to be subject to presentation to a bishop; 3rd. to lie purely in the gift of the patron. Now let us see if these characters are not applicable to our churches. The act of Assembly, 1661, c. 1. directs that a church shall be built in every parish, and c. 2. that the expenses of building and keeping it in repair, provision for the poor, and maintenance of the minister, be levied on the people of the parish; c. 3. that there be a glebe laid out in every parish, and a convenient house built for the abode of the minister; and that a maintenance be provided for him, which shall be worth eighty pounds per annum, besides his perquisites and glebe. The act of 1696, c. 11. instead of the £80 given the minister by that of 1661, c. 3. gives him sixteen thousand pounds of tobacco, besides his perquisites, to be levied “by the vestries in their respective parishes”; and lastly the act of 1748, c. 34. (old ed’ns) sect. 1. confirms this salary to them, to be levied by the vestry “upon the titheable persons in their respective parishes”; and sect. 5. directs that the glebe shall contain two hundred acres of good land at the least, and that there shall be built on it a convenient mansion house, kitchen, barn, stable, dairy, meat house, cornhouse, and garden, the expenses of which are to be levied on the titheable persons in the parishes. Here it might be thought prima facie perhaps, that as the parishioners pay the money they are the founders and endowers. But a little attention will, I think, discover this to be a fallacy. The parishioners are indeed the persons ordered to furnish the money; but the erection of the parishes and gift of the salary, or in other words, the foundation and endowment of the church, is the act of the legislature. They direct an officer to levy sixteen thousand pounds of tobacco on the titheable persons of the parish. As soon as it is in his hands it is the money of the public, and then they order him to pay it to the minister of the parish, just as if the founder of a church should endow it with an annuity which, by his charter of donation, should be payable out of his manor of Blackacre; his tenants of that manor, though they furnished the money, would hardly be considered as the founders and endowers. Suppose the legislature, instead of directing the payment of these expenses to be levied on the particular parishioners, had ordered the payment out of the public purse; the foundation and endowment would surely then have been their acts: but what difference can it produce, if instead of ordering the parish collector to pay the money to the treasurer, and him again to the minister, they adopt the shorter method of making the collector pay it immediately to the minister. Our own country furnishes a decisive refutation of this notion. The college of William and Mary is endowed with duties on skins, furs, liquors, tobaccos, paid by the exporters and importers, though given by the legislature. Yet was it never supposed, that that college was founded or endowed by the exporters or importers of these commodities. As little then can the parishioners, though the parochial taxes be assessed on them, be called the founders and endowers of our churches. The truth is, the parish is erected, the church and its soil given, and also the endowment, by the legislature, or in other words by the community whom they represent. Now that is a civil, not an ecclesiastical body. The churches are therefore of lay foundation. Again, if we consider the community, as made up of King and People, the King will then be the patron of our churches, it being a known branch of the royal prerogative, that where the King and his subjects are joint founders, the rights of patronage vest in the King. 1 Bl.481. Or if we consider it in a constitutional point of view, the same consequence will be evolved. For wherever an act of Parliament or of Assembly erects a new office, without prescribing the particular mode of appointing the officer, it belongs to the King to make the appointment. And for this reason; that possessing the executive power of the laws, it is his peculiar duty to see each act carried into execution, which cannot be unless an officer is appointed. 1 Bl. 272. On this principle, is almost every officer in Great Britain, as well as in Virginia, appointed by the crown; the acts erecting the offices, never prescribing the mode of appointment unless where they mean to give it from the crown. If then our acts of Assembly, erecting cures of souls, and declaring that they shall be given to ecclesiastics of a certain sect, have not said by whom the nomination shall be, it will follow that the King, who is to see the law executed, must nominate persons for that purpose. We have but two acts relative to this matter. The act of 1661, c. 4. says that a minister, producing to the Governor letters of ordination from some bishop in England, and subscribing, &c. the Governor is to induct them into “any parish that shall make presentation of him.” This law, without doubt, gave the nomination to the parishioners collectively, though it preserved to the crown the right of donation or actual investiture. But the impropriety and inconvenience of popular elections of priests, and the unfitness of the people to judge of their qualifications, had soon caused the vestries to usurp this right, and even their unreadiness to choose where the choice was to be followed by immediate assessments for maintenance, together with the doubt at what time the King might interpose to supply the vacancy, induced the necessity of altering the constitution of the churches in this respect. In 1748, therefore, the right of nomination was restored to the crown, except for the first twelve months after an avoidance, during which it was given to the vestrymen of the parish. Act 1748, c. 34. (old ed’ns.) s. 7. “And whereas it is doubted how long the right of presentation of a minister to a parish, remains in the vestries in this colony: for settling that matter be it enacted, that the sole right of presentation shall be, and remain, in the several vestries, for and during the term of twelve months next after a vacancy shall happen in their respective parishes.” But perhaps it may be thought that the right of choosing, given by this act to the vestries in the first instance, is another mark of foundership; and if they are founders, of course they are visitors. This must be answered by distinguishing between the act of nomination, which is given them for a twelve month, and of donation or induction, which is reserved to the crown, and is better expressed by the word investiture. Nomination is defined by Cowell to be “a power to appoint a clerk to a patron of a benefice.” And he says the word “invest, signifies to give possession. Others,” says he, “define it thus, investiture est in suum jus alicujus introductio, a giving livery of seisin or possession.” This, in donative churches, is effected by the single deed of donation, without other ceremony. “Donatives are given and fully possessed by the single donation of the patron in writing, without presentation, institution, or induction.” Gibs. 819. 1 Burn. Eccl. L. 154. And in collatives and presentatives it is effected by induction. “Induction is, by the canon law, called corporal possession, and is compared in the books of common law to livery and seisin, by which possession is given to temporal estates.” Gibs. 814. Burn. Eccl. L. 157. So that the right given the vestry is barely to name for one twelve month, whereas the crown, is on that nomination, to make the deed of donation, or give corporal possession. The act indeed for nomination, uses the presentation; the sense of which, as used in the ecclesiastical law, is to present to a bishop, and is in its nature and effect very different from nomination and for donation, it uses the word induction, which has indeed the same meaning of delivering actual possession, only that it is usually applied to the delivery of a different kind of church. However our legislators of 1661, were not critics in the language of the law; and it matters not, since they have plainly enough signified what they meant. These rights of nomination and investiture are generally indeed in the same person, and are both exercised by one and the same act. Thus when in a donative, a patron makes a deed of donation, it is a nomination as well as an investiture. But they may be separated; as happens when the patron grants away the next avoidance. There the grantee has only the right of nominating; but the grantor or patron is to invest. For says Gibs. 794, “the right of nomination may be in one person, and the right of presentation in another. And this is where he who was seized of the advowson doth grant unto another and his heirs, that as often as the church becomes void, the grantee and his heirs shall nominate to the grantor and his heirs; who shall be bound to present accordingly. In such case it was agreed by the whole court in the case of Shirley and Underhill, Mod. 894, that the nomination is the substance of the advowson, and the presentation no more than a ministerial interest.” 1 Burn. Eccl. L. 122. Now this is precisely the case between our vestries and the crown under the act of Assembly. The King being considered as the founder and patron of the church, if nothing had been said, would have possessed both rights of nomination and vestiture. But the acts give the vestries, for one twelve month, the right of nominating to the Governor, the person whom he is to induct or invest with possession. It is similar to the case of sheriffs and inspectors, who are nominated by the court, but commissioned or invested with their office by the Governor. So in the case of a clerk, it is not the nomination by the vestry, but the Governor’s investiture which puts him into possession, and entitles him to the temporalities of his cure. So that while the act takes from the King, pro tempore, and transfers to the vestry, the right of nomination, which was one of the rights incident to his patronage, it leaves him the ensigns of that right, to wit, investiture. And still the estate in law which was in the King, is made to pass from him by his act of investiture, and not from the vestry by their nomination. So that like the case before cited of the grant of a next avoidance, though the nomination be in the grantee, yet the presentation to the bishop, if it be presentative, or the deed of donation, if it be donative, must be by the patron. He still continues the patron, and he, not the grantee, possesses the right of visitation. Thus then it may be stated in fewer words. The King is the patron of all our churches. The rights of patrons are 1st. Nomination. 2nd. Investiture. 3rd. Visitation. Only one of these rights, viz. nomination, was taken away, and that but for a limited time. The other two, of vestiture and visitation, were not touched, and consequently still remain in him.
We may safely, therefore conclude that our churches are donatives, because they wear the three characteristics of donatives. 1. They are of lay foundation. 2. They are not subject to presentation to a bishop. 3. They lie in the gift of the patron. That patron is the King, and though one right of patronage, viz. nomination, is taken away pro tempore, yet the others, of vestiture and visitation, still remain in him. The latter is the power now called into exercise; and his majesty having never been pleased to appoint commissioners for that purpose, it is to be exercised by his Chancellor here; that is by the members of this honorable court who possess the powers of a Chancellor: not indeed sitting on this bench of chancery, but as a court of visitation at any other time or place, at which you shall think proper to call the incumbent before you.
[1 ]From Harper’s New Monthly Magazine, lxxxi., 205.
[1 ]Kindly furnished by Miss Sarah N. Randolph. For more concerning Ogilvie, see letters of July 11 and 23, 1770, ante.
[1 ]This is written in Jefferson’s copy of the Virginia Almanack for 1771. A careful search has been made, without finding it in print, so it was probably written by Jefferson.
[2 ]From Randall’s Life of Jefferson, 1, 131. On the eve of the departure of Randolph for England, in 1775, this agreement was cancelled, and the violin became the property of Jefferson on terms recorded by him in his diary as follows: “Williamsburg, August 17.—Delivered to Carter Braxton an order on the Treasurer in favor of J. Randolph, Atty. General, for £13, the purchase money for his violin. This dissolves our bargain recorded in the General Court, and revokes a legacy of £100 sterling to him now standing in my will, which was made in consequence of that bargain.”
[1 ]Printed by courtesy of Mrs. J. W. Drexel, the possessor of the original.
[1 ]From Harper’s New Monthly Magazine, lxxxi., 206.
[2 ]See vol. i., page 9.
[1 ]Robert Skipwith married a daughter of John Waylies, and half sister of Martha (Waylies) Skelton, soon to become Jefferson’s wife.
[1 ]This is reprinted from Jefferson’s Reports of Cases in the General Court. Cf. note at page 470 of vol. i. Of it Jefferson there wrote: