Beschreibung:

Jefferson, ThomasAutograph legal manuscript, accompanied by an autograph note signed in text ("Th: Jefferson"), to William Wirt, all concerning the controversial Batture case, litigated as Livingston v. Jefferson
4 pages (247 x 196 mm) autograph legal manuscript on a now-disjunct bifolium of wove paper (watermarked G Puke | 1804), [Monticello, ca. 20 August 1810], docketed at foot of second page "Thomas Jefferson"; some minor chipping and pinholes at left margins; & three-line autograph note on a leaf of wove paper (245 x 189 mm), Monticello, 20 August 1810; chipped and browned at left margin.
A contentious lawsuit that threatened to engulf Jefferson's presidency as well as private life.
Edward Livingston was a respected jurist and legislator who served in the House of Representatives for both New York and Louisiana; he also served as Secretary of State and U.S. Minister to France under Andrew Jackson. But all of his diplomatic acumen could not dissuade him from suing the sitting President of the Unted States, Thomas Jefferson, in a case of eminent domain centered on alluvial land—essentially a sandbar, or batture, to use the French word, as Livingston did—along the bank of the Mississippi River in New Orleans.
Such sandbanks had been long regarded as public, and valueless, land, but after the conclusion of the Louisiana Purchase (which was negotiated by Livingston's older brother, Robert), the large number of newly arrived residents transformed these mooring grounds into attractive residential property. Edward Livington—fleeing financial difficulties in New York—was one of the settlers attracted to the Cresent City after its annexation into the United States. He continued to practice law and was, in fact, appointed by the legislature to help draft the Louisiana Civil Code, which first introduced elements of English common law (including trial by jury) into a judicial system that had previously been based on Roman, French, and Spanish law.
In 1805, just a year after relocating to New Orleans, Livingston represented in Superior Court one Jean Gravier, the owner of some riverbank land in the Sainte Maire district, who was claiming ownership of the adjacent batture, which the city argued was public property. Livingston won the case, which took a couple of years, and shortly thereafter took ownership of one-third of his client's alluvial land, which was probably his fee for arguing the case.
Livingston planned to improve and develop the land, but longer-tenured citizens, who still considered the sandbanks as commonly available public lands, harassed his laborers and would not allow the work to begin. The impasse did not have an easy solution, as Ronan E. Degnan explained: "There was at that time no appellate route from the Superior Court for the Territory of Orleans, so city officials who had lost in court called upon Governor Claiborne to seek aid from Washington. The Territory asserted no property claim of its own to the land, but the governor quite reasonably feared that violence and even killing would ensue unless action was taken. So Claiborne implored President Jefferson to assert United States ownership of the batture. This Jefferson did, not by directing the Attorney General to sue—which Livingston would have accepted since the courtroom was an arena wherein he excelled—but instead by directing Secretary of State James Madison to instruct the United States marshall for the Territory to assert the title claims of the United States, using whatever force was necessary. Simultaneously, the Secretary of War authorized the local military commander to use military force to regain the batture should the governor request it."
Having little choice in how to proceed, Livingston reverted to the law and sued the marshall in the New Orleans federal court and Thomas Jefferson, who had at this point left the White House and was a private citizen, in the Richmond, Virginia, federal circuit court. Jefferson, who seems to have already had an antagonistic relationship with Livingston, was furious and hired a phalanx of high-powered attorneys, including George Hay, Littleton W. Tazewell, and William Wirt, to defend the case.
Jefferson also took an active part in his own defense. The present very detailed and scholarly manuscript was written in response to a letter from Wirt, 9 August 1810 (Papers, Retirement Series 2:675–677), seeking clarification on several sources and precedents cited (including Henri Joutel, Journal Historique du dernier Voyage que feu M. de la Sale fit dans le Golfe de Mexique, Paris, 1713; and Thomas Peake, A Compendium of the Law of Evidence, London, 1801), as well as the use and definitions of various foreign terms (including ripa, alveus, plenissimum, and quando mas crece).
Jefferson prefaces his response with a brief cover note: "Th: Jefferson with his friendly salutations to mr Wirt sends him some short Notes on the several queries suggested in his letter of the 9th inst." Jefferson's "short notes" follow as a series of raised objections and answers:
"Obj. that Joutel’s journal may not be admitted as evidence of the Charter to Crozat.
"Ans. I leave the establishment of this as legal evidence to the gentlemen in actual practice, who are so much more familiar with the authorities than I am. I have no doubt they will be able to shew that tho’ we may not resort to books of history for documents of a nature merely private, yet we may for those of a public character, e.g. treaties Etc. and especially when those documents are not under our controul, as when they are in foreign countries, or even in our own country, when they are not patent in their nature, or demandable of common right.
"Obj. that the incorporation of the Roman law with the Customs of Paris, & their joint transfer to Louisiana does not appear.
"Ans. 1. at the date of Crozat’s patent,6 the Roman law had for many centuries been amalgamated with the Customary law of Paris, made one body with it, and it’s principal part. it might well then be understood to be transferred as a part of the laws of Paris to Louisiana. …
"Obj. from Dig. 43.12.3. ‘Ripa ea putatur esse quae plenissimum flumen continet.’ & Vinnius’s comment ‘ut significet, partem ripae non esse, spatium illud, ripae proximum, quod aliquando flumine, caloribus minuto aestivo tempore, non occupatur.’ stating & paraphrasing the text & commentary together ‘the bank ends at the line to which the water rises at it’s full tide: and altho’ the space next below it is sometimes uncovered by the river, when reduced by heats in the Summer season, yet that space is not a part of the bank.’ now, substituting for ‘the heats of the Summer season’ which is circumstance, & immaterial, the term ‘low water’ which is the substance of the case, nothing can more perfectly take in the beach or batture, nor, collated with the other authorities, make a more consistent and rational provision. ‘the bank ends at that line on the levee to which the river rises at it’s full tide: and altho’ the batture or beach next below that line is uncovered by the river, when reduced to it’s low tide, yet that batture or beach does not therefore become a part of the bank, but remains a part of the bed of the river’ for, says Theophilus ‘even in low water [et aestate] we bound the bank at the line of high water’ Inst. 2.1.3. ‘the bank being the extima alvei, the border of the bed, within which bed the river flows when in it’s fullest state naturally,’ that is to say, not when ‘imbribus, vel quâ aliâ ratione, ad tempus excrevit’ not when ‘temporarily overflowed by extraordinary rains Etc.’ Dig. 43.12.5. but ‘quando mas crece, sin salir de su madre, en qualquiera tiempo del año’ ‘when in it’s full height, without leaving it’s bed, to whatsoever season of the year the period of full height may belong.’ this is unquestionably the meaning of all the authorities taken together, & explaining one another."
The second leaf of text, is related to the batture case as well, but it seems not to have been intended for Wirt, but rather for James Madison, who was also consulting on the case (see Papers, Retirement Series, 3:47 note). This portion of the text, which deals with the Nile and Mississippi rivers, subsequently appeared as footnote in Jefferson's later summary of the case, The Proceedings of the Government of the United States, in maintaining The Public Right to the Beach of the Missisipi. If the two leaves of text were intended for different recipients, then it must have been Jefferson himself who initially divided the bifolium into two separate leaves.
"Note to page 36. L. 4.t. it is thought that this subject needs further explanation from the authorities which have been quoted it results as a principle that 'inundation (whether caused by repletion of the foundations, by rains, melted snows, or refluence of the regular floods of the ocean) inundation, I say, does not change the bank of the river, whether natural or artificial, nor remove the landmark established on that by the limit of the water, in the High-water season, whether that be Summer or Winter.' And this principle is the law for every river, as well those of general, as of particular character. …
"1. The Upper Mississippi, like the Upper Nile, has competent natural banks thro' probably, three fourths of its whole course. There then the Roman law is applicable in its very letter. 2. For about 400 miles more, the natural banks have been aided by artificial ones, on both sides, so as to contain all the waters of the flumen plenisimum: …
"Thus then we find the laws of the Tyber and Nile transferred & applied to the Mississippi with perfect accuracy, and that all rivers may be governed by the same laws. Other rives are subject to accidental floods; which are declared however not to disturb the law of the plenissimum flumen. The Nile & the Mississippi, not being subject to accidental floods, the flumen plenissimum, with them, is steady & undisturbed and needs not the benefit of that exception. Nor will the reason of the law be changed, whether the cause of the inundation be the saturation of the earth & fountains, or rains, or melted snows, or the reflux of the ocean. The principle remains universally the same, that the landmark, when once established by a competent bank, is not changed by inundation or by any cause or circumstance of it’s high waters."
In December 1811, Livingston's suit was dismissed on jurisdictional grounds, bringing the affair to an anticlimactic conclusion. Not content with his legal victory, Jefferson published in 1812 his account of the affair, the full title of which reveals his personal vendetta against Livingston: The Proceedings of the Government of the United States, in maintaining the Public Right to the Beach of the Missisipi, Adjacent to New-Orleans, against the Intrusion of Edward Livingston; evidently no occupants of alluvial land in New Orleans other than Livingston were removed by force of law.
The entire episode did not reflect credit on Jefferson. While Kevin Hayes in The Road to Monticello applauds Jefferson's tenacity in the case, most biographers seem almost embarrassed by the episode. Witness Dumas Malone's summary in The Sage of Monticello: "In this extraordinarily complicated case it is difficult indeed to determine where the right kay and how serious the situation was, but, in the effort to safeguard what Jefferson believed to be an imperiled public interest, he resorted to an uncharacteristic exercise of authority. Furthermore, his subsequent defense of his actions bordered at times on desperation. He does not appear at his best in this affair" (p. 73).
REFERENCESThe Papers of Thomas Jefferson, Retirement Series, ed. Looney, 3:47–49; cf. Degnan, "Livingston v. Jefferson. A Freestanding Footnote," in California Law Review 75, no. 1 (1987): 115–28
PROVENANCEMaryland Historical Society (deaccessioned) — Charles Hamilton Galleries, 25 October 1973, lot 158