Page:The Green Bag (1889–1914), Volume 12.pdf/476

 A Forgotten Chapfer in the Life of Jefferson.

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A FORGOTTEN CHAPTER IN THE LIFE OF JEFFERSON. BY JOHNSON BRTGHAM. LAWYERS and students of law will find much to interest them in an old book published at Charlottesville, Va., in 1829, entitled " Reports of Cases Determined in the General Court of Virginia, from 1730 to 1740, and from 1768 to 1772," by Thomas Jefferson. This little work of 145 pages is interesting to lawyers, both because of its distinguished editor, and because of its first place in order in the long list of Virginia's law reports; but, to the general student of law and history, chiefly because it contains, well concealed between the subject-matter of the work and the " Index of Matters" which follows the reports, a six page thesis signed " Th. Jefferson," entitled " Whether Christianity is a part of the Common Law." This thesis is not included in the " Writings of Thomas Jefferson," published by order of Congress early in the fifties, and is only in directly referred to in the correspondence included in the nine volumes of that work. And yet, its vigor of statement, closeness of reasoning and independence of thought stamp it as characteristic of the great author of the Declaration of Independence and worthy a place in the collected treasures of that great mind. The dissertation has for its subject, as its author affirms in his preface and sets out to prove in his work, " The most remark able instance of judicial legislation that has ever occurred in English jurisprudence, or perhaps in any other. It is that of the adoption in mass of the whole code of another nation, and its incorporation into the legitimate system, by usurpation of the judges alone, without a particle of legislative will having ever been called on, or exercised towards its introduction or confirmation." The Bishop of Lincoln, the defendant in the case, " pleads that the church of the

plaintiff became void by the death of the incumbent; that the plaintiff and I. S. each pretending a right, presented two several clerks; that the church being thus rendered litigious, he was not obliged, by the ecclesi astical law, to admit either until an inquisi tion dc jure fativnatns in the ecclesiastical court; that, by the same law, this inquisition was to be at- the suit of either claimant, and was not ex officia to be instituted by the Bishop, and at his proper costs; that neither party had desired such an inquisition; that six months passed; whereon it belonged to him of right to present as on a lapse, which he had done. The plaintiff demurred. A question was, How far the ecclesiastical law was to be respected in this matter by the common-law court?" Jefferson finds the defendant's contention to depend chiefly upon an error, or mistranslation, 'which occurred in Finch's Law, (B. I. c. 3), published in 161 3. Quoting from Prisot a French authority, Finch misquotes the words "ancient scripture " translating them as " holy scripture," " whereas," he says, " it can only mean the ancient written laws of the church." This contention is sustained by a priori reasoning and by argument from authorities. Jefferson then turned the light in upon English law during the formation period of England's history, his purpose being to show that upon this demonstrable mistrans lation, and upon nothing else, was founded the theory of church and State which in his judgment has wrought much evil and harm. "For we know," he writes, " that the common law is that system of law which was introduced by the Saxons, on their set tlement in England, and altered from time to time, by proper legislative authority, from that to the date of the Magna Charta, which terminates the period of the common law,