THE WRITINGS OF

THOMAS JEFFERSON





Definitive Edition

CONTAINING HIS



AUTOBIOGRAPHY, NOTES ON VIRGINIA, PARLIA-

MENTARY  MANUAL, OFFICIAL PAPERS,

MESSAGES AND ADDRESSES, AND OTHER

WRITINGS, OFFICIAL AND PRIVATE,

NOW COLLECTED AND



PUBLISHED IN THEIR ENTIRETY FOR THE FIRST TIME



INCLUDING



ALL OF THE ORIGINAL MANUSCRIPTS, DEPOSITED IN THE DEPARTMENT

OF STATE AND PUBLISHED IN 1853 by ORDER OF THE

JOINT COMMITTEE OF CONGRESS



WITH NUMEROUS ILLUSTRATIONS

AND

A COMPREHENSIVE ANALYTICAL INDEX







ALBERT ELLERY BERGH

EDITOR





VOL. XVIII.









ISSUED UNDER THE AUSPICES OF

THE THOMAS JEFFERSON MEMORIAL ASSOCIATION

OF THE UNITED STATES

WASHINGTON, D. C.

1907

 









        COPYRIGHT, 1905,

        BY

        THE THOMAS JEFFERSON MEMORIAL

        ASSOCIATION

 







        JEFFERSON'S CONTRIBUTION TO

        A FREE PRESS. 







  Perhaps the strongest utterance of faith in the

power of a free, honest and liberty-loving press,

made by man, was Jefferson's declaration: "Were

it left to me to decide whether we should have a

government without newspapers or newspapers

without a government, I should not hesitate a

moment to prefer the latter. "



 Was this too high praise of newspapers? History

furnishes the answer: it was the press and the

printed letters of Payne, Jefferson, Madison, Adams

and others, read in every nook and corner of the

colonies, which aroused the people of America to

secure independence, rather than the thrilling elo-

quence of the Patrick Henrys, heard by small

audiences; and almost every right won for the

people since Guttenberg has owed its success to the

agitation, argument and exhortation of newspaper

and pamphlet. Indeed, but for the invention of

the art of printing and its wise use by men like

Jefferson, who were devoted to liberty, the flood-

tide of freedom would have been centuries later in

reaching the shores of the New World. In a letter

from Paris on Shays's Rebellion, which shows that



   VOL. XVIII-A



        i 







ii        Jefferson's Contribution to a



he was decades ahead of his time, Jefferson gave

expression to his high estimate of the value of news-

papers as moulders of sound public opinion. He

wrote :



  " The people are the only censors of their gover-

nors; and even their errors will tend to keep them

to the true principles of their institution. To

punish these errors too severely would be to sup-

press the only safeguard of the public liberty. The

way to prevent these irregular interpositions of the

people is to give them full information of their

affairs, through the channel of public papers, and

to contrive that those papers should penetrate the

whole mass of the people. The basis of our govern-

ment being the opinion of the people, the very first

object should be to keep that right; and were it

left to me to decide, whether we should have a

government without newspapers, or newspapers

without a government, T should not hesitate a

moment to prefer the latter. But I should mean

that every man should receive those papers, and

be capable of reading them. "



  In 1786, to Dr. James Currie, he wrote : " Our

liberty depends on the freedom of the press and that

cannot be limited without being lost. " In 1808,

in answer to an address, he wrote: " The liberty of

speaking and writing guards our other liberties."

To General Washington, in 1792, he wrote : " No

government ought to be without censors; and

where the press is free, no one ever will. "

 







        Free Press       iii



  Mr. Jefferson, more than any man of his day,

appreciated the mighty power of the printed page.

Indeed it may be doubted whether any man of any

age appreciated so truly its capacity to create public

sentiment. He more than any of his famous con-

temporaries understood that the man imbibes what

he reads more than what he hears. But more and

better than that: he recognized the priceless value

of a free press, just as he felt the necessity of free-

dom to worship God without restraint. Freedom

was to him a religion. He hated anything that

hindered man's liberty to think, to write, to speak

to do. His life was largely given to unfettering

the mind of man. " I have sworn," he wrote, " upon

the altar of God, eternal hostility against every

form of tyranny over the mind of man. "



  The statute for religious liberty, drawn by him

and enacted by the Virginia Assembly, was the first

step in the line of carrying out the oath he had taken

" upon the altar. " His whole life shows that he was

never " disobedient to the heavenly vision " which

inspired that oath. He deemed it one of the three

achievements of his life worthy to be carved on the

granite shaft, which he directed to be placed above

his grave. He acquired his deep-seated hostility

to religious bigotry and to church establishment-

(nearly always twin brothers)-when he saw dis-

senting preachers carried to jail for what Patrick

Henry called " the crime of preaching the gospel. "

The sense of outrage that a man should be impris-

 







iv        Jefferson's Contribution to a



oned for not accepting a creed which he could not

believe,-that seemed to his tolerant mind the

unpardonable sin--the sin that loomed above all

other transgressions. His resentment toward those

who would compel men to worship according to

dictation from priest or politician was so deep

that the pendulum of his mind swung in the opposite

direction so far, that his intolerance for church

establishment and clerical persecution and religious

tyranny-(the trinity of abortions upon Chris-

tianity)-was construed into hostility to religion.

His letters show, whether he accepted the orthodox

creed or not, such a construction does injustice to 

his reverent admiration of the teachings of Jesus.



 Tucker, in his biography of Jefferson, says, " with-

out having either gained a battle, made a speech,

or founded a sect, he raised himself from the ranks

of private life to the highest civil honors of his

country. " Jefferson 's " Autobiography " negatives

the idea that he never made a speech, for, asked

by a member of the Annapolis Congress, how he

"could sit in silence, hearing so much false reason-

ing which a word should refute," Mr. Jefferson

says : " I observed to him, that to refute was indeed

easy, but to silence was impossible ; that in meas-

ures brought forward by myself, I took the laboring

oar, as was incumbent on me." But, having no

special talent and no taste for public speaking, he

leaned upon the press as the medium through which

to reach the American people. In truth he had an

 







        Free Press      v



abhorrence of much speaking, and in his "Auto-

biography, " cited the example of Washington and

Franklin as illustrating that short speeches accom-

plish more than long ones, for he says, "I served

with General Washington in the Legislature of Vir-

ginia, before the Revolution, and during it with Dr.

Franklin in. Congress. I never heard either of them

speak ten minutes at a time, nor to any but the main

point, which was to decide the question." He

recognized, too, that it was the people, rather than

the legislators, whose opinion made permanent

statutes and changed constitutions, and his appeal

was always to them. They could be reached only

through the press, and he found a large portion of

the press controlled by those who did not believe

in the ability of men to govern themselves,-papers

so hostile to popular government, as advocated by

Jefferson, that they actually favored the sedition

law, a law that destroyed their own real inde-

pendence. One of the most difficult tasks of Jeffer-

son's life was to secure the establishment of papers

that would combat error, and to preserve their

freedom from every form of tyranny when they were

preaching the doctrine of liberty which he had

sworn to uphold. He did this, too, in a day when a

free press was regarded in official circles and by

most of the world's leaders as sure to destroy stable

government. His faith in a free press was so

supreme that it did literally "remove mountains."



 Before he secured the passage of the statute of

 







vi        Jefferson's Contribution to a



religious liberty in Virginia, in law it was a crime

not to baptize children into the Episcopal Church,

to permit Quakers to live in the colony, to fail to

pay compulsory tithes to the State Church. Im-

passioned orators did indeed arouse hostility to the

religious " tyranny over the human mind, " but it

remained for the never-flagging and systematic zeal

of Jefferson to secure the repeal of the laws that

made such religious slavery possible in the New

World.



 The Declaration of Independence, written by the

inspired pen of Jefferson, was the Magna Charta of

American freedom, the corner stone of the temple

of free thought, free speech, free press. " It sounded

through the land like Roderick's bugle-note in the

Highlands; it rallied the wavering and cheered the

firm ; it removed doubt and fixed a purpose ; it

was the guide which, leaving by-paths and cross-

cuts, got into the plain, straight road and said to

the wandering hosts, ` Come on ' ; it settled the

debate, removed the doubt, fixed the resolution;

it burned the bridge ; it crossed the dead line ; it

took the route toward that bourne from which no

rebel returns save with a rope around his neck; it

was a call to nationality, a watch-word, a rallying

point ; its official statement of ultimate aim and

object becoming the pillar of fire which led the

people through the darkest night of their dread

journey toward the Republic." Jefferson regarded

the authorship of that document worthy a place on

 







        Free Press            vii



his monument, because it ended civic "tyranny

over the human mind. "



 The University of Virginia, founded to teach and

illustrate the right of man to think and to think

without " restraint or interference, " was the third

accomplishment of his life that the sage of Mon-

ticello deemed important enough to have carved

on his tomb-stone. His devotion to public educa-

tion was a child of his oath of " eternal hostility

against every form of tyranny over the mind of

man. " Many extracts from his public papers and

private letters would illustrate this truth. Three

will suffice. To Dupont de Nemours he wrote,

"Enlighten the people generally, and tyranny and

oppression of body and mind will vanish like evil

spirits a.t the dawn of day. " To Madison he wrote

"Above all things I hope the education of the com-

mon people will be attended to. * * * Educate

and inform the whole mass of the people. Enable

them to see that it is to their interest to preserve

peace and order, and they will preserve them. * * *

They are the only sure reliance for the preservation

of our liberty. " To George White he wrote, " Preach

a crusade against ignorance. Establish and improve

the law for educating the common people. * * *

The tax which is paid for this purpose is not more

than the thousandth part of what will be paid to

kings, priests, and nobles, who will rise up among

us, if we leave the people in ignorance."



 These three achievements made straight the path

 







viii        Jefferson's Contribution to a



for the service he rendered to the free press in

America. Indeed they themselves were greatly

contributors to the creation of a free press in the

early days of the Republic, when population was

widely scattered and when the large number of.

unlettered voters depended more for political direc-

tion upon the stump-speech than upon the news-

paper. And, as they were the forerunners of an

uncensored press, that press in turn guarded and

protected civic, religious and intellectual freedom.

While Patrick Henry stirred and moved his small

audiences, which went forth from his impassioned

orations ready to die for liberty, Jefferson, through

his writings, was instilling the same vital truths into

the minds and hearts of thousands who could never

see him or hear his voice.



 While Congress was framing the Federal Con-

stitution, Jefferson was minister to France, succeed-

ing Dr. Franklin, America's first great editor. He

was distressed when he learned that the new Con-

stitution contained no bill of rights, no guarantee

to freedom of religion and the liberty of the press.

A biographer of Jefferson says : " The chief grounds

of his objections to the Federal Constitution as '

framed were the omission of a bill of rights, pro-

viding, clearly and without the aid of sophism, for

the freedom of religion, freedom of the press,

security against standing armies, restriction of

monopolies, trial by jury, and against all suspension

of habeas corpus."    He would, in all probability



 







        Free Press             ix



have declared against its ratification, but for his

profound conviction of the immediate need of a

stable government and his faith that the people

would add amendments incorporating the sugges-

tions in his letter to Mr. Madison. Instead of

opposing its ratification, he did what was better.

He advised those who looked to him for counsel that

four States should refuse to ratify until the amend-

ments suggested by him were adopted. North

Carolina, by a majority of an even hundred, in its

Convention at Hillsborough, passed a resolution

reciting that it had " thought proper neither to

ratify now .nor reject the Constitution proposed for

the government of the United States, " and a bill

of rights and certain amendments were presented

by Mr. Willie Jones, a devoted disciple of Jefferson.



  In presenting them Mr. Jones said: " I have, in my

proposition, adopted, word for word, the Virginia

amendments; with one or two additional ones. "



  The North Carolina amendment on the freedom

of the press was in these words : "That the people

have a right to freedom of speech, and of writing

and publishing their sentiments; that freedom of

the pen is one of the greatest bulwarks of liberty

and ought not to be violated. " There is a tradition

in North Carolina that Willie Jones had a letter,

never printed, from Thomas Jefferson, advising the

course pursued by the majority of the Convention,

which he read to the 184 men, man by man, who

voted to stay out of the Union until the amend-



 





x        Jefferson's Contribution to a



ments drafted by Jefferson were adopted. So great

was the influence of Mr. Jefferson in North Carolina

-an influence that happily abides to this day-that

no argument or persuasion of Iredell or Davie could

change a vote after the letter of Mr. Jefferson had

been passed from hand to hand.



 Jefferson was the inspiration of the action taken

by the seven States that demanded an amendment

for religious liberty and the freedom of the press.

He actually wrote or inspired amendments to the

Constitution which North Carolina and Rhode

Island insisted upon "previous to ratification."

The amendment to the Federal Constitution guar-

anteeing freedom of the press, which was incorpo-

rated in the fundamental charter of the Republic,

is in these words :



  " Congress shall make no law respecting an estab-

lishment of religion; or prohibiting the free exercise

thereof, or abridging the freedom of speech, or of

the press, or of the right of the people peaceably to

assemble and petition the government for a redress

of grievances: "



  For this amendment and the healthy agitation

that secured it, all men who believe in a free press

will ever hold Jefferson in grateful esteem. It was

contended that this amendment was wholly unnec-

essary-" useless surplusage, " as one Federalist

declared,-but the prophetic eye of the liberty-

loving sage of Monticello looked from Paris across

the Atlantic and saw that the influences that dis-



 









        Free Press





trusted the people would muzzle the press, unless

the Constitution forged chains that would deny

power " abridging the freedom of speech or of the

press. " In 1799, evidently having the fear of some

sedition law in his mind, Jefferson wrote to Elbridge

Gerry, " I am for freedom of the press, and against

all violations of the Constitution to silence by force

and not by reason the complaints or criticisms,

just or unjust, of our citizens against the conduct

of their agents. "



 Mr. Jefferson, when insisting upon the amend-

ment denying the right of Congress to make laws

"abridging the freedom of the press," did not see

the exact form which hostility to a free press would

take, but he knew intuitively it would come in

some form if those who distrusted the capacity of

the people to govern themselves, obtained control

of the Federal Government. He had not long to

wait before his prophecy of a war upon a free press,

backed by all the power of the national administra-

tion and accompanied by usurpations hitherto not

dreamed of, was employed to destroy the freedom

of the press. Long before the sedition law he had

seen the hostility to a free press in the Federalist

leaders. Some of the anti-Federalist papers did

not even spare Washington, in their attacks upon

what they called "the monocrats," and, smarting

under their criticisms, the President gave expression

to his objection to an unrestrained press. At that

time, 1794, writing to Madison, who was then in

 







xii        Jefferson's Contribution to a



Virginia, Jefferson said: "It is wonderful, indeed,

that the President should have permitted himself

to be the organ of such an attack on the freedom of

discussion, the freedom of writing and publishing."



  The Sedition law, employed to strengthen the

Adams administration, proved its undoing, thanks

to the promptness and the splendid courage of Mr.

Jefferson and his associates. He felt that should

the people submit to the restrictions of the press

in the Sedition law, the hope of free government

was lost, and he aroused himself from his quiet life

to make a supreme struggle to preserve the liberty

for which the American people in the Revolution

had ventured all that men hold dear. Federalism

seemed firmly entrenched. It had become fashion-

able to sneer at the rule of the people, to contemn

free discussion and equality, and in all official

positions there was a feeling that the only good

government was such as the few would frame and

carry on. The men who went to sleep under Wash-

ington 's safe rule were rudely awakened by the

passage of the Alien and Sedition laws-acts that

jeopardized the very life of the young Republic.

Foreseeing that the Federalists would seek to stifle

the voice of the press, Jefferson wrote to Madison

in 1798 : " This summer is the season for systematic

energies and sacrifices. The engine is the press.

Every man must lay his purse and his pen under

contribution. As to the former, it is possible I may

be obliged to assume something for you. As to the

 







        Free Press      xiii



latter, let me pray and beseech you€ to set apart

a certain portion of every day to write what may

be proper for the public. "



 Jefferson's arraignment of the law sounded like

a bell in the night-as clear as the first shot at

Lexington or Moore's Creek. Men who were

engrossed in mending their private fortunes and

who had not cared for political life, sprung into

leadership to resist the encroachments upon the

spirit of the Declaration of Independence and the

annulment of the very letter of the amendment

which Jefferson had forced into the Constitution.

To show the purpose and the danger in the Sedition

act, it will be necessary to quote only the following

portion of section z :-



  "And be it further enacted, that if a,ny shall

write, print, utter, or publish, or shall cause or

procure to be written, printed, uttered, or pub-

lished, or shall knowingly and willingly assist or

aid in writing, printing, uttering, or publishing,

any false, scandalous, and malicious writing or

writings against the government of the United

States, or either House of the Congress of the United

States with an intent to defame the said govern-

ment or either House of the said Congress, or the

President, or to bring them or either of them into

contempt or disrepute, or to excite against them,

or either or any of them the hatred of the good

people of the United States, etc., then such persons,

being thereof convicted before any court of the

 







xiv        Jefferson's Contribution to a



United States having jurisdiction thereof, shall be

punished by a fine not exceeding two thousand

dollars, and by imprisonment not exceeding two

years. "



 That law had hardly been promulgated before

Mr. Jefferson pronounced it unconstitutional and

commenced the most far-reaching and vigorous

onslaught upon it. He not only aroused the people

of America, but he brought to bear the power of

enlightened public sentiment in England and on

the Continent to produce a world-wide condemna-

tion so strong that, added to the indignant protests

of their constituents, the law-makers would be

forced to repeal it. To John Taylor in 1798 he

wrote: " I enclose you a column, cut out of a London

paper to show you that the English, though charmed

with our making their enemies our enemies, yet

blush and weep over our Sedition law. "



  The first and the only national campaign upon

the issue of appealing to the people to protect the

freedom of the press, guaranteed in' the Federal

Constitution, was inaugurated by Mr. Jefferson

against the Alien and Sedition laws. He not only

inspired the spirit of the criticisms upon these

dangerous laws in the newspapers, but he wrote

the famous Kentucky Resolutions that for years

engrossed the public mind to the exclusion of all

other topics. In the Kentucky Resolutions, upon

the question of the attempt to shackle the press

by the Federal Government, Mr. Jefferson wrote:

 







        Free Press        xv



 "It is true as a general principle, and is also

expressly declared by one of the amendments to the

Constitution, that the `powers not delegated to

the United States by the Constitution nor prohibited

by it to the States, are reserved to the States respec-

tively, or to the people; and * * * no power over

the freedom of religion, freedom Of speech, or free-

dom of the press being delegated to the United

States by the Constitution, nor prohibited by it

to the States, all lawful powers respecting the same

did of right remain, and were reserved to the States

or the people. ' * * * There was manifested their

determination to retain to themselves the right of

judging how far the licentiousness of speech, and

of the press, may be abridged without lessening

their useful freedom and how far those abuses

which cannot be separated from their use should

be tolerated, rather than the use be destroyed.

And thus also they guarded against all abridgment

by the United States of the freedom of religious

opinions and exercises and retained to themselves

the right of protecting the same as this State (Ken-

tucky), by a law passed on the general demand of

its citizens, had already protected them from all

human restraint or interference. * * * In addition

to this general principle and express declaration,

another and more special provision has been made

by one of the amendments to the Constitution,

which expressly declares, that "Congress shall

make no law respecting an establishment of religion,

 







xvi        Jefferson's Contribution to a



or prohibiting the free exercise thereof, or abridging

the freedom of speech, or of the press," thereby

guarding in the same sentence and under the same

words, the freedom of religion, of speech and of the

press, insomuch, that whatever violates either,

throws down the sanctuary which covers the others,

and that libels, falsehoods, and defamation, equally

with heresy and false religion, are withheld from

the cognizance of Federal tribunals. * * * There-

fore, the act of Congress of the United States passed

on the 14th day of July, 1798, intitulated "An Act

in addition to the act intitulated `An Act for the

punishment of certain crimes against the United

States ', " which does abridge the freedom of the

press, is not law, but is altogether void, and of no

force. " * * * " If these acts (the Alien and Sedition

acts) should stand, these conclusions would flow

from them: That the General Government may

place any act that they think proper on the list of

crimes and punish it themselves whether enume-

rated or not enumerated by the Constitution as

cognizable to the President, or any other person,

who may himself be the accuser, counsel, judge,

and jury, whose suspicion may be the evidence, his

order the sentence, his officer the executioner, and

his breast the sole record of the transaction: that

a very numerous and exact description of the inhabi-

tants of these States being by his precedent reduced

to outlaws, to the absolute dominion of one man,

and the barrier of the Constitution thus swept away

 







        Free Press           xvii



from us all, no rampart now remains against the

passions and the powers of the majority in Congress

to protect from a like exportation, or other more

grievous punishment, the minority of the same body,

the legislatures, judges, governors, and councellors

of the States, nor their other peaceable inhabitants,

who ma.y venture to reclaim the constitutional rights

and liberties of the States and people, or who for

other causes, good or bad, may be obnoxious to

the views, or marked by the suspicions of the Presi-

dent, or to be thought dangerous to his or their

election, or other interests, public or personal:

that the friendless alien has indeed been selected

as the safest subject of a first experiment but the

citizen will soon follow or rather, has already fol-

lowed, for already has a Sedition Act marked him

as his prey : that these and successive acts of the

same character, unless arrested at the threshold,

necessarily drive these States into revolution and

blood, and will furnish new calumnies against

republican government, and new pretexts for those

who wish it to be believed that man cannot be

governed but by a rod of iron. "



 The Virginia Resolutions, drawn by Mr. Madison

and approved by Mr. Jefferson, condemned the

Alien and Sedition laws, and, with reference to the

attack on the freedom of the press, employed these

words: " exercises in like manner, a power riot dele-

gated by the Constitution, but, on the contrary,

expressly and positively forbidden by one of the



   VOL. XVIII-B

 







xviii        Jefferson's Contribution to a



amendments thereto-a power which, more than

any other, ought to produce universal alarm; because

it is levelled against the right of freely examining

public characters and measures, and of free com-

munication among the people thereon, which has

ever been justly deemed the only effectual guardian

of every other right. "



  Jefferson, seeing the coming of the Sedition law

before it was enacted, was gathering ammunition

with which to attack it before it was on the statute

books. Writing to Mr. Madison April 26th, 1798,

he prophesied thus: "One of the war party, in a

fit of passion, declared sometime ago they would

pass a citizen bill, an alien bill, and a sedition bill;

accordingly, some days ago, Coit laid a motion on

the table of the House of Representatives for modi-

fying the citizen law. Their threats point at Gal-

latin, and it is believed they will endeavor to reach

him by this bill. Yesterday. Mr. Hillhouse laid

on the table of the Senate a motion for giving power

to send away suspected aliens. This is understood

to be meant for Volney and Collot. But it will not

stop there when it gets in a course for execution.

There is now only wanting, to accomplish the whole

declaration before mentioned, a sedition bill, which

we shall certainly soon see proposed. " In Novem-

ber of the same year he wrote to John Taylor : " For

the present, I should be for resolving the Alien and

Sedition laws to be against the Constitution and

merely void, and for addressing the other States

 







        Free Press           xix



to obtain similar declarations : and I would not do

anything at this moment which should commit us

further, but reserve ourselves to shape our future

measures, or no measures, by the events which may

happen. "



  In the same year he wrote to Madison of the threat

of an alien and sedition bill, and of the sedition bill

said, "The object of that, is the suppression of the

Whig presses, Bache's has been particularly named.

That paper and also Carey's totter for want of sub-

scriptions. We would really exert ourselves to

procure them, for if these papers fail, republicanism

will be entirely brow-beaten. "

 

 In June, 1799, seeing the fulfillment of his prophecy

he commenced the agitation for the repeal of the

law that abridged the freedom of speech and wrote

to Madison as follows : " They have brought into

the lower House a sedition bill, which, among other

enormities, undertakes to make printing certain

matters criminal, though one of the amendments

to the Constitution has so expressly taken religion,

printing presses, etc., out of their coercion. Indeed

this bill, and the alien bill are both so palpably in

the teeth of the Constitution as to show they mean

to pay no respect to it. "



  He followed closely every act and speech attend-

ing the passage of this objectionable law and all

subsequent debates on it, and gave this pen-picture

in a letter to Mr. Madison in February, 1799, of a

scene in the House of Representatives : " Yesterday

 







xx        Jefferson's Contribution to a



witnessed a scandalous scene in the House of Rep-

resentatives. It was the day for taking up the

report of their committee against the Alien and

Sedition laws, etc. They (the federalists) held a

caucus and determined that a word should not be

spoken on their side, in answer to anything that

should be said on the other. Gallatin took up the

Alien, and Nicholas the Sedition law; but after a

little while of common silence, they began to enter

into loud conversations, laugh, cough, etc., so that

the last hour of these gentlemen's speaking they

must have had the lungs of a vendue master to have

been heard. Livingston, however, attempted to

speak. But after a few sentences, the Speaker

called him to order, and told him what he was saying

was not to the question. It was impossible to pro-

ceed. The question was carried in favor of the

report, 52 to 48 ; the real strength of the two parties

is 56 to 50."



 Again, to Madison in the same year, he wrote,

" Petitions and remonstrances against the Alien

and Sedition laws are coming from different parts

of New York, New Jersey, and Pennsylvania. * * *

I am in hopes Virginia will stand so countenanced

by those States as to repress the wishes of the gov-

ernment to coerce her, which they might venture

on if they supposed she would be left alone. Firm-

ness on our part, but a passive firmness, is the true

course. Anything rash or threatening might check

the favorable dispositions of these Middle States,

 







        Free Press          xxi



and rally them again around the measures which are

ruining us. "

  

 With the instinct of the political seer he looks

into the future and sees that if the opponents of

that law content themselves with firm and orderly

protests, the attempt to abridge the freedom of the

press will destroy the Federal party. Writing to

Edward Pendleton in February, 1799, he said, " In

Pennsylvania, we fear that the ill-designing may

produce insurrection (against the Alien and Sedition

Laws). Nothing could be so fatal. Anything like

force would check the progress of the public opinion,

and rally them around the government. This is

not the kind of opposition the American people will

permit. But keep away all show of force, and they

will bear down the evil propensities of the govern-

ment, by the constitutional means of election and

petition. " In the same month he wrote thus to

Archibald Stuart: "Several parts of this State

(Pennsylvania) are so violent that we fear an insur-

rection. This will be brought about by some if

they can. It is the only thing we have to fear.

The appearance of an attack of force against the

government would check the present current of the

Middle States, and rally them around the govern-

ment ; whereas if suffered to go on it will pass on to

a reformation of abuses."



 He believed that the Alien and Sedition Law was

but the first step in converting the republic into a

virtual monarchy, for in 1799 he wrote to S. T.





 









                 x xii        Jefferson's Contribution to a



Mason : " I consider these laws as merely an experi-

ment on the American mind, to see how far it will

bear an avowed violation of the Constitution. If

this goes down; we shall immediately see attempted

another act of Congress, declaring that the Presi-

dent shall continue in office during life, reserving

to another occasion the transfer of the succession

to the heirs, and the establishment of the Senate

for life. At least, this may be the aim of the

Oliverians, while Monk and the Cavaliers (who are

perhaps the strongest), may be playing their game

for the restoration of his most gracious Majesty,

George III. That these things are in contemplation,

I have no doubt; nor can I be confident of their

failure, after the dupery of which our countrymen

have shown themselves susceptible. "



 When Jefferson was elected to the Presidency

the Alien and Sedition laws were speedily repealed

and all persons convicted or awaiting trial under

them were at once pardoned or released. Referring

to his actions, with reference to persons convicted

under the Sedition law, he wrote to Mrs. John

Adams in July, 1804, "I discharged every person

under punishment or prosecution under the Sedition

law, because I considered and now consider that

law to be a nullity, as absolute and as palpable as if

Congress had ordered us to fall down and worship

a golden image; and that it was as much my duty

to arrest its execution in every stage, as it would

have been to have rescued from the fiery furnace

 







        Free Press          xxiii



those who should have been cast into it for refusing

to worship the image. It was accordingly done in

every instance, without asking what the offenders

had done, or against whom they had offended, but

whether the pains they were suffering were inflicted

under the pretended sedition law. "



  During his administration, some of Mr. Jeffer-

son's over-zealous friends in Connecticut had insti-

tuted a prosecution against a clergyman in that

State for a libel against the President from the

pulpit. As soon as he was informed of it, Mr. Jeffer-

son wrote to Mr. Granger, the Postmaster-General,

then in Connecticut, that " he had laid it down as

a law to himself, to take no notice of the thousand

calumnies issued against him, but to trust his char-

acter to his own conduct and the candor of his

fellow-citizens, that he had no reason to be dis-

satisfied with that course; and was unwilling it

should be broken, through. " He therefore desired

him to request the district attorney to dismiss the

prosecution. Having afterwards heard of subpoenas

for witnesses, he made a peremptory request to the

same effect. The district attorney did dismiss the

prosecution, and accompanied the dismission with

the avowal that the court had no jurisdiction over

libels. There were other prosecutions, of which

he had no previous knowledge, but they were all

dismissed at the same time. The clergyman after-

wards, in a letter to Mr. Granger, disavowed all

personal ill will to Mr. Jefferson, and solemnly

 







xxiv        Jefferson's Contribution to a



declared he had not uttered the words charged.

These prosecutions were dismissed, as Tucker says

in his " Life of Jefferson, " on the same grounds as

he had himself acted on in the case of Duane, Cal-

lender, and others, in considering the Sedition law

unconstitutional.-



  In a letter to€ Mr. Granger in 1814, Mr. Jefferson

wrote : " With respect to the dismission of the prose-

cutions for sedition in Connecticut, it is well known

to have been a tenet of the republican portion of

our fellow-citizens, that the Sedition law was con-

trary to the Constitution, and; therefore, void.

On this ground I considered it as a nullity whenever

I met it in the course of my duties; and on this

ground I directed nolle prosequis in all the prosecu-

tions which had been instituted under it; and, as

far as the public sentiment can be .inferred from the

occurrences of the day, we must say that this

opinion had the sanction of the nation. The prose-

cutions, therefore, which were afterwards instituted

in Connecticut, of which two were against printers,

two against preachers, and one against a judge,

were too inconsistent with this principle to be per-

mitted to go on. We were bound to administer

to others the same measure of law, not which they

had meted to us, but we to ourselves, and to extend

to all equally the protection of the same constitu-

tional principles. These prosecutions, too, were

chiefly for charges against myself, and I had from

the beginning laid it down as a rule to notice nothing

 







        Free Press            xxv



of the kind. I believe that the long course of ser-

vices in which I had acted on the public stage, and

under the eye of my fellow-citizens, furnished better

evidence to them of my character and principles,

than the angry invectives of adverse partisans in

whose eyes the very acts most approved by the

majority were subjects of the greatest demerit and

censure. These prosecutions against them, there-

fore, were to be dismissed as a matter of duty. "



 Why did Mr. Jefferson maintain silence when

unjustly accused and why did he prevent the prose-

cution of men who had slandered him? The answer

is found in his own words. He profoundly believed

that, while a free press would often wound and

temporarily injure, ten thousand times more evil

would follow censorship or prosecutions than to

trust to the innate good sense of the public to

separate the true from the false, and, before Emer-

son put it into an axiom, Jefferson was confident

of this truth: "A man passes for what he is worth.

Very idle is all curiosity concerning other people's

estimate of us, and idle is all fear of remaining

unknown. If a man know that he can do any-

thing-that he can do it better than any one else-

he has a pledge of the acknowledgment of that fact

by all persons. The world is full of judgment days;

and into every assembly that a man enters, in every

action that he attempts, he is gauged and stamped. "

His conviction upon that point was put into an

epigram in a letter to Thomas Seymore in February,

 







xxvi        Jefferson's Contribution to a



  1807. He wrote, " The press is impotent when it

abandons itself to falsehood." That truth he more

fully emphasized and elaborated in a long letter to

Mr. Seymore, from which the following extracts

are taken: " Conscious that there was not a truth

on earth which I feared should be known, I have

lent myself willingly as the subject of a great experi-

ment, which was to prove that an administration,

conducting itself with integrity and common under-

standing, cannot be battered down, even by the

falsehoods of a licentious press, and consequently

still less by the press, as restrained within legal

and wholesome limits of truth. This experiment

was wanting for the world to demonstrate the false-

hood of the pretext that freedom of the press is

incompatible with orderly government. I have

never, therefore, even contradicted the thousands

of calumnies so industriously. propagated against

myself. But the fact being once established, that

the press is impotent when it abandons itself to

falsehood, I leave to others to restore it to its

strength, by recalling it within the pale of truth.

Within that, it is a noble institution, equally the

friend of science and of civil liberty. "



 Though Matthew Lyon, soldier, patriot, printer

was put in jail in Connecticut because he accused

Mr. Adams of avarice, vanity and childish love of

pomp, the result of the prosecution of Mr. Lyon

proved the wisdom of Mr. Jefferson's view of "getting

along without public prosecutions for libels." The

 







        Free Press         xxvii.



Connecticut people expressed their disapproval of

the prosecution of Lyons by re-electing him to

Congress while he lay in jail. To Levi Lincoln, in

1802, after he had liberated the men prosecuted

under the sedition law, Mr. Jefferson wrote, "I

would wish much to see the experiment tried of

getting along without public prosecutions for libels.

I believe we can do it. Patience and well doing,

instead of punishment, if it can be found sufficiently

efficacious, would be a happy change in the instru-

ments of government. "



 The best place to find Jefferson's mature and

real views are in his acts-the conspicuous part he

bore in incorporating the guarantee of freedom of

the press in State constitutions; the prominent

place he gave to this in every constitution or bill of

rights he suggested or drafted; his forcing into

the Federal Constitution the provision that no laws

should be passed abridging the liberty of the press ;

his sincere, courageous and effective fight against

the unconstitutional and wicked sedition law; his

recommendations in State papers; his inaugural

addresses and the general trend of his writings

and actions.



 In his first inaugural address, Mr. Jefferson was

on the mountain top of faith in the people and

devotion to the freedom of the press, and his con-

victions then may be summed up in this sentence

in a letter to Charles Yancey : " Where the press is

free and every man able to read, all is safe." In

 







xxviii        Jefferson's Contribution to a



his first inaugural address he said: "Freedom of

the press I deem (one of the) essential principles

of our government and consequently (one) which

ought to shape its administration. " In the same

address, among the essential principles of govern-

ment he enumerated " the diffusion of information

and arraignment of all abuses at the bar of public

reason; freedom of religion, freedom of the press,

and freedom of the person, under protection of

the habeas corpus; and trial by juries impartially

selected. "



  Between his first inaugural address and the second

Mr. Jefferson and his administration had been the

recipient of a steady stream of misrepresentation

and abuse from the press hostile to his principles

and those of the party he had founded. In his

second inaugural he felt called upon to refer to the

studied and continued attacks, but instead of

recommending some other measure of suppression,

or the re-enactment of the Sedition law, he used

the incident to enforce his abiding faith in his

creed: " The liberty of speaking and writing guards

our other liberties. " Printing has been said to be

" the art preservative of arts. " It is equally true

that the free press is the preservative of all freedom.



 In his second inaugural address, Mr. Jefferson,

while commenting with severity upon the lengths

to which a licentious press had gone in misrepresent-

ing his administration, used the abuse of their

liberty and its failure to accomplish its purpose to

 







        Free Press         xxix



injure, as the perfect and complete vindication of

the position he had always maintained. He said:



  " During ' this course of administration, and in

order to disturb it, the artillery of the press has been

levelled against us, charged with whatsoever its

licentiousness could devise or dare. These abuses

of an institution so important to freedom and

science are deeply to be regretted, inasmuch as they

tend to lessen its usefulness and to sap its safety.

They might, indeed, have been corrected by the

wholesome punishments reserved and provided by

the laws of the several States against falsehood

and defamation; but public duties more urgent

press on the time of public servants, and the offenders

have therefore been left to find their punishment in

the public indignation.



  "Nor was it uninteresting to the world, that an

experiment should be fairly and fully made, whether

freedom of discussion, unaided by power, is not

sufficient for the propagation and protection of

truth? Whether a government, conducting itself

in the true spirit of its constitution, with zeal and

purity, and doing no act which it would be unwilling

the whole world should witness, can be written down

by falsehood and defamation? The experiment

has been tried. You have witnessed the scene.

Our fellow-citizens have looked on cool and col-

lected. They saw the latent source from which

these outrages proceeded. They gathered around

their public functionaries ; and, when the Constitu-

 







xxx        Jefferson's Contribution to a



tion called them to the decision by suffrage, they

pronounced their verdict, honorable to those who

had served them, and consolatory to the friend of

man, who believes he may be intrusted with his

own affairs.



  " No inference is here intended that the laws pro-

vided by the State against false and defamatory pub-

lications should not be enforced. He who has time,

renders a service to public morals and public tranquil-

lity in reforming these abuses by the salutary coercions

of the law. But the experiment is noted to prove

that, since truth and reason have maintained their

ground against false opinions, in league with false

facts, the press, confined to truth, needs no other

legal restraint. The public judgment will correct

false reasonings and opinions, on a full hearing of

all parties ; and no other definite line can be drawn

between the inestimable liberty of the press and

its demoralizing licentiousness. If there be still

improprieties which this rule would not restrain,

its supplement must be sought in the censorship of

public opinion. "



  But, though he never wavered in his faith in the

blessings of a free press, Mr. Jefferson was so hunted

by the hyenas of a malignant and scurrilous personal

journalism, that he often gave expression to his

sense of outrage at the _misrepresentations of his

character and views, in language that has been

twisted into the idea that he came, in his latter

years, to doubt his early belief that the press should

 







        Free Press           xxxi



be unrestrained. Such expressions were always

uttered or written hastily while he was smarting

under what he knew to be undeserved criticism

and abuse, as will be seen by extracts from private

letters written by him. These letters were not

written for publication. In them he was merely

thinking aloud. They convey only a passing wave

of indignation that often causes a man to speak

vehemently to his friend of a sense of injustice.

It is therefore not just to accept such expressions

as his deliberate and well-considered convictions.



 If any public man ever had the right to rail at

the press, that man was Mr. Jefferson, who was

abused and vilified by a portion of it from the day

he secured the repeal of the law of primogeniture

in Virginia almost to the day of his death. Writing

of his fight against Mr. Pendleton's compromise,

proposing to give the elder son a double portion,

in his ' `Autobiography, " Mr. Jefferson thus gives

the substance of his reply : " I observed that if the

eldest 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 a 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."

In taking that stand, then almost revolutionary,

Mr. Jefferson brought down upon his head, then

and ever afterwards, the wrath of two classes:

First, those who stand for all forms of special privi-

 







xxxii        Jefferson's Contribution to a



lege-as primogeniture, church establishment, pro-

tection to particular interests, belief in inherited

monarchies, a censorship of the press, and the like;

second, those, who, by the natural process of inertia,

oppose all innovations under the guise of conserva-

tism. Jefferson was inherently an innovator. No

tradition, no custom, no practice, no belief, that

did not appeal to his judgment and reason had any

sacredness to him. Of all his great measures, when

he first unfolded them, it was as true as of the one

of which he wrote in a letter from France, " The leap

I then proposed was too long, as yet, for the mass

of our citizens. " But he lived to see the country

approve them all before he died. A man who

shows contempt for outworn creeds and beliefs, is

as sure to cut across the grain of the large and reac-

tionary class who cling tenaciously to them as he

is to arouse the hostility of those enjoyers of special

privilege who see their perquisites and bounties

taken from them by a law of equality. To his

defiance of these two classes, and to the misconcep-

tion of the man by those misled by them, Mr. Jeffer-

son was indebted for the storm of abuse that beat

upon his head from the day that the supporters of

primogeniture and the fox-hunting clergy were pro-

voked to resentment by Mr. Jefferson's broad-

minded and liberal measures.



  It is not surprising that he gave vent to his indig-

nation when viciously slandered. The surprise is

that his indignation did not drive him to the point

 







        Free Press        xxxiii



of favoring censorship of the press or severe pun-

ishment of editors who wrote false things about

him. Though extremely sensitive to criticism and

sometimes wounded at the sorest point by the

printed libels, he never faltered in his creed that a

free press was " the only tocsin of a nation. " To

Edward Rutledge, in 1796, he wrote, " You have seen

my name lately tacked to so much of eulogy and of

abuse that I dare say you hardly thought that it

meant your old acquaintance of ' 76. In truth, I

did not know myself under the pens of either friends

or foes. It is unfortunate for our peace that unmer-

ited abuse wounds, while unmerited praise has not

the power to heal. These are hard wages for the

services of all the active and healthy years of one's

life. " To Samuel Smith, in 1798, he wrote : " Were

I to undertake to answer the calumnies of the news-

papers, it would be more than all my own time, and     ,

that of twenty aids could effect. For while I should

be answering one, twenty new ones would be

invented. " To John Adams, in 1817, he wrote :

" It is fortunate for those in public trust that pos-

terity will judge them by their works and not by

the malignant vituperations and invectives of the

Pickerings and Gardners of their age." To M.

Pictet he wrote : " The abuses of the freedom of the

press here have been carried to a length never before

known or borne by any civilized nation. * * * Our

newspapers, for the most part, present only the

caricatures of disaffected minds. " To James Mon.



  VOL. XVIII-C

 









xxxiv        Jefferson's Contribution to a



roe, in 1798, he wrote: " It is really a most afflicting

consideration that it is impossible for a man to act

in any office for the public without encountering

a persecution which even his retirement will not

withdraw from him."



 The most severe arraignment of the press into

which his resentment to calumny upon himself and

his administration ever led him was toward the

close of his second term. Beset with foreign and

domestic complications, harassed by divisions in

his party in Congress, he was sorely wounded by

the virulent criticisms of the Federalist or anti-

republican press. He felt that he had spent him-

self for his country, without selfish aims, and he

craved, as he was going into retirement, after half a

century devoted to affairs of state, the good will

and appreciation of his fellow countrymen. Instead '

of giving him assurances that his contribution to

the life, safety and guidance of the young Republic

was appreciated, a large part of the press was making

his slightest act the fresh occasion for slander and

detraction. It was at that time, in 1807, that he

wrote the following letter from the national capitol

to George Norvell, in response to a. request as to

how to conduct a newspaper, in which he gave vent

to his feeling of resentment : " To your request of

my opinion of the manner in which a newspaper

should be conducted, so as to b e most useful, I should

answer, `by restraining it to true facts 'and sound

principles only.' Yet I fear such a paper would

 







        Free Press         xxxv



find few subscribers. It is a melancholy truth,

that a suppression of the press could not more com-

pletely deprive the nation of its benefits, than is

done by its abandoned prostitution to falsehood.

Nothing can now be believed which is seen in a news-

paper. Truth itself becomes suspicious by being

put into that polluted vehicle. The real extent

of this state of misinformation is known only to

those who are in situations to confront facts within

their knowledge with the lies of the day. I really

look with commiseration over the great body of my

fellow-citizens, who, reading newspapers, 'live and

die in the belief, that they have known something

of what has been passing in the world in their time ;

whereas the accounts they have read in newspapers

are just as true a history of any other period of the

world as of the present, except that the real names

of the day are affixed to their fables. General facts

may indeed be collected from them, such as that

Europe is now at war, that Bonaparte has been a

successful warrior, that he has subjected a great

portion of Europe to his will, etc., etc., but no details

can be relied on. I will add, that the man who

never looks into a newspaper is better informed

than he who reads them; inasmuch as he who

knows nothing is nearer to truth than he whose

mind is filled with falsehoods and errors. He who

reads nothing will still learn the great facts, and the

details are false.



 " Perhaps an editor might begin a reformation in

 







xxxvi        Jefferson's Contribution to a



some such way as this : Divide his paper into four

chapters, heading the 1st, Truths. 2d, Probabili-

ties. 3d, Possibilities. 4th, Lies. The first chap-

ter would be very short, as it would contain little

more than authentic papers, and information from

such sources, as the editor would be willing to risk

his own reputation for their truth. The second'

would contain what, from a mature consideration

of all circumstances, his judgment should conclude

to be probably true. This, however, should rather

contain too little than too much. The third and

fourth should be professedly for those readers who

would rather have lies for their money than the

blank paper they would occupy.



  " Such an editor, too, would have to set his face

against the demoralizing practice of feeding the

public mind habitually on slander, and the depravity

of taste which this nauseous aliment induces. Defa-

mation is becoming a necessary of life; insomuch,

that a dish of tea in the morning or evening cannot

be digested without this stimulant. Even those

who do not believe these abominations still read

them with. complaisance to their auditors, and

instead of the abhorrence and indignation which

should fill a virtuous mind, betray a secret pleasure

in the possibility that some may believe them,

though they do not themselves. It seems to escape

them that it is not he who prints, but he who pays

for printing a slander, who is its real author.

  "These thoughts on the subject of your letter

 







        Free Press        xxxvii



are hazarded at your request. Repeated instances

of the publication of what has not been intended

for the public eye, and the malignity with which

political enemies torture every sentence from me

into meanings imagined by their own wickedness

only, justify my expressing a solicitude that this

hasty communication may in nowise be permitted

to find its way into the public papers. Not fearing

these political bull-dogs, I yet avoid putting myself.

in the way of being baited by them, and do not

wish to volunteer away that portion of tranquillity,

which a firm execution of my duties will permit me

to enjoy. "



 Mr. Jefferson never but once replied to his critics

in the press-and that was when accused of robbing

a widow and her children while acting as executor.

He did not then write his answer to a paper, but to

a friend, and its calmness and fullness of statement

completely destroyed the slander and discredited

the slanderer. The reasons for his silence under

great provocation are given by himself in letters

to friends. To Wm. Duane, in 1807, he wrote:

"Slander I have thought it best to leave to the

scourge of public opinion." To Martin Van Buren,

in 1824, he wrote, " My rule of life has been never

to harass the public with fendings and provings of

personal slanders. * * * I have ever trusted to

the justice and consideration of my fellow-citizens,

and have no reason to repent it, or change my

course. " To Dr. George Logan, in 1816, he wrote,

 







xxxviii        Jefferson's Contribution to a



"As to federal slanders I never wished them to be

answered but by the tenor of my life, half a century

of which has been on a theatre at which the public

have been spectators, and competent judges as to

merit. Their appreciation has taught a lesson,

useful to the. world, that the man who fears, no

truths has nothing to fear from lies. I should have

fancied myself half guilty had I condescended to put

pen to paper in refutation of their falsehoods or

drawn to them respect by any notice from myself. "



  Mr. Jefferson's party founded a newspaper-

Freneau's Gazette,-edited by a clerk in his depart-

ment, while Jefferson was Secretary of State in

Washington's cabinet: It was established to coun-

teract the teachings of Fenno's Gazette, chiefly

edited by Hamilton, which preached the doctrines

held by the Federalist party. The President thought

that Jefferson should dismiss from the public service

Mr. Freneau because he was quite free in criticising

the administration of the Treasury Department

under Hamilton. Though Jefferson stood by Fren-

eau, manifesting a courageous and practical exhibi-

tion of his belief that every man should be allowed

to speak and write what he pleased,  and refused

to accede to Washington's request to dismiss him,

he did not write for Freneau's paper, though Hamil-

ton, . supposing Jefferson to be the author of the

attacks upon his policy in that paper, assailed Jef-

ferson most severely. To these attacks upon him,

as to all others, he made no reply and gave no out-

 







        Free Press      xxxix



ward sign that he had read them. To Edmund

Randolph, prior to that time, Jefferson had written;

" I have preserved through life a resolution, set in

a very early part of it, never to write in a public

paper without subscribing my name, and to engage

openly an adversary who does not let himself be

seen, is staking all against nothing: "



 In a letter, September g, I 7 9 2, to General Wash-

ington, who had told Jefferson that articles in

Freneau's paper "tended to produce a separation

in the Union, " and attacking him indirectly, though

thinking him "fool enough to swallow the little

sugar plums here and there thrown out to him "

Jefferson defended himself for giving Freneau, the

poet, an appointment in his office. He declared

that his expectations looked only to the chastise-

ment of the aristocratical and monarchical writers,

and not to any criticism on the proceedings of the

government: that Hamilton could see no motive

for any appointment but that of making a con-

venient partisan, but he knew that talents and

science were with him a sufficient recommendation.

Freneau, as a man of genius, found a preference

with him, and he added: " Freneau and Fenno are

rivals for the public favors ; the one courts them

by flattery, the other by censure; and I believe it

will be admitted that one has been as servile as the

other severe. But is not the dignity, and even

decency of government committed, when one of its

ministers enlists himself as an anonymous writer

 







xl        Jefferson's Contribution to a



or paragraphist, for either the one or the other of

them ? And where the press is free, no one ever

will. If virtuous, he need not fear the operation

of attack and defence. Nature has given to man

no other means of sifting the truth, either in religion,

law or politics. I think it is as honorable to the

government neither to know nor to notice syco-

phants or censure, as it would be undignified and

criminal to pamper the former and persecute the

latter. "



  Mr. Jefferson was the more severely abused for

giving a position in the State Department to Mr.

Freneau, probably because the power exerted by

his paper was the cause of the loss of popular favor

by the Federalists in the administration'. Hamil-

ton's defenders dared not admit that it was because

Freneau's paper was destroying their idol's hold

upon the confidence of the country, though that

was the motive that prompted the criticisms of

Mr. Jefferson for retaining the editor in the public

service. Therefore, the Federalists declared the

retention of Freneau to be a  want of courtesy to

his associates in the administration and a breach

of moral duty. To that criticism George Tucker

in his " Life of Jefferson " makes this conclusive

answer :



  " But against no aspersion of his enemies is his

vindication more easy. On the .public measures

thus condemned, his opinions were known, in the

cabinet and out of it, to be diametrically opposite

 







        Free Press            xli



to those of Mr. Hamilton, their chief adviser; and

while the press was made to assail him, his opinions,

and motives, he surely had a right to use the same

weapon in their defence. But further: according

to his views of the interests of the country, and of the

object and tendency of Hamilton's policy, it was

not only his right, but his duty, to endeavor to

operate upon public opinion, which was to be the

final arbiter between them. In availing himself of

this auxiliary, he seems never to have transcended

the bounds of legitimate warfare. He practiced

no concealment either of his principles or of his

patronage of Freneau ; he betrayed no confidence ;

he countenanced no doctrines in that paper which,

he did not maintain everywhere else. It does not

appear that he ever wrote for the paper, for that

did not accord with his notions either of prudence

or propriety; but had he done so, he might have

defended himself by the example of his political

antagonist. It must also be recollected that the

political principles and measures of Hamilton and

his adherents were the chief objects of attack in the

National Gazette, while the President, who was

never .confounded with them was always treated

with decorum and respect. In every respect, then,

the charge appears to be frivolous or unfounded.



  " Mr. Jefferson had yet a further ground of vindi-

cation, had he needed it, though he never deigned

to make use of it; and this was the fact, that the

National Gazette was not set up by him, but by

 







xlii Jefferson's Contribution to a



Mr. Madison and General Henry Lee, then Governor

of Virginia, and afterwards so warm a Federal par-

tisan, for the double purpose of assisting Freneau,

who had been their fellow collegian at Princeton,

and of affording the public an opportunity of hear-

ing the arguments of both the parties that then

divided the country. "



  Though he did not personally write for the press

he had well-matured opinions as to the duty of a

political editor. He gave expression to his opinion

in the following letter, written in 1811 from Monti-

cello to William Duane: " I think an editor should

be independent; that is, of personal influence, and

,not be moved from his opinions on the mere authority

of an individual: But, with respect to the general

opinion of the political section with which he habi-

tually accords, his duty seems very like that of a

member of Congress. Some of these, indeed, think

that independence requires them to follow always

their own opinion, without respect for that of

others. This has never been my opinion, nor my

practice, when I have been of that or any other

body, differing on a political question from those

whom I knew to be of the same political principles

with myself, and with whom I generally thought

and acted. A consciousness of the fallibility of

the human mind and of my own' in particular, with

a respect for the accumulated judgment of my

friends, has induced me to suspect erroneous impres-

sions on myself, to suppose my own opinion wrong,

 







                Free Press           xliii



and to act with them on theirs. The want of this

spirit of compromise, or of self-distrust, proudly

but falsely, called independence, is what gives the

Federalists victories which they could never obtain

if these brethren could learn to respect the opinion

of their friends more than their enemies, and pre-

vent many able and learned men from doing all the

good they otherwise might do. " Of Duane he

wrote to Mr. Wirt : " I believe Duane to be a very

honorable man and sincerely republican ; but his

passions are stronger than his prudence, and his

personal as well as general antipathies render him

very intolerant. These traits lead him astray and

require his readers, even those who value him for

his steady support of the republican cause, to be

on their guard against his occasional observations."



  The critics of Mr. Jefferson have been wont to

attribute what, in his lifetime, they termed his

over-trust in the capacity of the people for self-

government, to the views he imbibed in France.

No doubt the spectacle of a people in a country

where " every man must be a hammer or an anvil "

at a time when the love of liberty and the rights of

man inspired the best portion of the people of that

country to demand a larger voice in governing

themselves, had a permanent influence upon his

life and views. But he secured the repeal of the

law of primogeniture and church establishment,

and drafted provisions for future constitutions,

insuring the freedom to write and speak without

 







xliv        Jefferson's Contribution to a



restraint, before he ever walked the streets of Paris.

It was Jefferson instructing Frenchmen in the neces-

sity for a free press as the mudsill of national liberty

rather than learning from them the love of a free

press that was a ruling passion of his life.

 While in Paris, Jefferson prepared a charter of

rights for the French people, the ninth section being

as follows : " Printers shall be liable to legal prose-

cution for printing and publishing false facts, inju-

rious to the party prosecuting ; but they shall be

under no other restraint. "



  They were in far too liberal a spirit of concession

for the government party and nothing came of his

wise recommendation. In 1802, writing to Thomas

Cowper, he declared, "The press, the only tocsin

of a nation, is completely silenced. " Among the

abuses in France that brought on the Revolution

he named "the shackles on the freedom of con-

science, of thought and of speech; on the freedom

of the press by censure. "



  In M. Necker's report to the King, it was sug-

gested by Mr. Jefferson's advice, " How far the

press might be made free. " He noted that the

restraint on the freedom of the press was one of the

chief complaints of the government in the French

Revolution. In his "Autobiography " Jefferson

says: "Nor should we wonder at * * * (the)

pressure (for a fixed Constitution in I 7 88-9 ) when

we consider the monstrous abuses of power under

which * * * (the French) people were ground to

 







        Free Press          xlv



powder; when we pass in review the shackles * * *

on the freedom of the press by the censure. "



 In spite of Mr. Jefferson's strong predilection for

popular government, and his belief in its practica-

bility, he still doubted, as he doubted when he was

in Europe, as he says in a letter to his friend La

Fayette, in November, 1823, whether the state of

society in Europe could bear a republican govern-

ment. He remarks, "an hereditary chief, strictly

limited, the right of war vested in the legislative

body, a rigid economy of the public contributions,

and absolute interdiction of all useless expenses,

will go far towards keeping the government honest

and unoppressive. But the only security of all is a

free press. The force of public opinion cannot be

resisted when permitted freely to be expressed.

The agitations it produces must be submitted to.

It keeps the waters pure. "



 In the same year, writing to M. Coray, he said:

" This formidable censor of the public functionaries

(press) by arraigning them at the tribunal of public

opinion, produces reform peaceably, which must

otherwise be done by revolution." To M. Coray

in Paris; in 1823 ; he wrote : " The press is the best

instrument for enlightening the mind of ma,n, and

improving him as a rational, moral, and social

being. "



 In his retirement, when the French dynasty was

crushing popular liberty, Mr. Jefferson reminded

La Fayette of the proposition he had made at the



 









xlvi        Jefferson's Contribution to a



early stage of the revolution to secure a compact

with the King, the benefit of habeas corpus, jury

trial, freedom of the press, and religion, and a nat-

ional legislature which he would then have yielded;

and to let them work out the amelioration of the

condition of the people, until they should have been

rendered capable of more.



  In 1793, tu De Viar and De Jandenes, he wrote:

"Your residence in the United States has given

you an opportunity of becoming acquainted with

the extreme freedom of the press in these States.

Considering its great importance to public liberty,

and the difficulty of subjecting it to very precise

rules, the laws have thought it less mischievous to

give greater scope to its freedom than to the restraint

of it. "



  Thus it is seen that, if the people of France at

that time had learned the lesson of liberty under

law as well as it had been learned in America's

school of experience, Mr. Jefferson's suggestions

would have been incorporated into the law of the

land, and some of the horrors of the French Revolu-

tion might have been prevented:



  Mr. Jefferson s contribution to the free press was

not bounded by geographical lines or limited by any

period of time. It was for all countries and all ages.

In his life, whether laboring in the land of his birth

to obtain, safeguard and make permanent the free-

dom of the press, or seeking to aid the people of

France, groping through the darkness with only

 







        Free  Press       xlvii



the dim gleam of a censored press, to secure the

"liberty of speaking and writing which guards all

other liberties;" he was always animated 'by faith

in the capacity of man to control his own affairs; and

by his oath of " eternal hostility against every form

of tyranny over the human mind." His influence

-inspiring, powerful, salutary in his day-did not

die when his mortal body was laid to rest or. the

sloping hillside of Monticello, hard by the home

where his pen had written the appeals, the resolu-

tions, the statutes that gave America its untram-

melled press.



 Jefferson's services for liberty are immortal.

Wherever men look out of darkened windows of

despotic governments they are cheered by the light

of Jefferson's Declaration, which penetrates and

illumines the deepest cell of civic tyranny. Wher-

ever, in any decade of the world's history-yester-

day, to-day, to-morrow-the pen is subjected to

censorship, the words and deeds of Jefferson are

the bow of promise set in the heavens.

 As the years shall pass,



   " And the thoughts of men are widen'd with the process

      of the suns "



and, one by one the nations that sit in darkness

come into the glorious light of freedom-freedom

of conscience, freedom of speech, freedom to think

and write and print-the majestic figure of Jefferson

will loom up as the inspiring spirit who first breathed

 







xlviii Contribution to a Free Press



into the printing press- (theretofore the unresponsive

instrument to further the decrees of kings and bind

the conscience and thoughts of men)-the breath

of life, and made it responsive, sentient, virile, free.

In this new life that dates from Jefferson, this free

press has become the champion of the oppressed,

the teacher of the young, the guide of the mature,

the comfort of the aged, and the mightiest power

for good that blesses and shall ever bless mankind.











 Raleigh, N. C., April 13, 1904

 







        CONTENTS.









                        .                                                      
                                                                               
                                                       page

JEFFERSON'S CONTRIBUTION TO A FREE PRESS.                          

By Josephus Daniels, Editor of the News and Observer, Raleigh,
N.C...................i





THE BATTURE AT NEW
ORLEANS........................................................1-132

The proceedings of the Government  of the

United States in maintaining the public right

to the beach of the Mississippi, adjacent to

New Orleans, against the intrusion of Edward

Livingston. Prepared for the use of counsel,

by Thomas Jefferson.





BIOGRAPHICAL SKETCHES OF DISTINGUISHED MEN...............135-172

Peyton  Randolph
...............................................................................
...........135

Meriwether 
Lewis..........................................................................
...............140

General Thaddeus
Kosciusko......................................................................
...161

Anecdotes of Benjamin
Franklin.....................................................................16
6





THE JEFFERSON
PAPERS.................................................................175-357

From the collection of letters and other pri-

vate documents presented to the Massa-

chusetts Historical Society in June, 1898, by

Jefferson's great-grandson, Thomas Jefferson

Coolidge.



Preface........................................................................
....................................175

To Lucy Nelson, October 24,
1777.................................................................179

To William S. ,Smith, July 9
1786....................................................................180

To Martha Jefferson Randolph, May 16,
1790.................................................184



 VOL. XVIII-D.

 







l              Contents



THE JEFFERSON
PAPERS--Continued..............................................................
.........................page

To Edmund Pendleton, July 24,
1791...............................................................186

To Samuel Biddle, December 12,
1792............................................................187

To Martha Jefferson Randolph, December 31,
1792.........................................191

To John Taylor, December 29,
1794................................................................192

To Thomas Mann Randolph, November 28,
1796............................................200

To John Taylor, October 8,
1797.....................................................................201

To Edmund Pendleton, January 14,
1798.........................................................203

To John Taylor, June 4,
1798...........................................................................
205

To Thomas Mann Randolph, January  17,
1799................................................210

To John Taylor, November 26,
1799................................................................213

To Thomas Mann Randolph, February 4,
1800.................................................215

To Thomas Mann Randolph, March 4,
1800.....................................................216

To Thomas Mann Randolph, April 4,
1800.......................................................218

To Edmund Pendleton, April 19,
1800..............................................................220

To Thomas Mann Randolph, May 7,
1800........................................................222

To Thomas Mann Randolph, November 30,
1800.............................................224

To Thomas Mann Randolph, December 5,
1800...............................................226

To Thomas Mann Randolph, December 12,
1800.............................................227

To Thomas Mann Randolph, January 9,
1801...................................................228

To Thomas Mann Randolph, January 23,
1801.................................................231

To Martha Jefferson Randolph, January 26, 
1801............................................234

To Thomas Mann Randolph, January 29,
1801.................................................236

To Thomas Mann Randolph, March 12,
1801...................................................238

To Thomas Mann Randolph, March 26,
1801...................................................239

To Catharine Church, March 27,
1801..............................................................240

To Thomas Mann Randolph, May 14,
1801......................................................241

To Thomas Mann Randolph, February 21,
1802...............................................242

To Thomas Mann Randolph, December 19,
1803.............................................244

To Martha Jefferson Randolph, October 7,
1804...............................................245

To George Jefferson, June 12,
1805..................................................................247

To James Ogilvie, June 23,
1806.......................................................................247

 







                Contents



THE JEFFERSON PAPERS---CONTINUED.

To Thomas Mann Randolph, November 3,
1806...............................................249

To Martha Jefferson Randolph, November 23,
1807.........................................250

To Thomas Mann Randolph, November 22,
1808.............................................252

To Charles L. Bankhead, November 26,
1808..................................................253

To Anne Cary Bankhead, December 8,
1808....................................................255

To Thomas Mann Randolph, December 13,
1808.............................................256

To Thomas Mann Randolph, January 2,
1809...................................................257

To Charles L. Bankhead, January 19,
1809......................................................260

To Thomas Mann Randolph, January 31,
1809.................................................262

To William Pinckney, July 15,
1810..................................................................264

To Mary Page; March 4,
1811.........................................................................26
6

To James Madison, April 7,
1811.....................................................................268

To Charles Pinckney, February 2,
1812............................................................271

To E. I. Dupont de Nemours, June 16,
1812.....................................................272

To Richard Rush, August 2,
1812.....................................................................274

To E. I. Dupont de Nemours, November  8,
1812............................................275

To Charles W. Peale, April  17,
1813...............................................................276

To William Short, August 20,
1814...................................................................280

To Horatio G. Spafford, December 16,
1814....................................................284

Memorandum of Jefferson's Taxable
Property...................................................285

To William Short, May 15,
1818.......................................................................286

To Charles W. Peale, June 13,
1818.................................................................287

To Thomas W. Maury, January 27,
1816..........................................................290

To Stephen Cathalan, February 1,
1816............................................................292

To Mary B. Briggs, April 17,
1816...................................................................294

To Joseph Story, June 19,
1816.......................................................................295

To William Thornton, July 27,
1816..................................................................296

To Charles Pinckney, September 9,
1816.........................................................297

To Noah Worcester, November 26,
1817........................................................298

To Bernard Peyton, March 20,
1818................................................................299

To John Nelson, November 8,
1818................................................................300

To William Tudor, January 31,
1819................................................................302

 







lii        Contents



THE JEFFERSON PAPERS-CONTINUED.                                           PAGE



To William Short, June 22,
1819....................................................................303

To George A. Otis, December 25,
1820........................................................305

To Maria Cosway, December 27,
1820.........................................................308

To William Thornton, January 19,
1821..........................................................310

To John Taylor, February 14,
1821................................................................312

To ----  November 24,
1822.........................................................................31
4

To William Tudor, February 24,
1823............................................................317

To Thomas Cox, June 3,
1823.......................................................................318

To James Monroe, June 24,
1823..................................................................320

To Joshua Dodge, August 3,
1823.................................................................321

To Thomas Cox, September 5,
1823.............................................................323

Marquis De La Fayette to Thomas Jefferson,

December 20,
1823...........................................................................
...........324

To Samuel Parr, April 26,
1824....................................................................329

To Dugald Stewart, April 26,
1824...............................................................331

To Joseph Coolidge, Jr., January 15,
1825....................................................334

To Joseph Coolidge, Jr., April 12,
1825........................................................337

To Ellen W. Coolidge, August 27,
1825........................................................340

To Joseph Coolidge, Jr., October 23,
1825..................................................342

To Ellen W. Coolidge, November 14,
1825..................................................346

To Ellen W. Coolidge, March 19,
1826........................................................352

To Joseph Coolidge, Jr., June 4,
1826..........................................................354



AN ESSAY ON THE ANGLO-SAXON AND MODERN

DIALECTS OF THE ENGLISH LANGUAGE.................................361---411

To Herbert Croft, Esq., LL.B., London, October 30, 1798......
..................361

The
Alphabet.......................................................................
.......................367

Orthography....................................................................
...........................369

Pronunciation..................................................................
............................372

Grammar........................................................................
............................375

Supines and
Gerunds........................................................................
..........381

Observations on Anglo-Saxon
Grammar.....................................................392

Declensions of
Nouns..........................................................................
.......396

 





 







        THE BATTURE

        AT NEW ORLEANS.







THE PROCEEDINGS OF THE GOVERNMENT OF THE UNITED STATES IN MAINTAINING THE
PUBLIC RIGHT TO THE BEACH OF THE MISSISSIPPI, ADJACENT TO NEW ORLEANS,

 AGAINST  THE INTRUSION OF EDWARD  LIVINGSTON. PREPARED FOR  THE USE    OF
COUNSEL, BY  THOMAS JEFFERSON.

 





        PREFACE.



 Edward Livingston, of the territory of Orleans, having taken

possession of the beach of the river Mississippi adjacent to the city of

New Orleans, in defiance of the general right of the nation to the

property and use of the beaches and beds of their rivers, it became my

duty, as charged with the preservation of the public property, to

remove the intrusion, and to maintain the citizens of the United States

in their right to a common use of that beach. Instead of viewing this

as a public act, and having recourse to those proceedings which are

regularly provided for conflicting claims between the public and an

individual, he chose to consider it as a private trespass committed on

his freehold, by myself personally, and instituted against me, after my

retirement from office, an action of trespass, in the circuit court of the

United States for the district of Virginia.



 Being requested by my Counsel to furnish them with a statement of

the facts of the case, as well as of my own ideas of the questions of

right, I proceeded to make such a statement, fully as to facts, but

briefly and generally as to the questions of right. In the progress of

the work; however, I found myself drawn insensibly into details, and

finally concluded to meet the questions generally which the case would

present, and to expose the weakness of the plaintiff's pretensions, in

addition to the strength of the public right. These questions were of

course to arise under the laws of the territory of Orleans, composed of

the Roman, the French, and Spanish codes, and written in those

languages. The books containing them are so rare in this country as

scarcely to be found in the best-furnished libraries. Having more time

than my Counsel, consistently with their duties to others, could bestow

on researches so much out of the ordinary line, I thought myself bound

to facilitate their tabors, and furnish them with such materials as I

could collect. I did it by full extracts from the several authorities, and

in the languages in which they were originally written, that they might

judge for themselves whether I misinterpreted them. These materials

and topics, expressed in the technical style of the law, familiar to them,

they were of course to use or not to use, according to the dictates of

 







        Preface





their better judgment. If used, it would be with the benefit of being

delivered in a form better suited to the public ear. I passed over the

question of jurisdiction, because that was one of ordinary occurrence,

and its limitations well ascertained. On this, in event, the case was

dismissed ; the court being of opinion they could not decide a question

of title to lands not within their district. My wish had rather been for

a full investigation of the merits at the bar, that the public might learn,

in that way, that their servants had done nothing but what the laws

had authorized and required them to do. Precluded now from this

mode of justification, I adopt that of publishing what was meant

originally for the private eye of counsel. The apology for its general

complexion, more formal than popular, must be found as well in the

character of the question, as in the views with which its discussion had

been prepared. The necessity, indeed, of continuing the elaborate

quotations, is strengthened in the case of ordinary readers, who are

supposed to have still less opportunity of turning to the authorities

from which these are taken.



 The questions arising, being many and independent of each other,

admitted not a methodical and luminous arrangement. Proceeding,

therefore, in a course of narrative, I have met and discussed the points

of law in the order in which events presented them ; thus securing, as

we go along, the ground we pass over, and leaving nothing adversary

or doubtful behind. Hence the mixture of fact and law which will be

observed through the whole.



 Vouchers for the facts are regularly referred to. These are princi-

pally, I. Affidavits taken and published on the part of the plaintiff,

and of the city of New Orleans, very deeply interested in this question.

a. Printed statements, by the counsel on each side, uncontradicted

by the other, of facts under their joint observation and knowledge.

3. Records. 4. Notarial acts, and 5. Letters and reports of public

functionaries filed in the office of the Department of State.

 Feb. 25, 1812.

 





        JEFFERSON'S WORKS.





        THE BATTURE AT NEW ORLEANS.







 Not long after the establishment of the city of

New Orleans, and while the religious society of Jesuits retained their standing
[Title of the Jeauits.]  in France, they obtained from Louis XIV. a grant of

lands adjacent to the city, bearing date the 11th of

April, 1726. The original of this grant having  been

destroyed in the fire which conSumed a great part of

the city in 1794, .and no copy of it as yet produced,

the extent and character of the grant is known from

no authentic document. Its other limits are unim-

portant, but that next the river and above the city is

understood to have been of 20 arpents,  [ Fronting  river]

or acres, [of 280 French feet, or 64 yards

of our measure each,) "face au fleuve," the ambi-

guity of which expression is preserved by translating

it, " fronting the river. " Whether this authorized

them to go to the water line of the river, or only

to the road and levee, is a question of some diffi-

culty, and not of importance enough to arrest our

present attention. To these they had added 12 ar-

   vol. xvliii

 







            Jefferson's Works



pents more by purchase from individuals. In 1763

the order of Jesuits was suppressed in

[Confiscation.] France; and their property confiscated.

The 32 arpents, before mentioned, were divided

into 6 parcels, described each as "faisant face au

[Gravier's  Title] fleuve, " and the one next to the city of 7

arpents in breadth, and 50 in depth, was

sold to Pradel; but how these 7 arpents, like Fal-

staff's men in buckram, became 12 in the sale of

the widow Pradel to Renard, (Report 7 .] 13 in Gra-

vier's inventory, and nearly 17, as is said Derb. viii.

ix. in the extent of his fauxbourg, the plaintiff is

called on to show, and to deduce titles from the

crown, regularly.down to himself. In

[Fauxbourg.]  1788 Gravier, in right of his wife the

widow of Renard, laid off the whole extent of

his front on the river, whatever it was, into q. ranges

of lots, and in '96 he added 3 ranges more, estab-

lishing them as a Fauxbourg, or Suburb to the

city. That this could not be done without permis-

sion from the government may be true ; and no for-

mal and written permission has been produced.

Whether such an one was given and lost in the fire,

or was only verbal, is not known. But that permis-

sion was given must be believed, 1. From Gravier 's

declaration to Charles Trudeau the surveyor, which

must operate as an Estoppel. (Report 45.] against all

contrary pretensions in those claiming under him:.

2. From Carondelet 's order to Trudeau, first to de-

pocit a copy of the plan in the public archives, and

 







        The Batture at New Orleans      3



afterwards an order for a second one to be delivered

to himself, which implied necessarily that he had

consented to the establishment ;. but more especially

when : B. Gravier relying on this establishment as

freeing him from the repairs of the bank., the Gov-

ernor declared " it was true and that Gravier was.

right. " 3. From the records of the Cabildo,  or

town council, with whom the Governor sat in person, 

showing that at their sessions on the 1st day of Jan-

uary annually, for regulating the police of the city, a

Commissary of police for the new quarter was regu-

larly appointed from the year 1796 till the United

States took possession. The actual settlement of

the ranges next the river, and the addition of the '

new ranges, now, probably rendered that necessary:

4.. From the conviction expressed by the Surveyor

that, from his knowledge of the laws and customs of

the Spanish colonies, no one would have dared to

establish a city, bourg, village or fauxbourg without

authorization, verbal at least,.. from the Governor.

5 : From the act of the local legislature incorporating

the city of New Orleans.. [Thierry 32.] That no

formal written act of authorization can be produced

is not singular, as that is known to be the condition '

of a great proportion of their titles from the govern-.

ment: and the extraordinary negligence in these

titles was what rendered it necessary for Congress to

establish, in the several territories of Orleans, Missis-

sippi, Louisiana, Indiana and Michigan, boards of.

Commissioners, to ascertain and committed



 





4        Jefferson's Works



record. To this we may add that the principle

which shall take from the inhabitants of the' Suburb

St. Mary the validity of their establishment, will an-

nul a great portion of the land rights of those several

territories. Finally, whatever act of the govern-

ment may be considered as amounting to evidence

of its ratification of the establishment of the faux-

bourg, is retrospective, and will amount to an origi-

nal authorization under the maxim, "omnis rati-

habitio retrotrahitur, et mandato aequiparatur. "



  Bertrand Gravier proceeded to sell the lots of. his

[Gravier's sale] new Fauxbourg, and particularly he sold

the whole range next the river. Such

deeds for these lots as have been produced, de-

scribe them as "haciendo frente al rio," ``fronting

the river. " And it is affirmed, [Examen 13. Poy-

dras 7. and 18. Thierry 39.] that almost all, if not

all the deeds, used the same expression. [See

notarial copies of the deeds of B. Gravier to Nicholas

Gravier, and of Nicholas Gravier to Escot, Girod,

Wiltz.] Bertrand Gravier himself; on all occasions,

[Pieces Probantes 9. 21. 28. 30. Livingston 59€

Monile's deposition, MS.] declared that he had sold

his lots " faisant face au fleuve, " and had passed to

the purchasers his right to the devanture, meaning

everything in front of his lots. Whatever extent

then towards the river, passed to the Jesuits by the

term " face au fleuve," or from the king to the pur-

chasers of the Jesuits ' property, under whom B. Gra-

vier claimed,' the same extent was, by the same ex-

 







        The Batture at New Orleans     5



pression, " face au fleuve, " or '"frente al rio, " passed

by Bertrand Gravier to the purchasers of the front

lots. If the words " face au fleuve, " gave him only

to the road and levee, he by the same words gave

them no farther; if to the water edge, then he sold

to the water edge also, and having parted with all

his right as riparian possessor, could transmit none

to those claiming under him by subsequent title, as

the plaintiff does. In a note added to the end of the

,printed Report of this case, whether by the reporter

or the plaintiff does nut appear, it is said that this

objection was answered by showing, from the, deeds,

that each lot had a clear front boundary, by refer-

ring to the "plan which in no instance crossed the

road. " And that this brings it within the rule of

law which says, "in agris limitatis jus alluvionis

locum non habere constat. " Dig. 41. I. 16. This

process of deduction, if not clear, is compendious at

least, and better placed in a note, than in the text,

where explanation would have been expected. Let

us spread it open and examine it. What says the

deed to Nicholas Gravier for 5 8 lots ?



Yo Don Beltran ' Gravier vendo

a Don Nicholas Gravier cinquenta

y ocha terrenos situados en esta

dicha ciudad, extramuros de la

puerta de Chapitulas, a saver,

trece haciendo frente al' rio, Mis-

sisipi, y lindando por el lado de

abaxo, que es de esta dicha ciudad,

con terreno de Don R. Jons, y por

el de arriba con otros de Don J. B.



  I Don Beltran Gravier sell to

Don Nicholas Gravier 58 lots situ-

ated in this said, city without the

gate of Chapitulas, to wit, 13 front-

ing the river Missisipi, and border-

ing on the lower side, which is that

of this said city, with the lot of

Don R. Jones, and on the upper

side with others of Don J. B.

Sarpy, &c. And the 45 lots re-

 







6        Jefferson's Works



Sarpy, &c. Y los quarenta y cinco

terrenos restantes' completa a los

cinquenta y ocho, que quedan in-

dicados, comenzan sobre el limite

de laprimera oalle; formande una

linea directa A empezar por el ter-

reno;que se halla detras del de

Don J. Poydras, todo conforme al

plano que, delineado por Don C.

L. Trudeau, he entregado al com-

prador para su inteligencia y res-

guardo: pera con la condieion de

que me reservo el derecho de

tomar la tierra que necessitare

para mi 'fabrica de ladrillos, en

la playa b Battura que hay en la

extension de losnominados trece

terrenos que hacen frente al dicho



rio.

maining, the complement of the

58 before mentioned, . commence

above [or beyond] the ..limit of the

first street, forming a right line,

beginning at the lot which is be-

hind that of Don J. Poydras, in

conformity with the plan which

having been delineated by Don C.

L. Trudeau, I have delivered to

the purchaser for his information

and ascertainment : Nevertheless,

with the condition. that I reserve

to myself the right to .take the

earth which I shall need for my

manufacture of bricks on the

beach or .batture which is in the

extension of the said 13 lots which

front the river.



  The first part of this description is of the z 3 lots,

to wit; that they front the river. The second part

relates wholly to the remaining 45 lots, which begin

beyond or above the first street in a straight line

from the lot behind Poydras ', and refers to the plan

to show their position more particularly as back lots,

behind the front range. It is to be noted that the

public way in front of the fauxbourg is not a street :

it is the same chemin royale, royal road, which has

existed from early times, and has never been merged

in the character of a street. Nothing can prove

more clearly, that this reference to the' plan was not

to give a front line to the 23 lots, than that the same

deed reserves the right of digging earth' on the

batture beyond that line. Now if nothing was

meant to be conveyed beyond the front line marked

 







        The Batture at New Orleans     7



in the plan, why reserve a right to dig earth on

the batture, which is beyond that line ? And that

Nicholas Gravier, Escot, Girod and Wiltz didn't

consider this line as the limit of their rights, appears

from their deeds conveying the batture expressly

by that name, with the lots themselves. On the

whole, we see here a curious specimen of tergiversa-

tion in reasoning.  When urged that the grant to

the Jesuits, and to Bertrand  Gravier, though ex-

pressed to be " face au fleuve," must still have

stopped at this line or edge of the royal road, it is

answered that those terms convey to the water edge,

and make it an " ager arcifinius, " to which the right

of alluvion appertains. But when Bertrand Gra-

vier conveys to his purchasers " face au fleuve, " they

turn about and say that the same identical words

" face au fleuve, " convey now only to this same line

or edge of the royal road, which they overleaped

before, and make the grounds conveyed an " ager

limitatus, " to which the right of alluvion. .does nat

appertain. It is perfectly equal which of the mean-

ings is ascribed to these words. Only give them the

same in both instances, and say which. If these

words make the road your boundary, you never had

a right to the batture beyond it. If they extend to

the river what was convey ed to you, they extend to

the river also what was conveyed from

you. Will it be pretended that, after

establishing his town, Bertrand Gravier could then

have sold the streets to others ? and yet he might" a

 







8        Jefferson's Works



fortiori, having not included them in any deed. But

does not common sense and common honesty pro-

claim that the establishment of his town, and sale

of the lots, implied a relinquishment to the inhabi-

tants of the communications of streets and shores

adjacent, as a common, which are the necessary and

constant appendages of every town? The express

conveyance then of his riparian rights, and the impli-

cation as to them and the streets, are believed to be

conclusive to show that the plaintiff having had no

right, can have sustained no wrong:



 In 1797, Bertrand Gravier died intestate ; and at

this epoch we must introduce what constitutes

the sole object of the existing contest. Opposite to

the habitation or plantation of B. Gra-

[Beach or Batture] vier, now the Fauxbourg Ste. Marie, the

beach of the river, called in that country

Batture, of ordinary breadth within memory, has

sensibly increased, by deposits of earth, during the

annual floods of the river, [Derb. xix.] till in the year

1806, it was found to extend in breadth, at low tide,

from 122 to 247 yards of our measure, from the water

edge into the river: and from about 7 f. height,

where it abuts against the bank, declining to the

water edge. See Pelletier's plan annexed'. Thiery

xvii. While uncovered, which is from August to

January inclusive, it has served as a Quai for lading

and unlading goods, stowing away lumber and fire-

wood, and has furnished all the earth for building

the city, and raising its streets and courts, essential

 







        The Batture at New Orleans       9



in that oozy soil. Derb. €. While covered, which

is during the other six months of the year, from Feb-

ruary to July inclusive, [Liv. 58. Poydras 20. 21 23.)

it is the port for all the small craft of the river, and

especially for the boats of the upper country, which,

in the season of high water, can land or lie no where

else in the neighborhood of the city. During this

period, they anchor on its bottom, or moor to its

bank. It is then, like every other beach; the bed

of the river one half the year, and a Quai the other

half, distinguished from those of tide waters, by

being :subject to an annual, instead of a semidiurnal

ebb and flood. In this beach or shoal, with the bank

to which it is adjacent, if Bertrand Gravier claimed

any right, as riparian proprietor of the habitation,

he had certainly meant to convey that right to the

purchasers of the front lots, by the term "frente al

rio, " " fronting the river, " reserving expressly, as

we have seen; from one purchaser of 58 lots, a right€

to take earth, from the beach, for his brickkilns. As

he died without children, the inheritance belonged

to John Gravier, and other brothers and sisters whom

he had left in France, or their representatives, as

co-heirs.



  By the civil law, if an heir accepts the    [Purchase by Inventory]
inheritance, he is considered, not merely

as the representative, but as continuing the person

of the ancestor himself, is answerable for all his debts,

and out of all his property, as well his own, as what

he had newly acquired by the inheritance. Time,





 







10        Jefferson's Works



therefore, was allowed him to inform himself of the

condition of the estate and debts, during which it

was considered as an haereditas jacens, vested in

nobody. If he declined taking the inheritance sim-

ply as heir, he was allowed to take it as purchaser,

or in their language, as heir with the benefit of inven-

tory: whereupon an inventory and appraisement of

it. took place; and he had the pre-emption at the ap-

praised value. He was then liable to no more debts

than the amount of the appraisement ; and if there

was a surplus of the appraised value over and above

the debts it was his, if a single heir, or partitioned

among the co-heirs, as parceners, if there were more

than one. Brown. civ. law, I. 218. 302. Kaim 's

law tracts, 3 89. Gibbon 's c. 44. I 5 3 € Bertrand

Gravier is understood to have left France indebted

and insolvent : and John Gravier, therefore, € either

knowing, or ignorant of the amount of the debts,

chose on behalf, or perhaps in defraud, of the co-

heirs, to decline the inheritance, and to take the

estate as a purchaser by inventory and appraise-

ment. It was inventoried and appraised. In the

inventory is placed a single article of lands, in these

words, " are placed in the inventory the lands of this

habitation, whose extent cannot be calculated im-

mediately, on account of his having sold many lots ;

but Mr: N. Gravier informs us that its bounds gb to

the forks of the bayou, according to the titles. " And

in the appraisement also there is but this same single

article of lands, thus described, " about thirteen ar-

 







        The Batture at New Orleans     11



pents of land, of which the habitation is estimated,

including the garden, of which the most useful part is

taken off in front, the residue consisting of the lowest

part; [to wit, that descending back to the bayou,] the

side being sold to Navarro, one Percy, and the negro

Zambo, a portion of which, etc., estimated at 190 D.

the front acre, with all the depth,which makes 2470

D." Then follows the adjudication, which adjudges

to John Gravier " the effects, real estate" moveables

and slaves which have been inventoried as belonging

to the estate of his deceased brother Bertrand Gra-

vier, etc." Report.9. 10. We see, then, that no

lands were inventoried but the thirteen arpents in

front, composing the inhabitation. And it is im-

possible that that term should be meant to include

the, beach of the river, cut off from it by the inter-

vention of the whole Fauxbourg of seven ranges of

squares ; or that they should not have used a more.

obvious expression, if the idea of the beach had been

in their minds. Nobody could consider these two

parcels, distant and disjointed as they were, as being

one parcel only, one habitation.  No man having two

farms, or two tracts of"land, separated by the lands

of others, would expect that by devising or convey-

ing one, the other would pass also. In fact, at that

time, neither John Gravier nor any. one else, consid-

ered the beach as any part of Bertrand Gravier's

estate : and in the appraisement, they estimate the

front arpents, (that is; fronting on the fauxbourg,)

with all their depth to the bayou, at 190 dollars, the

 







12        Jefferson's Works



front arpent; contemplating clearly only what was

between the fauxbourg and bayou. Accordingly

Fernandez, acting for the Depositor General, ' the

legal officer in those cases, swears that he took charge

and possession of all the estate according to the in-

ventory which had been made from the 28th of June

to the 4th of July, 1797 ; that, in that inventory, the

batture never was mentioned, 'or heard of, as prop-

erty of Gravier, nor in charge of the Depositor, and

that, on delivering the estate to John Gravier, the

batture never was spoken of. It is equally certain

that had there been an idea that they were smuggling

the batture away, through these proceedings, the citi-

zens of New Orleans would not have been so silent,

nor the Governor, the Cabildo, and other Spanish

authorities so passive, when so active on all former

occasions respecting the batture: and that had the

batture been under the view of the appraisers, in-

stead of estimating it at 2470 dollars, conjointly €

with other thirteen arpents, a very different sum

must have been named. The batture alone is now

estimated at half a million of dollars. ' But the

truth is, that neither John Gravier, nor any one else,

at that day, considered it but as public property.

And for six years ensuing, he never manifested one

symptom of ownership; until Mr. Livingston's

[Livingston's  Arrival] arrival there from New York

with the wharves and slips of that place

fresh in his recollection. The flesh-pots of Egypt

could not suddenly be forgotten, even in this new

 







        The Batture at New Orleans     13



land of Canaan. Then John Gravier received his

inspiration that the beach was his; and is tempted,

by one kind of bargain after another, to try his for-

tune with it. It was only to lend his name, and   [Parisien]

receive a round sum if anything could be made of it.

To get over the palpable omission of it

in the inventory and appraisement, they

find a man whose recollection is exactly a propos;

a Henry Parisien, a comedian by profession, and a

joiner by trade. He had been one of the appraisers,

ten years before, and recollected, and so swore that

he had "walked on the batture, before the closing of

the appraisement, to ascertain its extent and be the

better able to judge of its value, and that it was

through forgetfulness that it had not been taken into

the estimate." Pieces Prob. 33. It happens that

nature bears witness against him. From the 20th

of June to the 4th of July is within the period of high

waters; and it is proved that, at the very time of the

appraisement, the river was still overflowing, and

the batture covered with water : the journals of the

sawmills further attest that they did not cease to

work till the 25th of August of that year : and when

the waters of the river are sufficiently low to stop

the mills, all the battures are still covered with water.

P. Pr. 34. However even this Henry Parisien

swears, " that the batture was not in the estimate, and

that it was through forgetfulness that it was not. "

Examin 19. Rep. 21. Pi. Prob. 33. No matter

through what cause, it is enough that it was not in

 







14        Jefferson's Works



the inventory or estimate, and of course not sold to

J. Gravier. This corroborates the testimony of the

Depositor, that he neither had it in his charge, nor

included it' in the estate sold and delivered. J: Gra-

vier must, therefore, as to this part of his brother's

estate, if his it were ; recommence his work, ' by having

a new inventory, appraisement and adjudication.

But to repel the present proceeding, it suffices that

having made his election to take, not as heir, but

purchaser, this beach is not yet his ; it is still an

haereditas jacens, and before he can convey it to

Mr. Livingston, he must get it by a new process, and

make a third bargain.



 We will proceed further to trace the history of this

acquisition of the batture; by the plaintiff; who

writes a letter of lamentations to some member of

the government, on the 27th of June; 1809. That

" Congress will probably adjourn without coming to

any decision on the subject of my removal by the

late President of the United States from my estate at

New Orleans." A most ungrateful complaint; for

had he not been removed, he must; :at the time of

writing this letter, have been, as his estate was, some

10 or 12 feet under water ; the river being then at its

greatest height. And when was this notable discov-

ery made, that the beach of the river was the separate

and exclusive property of J. Gravier, clear of all pub-

lic right to its use ? Let us hear the Governor, in an-

swer to this question.' In a letter to the Secretary of

State of October 13, 1807, he says, "early after the

 







        The Batture at New Orleans     15



arrival of Mr. Livingston in this territory; he became

concerned in the purchase of a parcel of ground

fronting the fauxbourg of this city, commonly called

the batture, a property which had been occupied as

a common by the city for many years previous; and

the title to which, in the opinion of the inhabitants

was unquestionable. " The day(1) of the arrival of

Mr. Livingston in New Orleans I do not know ; but

I recollect. he was one of the earliest emigrants to

that country, which was ceded to the United States

on the 30th of October, 1803. We are told, [Rep: 11.

Thierry 5. ) it was proved by some oral testimony

that J. Gravier began an inclosure of 500 feet square

in that year, and completed it in the next. The day

of beginning is not stated; but we may safely pre-

sume it was not 'while the French Governor thought

the country belonged to his master, and.most prob-

ably not till after " the early arrival of Mr.  Living-

ston." This enclosure was demolished by an order

of the Cabildo of Feb. 22, 1804.(2) The next step was

to make an ostensible deed, .to an osten-

sible purchaser,(3) a Peter dela Bigarre, a       [Bigarre.]

br,other emigrant of Mr. Livingston's from New

York,.some old acquaintance. This was dated

March 27, 1804, is expressed 'to be in consideration

of 10,000 dollars, and conveys two undivided thirds

of all that part or parcel of land, situate on the bank



@#(1) He says, February, 1804.

 (2) Thierry.              .

 (3) Notar. copy, Gravier to Bigarre.. @#

 







16        Jefferson's Works



(sur la rive] of the river Missisipi, between the public

road and the current of the said river, etc., with a

warranty. I call the purchases ostensible, because

notwithstanding his pretended purchase, J. Gravier,

on the 20th of October, 1805, [Rep. I.] commenced a

suit against the city, as proprietor of the whole, and

the court adjudged him proprietor of the whole ; and

because the same J. Gravier, [Poydr. 3 .] by a deed to

the same P. de la Bigarre, in which no mention was

made of the former, or reference to it; conveys to him

on the 14th Dec. 1806, the batture Ste. Marie, along

the whole limits of this land, between the road and

river, on condition that he shall pay all expenses of

the suit depending, with 50,000 dollars in addition;

that the property shall remain unsold and hypothe-

cated for the purchase money till paid, and that if

the law-suit fails; the sale is void, and Bigarre to pre-

tend to no damages for non-execution. It is observ-

able here that neither buyer nor seller risked anything.

It was a mere speculation on the- chance of a law-

suit, in which they were to divide the spoils if suc-

cessful, and to lose nothing if they failed.(1) It was by

our law a criminal purchase of a pretense title, 32.

H. 8. g. and equally criminal by the law of that terri-

tory, where I presume the provision of the Roman

law is in force, " qui improbe coeunt in alienam litem,

ut quidquid ex condemnatione in rem ipsius redac-

tum fuerit, inter eos communicaretur, lege Julia, de



@#  (1)Lafon, in his map of New Orleans, says expressly that the Mississippi,at
the city, ia €uniformly of the breadth of 300 toises only. MS. Note. @#

 







        The Batture at New Orleans     17



vi privata, tenentur." Dig. 47. 8. 6. 4 Blackst. 135. .

"Whosoever shall take part in the suit of another,

so that whatever shall be recovered by the judgment

is to be divided between them, shall be subject to the

Julian law, de vi privata. " By which law, ib. tit. 7.

ş I: they were to lose one-third of their goods, and be

rendered infamous. The deed was not only criminal

on its face, but was void by an express law of the ter-

ritory, [a law of Governor Uncaga. Poydras 6. Rep.

25.] and so pronounced to be on the floor of Congress

by their representative, because not executed before

either witnesses or notaries. I t was kept secret from

its date, till the day before judgment was pro-

nounced, when the parties becoming apprised of the

decision which was to be given, (for this was known

at least on the 20th of May,) [Governor Claiborne's

letter May 20, '07,) produced it, for the

first time, to the Notary. to be recorded.   [Decision of  Court]

And the day after its publication, the

court, by the opinion of two members against one,

[Examen 3.) adjudged the property wholly to the '

very man, who, if he had ever had any right, had

conveyed away two-thirds of it, before he

brought his action, and the whole while    [Alarm occasioned]

it was pending. The alarm which this

adjudication produced was immediate and great.

The fact was notorious that, from the earliest to the

latest extension of the beach, the public had had a

free use of it, as their Quai in low water, and in high

water their port; and never before had their right



   VOL. xviii-2

 







18        Jefferson's Works



been doubted by themselves, or questioned by their

riparian possessors: If any fact was ever proved by

human testimony, this is. Turn to the Pieces Prob-

antes, and out of 29 affidavits of the oldest and most

respectable persons in the territory, men who had,

most of them, borne offices under€their former gov-

ernment, 21 of them uniformly declare that the pub-

lic .had ever been considered as having a right to the

beach, as their port and Quai; that, as such, the Gov-

ernors and Cabildo had the constant care and con-

trol of it, had demolished buildings and enclosures

erected on it, had, by public ban, prohibited all

erections or obstructions to its use, had themselves

erected a rampart, to inclose within it a chamber ac-

cessible for earth at high water for rebuilding the city

after the fire, €and exercised uninterruptedly every

other act of authority derived from the public rights ;

and 11 of them prove, as far as a negative can be

proved, that the Gravier, till the change of govern-

ment, and new views by Edward Livingston, had

never .pretended to more than the right of Common

in it, and never had questioned that of the public, or

the authority of the Governor and Cabildo over it.

While they held the adjacent plantation indeed; they

maintained the road and bank, as. all

[Servitude of road]  rural proprietors are obliged by(1) law to

do : for here it is proper to observe, that

pursuing the spirit of the Roman law, which pre-

scribed that every one should maintain the public

@# (1) Rep. 19.@#            

 







        The Batture at New Orleans      19.



road along his own dwelling, " construat vias publicas

unusquisque secundum propriam domuin: " Dig.

43. 10. 3. The lands in Louisiana were granted gen-

erally on a condition, (called in those days servitude,)

of furnishing ground for a public road, and of open-

ing and maintaining that road. From which condi-

tion; however, they were released as to any portion

of the ground which should afterwards become a

town ; the expense of roads or streets of that portion

devolving then on the town itself. Accordingly B.

Gravier, after establishing the front of his plantation

into a suburb, and 'thus cutting off the residue from

the road' and the river, being(1) called on to `repair' the

road by an order from Governor Carondelet, who

seems at the moment not to have adverted to the

change, Bertrand Gravier answered, that having

sold the lots faisant face au flewve, fronting the river,

he had abandoned the batture to the town, and that"

the road and levee could not be at his expense, the

Governor correcting himself at once, says, "` Gravier

is right, all this is true, " and immediately, and ever

after had the repairs made by the public. And the

Graviers from that time stood discharged from these

burdens on the same principle which had freed the

original owners of the site of the city from maintain-

ing the banks of the city. This is declared by an

host of witnesses in the Pieces Probantes, and prob-

ably could have been declared by every. ancient in=

habitant-of the place. "We are told indeed by La-

@#(1) Monile's aflidavib, MS.@#

 







20        Jefferson's Works



roche and Segur, in their affidavit, [Livingston 66.)

of Carondelet, and some other Governor asking leave

of Gravier in 1795 and 1798, to deposit masts on the

beach. If this be true, which Mr. Thierry, [p. 42.]

who knew the witnesses, treats. as ridiculous and ab-

surd, it shows that they were forgetful, or inconsist-

ent, or over complaisant; but not that Gravier re-

quired, or expected to be asked ; and much less could

it divest a public right, acknowledged from the earliest

times, and essential to the commerce and existence

of the city. An accurate discrimination indeed be-

tween the measure of right in the riparian proprietor

while he held the adjacent farm, in the individuals of

the nation as usufructuaries, and in the sovereign as

their representative and trustee, as respectively ap-

portioned to them by the law, seems not to have been

attended to either by the citizens at large, or the

"adjacent proprietors. The riparian possessor ap-

pears to have been sensible he had some rights, with-

out distinctly understanding what they were :  but,

whatever they were, he knew he had parted with

them by the deeds establishing his fauxbourg. The

citizens, in the daily habit of using without control

the port and Quai, imagined themselves exclusive

proprietors of its soil, and came forward in that ca-

pacity, claiming, sometimes under some vague title

which they did not define, and sometimes under the

abandonment of right by Bertrand Gravier; the

Sovereign, formerly their kings, but now the United

States the legal holder of the public rights in the

 







        The batture at New Orleans     21



beds, beaches and banks of all navigable waters,

seems not to have been thought of at all

in the contest. The United States were [United States no party]

no party to the suit; nor could they be,

having made themselves amenable to no tribunal:

Their property can never be questioned in any court,

but in special cases in which, by some particular law,

they delegate a special power, as to the boards of

Commissioners, and in some small fiscal cases. But

a general jurisdiction over the national demenses,

being more than half the territory of the United

States, has never been by them, and never ought to

be, subjected to any tribunal. Not adverting to this

Circumstance, however, the consternation in New

Orleans, on this decision, was like that of Boston, on

the occlusion of their port by the Boston port bill.

If we have not forgotten that feeling, we may judge

what the citizens of New Orleans felt on this decree

of the court:-

I



  The Governor instantly writes, [letter of May 20,

'07.) " I understand that this morning an important

cause has been determined, in which Edward Living-

ston was the real plaintiff, and the city defendant, as

to the right of property to some lands in front of the

fauxbourg, made by the river, and over which the

city has heretofore exercised a right of ownership.

My impression is that the United States are the legal

claimants to it." On the 21st of August, 1807, Mr.

Derbigny's opinion was published, [Thierry 5.) and

first brought into view the right of the United States,

 







22        Jefferson's Works



and that the sentence of the court must of course,

to them, be a mere nullity, "res inter alios acta,

quaeque aliis non potest praejudicium facere." A

thing passing between others, and which to no others

can do prejudice. Codex. 7. 60. And coming, with

respect to the United States, under the provisions of

the same code.



@# Tit. 56. " Si neque mandasti      

fratri tuo defensionem rei tuae,  

neque quod gestum est ratnizi     

habuisti, praescriptio rei judicatae   

tibi non oberit: et idea non pro-         

hiberis causam tuam agere, sine             

praejudicio rerum judicatarum."       

                                       



" If you have not committed to

your brother the defence of your

right, nor sanctioned what has

been done,the plea rei judicatae

shall not bar you: .and therefore

you shall not be precluded from

conducting your own cause, with-

out exception from a former decision."  @#





  Certainly the city council did not appear, or pre-

tend to appear under authorization from the gov-

ernment of the United States, nor as the advocates

of their rights. . They were called there as defendants

of their own claim. The court did not undertake to

decide on the right of the United States, which was

neither before them, nor within their competence;

and the injunction€ they issued could only be ad-

dressed to the parties between whom they had ad-

judged, and not to suspend the rights of others .whom

they had never heard, much less of the United States,

who could not be heard before them. See 2 Dallas

408. 3 Dallas 412. 414. 415.



Presuming, however, that the coast was now clear,

[Livingston's intrusion] and the question finally settled, the os-

tensible actors withdrew, and their prin-

 







        The Batture at New Orleans       23



ciple comes forward, is put into possession by the

Sheriff, and begins his 'works. The Governor; in

his.letter of Sept. 3, 1807, says, " a few days since,

[Aug. 24.] Mr. Livingston employed a number of

negroes to commence digging a canal which he pro-

jected to take in a part of the land called the batture.

But the citizens assembled in considerable force and

drove them off. On the day following he went in per-

son, but was again opposed by the citizens. The

minds of the. people were much agitated. The oppo-

sition is so general that I must resort to measures the

most conciliatory, as the only means of avoiding still

greater tumult, and perhaps much bloodshed. I have

not issued a proclamation because it might make an

impression in the United States that the people are

disposed for insurrection,' which is not true. My

opinion is that the title is in the United States. If the

batture be reclaimed; it is feared the current 'of the

Mississippi will in some measure change its course,

which will not only prove injurious to the navigation,

but may occasion degradation in the levees of the

city, or those in its vicinity." To abridge our narra-

tion by giving the substance of 'the communications:

The people assembled the next day about the same

hour, and for several days successively, 'by beat of

drum. [Livingston's letter of Sept. 15. '07.) On

€Monday the 31st of August, Mr. Livingston recom-

menced his work; after having given notice that he

should do so. He began about 10 o'clock, A.M. and

about 4 or 5 o'clock in the afternoon the people

 







24        Jefferson's Works



assembled again and drove off his laborers. On the

14th. of September he again attempted to work, get-

ting two constables to attend his laborers. The

people drove .them off, and the constables having

noted on a list some of those present, they seized

them, took the list and tore it to pieces. [Sheriff's

letter.] On the next day he writes to the Governor.

that he shall set his laborers to work again that day

at 12 o 'clock, and " he shall not be surprised to see the

people change the insolence of riot into .the crime of

murder. " At noon he accordingly placed 10 or 12

white laborers there. In the afternoon the people

re-assembled to the number of several. hundreds.

The Governor repaired there and spoke to them. He

was heard with respectful attention: and one of

them, speaking for the whole, expressed the serious

uneasiness which' the decision of the court had ex-

cited, the long and undisturbed possession of the bat-

ture by the city, as well under the French as the.

[Appeal to government of the United States] spanish government, and the great
injury which would result to the inhabi-

tants if the land should be built upon and

improved. And another declaring that they wished

the decision of Congress, and in the mean time, no

work to be done on the batture, there was a general

exclamation from the crowd, "that is the general

wish, " followed by a request that they might nomi-

nate an agent to bear to the President of the United

States, a statement of their grievances, ,and that the

Governor would recommend the agent to the govern-

 







        The Batture at New Orleans     25



ment. He said he would 'do so, and they nominated

Col. Macarty, by general and repeated acclamations.

They then withdrew in peace' to their respective

homes, and on the 16th the Governor expresses the

hope that this unpleasant affair is at an end, that

everything is then quiet, and the public mind much

composed; that some of his hotheaded countrymen

censured the mild course which was pursued, and

would have been better pleased if the military had

been called upon to disperse the assemblage. But I

feel; says he, that the policy adopted was wise and

humane, and that. a contrary conduct would have

increased the discontents, and occasioned the effusion

of much innocent blood. The Louisianians, he adds,

are an amiable, virtuous people, but sensibly feel any

wrongs which may be offered them. Mr. Livingston

is alike feared and hated by most of the ancient in-

habitants. , They dread his talents as a lawyer, and

hate his views of speculation, which in the case of the

batture was esteemed very generally by the Louisian-

ians no less iniquitous, than ruinous to the welfare

of the city. " The Governor says in another letter of

October 5, to the Secretary of State, that in a prog-

ress he made a few days afterwards through several

parishes of the territory, he perceived but one senti-

ment with respect to the decision of the court. The

long and uninterrupted use of the batture by the

city, the sanction given by the Spanish authorities

to the public claim, and the heavy public expendi-

tures in maintaining the levee which fronts it, seem

 







26        Jefferson's Works



to have given rise to a very general' opinion that the

court has been in error in deciding the batture to be

private property. On the 13th of November he

again writes, " I should be wanting in duty did I not

earnestly recommend the subject of the batture to

the attention of the government. There is no doubt

but the agents of Spain considered it as a public

property, and did appropriate the same to the use of

the city, as a common. I should presume that., :un-

der the treaty, the United States may justly claim

the batture, and if.any means can be devised to ar-

rest the judgment of the territorial court, or to carry

this case before another tribunal, the earlier they are

resorted to, the better ; for Mr. Edward Livingston

is now in possession of the property, and making im-

provements thereon. " And the next day, Nov. 14,

a grand jury of the most respectable

[Livingston's work]characters of the place gave in a present-

ment to the court in which they say, "We

present as a subject of the most serious complaint the

present operations on the batture by Edward Liv-

ingston and others connected with him : that this is

from 4 to 6 months of every year a part of the bed of

the river, and an important part of the port of New

Orleans : that these operations of Edward Livingston

are calculated to obstruct the free navigation of,the

river, to change the course of its. waters, to deprive

our western brethren, . whose only market for the

produce of their extensive territory, is to be found in

this city, of the deposit which .has hitherto remained

 







        The Batture at New Orleans    27



free to them, and not only of incalculable impro-

tance; but of absolute necessity. Whether it be pri-

vate or public property; is immaterial, so long as the

laws do not permit such use of it as to injure and ob-

struct the navigation: and we present it as our opin-

ion that all such measures should be taken as are

consistent with law to arrest these operations which

are injurious for the present, and, in changing the

course of 'the river, are hazardous in the. extreme."

We find Mr: Livingston then, instead of awaiting the

decision of Congress, the only constitutional tribunal

resuming his works boldly, and the people, whom he

represented as like " to change the insolence of riot

into the crime of murder, " appealing peaceably, by

presentment, to the laws of their territory until the

National government should decide. In the latter

end of the same year, [Surveyor's Rep. to Mayor,

Dec. 28, '08.) he 'opens 'a canal from the bank directly

through the beach into the river (1)276 feet long; 64

feet wide; and 4. feet 2 inches deep at low water, and

with the earth excavated he forms a bank or quai,

on each side, 19 feet 6 inches wide, from 4 to 6 feet '

high above the level of the batture, and faced with

palisades. Within one year after this. what had

been anticipated by the Governor, the grand jury arid

others, 'had already manifested itself. In Dec: of the

ensuing' year, 1808, [See Surveyor's rep. Dec. 28,

'08.) a bar had already formed across the mouth of

the canal, which was dry at low water, the course of



@#(1) These are French measures : add a fifteenth to make them ours.@#

 







28        Jefferson's Works



the waters had been changed during the intervening

flood, and the places where dry ground first showed

itself, on the decrease of the river, were such as had

the year before, been navigable at low water. [May

or's answer to Governor, Nov: 18, '08.] The port in

front of the town had been impaired by a new batture

begun to be formed opposite the Custom house;

which could not fail to increase by the change of the €

current. The beach or batture of St. Mary had, in

that single € tide extended from 75 to 80 feet further

into the river, and risen from 2 to 5 feet 10 inches

generally, and more in places, as a saw-scaffold

which, at the preceding low tide, was 7 feet high, was

now buried to its top ; and Tanesse, the Surveyor,

[See his affidavit, MS.]in his affidavit says he does

not doubt that these works have produced the last

year's augmentation of the batture; at the expense

of the bed of the river, have occasioned the carrying

away a great part of the platin or batture of the

lower suburbs, and breaking the levee of M. Blanque

next below, and that the main port of the city being

a cove, immediately below Livingston 's works, would,

if they were continued, be filled up in time ; and it is

the opinion of Piedesclaux also, [See his 3d affidavit,

MS.] that they would produce changes in the banks

of the river, un both sides, prejudicial to the city, arid

riparian proprietors, by directing the efforts of the

river against parts not heretofore exposed to it. And

Mr. Poydras tells us, [p. 20 of one of his speeches;]

that when the river is at its height, the boats which,



 





        The Batture at New Orleans     29



drift down it can only land in the eddies below the

points, as they would be dashed to pieces in attempt-

ing to land in the strong current. That, at the town,

they cannot land for want of room, there being

always there two or three tier of vessels in close con-

tact; nor at the lower suburbs of Marigny, which

being at the lower part of the cove, are too much ex-

posed both to winds and current. Indeed no evi-

dence is necessary to prove that in a river of only

1200 yards wide, having an annual tide of 12 to 14

feet rise, which brings the water generally to within

8 or 10 inches, and sometimes 2 or 3 inches, of the top

of the levee, insomuch that it splashes over with the

wind, [See Peltier's, and Tanesse's affidavits, MS: and

also the maps,] were the channel narrowed 250 yards,

as Mr. Livingston intends, that is to say; a fourth or

fifth of its whole breadth, the waters must rise higher

in nearly the same proportion, that is to say, 3 feet at

least, and would sweep away the whole levee, the city

it now protects, and inundate all the lower country.

 Thus urged by the continued calls of the Gov-

ernor, who declared he could not be responsible for

the peace or preservation of the place, by the tumult

and confusion in which the city was held by the bold

aggressions of the intruders on the public rights, by

the daily progress of works which were to interrupt

the commerce of the whole western country, threat-

ened to sweep away a great city and its inhabitants,

and lay the adjacent country under water, I listened

to the calls of duty, imperious calls, which had I

 







30        Jefferson's Works



shrunk from, I should have been justly responsible

for the calamities which would have followed. On

the 28th of October, '07, the Attorney General had

given his opinion; and on the 27th of No-

[Cabinet deliberation]vember, I asked the attendance of the

heads of the departments, to whom the

papers received had been previously communicate d

for their consideration. We had the benefit of the

presence of the Attorney General, and of the lights

which it was his office to throw on the subject. We

took of the whole case such views as the state of our

information at the time presented. I shall now de-

velop them in all the fulness of the facts then

known, and of those which have since corroborated

them.



 The first question occurring was, what system of

law was to be applied to them ? On this

[What law?] there could be but one opinion. The laws

which had governed Louisiana from its first coloni-

zation, that is to say, the laws of France with some

local modifications, were still in force when this ques-

tion was generated by the sale of the Jesuits ' property

to B. Gravier and others. France had indeed, about

the end of the preceding year 1762, by a secret con-

vention, ceded Louisiana to Spain, to be delivered

whenever Spain should be in readiness to receive it.

But this was not announced to the inhabitants till

the 21st of April, 1764, nor did Spain receive posses-

sion till the I 7th of August, 1769. [g Raynal, 222.

235.] In the mean time the government



 











        The Batture at New Orleans   31



and laws continued, the Jesuits' property was

sold, and purchased under the faith of the existing

laws; and according to these laws must the rights

acquired by the 'purchaser, or left in the crown; be

decided. Indeed in no case are the laws of a nation

changed, of natural right, by their passage from one

to another denomination. The soil, the inhabitants,

their property, and the laws by which they are pro-

tected go together. Their laws are subject to be

changed only in the case, and extent which their new

legislature shall will. The changes introduced by

Spain, after 1769, were chiefly in the organization of

their government, and but little in the principles of

their jurisprudence. The instrument which some

have understood as suppressing the

French and introducing the Spanish code, [Proclamation of O'Reilly]

is the proclamation of O 'Reilly of No-

vember 25 ; 1769, two months after the actual deliv-

ery of the colony. (See appendix to documents

communicated to Congress by the President, with

his message of October 17, 1803.] The transfer of

the country, however, had been announced to the

people five years before. Now surely, during these

five years the French laws must have

continued entire, and of course after  [French code.]

them, so far as not altered. And that this proc-

lamation made specific € only, and not general alter-

ations, a brief examination of its tenor will evince.

it begins by charging the late council with a parti-

cipation in the insurrection which had taken place,

 







32        Jefferson's Works



and by declaring it indispensable to abolish that,

and to establish the form of politic government and

administration of justice prescribed by the wise

laws of Spain. But a form of government may surely

be changed, and the mass of laws remain the same,

as took place in our revolution. He proceeds then

to establish that form of government, dependence and

subordination, which should accord with the good of

the service, and happiness of the colony. For this

purpose he substitutes a Cabildo, in place of the

ancient council, and instead of former analogous

officers, he says there shall be Alferes, Alcades, Al-

guazils, Depositors, Regidors, a Scrivener, Procura-

tor, Mayordomo, etc. ; adopting thus the Spanish

instead of the French organization of officers, for the

administration of the laws. He changes the manner

of proceedings in judicial trials, and of pronouncing

judgments, according to a digest made by Unestia

and Rey, by his order, until a general knowledge of

the Spanish language and more extensive informa-

tion on the statutes themselves might be acquired;

prescribes rules for instituting actions by parties, of

different denominations, the names and substance

of the pleadings, rules for appearances, answers,

replications, rejoinders, depositions, witnesses, excep-

ions, trials, judgments, appeals, executions, testa-

ments, 'probates, advancements, and distributions :

not changing the great outlines of the law; or the

ratio decidendi generally; but merely the organiza-

tion of officers, and forms of their proceeding. He

 







        The Batture at New Orleans     33



states also the criminal law, what it is in sundry cases

of irreligion, treason, murder, theft, rape, adultery.

and trespass, proclaiming mostly what was already

law; lastly, he establishes the fees of officers, and

with that closes the proclamation, without a word

said about abolishing the French, and substituting

the Spanish code of laws generally. As far then as

this instrument makes any special changes, its

authority is 'acknowledged. But the very act of

making special changes is a manifestation that a

general one was not then intended. He did not mean

by this instrument to change " all and some. " One

may indeed conjecture, from loose expressions in the

instruments, that a more extensive change was in

contemplation for some future time, when the in-

habitants, as it says, should have acquired a general

knowledge of the Spanish language. But until then

expressly, and in the interim, the innovations it speci-

fies are the only ones introduced. The great system

of law which regulates property, which prescribes

the rights of persons and things, and sanctions to

every one the enjoyment of those rights, is left un-

touched, in full force and authority. If such a rad-

ical change were really meditated, it was never car-

ried into execution; nor seems at any after time to

have occupied seriously the attention of government.

In the following year 1770, O'Reilly issued an addi-

tional ordinance respecting grants of lands; and

Carondelet, in 1795, (26 years after the possession

of the colony, and a year only before its transfer to



  VOL. XVIII-3

 







34        Jefferson's Works



us,) passed an ordinance of police concerning bridges,

roads, levees, slaves, coasters, travellers, arms, estrays,

fishing and hunting; and these three acts seem to

constitute the whole of the changes made in the

established system of laws during the Spanish occupa-

tion of the country. Probably the Spanish author-

ities found, in the progress of their administration,

that the difference between the French and Spanish

codes, taken both from the same Roman original,

would not justify disturbing the public mind, by a

formal suppression of the one, and substitution of

the other. Probably the officers themselves, not

adepts in either,and partly French, and partly Span-

ish individuals, confounded them in practice as they

found convenient ; and hence the ill-defined ideas of

what their laws were. But certainly when we appeal,

as in the present case, to exact right, the French

code is the only one sanctioned by regular authority ;

and the special changes before mentioned, of organ-

ization and police, having no relation to the beds

and increments of rivers, that code is €to give us the

law of the present case. That code,like all those of

middle and southern Europe, was originally feudal,

(Encyclop. Method. Jurisprudence. Coutume. 400.]

with some variations in the different provinces, for-

merly independent, of which the kingdom of France

had been made up. But as circumstances changed,

and civilization and commerce advanced, abund-

ance of new cases a,nd questions arose, for which the

simple and unwritten laws of feudalism had made

 







        The Batture at New Orleans     35



no provision. At the same time, they

had at hand the legal system of a nation

highly civilized, a system carried to a degree of con-

formity with natural reason attained by no other.

The study of this system too was become the favorite

of the age, and, offering ready and reasonable

solutions of all the new cases presenting them- .

selves, was recurred to by a common consent and

practice ; not indeed as laws, formally established

by the legislator of the country, but as a RATIO

SCRIPTA, the dictate, in all cases, of that €sound

reason which should constitute the law of every

country.(1) Over both of these systems, however, the



@# 1 The following instances will give some idea of the steps by which

the Roman gained on the Feudal laws. A law of Burgundy provided

that " Si quis post hoc barbarus vel testari voluerit, vel donare, aut

Romanam consuetudinem, aut barbaricam, esse servandam, sciat."

" If any barbariart subject hereafter shall desire to dispose by legacy or

donation, let him know that either the Roman or barbarian law is to :

be observed." Aizrl one of Lotharius, II. of Germany, going still

further, gives to every one an, election of the system under which he

chose. to live. " Volumus, ut cunctus populus. Romanus interrogatur

quali lege vult vivere: ut tali lege, quali professi sunt vivere vivant:

illisque denuntiatur, ut hoc unusquisque, tarn judices, quam duces, vel

reliquus populus sciat, quod si offensionem contra eandem legem

fecerint, eidem legi, qua profitentur vivere, subjaceant." "We will

that all the Roman people shall be asked by what law they wish to

live :. that they may live under such Law as they profess to live by :

and that it be published, that every one', judges, as well as generals, or

the rest of the people, may know that if they commit offence against

the said law, they shall be subject to the same law by which they

profess to.live." Encyc. Method. Jurisprudence, Coutume. 399. Pre=

senting the uncommon spectacle of a jurisdiction attached to persons,

instead of places. ' Thus favored, the Roman became an acknowledged

supplement to the feudal or customary law: but still, not under any

act of the legislature, but as "raison ecrite" and the @#

 







36        Jefferson's Works



occasional edicts of the monarch are paramount; and

amend and control their provisions whenever he

deems amendment necessary ; on the general prin-

ciple that " leges posteriores priores abrogant. (1)

Subsequent laws .abrogate those which were prior.

This composition of the French code is affirmed by

all their authorities. One only of them shall be

particularly cited, to wit, Ferriere Dict. de droit.

Ordonnance. ,



  " Les Ordonnances sont les

vraies lois du royaume. Elles

font la partie la plus generale et la

plus certaine de notre droit Fran-

Sais, attendu qu'elles sont sou-

tenues de l'autorite aussi bien que.

de la raison; au lieu que les loix

Romaines ne subsistent que par

leur equite, elles n'ont par elles-

memes aucune autorite, qu'au-

tant quelles sont considerees

comme une raison ecrite, du

moins en pays coutumier; et a.

l"gard du pays de droit ecrit, les

loix Romaines n'y ont force de loi,

que parceque nos rois ont bien

voulu y consentir



  The Ordinances are the true

laws of the kingdom. They con-

stitute the most general and cer-

tain part of our French law, in as-

much as they are supported by

authority as well as reason;

whereas the Roman laws stand on

their equity alone, having of

themselves no authority, but as

they are considered as written

reason, at least in the provinces

of Customary law. And as to

those of written law, the Roman

laws are in force only because our

kings have thought proper to con-

sent to it.





This system of law was transferred to Louisiana, as



@#cases to which it is applicable, becoming much the most numerous, it

constitutes in fact the mass of their law.

(1) Since this publication, Gen. Armstrong, our late Minister at Paris,

has sent me a printed copy of Crozat's Charter in French, which he

says he obtained directly, and in person from the depot of laws in

Paris, but which he had no means of comparing with the original.

This printed copy, with Gen. Armstrong's letter, . I have deposited in

the office of the Secretary of State at Washington. MS. Note.  @#

 







        The Batture at New Orleans     37







is evinced by the (1)charter of Louis XIV. to Crozat,

bearing date the I 4th of Sept. 1712. The VIIth

article of that is in these words. " Our edicts, ordi-

nances and customs, and the usages of the Mayor-

ality and Shreevalty of Paris, sh.all be observed for

laws and customs in the said country of Louisiana."

The customary law of Paris seems to have been

selected, because considered as the best digest, and

that to which it was proposed to reduce the custo-

mary law of all the provinces. Enc. Meth. Jurispr.

Coutume. 405. This is the first charter we know of

which established the boundaries and laws of Louis-

iana. It says nothing of the Roman law; but that,

having become incorporated, by usage, with the cus-

toms of Paris, and constituting, as a supplement, one

system with them, seems to have been considered as

of their body, and transferred with them to Louis-

iana.(2) In 1717, Crozat transferred his rights to the



@#  (1) The only copy of this Charter I have ever met with is in Joutel's

 Journal of La Salle's last voyage. An application was made by the

 government of the United States, through their minister at Paris, to

 the government of France, for permission to have the original of this

 charter sought for in their Archives, and an authentic copy obtained.

 The application was unsuccessful. We must resort, therefore, to this

 publication, made in LI;; two years after the date of the patent, under

 the rule of law which recluires only the best evidence the nature of the

 case will admit. For although we may not appeal 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 docu-

 ments are not under control; as when they are in foreign countries, or

 even in our own country, when they are not patent in their nature, nor

 demandable of common right.



  (2)If it be objected that the incorporation of the Roman law with the

 customs of Paris, and their joint transfer to Louisiana does not appear, @#

 







38        Jefferson's Works



Compagnie d'Occident, at the head of which was the

famous Law, 8. Raynal: 166. [edit. 1780:] which

again in 1720, by union with others, became the Com-

pagnie des Indes, who in 1731, surrendered the ,col-

ony back to the king. r. Valin, 20. But these var-

ious transfers from company to company, of the

monopoly of their commerce, for that was the sum of

what was granted them, and their final surrender to

the king, could not affect the rights of the people, nor

change the laws by which they were governed.

When they returned to the immediate government of

the king, their laws passed with them, and remained

in full force until, and so far only as, subsequently

altered by their legislator. That this was the sense

of their government may be inferred from a clause in



@#I answer, 1. At the 'date of Crozat's charter, the Roman law had for

many centuries been amalgamated with the customary law of Paris,

made one body with it, and its principal part. By the customs of Paris

were doubtless meant the laws.of Paris, of which the Roman then made

an important part, and might well be understood to be transferred with

them. It was hardly intended that the new colonists were to unravel

with this web, and to take out for their own use only the fibres of Parisian

customs, the least applicable part of the system to their novel situation.

i. If the term, costumes de Paris in the charter be rigorously restrained

to its literal import, yet the judges of Louisiana would€have the same

authority for appealing tb the Roman as a supplementary code, which

the judges of Paris and of all France had had; and even greater, as

being sanctioned by so general an example. 3. The practice of con-

sidering the Roman law as a part of the law of the.land in Louisiana,

is evidence of a general opinion of those who composed that state, that,

it was transferred, and of an opinion much better informed, and more

authoritative than ours can be. Or it may be considered as an adop-

tion, by universal, though tacit consent, of those who had a right to

adopt, either formally, or informally, as they pleased; as the laws of

England were originally adopted in most of these states, and still

stand on no other ground.  @#

 







        The Batture at New  Orleans     39



the edict creating the Compagnie des Indes Occiden-

tales, art. 34.



  " Seront les juges etablis en tons

es dits lieua tenus de juger sui-

vant les lois et ordonnances du

royaume, et les officiers de suivre

et se conformer a la coutume de la

Prev8t6 et vicomte de Paris;

suivant laquelle les habitans pour-

ront contracter, sans que l'on y

puisse introduire aucune autre

coutume, pour eviter la diversite. "

I. Moreau de St. Mery, 100.



  " The judges established in all

the said places shall be held to

adjudge according to the laws and

ordinances of the kingdom, and

the officers ta follow and conform

themselves to the customs of the

Prevote and vicomte of Paris, ac=

cording to which the inhabitants

may contract, without that any

other custom may be introduced,

to avoid diversity." 1. Moreau

de St. Mery, 100.



  This then is the system of law by which the ' legal

character of the facts of the case is now to

be tested : and the plaintiff and his counsel [Alluvion.]

having imagined that, in the Roman branch of it,

they had found a niche in which they could place the

batture to great advantage, have availed themselves of

it with no little dexterity and by calling it habit€ally

an alluvion, have given a general currency to the

idea that it is really an alluvion : insomuch that even

those who deny their inferences, have still suffered

themselves carelessly to speak of it under that term.

Were we, for a moment to indulge them in this mis-

nomer, and to look at their claim as if really an allu-

vion one, the false would be found to avail them as

little as the true name. The Roman law indeed says,

"quod per alluvionem agro tuo flumen adjecit, jure

gentium, tibi adquiritur.'.' "What the river adds .to

your field by alluvion; becomes yours by the law of

 







40        Jefferson's Works



nations. Institute. L. I. tit. I.   20. Dig. L. 41.

tit. 1.  7. The same law, in like manner, gave to

the adjacent proprietors, the sand bars, shoals,

islands rising in the river, and even the bed of the

river itself, as far as it was contracted or deserted.

Inst. 2. 1. 22. and 2. 1. 23. But the established laws

of France differed in all these cases.



  "Par notre droit Fransais, dit

Pothier, les alluvions qui se font

eur le bord des fleuvea, et des

rivieres navigablee, appartiennent

au roi. Les proprietaires riveraina

n'y peuvent rien pretendre, a

moins qu'ils n'ayent des titres de

la concession que le roi leur aurait

faite du droitd'alluvion." x.

Pothier. Traite de la propriete.

x Part. c. 2.   3. art 2. No. 159.



  "By our French law, says

Pothier, one of their most re-

spected authorities, the alluvions

formed on the borders of navi-

gable streams and rivers belong to

the king. The proprietors of

ripasian heritages can have no

claim to them, unless they have

evidences of the grant made to

them by the king, of the right of

alluvion along their heritages. "

Pothier, Part 1. c. 2. ş 3. art. 2.

No. 159. cited Derbigny, xviii.



 And Guyot, in the Repertoire Universel de Juris-

prudence, a work also of authority and cited with

approbation by the plaintiff and his counsel, (Liv. 21.

Du Ponceau, 14.] under the word "ile," says,



  "Nous n'admettons pas comme

les Romains, les alluvions, et les

accroissemens, au profit des pro-

prietaires riverains, soit par les

changemens qui peuvent survenir

dans le lit des rivieres, soit rela-

tivement aux iles, et ilots qui

peuvent s'y former. Chez eux le

lit, et les bords des fleuves et

rivieres etaient censes faire partie

des heritages riverains ; et par une

suite de ces maximes, le terrain



  " We do not admit, as the Ro-

mans, alluvions and accumula-

tions to go to the riparian pro-

prietors, either by changes which

may happen in the bed of rivers,

or relating to isles, and islets

which may there be formed.

with them the bed and borders

of rivers and streams were con-

sidered as making part of the

riparian inheritances; and as a

consequence of these maxims, the


        The Batture at New Orleans     41





qu'un fleuve ajoutait a ces heri-

tages, appartenait a ceux qui en

etaient proprietaires. Ils reunis-

saient de m@me a leurs possessions

le lit que le fleuve abandonnait ; et

lorsqu'il se forxnait une ile dans le

milieu de son lit, les riverans y

avaient un droit @gal, et en part-

ageaient la propriete. Suivant

nos principes, les rivieres navi-

gables, leur lit, rives, et tous les

terrains qui peuvent s'y former,

appartiennent' au roi, a. raison de

sa souverainete. C'est la disposi-

ion precise de l'article 42. du tit.

37 de l'Oxdonnance des eaux et

forets de 1669, qui a dissipe tous

les doutes que l'on cherchait a

faire naitre dans plusieurs prov-

inces, sur les fondemens des enon-

ciations qui se rencontraient dans-

les anciennes concessions."



earth which a river added to these

inheritances, belonged to those

who were the proprietors of them.

They reunited in like manner to

their possessions the bed which a

river abandoned, and when an

isle €was formed in the middle of

its bed, the riparians had an equal

right to it, and divided the prop-

erty. According to our principles,

navigable streams, their bed,

banks, and all the grounds which

may be formed there, belong to

the king, in right of his sove-

reignty. It is the precise pro-

vision of art. 41. tit. 37. of the

Ordonnance des eaux et forets,

which has dissipated all the

doubts which they had endea-

vored to raise in several provinces,

on the grounds of the enunciations

which were found in the ancient

concessions." Cited Derbigny 23.



  Again, after laying down the Roman law of allu-

vion, and of islands formed in the beds of rivers, Le

Rasle, in the law Dictionary, forming a part of the

Encyclopedie Methodique. Jurisprud. accession. 94,

says,



  "Nous n'avons pas suivi dans,

notre droit FranSais les dispo-

sitions Romaines a cet egard;

toutea les isles ou autres atte-

rissemens qui se forment dans

les rivieres appartiennent au roi;

et font partie du d maine. Les

terres ajoutees par alluvion aux

h6ritages baignes par le fleuve et

les rivieres navigables, n'appar-

  "we have not in our French

law followed the Roman provi-

sions in this respect ; all islands or

other accumulations which are

formed in rivers, belong to the

king, and constitute a part of the

domain. Lands added by allu-

vion to inheritances washed by

rivers and navigable streams, do

not belong' to the iiparians, but

 







42        Jefferson's Works



tiennnent aux rivcrains, que

lorsqu'ils ont un titre dc conces-

sion qui leur permet de se les

approprier. "



when they have a deed of conces.

sion which permits them to appro-

priate them to themselves."



And Ferriere, quoted also by the plaintiff, says,



  "Pour ce qui regarde l'augmen-

tation arrivee a un heritage sub-

itement et tout d'un coup, la

decision que les loix Romaines ont

faites a cet egard n'est point ob-

servee dans le royaume. Cette

augmentation appartient au roi,

dans les rivieres navigables." And

Denizert agrees, " que les atteris-

sements formes subitement dans

le mer, ou dans les fleuves ou

rivieres navigables, apparticnnent

au roi, par le seul titre de aa

souverainete."



  "As to augmentations happen-

ing suddenly and all at once, the

decision of the Roman laws in

this respect, is not observed in the

kingdom. These augmentations

belong to the king in navigable

riven." And Denizert agrees,

" that atterrissements formed sud-

denly in the sea, or the navi-

gable riven or streams, belong to

the king in the sole right of his

sovereignty





And he refers to the edicts of 1683, 1693, and 1710.

And to put aside all further question as to the law

of France on this subject, Louis XIV. by an edict of

December 15, 1693, says,



  "Louis, etc. salut. Le droit de

propriete que nous avons sur tous

les fleuves et rivieres navigables

de notre royaume, et consequem-

ment de toutes les isles, moulins,

bacs; etc. atterissemens et accrois-

semens formes pas les dites fleuves

et rivieres, etant incontestable-

ment etabli par les lois de l'etat,

comme une suite et une depend-

ence necessaire de notresouve-

rainete, les rois nos predecesseurs

et nous, avons de tema en lemi,



Louis, etc., Greeting. The

right of property which we have

in all rivers and navigable streams

of our kingdom, and consequently,

in all the isles, mills, ferries, etc.,

accumulations and increments

formed by the said rivers and

navigable streams, being incon-

testibly established by the laws of

the state, as a necessary conse-

quence and dependence of our

sovereignty, the kings, our prede-

cessors, and ourselves, have from

 







        The Batture at New Orleans     43





ordonne des recherches des isles et

cremens qui s'y sont formes, etc.

A ces causes, de l'avis de notre

conseil et de notre certaine sci-

ence, pleine puissance et autorite

royale, nous avons par ces pre-

sentes, signees de notre main, dit,

statue et ordonne, disons, statu-

ons et ordonnons, voulons et nous.

plait, que tous les detenteurs, pro-

prietaires, ou possesseurs des iles,

ilots, atterissemens,accroissemens,

alluvions, droits de peche, peages,

ponts, moulins, bacs, coches, ba-

teaux, edifices et droits sur les'

rivieres navigables de notre roy-

aume, qui rapporteront des titres

de .propriete ou de possession,

avant le ier Avril, 1566, y soient

maintenus et conserves dans leurs

possessions, en payant au fisc une

annee, et ceux sans titre, ni pos-

session anterieurs au xer Avril,

1566, en payant deux annees de

revenu. "



time to time, ordered inquiries as

to isles and increments therein

formed, etc. For these causes,

with the advice of our council,

and of our certain knowledge, full

power and royal authority, we

have by these presents, signed

with our hand, declared, enacted

and ordained, and we do declare,

enact and ordain, we will, and it

is our pleasure that all the

holders, proprietors, or possessors,

of isles, islets, accumulations, in-

crements, alluvions, rights of

fishery, tolls, bridges, mills, fer=

ries, packets, bateaux, edifices

and imposts on the navigable

rivers of our kingdom which shall

produce titles of property or of

possession before the 1st of April,

1566, shall be therein maintained

and secured in their possessions,

on paying to the treasury one

year's revenue, and those without

title papers, or possession prior to

the 1st of April, 1566, on payment

of two years' revenue."



  Having no copy of this Ordinance, I quote it from

Mr. Derbigny, p. 20. Duponceau, p. 10, and l'Examen

de la Sentence, p. 8, by putting together the parts

they cite, for neither gives the whole of what I have

cited. Other respectable authorities might be pro-

duced, to the same effect, were it necessary to mul-

tiply them : and it is also admitted that authorities of

weight, and of a different aspect exist, among these is

Dumoulin, as respectable as Pothier, Guyot, or any

other who has been Were it absolutely in-

 







44        Jefferson's Works



cumbent on me, more than on those who rely on the

contrary authorities, to assign reasons for a differ-

ence of opinion among lawyers, on any point, it

might be ascribed in this case to a difference of im-

pression from views on the same subject, diversified

as were the customs of the various provinces of

France, on this very point. Dumoulin wrote a cen-

tury and a half before the Ordinance of Louis XIV.

In that course of time printing had become more

diffused, books greatly multiplied, and a more cor-

rect collation of these customs could be made. So

that had Dumoulin written in the days of Pothier

and Guyot, and with their advantages, he would

probably have concurred in the preceding observa-

tion, that, "if there were any doubts, this Ordinance

has dissipated them. " Be this as it may, Louis XIV.

and his council have decided between. these two opin-

ions, and if it were not law before, his decision made

it so. By this edict he declares the law of France,

"incontestably," to be that "Alluvions belong to the

king in all navigable ' rivers. " But with a spirit of

indulgence, meriting more respect than he has found

in the language of the adverse party who dislike the

truths he has declared, he confirmed all anterior

usurpations, on payment of certain compositions and

future rents, re-establishing, by the example, the

authority of the laws, and rights of the crown against

these usurpations. This Ordinance was passed nine-

teen years before the charter to Louisiana, and

consequently was comprehended among the edicts

 







        The Batture at New Orleans      45



and ordinances originally established as the law of

the Province.



 Mr. Livingston and his advocates have asserted

that the right to the beds and increments of rivers, is

a gift of the feudal system to the sovereign, that is, to

the nation, and is a peculiarity of that system: and

further, that that system was never introduced into

Louisiana. That the latter assertion is palpably

erroneous, could be readily shown, were not the ques-

tion altogether unnecessary. With respect to the

former, surely it is putting the cart before the horse to

say, that the authority of the nation flows from the

Feudal system, instead of the Feudal system flowing

from the authority of the nation. That the lands

within the limits assumed by a nation belong to the

nation as a body, has probably been the law of every

people on earth at some period of their history. A

right of property in moveable things is admitted

before the establishment of government. A separate

property in lands not till after that establishment.

The right to movables is acknowledged by all the

hordes of Indians surrounding us. Yet by no one of

them has a separate property in lands been yielded to

individuals. He who plants a field keeps possession

till he has gathered the produce, after which one has

as good a right as another to occupy it. Govern-

ment must be established and laws provided, before

lands can be separately appropriated, and their

owner protected in his possession. Till then the

property is in the body of the nation, and they, or



 









46        Jefferson's Works



their chief as their trustee, must grant them to indi-

viduals, and determine the conditions of the .grant.

In certain countries, they have granted them on a

system of conditions and principles which have ac-

quired the appellation of Feudal. Surely then it is

the sovereign which has created the Feudal princi-

ples, and not these principles which have created the

Lights of the sovereign. The Edinburgh Reviewers,

(No. 30. 339. Jan. 1810.] who in the progress of their

work have deservedly attained a high standing in the

public estimation, reviewing the condition of land-

tenures among the Hindoos, say, "the territory of

the nation, belonging in common to the nation, be-

longs; in this general sense, to' the king, as the head

and representative of the nation. As far accordingly

as we have sufficient documents respecting rude

nations, we find their kings, without perhaps a single

exception, recognized as the sole proprietors of the

soil. And they quote as their authorities, '



        In Europe



  For Wales, Leges Walliae. c. 337.

  Great Britain. The Bretons while they held the

whole island, Turner's Anglo Saxons, c. 3.

  Gaul and Germany. Caesar, 4. I. To which add

Spain, Portugal, Italy, and all feudal states.



        In Asia.



  For China. Barrow. 397.

  India: Montesq. Sp. L. 14. 6. Scott's Ferishta, vol.

148-495 € 2. Bernier, 189.

 







        The Batture at New Orleans       47



Persia. 3. Chardin, 340. Syria and the Turkish

dominions. 2. Volney, 402.



                  In Africa.



For Egypt. Herodot. 2. 109. Volney passim.

Others part of Africa. 4. Hist. gen. des voyages

13. v. do. 7. 5. 17. Mod. Univ. Hist. 322. Parke, 260.



               In America.



 For the Spanish part.  Acosta 6. 15. and 18. Gar-

cilaso, I. 5. I. Carli. letter 15.



 For the United States and the Indian hordes of

our continent, we cite our own knowledge.



 It seems then to be a principle of universal law

that the lands of a country belong to its sovereign

as trustee for the nation. In granting appropriations,

some sovereigns have given away the increments of

rivers to a greater, some to a lesser extent, and some

not at all. Rome, which was not feudal, and Spain

and England, which were, have granted them largely ;

France, a feudal country, has not granted them at

all on navigable rivers. Louis XIV. therefore was

strictly correct when in his edict of 1693, he declared

that the increments of rivers were incontestably his,

as a necessary consequence of the sovereignty. That is

to say, that where no special grant of them to an

individual could be produced, they remained in him,

as a portion of the original lands of the nation, or as

new-created' lands, never yet granted to any indi-

vidual. They are unquestionably a regalian, or

 







48        Jefferson's Works



national right, paramount, and pre-existent to the

establishment of the feudal system. That system

has no fixed principle on the subject, as is evident

from the opposite practices of different' feudal na-

tions. The position, therefore, is entirely unfounded,

that the right to them is derived from the feudal law ;.

and it is consequently unnecessary to go into the

proof of what the grants in that country exhibit

palpably enough, that infeudations were partially at

least, if not generally, introduced into Louisiana.

  It ought here to be observed however that, so far

as respects the beds and navigation of rivers, the

right vested in the sovereign is a mere trust, not

alienable. It is not like lands, imposts, taxes, an

article of public property constituting the revenues

of the state, but like roads, canals, public buildings,

reserved for the use of the individuals of the nation.

See an explanation of this subject, Vattel I. 235. 239 



  I have now to advert, and I do it with extreme

regret, to a passage in the very able Memoire of M.

[M. Thiery] Thierry, a Memoire conspicuous for its

learning and sound reasoning, and to

which I acknowledge myself peculiarly indebted for

information on the points he has discussed. He

says, p. 30, "To the ancestors of John Gravier the

right of alluvion belonged not only by virtue of the

Coutumes de Paris, which for two centuries back

acknowledged the principle of the Roman law, and

against which, for that reason, the Ordinances of the

kings of France could with no manner of success be

 







        The Batture at New Orleans     49



pleaded, inasmuch as a royal ordinance specially

made that Coutume the civil law of this colony ; but

also by virtue of the Spanish laws, which from 1769,

have been constantly in force in Louisiana. " I.

That the Roman principle of Alluvion was acknowl-

edged by the Coutumes de Paris has not been proved.

The adverse counsel, (Dupon. p. g.] has said indeed,

that those Customs were silent on this subject. But

I have considered Pothier, Guyot, and Le Rasle as

better authority. 2. Mr. Thierry supposes that a

Royal Ordinance having specially made that Cou-

tume the civil law of Louisiana, the Ordinances of

the kings of France were excluded from the system,

and could not control what was Coutume. He had

not; I presume, seen the charter of 1712, which makes

the edicts and ordinances, with the Coutume de Paris;

the law of that province ; nor sufficiently considered

that had the Coutumes been alone established by

one ordinance, another might change them. 3. He

supposes the Spanish laws have given Alluvions to

the riparian proprietor. But the laws of the prov-

ince, established by their charter, were not annulled

by the change of one king for another, as their legis-

lator. The latter might change them. But has

he done so? If he has, his edict must be produced,

that we may weigh its words, and judge of its effects

for ourselves. And we must guard against admit-

ting that the example of a Spanish Governor, if such

example has occurred, occasionally and incorrectly

acting on- the laws of Spain, amounted to a repeal



   VOL. XVIII-4

 







50        Jefferson's Works



of the whole system then existing, and a formal es-

tablishment of a different one. No such intention

on his part, to make so momentous a change, should

be so slightly inferred; and no power of his could

effect it, even if intended. Nothing less than an

Ordinance of the Sovereign himself, signed with his

own hand, and sanctioned by all the solemnities

attending their enactment and promulgation, was

competent to reverse at once the legal condition of a

whole people, and the laws under which their 'lives

and properties were held. Again, even such an

ordinance could not change the law as to past rights ;

and those now in question were vested before the

Spanish government took place, and could not be

annulled by a subsequent law. These gratuitous

admissions, therefore, of Mr. Thierry, not at all

necessary to his argument, and therefore probably

not well considered, and in opposition to the opinions

and demonstrations of an able brother counsellor

(Mr. Derbigny), must be disavowed, and the author-

ity of the Ordinance of 1693 insisted on with undi-

minished confidence. Mr. Thierry himself will per-

haps the more readily abandon them, when he sees

with what avidity his eagle-eyed adversary has

pounced upon them in a letter to some member of

the government, in which he considers them as

giving up all ground of opposition to his claims.

 To that edict then I shall now recur; and to the

   [Edict of Louis XIV] of cavils raised against it by the advocates

   of the claims it annihilates. It - is idle



 







        The Batture at New Orleans     51



for them to call it bursal, fiscal, and the act of a

tyrant, etc. [Duponc. 10.) as if the authority of laws

was to be graduated by the character of the exist-

ing legislator ; and as if we were to be the judges, for

other nations, of the character and obligation af

their laws. It is vain to pretend that because the

word " Alluvion, " inserted in the enacting clause

of the edict, is not in the preamble, therefore it has

no force in the body of the law: as if the preface,

giving the general reason and views of the law, was

alone to be the law, and its actual enactments a mere

nullity. Although the preamble of a statute is con-

sidered as a key to open the mind of the makers as

to the mischiefs in their view, yet in general it is no

more than a recital of some inconveniences, which

does not exclude any other for which the enacting

clauses provide; nor must the general words of an

enacting clause be restrained by the particular

words of the preamble. 6. Bac. Abr. Statute. I. z.

and the authorities there stated. So says our law;

so says reason; and so must say the Roman law, if

it be ratio scripta. But it is further to be observed

that the words "atterrissements and accroisse-

ments," accumulations and increments, used in this

preamble are generic terms, of which " Alluvion " is

a species, and therefore strictly comprehended by

it. This is proved by the Roman definition, " Allu-

vio est incrementum latens, " " alluvion est un ac-

croissement ou crement imperceptible, " by the

Napoleon code cited by Mr. Livingston:

 







52        Jefferson's Works



" Les atterisse-   

[Napoleon code] ments et accroise-           

Code. ments qui se for-              

ment successive-   

ment et imperceptiblement aux   

fonds riverains d`un fleuve, ou   

d'une riviere, s'apellent    Allu-

vion."  556.       





" The accumulations and incre-          

ments which form themselves

successively and imperceptibly

against. the riparian lands of a

river or stream are called Allu-

vion." Sect.  556.





And by the edicts of 1686 and 1689, both of which

have the expression "cremens qui s'y

[Portalis], Sont formes, soit par alluvion, ou par

industrie, etc. And here Portalis's rhetorical flour-

ish, on presenting this law, is cited, [Duponc. 17.

Liv. 22.) with triumph, as declaring that this law

terminates the great question of Alluvion, and de-

cides it conformably to the Roman law. It is very

true indeed that it has terminated the question as

to future cases, by changing the law, by transferring

the right of Alluvion from the sovereign to the

riparian proprietor, by giving the abandoned bed

of a river, as an indemnification to him on whose

land it has opened a new passage, and making this

the future law of all the provinees. And had Louis-

iana then been subject to France, the law would

have been changed thence forward, for Louisiana also.

I find no fault with Napoleon for this Roman predi-

lection. I believe the change is for the better, so

far as concerns rural possessions. A decision too

of the parliament of Bordeaux is quoted by Mr.

Duponceau 19. to prove that the law giving Alluvion

to the adjacent possessor has been acknowledged

in France by the decision of the parliament of

 







        The Batture at New Orleans     53



Bordeaux, confirmed, as he has heard, on appeal

by the parliament of Paris. This proves only that

the Roman law of alluvion was the law of the Gen-

erality of Bordeaux, not that it was then the law

of all France. In the country called the Bordelois,

Customary laws prevail. But



"Lorsque la coutume de Bor-          

deaux ne s'est pas expliquee sur     

certains points de droit, ce n'est    

ni a la coutume de Paris, ni a       

d'autres coutumes qu on a recours    

pour les faire decider, mais au      

droit ecrit." Enc. Meth. Jurisp.     

Bordeaux."                          





"When the Custom of Bor-

deaux has not sufficiently ex-

plained itself on certain points of

law, it is neither to the Customs of

Paris, nor to other customs that

recourse is had for decision, but to

the written law," [that is, the

Roman law.]







The inference then is, either that the Coutume de

Bordeaux was the same on this point as the Roman

law, or, that being silent, the Roman law was referred

to.(1)



  Surely never was the urgency of squeezing argu-

ment out of everything so apparent, as in the em-

phasis with which the adverse party presses and com-

merits, [Liv. 32.] on the answers of the several tri-

bunals, to which the Napoleon Code was referred for

consideration and amendment. A dozen tribunals

are named, with an etc. for more, who are acknow-

ledged to have said nothing about alluvion : and this

is produced as proof that it had belonged before to



@# 1 M. Moreau de Lislet assures us that he was in Paris at the time of

the decision of this appeal from Bordeaux, that the decision of Bordeaux

was reversed by the king and council, then referred to the Parliament

p,f Paris, and the reversal confirmed by that body. See his Memoire, 50, @#

 







54        Jefferson's Works



the riparian proprietor. But it proves more prob-

ably that these tribunals were contented with the

change proposed, and had no amendment of it to

offer. But, in truth, it proves nothing either the one

way or the other. The tribunal of Paris is then

quoted, with an acknowledgment that they do not

make a single observation on the subject. Then

long extracts from that of Rouen, proposing that

islands, rising in the rivers, shall be given to the ripa-

rian proprietors : and recommendations to the same

effect from those of Toulouse and Lyons. Now it is

remarkable that neither the word "Alluvion, " nor

the idea of the thing, is either expressed or referred

to in any one of these quotations. And yet Mr. Liv-

ingston says, "we find all these learned men either

passing over these articles, as merely declaratory of

the old law, or else expressly acknowledging them as

such ; " and again after the citation from Rouen,

"here we have the positive declaration of a learned

tribunal, etc. , deciding that the edicts did not extend

to alluvions, but only to islands in navigable rivers. "

And yet I repeat that neither the word nor the idea

is to be found in any one of the quotations ; for it is of

these only I can speak, not possessing the book, but

I presume Mr. Livingston's quotations are of the

strongest passages. It is impossible to characterize

such reasoning respectfully. I shall therefore leave

it to the reflection of others. And I think myself

authorized to conclude on the whole, that had the

Batture been really an Alluvion, its ownership was

 







        The Batture at New Orleans      55



to be decided by the laws of France : and that Louis

XIV. with the advice of his council, certainly knew

when they declared what the law of their country

" incontestably " wa.s ; and if we, with our scanty

reading on the subject, at this day and distance,

know better than they did, yet the enacting clause

of the edict made it the law thenceforward; that it

came over as law for Louisiana, made the batture, if

an alluvion, the property of the sovereign ; and cer-

tainly the whole tenor of the conduct of the Spanish

government proved that they did not mean to relin-

quish it.



 Before we quit this branch of the discussion, it is

not amiss to observe that the eloquent declamations

of these learned men of Rouen, so much eulogized by

Mr. Livingston, were not at all heeded. The Na-

poleon code, ş 560, retained the islands rising in the

beds of navigable or floatable rivers, and (changing

the French law only as to alluvions) declares,  538,

in opposition to the Roman law, that





 " Les fleuves et rivieres navi- 

gable ou flottables, les rivages,    

lais et relais de la mer, les ports,  

les havres,les rades, etc.,sont con- 

sidres comme le dependances du 

domaine public. " 



" Rivers and navigable or float-

able streams, shores, increments,

and decrements of the sea, ports,

harbors, roads,etc.,are considered

as dependances of the public do-

main."



So that notwithstanding the " persuasive and conclu-

sive arguments of these first lawyers of the country, "

Liv. 3 I, the French law as it stands at this day, and

stood before, would have given the batture to the



 







56        Jefferson's Works



public, being unquestionably the 'rivage of shore or

the river.'

@#(1) " Rivage, is most commonly used for the shore of the sea, but cor-

rectly also for the shore of a river.

   " Chaque fleuve, chaque ruisseau

   A partout franchi son rivage." Regnier. Dict. de Richelet. Rivage

   "Le Tybre ecumeux et bruyant

   De sa course fougueuse etonne son rivage." St. Evremont.

  It is particularly so used in Law.      " Sous le nom de rivage est compris

le chemin qui hoit etre entretenu le long des cotes et rivieres navigables,

pour le hallage des bateaux." And again, "droit de rivage, qui est du

sur les marchandises qui abordent au rivage de la ville de Paris."

Dict. de Trevoux, Rivage.          "Sur le rivage de la Seine " Dict. de

l'Academie.



  (2) Little versed in French jurisprudence, possessing few of the authors

teaching it, and, of some of those quoted by the adverse party, so

much only as they have thought to their advantage to quote, I had

apprehended it possible (pa. 29.) that there might be among those

authors, that conflict of opinions on the law of alluvions, which these

quotations indicate. But I have lately had an opportunity of reading

in MS. a Memoire on the subject of the Batture, written by M. Moreau

de Lislet of New Orleans, a French lawyer of regular education in the

profession, who has treated the subject, generally with great learning

and abilities, and especially that branch of it which relates to the laws

of France in cases of Alluvion. He has proved that the doctrines of

these great authorities are not contradictory, and that a proper atten-

tion to the different questions under contemplation in the passages

quoted, will show that all are right, and all in perfect harmony. To

elucidate this he explains certain principles of French law, which

mingling themselves with this subject, have occasioned the misunder-

standing with which we have been perplexed. I. The laws of France

leave to the king a right to navigable rivers only, and their increments.

On rivers not navigable, the rights of the riparian proprietor prevail as

under the Roman law. See Pothier ante. pa. 26. Very early, however,

these rights were drawn into question by the Feudal Superiors, who,

looking to the example of the king in the case of navigable rivers in his

kingdom, claimed similar rights on those not navigable within their

Seignories. But repeated decisions have€condemned their claims, and

confirmed the rights of the riparian tenant. a. By the laws of France,

as by those of England, lands received by inheritance, descend, on the

death of the tenant, to the heirs of that branch, paternal or maternal,  @#

 







        The Batture at New Orleans      57



 .I will now proceed further and say, that had the

batture been an alluvion, and to be decided by the



@#from which they came to him. But those he acquires by purchase

(acquets) pass to that line of heirs of which himself is the root. When

therefore, to a maternal inheritance an acquisition happened to be

made by means of Alluvion, a question would arise, between heirs of

different lines, to which of them the Alluvion would descend ; whether

to the direct heirs of the decedent, as being an acquisition first vesting

in him, or to the maternal heir as an accessory to his inheritance. The

decisions were that it united with the inheritance, became a part of

that, and passed with it. " Incrementum alluvionis nbbis adquiritur,

jure quo ager augmentatus primum ad nos pertinebat ; nec istud incre-

mentum censetur novus ager sed pars primi." "The increment of

Alluvion is acquired to us in the right in which the field augmented

first belonged to us." Nor is the increment considered as a new field,

but a part of the first, Renusson. It follows that questions of Alluvion

would often arise in cases wherein the king's rights were not at all

concerned. They would arise between Lord and vassal, and between

individual heirs of different lines. These ' explanations premised,

M. Moreau takes a review of the passages quoted from Henrys, Bourjon,

Dumoulin, Ferriere, Pothier, Le Rasle, Renusson, Dargentre, Denisart,

and Guyot, and shews that in every instance where the question con-

cerned a navigable river, there was no division of opinions as to the

validity of the king's right; and that in every instance where the

riparian right is asserted, the question has been between private indi-

viduals, or concerning rivers not navigable. Recurring then to the

edicts and Ordinances placing this right of the king beyond cavil, he

observes that a practice had prevailed from early times among riparian

proprietors of usurping on the rights of the crown to the increments

adjacent to them, and a necessary reaction of the crown, by reclama-

tions and resumptions, to preserve its own. And he gives a detail of

the edicts on this subject, proving that that of 1693, instead of being

the singular act of a particular prince, whom the adverse party delights

to revile, was one only of a lung series preceding and following it.



1554. An edict was issued requiring the proper officers to be vigilant

    in watching over the king's rights in islands, atterissements,

    et alluvions, comme ils l'ont accoutumes faire d'anciennete.'

    So that it was even then a law and practice d'anciennete, and

    expressly including alluvions.



1664.   An Ordinance for making enquiries concerning islands, accrois-

    sements, etc. @#

 







58        Jefferson's Works



Roman, instead of the French law, the conversion of

the plantation of Gravier into a suburb, made it pub-



1668.  Apr. An Edict quieting possessions of these objects of 100 years
continuance, on paying a vingtieme annually.



1669.   The Ordinance deseaux et forets, "qui accorde au roi la propriete de
toutes les rivieres navigables, de leur lit, rives, et detous les terreins qui
peuvents s'y former:" Guyot, ante. pa. 27.

" granting to the king the property in all navigable rivers, their

bed, banks, and the grounds forming there."



1683. Apr. A declaration, reciting that as the rivers belong to the

king " tout ce qui se trouve renferme dans leur lit, comme les

isles, accroissemens et atterissements lui appartient aussi,"

confirms title anterior to 1566 without condition, possessions

anterior te 1566 on conditions, and reunites all others to the

crown.



1686. Apr Two edicts for Languedoc and Bretagne, confirming pos-



1689. Aug.  sessors in the said islands, "ensemble des cremens qui s'y sont
formes, et de ceux qui pourraient s'y former a,l'avenir, soit par alluvion, on
par industrie."



1693. An edict general for the kingdom "le droit de propriete que

nous avons sur tous les fleuves etrivieres navigables etant incon-

testable, etc. Ordonnons que les detenteurs des isles, islots,

atterissemens, accroissemens, alluvions, etc. sur les rivieres navigables,
etc., as more at large, pa. 28.



1710. Feb. An edict confirming possession of islands, etc., of the sea on
specified terms, copied almost verbally from that of 1693,

using the word alluvions as that does, and referring to the pro-

visions of that edict.



1722. Sep. An Arret resuming isles, atterissemens, etc., formed since the edict
of 1693. And those of anterior formation where the

possessor has not made the payments provided by the edict

of 1693.



 But this whole branch of the argument of M. Moreau must be read

with attention. Its matters cannot bc abridged, nor otherwise

expressed, but for the worse.



 Having thus luminously reconciled the authorities which had been

so illy understood, and victoriously established the public right to

alluvions on navigable rivers, M. Moreau, with too much facility, gives

back to his adversary one-half the ground he has conquered, by a

gratuitous admission, which those interested in the event of the causo

are not ready to confirm. Led away, as it seems, by an expression in @#

 







        The Batture at New Orleans     59



lic property. And here I rejoin with pleasure the

standard of M. Thierry, and avail myself of his lumi-



@#the edict of 1683, "tout ce qui se trouve renferme dans leur lit. nous

appartient," and which is to be found in no other, .and yielding to a

single decision of the Parliament of Paris of 1765, found in a law

dictionary, which adjudged that the Ordinances giving to the king the

isles which are formed "dans le lit," des fleuves et rivieres navigables,

ne lui donnent pas les atterissements et alluvions qui peuvent se former

hors le lit de ces memes fleuves," etc. He admits that though alluvions

within the bed of a river belong to the king, .those without the bed do

not belong to him. M. Moreau is too reasonable to consider as a com-

pliment to himself the adoption of an .opinion on his authority alone

by any one not convinced by his reasonings. Certainly I do not feel

myself competent to enter the lists with 'him, on any question. of diffi-

culty in the French lacy. Yet after maturely considering the authorities

appealed to in this case, and which he has rendered so strong by recon-

ciling and forming them into one mass, I cannot yield, as he does, so

imposing a mass to a single decision of the single Parliament of Paris.

I still must consider all alluvions on navigable rivers as belonging to

the nation, , and will briefly assign my reasons.

(1). It is of the essence of Alluvion .that it be, not in the bed of the

river, but out of it; that is, adjacent to the bank. So say expressly

the Roman and French definitions. "Alluivo est incrementum agro

tuo, flumine adjectum." "l'Alluvion est un accroissement de terrein

qui se fait sur les bords des fleuves, par les terres que l'eau y apporte,

et qui se consolident pour ne faire qu'.un tout avec la terre voisine."

Ante. pa. 26. Increments within the bed of a river, though sometimes

carelessly spoken of under the term alluvion, are never so in correct

language, never in the well weighed diction of ordinances and statutes.

They are termed accroissements, atterissements, assablissements, isles,

islots, javeaux, in French, and in our language shoals, shallows, flats,

b'ars, islands.  Without the bed of the river; they add to the beach, or

to the adjacent field, according to their elevation, and in this last case

only, constitute Alluvion, within the bed of the river they lose that

name.



 (2)." Les alluvions qui se forment dans le. lit des fleuves " is not the

language of the edicts cited by Moreau himself, .not even of that single

one on which this opinion is founded. That has indeed the expression



"dans les lits," but applied, not to alluvions, but to isles, accroisse-

ments, atterissements, to which it is applicable with truth and correct-

ness. These are the kinds of increments it enumerates, and describes @#

 







60        Jefferson's Works



nous discussion of this point. Were I fully to go into

it, I could but repeat this matter. I shall therefore



@# as being "dans le lit." If they are enumerated exempli gratia only as

the word comme seems to imply, and alluvions, though not named,

were within the purview, as they are within the reason of the law, then,

if the thing itself is to be understood, as if expressed in the text, its

true description also is to be understood as if expressed, that is to say,

its adjacence to the bank. The edicts of 1686 and 1689 mention "les

isles des rivieres navigables, ensemble les cremens qui s'y sont formes."

That of 1693 says, in like manner, "le droit, etc., sur tout les fleuves,

et les isles et cremens qui s'y sont formes," and again, "isles et alluvions

sur les rivieres navigables, " not ` ' dans leurs lits. " That of 1710 says

"possession des isles et alluvion sur les dites rivieres." Thus we see

that wherever the edicts mention alluvions, they describe them sur le

fleuve, not dans le lit du fleuve. When they speak of those increments

which are dans le lit des fleuves, they name them as accroissemens,

atterissemens, etc., but not as alluvions.



(3). This distinction is founded on a single decision of a single parlia-

ment, and on the authority of a king's advocate, Bacquet, and the

dictum of Salvaing there cited, all perhaps influenced by the same and

single expression in the edict of 1683. It is cited too from a Dictionary

by Prost de Royer, where it is doubtless stated in abridgment only,

and possibly with the omission of circumstances, arguments, and

expressions which, were they before us, would change the aspect of

the case, as M. Moreau himself has shown to be so possible in his review

of the mutilated authorities produced by the adversary. And are we,

for this, to give up the doctrines of Pothier, Denisart, Ferriere, and the

host of other great authorities, and all the definitions of the Roman

and French laws, all of which when speaking of alluvions, place them

exclusively on the borders; and not in the beds of rivers ? I cannot

do it.



 (4). This distinction is new in this cause, having never been claimed

by the plaintiff or his counsel, or suggested by any other who has

treated the question. This naturally begets a suspicion that it is

peculiar; though doubtless the adversary will adopt it with avidity.

And is he entitled to this gratuitous aid ? Is it the equity of his cause,

or even its honesty, or its utility, which gives him this claim on our

tenderness ? I cannot consent to a concession which gives the Batture

from the public in the contingency of its being considered as a real

alluvion, consolidated with, and making part of, the adjacent field.

On the contrary I insist on the public right in this case also, under the  @#

 







        The Batture at New Orleans     61



give but a summary view of it, and rest on his argu-

ment for its more detailed support.



  The position laid down is that the Roman law gave

alluvion only to the rural proprietor of

the bank ; urban possessions being con- [Rural and Urban]

sidered as praedia limitata, limited possessions. The

law which gives this right is expressed in the Insti-



laws of France, as hitherto understood, and as declared by her highest

authorities.

 (5). I adhere to this ground the more firmly, because I observe, from

another part of his Memoire, pa. 99. that M. Moreau himself seems not

very decided in this new opinion. After stating the mischief of Mr

Livingston's works, he says, "it is to prevent a like abuse that the

Roman and Spanish laws of haute police, which I have cited, are

opposed to every species of works undertaken on the banks of rivers

and navigable streams, the effect of which might be to extend the

limits of riparian fields, compromising the public safety, and injuring

the facility of navigation. It was with this view, and not to create

fiscal resources for himself that Louis XIV. renewed the Ordinances

which ascribed to the sovereign the property in rivers and navigable

streams, and of whatever is contained in their bed. For if it be advan-

tageous to navigation that the king should be proprietor of the islands

which form themselves in navigable rivers, the same interest requires

still more that he should be proprietor of the alluvions and increments

formed along the shore itself, since any ownership of these objects,

except that of the sovereign, might oppose obstacles to the free landing

on the shore, which every one ought to have, and to the use of it which

the law gives to the public."



  Considering this admission then, as doubted by M. Moreau himself

on a second and sounder view of it, I conclude that the law is accurately

laid down by Pothier [ante. pa. 26.] "By our French law, alluvions

formed on the borders of navigable streams and rivers belong to the

king. The proprietors of riparian heritages can have no claim to

them, unless they have documents of the grant made them by the king,

of the right of alluvion along their heritages. With respect to alluvions

formed along the borders of a river not navigable, the property of which

belongs to the proprietors of the neighboring heritage, the dispositions

of the Roman law are to be followed."

 







62        Jefferson's Works



tutes in these words, " quod per alluvionem agro tuo

flumen adjecit, jure gentium tibi adquiritur." Inst.

2. 1. 20. " What the river has added, agro tuo, be-

comes yours .by the laws. of nations. " And the Di-

gest 41. 1. 7. 1. in almost the same words says, " quod

per alluvionem agro nostro flumen adjecit, jure gen-

tium nobis adquiritur." In both instances it is to

the possessor agri only that it is given. It becomes,

material therefore to understand rigorously the im-

port of the word ager, in the Roman laws ; and it hap-

pens that its definition is given critically by the same

authority which uses it. "Locus sine aedificio, in

urbe area, rure autem ager appellatur idemque ager,

cum aedificio, fundus dicitur. ' Dig. 50. 16. 211.

" Quaestio est, fundus a possessione, vel agro, vel

praedio quid distet ? " 1b. 115 in notis, " fundus est

ipsum solum: eo si utimur, praedium dicitur: Ager

esse potest sine villa." " Ground, without a build-

ing, in a city is called area, but in the country ager. "

Pliny 1. b : affirms that ager is derived from the Greek

aypos, of the same import. And in the Greek Prag-

matics of Attaliata tit. 45. the law of alluvion uses

"ayos" for ager.     {To avettaio0ntws aia t8 ttotau8, ttpooie0ev

tw aypw u8 ttpooXwois  e5iv ntoi ttookhvois kai euoi apuolel}

Quod

insensibiliter {ta ayp w p8}  per flumen adjectum est, allu-

vionis est, et mihi competit. "What is insensibly

added by the river agro meo is alluvion [adundatio,

adaggeratio] and belongs to me. " In the same title

"{8ttep ev tw aypwoov otteipw oov e5lv}   " What I sow {aypw o8}

agro tuo, in your field, is yours. And stephens, in

 







        The Batture at New Orleans      63



his Thesaur. ling. Gr. voce {" 'aypos"} translates it " rus,

ager,' ` {"av aypw} in agro, ruri. {Ee aypp3}, ex agro, rure.

{"Eis aypov,} ln, agrum, rus. " And he cites examples:



{"Nnvs 8e uoi n8' e5nkev ett' ayp8 voooi ttoyios"} Hom. Od (1).

185. " My vessel is stationed in the country, apart

frOm the City. ["Aia to un ueyahas elvai tote ta5 DOAEIE ahh' etti twv ATVnN 
olkelv tov8n 8nuov aoyohov ovta "} Aristo Polit 5.

" Because, the cities not beingthen large, the people

were occupied in the country, where {aypo5} is proved

to be pointedly the contradiction to ,{ttohis}, to wit,

the c`Çuntry to the city. Fromthese definitions it

appears that the word age%,in the law, constantly

means a field, or farm, in the country, and that a city

lot is called area. In' towns, the whole bank and

beach being necessary for public use, the private

right of alluvion would be inadmissible ; and the ad-

verse counsel have been challenged (ThiezÇry, 33.) to

produce a single instance, under the Roman law, of

a claim of Alluvion allowed in a city. To this might

be added a similar challenge as to the laws of Eng-

land These give alluvion on rivers, as the civil law

does, to the riparian proprietor. Bractozi L. z. c. z.

& 1. Fleta. L. 3. c. z. Can they from the volumes of

English law; with which they are so much more fami-

liar, produce one single instance of the private right

of alluvion allowed in a city? In England, I mean,

and not in America, where special circumstances

have prevented attention to the law on this subject,

or the breach of it. And this must be from the rea-

son of the thing alone, because the common law never

 







64        Jefferson's Works



having been, like the civil law, reduced to a text, no

verbal criticisms on a text can have co-operated

against the claim.x Repeating, therefore, my refer-



@#  1 Since this was written, I have seen the case of Smart v. the magis-

trates, town council and community of Dundee, reported in 8 Brown's

Reports of Appeals in parl. 119. This was an appeal from the court

of Session in Scotland, to the H. of Lords. The crown of Scotland had

in very ancient times, granted to the Corporation of Dundee, on the

river Tay, the borough, with all the lands and pertinents, the privileges,

profits, customs, ports, and liberties of the river on both sides, as freely

in all respects as is possessed by the borough of Edinburgh over that

of Leith, and in a word, as it seems, every right, power and trust which

the crown could grant.-Smart, the proprietor of a lot bounded on one

side per fluxum maris, or the sea flood, admitting that the sovereign,

as trustee for the public, has a right to prevent all such appropriation

of 'the sea shore, or the banks of navigable rivers as would impede

navigation, render it dangerous or hurt the interests of commerce,

either inland or foreign, and that all private persons or corporations,

having a grant of a port and harbor, possess, to acertain extent, the

same privileges as derived from the sovereign within a defined space

still he insisted on the right of the adjacent proprietor to ground gained

from the sea by its recess, or by his own industry in embanking, or by

any other opus manu factum, not prejudicial to navigation or the estab-

lished rights of others. On the other hand the corporation claimed by

their grant, a right to the seashore adjacent to the town, in trust for

the benefit of the community, to make harbors, basons, and works for

securing them, market places, wharves, wood yards, and other reposi-

tories for the accommodation of the trade, and, for these different

works, to take in sites from the water by embankment, in short, as

standing in place of the crown, that they succeeded to all the cares and

powers of the crown, in the territory and its waters, for the public good ;

and, for that object, were now engaged in making an embankment

adjacent to the Appellant's lot, for the benefit of navigation and com-

merce. They admit the general doctrine of the riparian right to the

soil which may be acquired from a sea or river, by its receding naturally

or by industry : but that this does not apply to the site of a tenement

within a burgh, where the corporation is entitled to all the soil not

expressly granted away: that the words, "per fluxum maris" are but

words of description, which were accurate too at the date of the grant,

but have since become otherwise by a change of character in 'the  @#

 







        The Batture at New Orleans     65



ence to the reasoning and authorities of M. Thierry

on this point, and my own conviction of their sound-

ness, I consider it as established that, were this ques-

tion to be decided by the Roman law, the conversion

of the farm into a fauxbourg of the city passed to

the public all the riparian rights attached to it while

a rural possession and among these the right of

alluvion.

 And, if the right of alluvion is not given to urban

proprietors, much less would it to a mere

holder of the bed of a road. But did an    

[Principal and accessory]

one ever hear of a man's holding the bed

of a road, and nothing else? Is it possible to believe

that Bertrand Gravier, in selling his lots face au



@#boundary, not in the area granted. They are a limitation of the

subject of the grant in the same way as a road would be, which, if

removed farther off, would not carry the granted subject with it ; or as

the tenement of another would be ; and make it an ager limitatus, not

an ager arcifinius; the particular boundaries being named, not to

limit the coterminous property, but the property granted. The

Appeal was accordingly dismissed by the House of Lords. No argu-

ments of counsel, other than the written pleadings, nor reasons of the

Lords, are reported : but, from this case, (crowded as it is with circum-

stances, many of which are irrelevant to the merits of the question,

and of those relevant not the words but the condensed substance is

here given,) the book says, that the general principle to be gathered is

that "where the sea flood is stated as the boundary of premises granted

on the shore of a sea-port being an incorporated borough, this does not

give the grantee a right to follow the sea, or to the land acquired from

it, or left by it where it has receded, in prejudice of the corporation

having, by their charter, a right vested in them to the whole territory

of the burgh." And consequently, in prejudice of the king, or public,

where no such grant has substituted others in their place: and it

authorizes a strong inference that the English, like the Roman law,

restrains the right of alluvion to the praedium rusticum, not admitting

it on the shores bordering tho city.  @#



   V/b. XVIII--6

 









66        Jefferson's Works



fleuve, really meant to retain the bed of the road and

levee ? That a man, having a road on the margin of

his land, which is its boundary, should mean tosell

his land to the road, and to retain that by itself? a

thing of no possible use to him, because the use being

in the public, he could never employ it in agriculture

or otherwise. Were all this possible, yet this bed of

a road, this " labrum amnis " would be no ager, no

field to which the right of alluvion could attach.

That right is but an accessory; or, in the language of

our law, an appendage or appurtenance, and an ac-

cessory, not to a mere line, but to something of

which it can become a part. Had the law, therefore,

ever given alluvion to any but the holder of an ager,

of a field, yet the general doctrines of principal and

accessory, would not have carried the benefit to Ber-

trand Gravier in this case. "Accessorium sequitur

naturam sui principalis. Et in accessoriis, praes-

standa sunt quae in principali. Accessorium non

tenet sine principali. Sublato principali, tollitur et

accessorium." These are maxims of the civil law.

Calvini lexicon jurid. "An accessory follows the

nature of its principal. " If the accession then be

to a field, it becomes part of the field ; if to a town, it

would become part of the town ; if to a road, the use

of which belongs to the public, it would be to the

road, and to the public. It must follow the nature

of its principal, and become a part of that, subject to

the same rights, uses and servitudes with that: and

Bertrand Gravier had no right of use in the principal,

that is, of the road and levee.

 







        The Batture at New Orleans     67



 The equity on which the right of alluvion is found-

ed is, that as the owner of the field is exposed to the

danger of loss, he ought, as an equivalent, to have the

chance of gain. But what equitable reason could

there be, in the present case; for giving to Gravier the

benefit of alluvion, when he could lose nothing by

alluvion ? If the levee and bank were washed away,

they would not go to his plantation, back of the sub-

urb, for a new one. The public would have to pur-

chase a new bed for a road from the adjacent lot

holders. Then "qui sentit onus, sentire debet et

commudum. "

 But I do deny to the Batture every

characteristic of Alluvion. [Bench or Batture not Alluvion.]

The French and Roman law constitut-

ing that of the place, let us seek from them the

definition of Alluvion. The Institute 2. 1. 20. gives

it in these words, and the Digest. 41. 1. 7. ş 1. in

almost verbatim the same.



" Quod peralluvionem agro tuo       

flumen adjecit, jure gentium tibi   

adquiritur. Est autem alluvio in-   

crementum latens. Per alluvi-       

onem autem id videtur adjici,       

quod ita paulatim adjicitur, ut     

intelligi non possit quadtum quo-   

quo temporis momento adjici-        

atur."





"what the river adds by allu-

vion to your field becomes yours

by the law of nature. Alluvion is

a latent increase. That seems to

be added by alluvion, which is so

added by degrees, that you cannot

conceive how much in each mo-

ment of time is added."





 And in the Greek version of Theophilis, the words,

" Alluvioest incrementum latens " are rendered

{aho8iwe e5iv n npookhvois n npooXwois"} translated by Curtius

 







68        Jefferson's Works



"Alluvio est adundatio vel adaggeratio. " Retaining

only the words of this paragraph which are definition

it will stand thus.



  " Alluvio est incrementum [ad-

undatio, adaggeratio] agro tuo flu-

mine adjectum, ita latens et paul-

atim, ut intelligi non possit quan-

tum quoquo temporis momento

adjiciatur. "



  " Alluvion is an increment [ad-

undation, ad-aggeration] added by

the river to your field, so latent

and gradual, that the quantity

added in every moment of time

cannot be known."



  This is the Roman definition.

  In the Law Dictionary of the Encyclop. Method.

voce "Alluvion, " by Le Rasle, the definition is :



  " Alluvion, un accroissement de

terrein qui se fait peu-a-peu sur

les bords de la mer, des fleuves, et

des rivieres, par les terres que

l'eau y apporte, et qui se con-

solident pour ne faire qu'um tout

avec la terrc voisine."



  "Alluvion, an increment of

ground which is made by little

and little on the border of the sea;

rivers or streams, by earth which

the water brings, and which is

consolidated so as to make but

one whole with the neighboring

ground. "

  To reduce the essential members of the Roman and

French definitions to a single one, according with our

own common sense, for certainly we all understand

what alluvion is, I should consider the following defi-

nition as comprehending the essential character-

istics of both.



s. " Alluvion is an extension

  which the waters add in-

  sensibly.

a. By apposition of particles of

  earth.

3. Against the adjacent field.

4. And consolidate with it so as

  to make a part of it"



  "Incrementum flumine adjec-

tum latens et paulatim.



{ ttpooXwois, adaggeratio.}

{ ttookhvois, adundatio.

Agro.}

  Qui sc consolide pour ne fatre

qu'um tout avec la lerre voisine"

 







        The Batture at New Orleans     69



 I take this to be rigorously conformable with the

French and Roman definitions, as cited from the

authorities before mentioned, and that it contains

not one word which is not within their unquestionable

meaning. Now let us try the batture by this test.



  1. " Alluvion is an extension which the waters add

insensibly. " But the increment of the batture has

by no means been insensible. Every swell of six

months is said [Derb xix..] to deposit usually nearly a

foot of mud on the whole surface of the batture, so

that, when the waters retire, the increment is visible

to every eye. And we have seen that, aided by Mr.

Livingston's works, a single tide extended the bat-

ture from 75 to 80 feet further into the river, and de-

posited on it from 2 to 7 feet of mud, insomuch that a

saw-scaffold, 7 feet high when the waters rose on it,

was, on their retiring, buried to its top. This incre-

ment is, surely, not insensible. See the Mayor's

answer to the Governor, Nov. 18, '08. MS.



  2. " By apposition of particles of earth, " or, by their

adhesion. But the addition to the batture is by de-

position of particles of earth on its face, not by their

apposition or adhesion to the bank. It is not pre-

tended that the bank has extended by apposition of

particles to its side, one inch towards the river. It

remains now the same as when the levee was erected

on it. The deposition of earth on the bottom of a

river, can be no more said to be an apposition to its

sides, than the coating the floor of a room can be said

to be plastering its walls.

 







70        Jefferson's Works



  3. "Against the adjacent field," la terre voisine.

Not a particle has been added to the adjacent

field. That remains as it was, bounded by the

identical line, crepido, or ora terrae, "hich has ever

bounded it.



 4. "And consolidated with the field so as to make

part of it. " Un tout avec la terre voisine. Even

supposing the continuity of the adjacent field not to

be broken by the intervention of the levee and road,

nothing is consolidated with it, not even with the

margo riparum, or chemin de hallage, if there be any,

between the ievee and brim of the bank. No exten-

sion of its surface has taken place so as to form one

with the former surface, so as to be a continuation of

that surface, so as to be arable like that. The high-

est part of the batture, even where it abuts against

the bank, is still materially below the level of the ad-

jacent field. A terrass of some feet height still sepa-

rates the field from the deposition called the batture.

It is now as distinguishable from the adjacent field as

it ever was, being covered with water periodically six

months in the year, while that is dry. Alluvion is

identified with the farmer's field, because of identity

of character, fitness for the same use : but the batture

is not fitted for ploughing or sowing. It is 'clear then

that the batture has not a single feature of Alluvion ;

and divesting it of this misnomer, the whole claim of

the plaintiff falls to the ground : for he has not pre-

tended that it could be his under any other title than

that of Alluvion.

 







        The Batture at New Orleans      71



 We will now proceed to shew what it is, which will

further demonstrate what it is not.



  In the channel, or hollow, containing a river, the

Roman law has distinguished the alveus, or bed of the

river, and the ripa, or bank, the river itself

being aqua, water. "Tribus constant flu-                           [Bed, Beach,
Bank.]

mina, alveo, aqua, et ripis." Dig. 43. 12.

not. 1. All above high water mark they considered

as ripa, bank, and all below as alveus, or bed. The

same terms have the same extent in the language of

our law likewise. But we distinguish, by an addi-

tional name, that band, or margin of the bed of the

river, which lies between the high and the low water

marks. We call it the beach. Other modern na-

tions distinguish it also. In Spanish it is playa, Ital.

piaggia, in French plage, in the local terms of Orleans

it is batture, and sometimes platin.(1) In Latin I know



@#(1) Etymologies often help us to the true meaning of words ; and where

they agree in several languages, they shew the common sense of man-

kind as to the meaning of the word. In French Batture is derived from

Battre, to beat, being the margin on "hich the surges beat. In English

Beach, is from the Anglo-Saxon verb Beodian, Beacian, beatian, to

beat: pronounced beachian, as christian, fustian, question, are pro-

nounced chrischian, fuschian, queschion, etc.



 In Spanish Playa,}

   Italian Piaggia,}    are from {tthaya tthnyeis.

   French Plage,}



       Platin  from {tthnttelv,} percuture. Perhaps from Plat,

            F. flat.



 Greek, {aiyeiahos, aktn}, from {ayeliv,} agree.



      0Iv, Oivis, a 0eivw, ferio, quia littus fluctibus feritur. Clav.

       Homer. A. 34.

      {Pnyuiv, apnoow}, frango. quia in litore fluctus frangitur.

       Ib. v. .437.

 







72        Jefferson's Works



of no term which applies exactly to the beach of a

river. Litus is restrained to the shore of the sea, and

there comprehends the beach, going to the water

edge, whether at high or low tide. "Litus est maris,

ripa fluminis, " says Vinnius in his Commentatory on

the Inst. 2. 1. 4. and he confirms this difference of

extent towards the water, ibid. where he says,



  "Neque vera idem est ripa in 

flumine, quod litus in mari. Ripa 

flumini non subjicitur, ut litora 

subjiciuntur mari, et quotidianis 

accessibus ab eo occupantur."                     



"Nor is the bank of a river, and

the shore of the sea, the same

thing. The bank is not subjacent

to the river as the shores are to the

sea, which are occupied by it in its

daily accesscs. "



  In our rivers, as far as the tide flows, the beach is

the actual, as well as the nominal bed of the river,

during the half of every day. Above the flow of tide,

it is covered half the year at a time, instead of half of

every day. The tide there being annual only, or one

regular tide in a year. This, in the State where I am,

begins about the first of November, is at its full tide

during the months of January and February, and

retires to its minimum by the end of April. In other

States from North to South, this progression may

vary a little. Hence we call them the Summer and

Winter tides, as the Romans did theirs, hibernus et

aestivus. The Mississippi resembles our fresh water

rivers in having only one regular swell or tide a year.

It differs from them in not being subject to occasional

swells. The regions it waters are so vast that aeci-

dental rains and droughts in one part are counter-

vailed by contrary accidents in other parts, so as

 







        The Batture at New Orleans   73



never to become sensible in the river. It is only

when all the countries it occupies become subject to

the general influence of summer or winter, that a reg-

ular and steady flood or ebb takes place. It differs

too in the seasons of its tides, which are about three

months later than in our rivers. Its swell begins with

February, is at its greatest height in May, June, and

July, and the waters retire by the end of August. Its

high tide, therefore, is in summer, and the low water

in winter. Being regular in its tides, it is regular

also in the period of its inundations. Whereas in

ours, although the natural banks rarely escape being

overflowed at some time of the season, yet the pre-

cise time varies with the accident of the fall of rains.

But it is not the name of the season but the fact of

the rise and fall which determine the law of the case.



  Now the batture St. Mary is precisely within this

band, or  margin, between the high and low water

mark of the Mississippi, called the beach. It extended

from the bank into the river from 122 to 247 yards,

before Mr. Livingston began his works, and these

have added in one year, from 75 to So feet to its

breadth. This river abounds with similar beaches,

but this one alone, from its position and importance

to the city, has called for a legal investigation of its

character. Every country furnishes examples of

this kind, great or small; but the most extensive are

in Northern climates. . The beach of the Forth, for

example, adjacent to Edinburgh, is a mile wide, and

is covered by every tide with 20 feet water. Abtund-

 







74        Jefferson's  Works



ance of examples of more extensive beaches might be

produced ; many doubtless from New Hampshire and

Maine, where the tide rises 40 feet. This therefore of

St. Mary is not extraordinary but for the cupidity

which its importance to the city of New Orleans has

inspired.



  I shall proceed to state the authorities on which

this division between the bank and bed of the river is

established, and w hich makes the margin or beach a

part of the bed of the river.



  "Ripa est pars extima alvei;

qua naturaliter flumen excurrit."

Grotius de Jour. B. et P. 2. 8. 9.

  " Ripa ea putatur esse quae ple-

nissimum flumen continet." Dig.

43. 12. 3. And Vinnius's com-

mentary on this passage is " ut

significet, partem ripae non esse,

spatium illud, ripae proximum,

quod aliquando flumine, caloribus

minuto aestivo tempore non occu-

patur: "

  "Ripa autem ita recte definie-

tur, id quod flumen continet natu-

ralem rigorem' cursus sui tenens

Caeterum si quando vel imbribus,

vel mari, vel qua alia ratione, ad

tempus excrevit, ripas non mutat.

Nemo denique dixit Nilum, qui

incremento suo AEgyptum operit,

ripas suas mutare, vel ampliare.

Nam cum ad perpetuam sui men-

suram redierit, ripae alvei ejus



  "The bank is the outermost

part of the bed in which the river

naturally flows. "

  "That is considered to be bank,

which contains the river when

fullest," and Vinnius's commen-

tary on this passage is "this sig-

nifies that the space next to the

bank, which is sometimes not

occupied by the river, when re-.

duced by heats in the summer

season, is not a part of the bank."

  " The bank may be thus rightly

defined, that which contains the

river holding the natural direc-

tion of its course. But, if at any

time, either from rains, the sea,.

or any other cause, it has over-

flowed a time, it does not change

its banks. Nobody has said

that the Nile, which by its in-

crease covers Egypt, changes or

enlarges its banks. For when it



@# (1)Rigor, a rectitudine dicitur, et est cursus aquae rectum profluentis

tenorem significans. Sic vigor stillicidii rectus ejus fluxus est. Calvini

Lexicon juridicum, rigor. I have therefore translated it "direction." @#

 







        The Batture at New Orleans      75





muniendae sunt." Dig. 43. 12

 5,

" Alveus flumine tegitur. " Grot

de jur. B. ac P. 2. 8. 9.



 " Alveus est spatium illud flu-

mini subjectum per quod fluit."

Vinnii Partitiones jur. Civil. 1. 17.



has returned to its usual height,

the banks of its bed are to be

secured."

  " The bed is covered by the

river. "

  "The bed is the space, subja-

cent to the river, through which

it flows. "



  Litus, in the Roman law, being the beach or shore

of the sea, "rivage, " definitions of that will corrobo-

rate the division between the ripa and alveus, bed and

bank of a river. In both cases what is covered by

the highest tide belongs to the public, all above it is

private property.



  " Litus est quousque maximus

fluctus a mari pervenit. Idque

Marcum Tullium aiunt, cum ar-

biter esset, primum constituisse."

Dig. 50. 16. 96.

  " Est autem litus maris qua-

tenus hibernus fluctus maximus

excurrit." Inst. 2. 1. 3. the para-

phrase of Theophilus adds, "unde

et aestate, usque ad ea loca litus

definimus," and his Scholiast sub-

joins " non ut mediis caloribus

solet, sed hibernus ; quoniam

hieme protissimum mare turba-

tur, mare est undabundum."



  " The shore is as far as the

greatest wave of the sea reaches;

and it is said that Marcus Tullius

first established that when he was

an Arbiter. "

  ' ` The shore of the sea is as far

as the greatest winter wave

reaches." The paraphrase of The-

ophilus adds, "wherefore, in sum-

mer also, we bound the shore by

the same limits, and his Scholiast

subjoins, "not the wave of mid-

summer, but of winter; because

the sea is most agitated, and most

swelled."



  "By shore, the Institutes mean up to the high-

water mark, or (where little or no tides, as in the

Mediterranean) as high as the highest winter wave

washes. 1. Brown's Civil and Admiralty law. B. 2.

C. I.

  We must not, however, with Mr. Livingston, pa.

 







76        Jefferson's Works



61, seize on the single word "hibernus, " in the last

quotations, and sacrifice to that both the fact, and

the reason of the law. The substance of the fact on

which the law goes, is that there is a margin of the

bed of the river, covered at high water, uncovered at

low. The season when. this happens is a matter of

circumstance only, and of immaterial circumstance.

In the rivers familiar to the Romans the maximus

fluctus, or highest wave, was in the winter; in the

Mississippi it is in summer. Circumstances must

always yield to substance. The object of the law is to

reserve that margin to the public. But to reduce,

with Mr. Livingston, the public right to the Summer

water-line would relinquish that object. The ex-

planations quoted from Vinnius, from Theophilus

and his Scholiast, prove from the reason of the law,

that the law of the winter tide for the Po, and the

Tyber, must be that of the Summer tide of the Missis-

sippi. The Spanish law therefore, is expressed in

more correct terms : and we have the authority of Mr.

Livingston [ibidem] for saying that the Justinian

code is the common law of Spain.



 "La ribera del rio se entiende 

todo lo que cubre el agua de el, 

quando mas crece, en qualquiera

tiempo del ano, sin salir de su 

yema y madre." Curia Philipica. 

2. 3. 1. cited Derb. 46. 



"The bank of n river ia under-

stood to bc the whole of what

contains its waters, when most

swelled, in whatsoever time of the

year, without leaving its bed or

channel."





 This is the law correctly for all rivers, leaving

every one its own season of flood or ebb,

 







        The Batture at New Orleans      77



 To these authorities from the Roman and Spanish

law, I will add that of the French Ordinance of 1681.

 43. Art. I. on the same subject.



  "Sera repute bord ct rivage do

la, mer, tout ee qu elle couvre et

decouvre [precisely the beach or

batture] pendant les nouvelles et

plcinec lunes, et jusqu'ou le grand

flot de mer cesse de s'y faire sentir.

I1 est facile de connoitre jusqu'ou

"etend ordinairement le grand flot

de Mars, par le gravier qui y est

depose; ainsi il ne faut pas con-

fondre cette partie avec l'espace

ou parvient quelque fois l'eau de

la mer par les ouragans, et par les

tempetes. Ainsi juge a Aix le 11.

Mai 1742." Boucher, Institut au

droit Maritime 2713. Nouveau

Commentaire sur l'Ordonnance de

la Marine. de 1681. tit. 7. Art. x.



  "The border and shore of the

sea shall bc reputed to be the

whole which it covers and un-

covers [precisely the beach or bat-

ture] during the new and full

moons, and as far as to where the

full tide of the sea ceases to be

perceived. It is easy to know

how far ordinarily the full tide of

March extends; by the gravel

which ic deposited there; there-

fore we must not confound that

part with the space where the

waters of the cea come sometimes

in hurricanes and storms." So

adjudged at Aix, May 11, 1742.





  Let us now embody those authorities, by bringing

together the separate members, making them para-

phrase one another, and form a single description.

The Digest 4 3. 12. 3. with Vinnius 's comment will

stand thus. "The bank ends at the line to which the

water rises at its full tide; and although 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, sub-

stituting for "the heats of the summer season" which

is circumstance, and immaterial, the term "low

water, " which is the substance of the case, nothing

can more perfectly describe the beach or batture, nor

 







78        Jefferson's Works



collated with the other authorities, make a more con-

sistent and rational provision. "The bank ends at

that line on the levee to which the river rises at its

full tide : and although the batture or beach next below

that line is uncovered by the river, when reduced to

its 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 extina alvei, the border of the bed, within

which bed the river flows when in its fullest state

naturally, that is to say, not when "imbribus, vel qua

alia ratione, ad ternpus, excrevit," not when "tem-

porarily overflowed by extraordinary rains, etc."

Dig. 43. 12. 5. but " quando mas crece, sin salir de su

madre, en qualquiera tiempo del ano," "when in its

full height, without leaving its bed, to whatsoever

season of the year the period of full height may be-

long. " This is unquestionably the meaning of all

the authorities taken together, and explaining one

another.



  From these authorities, then, the conclusion is

most rigorously exact, that all is river, or river's bed,

which is contained between the two banks, and the

high water line on them; and all is bank which em-

braces the waters in their ordinary full tide.



  Agreeably to this has been the constant practice

and extent of grants of lands on the Mississippi.

Charles Trudeau swears [Liv. 57. ] that " during twen-

 







        The Batture at New Orleans     79



ty-eight years that he has performed the functions

of Surveyor General of this province, it has always

been in his knowledge, that the grants of lands on the

borders of the Mississippi, have their fronts on the

edge of the river itself, and when its waters are at

their greatest height." And Laveau Trudeau [Liv. 58.]

that "the concession to the Jesuits, he believes, was

like all the others, that is, from the river at its great-

est height. " 



 Thus we see what the law is ; that it has been per-

fectly understood in the territory, and has been

constantly practiced on, and consequently that

neither the grant to the Jesuits, nor to Bertrand

Gravier, could have included the beach or batture.



  It will perhaps be objected that, establishing the

commencement of the bank at high

water mark, leaves in fact no bank at                              

         [Mississippi.]



all, as the high water regularly overflows the

natural bank or brim of the channel. And will it

be a new phenomenon to see a river without banks

sufficient to contain its waters at their full tide ?

The Mississippi is certainly a river of a character

marked by strong features. It will be very prac-

ticable, by exaggerating these, to draw a line of

separation between this and the mass of the rivers

of our country, to consider it as sui generis, not sub-

ject to the laws which govern other rivers, but

needing a system of law for itself. And until this

system can be prepared it may be abandoned to

speculations of death and devastation like the pres-

 







80        Jefferson's Works



ent. But will this be the object of the sound judge

or legislator it is certainly for the good of the whole

nation to assimilate as much as possible all its parts,

to strengthen their analogies, obliterate the traits

of difference, and to deal law and justice to all by

the same rule and same measure. The bayous of

that territory and of the country thence to Florida

Point are without banks to contain their full tides.

The Mississippi is in the like state as far as Baton

Rouge, where competent banks first rise out of the

waters, and continue with intervals of depression

to its upper parts: Many of the rivers of our mar-

itime states are under circumstances resembling

these. The channel which nature has hollowed for

them is not yet deep enough, or the depositions of

earth on the adjacent grounds not yet sufficiently

accumulated, to raise them entirely clear of the

flood tides. Extensive bodies of lands, still marshy

therefore, are covered by them at every tide. In

some of these cases, the hand of man, regulated by

laws which restrain obstructions to navigation and

injury to others, has aided and expedited the opera-

tions of nature, by raising the bank which she had

begun, and redeeming the lands from the dominion

of the waters. The same thing has been done on

the Mississippi. An artificial bank of 3, 4, or 5 feet

has been raised on the natural one, has made that

sufficient to contain its full waters, and to protect a

fertile and extensive country from its ravages:

These are become the real banks of the river, an

 







        The Batture at New Orleans    81



which the laws operate as if the whole was

natural. The Nile, like the Mississippi,   [Nile]

has natural banks, not competent in every part to

the conveyance of its waters. In these parts arti-

ficial banks are, in like manner, raised, through

which and the natural bayous and artificial canals

the inundation, when at a given height, is admitted;

this being indispensable to fertilize the lands in a

country where it never rains. And these banks of

the Nile, natural and artificial, are recognized as such

by the Roman law, as appears in a passage of the

Digest before cited, declaring that its banks, though

inundated periodically, are not thereby changed.

Nor are those of our rivers when temporarily over-

flowed by rains, or other causes. Wherever, there-

fore, the banks of the Mississippi have no high water

line, the objection is of no consequence, because the

lands there are .not as yet reclaimed or inhabited;

and wherever they are reclaimed, the objection is

not true; for there a high-water line exists to sep-

arate the private from public right.(2)



@#(1)Justum incrementum [Nilij est cubitorum xvl; in xll. cubitis

famem sentit : in xiii etiamnum esurit : xiv cubita hilaritatem afferunt :

xv securitatem: xvi delicias: maximum incrcmentum, ad hoc aevi,

fuit cubitorum xviii. cum stctere aquae, apertis molibus admittuntur.

Plin. hist. nat. 59.



(2) This part of our subject merits fuller development. That the

periodical overflowings of some rivers do not differ from the accidental

overflowings of others, in any circumstance which should affect the

law of the high water line, in the one more than in the other, will be

rendered more evident by taking a comparative view of them. To

begin with ordinary rivers. I. These have along their greater part;

and some of them through their whole course, natural banks adequate @#



  VOL. XVIII-6

 







82        Jefferson's Works



Having ascertained what the batture is not, and

what it is, and established the high water

 [Property in bed and bank.] 

mark as the line of partition between the

bed and bank of the river, we will proceed



@#to the confinement of their waters, in the high water season, except in cases
of accidental inundation. Here, then, the Roman authorities

tell us the inundation does not change the bank, nor the landmark

on it. z. Along other parts, where the natural bank was not high

enough to contain the river in its season of steady high water, the

hand of man has raised an artificial bank on the natural one, which

effects this purpose, with the exception as before, of accidental inun-

dations, where such happen. This artificial bank performs all the

functions of the natural, and is placed under the same law. 3. In

other parts of them, the natural banks are still not high enough to

contain the high tides, nor have they yet been made so by the hand of

man. Here then the law cannot operate, because the local peculiarities

as yet, exclude the case from its provisions. The ground so covered

by inundation, has been, or may yet be, public property. But the

legislator, instead of holding it as the bed of the river, grants it to

individuals as far as to the natural or incipient bank, that they, by

completing the bank, may reclaim the land, for their own and the

public benefit, and, this done, the law comes into action on it. Much

of this reclaimed, and unreclaimed land exists in all these states.



  I proceed next to rivers of particular character. Of which among

those analogous to the Mississippi, the Nile is best known to us, and shall

be described. That 'river entering Upper Egypt at its Cataracts, flows

through a valley of 20 or 30 miles wide, and of 450 miles in length,

bounded on both sides by a continued ridge of mountains. Through

most of this course, its natural banks are sufficient to contain its waters

in time of flood, till they rise to that height, at which, by their law

they are to be drawn off. In low parts, where the natural banks are

not sufficient, they have been raised by hand to the necessary height.

In addition also to the natural bayous, like those of the Mississippi, they

have opened numerous canals, leading off at right angles from the river

towards the mountains, and sufficient to draw off the greatest part of

the current passing down. the river. These, in ordinary times, are

closed by artificial banks raised to the level of the natural ones. When

the flood is at a height sufficient for irrigating, and fertilizing the fields,

which by the Nilometer is at I 6 cubits above the bed of the river, these

artificial banks are cut, and the waters let in. The plain declining @#



 









       The Batture at New Orleans 83



to examine to whom belongs ground on either side

of that line ?



@#gently from the banks of the river, (which, like those of the Mississippi,

are the highest ground,) towards the mountains, the waters are there

stopped, as by a dam, and continue to rise, and diffuse themselves till

they reflow nearly to the bank of the river. If the rise ceases there,

the waters remain stagnant, and deposit a fertilizing mud, over the

whole surface. But if uncommon rains above occasion a continuance

of the rise till all the waters meet over the summits of the banks, then

the motion of that in the river is communicated to the stagnant water

on the plains, a general current takes place, and instead of a depositum

left, the former soil is swept away to the ocean, and famine ensues that

year. This, the traveller Bruce informs us; had happened three times

within the 30 years preceding his being in that country. W hen the

waters have withdrawn, and the river is returned into its natural bed,

the banks are repaired in readiness to restrain the floods of the ensuing

year. Such is the case in Upper Egypt. When the river enters Lower

Egypt, it parts into two principal branches, the Pelusian and Canopic,

which diverge and reach the Mediterranean at about 200 miles apart,

including between the triangle called the Delta. Besides these, there

are, within the Delta, three natural Layous, and two canals, dry at low

water, which make up the famed seven mouths of the Nile. The

mountains diverge so as do the main branches of the river, the eastern

going off to the isthmus of Suez, and the Western to the sea near

Alexandria. The waters lessened by depletion, and spreading over a

widening plain are reduced, by the time they reach the base of the

triangle at the sea, to one or two cubits depth. Banks, therefore, of

3 to 4 feet high, are sufficient to protect the country until here also they

open the bayous and canals which intersect the triangle. Here, then,

the case recurs of a river whose natural banks are partly competent to

contain its high waters in common floods, and are partly made so by

the hand of man; so as to furnish an ordinary high water line. In

extraordinary floods it overflows these banks, and in ordinary ones is

let through them. Yet these inundations as the Digest declares, do

not change the banks. `Nemo dixit Nilum ripas suas mutare," etc.

But when the river retires within its natural bed, the banks are again

repaired: "cum ad perpetuam sui mensuram redierit, ripae alvei ejus

muniendae sunt," ib. [See a. Herodot. 6-19. Strabo 788. 1 Univ.

Hist. 391-413. I Maillet Description de l'Egypte 14- 121. r De la

Croix 338. Encyclop. Meth. Geographie. Nil. I Savary 3-14. 2

Savary 185-275. 1 Volney 34-48. 4 Bruce 364-407-] @#

 







84        Jefferson's Works



 And 1. As to the bed of the river, there can be

no question but that it belongs purely and simply to

the sovereign, as the representative and trustee of

the nation. If a navigable river indeed deserts its

bed, the Roman law gave it to the adjacent propri-

etors ; the former law of France to the sovereign ;

and the new code gives it as an indemnity to those



@# (1). The Upper Missisippi, like the Upper Nile, has competent natural

banks through 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 plenissimum : and

the inhabitants there have no occasion as those of the Nile, to open

their banks for the purpose either of fertilizing, ox irrigating the lands.

Here, then, is still less reason, than in the case of the Nile, to say that

"the Mississippi there has changed its bank." 3. On the lower parts of

the Mississippi and some of its middle portion, especially on the western

side, artificial banks have not yet been made, and the country is

regularly inundated, as it is on those parts of our Atlantic rivers not

yet embanked. But our increasing population will continue to extend

these banks of our Atlantic rivers; and, for this purpose, our govern-

ments grant the lands to individuals. And the same, we know, is done

on the Mississippi. The Gyprieres adjacent to New Orleans, for example,

though covered with the refluent water from the lake, we know have

been granted to individuals, and will, with the rest of the drowned

lands, be reclaimed in time, as all lower Egypt has been.



  Thus, then, we find the laws of the Tyber and Nile transferred and

applied to the Mississippi with perfect accordance, and that all rivers

may be governed by the same laws. Other rivers are subject to acci-

dental floods, which are declared however not to disturb the law of the

plenissimum flumen. The Nile and Mississippi, not being subject to

accidental floods, the flumen plenissimum with them is steady and

undisturbed, and needs not the benefit of the exception. Nor will the

reason of the law be changed, whether the cause of the inundation be

the saturation of the earth and fountains, or rains, or melted snows, or

the reflux of the ocean. The principle remains universally the same,

that the land mark, when once established by a competent bank, is not

changed by the inundation, or by any cause or circumstance of its

high waters. @#

 







        The Batture at New Orleans     85



through whose lands the new course is opened. But,

while it is occupied by the river, all laws, I believe,

agree in giving it to the sovereign; not as his per-

sonal property, to become an object of revenue, or

of alienation, but to be kept open for the free use of

all the individuals of the nation.



"Flumina omnia, et portus,         

publica sunt." Inst. 2. I. 2.     

" Impossibile est ut alveus flu-   

minis publici non sit publicus."   

Dig.43. 12.7.                      

"Litus publicum est eatenus        

qua maximus fluctus exaestuat."     

Dig. go. 16. 96. 112.



"All rivers and ports are

public."

" It is impossible that the bed

of a public river should not be

public."

"The seashore is public as far

as the greatest wave surges."





 And " litus " we have seen is the beach or shore

of the sea.



 "As to navigable streams and rivers, on which

boats can ply, the property of them is in the king,

as an incontestable right, naturally attached to the

sovereignty; and since public things belonged to

the people in the Roman republic, amongst us (in

France) they must belong to our Sovereigns. "

Julien, cited by Thierry 10. And Prevost de la

Jannes, in his Principles of French Jurisprudence,

after having said that the property of public things

belongs to the king adds " subject to the use thereof

that is due to the people." Thierry, ib.

 In like manner, by the common law of England,

the property, tam avuae quam soli, of every river,

having flux or reflux, or susceptible of any naviga-

tion, is in the king; who cannot grant it to a subject.

 







86        Jefferson's Works



because it is a highway, except for purposes which

will increase the convenience of navigation. "The

king has a right of property to the sea shore, and the

maritima incrementa. The shore is the land lying

between high water and low water mark in ordinary

tides, and this land belongeth to the king de jure

communi, both in the shore of the sea, and shore of

the arms of the sea. And that is called an arm of

the sea where the tide flows and reflows, and so far

only as the tide flows and reflows." Hale de jure

maris. c. 4. cited in Bac. Abr. Praerog. B. 3.



  So that I presume no question is to be made but

that the bed of the Mississippi belongs to the sover-

eign, that is, to the nation.



  2. In the bank, from the high water line inland,

it is admitted that the property or ownership, is in

the Riparian proprietor of the adjacent field or farm :

but the use is in the public, for the purposes of navi-

gation and other necessary uses.



  "Riparum quoque usus publi-

cus est jure gentium [i. e. gentis

humanae] sicut ipsius fluminis:

itaque naves ad eas appellere,

funes arboribus ibi natis religare,

onus aliquod in his reponere, cui-

libet liberum est, sicut per ipsum

flumen navigare. Sed proprietas

earum, illorum est, quorum prae-

d€s haerent : qua de causa arbores

quoque in eisdem natae eorundem

sunt." Inst. 2. 1. 4. And Vin-

nius adds "non ut litora maris,

ita ripas, conditionem fluminis

sequi. "



  " The use of the bank is public

by the law of nations [i. e. of

nature] as to navigate the river

itself. Therefore it is free for

every one to bring his ships to at

them, to make fast ropes to the

trees growing there, to discharge

any load on them. But the prop-

erty of them is in those to whose

farms they adhere; for which

reason the trees likewise growing

on them, belong to the same."

And Vinnius adds "the banks do

not, like the shores of the sea,

follow the condition of the river,"

 







        The Batture at New Orleans    87



"Publica sunt flumina, portus,       

alveus fluminis quamdiu a flumine   

occupatus, ripae. Harum rerum         

omnium, proprietas nullius, si        

inno ripas exciperis, quarum proprietas   

eorum est qui prope ripam praedia     

possidunt." Vinn€ Part. jur. L.      

1. C. 17.                            

"Rivers, harbors, the beds of

rivers as long as occupied by the

river, and the banks are public.

The property of all these is

one, if you will except the banks,

the prope: ty of which is in those

who poscess the farms on the

bank."





  " Rivers, streams, high roads belong to all men

in common; and although the soil of the banks of

the rivers be an accession to the property of the

owners of the contigunus land, yet all men may

make use of them so far as to make fast their ves-

sels to the trees which grow there, to repair them,

and spread their sails on the banks; and they may

there discharge their goods. Fishermen have also

a right to dry their nets there, to expose their fish

for sale on the banks, and in general to use them for

every purpose of their art, or the occupation by

which they live. " 3 Part id. 28. 6. cited Thierry g.



  " The same usefulness of the navigation of rivers

demands the free use of their banks, so that in the

breadth and length necessary for the passage and

track of the horses which draw the boats, there be

neither tree planted nor any other obstacle in the

way." Domat, Pub. law. 1. 8. 2. 9. To moor

their vessels, spread their sails, unlade, sell their

fish, etc. , are here mentioned for example only, and

not as a full enumeration of the variety of uses

which, flowing from the public rights, may be exer-

cised by them. In England it is said to have been

decided that the public have no common-law right

 







88 Jefferson's Works



to tow upon the banks of navigable rivers. 3 Term.

Rep. 253. cited Bac. Abr. highways A.



  These authorities are so clear that they need no

explanation. The text is as plain as any commen-

tary can make it. '



  But there is an important limitation to these

rights. Every individual is so to use them as not



 [Limitation of the rights of property] to obstruct others in their equal
enjoy-

ment. The space every one occupies

on the bank or bed, as in a highway, a

market, a theatre, is his for reasonable temporary

purposes, but not to be held permanently. The

adjacent landholder may repair or fortify his bank

to protect his land from inundation, but under the

control of the magistrate, that his neighbors be not

injured. He cannot divert the course of the stream,

or even draw off water from it, to the injury of the

navigation; nor erect any work which shall incom-

mode the harbor or quai. ,



  "Ne quid in flumine publico,

ripave ejus, facias, ne quid in flu-

mine publico, neve in ripa ejus

immittas, quo statio, iterve nav-

igio deterior sit. Dig. L. 43. t. 12.

1. I. Stationem dicimus a statu-

endo: is igitur locus demon-

stratur, ubicunque naves tuta

starc possunt. ib.  13.

  "Deterior statio, itemque iter

navigio fieri videtur, si usus ejus

corrumpatur. vel difficilior fiat,

eut minor, vel rarior, aut ci in

totum auferatur. Proinde, civc



  " You are not to do any thing in

a public river, or on its banks, you

are not to cast any thing into a

public river, or on its banks,

which may render the station, or

course of a ship worse. It is

called a station, from statuere, to

place: that place is .intended

where ships may safelystay.

  "The station and course of a

ship seems to be rendered worse,

if its use be destroyed, or made

more difficult, or less, or scantier,

or if it be wholly taken away.

 







        The Batture at New Orleans     89





derivatur aqua, ut exiguior facta

minus sit navigabilis, vel si dila-

tetur, aut diffusa, b evem aquam

faciat; vel contra sic coanguste-

tur, et rapidius flumen faciat: vel

si quid aliud fiat, quod naviga-

tionem in ommodet, difficiliorem

faciat, vel prorsus impediat, inter-

dicto locus erit. " Dig. 43. 12. 15.



  "Molino, nin canal, nin casa,

nin torre, nin cabana, nin otro

edificio ninguno, non puede nin-

guno home facer nuevamente en

los rios por los quales los homes

andan con sus navios, nin en las

riveras dellos, porquc se embar-

rasse el uso comun dellos. E si

alguno lo ficiesse y de nuevo, 6

fuessc fccho antiguamentc, dc que

viniesse dano al uso comunal,

debe ser deribado. Ca non seria

cosa guisada que el pro de todos

los omes communalmentc se estor-

basse por la pro de algunos." Par-

tidas. 3. 28. 8. cited Derb. 48.

Poydras 12.



Moreover, if water be drawn off,

so that, being scantier, it is less

navigable, or if it be dilated, or

spread out, so as to make the

water shallow, or if on the other

hand it be so narrowed as to make

the river more rapid; or if any

thing else be done which incom-

modes the navigation, makes it

worse, or wholy impedes it, there

is ground for Interdict. "



  "Mill, nor canal, nor house, nor

tower, nor cabin, nor. other build-

ing whatsoever, may any man

make newly in the rivers along

which men go with their vessels,

nor on their banks, by which their

common use may be embarrassed.

And if any one does it anew, or

were it anciently done, so that

injury is done to the common use,

it ought to be destroyed. For it

would not be meet that the benefit

of all men in common should be

disturbed for the benefit of some. "

  The owner of lands on the bank of a river may,

however, make or repair a bank to protect them

from the river.



  " Quamvis fluminis naturalem

cursum, opere manu facto alio,

non liceat avertere, tamen ripam

suam adversus rapidi amnis im-

petum, munire prohibitum, non

eet." Codex L. 7. t. 41. 1.



  " Although it is not allowed to

turn the natural course of a river

by another made by hand, yet it

is not prohibited to guard one's

bank against the force of a rapid

river. "



  But he is not permitted to do even this if it will

affect the public right, or injure the neighboring 

inhabitants.







 







90        Jefferson's Works



  "In flumine publico, inve ripa

ejus facere, aut in id flumen ri-

pamve immittere, quo aliter aqua

fluat quam priore aestate fluxit,

veto." Dig. L. 43. tit. 13.  1.



  " Quod autem ait, aliter fluat

non ad quantitatem aquae fluentis

pertinet, sed ad modum, et ad

rigorem cursus aquae referendum

est. Et si quod aliud vit€ accolae

ex facto ejus qui convenitur sen-

tient, interdicto locus erit." Ib.

 3.



  " Sunt qui putent excipiendum

hoc interdicto 'quod ejus ripae

muniendae causa non fiet,' scilicet

ut si quid fiat quo aliter aqua

fluat. si tamen muniendae ripae

causa fiat, interdicto locus non sit.

Sed ne hoc quibusdam placet;

neque enim ripae, cum incom-

modo accolentium, muniendae

sunt." Ib.  6



  " I forbid any thing to be done

in a public river, or on its bank, or

to be cast into the river or on its

bank, by which the water may be

made to flow otherwise than it

flowed in the last season."



  "When he says, to flow other-

wise, it relates, not to the quan-

tity of water, but to the manner

and direction of the course of the

water. And if the neighbors ex-

perience any other evil from the

act of him who is convened, there

will be ground for interdict."



  "Some think liable to this in-

terdict only 'what is not done for

the purpose of strengthening the

bank,' to wit, that if anything be

done by which the water may

otherwise flow, if nevertheless it

was to secure the bank, there is no

ground for interdict. But this is

not approved by others, for that

banks are not to be secured to the

inconvenience of the .inhabitants.'



  More particularly full and explicit as to the inhibi-

tions of the law against obstructing the bed, beach or

bank of a sea or river, is Noodt, Probabil. Juris civ-

ilis. 4. 1. 1. After declaring that as to a house, or

other such thing, built in a public river, the law is

the same as obtains as to the sea and sea shore, he

proposes to state, 1. The law respecting the sea and

its shore, and  2. As it respects a river and its bank;

and says,



  "Ait Celsus maris communem

usum esse, ut aeris; jactasque in

id pilas fieri ejus qui jecit: sed id



  "Celsus says that the use of the

sea is common, as is that of the

air: and that stones laid in it were

 







        The Batture at New Orleans     91





concedendum non esse, si deterior

litoris marisve usus eo modo fu-

turus sit.



  Adeo hoc quod in mari exstruc.

tum est, facientis est. Ut tamcn

exstruere liceat, et decreto opus

est, et ut innoxia cedificatio sit.



  Porro ut usus maris, ita usus

litoris, sive. communis, sive pub-

licus est jure gentium; et ideo

licet unicuique in litore aedificare,

litusque aedificatione suum facere.



  Si tamen, ut in mari, ita in

litore, impetravit: praeterea si non

eo modo deterior futurus sit usus

litoris ; vel nisi usus publicus im-

pedietur. Hoc in mari litoribus

jus est. Idem in fluminibus pub-

licis, Ulpiano teste, Dig. 39. 2. 24.

cum sic ait, `fluminium publi-

corum communis est usus, sicut

viarum publicarum et litorum. In

his igitur publice licet cuilibet aedi-

ficare, et distruere, dum tamen

hoc sine incommodo cujusquam

fiat.'



  Vult tamen Ulpianus, ut aedi-

ficari possit, aedificari publice et

sine cujusquam in ommodo; pariter

ut in mari et litore definitum:

publice inquam, seu publica aucto-

ritate; id enim hoc verbum, publice

indigitat. "



  And ( 2.) citing Dig. 43. 12.

4. he says, "quaesitum est, an

is, qui in utraque ripa fluminis

publici domus habeat, pontem

privati juris [vel privato jure]

facere potest ; respondit non

posse.



  Et si facit, interdicto teneri.

Causa responsi est quod, cum

his who laid them, but that it

was not to be admitted if the

use. of the shore or sea would

be the worse. So what is con-

structed in the sea is his who

constructs it. But to make it

lawful to construct, a decree is

necessary, an.d that the construc-

tion be inn cent. Moreover, as

the use of the sea, so that of the

shore, is either common or public,

by the law of nations. And there-

fore it is lawful for any one to

build on the shore, and to make

the shore his by the building; if

however, as in the sea, so on the

shore, he has obtained permission :

and provided besides, the use of

the shore will not thereby be ren-

dered worse, nor the public use be

impeded. This is the law as to

the sea and its shores. It is the

same as to public rivers, according

to Ulpian, Dig. 39. 2. 24. where he

says, `the use of .public rivers is

common, as of highways and

shores. In these, therefore, any

one may build up, or pull down,

publicly, provided it be done with-

out inconvenience to any one.'

That you may build, however,

Ulpian require. that you build

publicly, and without inconveni-

ence to any one ; in like manner as

is prescribed as to the sea, and its

shore : publicly, I say, or by public

authority; for that is what the

word publicly, indicates." And  2.

citing Dig. 43. 12. 4. he says, "it is

asked whether he who has houses

on both banks of the river, may

build a bridge, of his own private

 







92        Jefferson's Works



pontem facit, usum fluminis 

publici facit deteriorem." So 

far Noodt. 



authority. He answers, he can-

not; and if he does, he is bound

by the interdict. The reason of

the answer is, that by building a

bridge he injures the use of a

public river." So far Noodt.



 The same is the law as to highways and public

places. Dig. 43. 8. 2. 16.



  "Si qui" principe simpliciter 

impetraverit ut in publico loco 

aedificet, non est credendus sic 

aedificare ut cum incommodo ali- 

cujus id fiat." 



"If any one obtains leave,

simply, from the prince, to build

in a public place, it is not to be

understood he is so to build as

to incommode another."



 We see, then, that the Roman law not only forbade

every species of construction or work on the bed,

beach or bank of a sea or river, without regular per-

mission from the proper officer, but. even annuls the

permission after it is given, if, in event, the work

proves injurious; not abandoning the lives and

properties of its citizens to the ignorance, the facility,

or the corruption, of any officer. Indeed, without

all this appeal to such learned authorities, does not

common sense, the foundation of all authorities, of

the laws themselves, and of their construction, de-

clare it impossible that Mr. Livingston, a single indi-

vidual, should have a lawful right to drown the city

of New Orleans, or tu injure, or change, of his own

authority, the course or current of a river which is to

give outlet tu the productions of two-thirds of the

whole area of the United States ?



 Such, then, are the laws of Louisiana, declaratory

 







        The Batture at New Orleans      93



of the public rights in navigable rivers, their beds and

banks. For we must ever bear in mind that the Ro-

man law, from which these extracts are made, so far

as it is not controlled by the Customs of Paris, the

Ordinances of France, or the Spanish regulations, is

the law of Louisiana. Nor does this law deal in pre-

cept only, or trust the public rights to the dead letter

of law merely : it provides also for enforcement. The

Digest. L. 43. tit. 15. de ripa  munienda, provides



  ş I. " Ripas fluminum publico-

rum reficere, munire, utilissimum

est,-dum ne ob id navigatio de-

terior fiat: illa enim sola refectio

toleranda est, quae navigationi

non est impedimento."



  ş 3. "Is autem qui ripam vult

munire, dc-damno

  [Surety.] futuro debet vel

cavere, vel satis-

dare, secundum qualitatem per-

sonae. Et hoc interdicto expres-

sum cst, ut damni infecti, 'in

annos decem, viri boni arbitratu,

vel caveatur, vel satisdetur. "



  ş 4. "Dabitur autem satis vi-

cinis ; sed et his qui trans flumen

possidebunt.



  "Ne quid in loco publico facias,

inve eum locum immittas, qua ex

n quid illi damni detur. Dig. 43€

8. a. Ad ea loca hoc interdictum

pertinet, quae publico usui des-

tinata sunt: ut si quid illic fiat,

quod privato noccret, Praetor in-

tercederet interdicto suo.



  ş 1. " To repair and strengthen

the banks of public rivers, is most

useful : provided the navigation be

not by that deteriorated ; for those

repairs alone are to be permitted

which do not impede the naviga-

tion."



  ş 3. "But he who would

strengthen his bank, should give

either an engagement, or security

against future injury, according

to the quality of the person. And

this interdic: establishes that the

engagement, or security, against

future injury, shall be for ten

years, by the opinion of a good

man."



  " Security shall be given

to the neighbors, and also to pos-

sessors on the other side of the

river. "



" You are to do nothing in any

public place, nor to cast any thing

into that place, from wh:ch any

damage may follow. This inter-

dict respects those places, which

are destined for public use: and

that if anything be there done,

which may injure an individual,

 







94        Jefferson's Work's



Adversus eum qui molem in mare

projecit, interdictum utile com-

petit ei, cui forte haec res nocitura

sit: si autem nemo damnum sen=

tit, tuendus est is, qui in litore

aedificat vel molem in mare jacit.

ş 8 -Damnum autem pati vide-

tur, qui commodum amittit, quod

ex publico consequebatur, quale-

quale sit. ş 11.-Si tamen. nul-

lum opus factum fuerit, officio

judicis continetur, ut caveatur

non fieri." ş 18.



the Praetor may interpose by his

interdict: Against him who pro-

jects a mole into the sea, the inter-

dictum utile lies for him to whom

this may possibly do injury, but

if nobody sustains damage, he is

to be protected who builds on the

sea shore, or projects a mole into

the sea.-And he seems to suffer

injury who loses any convenience,

which he derived from the public,

whatsoever it may be.-But if no

work is done, he should be con-

strained by the authority of the

judge to engage that none shall be

done."



  " Seeing the use of rivers belongs to the public

nobody can make any change in them that may be

of prejudice to the said use. Thus one cannot do any

thing to make the current of the water slower, or

more rapid, should this change be any way prejudi-

cial to the public, or to particular persons. Thus

although one may divert the water of a brook, or a

river, to water his meadows or other grounds, or for

mills and other uses; yet, every one ought to use

this liberty so as not to do any prejudice either to the

navigation of the river, whose waters he should turn

aside, or the navigation of another river which the

said water should render navigable by discharging

itself into it, or to any other public use, or to neigh-

bors who should have a like want, and an equal

right. " Dom. Pub. law. 1. 8. 2. 11.



  The same law makes it peculiarly incumbent on the

government and its officers to watch over the public

 







        The Batture at New Orleans     95



property and rights, and to see that they are not in-

jured or intruded on by private individuals. In or-

der to preserve the navigation of rivers, it is proper

for the government to prohibit and punish all at-

tempts which might hinder it, or render it inconven-

ient, whether it be any buildings, fisheries, stakes,

floodgates and other hindrances, or by diverting the

water from. the course of the rivers, or otherwise.

And it is likewise forbidden to throw into the rivers

any filth, dirt or other things, which might be of pre-

judice to the navigation, or cause other inconven-

iences." Dom. Pub. L. 1. 8. 2. 8.



  " Quoique la mer et ses bords

soient, suivant les principes du

droit naturel, des choses pub-

liques et communes a tous, avec

faculte a chacun d'en user selon sa

destination, neanmoins il ne doit

pas etre permis aux uns d'en jouir

au prejudice des autres. Ainsi

pour prevenir les inconveniens qui

seroient resultes de la liberte

d'user de la chose commune, il a

fallu que cette liberte fut limitee

par la puissance publique, ainsi

que s'en explique Domat, etc.

Nouv. Comment. sur l'orden. de

I6BI. tit. 7. art. 2. Note.



  " Although the sea and its

shores, according to the principles

of natural law, are things public

and common to all, with liberty to

every one to use them according

to their destination, nevertheless

it ought not to be permitted to

some to enjoy them to the preju-

dice of others. Therefore to pre-

vent the inconveniences which

would result from the liberty of

using the public property, it is

necessary that that liberty be

limited by the public authority

as explained by Domat," etc.



  " It is likewise agreeable to the law of nature, that

this liberty, which is common to all, being a contin-

ual occasion of quarrels, and of many bad conse-

quences, should be regulated in some manner or

other; and there could be no regulation more equit-

able, nor more natural, than leaving it to the sover-

 







96        Jefferson's Works



eign to provide against the said inconveniences. For

as he is charged with the care of the public peace and

tranquillity, as it is to him the care of the order and

government of the society belongs, and it is only in

his person that the right to the things which may be-

long in common to the public, of which he is the

head, can reside; he, therefore, as head of the com-

monwealth, ought to have the dispensation and exer-

cise of this right, that he may render it useful to the

public. And it is on this foundation that the Ordi-

nances of France have regulated the use of naviga-

tion, and of fishing, in the sea and in rivers. " Dom.

P. L. 1. 8. 2. I. note. Observe that the work of

Pomat was published in 1689, and he died in 1696.

Dict. hist. par une societe. verbo Domat. We know

then from him the state of the laws of France, at a

period a little anterior only to the establishment of

the colony of Louisiana, and the transfer of the laws

of France to that colony by its charter of 1712.



  To the provisions which have been thus made by

the Roman and French laws and transferred to

Louisiana, no particular additions, by either the

French or Spanish government, have been produced

on the present occasion. We know the fact, and

thence infer the law, that from a very early period,

the governors of that province were attentive espe-

cially to whatever respected the harbor of New

Orleans, which included the grounds now in ques.

tion. We see them forbidding inclosures, or build-

ings on them, pulling down those built, publishing

 







        The Batture at New Orleans     97



bans against future erections, forbidding earth for

buildings and streets to be taken from the shore ad-

jacent to the city, and assigning the beach Ste. Marie

for that purpose, protecting all individuals in the

equal use of it as a Quai, in which cares and superin-

tendence the Cabildo or City Council, participated;

and on the change of government we see that council

pass an Ordinance declaratory of the limits of the

N. Orleans, and come forward in defence of the pub-

lic rights, in the first moment of J. Gravier's intru-

sion, by pulling down his inclosure, and when that

intrusion under the enterprise of Mr. Livingston, as-

sumed a more serious aspect, they, as municipal

guardians of the interests of the city, made an imme-

diate appeal to the Judiciary, the Executive, and

Legislative authorities. In addition,

                            [Levees and Police of Mississippi]

too, to the French laws for the protection        

of the bed and bank of the river, the ter-

ritorial legislature, on the 15th of Feb. , 1808, passed

an Act, reciting that inasmuch as "the common

safety of the inhabitants of the shores of the river

Mississippi depends not only on the good condition of

the levees or embankments, which contain the waters

of the said river ; but also on the strict observance of

the laws concerning the police of rivers and their

banks, which are in force in this territory, and by

which it is forbidden to make on the shores of the

rivers, any work tending to alter the course of the

waters, or increase their rapidity, or to make their

navigation less convenient, or the anchorage less



   VOL. XVIII-7

 







98        Jefferson's Works



sure, [almost in the words of the Roman law, "ne

quid in flumine publico ' '] they therefore enact that

no levee shall be made in. front of those which exist

at present, but on an inquisition by 12 inhabitants,

proprietors of plantations situate on the banks of the

river, convoked for that purpose, by the Parish

judge ; that no such levee, which at the present time

of passing this act shall happen to be commenced in

front of others already existing, shall be continued

or finished without a like authorization; that those

who act in contravention shall be fined 100 dols. for

every offence in contravention, and pay the expenses

of removing the nuisance, and costs of suit ; and pro-

hibiting the receiving compensation for the use of the

shores under a penalty of 500 dols. A law of won-

derful, not to say imprudent and dangerous tender-

ness to the riparian proprietors, who are thus made

the sole judges in cases where their own personal in-

terests may be in direct opposition to the interests,

and even the safety of the city, to which it gives no

participation or control over the power which may

devote it to destruction.



 This act is partly declaratory of the existing law,

and partly additional. Application to the Praetor

was under the Roman law (Dig. 43. 13. 6.) for per-

mission to fortify a bank for the protection of a farm.

He might refuse permission if injurious; but if he

thought it would nat be injurious, the party was to

give security to make good all damages which should

accrue within ten years; and this security was for

 







        The Batture at New Orleans     99



the protection, not only of immediate neighbors, but   

of those also on the opposite bank " trans flumen pos-

sidentibus. " The Governor and Cabildo seem to

have held this Praetorian power in Louisiana, as well

as that of demolishing what was unlawfully erected.

This act of the Legislature, without taking the power

from the Governor and City Council, gave a concur-

rent power to the parish judge, and a jury of 12 ripa-

rians: and without dispensing with the security re-

quired by the existing law, adds penalties against

contraveners.



 And surely it is the territorial legislature, which

not only has the power, but is under the urgent duty,

of providing regulations for the government of this

river and its inhabitants, regulations adapted to

their present political regulations, as well as to the

peculiar character and circumstances of the river,

and the adjacent country. Their power is amply

given in the act of Congress of 1804, c. 38. ş 11

" The laws in force in the said territory at the com-

mencement of this act, and not inconsistent with the

provisions thereof, shall continue in force, until

altered, modified, or repealed by the legislature. ş 4.

The Governor, by and with advice and consent of the

said legislative council, or a majority of them, shall.

have power to alter, modify, and repeal the laws

which may be in force at the commencement of this

act. Their legislative powers shall extend to all the

rightful subjects of legislation ; " with special excep-

tions, none of which take away the authority to leg-

 







100        Jefferson's Works



islate for the police of the river. And if ever there

was a rightful subject of legislation, it is that of re-

straining greedy individuals from destroying the

country by inundation.



   And here it must be noted that Mr. Livingston's

works were arrested by the Marshal and

[Suspension of Liv'e works by whom]

posse comitatus, by an order from the

Secretary of State on the 25th of January,

1808, and on the 15th of the ensuing month, the leg-

islature took the business into the hands of their own

government, by passing this act. From this mo-

ment it was in Mr. Livingston's power to resume his

works,by obtaining permission from the legal author-

ity. The suspension of his works, therefore, by the

general government was only during these 21 days.

That Mr. Livingston's works were clearly within

the interdict of the Roman, the French, and the

Spanish laws, which forbid the extending a mole into

the water, constructing in it mills, floodgates, canals,

towers, houses, cabins, fisheries, stakes



Their nature. or other things which may obstruct or

embarrass the use, will result from a brief recapitula-

tion of their character and effects, drawn from the

statement before given. For it is not to establish a

mill, which, though an intrusion would be but a par-

tial one : it is not to erect a temporary cabin or fish-

erman's hut, which would be a minor obstacle: but

it is to take from the city and the nation what is their

port in high water, and at low tide their Quai; to

leave them not a spot where the upper craft can land



 





       The Batture at New Orleans    101



or lie in safety; to turn the current of the river on

the lower suburbs and plantations; to embank the

whole of this extensive beach; to take off a fourth

from the breadth of the river, and add equivalently

to the rise of its waters ; to demolish thus the whole

levee, and sweep away the town and country in un-

distinguished ruin. And this not as a matter of

theory alone, but of experience: the fact being

known that since the embankment of the river on

both sides through a space of three or four hundred

miles the floods are two or three feet higher than be-

fore that embankment. In fine, should they have

time to save themselves from inundation by dou-

bling the height and breadth of their levee, it is that

they may fall victims to the pestilential diseases

which, under their fervid sun, will be generated by

the putrefying mass with which he is to raise up the

foundation between the old and new embankments.

But has he entitled himself to attain these humane

achievements by fulfilling the preliminary requisites

of the law? Has he obtained the Praetorian, or Pro-

Praetorian license, that of the governor and city

council, to erect this embankment? Has he given

security for all the damages which shall be occa-

sioned by his works for ten years ? Has he even car-

ried his case before a jury of 12 brother riparians ?

Or does he fear to trust it even to those having sim-

ilar interests with himself ? lest the virtuous feeling

of compunction for the fate of their fellow citizens

should scout his proposition with honest indigna

 







102        Jefferson's Works



tion? And yet, until this permission, every spadeful

of earth he moved was an outrage on the law, and on

the public peace and safety, which called for imme-

diate suppression. What was to be done with such

an aggressor? Shall we answer in the words of the

Imperial edict, on a similar occasion, that of break-

ing the banks of the Nile ? Cod. 9. 38. " Flammis

eo loco consumatur, in quo vetustatis reverentiam,

et pro"emodum ipsius imper" appetierit securitatem;

consciis et consortibus ejus deportations constrin-

gendis; sic ut nunquam supplicandi, eis, vel recipi-

endi civitatem vel dignitatem, vel substantiam, licen-

tia tribuatur. " " Let him be consumed by the flames

in that spot in which he violated the reverence of an-

tiquity, and the safety of the empire, let his accesso-

ries and accomplices be cut off by deportation from

the possibility of supplicating forgiveness, or of being

restored to country, dignity and possessions." Our

horror is not the less because. our laws are more

lenient.



  Such, then, were the facts, and such the state of

        the law, on which we were called, and re-

 [Remedies.]

        peatedly and urgently called to decide:

not indeed in all the fulness in which they have since

appeared, but sufficiently manifested to show that

an atrocious enterprise was in a course of execution,

which if not promptly arrested, would end in a deso-

lation for which we could never answer. The ques-

tion before us was, What is tu be done ? What rem-

edy can we apply, authorized by the laws, and

prompt enough to arrest the mischief?

 







        The Batture at New Orleans     103



  1. Were the case within the jurisdiction of our

own laws, its character and remedy

                               [ Abatement of Nuisance]

would be obvious enough. A navigable

river is a highway, along which all are

free to pass. And as the obstructing a highway on

the land, by ditches or hedges, or logs across it, or

erecting a gate across it, is a common nuisance, so

to weaken injuriously the current of a river, by

drawing off a part of its water, to obstruct it by

moles, dykes, weirs, piles, or otherwise, is a common

nuisance; and all authorities agree, that every one

is allowed to remove or destroy a common nuisance.

Hawkins, P. C. 1. ; 5. 12. The Marshal and posse,

instead of pleading the order from the Secretary of

State, have a right to say "we did this as citizens,

and the law is our authority : " and it would really be

singular if, what every man may, or may not do, at

his pleasure, the magistrate who is sworn to see the

law executed, and is charged with the care of the

public property and rights, is alone prohibited from

doing; or if his order should vitiate an act which

without it would have been lawful, or which he

might have executed in person. It would be equally

singular, and equally absurd, that the law should

punish the magistrate for hindering Mr. Livingston

from doing what itself had forbidden and would pun-

ish, and reward him with damages for having been

restrained from what they had forbidden him to do.

The law makes it a duty in a bystander to lay hands

on a man who is beating another in the street, and

 







104        Jefferson's Works



to take him off. And yet it is proposed that the

same law shall punish him for taking off one who was

engaged, not in beating a single individual, but in

drowning a whole city and country. This is not our

law ; it is not the law of reason ; and I am persuaded

it is no part of a system emphatically called ratio

scripta. If it is, let the law be produced. Until it

is, we hold every man authorized to stay a wrong-

doer, in the.commission of a wrong, in which himself

and all others are interested.



  2. By nature's law, every man has a right to seize,

and retake by force, his own property,

[Forcible entry.] taken from him by another, by force or

fraud. Nor is this natural right among the first

which is taken into the hands of regular govern-

ment, after it is instituted. It was long retained by

our ancestors. It was a part of their Common law,

laid down in their books, recognized by all the

authorities, and regulated as to certain circumstances

of practice. Lambard, in his Eirenarcha. B. 2. c. 4.

says, " it seemeth ' that (before the troublesome

raigne of king Richard the second,) the Common law

permitted any person (which had good right or title

to enter into any land,) to win the possession by

force, if otherwise he could not have obtained it.

For a man may see, (in Britton fo. 115.) that a cer-

tain respite of time was given to the disseisee, (ac-

cording to his distance and absence,) in which it was

lawful for him to gather force, arms, and his friends

and to throw the disseisor out of his wrongful posses-

 







The Batture at New Orleans 105



sion." Hawkins in his Pleas of the crown, and all

the Abridgements and Digests of the law say the

same: but, not to take it at second hand, we will

recur to the earliest authorities, written while it was

yet the law of the land. Fleta in the time of E. 1.

writes,



  "Si facta fuerit diseissina,

primum et principale competit

remedium quod ille qui ita dis-

seisitus est, per se, si possit, vel

sumptis viribus, vel resumptis

(dum tamen sine aliquo inter-

vallo, flagrante disseisina et male-

ficio) rejiciat spoliantem.



  Quem si nullo modo expellere

possit, ad' .superioris auxilium

erit recurrendum. Si autem

verus possessor absens fuerit,

tunc locorum distantia distin-

guere oportebit, secundem quod

fuerit prope vel longe, quo

tempore viz. scire potuit dis-

seisinam esse factam, ut sic,

allocatis ei rationsbilibus dila-

tionibus, primo die cum venerit,

statim suum dejiciat disseisito-

rem; qui, si primo die, non possit,

in crastino, vel die tertio vel

ulterius, dum tamen sine fictitia,

hoc facere poterit, vires sibi re-

sumendo, arms colligendo, auxili-

umque amicorum convocando."

Fleta L. 4. c. a.



  And Bracton L. 4. c. 6. in

almost totidem verbis; and Brit-

ton "le premer remedie pour

disseisine est al disseisi de

recollier amys et force et sauns

delay faire (apres ceo que il le



  "If a disseisin has been com-

mitted, a first and principal

remedy lies, that he who has been

so disseised, by himself, if he can,

or taking force, and retaking,

(provided it be without any in-

terval, the disseisin and wrong

being yet flagrant,) may eject the

spoliator. Whom, if he can by no

means expel, resort is to be had to

the assistance of a superior. But

if the rightful possessor were ab-

sent, then, regard must be had to

the distance of the places, accord-

ing as it was near or far off, at what

time, for instance, he could know

that a disseisin had been com-

mitted, that so, reasonable delays

being allowed him, on the first day

when he comes, he may immedi-

ately ejec the disseisor, which if

he cannot do on the first day, he

may on.the morrow, or third day,

or later, provided however he do

it without false pretences, by

taking to himself force, collecting

arms, and calling in the aid of his

friends." And Bracton 1. 4. c. 6.

almost in the same words; and

Britton says, "The first remedy

for disseisin is for the disseisee to

collect his friends and force, and

without delay, (after he may

 







106        Jefferson's Works



purra saver) engetter les dis-      

seisours. " Britton c. 44.          



know of it,) to eject the dis-

seisors. "



 This right, as to real property, was first restrained

in England by a statute of the 5. R. 2. c. 7. which for-

bade entry into lands with strong hand ; and another

of the same reign, 15. R. 2. c. a. authorized imme-

diate restitution to the wrongdoer, put out by forci-

ble entry. And even at this day, in an action of

trespass, for an entry, vi et armis, if the defendant

makes good title, he is maintained in his possession

and the plaintiff recovers no damages for the force.

Lambard 2. 4. Hawk. P. C. 1. 64. 3. And in like

manner, the natural right of recaption by force still

exists, as to personal goods, and the validity of their

recaption. Hawk. 1. 64. 1. Kelway 92. is express.

Blackstone, indeed, 3. 1. 2. : limits the right of recap-

tion to a peaceable one, not amounting to a breach of

the peace; meaning, I presume, that the recaptor by

force may be punished for the breach of the peace.

So may the defendant in trespass for an entry vi et

armis. Yet in an action of detinue for the personal

thing retaken by force, the first wrongdoer cannot

recover it, nor damages for the recaption, any more

than in the case of trespass for lands. So that to this

day the law supports the right of recaption, as be-

tween the parties, although it will punish the public

offence of a breach of the peace.



 When this natural right was first restrained among

the Romans, I am not versed enough in

[Roman Law.] their laws to say. .. It was not by the laws

 







        The Batture at New Orleans      107



of the XII tables, which continued long their only

laws. From the expression of the Institute, "divn-

libus constitutionibus, " I should infer it was first

restrained by some of the Emperors, predecessors of

Justinian. L. 4. t. 2.  2.



  " Divalibus constitutionibus

prospectum est, ut nemini liceat

vi rapere vel rem mobilem, vel se

moventem, licet suam eandem

rem existimat. Quod non solum

in mobilibus rebus, quae rapi pos-

sunt, constitutiones obtinere cen-

suerunt, sed etiam in invasion-

ibus, quae circa res soli fiunt."



  "By the Imperial constitutions

it is provided that no one shall

take by force a thing either move-

able, or moving, although he con-

siders it as his own. Which the

constitutions have ordained to

take place, not only in movable

things, which may be taken, but

also in intrusions which are made

into lands."



  But I believe that no nation has ever yet restrained

itself in the exercise of this natural right of reseising

its own possessions, or bound up its own hands in the

manacles and cavils of litigation. It takes possession

of its own at short hand, and gives to the private

claimant a specified mode of preferring his claim.

There are cases, of particular circumstance, where

the sovereign, as by the English law, must institute a

previous inquest : but in general cases as the present,

he enters at once on what belongs to his nation. This

is the law of England. "Whenever the king's (i. e.

the nation's) title appears of record, or a possession

in law be called upon him by descent, escheat, etc. , he

may enter without an office found: for if his title

appear any way of record, it is as good as if it were

found by office: and if any one enter on him, even

before his entry made, he is an intruder; he cannot

 







108        Jefferson's Works



gain any freehold in the land, nor does he put the

king to an assize or ejectment, or take away his right

of entry: for he cannot be disseised but by record.

Stamford. Praerogativa regis. 56. 57. Com. Dig.

Praerog. D. 71. the substance of the authorities cited.



  What are the prescriptions of the Roman law in

this case, I do not know; nor are they material but

inasmuch as they may be the law of the case in Louis-

iana. A Spanish law before cited, p. 55, forbidding

erections on the beds, or on the banks of rivers, says

expressly, "si alguno lo ficiese debe ser deribado. " " If

any one does it, it is to be destroyed. " And the con-

stant practice of the Governors of demolishing such

erections was the best evidence of the law we could

obtain. Not skilled in their laws ourselves, we had

certainly a right to consider the Governor and Cab-

ildo as competent expositors of them, and as acting

under their justification and prescription. We might

reasonably think ourselves safe in their opinions of

their own law. In fact, if the immediate entry was

permitted by the English law, and our own, we

thought we might, a fortiori, conclude it permitted

by those of the province. We had before

[squatters] us, too, the example of many of the states

and of the general government itself, which have never

hesitated to remove by force the squatters and intru-

ders on the public lands.l Indeed if the nation were



   @#(1) Squatters or Intruders on the public or Indian lands were repeat-

edly removed by the State of Virginia, before its cession to Congress,

by the the old Congress (see Journ. 15 June 1785,) by the present

Government at various times and, as is believed, by other individual

states on the ground of natural rights only. MS. Note. @#

 







        The Batture at New Orleans    109



put to action against every Squatter, for the recovery

their lands, we should only have lawsuits, not lands for

sale. While troops are on parade, should intruders

take possession of their barracks, and shut the doors,

are they to remain in the open air till an action, or

even a writ of forcible entry replace them in their

quarters? if in the interval of a daily adjournment,

intruders take possession of the capitol, may not

Congress take their seats again till an inquisition and

posse shall reintroduce them ? let him who can, draw

a line between these cases. The correct [Jurisdiction in whom]

doctrine is that so long as the nation

under the jurisdiction of no court, but by special pro-

vision. The United States cannot be sued. The

nation, by its immediate representatives, administers

justice itself to all who have claims upon the public

property. Hence the numerous petitions which

occupy so much of every session of Congress in cases

which have not been confided to the courts. But

when once they have granted the lands to  [when it results to courts]

individuals, then the jurisdiction of the

courts over them commences. They fall then into

the common mass of matter justiciable before the

courts. If the public has granted lands to B. which

were the legal property of A., A. may bring his action

against B. and the courts are competent to do him

justice. The moment B. attempts to take possession

of A.'s lands, the writ of forcible entry, the action of

trespass or ejectment, and the Chancery process,

 







110        Jefferson's Works



furnish him a choice of remedies. The holders of

property therefore are safe against individuals by the

law ; and they are safe against the Nation by its own

justice : and all the alarm which some have endeav-

ored to excite on this subject has been merely ad cap-

tandum populum. As if the people would not be safe

in their own hands, or in those of their representa-

tives; or safer in the hands of irresponsible judges,

than of persons elected by themselves annually or

biennially. The truth is, no injury can be done to

any man by another acting either in his o"n or a

public character, which may not be redressed by

application to the proper organ to which that portion

of the administration of justice has been assigned.



  3. Our third and conclusive remedy was that pre-

scribed by the act of Congress of 1807. c. 91. to pre-

vent settlements on lands ceded to the U.

[Act of Congress.] S. The Executive had been indulgent, per-

haps remiss, in not removing Squatters from the public

lands, under the general principles of law before

explained and habitually acted on. This act there-

fore was a recent call on them to a more vigilant per-

formance of their duty, in the special district of

country lately ceded to them by France, with some

modifications of its exercise on previous settlers.

The act has two distinct classes of Intruders in view.

1. Those who, before the passing of the act, had

possessed themselves of the lands, and were actually

resident on them at the passing it : and 2. Those who

should take possession after the passage of the act. I.

 







        The Batture at New Orleans   111



With respect to the class of Intruders before the pas-

sage of the act, the 2d section provides that, on

renouncing all claim, they may obtain from the reg-

ister or recorder, permission to remain on the lands,

extending their occupation to 320 acres,  8. which

permissions are to be recorded: but,  4. those not

obtaining permission are, on three months' notice,

to be removed by the marshal. But Mr. Livingston

was much too wise to qualify himself for the benefit

of these sections, by an actual residence on the bat-

ture. His part of the act therefore is the first section

which enacts that "if any person shall take posses-

sion of any lands ceded to the U. S. by treaty, he

shall forfeit all right to them if any he hath; and it

shall be lawful for the President of the U. S. to direct

the Marshal, or the military, to remove him from the

lands. Providing however that this removal shall

not affect his claim until the Commissioners shall

have made their reports, and Congress decided

thereon. " The tribunal to which the legislature had

specially delegated a power to take cognizance of the

claims on the public lands in Orleans, and to inform

them what lands were clear of claim, and free to be

granted to our citizens, was a board of Commission-

ers: and the plain words and scope of the law were,

to keep all claims and prior possessions in statu quo,

until they could be investigated by these Commission-

ers, reported, and decided on by Congress. And this

act indulgently provides that the right of a person

removed by the Executive for irregularly taking

 







112        Jefferson's Works



possession of lands which he thought his own, should

not be affected by this removal, but that he might

still lay his claim before the Commissioners, and Con-

gress would decide on it. Mr. Livingston's claim

was clearly within the purview of the law. It was of

lands "ceded to the U. S. by treaty," and he had

"taken possession of them after the passage of the act. "

For the decree of the court was not till May 23, '07,

and his possession was subsequent to that. If he

should say, as his counsel seems to inti-

[Remitter] mate, Opinions LXVII, that this was a

remitter to him of the ancient possession of Bertrand

Gravier, I answer that it was no remitter against any

one, because the case was coram non judice, as will be

shown, and still less against the U. S. who were no

parties to the suit : and if it had been a remitter, then

I should have observed that the order has been exe-

cuted on a person not comprehended in it ; for it was

expressly restrained to possessions taken after the

3d of March '07, in that case the Marshal must justify

himself, not under the order, but his personal right to

remove a nuisance. But investigations, reports, and

decisions of Congress were dangerous. It was safer to

be his own judge, to seize boldly, and put the public

on the defensive. He seizes the ground he claims,

and refers his title to no competent tribunal. When

ousted, according to the injunctions of the statute,

and repossession taken on behalf of the U. S. he

passes by the preparatory tribunal of the Commis-

sioners, and endeavors to obtain a decision on his case

 







        The Batture at New Orleans     113



by Congress, in the first instance: in this too he has

been disappointed. Congress have maintained the

ground taken under the statute ; and Mr. Livingston

now demands the value of the lands from the magis-

trate on whom devolved the duty of executing the

statute.



 Taking now a brief review of the whole ground we

have gone over, we may judge of the correctness of

the decision of the Cabinet, as to their [Recapitulation.]

duty in this case. I trust it will appear

to every candid and unbiassed mind, that they were

not mistaken in believing



That the Customs of Paris, the Ordinances of the

French government, the Roman law as a supple-

ment to both, with the special acts of the Spanish

and American legislatures, composed that system

of law which was to govern their proceedings.



That, were this a case of Alluvion, the French law

gives it to the Sovereign in all cases; and the

Roman law to the private holder of rural posses-

sions only.



That Bertrand Gravier had converted his plantations

into a fauxbourg, and appendage of the city of New

Orleans ; with the previous sanction of the Spanish

government, according to his own declarations, by

which those claiming under him are as much bound,

as if made by themselves ; and certainly by its sub-

sequent formal recognitions, and confirmations,

which acted retrospectively ; and the character of

the ground being thus changed from a Rural to an



 vol. xviii--8

 







314        Jefferson's Works



Urban possession, the Roman law of Alluvion does

not act on it.



That even had his ground retained its rural character,

and admitting that the grant to him "face au fleuve"

conveyed the lands to the water's edge, his sales,

"face au fleuve " conveyed to his purchasers the

same right' which the same terms had brought to

him, and they, and not the plaintiff, now hold the

rights of B. Gravier, whatever they were.



That John Gravier elected to take the estate as a pur-

chaser by inventory and appraisement, the Bat-

ture, if Bertrand's was not in that inventory, nor

consequently purchased by John Gravier.



That the deed from him to De la Bigarre was fraudu-

lent and void, as well by the lex loci, as on the face

of the transaction.



That the decision of the court in his favor could in no

wise concern the United States, who were neither

parties to the suit, nor amenable to the jurisdic-

tion.



And, consequently, that under all these views of the

French law : the Roman law, the conveyances "face

au fleuve," the purchase by inventory, and the

fraudulency of the deed to Bigarre, the plaintiff's

claim is totally unfounded. And, if void by any

one of them, it is as good as if void by every one.



But it has appeared further that the batture had not a

single characteristic of alluvion :



That the bank of a river is only what is above the

high water mark :

 







        The Batture at New Orleans     115



That all below that mark is bed, or alveus, of which

the batture is that portion between the high and

low water mark, which we call the beach:



That it serves, as other beaches do, for a port while

covered, and Quai uncovered: and it is the only

port in the vicinity of the city which river craft can

use.



That, as a part of the bed of the river, it is purely

public property.



That it is not lawful for an individual to erect, on

either the bed or bank of a river, any works which

may affect the convenience of navigation, of the

harbor or Quai, or endanger adjacent proprietors

on either side of the river.



That though it is permissible to guard our own

grounds against the current of the river, yet, so

only, as to be consistent with the convenience and

safety of others.



That of this the legal magistrates are to be judges in

the first instance; but even their errors are to be

guarded against by an indemnification for all dam-

ages which shall actually accrue to individuals

within a given time.



That Mr. Livingston's works, in a single flood, had

given alarming extent, both in breadth and height,

to the batture : had turned the efforts of the river

against the lower suburbs, and habitations, not

before exposed to them ; that they would deprive

the public of what was their Quai in low water, and

harbor in times of flood: that, by narrowing the

 







116        Jefferson's Works



river one-fourth, it must raise it in an equivalent

proportion, ta discharge its waters : that this would

sweep away the levee, city, and country, or quad-

ruple the bulk of the levee, and the increased

danger to which that would expose it : and, even

then, would infect the city, by the putridity of the

new congestions, with pestilential diseases, to

which its climate is already too much predisposed.



That Mr. Livingston was doing all this, of his own

authority, without asking permission from the

public magistrate, or giving any security for the

indemnity of injured citizens:



That under pressure of these dangers, the Executive

of the nation was called on to do his duty, and to

extend the protection of the law to those against

whose safety these outrages were directed:



And that the authorities given by the laws, 1. For

preventing obstructions in the beds, or banks of

rivers, 2. For reseising public property intruded

on; and 3. For removing intruders from it by

force, were adequate to the object, if promptly

interposed.



  On duly weighing the information before us, which

though not as ample as has since been

[Orders of the Government]received, was abundantly sufficient to

satisfy us of the facts, and has been con-

firmed by all subsequent testimony, we were all

unanimously of opinion, that we were authorized,

and in duty bound, without delay; to arrest the

aggressions of Mr. Livingston on the public rights,

 







        The Batture at New Orleans     117



and on the peace and safety of the city of New

Orleans, and that orders should be immediately

dispatched for that purpose, restrained to intruders

since the passage of the act of March 3. The Sec-

retary of State accordingly wrote the letter of Nov.

30, to the Governor, covering instructions for the

Marshal to remove immediately, by the civil power,

any persons from the batture Ste. Marie, who had

taken possession since the 3d of March, and author-

ising the Governor, if necessary, to use military

force; for which purpose a letter of the same date

was€ written by the Secretary of War to the command-

ing officer at New Orleans. This force however was

not called on. The instructions to the Marshal were

delivered to him about g o'clock in the morning of

the 25th of Jan., 1808: [Dorgenoy's letter to the

Governor) he immediately went to the beach, and

ordered off Mr. Livingston's laborers.



                          [Proceedings under them]

They obeyed, but soon after returned.

On being ordered off a second time, the

principal person told him that he was commanded

by Mr. Livingston not to give up the batture until

an adequate armed force should compel him. And

in the meantime, Mr. Livingston had procured from

a single judge of the superior court of the territory,

an order, purporting to be an injunction, forbidding

the marshal to disturb Edward Livingston in his

possession of the batture, under pain of a contempt

of court. The marshal, placed between contradic-

tory orders, af the national government as to the

 







118        Jefferson's Works



property of the nation, and a territorial judge with-

out jurisdiction over it, obeyed the former; col-

lected a posse comitatus, ordered off the laborers

again, who peaceably retired ; and no further attempts

were afterwards made to recommence the work.



  I have said that the marshal received. an order;

purporting to be an injunction. An

 [ Chancery Jurisdiction.]  authoritative injunction it could not be;

because that is a Chancery process, and

no Chancery jurisdiction has been given by any law

to the superior court of that territory. Its judges

were first established by the act of Congress of 1804.

c. 38. with commissions for four years, and certain

specified powers, which it is unnecessary to state,

because an act of March z, of the next year, c. 83.

established, in that territory, "a government in all

respects similar to that exercised in the Mississippi

territory, " which government had been established

by an act of 1798. c. 5. "in all respects similar to

that in the territory North-west of the Ohio." So

that we are to find all their powers in the Ordinance

of 1787, for the North-Western territory, in which

are the following words. " There shall be appointed

a court to consist of three judges, any two of whom

to form a court, who shall have a common law juris-

diction, and their commissions shall continue in force

during good behavior. " And again " The inhabi-

tants of the said territory shall always be entitled

to the benefits of the writ of hubeas corpus, and of

the trial by jury." New commissions were accord-

 







        The Batture at New Orleans     119



ingly given to the judges appointed under the first

law, and, instead of their former powers, they were

now to have a common law jurisdiction. By these

words certainly no chancery jurisdiction was given

them. Every one knows that common law juris-

diction is a technical term, used in contradistinction

to a chancery jurisdiction, and exclusive of that,

the common law ending where the chancery begins.

The one authority is here given, and therefore they

have it; the other is not given, and therefore they

have it not. For they have no authority but that

which is give in by the legislature. If they have not

chancery powers, then, by this law, there remains

but one other source from which they can legally

derive it. The act of 1804 before mentioned ş 11,

says, " the laws in force in the said territory, at the

commencement of this act, and not inconsistent

with the provisions thereof, shall continue in force

until altered, modified, or repealed by the legisla-

ture. " We have seen that the laws in force were

the French and Roman, with perhaps some occas-

sional Spanish regulations. It being perfectly un-

derstood that ' these were not meant to be included

in the change, it follows that the term common law,

when applied to this territory, must be equivalent

to the common law of that land, or the law of the

land. Was then the establishment of the French

and Roman laws an establishment of the chancery

system of law? Will it be said that the Roman

and Chancery laws, for instance, are the same?

 







120        Jefferson's Works



That the civil law, and the chancery are synonymous

terms, both meaning the same system ? Nobody will

say that. The system of chancery law is partly con-

current, but chiefly supplementary and corrective of

that of the common law. It sometimes corrects

the harshness of the letter, where that includes what

was not intended. It gives remedies in certain

cases where that gave none, and more perfect rem-

edies in other cases. It is adapted to the common

law as .one part of an indenture is to its counterpart.

It is formed to tally with that in all its prominences

and recesses, its asperities and defects, and with no

other body of law on earth. It consists of a set of

rules and,maxims, modified by the English Chan-

cellors through a course of several centuries, derived

from no foreign model, but contrived to reduce spe-

cifically the principles of common law to those of

justice. The Roman law has something similar in

its Fus Prcetorium, where the discretion of the Praetor

was permitted to mollify and correct the harshness'

of the leges scriptae. But to apply the Fus Prae-

torium to our common law, or our chancery to the

leges scriptae of the Romans, would be to apply to one

thing the tally of another, or to mismatch the parts

of different machines, so as to render them incon-

sistent and impracticable. Our chancery system

is as different from the civil, as from the common

law. All systems of law indeed profess to be founded

on the principles of justice. But the superstructures

erected are totally distinct. The chancery then-

 







        The Batture at New Orleans   121



being a system clearly distinct from that of the

French and Roman laws, it cannot be said that the

legislature of the U. S. by establishing the French

and Roman laws of Orleans, established there the

chancery system. It will not be pretended that the

process of subpeana, used in the present case, and

the sole and peculiar original process of chancery, is a

civil law process. It is known to have been the inven-

tion of Waltham, Chancellor of Richard II. founded

on the statute of Westminster the 2d c. 24. giving

writs in consimili casu.



  Might it be urged (for I am really at a loss to con-

jecture on what grounds this power has been as-

sumed) that possessing under the act of '04, the

powers of the chancery combined with those of the

French and Roman laws, the subsequent act which

gave them a common law jurisdiction, did not take

away the others? In totidem verbis it did not, but

in effect it did completely, by changing the govern-

ment into one in all respects similar to that in the

Mississippi territory, where there was no chancery

jurisdiction. Moreover, there is not a word in the

act of '04., which gives them chancery jurisdiction.

It says, " they shall have jurisdiction in all criminal

cases, and original and appellate jurisdiction in all

civil cases of the value of 100 dollars, and the laws

in force at the commencement of this act shall con-

tinue in force." Here then is their jurisdiction, and

the particular system of law according to which they

are to exercise it, and the chancery made no part of

 







122        Jefferson's Works



that system. This argument,too, would suppose

that to the French, the Roman, the Spanish, and

the Chancery laws, the common law was also added.

This would be an extraordinary spectacle, indeed,

and the imputation of such an intention would be

an insult to the legislature. Their laws have always

some rational object in view; and are so to be con-

strued, as to produce order and justice. But this

construction, establishing so many systems, and

these inconsistent and contradictory, would produce

anarchy and chaos, and a dissolution of all law, of

all rights of person or property. And what would

be the consequences of carrying on a system of chan-

cery concurrent with the French and Roman laws?

A case is brought, for instance, into their court of

chancery. I ask the honorable judges, is the law

of chancery in this case, the same as the 'civil law?

If the same, what need of calling in the system of

chancery? If different, will you decide against the

law established by the legislature? If you carry

on two systems, the one of which, in any case,

gives a right to A. and the other to B. the suitor

who covets his neighbor's property needs only to

choose that court, the rules of which will give it

to him. Thus all rights will be set afloat between

two opposite systems. The wisdom of the legislature

therefore has been as sound in not giving a chancery

jurisdiction concurrently with the civil law, as the

judges have been ill-advised in usurping it. And

have they adverted to the national feelings,when

 







        The Batture at New Orleans    123



they have ventured, on their own authority, to abol-

ish the trial by jury pledged by the Ordinance to

the .inhabitants forever? Whoever wishes to take

from his opponent the benefit of this trial, has only

to bring his suit in the court of chancery. In this

very case, on which the well-being of a great city is

suspended, no jury was called in. The judges took

upon themselves to decide both fact and law; aware,

at the same time, that a jury could not have been

found in Orleans, which would not have given

a contrary decision. I shall not ascribe either

favoritism, or intentional wrong to them : but they

ought not to be surprised, if those do whose inter-

ests and safety are so much jeopardized by this

shuffle of the judges into the place of the jury. It

is much regretted that these respectable judges have

set such an example of acting against law. It

will be more regretted if they do not, by the

spontaneous exertion of their own good sense and

self-denial, tread back their steps, and perceive

that there is more honor and magnanimity in

correcting, than persevering in an error. They. had

before them too the example of their neighbors,

of the Mississippi territory, whose government

was expressly made the model of theirs. Their

judges, like themselves, entitled to common law

jurisdiction only, and sensible it needed the mol-

lifying hand of the chancery, did not think the

assumption of it within their competence. The

territorial legislature therefore invested them with

 







124        Jefferson's Works



the jurisdiction. The Judiciary power of the Indian

territory modelled by the same Ordinance, was

enlarged in like manner by the local legislature.

And yet the Orleans territory, least of all needed

the aid of a Chancery, as possessing already a

corresponding corrective, well adapted to the body

of their law, to which the system of Chancery was

entirely inapplicable.



 Although I had before noted, pages 16, 68, that

the decree of this court was a nullity as to the United

States, 1. Because they were not a party, nor amen-

able to their tribunal ; 2. Because also it was on a

subject over which they had no jurisdiction, I have

thought it useful to prove it a nullity; 3dly. Be-

cause the result of a process, and a course of pleading

and trial belonging to a court whose powers they

do not possess by law, in which course of action the

law considers them as mere private persons, is enti-

tled to the obedience of no one. I have done this

the rather because it has been seized as a ground of

censure on the Executive, as violating the sanctuary

of the judicial department, and of inculpating

the Marshal, who, placed between two conflicting

authorities, had to decide which was legitimate, and

decided correctly, as I trust appears, in obeying that

which ordered him to remove the plaintiff from an

usurped possession.



  The territorial legislature, three weeks after, took

[Act of territorial Legislature]up the subject, and passed an act pre-

 scribing in what manner riparian pro-

 







        The Batture at New Orleans      125



prietors should proceed, who wished to make new

embankments in advance of those existing. This

gave to Mr. Livingston an easy mode of applying

for permission to resume his enterprise ; and had he

obtained a regular permission, certainly it would

have been duly respected by the National Executive.

On the 1st of March I received from Governor Clai-

borne a letter of Jan. 29, informing me of the execu-

tion of our orders, and covering a vote of thanks from

the legislative council and House of Representatives

of Orleans, for our interposition : and on the 7th of

the same month; I laid the case before Congress by

the following message:



 "To the Senate and House of Representatives of

the United States. In the city of New

[message to congress]

Orleans and adjacent to it are sundry

parcels of ground, some of them with

buildings and other improvements on them, which

it is my duty to present to the attention of the legis-

lature. The title to these grounds appears to have

been retained in the former sovereigns of the prov-

ince of Louisiana, as public fiduciaries, and for the

purposes of the province. Some of them were used

for the residence of the Governor, for public offices,

hospitals, barracks, magazines, fortifications, levees,

etc. , others for the town house, schools, markets, land-

ings, and other purposes of the city of New Orleans.

Some were held by religious corporations, or persons;

others seem to have been reserved for future

disposition.

 







126        Jefferson's Works



 To these must be added a parcel called the bat-

ture, which requires more particular description. It

is understood to have been a shoal, or elevation of

the bottom of the river, adjacent to the bank of the

suburb St. Mary, produced by the successive depo-

sitions of mud during the annual inundations of the

river, and covered with water only during those in-

undations. At all other seasons it has been used by

the city, immemorially, to furnish earth for raising

their streets, and court yards, for mortar and other

necessary purposes, and as a landing or Quai for un-

lading firewood, lumber, and other articles brought

by water. This having lately been claimed by a

private individual, the city opposed the claim on a

supposed legal title in itself : but it has been adjudged

that the legal title was not in the city. It is however

alleged that that title, originally in the former sov-

ereigns, was never parted with by them, but was

retained by them for the uses of the city and prov-

ince, and consequently has now passed over to the

U. S. Until this question can be decided under leg-

islative authority, measures have been taken accord-

ing to law, to prevent any change in the state of

things, and to keep the grounds clear of intruders.

The settlement of this title, the appropriation of the

grounds and improvements formerly occupied for

provincial purposes to the same, or such other objects

as may be better suited to present circumstances;

the confirmation of the uses in other parcels to such

bodies corporate, or private, as may of right, or on



 





        The Batture at New Orleans    127



other reasonable considerations, expect them, are

matters now submitted to the determination of the

legislature. The paper and plans now transmitted,

will give them such information on the subjects as I

possess, and, being mostly originals, I must request

that they may be communicated from the one to the

other house, to answer the purposes of both.

                   TH : JEFFERSON.



  March 7, 1808. "

  This removal of the case before Congress closed

the official duties of the Executive, and

Removal of the

his interference respecting these grounds : case before them.

except that the attorney of the United

States for the district of Orleans having given writ-

ten permission to the inhabitants to use the batture

as before, this, on the application of Mr. Livingston,

was directed to be withdrawn by a letter from the

Secretary of State, of Oct. 5, '09. This was correct.

It placed the inhabitants exactly on their former

footing, without either permission or prohibition

on the part of the National government.



  The possession, the only charge of the Executive,

was now cleared from intrusion, and restored to its

former condition : and the question of title commit-

ted to the Legislature, the only authority competent

to its decision. If they considered the ground taken

by the Executive as incorrect, their vote, or their

reference of the case to Commissioners, would correct

it. and as to damages, if any could justly be

 







128         Jefferson's Works



claimed, they were due, as in other cases, not from

the judge who decides, but the party which, without

right, receives the intermediate profits. If, on the

other hand, Congress should deem the public right

too palpable, (as to me it clearly appears,) and the

claim of the plaintiff too frivolous, to occupy their

time, they would of course pass it by. And cer-

tainly they might as properly be urged to waste

their time in questioning whether the beds of .the

Potomac, the Delaware, or the Hudson, were public

or private property, as that of the Mississippi. Their

refusing to act on this claim therefore for five succes-

sive sessions, though constantly solicited, and their

holding so long the ground taken by the Executive,

is an expression of their 'sense that the measure has

been correct.



  I have gone with some detail into the question of

        the plaintiff"s right, because, . however

[Responsibility of a public functionary.]confident of indulgence, in the case
of an

      honest error, I believed it would be more

  satisfactory to show, that in the exercise

of the discretionary power entrusted to me by Con-

gress, a sound discretion had been used, no act of

oppression had been exercised, no error committed,

and consequently no wrong done to the plaintiff. I

have no pretensions to exemption from error. In a

long course of public duties, I must have committed

many. And I have reason to be thankful that, pass-

ing over these, an act of duty has been selected as a

subject of complaint, which the delusions of self in-

 







        The Batture at New Orleans    129



terest alone could have classed among them, and in

which, were there error, it had been hallowed by the

benedictions of an entire province, an interesting

member of our national family, threatened with

destruction by the bold enterprise of one individual.

If this has been defeated, and they rescued, good

will have been done, and with good intentions. Our

constitution has wisely distributed the administra-

tion of the government into three distinct, and inde-

pendent departments. To each of these it belongs

to administer law within its separate jurisdiction.

The judiciary in cases of meum and tuum, and of

public crimes; the Executive, as to laws executive

in their nature; the legislature in various cases

which belong to itself, and in the important func-

tion of amending and adding to the system. Per-

fection in wisdom, as well as in integrity, is neither

required, nor expected in these agents. It belongs

not to man. Were the judge who, deluded by soph-

istry, takes the life of an innocent man, to repay it

with his own ; were he to replace, with his own for-

tune, that which his judgment has taken from an-

other, under the beguilement of false deductions;

were the Executive, in the vast mass of, concerns

of first magnitude, which he must direct, to place

his whole fortune on the hazard of every opinion;

were the members of the legislature to make good

from their private substance every law productive

of public or private injury; in short were every man

engaged in rendering service to the public, bound



  VOL. XVIII-9

 







130        Jefferson's Works



in his body and goods to indemnification for all his

errors, we must commit our public affairs to the pau-

pers of the nation, tn the sweepings of hospitals and

poor-houses, who, having nothing tn lose, would

have nothing to risk. The wise know their weak-

ness too well to assume infallibility; and he "ho

knows most, knows best how little he knows. The

vine and the fig-tree must withdraw, and the briar

and bramble assume their places. But this is not

the spirit of our law. It expects not impossibilities.

It has consecrated the principle that its servants are

not answerable for honest error of judgment. 1. Ro.

Abr. 92. 2 Jones 13. 1 Salk. 39, . . He who has

done his duty honestly, and according to his best

skill and judgment, stands acquitted before God

and man. If indeed a judge goes against law so

grossly, so palpably as no imputable degree of folly

can account for., and nothing but corruption, malice

or wilful wrong can explain, and especially if cir-

cumstances prove such motives, he may be punished

for the corruption, the malice, the wilful wrong; but

not for the error: nor is he liable to action by the

party grieved And our form of government con-

stituting its respective functionaries judges of the

law which is to guide their decisions, places all within

the same reason, under the safeguard of the same

rule That in deciding and acting under the law in

the present case the plaintiff, who may think there

was error does not himself believe there was corrup-

tion or malice, I am confident. What? was it my

 







        The Batture at New Orleans     131



malice or corruption which prompted the Gover-

nors and Cabildoes to keep these grounds clear of

intrusion ? Did my malice and corruption excite

the people to rise, and stay the parricide hand up=

lifted to destroy their city, or the grand jury to pre-

sent this violator of their laws ? Was it my malice

and corruption which penned the opinion of the

Attorney General, and drew from him a confirma-

tion, after two years of further consideration, and

when I was retired from all public office? Was it

my malice or corruption which dictated the unani-

mous advice of the heads of departments, when offi=

cially called on for consultation and advice? Was

it my malice and corruption which procured the

immediate thanks of the two houses of legislature

of the territory of Orleans, and a renewal of the

same thanks for the same interference, in their late

vote of February last ? Has it been my malice and

corruption which has induced the national legisla-

ture, through five successive sessions, to be deaf to

the doleful Jeremiads of the plaintiff on his removal

from his estate at New Orleans ? Have all these

opinions then been honest, and mine alone malicious

and corrupt ? Or has there been a general combina-

tion of all the public functionaries Spanish, French:

and American, to oppress Mr. Livingston ? No.

They have done their duties, and his Declaration is

a libel on all these functionaries. His counsel,

indeed, has discovered [Opinions LXXIV) that we

should have had legal inquests taken, writs of en-

 







132        Jefferson's Works



quiry formed, prosecutions for penalties, with all

the et caeteras of the law. That is that we should

be playing pushpin with judges and lawyers, while

Livingston was working double tides to drown the

city. If a functionary of the highest trust, acting

under every sanction which the Constitution has

provided for his aid and guide, and with the appro-

bation, expressed or implied, of its highest councils,

still acts on his own peril, the honors and offices of

his country would be but snares to ruin him. It is

not for me to enquire into the motives of the plain-

tiff in this action. I know that his understanding

is of an order much too high to let him believe that

he is to recover the value of the batture from me.

To what indirect object he may squint with one

eye, while the other looks at me, I do not pretend

to say. But I do say, that if human reason is not

mere illusion, 'and law a labyrinth without a clue,

no error has been committed: and recurring to

the tenor of a long life of public service, against the

charge of malice and corruption I stand conscious

and erect. TH : JEFFERSON



  MONTICELLO, July 31, 1810.

 For Mr. Livingston's Answer, see Hall's American Law Journal,

Vol. 5, p. 1 13, of the Baltimore edition of 1814.

 







        BIOGRAPHICAL SKETCHES





        aa



        DISTINGUISHED MEN

 







        BIOGRAPHICAL SKETCHES OF



        DISTINGUISHED MEN







        PEYTON RANDOLPH.



 Peyton Randolph was the eldest son of Sir John

Randolph, of Virginia, a barrister at law, and an emi-

nent practitioner at the bar of the General Court.

Peyton was educated at the College of William and

Mary in Williamsburg, and thence went to England,

and studied law at the Temple. At his return he

intermarried with Elizabeth Harrison, sister of the

afterwards Governor Hanson, entered into practice

in the General Court, was afterwards appointed the

king's Attorney General for the colony, and became

a representative in the House of Burgesses (then so

called) for the city of Williamsburg.



 Governor Dinwiddie having, about this period,

introduced the exaction of a new fee on his signature

of grants for lands, without the sanction of any law,

the House of Burgesses remonstrated against it, and

sent Peyton Randolph to England, as their agent to

oppose it before the king and council. The interest

of the governor, as usual, prevailed against that of



        135 







136        Jefferson's Works



the colony, and his new exaction was confirmed

by the king.



   After Braddock,s defeat on the Monongahela, in

1755, the incursions of the Indians on our frontiers

spread panic and dismay through the whole country,

insomuch that it was scarcely possible to procure

men, either as regulars or militia, to go against them.

To counteract this terror and to set good example, a

number of the wealthiest individuals of the colony,

and the highest standing in it, in public as well as in

their private relations, associated under obligations

to furnish each of them two able-bodied men, at their

own expense, to form themselves into a regiment

under the denomination of the Virginia Blues, to

join the colonial force on the frontier, and place them-

selves under its commander, George Washington,

then a colonel. They appointed William Byrd, a

member of the council, colonel of the regiment, and

Peyton Randolph, I think, had also some command.

But the original associators had more the will than

the power of becoming effective soldiers. Born and

bred in the lap of wealth, all the habits of their lives

were of ease, indolence and indulgence. Such men

were little fitted t" sleep under tents, and often with-

out them, to be exposed to all the intemperances of

the seasons, to swim rivers, range the woods, climb

mountains, wade morasses, to skulk behind trees,

and contend as sharpshooters with the savages of

the wilderness, who in all the scenes and exercises

would be in their natural element. Accordingly,

 







        Biographical Sketches    137



the commander was more embarrassed with their

care, than reinforced by their service. They had the

good fortune to see no enemy, and to return at the

end of the campaign rewarded by the favor of the

public for this proof of their generous patriotism and

good will.



 When afterwards, in 1764, on the proposal of the

Stamp Act, the House of Burgesses determined to

send an address against it to the king, and memorials

to the Houses of Lord and Commons, Peyton Ran-

dolph, George Wythe, and (I think) Robert C. l Nicho-

las, were appointed to draw these papers. That to

the king was by Peyton Randolph, and the memorial

to the Commons was by George Wythe. It was on

the ground of these papers that those gentlemen

opposed the famous resolutions of Mr. Henry in 1765,

to wit, that the principles of these resolutions had

been asserted and maintained in the address and

memorials of the year before, to which an answer was

yet to be expected.



 On the death of the speaker, Robinson, in 1766,

Peyton Randolph was elected speaker. He resigned

his office of Attorney General, in which he was suc-

ceeded by his brother Randolph, father of the late

Edmund Randolph, and retired from the bar: He

now devoted himself solely to his duties as a legisla-

tor, and although sound in his principles, and going

steadily with us in opposition to the British usurpa-

tions, he with the other older members, yielded the

lead to the younger, only tempering their ardor, and

 







138        Jefferson's Works



so far moderating their pace as to prevent their

going too far in advance of the public sentiment.

 On the establishment of a committee by the legis-

lature, to correspond with the other colonies, he was

named their chairman, and their first proposition to

the other colonies was to appoint similar committees

who might consider the expediency of calling a general

Congress of deputies in order to procure a harmony

of procedure among the whole. This produced the

call of the first Congress, to which he was chosen a

delegate, by the House of Burgesses, and of which

he was appointed, by that Congress, its president.



 On the receipt of what was called Lord North 's con-

ciliatory proposition, in 1775, Lord Dunmore called

the General Assembly and laid it before them. Pey-

ton Randolph quitted the chair of Congress, in which

he was succeeded by Mr. Hancock, and repaired to

that of the House which had deputed him. Anxious

about the.tone and spirit of the answer which should

be given (because being the first it might have effect

on those of the other colonies), and supposing that a

younger pen would be more likely to come up to the

feelings of the body he had left, he requested me to

draw the answer, and steadily supported and carried

it through the House, with a few softenings only from

the more timid members.



 After the adjournment of the House of Burgesses

he returned to Congress, and died there of an apolexy,

on the 22d of October following, aged, as I should con-

jecture, about fifty years.

 







        Biographical Sketches     139



 He was indeed a most excellent man ; and none was

ever more beloved and respected by his friends.

Somewhat cold and coy towards.strangers, but of the

sweetest affability when ripened into acquaintance.

Of Attic pleasantry in conversation, always good

humored and conciliatory. With a sound and logical

head, he was well read in the law; and his opinions

when consulted, were highly regarded, presenting

always a learned and sound view of the subject, but

generally, too, a listlessness to go into its thorough

development; for being heavy and inert in body, he

was rather too indolent and careless for business,

which occasioned him to get a smaller proportion. of

it at the bar than his abilities would otherwise have

commanded. Indeed, after his appointment as

Attorney General, he did not seem to court, nor

scarcely to welcome business. In that office he con-

sidered himself equally charged with the rights of the

colony as with those of the crown; and in criminal

prosecutions. exaggerating nothing, he aimed at a can-

did and just state of the transaction., believing it

more a duty to save an innocent than to convict a

guilty man. Although not eloquent, his matter was

so substantial that no man commanded more atten-

tion, which, joined with a sense of his great worth,

gave him a weight in the House of Burgesses which

few ever attained. He was liberal in his expenses,

but correct also, so as not to be involved in pecuniary

embarrassments; and with a heart always open to

the amiable sensibilities of our nature, he did as many

 







140        Jefferson's Works



good acts as could have been done with his fortune,

without injuriously impairing his means of continu-

ing them. He left no issue, and gave his fortune to

his widow and nephew, the late Edmund Randolph.



           MERIWETHER LEWIS.(1)



 Meriwether Lewis, late Governor of Louisiana,was

born on the 18th of August, 1774,; near the town of

Charlottesville, in the county of Albemarle, in Vir-

ginia, of one of the distinguished families of that

State. John Lewis, one of his father's uncles, was a

member of the King's Council before the revolution ;

another of them, Fielding Lewis, married a sister of

General Washington. His father, William Lewis,

was the youngest of five sons of Colonel Robert



          (1)TO MR. PAUL ALLEN, PHILADELPHIA.



                      MONTICELLO, April 13, 1813.

@# SIR; In compliance with the request conveyed in your letter of

May 25th, I have endeavored to obtain from the relations and friends

of the late Governor Lewis, information of such incidents of his life

as might be not unacceptable to those who may read the narrative

of his western discoveries. The ordinary occurrences of a private

life, and those also while acting in a subordinate sphere in the army

in a time of peace. are not deemed sufficiently interesting to occupy

the public attention; but a general account of his parentage, with

such smaller incidents as marked early character, are briefly noted,

and to these are added, as being peculiarly within my own knowledge,

whatever related to the public mission, of which an account is now to

be published. The result of my inquiries and recollections shall now

be offered, to be enlarged or abridged as you may think best, or other-

wise to be used with the materials you may have collected from other

sources. @#

 







        Biographical Sketches    141



Lewis of Albemarle, the fourth of whom, Charles, was

one of the early patriots who stepped forward in the

commencement of the revolution, and commanded one

of the regiments first raised in Virginia, and placed

on continental establishment. Happily situated at

home with a wife and young family, and a fortune

placing him at ease, he left all to aid in the liber-

ation of his country from foreign usurpations, then

first unmasking their ultimate end and aim. His

good sense, integrity, bravery, enterprise and remark-

able bodily powers, marked him an officer of great

promise ; but he unfortunately died early in the revo-

lution. Nicholas Lewis, the second of his father's

brothers, commanded a regiment of militia in the

successful expedition of 1776, against the Cherokee

Indians, who, seduced by the agents of the British

government to take up the hatchet against us, had

committed great havoc on our southern frontier, by

murdering and scalping helpless women and children

according to their cruel and cowardly principles

of warfare. The chastisement they then received

closed the history of their wars, prepared them for

receiving the elements of civilization, which, zeal-

ously inculcated by the present government of the

United States, have rendered them an industrious,

peaceable and happy people. This member of the

family of Lewises, whose bravery was so usefully

proved on this occasion, was endeared to all who

knew him by his inflexible probity, courteous disposi-

tion, benevolent heart, and engaging modesty and

 







142        Jefferson's Works



manners. He was the umpire of all the private differ-

ences of his county, selected always by both parties.

He was also the guardian of Meriwether Lewis, of

whom we are now to speak, and who had lost his

father at an early age. He continued some years

under the fostering care of a tender mother, of the

respectable family of Meriwethers of the same county,

and was remarkable even in his infancy for enter-

prise, boldness and discretion. When only eight

years of age, he habitually went out, in the dead of

the night, alone with his dogs, into the forest to hunt

the raccoon and opossum, which, seeking their food

in the night, can then only be taken. In this exercise

no season ar circumstance could obstruct his purpose,

plunging through the winter's snows and frozen

streams in pursuit of his object. At thirteen, he was

put to the Latin school, and continued at that until

eighteen, when he returned to his mother, and entered

on the cares of his farm, having, as well as a younger

brother, been left by his father with a competency

for all the correct and comfortable purposes of tem-

perate life. His talent for observation, which had

led him to an accurate knowledge of the plants and

animals of his own county, would have distinguished

him as a farmer; but at the age of twenty, yielding to

the ardor of youth, and a passion for more dazzling

pursuits, he engaged as a volunteer in the body of

which were called out by General Washington, on

occasion of the discontents produced by the excise

taxes in the western parts of the United States ; and

 







        Biographical Sketches     143



from that situation he was removed to the regular

service as a lieutenant in the line. At twenty-three

he was promoted to a captaincy ; and always attract-

ing the first attention where punctuality and fidelity

were requisite, he was appointed paymaster to his

regiment. About this time a circumstance occurred

which, leading to the transaction which is the subject

of this book, will justify a recurrence to its original

idea. While I resided in Paris, John Ledyard of

Connecticut arrived there, well known in the United

States for energy of body and mind. He had accom-

panied Captain Cook in his voyage to the Pacific

ocean, and distinguished himself on that voyage by

his intrepidity. Being of a roaming disposition, he

was now panting for some new enterprise. His

immediate object at Paris was to engage a mercan-

tile company in the fur trade of the western coast of

America, in which, however, he failed. I then pro-

posed to him to go by land to Kamschatka, cross in

some of the Russian vessels to Nootka Sound, fall down

into the latitude of the Missouri, and penetrate to and

through that to the United States. He eagerly seized

the idea, and only asked to be assured of the permis-

sion of the Russian government. I interested in ob-

taining that from M. de Simoulin, M. P. of the Empress

at Paris, but more especially the Baron de Grimm, M.

P. of Saxe-Gotha, her more special agent and corres-

pondent there, in matters not immediately diplo-

matic. Her permission was obtained, and an assur-

ance of protection while the course of the voyage

 







144        Jefferson's Works



should be through her territories. Ledyard set out

from Paris and arrived at St. Petersburg after the

Empress had left that place to pass the winter (I

think) at Moscow. His finances not permitting him

to make unnecessary stay at St. Petersburg, he left

it with a passport from one of the ministers, and at

two hundred miles from Kamschatka, was obliged to

take up his winter quarters. He was preparing in the

spring to resume his journey, when he was arrested

by an officer of the Empress, who, by this time, had

changed her mind, and forbidden his proceeding. He

was put into a close carriage and conveyed day and

night, without ever stopping, till they reached Poland,

where he was set down and left to himself. The

fatigue of this journey broke down his constitution,

and when he returned to Paris, his bodily strength

was much impaired. His mind, however, remained

firm; and after this he undertook the journey to

Egypt. I received a letter from him, full of san-

guine hopes, dated at Cairo, the 15th of November,

1788, the day before he was to set out for the head of

the Nile, on which day, however, he ended his career

and life ; and thus failed the first attempt to explore

the western part of our northern continent.



 In 1792 I proposed to the A. P. S., that we should

set on foot a subscription to engage some competent

person to explore that region in the opposite direction,

that is, by ascending the Missouri, crossing the Stony

mountains, and descending the nearest river to the

Pacific. Captain Lewis being then stationed at

 







        Biographical Sketches   145



Charlottesville on the recruiting service, warmly solic-

ited me to obtain for him the execution of that object,

I told him it was proposed that the person engaged

should be attended by a single companion only, to

avoid exciting alarm among the Indians. This did

not deter him. But Mr. Andre Michaux, a professed

bobanist, author of the "Flora Boreali-Americana,"

and of the "Historie des chenes d'Amerique," offering

his services, they were accepted. He received his

instructions, and when he had reached Kentucky in

the prosecution of his journey, he was overtaken by

an order from the minster of France then at Phila-

delphia, to relinquish the expedition, and to pursue

elsewhere the botanical inquiries on which he was

employed by that government; and thus failed the

second attempt for exploring that region.



  In 1803, the act for establishing trading houses

with the Indian tribes being about to expire, some

modifications of it were recommended to Congress by

a confidential message of January 18th, and an exten-

sion of its views to the Indians on the Missouri. In

order to prepare the way, the message proposed the

sending an exploring party to trace the Missouri to

its source, to cross the highlands and follow the best

water communication which offered itself from thence

to the Pacific Ocean. Congress approved the propo-

sition, and voted a sum of money for carrying it into

execution. Captain Lewis, who had then been near

two years with me as private secretary, immediately

renewed his solicitations to have the direction of the



   VOL. XVIII-10

 







146        Jefferson's Works



party. I had now had opportunities of knowing

him intimately. Of courage undaunted, possess-

ing a firmness and perseverance of purpose which

nothing but impossibilities could divert from its

direction, careful as a father of those committed to

his charge, yet steady in the maintenance of order

and discipline, intimate with the Indian character,

customs and principles. Habituated to the hunt-

ing life, guarded by exact observation of the vege-

tables and animals of his own country, against losing

time in the description of objects already possessed,

honest, disinterested, liberal, of sound understand-

ing, and a fidelity to truth so scrupulous that what-

ever he should report would be as certain as if seen

by ourselves, with all these qualifications as if selected

and implanted by nature in one body, for this express

purpose, I could have no hesitation in confiding the

enterprise to him. To fill up the measure desired, he

wanted nothing but a greater familiarity with the

technical language of the natural sciences, and read-

iness in the astronomical observations necessary for

the geography of his route. To acquire these he

repaired immediately to Philadelphia, and placed

himself under the tutorage of the distinguished pro-

fessors of that place, who, with a zeal and emulation,

enkindled by an ardent devotion to science, commu-

nicated to him freely the information requisite for

the purposes of the journey. While attending to at

Lancaster, the fabrication of the arms with which he

chose that his men should be provided, he had the

 







        Biographical Sketches    147



benefit of daily communication with Mr. Andrew

Ellicott, whose experience in astronomical observa-

tion and practice of it in the woods, enabled him to

apprise Captain Lewis of the wants and difficulties he

would encounter, and of the substitutes and resources

offered by a woodland and uninhabited country.

Deeming it necessary he should have some person

with him of known competence to the direction of

the enterprise, and to whom he might confide it, in

the event of accident to himself, he proposed William

Clarke, brother of General George Rogers Clarke,

who was approved, and with that view received a

commission of captain



  In April, 1803, a draught of his instructions was

sent to Captain Lewis, and on the 20th of June they

were signed in the following form :



  "To Meriwether Lewis, Esquire, Captain of the 1st

regiment of infantry of the United States of America :



  "Your situation as Secretary of the President of

the United States has made you acquainted with the

objects of my confidential message of January 18th

1803, to the legislature ; you have seen the act they

passed, which, though expressed in general terms,

was meant to sanction those objects, and you are

appointed to carry them into execution.



  " Instruments for ascertaining by celestial observa-

tions, the geography of the country through which

you will pass, have been already provided. Light

articles for barter and presents among the Indians,

arms for your attendants, say for from ten to twelve

 







148        Jefferson's Works



men, boats, tents and other travelling apparatus,

with ammunition, medicine, surgical instruments and

provisions, you will have prepared "ith such aids as

the Secretary of War can yield in his departments;

and from him also you will receive authority to

engage among our troops, by voluntary agreement,

the number of attendants above mentioned, over

whom you, as their commanding officer, are invested

with all the powers the laws give in such a case.



 "As your movements while within the limits of the

United States will be better directed by occasional

communications, adapted to circumstances as they

arise, they will not be noticed here. What follows

will respect your proceedings after your departure

from the United States.



 "Your mission has been communicated to the min-

isters here from France, Spain and Great Britain, and

through them to their governments ; and such assur-

ances given them as to its objects, as we trust will

satisfy them. The country of Louisiana having been

ceded by Spain to France, the passport you have

from the minister of France, the representative of the

present sovereign of that country, will be a protec-

tion with all its subjects ; and that from the minister

of England will entitle you to the friendly aid of any

traders of that allegiance with whom you may hap-

pen to meet.



 "The object of your mission is to explore the Mis-

souri river, and such principal streams of it, as, by

its course and communication with the waters of the

 







        Biographical Sketches     149



Pacific ocean, whether the Columbia, Oregon, Colo-

rado, or any other river, may offer the most direct

and practicable water communication across the

continent for the purposes of commerce.



  " Beginning at the mouth of the Missouri; you will

take observations of latitude and longitude at all

remarkable points on the river, and especially at the

mouths of rivers, at rapids, at islands, and other

places and objects distinguished by such natural

marks and characters of a durable kind as that they

may with certainty be recognized hereafter. The

courses of the river between these points of observa-

tion may be supplied by the compass, the log line and

by time, corrected by the observations themselves.

The variations of the compass too, in different places,

should be noticed.



  "The interesting points of the portage between the

heads of the Missouri, and of the water offering the

best communication with the Pacific ocean, should

also be fixed by observation, and the course of that

water to the ocean, in the same manner as that of the

Missouri.



  " Your observations are to be taken with great

pains and accuracy, to be entered distinctly and

intelligibly for others as well as yourself, to compre-

hend all the elements necessary, with the aid of the

usual tables, to fix the latitude and longitude of the

places at which they were taken, and are to be ren-

dered to the War Office, for the purpose of having the

calculations made concurrently by proper persons

 







150        Jefferson's Works



within the United States. Several copies of these

as well as of your other notes should be made at

leisure times, and put into the care of the most trust-

worthy of your attendants, to guard, by multiply-

ing them, against the accidental losses to which they

will be exposed. A further guard would be that one

of these copies be on the paper of the birch, as less

liable to injury from damp than common paper.

  "The commerce which may be carried on with the

people inhabiting the line you will pursue, renders a

knowledge of those people important. You will,

therefore, endeavor to make yourself acquainted, as

far as a diligent pursuit of your journey shall admit,

with the names of the nations and their numbers ; the

extent of their possessions ; their relations with other

tribes or nations ; their language, traditions, monu-

ments their ordinary occupations in agriculture,

fishing, hunting, war, arts, and the implements

for these ; their food, clothing and domestic accommo-

dations ; the diseases prevalent among them, and the

remedies they use ; moral and physical circumstances

which distinguish them from the tribes we know;

peculiarities in their laws, customs and dispositions,

and articles of commerce they may need or furnish ;

and to what extent; and, considering the interest

which every nation has in extending and strengthen-

ing the authority of reason and justice among the

people around them, it will be useful to acquire what

knowledge you can of the state of morality, religion,

and information among them, as it may better enable

 







        Biographical Sketches    151



those who may endeavor to civilize and instruct

them to adopt their measures to the existing notions,

and practices of those on whom they are to operate.



  "Other objects worthy of notice will be, the soil

and face of the country, its growth and vegetable pro-

ductions, especially those not of the United States,

the animals of the country generally, and especially

those not known in the United States; the remains

and accounts of any which may be deemed rare or

extinct; the mineral productions of every kind, but

particularly metals, limestone, pit-coal and salt-

petre ; salines and mineral waters, noting the temper-

ature of the last, and such circumstances as may indi-

cate their character ; volcanic appearances ; climate,

as characterized by the thermometer, by the propor-

tion of rainy, cloudy, and.clear days, by lightning,

hail, snow, ice, by the access and recess of frost, by

the winds ,prevailing at different seasons, the dates at

which particular plants put forth or lose their flower

or leaf, times of appearance of particular birds,

reptiles or insects,



  "Although your route will be along the channel of

the Missouri, yet you will endeavor to inform your-

self, by inquiry, of the character and extent of the

country watered by its branches, and especially on

its southern side. The north river, or Rio Bravo,

which runs into the Gulf of Mexico, and the north

river, or Rio Colorado, which runs into the Gulf of

California, are understood to be the principal streams

heading opposite to the waters of the Missouri, and

 







152        Jefferson's Works



running southwardly. Whether the dividing grounds

between the Missouri and them are moun-

tains or flat lands, what are their distance from the

Missouri, the character of the intermediate country,

and the people inhabiting it, are worthy of particular

inquiry. The northern waters of the Missouri are

less to be inquired after, because they have been ascer-

tained to a considerable degree, and are still in a

course of ascertainment by English traders and

travellers. But if you can learn anything certain of

the most northern source of the Mississippi, and of its

position relatively to the Lake of the Woods, it will be

interesting to us. Some account, too, of the path of

the Canadian traders from the Mississippi, at the

mouth of the Ouisconsing to where it strikes the

Missouri, and of the soil and rivers in its course, is

desirable.



 " In all your intercourse with the natives, treat

them in the most friendly and conciliatory manner

which their own conduct will admit; allay all jeal-

ousies as to the object of your journey, satisfy them

of its innocence;make them acquainted with the

position, extent, character, peaceable and commer-

cial dispositions of the United States, of our wish to

be neighborly, friendly and useful to them, and of

our dispositions to a commercial intercourse with

them ; confer with them on the points most conven-

ient as mutual emporiums; and the articles of most

desirable interchange for them and us. If a few of

their influential chiefs within practicable distance,



 







        Biographical Sketches     153



wish to visit us, arrange such a visit with them, and

furnish them with authority to call on our officers, on

their entering the United States, to have them con-

veyed to this place at the public expense. If any of

them should wish to have some of their young people

brought up with us, and taught such arts as may be

useful to them, we will receive, instruct, and take

care of them. Such a mission, whether of influential

chiefs or of young people, would give some security to

your own party. Carry with you some matter of

the kine pox; inform those of them with whom

you may be, of its efficacy as a preservative from

the small pox; and instruct and encourage them

in the use of it. This may be especially done wher-

ever you winter.



  "As it is impossible for us to foresee in what man-

ner you will be received by those people, whether

with hospitality or hostility, so is it impossible to

prescribe the exact degree of perseverance with

which you are to pursue your journey. We value

too much the lives of citizens to offer them to prob-

able destruction. Your numbers will be sufficient to

secure you against the unauthorized opposition of

individuals or of small parties ; but if a superior force,

authorized or not authorized by a nation, should be

arrayed against your further passage, and inflexibly

determined to arrest it, you must decline its farther

pursuit, and return. In the loss of yourselves, we

should lose also the. information you will have

acquired. By returning safely with that, you may

 







154        Jefferson's Works



enable us to renew the essay with better calculated

means. To your own discretion, therefore, must

be left the degree of danger you may risk, and

the point at which you should decline, only saying we

wish you 'to err on the side of your safety, and to

bring us back your party safe, even if it be with less

information.



 "Should you reach the Pacific ocean, inform

yourself of the circumstances which may decide

whether the furs of those parts may not be col-

lected as advantageously at the head of the Mis-

souri (convenient as is supposed to the waters of the

Colorado and Oregon or Columbia), as at Nootka

Sound, or any other point of that coast; and that

trade be consequently conducted through the Mis-

souri and United States more beneficially than by

the circumnavigation now practised.



 "As far up the Missouri as the white settlements

extend, an intercourse will probably be found to

exist between them and the Spanish posts of St.

Louis opposite Cahokia, or St. Genevieve opposite

Kaskaskia. From still further up the river,.the

traders may furnish a conveyance for letters: Be-

yond that, you may perhaps be able to engage In-

dians to bring letters for the government to Cahokia

or Kaskaskia, on promising that they shall there

receive such special compensation as you shall have

stipulated with them. Avail yourself of these

means to communicate to us, at seasonable intervals,

a copy of your journal, notes, and observations, of

 







        Biographical Sketches      155



every kind, putting into cypher whatever might do

injury if betrayed.



  " On your arrival on that coast, endeavor to learn

if there be any post within your reach frequented by

the sea vessels of any nation, and to send two of

your trusty people back by sea, in such way as shall

appear practicable, with a copy of your notes ; and

should you be of opinion that the return of your

party by the way they went will be imminently

dangerous, then ship the whole, and return by sea,

by the way either of Cape Horn or the Cape of Good

Hope, as you shall be able. As you will be without

money, clothes, or provisions, you must endeavor

to use the credit of the United States to obtain

them, for which purpose open letters of credit shall

be furnished you, authorizing you to draw on the

executive of the United States, or any of its officers,

in any part of the world, on which drafts can be dis-

posed of, and to apply with our recommendations

to the consuls, agents, merchants, or citizens of any

nation with which we have intercourse, assuring

them in our name, that any aids they may furnish

you, shall be honorably repaid, and on demand.

Our consuls, Thomas Hewes at Batavia in Java,

William Buchanan in the Isles of France and Bour-

bon, and John Elmslie at the Cape of Good Hope,

will be able to supply your necessities by drafts

on us.



  " Should you find it safe to return by the way you

go after sending two of your party round by sea,

 







156        Jefferson's Works



or with your whole party, if no conveyance by sea

can be found, do so; making such observations on

your return, as may serve to supply, correct, or con-

firm those made on your outward journey.



  " On re-entering the United States and reaching

a place of safety, discharge any of your attendants

who may desire and deserve it, procuring for them

immediate payment of all arrears of pay and cloth-

ing which may have incurred since their departure,

and assure them that they shall be recommended to

the liberality of the legislature for the grant of a sol-

dier's portion of land each, as proposed in my mes-

sage to Congress; and repair yourself with your

papers to the seat of government.



  "To provide in the accident of your death,

against anarchy, dispersion and the consequent

danger of your party, and total failure of the enter-

prise, you are hereby authorized, by any instrument

signed and written in your own hand, to name the

person among them who shall succeed to the com-

mand on your decease, and by like instruments to

change the nomination from time to time as further

experience of the characters accompanying you

shall point out superior fitness ; and all the powers

and authorities given to yourself are, in the event of

your death, transferred to, and vested in the succes-

sor so named, with further power to him, and his suc-

cessors in like manner, to name each his successor, who,

on the death of his predecessor, shall be invested

with all the powers and authorities given to yourself.

 







        Biographical Sketches     157



  "Given under my hand at the city of Washing-

ton, this 20th day of June, 1803.

"THOMAS JEFFERSON, President of the U. States of

   America. "



 While these things were going on here, the coun-

try of Louisiana, lately ceded by Spain to France,

had been the subject of negotiation between us and

this last power; and had actually been transferred

to us by treaties executed at Paris on the 30th of

April. This information, received about the 1st

day of July, increased infinitely the interest we felt

in the expedition, and lessened the apprehensions

of interruption from other powers. Everything in

this quarter being now prepared, Captain Lewis

left Washington on the 5th of July, 1803, and pro-

ceeded to Pittsburg, where other articles had been

ordered to be provided for him. The men, too,

were to be selected from the military stations on

the Ohio. Delays of preparation, difficulties of

navigation down the Ohio, and other untoward ob-

structions, retarded his arrival at Cahokia until the

season was so far advanced as to render it prudent

to suspend his entering the Missouri before the ice

should break up in the succeeding spring. From

this time his journal, now published, will give the

history of his journey to and from the Pacific ocean,

until his return to St. Louis on the 23d of September,

1806. Never did a similar event excite more joy

through the United States.

 







158        Jefferson's Works



 The humblest of its citizens had taken a lively

interest in the issue of this journey, and looked for-

ward with impatience for the information it would

furnish. Their anxieties, too, for the safety of the

corps had been kept in a state of excitement by

lugubrious rumors, circulated from time to time

on uncertain authorities, and uncontradicted by let-

ters or other direct information from the time they

had left the Mandan towns on their ascent up the

river in April of the preceding year, 1805, until

actual return to St. Louis.



 It was the middle of Feb. , 1807, before Captain

Lewis with his companion Clarke reached the city

of Washington, where Congress was then in session:

That body granted to the two chiefs and their fol-

lowers, the donation of lands which they had been

encouraged to expect in reward of their toils and dan-

gers. Captain Lewis was soon after appointed Gov-

ernor of Louisiana, and Captain Clarke a general of

its militia, and agent of the United States for Indian

affairs in that department.



 A considerable time intervened before the Gov-

ernor's arrival at St. Louis. He found the territory

distracted by feuds and contentions among the

officers of the government, and the people them-

selves divided by these into factions and parties.

He determined at once to take no sides with either,

but to use every endeavor to conciliate and harmo-

nize them. The even-handed justice he adminis-

tered to all soon established a respect for his person

 







        Biographical Sketches    159



and authority, and perseverance and time wore

down animosities, and reunited the citizens again

into one family.



  Governor Lewis had from early life been subject

to hypochondriac affections. It was a constitutional

disposition in all the nearer branches of the family.

of his name, and was more immediately inherited

by him from his father. They had not, however,

been so strong as to give uneasiness to his family.

While he lived with me in Washington, I observed

at times sensible depressions of mind, but knowing

their constitutional source, I estimated their course

by what I had seen in the family. During his west-

ern expedition, the constant exertion which that

required of all the faculties of body and mind, sus-

pended these distressing affections; but after his

establishment at St. Louis in sedentary occupations,

they returned upon him with redoubled vigor, and

began seriously to alarm his friends. He was in a

paroxysm of one of these when his affairs rendered

it necessary for him to go to Washington. He pro-

ceeded to the Chickasaw bluffs, where he arrived on

the 18th of September, 1809, with a view of con-

tinuing his journey thence by water. Mr. Neely,

agent of the United States. with the Chickasaw

Indians, arriving there two days after, found him.

extremely indisposed, and betraying at times some

symptoms of a derangement of mind. The rumors

of a war with England, and apprehensions that he

might.lose the papers he was bringing on, among

 







160        Jefferson's Works



which were the vouchers of his public accounts,

and the journals and papers of his western expedi-

tion, induced him here to change his mind, and to

take his course by land through the Chickasaw

country. Although he appeared somewhat relieved

Mr. Neely kindly determined to accompany and

watch over him. Unfortunately, at their en-

campment, after having passed the Tennessee one

day's journey, they lost two horses, which obliging

Mr. Neely to halt for their recovery, the Governor

proceeded under a promise to wait for him at the

house of the first white inhabitant on his road. He

stopped at the house of a Mr. Grinder, who, not

being at home, his wife, alarmed at the symptoms

of derangement she discovered, gave him up the

house, and retired to rest herself in an out-house;

the Governor's and Neely's servants lodging in

another. About 3 o 'clock in the night he did the deed

which plunged his friends into affliction, and de-

prived his country of one of her most valued citizens,

whose valor and intelligence would have been now

employed in avenging the wrongs of his country,

and in emulating by land the splendid deeds which

have honored her arms on the ocean. It lost, too,

to the nation the benefit of receiving from his own

hand the narrative now offered them of his suffer-

ings and successes in endeavoring to extend for

them the boundaries of science, and to present to

their knowledge that vast and fertile country which

their sons are destined to fill with arts, with science,

with freedom and happiness.

 







        Biographical Sketches    161



   To this melancholy close of the life of one whom

posterity will declare not to have lived in vain, I

have only to add that all the facts I have stated,

are either known to myself, or communicated by

his family or others, for whose truth I have no hesi-

tation to make myself responsible; and I conclude

with tendering you the assurances of .my respect

and consideration.'





       GENERAL THADDEUS KOSCIUSKO.



  I. Circumstances relating to General Kosciusko

previously to his joining the American Army. Kos-

ciusko was born in the Grand Duchy of Lithuania

in the year 1756. His family was noble, and his

patrimony considerable; circumstances which he

justly appreciated, for as belonging to himself they

were never matters of boasting, and rarely subjects

of notice, and as the property of others only re-

garded as advantages when accompanied by good

sense and good morals. The workings of his mind

on the subject of civil liberty were early and vig-

orous; before he was twenty the vassalage of his

serfs filled him with abhorrence, and the first act of

his manhood was to break their fetters.



  In the domestic quarrel between the king and

the dissidents in 1761, he was too young to take a

part, but the partition of Poland in 1772 (of which



@# (1) This biographical account of Lewis was used as a preface to the"History
of the Expedition of Lewis and Clarke" published in 1814.

   vol. xviii-II

 







162        Jefferson's Works



this quarrel was one of the pretences), engaged him

in the defence of his country, and soon made him

sensible of the value of military education, which

he afterwards sought in the schools of Paris. It

was there and while prosecuting this object, that

he first became acquainted with the name of Amer-

ica, and the nature of the war in which the British

colonies were then engaged with the mother coun-

try. In the summer of 1776 he embarked for this

country, and in October of that year was appointed

by Congress a colonel of engineers.



 2. Services of the General during the War. In the

spring of 1776 he joined the northern army, and

in July following the writer of this notice left him

on Lake Champlain engaged in strengthening our

works at Ticonderoga and Mount Independence.

The unfortunate character of the early part of this

campaign is sufficiently known. In the retreat of

the American army Kosciusko was distinguished

for activity and courage, and upon him devolved

the choice of camps and posts and everything con-

nected with fortifications. The last frontier taken

by the army while commanded by Gen. Schuyler

was on an island in the Hudson near the mouth of

the Mohawk river, and within a few miles of Albany.

Here Gates, who had superseded Schuyler, found

the army on the - day of August. Public feel-

ing and opinion were strikingly affected by the

arrival of this officer, who gave it a full and lasting

impression by ordering the army to advance upon

 







        Biographical Sketches      163



the enemy. The state of things at that moment

are well and faithfully expressed by that distin-

guished officer, Col. Udney Hay, in a letter to a

friend. " Fortune," says he, " as if tired of perse-

cuting us, had began to change, and Burguyne had

suffered materially on both his flanks. But these

things were not of our doing; the main army, as it

was called, was hunted from post to pillar, and

dared not to measure its strength with the enemy;

much was wanting to re-inspire it with confidence

in itself, with that self-respect without which

army is but a flock of sheep, a proof of which is

found in the fact, that we have thanked in general

orders a detachment double the force of that of the

enemy, for having dared to return their fire. From

this miserable state of despondency and terror,

Gates' arrival raised us, as if by magic. We began

to hope and then to act. Our first step was to

Stillwater, and we are now on the heights called

Bhemus', looking the enemy boldly in the face.

Kosciusko has selected this ground, and has covered

its weak point (its right) with redoubts from the

hill of the river. " In front of this camp thus forti-

fied two battles were fought, which eventuated in

the retreat of the enemy and his surrender at

Saratoga !



 The value of Colonel Kosciusko's services during

this campaign, and that of 1778, will be found in the

following extract from a letter of General Gates

written in the spring of 1780:

 







164        Jefferson's Works



  " My dear friend : After parting with you at York-

town, I got safely to my own fireside, and without

inconvenience of any kind, excepting sometimes

cold toes and cold fingers. Of this sort of punish-

ment, however, I am, it seems, to have no more,

as I am destined by the Congress to command in

the South. In entering on this new and (as Lee

says) most difficult theatre of the war, my first

thoughts have been turned to the selections of an

engineer, an adjutant-general and a quarter-

master-general, Kosciusko, Hay and yourself, if I

can prevail upon you all, are to fill these offices,

and will fill them well. The excellent qualities of

the Pole, which no one knows better than yourself,

are now acknowledged at head-quarters, and may

induce others to prevent his joining us. But his

promise once given, we are sure of him. "



  The - of Gates, for which the preceding ex=

tract had prepared us, was given and accepted, and

though no time was lost by Kosciusko, his arrival

was not early enough to enable him to give his

assistance to his old friend and General. But to

Greene (his successor) he rendered the most impor-

tant services to the last moment of the war, and

which were such as drew from that officer the most

lively, ardent, repeated acknowledgments, which

induced Congress, in October, 1783, to bestow upon

him the brevet of brigadier general, and to pass a

vote declaratory of their high sense of his faithful

and meritorious conduct.

 







        Biographical Sketches     165



  The war having ended, he now contemplated

returning to Poland, and was determined in this

measure by a letter from Prince Joseph Poniatowski,

nephew of the king and generalissimo of the army.

It was, however, ten years after this period (1783)

before Kosciusko drew the sword on the frontiers

of Cracovia.



  3. Conduct of Kosciusko in France. When Bona-

parte created the Duchy of Warsaw and bestowed

it on the King of Saxony, great pains were taken

to induce Kosciusko to lend himself to the frontier

and support of that policy. Having withstood

both the smiles and the frowns of the minister of

police, a last attempt was made through the Gen-

eral's countrywoman and friend, the Princess Sas-

siche. The argument she used was founded on the

condition of Poland, which, she said, no change

could make worse, and that of the General which

even a small change might make better. " But on

this head I have a carte blanche, Princess, " answered

the General (taking her hand and leading her to

her carriage), " it is the first time in my life I have

wished to shorten your visit ; but you shall not make

.me think less respectfully of you than I now do. "

 When these attempts had failed, a manifesto in

the name of Kosciusko, dated at Warsaw and ad-

dressed to the Poles, was fabricated and published

at Paris. When he complained of this abuse of his

name, etc., the minister of police advised him to go

to Fontainbleau.

 







166        Jefferson's Works



    ANECDOTES OF BENJAMIN FRANKLIN.'

 Our revolutionary process, as is well known,

commenced by petitions, memorials, remonstances, .

etc., from the old Congress. These were followed

by a non-importation agreement, as a pacific in-

strument of coercion. While that was before us,

and sundry exceptions, as of arms, ammunition,

etc., were moved from different quarters of the

house, I was sitting by Dr. Franklin and observed

to him that I thought we should except books;

that we ought not to exclude science, even coming

from an enemy. He thought so too, and I proposed

the exception, which was agreed to. Soon after it

occurred that medicine should be excepted, and I

suggested that also to the Doctor. "As to that,"

said he, "I will tell you a story. When I was in

London, in such a year, there was a weekly club of

physicians, of which Sir John Pringle was president,

and I was invited by my friend Dr. Fothergill to

attend when convenient. Their rule was to pro-

pose a thesis one week and discuss it the next. I

happened there when the question to be considered

was whether physicians had, on the whole, done

most good or harm ? The young members, par-

ticularly, having discussed it very learnedly and

eloquently till the subject was exhausted, one of



  @#(1) These anecdotes of Benjamin Franklin were written at the request

of Robert Walsh, one of Jefferson's correspondents, and inclosed to

him under letter of December 4, 1818. See ante, Volume XV, page

175. @#

 







        Biographical Sketches     167



them observed to Sir John Pringle, that although

it was not usual for the President to take part in a

debate, yet they were desirous to know his 'opinion

on the question. He said they must first tell him

whether, under the appellation of physicians, they

meant to include old women, if they did he thought

they had done more good than harm, otherwise more

harm than good. "



 The confederation of the States, while on the car-

pet before the old Congress, was strenuously op-

posed by the smaller States, under apprehensions

that they would be swallowed up by the larger ones.

We were long engaged in the discussion; it pro-

duced great heats, much ill humor, and intemperate

declarations from some members. Dr. Franklin at

length brought the debate to a close with one of his

little apologues. He observed that "at the time

of the union of England and Scotland, the Duke

of Argyle was most violently opposed to that meas-

ure, and among other things predicted that, as the

whale had swallowed Jonah, so Scotland would be

swallowed by England. However," said the Doc-

tor, "when Lord Bute came into the government,

he soon brought into its administration so many of

his countrymen, that it was found in event that

Jonah swallowed the whale. " This little story pro-

duced a general laugh, and restored good humor,

and the article of difficulty was passed.

  When Dr. Franklin went to France, on his revo-

lutionary mission, his eminence as a philosopher,

 







168        Jefferson's Works



his venerable appearance, and the cause on which

he was sent, rendered him extremely popular. For

all ranks and conditions of men there, entered

warmly into the American interest. He was, there-

fore, feasted and invited into all the court parties.

At these he sometimes met the old Duchess of

Bourbon, who, being a chess player of about his

force, they very generally played together. Hap-

pening once to put her king into prize, the Doctor

took it. "Ah," said she, "we do not take kings

so. " " We do in America, " said the Doctor.



 At one of these parties the emperor Joseph III.

then at Paris, incog., under the title of Count Fal=

kenstein, was overlooking the game in silence, while

the company was engaged in animated conversa-

tions on the American question. "How happens

it M. le Comte, " said the Duchess,. " that while we

all feel so much interest in the cause of the Amer-

icans, you say nothing for them ? " " I am a king

by trade, " said he.



 When the Declaration of Independence was under

the consideration of Congress, there were two or

three unlucky expressions in it which gave offence

to some members. The words "Scotch and other

foreign auxiliaries " excited the ire of a gentleman

or two of that country. Severe strictures on the

conduct of the British king, in negotiating our re-

peated repeals of the law which permitted the impor-

tation of slaves, were disapproved by some Southern

gentlemen, whose reflections were not yet matured

 







        Biographical Sketches    169



to the full abhorrence of that traffic. Although the

offensive expressions were immediately yielded

these gentlemen continued their depredations on

other parts of the instrument. I was sitting by Dr.

Franklin, who perceived that I was not insensible

to these mutilations. " I have made it a rule, " said

he, "whenever in my power, to avoid becoming the

draughts men of papers to be reviewed by a public

body. I took my lesson from an incident which I

will relate to you. When I was a journeyman

printer, one of my companions, an apprentice hatter,

having served out his time, was about to open shop

for himself. His first concern was to have a hand-

some. sign-board, with a proper. inscription, He

composed it in these words, `John Thompson,

Hatter, makes and sells hats for ready money,' with

a figure of a hat subjoined; but he thought he

would submit it to his friends for their amendments.

The first he= showed it to thought the word `Hatter '

tautologous, because followed by the words `makes

hats, ' which show he was a hatter. It was struck

out. The next observed that the 'word ` makes '

might as well be omitted, because his customers

would. not care who made the hats. If good and to

their mind, they would buy, by whomsoever made.

He struck it out. A third said he though the

words ' for ready money ' were useless, as it was not

the custom of. the place to sell on credit. Every

one who purchased expected to pay. They were;

parted with, and the inscription now stood, `John

 







170        Jefferson's Works



Thompson sells hats. ' ` Sells hats ! ' says his next

friend. Why nobody will expect you to give them

away, what then is the use of that word ? It was

stricken out, and ` hats ' followed it, the rather as

there was one painted on the board. So the in-

scription was reduced ultimately to `John Thomp-

son ' with the figure of a hat subjoined. "



 The Doctor told me at Paris the two following

anecdotes of the Abbe Raynal. He had a party to

dine with him one day at Passy, of whom one half

were Americans, the other half French, and among

the last was the Abbe. During the dinner he got

on his favorite theory of the degeneracy of animals, €€

and even of man, in America, and urged it with his

usual eloquence. The Doctor at length noticing

the accidental stature and position of his guests, at

table, " Come," says he, " M. l'Abbe, let us try this

question by the fact before us. We are here one

half Americans, and one half French, and it hap-

pens that the Americans have placed themselves

on one side of the table, and our French friends are

on the other. Let both parties rise, and we will

see on which side nature has degenerated. " It hap-

pened that his American guests were Carmichael,

Harmer, Humphreys, and others of the finest sature

and form ; while those of the other side were re-

markably diminutive, and the Abbe himself par-

ticulariy, was a mere shrimp. He parried the ap-

peal, however, by a complimentary admission of

 







        Biographical Sketches   171



exceptions, among which the Doctor himself was a

conspicuous one.                    '



 The Doctor and Silas Deane were in conversa-

tion one day at Passy, on the numerous errors in

the Abbe "Histoire des deux Indes," when he hap-

pened to step in. After the usual salutations, Silas

Deane said to him, " The Doctor and myself, Abbe,

were just speaking of the errors of fact into which

you have been led in your history." "Oh, no

Sir," said the Abbe, "that is impossible. I took

the greatest care not to insert a single fact, for

which I had not the most unquestionable author-

ity." "Why," says Deane, "there is the story of

Polly Baker, and the eloquent apology you have

put into her mouth, when brought before a court

of Massachusetts to suffer punishment under a law

which you cite, for having had a bastard. I know

there never was such a law in Massachusetts. " " Be

assured, " said the Abbe, " you are mistaken, and

that that is a true story. I do not immediately

recollect indeed the particular information on which

I quote it; but I am certain that I had for it un-

questionable authority. " Doctor Franklin, who

had been for some time shaking with unrestrained

laughter at the Abbe confidence in his authority

for that tale, said, "I will tell you Abbe, the origin

of that story. When I was a printer and editor of

a newspaper, we were sometimes slack of rows, and

to amuse our customers, I used to fill up our vacant

columns with anecdotes and fables, and fancies of

 







172        Jefferson's Works



my own, and this of Polly Baker is a story of my

making, on one of these occasions. " The Abbe,

without the least disconcert, exclaimed with a

laugh, " Oh, very well, Doctor; I had rather relate

your stories 'than other men's truths. "

 







        THE JEFFERSON PAPERS.









        FROM THE COLLECTION PRESENTED TO THE MASSACHUSETTS                
HISTORICAL       SOCIETY     IN JUNE,



    1898, BY JEFFERSON,S       GREAT-GRAND-



     SON, THOMAS JEFFERSON COOLIDGE.

 





        PREFACE."





  Like many eminent men of his time, Thomas

Jefferson was in the habit of preserving every scrap

of writing which came into his hands, and of keeping

copies of all of his own letters. Consequently he

left at his death a very great mass of letters and

papers of priceless value for biographical and his-

torical purposes, together with many which would

not now be thought worth preserving. Subse-

quently the whole collection was roughly divided

into two parts; one comprising documents mainly

relating to his public life. and the other letters and

papers mainly connected with his private and per-

sonal relations. By an Act of Congress, approved

April 12, 1848, the first portion was acquired by the

United States, and is now deposited in the State

Department at Washington. The second portion

was presented to the Historical Society, in June,

1898, by Mr. Jefferson's great-grandson, Thomas



@#(1) This is the first part of the Preface to the "Jefferson Papers" when

they were originally issued in 1900 in the Collections of the Massachu-

setts Historical Society, Seventh Series, Volume I. The editorial foot-

notes throughout the "Jefferson Papers" were made by the editors

who supervised the compiling of the volume for the Society-Charles

Card Smith, Thomas Jefferson Coolidge, and Archibald Cary Coolidge.

It is due to their courtesy and the courtesy of the Massachusetts His-

torical Society that the letters written by Jefferson comprised in the

"Jefferson Papers" are now published for the first time in any edition

of Jefferson's writings.  @#

 







176        Preface



Jefferson Coolidge; and it is from this latter portion

of the Jefferson pa"rs that the letters printed in

this volume have been for the most part selected.

Few of them are of a€ political character or deal with

public affairs ; but they very clearly illustrate many

phases of Jefferson's character, and show the range

and variety of his interests in his more private life:

 The volume is almost equally divided between

letters written by Jefferson himself and letters

written to him by personal or political friends. It

is not surprising, but is worthy of note, that in the

original separation of the papers letters were not

€always placed in the division to which they would

seem naturally to have belonged, and that a letter

and its answer were not always kept together. The

letters to Jefferson are all original autographs: the

letters from him are, with the exception of a few

where the Committee have had access to the letters

actually sent and of a few rough draughts, either

copies made in the ordinary way by pre:,sure on

moistened paper or copies made by a polygraph, or

stylograph, as Jefferson sometimes called it. This

instrument produced a perfect facsimile, indis-

tinguishable from the original letter, and as it is no

longer in use. and€ is not described in any of the

cyclopaedias examined by the Committee, it may



@#(1) The letters written to Jefferson, with the exception of a letter

from Lafayette, have not been reproduced, in connection with the

"Jefferson Papers," presented in the following pages, as they are

too numerous to include them all. @#

 







        Preface     177



be of interest to quote a description of one of two

actually used by Jefferson, which is now in the

Rouss Laboratory of the University of Virginia.

"The polygraph," writes Professor Francis H.

Smith, of that institution, "is a very ingenious

double writing-desk, with duplicate tables, pens,

and inkstands. The pens are connected together

at an invariable distance by a system of jointed

parallelograms, with two fixed centres, such that

the pens are always parallel. Whatever movement

is impressed upon one is simultaneously by the con-

necting linkwork communicated to the other pen.

Hence, if one traces on a sheet letters or figures,

its companion traces at the same time identically

the same forms on another sheet. The writer,

therefore, produces two identical pages at the same

time. He does it with sensibly no more fatigue

than if he were using one pen only, for the weight

of the pens and linkwork is supported by a strand

of delicate spring wires from a silver arm extending

from the frame of the box above, out of the way of

the writer. By this polygraph the copy may be

made on paper and with ink of the same kind as the

original. " 



 Most of the letters are in excellent condition; but

many of those which were copied by pressure on

moistened paper are either wholly or in large part

illegible, and a considerable number have been so

mutilated by carelessness or accident as to render

many portions of the letter unintelligible. Writing

   VOL. XVIII-12

 







178        Preface



more than seventy years ago, when the first col=

lected edition of Jefferson's Writings was passing

through the press, his only surviving daughter

described in an unpublished letter to her son-in-law,

Joseph Coolidge, Jr., the condition of the manu-

scripts used in the preparation of that work. " The

originals themselves are in many places so faded as

to be almost entirely obliterated. For pages to-

gether the girls have to take advantage of the broad

light of a noonday sun, frequently unable to read

them but with the assistance of a looking-glass

applied to the back, where alone the impression

shows. A few lines will sometimes cost as many

days. This is not the state of the whole, but a very

considerable portion. * €* * We are, the girls and

myself; very closely employed from 5 to 8 hours a

day with them, after which they go through a

second examination by the editor, whose trouble

is much lessened by our pioneering the way before

him. " Much the same condition of things exists

with regard to the letters now in the possession of

the Historical Society, though it is probable that

there are fewer letters in this collection which were

copied by pressure than there were in the volumes

published by Jefferson's grandson.l



 @#(1) The latter part of this Preface has been omitted as it consists of n

biographical sketch of Jefferson, and would, therefore, only convey

information that is given elsewhere in the present edition of Jeffer-

son's Writings.@#

 







        THE JEFFERSON PAPERS.







        TO LUCY NELSON.(1)

                               WILLIAMSBURG, October 24, 1777€

  DEAR MaDaM,-Colonel Nelson's merit and his

present command place him in my judgment with-

out a competitor for the post to which you wish him

appointed. It is a great happiness to me, therefore,

that, while I pursue the dictates of my own judg-

ment, I am at the same time subservient to your

wishes. One truth only it behooves me to warn you

of, that you may not be deceived by overrating any-

one's assistance. No man, my dear madam, who acts

above board has influence in any appointments here,

beyond the weight of his own vote. If this appoint-

ment should be obtained for Colonel Nelson it will be

by the mere force of his personal merit. In thus

undeceiving you; however, I do violence to my own

gratification, as this error alone has produced to me

the happiness of a letter from you.



  Fortune seems tu have drawn a line of separation

between us. Though often in the same neighbor-

hood; some unlucky star has still shuffled us asunder.

When I count backwards the years since I had last

the happiness of seeing you in this place, and recur



  @#(1) This letter is printed from Jefferson's original draught indorsed on

the reverse pages of Mrs. Nelson's letter.-Eus. @#

 







180.        Jefferson's Works



to my own lively memory of our friendship, I am

almost induced to discredit my arithmetic. The

affection I still retain for€a family with whom I once

lived in so much intimacy and confidence recalls to

my mind often and often the most pleasing reflec-

tions. That heaven may shield the breast in which

your happiness is embarked and administer to you

every comfort of this life is the prayer of your sin-

cere and affectionate friend



           TO WILLIAM S. SMITH.1

                     PARIS, July 9, 1786.

  DEAR SIR,-I wrote you last on the 16th of June.

Since that your favors of May z I and June 12 have

come, to hand. The accounts of the King of

Prussia are such that we may expect his exit soon.(2)

Heis' like the snuff of a candle,-sometimes seeming



 @#(1) Col. william Stephens Smith was born in New York City in 1755.

and graduated at Princeton College in 1774. He served with distinc-

tion during the Revolutionary War; and on the opening of diplomatic.

relations was appointed first Secretary of Legation to the Court of

Great Britain. He accompanied John Adams to London, and July

12, 1786, he was married by the Bishop of St. Asaph to Abigail, Mr.

Adams's oldest child and only surviving daughter. After his return to

America he held various civil appointments, and served one term in

Congress. He died at Lebanon, N. Y., June 10, 1816. (See Journal

and Correspondence of Miss Adams, daughter of John Adams, pp.

   99-117; Appleton's Cyclopaedia of American Biography, vol. v. p.

596; Lanman's Biographical Annals, p. 395.)  The letter here given

is printed from the original manuscript in the large and valuable col=

lection of autograph letters given to the Historical Society by Mr. and

Mrs. A. C. Washburn.-Evs.

 

(2) Frederick the Great died at Potsdam, August 17, 1786, a little

more than a month after the date of this letter.-Eds.             @# 

 











        Private Papers         181



to be out, then blazing up again for a moment. It is

thought here that his death will not be followed by

any immediate disturbance of the public tranquillity ;

that his kingdom may be considered as a machine

which will go of itself a considerable time with the

winding up he has given it. Besides this he has for

for some time employed his successor in his councils,

who is endeavoring to possess himself of and to pur-

sue his uncle's plan of policy.(1)



 The connection which has long subsisted between

the Van Staphorsts, the Grands, and this court is

known to you. I think it probable that private

solicitations first suggested the late appointment

and might be the real efficient cause of it. The

ostensible one, and which has some reality too, is the

accommodation of the lenders in Holland. It will

doubtless facilitate the borrowing money there for

this country, and multiply the partisans of the new

alliance. The policy of this country is indeed wise.

What would have been said a dozen years ago l:ad any

one pretended to foretell that in that short space of

time France would get Holland, America, and even

England under her wing?



 We have had here some strong altercations be-

tween the court and the parliament of Bordeaux.

The latterused a language which a British parlia-

ment would not have dared to use. The court was in

the wrong, and will have the wisdom and moderation



 @#(1) Frederick william II., nephew and successor of Frederick the Great,

was born September 25, 1744, and died December 16, 1797: EDs. @#

 







182        Jefferson's Works



to recede. The question is, whether lands, called

Alluvions on the river Garonne, belong to the king or

to the proprietors to whose soil they have been added.



  I have received by Dr. Bancroft the portable

copying-press; it is perfectly well made. Be so

good as to present my compliments and thanks to

Mr. Cavallo for his attention to it. To yourself I

suppose you would rather I should present the

money. This I will do the moment you will inform

me of the sum. In your letter of May 21 you men-

tion that. you had paid the maker L5-10, but a for-

mer letter gave me reason to believe you had to pay

something to another person for a board, or the box,

or something else. I will beg the favor of you at

the same time to inform me what a pair of chariot

harness will cost in London, plated. not foppish but

genteel. and I will add the price, or not add it to the

bill I shall send you, according as I shall find it when

compared with prices here. Cannot you invent

some commissions for me here, by way of reprisal

€for the vexations I give you? Silk stockings, gil-

lets, etc., for yourself, gewgaws and other contri-

vances for Madame ? A propos, all hail, Madame !

may your nights and days be many and full of joy!

May their fruits be such as to make you feel the

sweet union of parent and lover, but not so many as

that you may feel their weight ! May they be hand-

some and good as their mother, wise and honest as

their father, but more milky! For your old age I

will compose a prayer thirty years hence.

 







        Private Papers         183



 To return to business (for I am never tempted to

pray but when a warm feeling for my friends comes

athwart my heart). They tell me that they are

about altering Dr. Ramsay's book in London in

order to accommodate it to the English palate and

pride.' I hope this will not be done without the

consent of the author, and I do not believe that will

be obtained. If the booksellers of London are afraid

to sell it, I think it can be sold here. Even the Eng-

lish themselves will apply for it here. It is very

much esteemed by those who have read it. The

French translation will be out in a short time.

There is no gutting in that. All Europe will read

the English transactions in America as they really

happened. To what purpose then hoodwink them-

selves? Like the foolish ostrich who` when it has

hid its head, thinks its body cannot be seen. I will

beg the favor of you to prevail on Mr. Dilly ' to send

me 50 copies by the diligence. We shall see by the

sale of these what further number we may call for.

I will undertake to justify this to the author: They

must come unbound. It will be necessary at the



@#(1) The reference is to David Ramsay's "History of the Revolution of

South Carolina from a British Province to an Independent State,"

published at Trenton in 1785. A French translation was published

in 1787; and an English edition in 1788. See Allibone's Dictionary

of Authors, vol. iii. p. 1734.-EDs.



 (2) Charles Dilly, a well-known London bookseller, was born May

22, 1739, and died May 4, 1807. Among the books published by him

were Boswell's Corsica, Tour to the Hebrides, and Life of Johnson,

and Lord Chesterfield's Miscellaneous Works. He and an elder

brother, Edward, had an extensive trade with America. See Dic-

tionary of National Biography, vol. xv. pp. 91, 92: EDs.@#

 







184        Jefferson's Works



same time to put into some of the English papers

the following advertisement.



  "The bookseller to whom Dr. Ramsay's history

of the revolution of South Carolina was addressed

for sale, having been advised that the executing

that commission would expose him to the actions

of certain persons whose conduct in America, as

therein represented, is not in their favor, the public

are hereby notified that they may be furnished with

the said work either in the original English, orwell

translated into French, by writing to Froulle,

libraire au quai des Augustins a 'Paris, and franking

their letters. An opportunity of sending it to Lon-

don occurs every week by the diligence. " Send me

a paper or two with this advertisement in it.



 To put an end to your trouble I will wish you a

good night,-I beg your pardon. I had forgot that

you would have it without my wishes. I bid you,

therefore, a simple adieu, with assurances of my

friendship and esteem.



      TO MARTHA JEFFERSON RANDOLPH.(1)

              NEW YORK, May 16, 1790.

 MY DEAR PATSY,-Yours of the a 5th of April came

to hand ten days ago, and yesterday I received Mr.



 Martha, eldest child of Thomas and Martha (Wayles Skelton)

Jefferson was born at Monticello in September, 1772 ; and when in

her twelfth year accompanied her father to France, where she was

carefully educated. In 1789 she returned to America with her father, .

and on the 23d of the following February was married to her second

 







        Private Papers       185



Randolph's of the third instant. When I wrote to

him last week, I hoped to have been soon rid of the

periodical headache which had attacked me. It

has indeed been remarkably slight since that, but I

am not yet quite clear of it. I expect every fit to be

the last. I inclose the newspapers for Mr. Ran-

dolph. He will probably judge, as the world does,

from the style and subject of the Discourses on

Davila, that they are the production of the Vice-

President.l On Monday last the President was

taken with a peripneumony, of threatening appear-

ance; yesterday (which was the fifth day) he was

thought by the physicians to be dying. However,

about 4. o'clock in the evening, a copious sweat came

on, his expectoration, which had been thin and

ichorous, began to assume a well digested form, his

articulation became distinct, and in the course of

two hours it was evident he had gone through a

favorable crisis. He continues mending to-day,

and from total despair we are now in good hopes of

him. Indeed, he is thought quite safe. My head

does not permit me to add more than the affection-

ate love to you all, of yours,



cousin, Thomas Mann Randolph, Jr.,.eldest son of Col. Thomas Mann

Randolph, of Tuckahoe, by whom she had ten children. She died

September 27, 1836 .-EDs.



@#(1) The Discourses on Davila were first published in the Gazette of the

United States,at Philadelphia, in 1790. See Works of John Adams,

vol. i. pp. 454, 618; vol. vi. p. 225.-EDs. @#

 







186         Jefferson's Works



           TO EDMUND PENDLETON.1



               PHILADELPHIA, July 24, I 79 I.

   DEAR SIR,-I received duly your favor of the

13th, and communicated it to the President. The

titles of your relation were unquestionably strong

of themselves, and still strengthened by your re-

commendation ; but the place was before proposed

to another, whose acceptance will probably fix it.



  The President is indisposed with a tumor like that

he had in New York the year before last. It does

not as yet seem as if it would come to a head.

 We are wonderfully slow in receiving news from

General Scott.2 The common accounts give reason

to hope his expedition has succeeded well. You

will have seen the rapidity with which the subscrip-

tions to the bank were filled; as yet the delirium of

speculation is too strong to admit sober reflection.

It remains to be seen whether in a country whose

capital is too small to carry on its own commerce,



  @#(1) Edmund Pendleton was born in Caroline County, Va., September

9, 1721. His early advantages were small, and he began his career

in the office of the County Clerk. In 1744 he was admitted to the bar;

and in 1752 he was elected to the House of Burgesses. From that

time down to his death, October 23, 1803, he filled a conspicuous

place in public life as legislator and jurist, and was described by Jeffer-

son as " taken all in all the ablest man in debate I ever met with. "

(See Appleton's Cyclopadia of American Biography, vol. iv. pp. 708,

709; Randall's Life of Jefferson, vol. i. p. 198.) The letter which

follows is printed from the collection of Jefferson's letters given to the

Historical Society by Mr. and Mrs. A. C. Washburn.-EDs.



(2) General Charles Scott, a native of Virginia, who had removed to

Kentucky, was then serving in St. Clair's unfortunate expedition

against the Indians.-EDs. @#

 







        Private Papers         187



to establish manufactures, erect buildings, etc.,

such sums should have been withdrawn from these

useful pursuits to be employed in gambling. Whether

it was well judged to force on the public a paper '

circulation of so many millions, for which they will

be paying about 7 per cent. per annum, and thereby

banish as many millions of gold and silver for which

they would have paid no interest. I am afraid it

is the intention to nourish the spirit of gambling

by throwing in from time to time new aliment.



  The question of war and peace in Europe is still

doubtful. The French Revolution proceeds steadily,

and is, I think, beyond the danger of accident of

every kind. The success of that will ensure the

progress of liberty in Europe and its preservation

here. The failure of that would have been a power-

ful argument with those who wish to introduce a

king, lords, and commons here, a sect which is all

head and no body. Mr. Madison has had a little

bilious touch at New York, from which he is recov-

ered, however. Adieu, my dear Sir. Your affec-

tionate friend and servant.



            TO SAMUEL BIDDLE.



          PHILADELPHIA, December 12, 1792.

  SIR,-Having asked the favor of Mr. Hollings-

worth to look out for a person in his neighborhood

who would be willing to go to Virginia and overlook

a farm for me, he informs me that you will undertake

 







188        Jefferson's Works



it for a hundred and twenty dollars a year. He

seems to have mistaken me in the circumstance of

time, as he mentions that you would expect to go

about the new year. I had observed .to him that 1

should not want a person till after the next harvest.

The person who now takes care of the place is en-

gaged for the ensuing year, which finishes with us

about November ; but I should wish you to be there

by seed time in order to prepare the crop of the fol-

lowing year. The wages are a good deal higher than

I expected, as Mr. Hollingsworth mentioned that the

usual wages in your neighborhood were from L25

to L30 Maryland currency. However, I consent

to give them, and the rather as there will be some

matters under your care beyond the lines of the

farm. I have a smith and some sawyers who will

require to be seen once a day, and the first year of

your being there I shall have some people employed

in finishing a canal, who will also be to be attended to.



  The place you are to overlook is that on which I

live, and to which I shall return in March next. It

is 70 miles above Richmond, on the North branch

of James River, exactly where it breaks through the

first ridge of little mountains, near the village of

Charlottesville, in Albemarle county. It is 225 miles

from Elkton, a southwest course. From this de-

scription you may find it in any map of the country.

The climate is very temperate both summer and

winter, and as healthy as any part of America, with-

out a single exception.

 







        Private Papers    189



  The farm is of about five or six hundred acres of

cleared land, very hilly, originally as rich as any

highlands in the world, but much worried by Indian

corn and tobacco. It is still however very strong,

and remarkably friendly to wheat and rye. These

will be my first object. Next will be grasses, cattle,

sheep, and the introduction of potatoes for the use

of the farm, instead of Indian corn, in as great a

degree as possible. You will have from 12 to 15

laborers under you. They will be well clothed, and

as well fed as your management of the farm will en-

able us, for it is chiefly with a view to place them

on the comfortable footing of the laborers of other

countries that I come into another country to seek

an overlooker for them, as also to have my lands

a little more taken care. For these purposes I have

long banished tobacco, and wish to do the same by

Indian corn in a great degree. The house wherein

you will live will be about half a mile from my own.

You will, of course, keep bachelor's house. It is

usual with us to give a fixed allowance of pork ; I

shall much rather substitute beef and mutton, as I

consider pork to be as destructive an article in a

farm as Indian corn. On this head we shall not dis-

agree, and as I shall pass Elkton in March, I will

,contrive to give you notice to meet me there, when

we may descend to other details. But for the pres-

ent I shall wish to receive your answer in writing,

that I may know whether you consider yourself as

engaged, so that I need not look out for another. I

 







190        Jefferson's Works



leave you free as to the time of going, from harvest

till Christmas. If you will get yourself conveyed

as far as Fredericksburg, which is as far as the stages

go on that road, I will find means of conveying you

from thence, which will be 70 miles. So far respects

the farm over which I wish to place you.



  Besides this I have on the opposite side of the

little river running through my lands, 2000 acres of

lands of the same quality, and which has been cul-

tivated in the same way, which I wish to tenant out

at a quarter of a dollar an acre, in farms of such

sizes as the tenants would choose. I would hire the

laborers now employed on them from year to year

to the same tenants, at about 50 dollars for a man

and his wife, the tenant feeding and clothing them

and paying their taxes and those of the land, which

are very trifling. The lands to be leased for seven years

or more, the laborers only from year to year, to begin

next November. I would like the farms to be not

less than zoo acres, because such a farmer would

probably like to hire a man and his wife as laborers.

I have mentioned these circumstances to you, be-

cause I have understood that tenants might prob-

ably be got from Maryland, and perhaps it would be

agreeable to you to engage some of your acquaint-

ances to go and settle so near where you will be.

Perhaps you could inform me in what other part of

Maryland or the neighboring States tenants might

be more probably found, and I should willingly

incur the expense of having them sought for. Your

 







        Private Papers        191



assistance in this would particularly oblige me. I

would ease the rent of the first year, that the tenant

might get himself under way with as few difficulties

as possible, but I should propose restrictions against

cultivating too great a quantity of Indian corn.



  In expectation of hearing from you immediately

I am, Sir, your humble servant.



  P. S. There is a market for wheat, rye, etc., in two

little towns on each side of my lands, neither more

than two miles and a half distant.



       TO MARTHA JEFFERSON RANDOLPH.



          PHILADELPHIA, December 31, 1792.

 MY DEAR MARTHA,-I received three days ago

Mr. Randolph's letter of the 14th from Richmond,

and received it with great joy, as it informed me of

the re-establishment of dear Anne's health. I ap-

prehend from an expression in his letter that some

of mine may have miscarried. I have never failed

to write every Thursday or Friday. Perceiving by

the Richmond paper that the Western post now

leaves that place on Monday, I change my day of

writing also to Sunday or Monday. One of the

Indian chiefs now here, whom you may remember

to have seen at Monticello a day or two before Tarle-

ton drove us off, remembers you and enquired after

you. He is of the Pioria nation ; perhaps you may

recollect that he gave our name to an infant son he

 







192        Jefferson's Works



then had with him, and who, he now tells me, is a

fine lad. Blanchard is arrived here and is to ascend

in his balloon within a few days.l The affairs of

France are going on well. Tell Mr. Randolph that

I write him a letter by this post in answer to the

application to rent Elkhall, but under the possi-

bility that the sale of it may be completed, I inclose

his letter to Mr. Hylton with a desire that he will

return it to me if the place is sold, otherwise to

forward it to Mr Randolph. My best esteem to

him and our friends with you. Adieu, my dear.

Yours affectionately,



             TO JOHN TAYLOR.(1)

            MonticEllo, December 29, 1794.

  DEAR SIR,-I have long owed you a letter, for

which my conscience would not have let me rest in

quiet but on the consideration that the payment

would not be worth your acceptance. The debt is

not merely for a letter the common traffic of every

day, but for valuable ideas, which instructed me,

which I have adopted, and am acting on them. I

am sensible of the truth of your observations that

the atmosphere is the great storehouse of matter for



 @#(1)Francois Blanchard, the famous aeronaut, was born in France in

L38, and died there March 7, 1809. In 1785 he made his remarkable

voyage in a balloon across the British Channel with Dr. Jeffries, of

Boston For this successful undertaking Blanchard was rewarded

by Louis XVI. He made numerous ascensions in Europe and on this

side of the Atlantic. See Nouvelle Biographie Generale, tome vi. pp.

188, 189.-EDS. @#

 







        Private Papers        193



recruiting our lands, that though efficacious, it is

slow in its operation, and we must therefore give

them time instead of the loads of quicker manure

given in other countries, that for this purpose we

must avail ourselves of the great quantities of land

we possess in proportion to our labor, and that while

putting them to nurse with the atmosphere, we must

protect them from the bite and tread of animals,

which are nearly a counterpoise for the benefits of

the atmosphere. As good things, as well as evil,

go in a train, this relieves us from the labor and ex-

pense of cross fences, now very sensibly felt on

account of the scarcity and distance of timber. I

am accordingly now engaged in applying my cross

fences to the repair of the outer ones and substitut-

ing rows of peach trees to preserve the boundaries

of the fields. And though I observe your strictures

on rotations of crops, yet it appears that in this I

differ from you only in words. You keep half your

lands in culture, the other half at nurse; so I pro-

pose to do. Your scheme indeed requires only four

years and mine six ; but the proportion of labor and



@#(1) John Taylor, an eminent statesman and agriculturist, was born in

Orange County, Virginia, in 1750, and graduated at william and Mary

College in 1770. He became s planter, and was greatly interested

in the improvement of agriculture. In 1797 he was one of the Presi-

dential Electors, and in the following year he moved in the Virginia

House of Deputies the famous resolutions of 1798. He died in Caro-

line County, Virginia, August 20, 1824. (See Appleton's Cyclopaedia

of American Biography, vol. vi. p. 45.) This letter is printed from

the original in the collection of autographs given to the Macs. Hist.

Society by Mr. and Mrs. A. C. washburn.-Eds. @#

   vol. xviii-13

 







194        Jefferson's Works



rest is the same. My years of rest, however, are

employed, two of them in producing clover, yours

in volunteer herbage. But I still understand it to

be your opinion that clover is best where lands will

produce them. Indeed I think that the important

improvement for which the world is indebted to

Young is the substitution of clover crops instead of

unproductive fellows; and the demonstration that

lands are more enriched by clover than by volunteer

herbage or fellows; and the clover crops are highly

valuable. That our red lands which are still in tol-

erable heart will produce fine clover I know from

the experience of the last year; and indeed that of

my neighbors had established the fact. And from

observations on accidental plants in the fields which

have been considerably harrassed with corn, I

believe that even these will produce clover fit for soil-

ing of animals green. I think, therefore, I can count

on the success of that improver. My third year of

rest will be devoted to cowpenning, and to a trial of

the buckwheat dressing. A. further progress in sur-

veying my open arable lands has shewn me that I

can have seven fields in each of my farms where I ex-

pected only six; consequently that I can add more

to the portion of rest and ameliorating crops. I

have doubted on a question on which I am sure you

can advise me well, whether I had better give this

newly acquired year as an addition to the continu-

ance of my clover, or throw it with some improving

crop between two of my crops of grain, as for in€

 







        Private Papers          195



stance between my corn and rye. I strongly incline

to the latter, because I am not satisfied that one

cleansing crop in seven years will be sufficient ; and

indeed I think it important to separate my exhaust-

ing crops by alternations of amelioraters. With

this view I think to try an experiment of what Judge

Parker informs me he practises. That is, to turn

in my wheat stubble the instant the grain is off, and

sow turnips to be fed out by the sheep. But whether

this will answer in our fields which are harrassed, I

do not know. We have been in the habit of sowing

only our freshest lands in turnips, hence a presump-

tion that wearied lands will not bring them. But

Young's making turnips to be fed on by sheep the

basis of his improvement of poor lands, affords evi-

dence that though they may not bring great crops,

they will bring them in a sufficient degree to improve

the lands. I will try that experiment, however,

this year, as well as the one of buckwheat. I have

also attended to another improver mentioned by

you, the winter vetch, and have taken measures to

get the seed of it from England, as also of the Sibe-

rian vetch which Millar greatly commends, and

being a biennial might perhaps take the place of

clover in lands which do not suit that. The winter

vetch I suspect may be advantageously thrown in

between crops, as it gives a choice to use it as green

feed in the spring if fodder be run short, or to turn

it in as a green-dressing. My rotation, with these

amendments, is as follows:-

 







196        Jefferson's Works



  1. Wheat, followed the same year by turnips, to

be fed on by the sheep.



  2. Corn and potatoes mixed, and in autumn the

vetch to be used as fodder in the spring if wanted,

or to be turned in as a dressing.



  3. Peas or potatoes, or both according to the qual-

ity of the field.



  4. Rye and clover sown on it in the spring.

Wheat may be substituted here for rye, when it

shall be found that the second, third, fifth, and

sixth fields will subsist the farm.



  5. Clover.



  6. Clover, and in autumn turn it in and sow

the vetch.



  7. Turn in the vetch in the spring, then sow buck-

wheat and turn that in, having hurdled off the poor-

est spots for cowpenning. In autumn sow .wheat

to begin the circle again.



  I am for throwing the whole force of my hus-

bandry on the wheat-field, because it is the only

one which is to go to market to produce money.

Perhaps the clover may bring in something in the

form of stock. The other fields are merely for the

consumption of the farm. Melilot, mentioned by

you, I never heard of. The horse bean I tried this

last year. It turned out nothing. The President

has tried it without success. An old English farmer

of the name of Spuryear, settled in Delaware,

has tried it there with good success ; but he told me

it would not do without being well shaded,

 







        Private Papers      197



and i think he planted it among his corn for that

reason. But he acknowledged our pea was as good

an ameliorater and a more valuable pulse, as being

food for man as well as horse. The succory is what

Young calls Chicoria Intubus. He sent some

seed to the President, who gave me some, and I gave

it to my neighbors to keep up till I should come home:

One of them has cultivated it with great success, is

very fond of it, and gave me some seed which

I sowed last spring. Though the summer was favor-

able it came on slowly at first, but by autumn be-

came large and strong. It did not seed that year,

but will the next, and you shall be furnished with

seed. I suspect it requires rich ground, and then

produces a heavy crop for green feed for horses and

cattle. I had poor success with my potatoes last

year, not having made more than 60 or 70 bushels

to the acre.. But my neighbors having made good

crops, I am not disheartened. The first step

towards the recovery of our lands is to find substitutes

for corn and bacon. I count on potatoes, clover,

and sheep. The two former to feed every animal

on the farm except my negroes, and the latter to

feed them, diversified with rations of salted fish and

molasses, both of them wholesome, agreeable, and

cheap articles of food.



 For pasture I rely on the forests by day, and soil-

ing the evening. Why could we not have a move-

able airy cow house, to be set up in the middle of

the field which is to be dunged, and soil our cattle

 







198        Jefferson's Works



in that through the summer as well as winter, keep-

ing them constantly up and well littered? This

with me, would be in the clover field of the first

rear, because during the second year it would be

rotting, and would be spread on it in fallow the be-

ginning of the third, but such an effort would be far

above the present tyro state of my farming. The

grosser barbarisms in culture which I have to en-

counter are more than enough for all my attentions

at present. The dung-yard must be my last effort

but one. The last would be irrigation. It might

be thought at first view, that the interposition of

these ameliorations or dressings between my crops

will be too laborious, but observe that the turnips

and two dressings of vetch do not cost a single

ploughing. The turning the wheat-stubble for the

turnips is the fallow for the corn of the succeeding

year. The first sowing of vetches is on the corn

(as is now practised for wheat), and the turning it

in is the flush-ploughing for the crop of potatoes and

peas. The second sowing of the vetch is on the

wheat fallow, and the turning it in is the ploughing

necessary for sowing the buckwheat. These three

ameliorations, then, will cost but a harrowing each.

On the subject of the drilled husbandry, I think

experience has established its preference for some

plants, as the turnip, pea, bean, cabbage, corn, etc.,

and that of the broadcast for other plants as all the

bread grains and grasses, except perhaps lucerne

and Saint foin in soils and climates very productive

 







        Private Papers        199



of weeds. In dry soils and climates the broadcast

is better for lucerne and Saint foin, as all the south

of France can testify.



  I have imagined and executed a mould-board

which may be mathematically demonstrated to be

perfect, as far as perfection depends on mathemat-

ical principles, and one great circumstance in its

favor is that it may be made by the most bungling

carpenter, and cannot possibly vary a hair's breadth

in its form, by but gross negligence. You have seen

the musical instrument called a sticcado. Suppose

all its sticks of equal length, hold the fore-end hori-

zontally on the floor to receive the turf which pre-

sents itself horizontally, and with the right hand

twist the hind-end to the perpendicular, or rather

as much beyond the perpendicular as will be neces-

sary to cast over the turf completely. This gives

an idea (though not absolutely exact) of my mould-

board. It is on the principle of two wedges com-

bined at right angles, the first in the direct line of

the furrow to raise the turf gradually, the other

across the furrow to turn it over gradually. For

both these purposes the wedge is the instrument of

the least resistance. I will make a model of the

mould-board and lodge it with Colonel Harvie in

Richmond for you. This brings me to my thanks

for the drill plough lodged with him for me, which

I now expect every hour to receive, and the price

of which I have deposited in his hands to be called

for when you please. A good instrument of this kind

 







200        Jefferson's Works



is almost the greatest desideratum in husbandry.

I am anxious to conjecture beforehand what may be

expected from the sowing turnips in jaded ground,

how much from the acre, and how large they will be?

Will your experience enable you to give me a prob-

able conjecture ? Also what is the produce of pota-

toes and what of peas in the same kind of ground?

It must now have been several pages since you be-

gan to cry out " mercy. " In mercy then I will here

finish with my affectionate remembrance to my old

friend Mr. Pendleton, and respects to your fireside,

and to. yourself assurances of the sincere esteem of

dear Sir, your friend and servant.



         TO THOMAS MANN RANDOLPH.



           MONTICELLO, NOVember 28, 1796.

 It is so cold that the freezing of the ink on the

point of my pen renders it difficult to write. We

have had the thermometer at 12 degrees . My works are

arrested in a state entirely unfinished, and I fear we

shall not be able to resume them. Clarke has sold

our wheat in Bedford for 8s. 6d. and the rise to the

first of June, with some other modifications. It ap-

pears to be a good sale. He preferred it to 10s. 6d.

certain, which was offered him.. I think he was

right as there is little appearance of any intermis-

sion of the war.



 I thank you for your letter of news, and am glad

 







        Private Papers      201



to see the republican pre-eminence in our assembly.

The paper you inclosed me presents a result entirely

questionable, according to my own ideas of the sub-

ject. The preponderance of the McKean interest

in the western counties of Pennsylvania is by no

means so great ,as is there supposed. You will

believe the true dispositions of my mind on that

subject. It is not the less true, however, that I do

sincerely wish to be the second on that vote rather

than the first. The considerations which induce

this preference are solid, whether viewed with rela-

tion to interest, happiness or reputation Am-

bition is long since dead in my mind. Yet even a

well-weighed ambition would take the same side:

My new threshing machine will be tried this week.

P. Carr is on the point of marriage. All are well

here, and join in the hope of your continuing so.

Adieu.



             TO JOHN TAYLOR.(1)



             MONTICELLO, October 8, 1797,

  We have much here of an improvement made in

the Scotch threshing machine by Mr. Martin, and

that you have seen and approved it.(2) Being myself

well acquainted with the original geared machine

and Booker's substitution of whirls and bands (as I



 @#(1) Printed from the original in the washburn Collection of Autographe

given to the Society.-EDs.



(2) See the letter from Jefferson to Taylor, June 4, 1798: EDs.@#

 







202        Jefferson's Works



have one of each kind), it will perhaps give you but

a little trouble to give me so much of an explanation

as will be necessary to make me understand Mar-

tin's, and let it apply, if you please, to the move-

ments by horses or by hand. I must ask the favor

of you to get me one of the same drills you sent me

before, made in the best manner, with a complete

set of bands and buckets, and packed in a box, in

pieces, in the most compact manner the workman

can do it, and forwarded to me at Philadelphia as

soon after the meeting of Congress as possible. It

is for a friend, and to go still further, which renders

this mode of packing necessary. For the amount

when you will make it known, I will either enclose

you a bank bill from Philadelphia, or send it you in

fine tea or anything else you please to order. How

di d your turnip seed answer ? I have received from

England, and also from Italy some seed of the win-

ter vetch, a plant from which I expect a good deal.

If it answers I will send you of the seed. I have also

received all the good kinds of field pea from England,

but I count a great deal more on our southern cow-

pea. If you wish any of them, I will send you a

part.



  I have not yet seen Hamilton's pamphlet;l but I

understand that finding the strait between Scylla



@# (1) The pamphlet referred to is the well-known " Observations on

Certain Documents contained in No. v. and vi. of 'The History of the

United States for the Year 1796,' in which the charge of speculation

against Alexander Hamilton, late Secretary of the Treasury, is fully

refuted. Written by Himself."-Eds. @#

 







        Private Papers        203



and Charybdis too narrow for his steerage, he has

preferred running plump on one of them. In truth;

it seems to work very hard with him; and his will-

ingness to plead guilty as to the adultery seems

rather to have strengthened than weakened the

suspicions that he was in truth guilty of the specu-

lations. Present me respectfully and affectionately

to my old friend and file-leader, Mr. Pendleton, and

accept yourself my friendly salutations and adieux.



  P. S. Your answer by the first or second post will

find me here.



           TO EDMUND PENDLETON.(1)



            PHILADELPHIA, January 14., 1799.

  DEAR SIR,-I received some time ago from Mr.

Edmund Randolph a note signed by Mr. Lyons and

yourself, undertaking to pay the amount of a decree

of Royle's administrators v. yourselves as adminis-

trators of Robinson to Mr. Short or myself as his

attorney. This undertaking is perfectly satisfac-

tory, and I only wait your pleasure to be signified

as to the time when and place where it may suit yo"u

to make the payment. As it was to depend on the

sale of the stock I should suppose this the best mar-

ket, but of this you will judge.



  We receive this day through the public: papers

news by the way of Norfolk of some stern interrog-



@#(1) Printed from the original in the Washburn Collection of Auto-

graphs given to the Massachusetts Historical Society.-Eds.@#

 







204        Jefferson's Works



atories put to our envoys by the French Directory.

They look so like truth that they cannot fail to make

an impression. We are willing to hope that France

will not push her resentments to a declaration of

war, but we have not entire confidence in the mod-

eration of certain people among ourselves. On the

whole our situation is truly perilous. Congress is

at present lying on its oars. There is nothing of the

least importance to be taken up. They will begin

to-morrow to talk about Blount and Mr. Liston.

This may fill up some hours as well as lounging, and

furnish something for the blank pages of their jour-

nals ; but unless our envoys furnish us something to

do, I do not see how we can contrive even the sem-

blance of business through February.



  I avail myself with great pleasure of this oppor-

tunity of recalling our ancient recollections; and

it has been with great satisfaction that I have heard



@#(1) William Blount, lately Governor of the Territory south of the Ohio,

and a senator from Tennessee, was charged with having been engaged in

a conspiracy for transferring New Orleans and the neighboring districts

from the Spanish to the British. Upon information, furnished in part

by Robert Liston, the British envoy to the United States from 1796 to

1802, which had been laid before Congress,the House of Representatives

voted in July, 1797, to impeach him. Two days later, after hearing

counsel, the Senate voted to expel him. This did not, however, end

the matter, and in January, 1798, it was again brought before the

House of Representatives, which proceeded to elect managers. It was

not finally disposed of by the Senate until the end of that year. Blourt

died shortly afterward. See Hildreth's History of the United States,

vol. v. pp. 88, 89, 187, 281, 282; Annals of Congress, 9th Congress,

vols. i.-€i. passim; also the copy of a letter from Timothy Pickering

to Rufus King, in the Pickering Papers, belonging to the Massachusetts

Historical Society, vol. xxxvii. leaves 196, 197.-Eds. @#

 







        Private Papers          205



from time to time of the great portion of health you

have enjoyed and still enjoy. That it may continue

through all the years you wish is the prayer of, my

dear Sir, your affectionate friend and servant.



             TO JOHN TAYLOR.(1)



             PHILADELPHIA, June 4, 1798

  I now enclose you Mr. Martin's patent.' A pat-

ent had actually been made out on the first de-

scription, and how to get this suppressed and an-

other made for a second invention, without a sec-

ond fee, was the difficulty. I practised a little

art in a case where honesty was really on our side,

and nothing against us but the rigorous letter of

the law, and having obtained the first specifica-

tion and got the second put in its place, a second

patent has been formed, which I now inclose with

the first specification.



  I promised you, long ago, a description of a

mould-board. I now send it; it is a press copy

and therefore dim. It will be less so by putting

a sheet of white paper behind the one you are read-

ing. I would recommend to you first to have a

model made of about 3 inches to the foot, or .25 the

real dimensions, and to have two blocks, the first



 @#(1) Printed from the original in the washburn Collection of Autographs

given to the Massachusetts Historical Society.-EDs.



 (2) A patent for a "wheat-thrashing machine" was issued to T. C.

Martin, June a, 1798. His residence is not given in the Index to the

United States Patents.-Eds.@#

 







206         Jefferson's Works



of which, after taking out the pyramidal piece and

sawing it crosswise and below, should be preserved

in that form to instruct workmen in making the

large .and real one. The second block may be car-

ried through all the operations, so as to present the

form of the mould-board complete. If I had an

opportunity of sending you a model I would do it.

It has been greatly approved here, as it has been

before by some very good judges at my house,

where I have used it for five years with entire

approbation.



  Mr. New showed me your letter on the subject of

the patent, which gave me an opportunity of ob-

serving what you said as to the effect with you of

public proceedings, and that it was not unusual now

to estimate the separate mass of Virginia and

North Carolina with a view to their separate ex-

istence. It is true that we are completely under

the saddle of Massachusetts and Connecticut, and

that they ride us very hard, cruelly insulting our

feelings as well as exhausting our strength and

substance. Their natural friends, the three other

eastern States, join. them from a sort of family

pride, and they have the art to divide certain

other parts of the Union so as to make use of

them to govern the whole. This is not new. It

is the old practice of despots to use a part of the

people to keep the rest in order, and those

who have once got an ascendency and possessed

themselves of all the resources of the nation, their

 







        Private Papers          207



revenues and offices, have immense means for re-

taining their advantages. But our present situ-

ation is not a natural one. The body of our

countrymen is substantially republican through

every part of the Union. It was the irresistible

influence and popularity of General Washington,

played off by the cunning of Hamilton, which

turned the government over to anti-republican

hands, or turned the republican members, chosen

by the people, into anti-republicans. He deliv-

ered it over to his successor in this state, and

very untoward events, since improved with great

artifice, have produced on the public mind the

impression we see; but still, I repeat it, this is

not the natural state. Time alone would bring

round an order of things more correspondent to

the sentiments of our constituents; but are there

not events impending which will do it within a

few months? The invasion of England; the pub-

lic and authentic avowal of sentiments hostile to

the leading principles of our Constitution, the

prospect of a war in which we shall stand alone,

land-tax, stamp-tax, increase of public debt, etc.,

Be this as it may, in every free and deliberating

society there must, from the nature of man, be

opposite parties and violent dissensions and dis-

cords; and one of these, for the most part, must

prevail over the other for a longer or shorter

time. Perhaps this party division is necessary

to induce each to watch and delate to the people;

 







208        Jefferson's Works



the proceedings of the other. But if on a tempo-

rary superiority of the one party, the other is to

resort to a scission of the Union, no federal gov-

ernment can ever exist. If to rid ourselves of

the present rule of Massachusetts and Connecti-

cut we break the Union, will the evil stop there?

Suppose the New England States alone cut off, will our

natures be changed ? are we not men still to the south

of that, and with all the passion of men? Imme-

diately we shall see a Pennsylvania and a Vir-

ginia party arise in the residuary confederacy, and

the public mind will be distracted with the same

party spirit. What a game,  too, will the one party

have in their hands by eternally threatening the

other that unless they do so and so, they will join

their Northern neighbors. If we reduce our Union

to Virginia and North Carolina, immediately the

conflict will be established between the representa-

tives of these two States, and they will end by

breaking into their simple units. Seeing, there-

fore, that an association of men who will not quar-

rel with one another is a thing which never yet

existed, from the greatest confederacy of nations

down to a town meeting or a vestry, seeing that

we must have somebody to quarrel with, I had

rather keep our New England associates for that

purpose than to see our bickerings transferred to

others. They are circumscribed within such narrow

limits, and their population so full, that their num-

bers will ever be the minority, and they are marked,

 







        Private Papers       209  



like the Jews, with such a peculiarity of charater

as to constitute from that circumstance the natural

division of our parties. A little patience, and we

shall see the reign of witches pass over, their spells

dissolve, and the people, recovering their true

sight, restore their government to its true prin-

ciples. It is true that in the meantime we are suf-

fering deeply in spirit, and incurring the horrors of

a war and long oppressions of enormous public

debt. But who can say what would be the evils

of a scission, and when and where they would end.

Better keep together as we are, haul off from Eu-

rope as soon as we can, and from all attachments

to any portions of it. And if we feel their power

just sufficiently to hoop us together, it will be the

happiest situation in which we can exist. If the

game runs sometimes against us at home we must

have patience till luck turns, and then we shall

have an opportunity of winning back the principles

we have lost, for this is a game where principles are

the stake. Better luck, therefore, to us all; and

health, happiness, and friendly salutations to your-

self. Adieu.



  P. S. It is hardly necessary to caution you to

let nothing of mine get before the public. A single

sentence, got hold of by the Porcupines, will suf-

fice to abuse and persecute me in their papers for

months.







   VOL. XVIII-14

 







210        Jefferson's Works





         TO THOMAS MANN RANDOLPH.



           PHILADELPHIA, January 17, 1799

 I wrote to my dear Martha Dec. 27, and

to yourself Jan. 3. I am afraid my nailery will stop

from the want of rod. Three tons were sent from

hence Dec. 11. The vessel was blown off the capes

and deserted by the crew. She has been taken up

at sea and carried into Albemarle Sound. We are

in hopes, however, of getting off another supply

from here immediately as the river bids fair to open.

The shutting of the river has prevented any tobacco

coming here as yet; so nothing is known about

price. At New York the new tobacco is thirteen

dollars. Georgia has sent a much larger quality

there than had been expected, and of such a quality

as to place it next to the Virginia. It is at eleven

dollars while the tobacco of the Carolinas and Mary-

land are but ten dollars. I suspect that the price

will be at its maximum this year. Whether that

will be more than thirteen dollrs I do not know,

but I think it will. When this city comes into the

market, it must greatly increase the demand. We

know too that immense sums of cash are gone and

going on to Virginia, such as were never before

heard of. Every stage is loaded. Some pretend

here it is merely to pay for last year's tobacco, but

we know that that was in a considerable degree paid

for; and I have no doubt that a great part of this

money is to purchase the new crop. If I were

 









        Private Papers         211



offered thirteen dollars in Richmond, perhaps I

should take it, for the sake of securing certain ob-

jects, but my judgment would condemn it. Wheat

here is I. 75. Dr. Bache sets out for our neighbor-

hood next month early, having concluded abso-

lutely to settle there. He is now breaking up his

house and beginning to pack. Dr. Logan tells me

Dupont de Nemours is coming over, and decided to

settle in our neighborhood. I always considered

him as the ablest man in France. I ordered Bache's

papers for you from Jan. I.(1) The moment I can

get answers from the Postmasters of Charlottes-

ville and Milton to letters I wrote them a fortnight

ago, we shall have the error of our mail corrected.

It will turn out, I believe, to have taken place here

by making up the mail a day too late, which occa-

sioned a loss of a week at Fredericksburg. The

bankrupt bill was yesterday rejected in the H. of R. by

a majority of three. Logan's law will certainly pass.(2)

Nobody mistakes the object of it. The forgery

they attempted to palm on the House, of a memo-



  @#(1)The "Aurora," which violently opposed the administration of

Washington and Adams, was published by Benjamin Franklin Bache,

a grandson of Dr. Franklin.-EDs.



  (2) The act here referred to was passed Jan. 30, L99, and made it a

criminal offence, punishable by a fine and imprisonment, for any

citizen of the United States, without the permission of his own govern-

ment, to carry on any verbal or written correspondence or intercourse

with any foreign government or its agents in regard to any disputes

with the United States. The act was occasioned by some unauthor-

ived communications made to the French government by Dr. George

Logan, afterward a Senator of the United States from Pennsylvania.

(see Appleton's Cyclopaedia of American Biography, vol. iv. p. 4.)-

Evs. @#

 







212        Jefferson's Works



rial falsely pretended to have been drawn and pre-

sented by Logan, is so completely detected, as to

have thrown infamy on the whole proceeding, but a

majority will still go through with it. The army

and navy are steadily pursued. The former, with

our old troops, will make up about 14,000 men,

and consequently cost annually seven millions of

dollars. The navy will cost annually five and one-

half millions, but as it will not be on foot, no addi-

tion to the direct tax will be made at this session,

nor perhaps at the next. It is very evident from

circumstances that a window tax is intended. A

loan for five millions is opened at 8 per cent. The

extravagance of the interest will occasion it to fill.

This it is supposed will build the navy. Our taxes

bring in this year ten and one half-millions clear,

and the direct tax will add two millions. Accord-

ing to the principles settled by a (British) majority

of the commissioners under the treaty, that demand

will be from fifteen to twenty millions of dollars,

but there is some reason to suppose our government

will not yield to it. In that case they must recur

to new negotiations. Notwithstanding the forgeries

of London, Vienna, and Constantinople, it is be-

lieved that Bonaparte will establish himself in

Egypt, and that that is, for the present at least, his

ultimate object. Also that the insurrection in Ire-

land is in force and better organized than before.

My warmest love to my dear Martha and the little

ones; to yourself affectionate salutations and Adieu.

 







        Private Papers         213





             TO JOHN TAYLOR.(1)



           MONTICELLO, NOVember 26, 1799

  DEAR SIR,-Mr. Wirt, who is of my neighborhood,

offers himself a candidate for the clerkship of the

House of Representatives, and being known to few

of the members, his friends are naturally anxious

that what may be said of him with truth should be

said.(2) I only fulfill a duty, therefore, when I bear

testimony in this as I would in any other case.

He has lived several years my near neighbor, hav-

ing married the daughter of the late Dr. Gilmer.

He is a person of real genius and information, one

of the ablest at the bars in this part of the country,

amiable and worthy in his private character, and

in his republicanism most zealous and active. This

information is given you in order that having

equal knowledge of the other candidates you may

be enabled to satisfy your own mind by choosing

the best.



 For some years past there has been a project on

foot for making a more direct road across this State

for those travelling between the North and South.



 @#(1) Printed from the original in the Washburn Collection of Autographs

given to the Massachusetts Historical Society.-Eds.

William Wirt, the eminent lawyer, was born in Bladensburg, Md.,

Nov. 8, 1772, and died in Washington, D. C., Feb. 18, 1834. He began

his legal career in Virginia, and in 1795 he was married to the daughter

of Dr. George Gilmer. She died in 1799, and he removed to Rich-

mond, and was elected Clerk of the House of Delegates. His legal

knowledge, his eloquence, and his rare ability in argument placed him

in the foremost rank of American lawyers. (See Appleton's Cyclo-

paedia of American Biography, vol. vi. pp. 578, 579.)-EDs. @#

 







214        Jefferson's Works



It is only necessary to open it in parts, as there are

already roads through a great proportion of the

way. It is to lead from Georgetown by Stevens-

burg, Norman's ford, the Raccoon ford, Martin

King's ford, the mouth of Slate River, to the High

bridge on Appomattox, from whence the present

roads southwardly suffice. It will shorten the line

across this State probably fifty miles, is calculated

on the precise object of avoiding all hills, but at

the crossing of the principal watercourses, and will

undoubtedly be the best road for the principal mail

between the North and South. This matter will

be before you this session, and will be worthy your

attention.



  Some schismatic appearances and other political

circumstances will render it necessary for us per-

haps to adapt our conduct to their improvement.

But I cease from this time during the ensuing

twelvemonth to write political letters, knowing that

a campaign of slander is now to open upon me, and

believing that the postmasters will lend their

inquisitorial aid to fish out any new matter of slander

they can to gratify the powers that be. I hope

my friends will understand and approve the motives

of my silence. Health, happiness, and affectionate

salutations.

 







        Private Papers       215





        TO THOMAS MANN RANDOLPH.



                       February 4, 1800.



  Yours of Jan. 18 never reached me till this day,

so that it has loitered a week somewhere. Our

post going out to-morrow morning, I hasten to an-

swer it. My anxiety to get my lands rented is

extreme. I readily agree, therefore, that Mr. Kerr

shall take for five years, or say till Christmas, 1804,

the oblong square field, and the one on the river

next below the square field, comprehending the

orchard; only that I should be very urgent he

should take a complete field there; for I expect

there is enough between the river and the road by

old Hickman's settlement to make two fields of

forty acres each, by cleaning up and straightening

the skirts, perhaps by cutting down some slips on

the margin. For so much as would be to clear I

would take no rent the first year. He would then

have the three fields in a line on the river, and

three other fields would remain along the road to

the triangle inclusive for another tenant. Ob-

serve I must have with him, as I have with Mr.

Peyton, free passage along the roads; that is to

say, along the road which used to be, and must be

again, down the river side. All the conditions to

be the same as with Mr. Peyton. I say I wish him

to be pushed to the taking the one hundred and

twenty acres; yet, rather than lose a tenant, I

 







216        Jefferson's Works



would agree to the hundred acres, to wit, the ob-

long square and half the lower field. But you are

sensible he would get by that means a great over-

proportion of cream, and therefore I wish to force

on him the other half field.



  Bonaparte's operations begin to wear a some-

what better aspect. It seems as if he meant a re-

public of some sort; therefore we are encouraged

by the strength of his head to hope he calculates

correctly how much superior is the glory of estab-

lishing a republic to that of wearing a crown. But

still we must suspend our judgments a little longer.

My first letter from Mr. Eppes gave me a little hope

of the child's doing well. One received to-day an-

nounces its death. It appears, as we might expect,

a severe affliction to both.



        TO THOMAS MANN RANDOLPH.



              PHILADELPHIA, March 4, 1800.



 DEAR SIR,-I wrote you last on the 17th of Feb-

ruary. Since that I learn by a letter from Rich-

mond that Martha is with her sister. My last letter

from Eppington was of the 16th of Feb. , when

Maria was hoped to be in fair way of speedy recov-

ery. The continuance of the non-intercourse law

for another year, and the landing of our commis-

sioners at Lisbon, have placed the opening of the

French market (where at Bordeaux tobacco was

 







        Private Papers    217



selling at twenty-five to twenty-seven dollars per

cwt. Dec. 7) at such a distance that I thought it

better to sell our tobacco at New York. Remsen

had informed me in January that no more than

six dollars could then be got for it, and it has been

falling since; and Lieper offering to take it. there

at six dollars payable in sixty days, I struck with

him; and thus ends this tragedy by which we have

both lost so much. I observe Tarina advertised;

how does that matter stand? There have been no

new failures here or at New York, but at Baltimore

very great ones weekly. We are entirely without

news of the further proceedings at Paris. Bona-

parte seems to be given up by almost everyone.

The caucus election bill for President and Vice-

President will certainly pass the Senate by the

usual majority of 2 to 1; an amendment will be

proposed to shew the sense of the minority. This

may perhaps, however, be taken up by the other

house with a better chance of success; in order to

lessen the necessary loan, they put off building

the 74.'s a year, which, with the saving by stopping

enlistments, reduces the loan to three and one-half

millions; but whether even that can be got at 8

per cent is very doubtful. Wheat is at $ 2.13 here,

and is likely to be very high through the year, as

Europe will want generally. I think I shall fix

my price with Mr. Higginbotham at about the mid-

dle of April. I have not heard how it is at Rich-

mond. Key's money was sent on to Richmond

 







218        Jefferson's Works



Jan. 30. Yet on the 20th of Feb. (three weeks

after) he seems not to have heard of it. Kiss all

the little ones for me, and accept sincere and cordial

salutations from yours affectionately.



         TO THOMAS MANN RANDOLPH.



               PHILADELPHIA, April 4, 1800.



  I wrote you last on the 31st of March, since which

I have received G. Jefferson's of March 22, acknowl-

edging the receipt of the last two hundred and sev-

enty dollars, making eighteen hundred and seventy

dollars in all. Mr. Ross's Kitt, setting out for Char-

lottesville, where he has a cause to be tried with

James Ross, and apprehending from him some per-

sonal assault, has asked me to interest some person

to ensure him the protection of the laws. I have

promised to write to yourself, P. Carr, and Colonel

Bell, to have an eye to him, merely because he de-

sires it, though I assured him he would be protected

by every one. He furnishes me an earlier occasion

of writing to you than by post.



  Captain Barry, in the frigate U. S., arrived last

night from Corunna. Our envoys (1) landed Nov. 27



@#(1)Oliver Ellsworth, William R. Davie and William Vans Murray

had been appointed by President Adams envoys extraordinary to the

French Republic. The two former sailed from Newport, R. I., about

the first of November, 1799, in the frigate United States. The latter

was then in Europe. See Life and Works of John Adams, vol. ix. pp.

39, 162, 251.-EDs.  @#

 







        Private Papers         219



at Lisbon, from whence their secretaries proceeded

by land to Paris. The principals reimbarked Dec.

22 for L'Orient, but after long beating against con-

trary winds in the Bay of Biscay they landed at

Corunna Jan. 11, and sent a courier to Paris for their

passports. They proceeded to Burgos and here

received their passports from Paris, with a letter

from Talleyrand expressing a desire to see them at

Paris, and assuring them that the form of their cre-

dentials addressed to the Directory, would be no

obstacle to their negotiation. Murray was already

at Paris: The letters from our envoys to the Ex-

ecutive, brought by Captain Barry, are dated at

Burgos, Feb. 10. They would have about [illegible]

to Paris, where they will have arrived probably

about the first week in March, and by the first week

of May we may expect to hear of their reception.

The frigate Portsmouth is about sailing from New

York to France, the object a secret. The Senate

yesterday rejectd Mr. Pinckney's bill against ap-

pointing judges to any other offices; and to-day

they have rejected a bill from the House of Repre-

sentatives which forbade military troops to be at

the place of election on any day of election. A war-

rant has been issued to commit Duane,(1) but he has

not yet been found. The President has nominated

a third Major General (Brookes of Massachusetts)

to our 4000 men, and 204 promotions and appoint-



 @#(1) William Daane, editor of the "Aurora," the.principal organ of the

Republicans: EDs. @#

 







220        Jefferson's Works



ments of officers are now before the Senate for ap-

probation, so there will be sixteen regiments of

officers and four or five of soldiers. Dupont de Ne-

mours has been here from New York on a visit.

He will settle there or at Alexandria. He promises

me a visit this summer with Madame Dupont. I

think we shall rise the first or second week in May.

I have received the grateful news of Maria's recov-

ery, and am to go by Eppington or Montblanco to

carry her to Monticello with me. I shall by next

post write to Richardson the day my horses are to

meet me there, all three ; and expect him to engage

David Bowles to go with them. Not knowing

whether Martha is yet returned home, I can only

deliver my love to her provisionally, and my affec-

tionate salutations to yourself. Adieu.



  P. S. You have not informed me where your

brother's newspapers are to be directed.



         TO EDMUND PENDLETON.1



             PHILADELPHIA, April 19, 1900



 DEAR SIR,-My duties here require me to possess

exact knowledge of parliamentary proceedings.

While a student I read a good deal and commun-



@# (1) This letter is printed from the original in the collection of auto-

graphs given to the Massachusetts Historical Society by Mr. and Mrs.

A. C. Washburn: -EDs. @#

 









        Private Papers    221



placed what I read on this subject.l But it is now

20 years since I was a member of a parliamentary

body, so that I am grown rusty. So far, indeed, as

books go, my commonplace has enabled me to re-

trieve, but there are many minute practises, which

being in daily use in Parliament, and therefore sup-

posed known to every one, were never noticed in

their books. These practices were, I dare say, the

same we used to follow in Virginia, but I have for got

even our practices. Besides these, there are minute

questions arising frequently as to the mode of amend-

ing, putting questions, etc., which the books do not

inform us of. I have, from time to time, noted

these queries, and keeping them in view have been

able to get some of them satisfied, and struck them

off my list, but I have a number of them still remain-

ing unsatisfied. However unwilling to disturb your

repose, I am so anxious to perform the functions of

my office with exact regularity that I have deter-

mined to throw myself on your friendship and to

ask your aid in solving as many of my doubts as you

can. I have written them down, leaving a broad

margin in which I only ask the favor of you to write

yea, or nay, opposite to the proposition, which will

satisfy me. Those which you do not recollect, do

not give yourself any trouble about. Do it only at

your leisure. If this should be before the 9th of



 @#(1) The commonplace book here referred to is probably a small and

very neatly written volume, marked on the fly-leaf ' ` Parliamentary

Note-Book," now in the possession of the Massachusetts Historical

Society.-Eds.@#

 







222        Jefferson's Works



May, your return of the papers may find me here till

the 16th; if after that, be so good as to direct them

to me at Monticello.



  I have no foreign news but what you see in the

papers. Duane and Cooper's trials come onto-day.

Such a selection of jurors has been made by the mar-

shal as ensures the event. The same may be said

as to Fries, etc. , and also as to the sheriff and jus-

tices, who in endeavoring to arrest Sweeny, the

horse thief, got possession of his papers, and sent

them to the Chief Justice and the Governor, among

which papers were Mr. Liston's letter to the Gov-

ernor of Canada, printed we know not by whom. We

have not yet heard the fate of Holt, editor of the

Bee, in Connecticut. A printer in Vermont is pros-

ecuted for reprinting Mr. McHenry's letter to Gen-

eral Darke. Be so good as to present my respects

to Mrs. Pendleton, and friendly salutations to Mr..

Taylor, and accept yourself assurances of constant

and affectionate esteem.



        TO THOMAS MANN RANDOLPH.



               PHILADELPHIA, May 7, 1800.



 Yours of April 26 came to hand the 2d inst. We

have received information, not absolutely to be

relied on, that our envoys are arrived at Paris and

were received with peculiar favor. I have seen a

letter from a person there of the best information,

 







        Private Papers     223



dated in January, that the dispositions of the pres-

ent government were so favorable that a carte

blanche would be given to our envoys and that it

would not be in their power to avoid a settlement.

The New York city election has resulted in favor of

the republican ticket. I inclose you a state of it.

This is considered by both parties as deciding the

legislative majority in that State, without taking

into account what we shall gain in the country

elections. The Federalists do not conceal their

despair on this event. They held a caucus on

Saturday night, and have determined on some

hocus-pocus manoeuvres by running General Charles

C. Pinckney with Mr. Adams to draw off South Car-

olina, and to make impression on North Carolina.

We still count on rising on the 12th ; perhaps we

may be a day or two later, though it is generally

expected otherwise. I shall not set out till the day,

or day after, we rise.



 You were not mistaken in your first idea that

your tobacco was nearly sufficient for the payment

to George Jefferson. I paid him 1870 dollars. Your

Philadelphia tobacco came to 1537  325 and the New

York supposed about 280 dollars. This, when it all

comes in, will consequently be within a few dollars

of what I paid; and as to the delay, I have apolo-

gized for that to those for whom my money was

destined. A little before I left Monticello I

attempted a statement of our account. But we had

let it run so long that it called for more time than I

 







224        Jefferson's Works



had left. I therefore brought on the materials here,

and have stated it except as to one or two articles

which need enquiry. I do not believe there will be

a balance of 10 dollars either way, including every

thing I know of to the present moment. The money,

therefore, in Mr. Jefferson's hands, which you des-

tined for me, is free for other purposes. I sincerely

wish I were able to aid you in the embarrassments

you speak of. But though I have been wiping out

Mr. Wayles's old scores it has been impossible to

me to avoid some new ones. The profits of my

Bedford estate have gone for this purpose, and the

unprofitable state of Albemarle has kept me in a

constant struggle. There is a possible sale which

might enable me to aid you, and nothing could be so

pleasing to me, but it is only possible. I would wish

you, however, to avoid selling anything as long as

you can, to give time for this possibility. These

things, however, will be better explained in con-

versation. Present my constant love to my dear

Martha and the little ones, and accept assurances

of the most affectionate attachment to yourself.

Adieu.



        TO THOMAS MANN RANDOLPH.



        WASHINGTON, Sunday, Nov. 30, 1800.

 Davy will set out in the morning on his return

with the horses. I will endeavor before he goes

to get one of Hamilton's pamphlets for you, which

 







              Private Papers         225



are to be sold here. Bishop's pamphlet on political

delusions has not yet reached the bookstores here.'

It is making wonderful progress, and is said to be

the best anti-republican eye-water which has ever

yet appeared. A great impression of them is mak-

ing at Philadelphia to be forwarded here. From

abroad we have no news. At home, the election is

the theme of all conversation. Setting aside Penn-

sylvania, Rhode Island, and South Carolina, the

Federal scale will have from the other States 53

votes and the Republicans 58. Both parties count

with equal confidence on Rhode Island and South

Carolina. Pennsylvania stands little chance for a

vote. The majority of two in their Senate is im-

movable. In that case, the issue of the election

hangs on South Carolina. It is believed Pinckney

will get a complete vote with Mr. Adams from four

of the New England States, from Jersey, Delaware and

Maryland, probably also North Carolina. Congress

seems conscious they have nothing [to do ?) ; the territo-

rial government here and the additional judiciary sys-

tem (being?) the only things which can be taken up.

The Federals do not appear very strong in the House

of Representatives. They divided on the address

only 35 against 32. We are better accommodated

here than we expected to be, and not a whisper or



@#(1)The reference is to Abraham Bishop's "Connecticut Republican-

ism: an Oration on the Extent and Power of Political Delusion,

delivered in New Haven on the evening preceding the Public Com-

mencement, September, 1800." It passed through several editions.

-EDS.@#



  vol. xviii-15

 







226        Jefferson's Works



thought in any mortal of attempting a removal.

This evident solidity to the establishment will give

a wonderful spring to buildings here the next season.

My warmest affection to my ever dear Martha, kisses

to the young ones, and sincere and affectionate at-

tachment to yourself. Adieu.



  P. S. Mr. Brown called on me to-day. The family

is well. I forgot to mention to him that Davy could

carry letters to Mr. Trist and family.







        TO THOMAS MANN RANDOLPH.



            WASHINGTON, DeCember 5, 1900.



  You are probably anxious to hear of the election,

and indeed it is the only thing of which any thing

is said here, and little known even of it. The only

actual vote known to us is that of this State. Five

for Adams and Pinckney and 5 for Jefferson and

Burr. Those who know the Pennsylvania legisla-

ture best agree in the certainty of their having no

vote. Rhode Island has carried the Federal ticket

of electors by about zoo in the whole State. Putting

Pennsylvania, South Carolina, and Pinckney out of

view, the votes will stand 57 for Jefferson and 58 for

Adams. So that South Carolina will decide between

these two. As to Pinckney it is impossible to fore-

see how the juggle will work It is confidently said

that Massachusetts will withhold seven votes from

him, but little credit is due to reports where every

 







        Private Papers    227



man's wishes are so warmly (illegible). If the Federal

electors of the other States go through with the

caucus compact, there is little doubt that South

Carolina will make him the President. Their other'

vote is very uncertain. This is everything known

to us at present. The post which will arrive here

on the 15th inst. will bring us the actual vote of

South Carolina. The members here are generally

well accommodated. About a dozen lodge in

Georgetown from choice, there being lodgings to be

had here if they preferred it. Everybody is well

satisfied with the place, and not a thought indulged

of ever leaving it. It is therefore solidly estab-

lished, and this being now seen it will take a rapid

spring. My tenderest love to my dear Martha and

the young ones. Affectionate and warm attach-

ment to yourself. Adieu.





         TO THOMAS MANN RANDOLPH.



                      December 12, 1800.



 I believe we may consider the election as now de-

cided. Letters received from Columbia, (S. C.), this

morning and dated Dec. 2, which was the day for

appointing their electors, announce that the Repub-

lican ticket carried it by majorities of from 13 to 18.

The characters named are firm and were to elect on

the next day. It was intended that one vote should

be thrown away from Colonel Burr. It is believed

Georgia will withhold from him one or two. The

 







228        Jefferson's Works



votes will stand probably T. J. 73, Burr about 70.

Mr. Adams 65. Pinckney probably lower than that.

It is fortunate that some difference will be made

between the two highest candidates, because it is said

that the Federals here held a caucus and came to a

resolution that in the event of their being equal they

would prevent an election, which they could have

done by dividing the House of Representatives. . My

tender love to my dear Martha and the little ones.

Sincere affection to yourself.



         TO THOMAS MANN RANDOLPH.



             WASHINGTON, January 9, 1801



  DEAR SIR,-Your favor of the third came to hand

yesterday. I suspect that I mistook our post day

when I first arrived here and put the letters you men-

tion into the post-office a day too late. I shall be

glad if you will mention when that of the first instant

gets to you as well as the present and future letters,

that if there be anything wrong in the post I may get

it rectified. The mail for Milton is made up here on

Friday at 5 p. m. That Craven's house should not

have been inreadiness surprises me. I left I. Perry's

people putting up the last course of shingles and the

plank for the floor and loft planed, and they assured

me they could finish everything in a week. They

must have quit immediately. But the most extra-

ordinary of all things is that there should have been

 







        Private Papers          229



no clearing done. I left Monticello on Monday, the

24th Nov., from which time there were four weeks

to Christmas, and the hands ordered to be with Lilly

that morning (except, I think, two), and according

to his calculation and mine three or four acres a week

should have been cleared. But the misunderstand-

ing between him and Richardson had before cost

me as good as all the labor of the hired hands from

January to June when I got home. The question

now, however, is as to the remedy. You have done

exactly What I would have wished, and as I place

the compliance with my contract with Mr. Craven

before any other object, we must take every person

from the nailery able to cut and keep them at it till

the clearing is completed. The following, therefore,

must be so employed: Davy, John, Abram, Shep-

herd, Moses, Joe, Wormly, Jame Hubbard, with the

one hired by Lilly, making 9. Besides these, if Bar-

naby, Ben, Cary, and Isabel's Davy are able to cut,

as I suppose they are, let them also join ; shoemaker

Phill also if he can cut. I doubt it, and that he had

better continue 'to be hired. These make thirteen

or fourteen, with whom the clearing which I was to

do this year ought not to be a long job. There will

remain for the nailery Burwell, Jamy, Bedf. John,

Bedf. Davy; Phill Hub., Lewis, Bartlet, and Brown,

enough for two fires. This course I would have pur-

sued even after Powell 's arrival, as I had rather

[illegible] his department, where the loss concerns

myself only than one which affects another. I wrote

 







230        Jefferson's Works



pressingly to Mr. Eppes to hire some hands for me,

and am not without hopes he may have done it. If

they arrive, I would still not draw off the nailers till

the clearing is completed. I wrote to Lilly yester-

day covering an order for some money. I had not

then received your letter, so the one to him says

nothing on this subject. I must, therefore, get the

favor of you to deliver him the orders.



  Nothing further can be said or discovered in the

subject of the election. We have eight votes in the

House of ' Representatives certain, and there are

three other States, Maryland, Delaware, and Ver-

mont, from either of which if a single individual

comes over it settles the matter.' But I am far from

confiding that a single one will come over. Penn-

sylvania has shown what men are when party takes

place of principle. The Jersey election has been a

great event. But nothing seems to bend the spirit

of our opponents. I believe they will carry their

judiciary bill. As to the treaty, I must give no

opinion. But it must not be imagined that any

thing is too bold for them. I had expected that

some respect to the palpable change in public opinion

would have produced moderation, but it does not

seem to. A committee reported that the Sedition

Law ought to be continued, and the first question

on the subject in the House has been carried by 47

against 33. We have a host of Republicans absent.

Gallatin, Livingston, Nicholson, Tazewell, Cabell,

cum multis aliis. The mercantile towns are almost



 





                Private Papers         231



unanimous in favor of the treaty.' Yet it seems

not to soften their friends in the Senate. I received

notices from Dick Johnson to attend the taking

depositions in Milton on the second Saturday in

February and the second Saturday in March at Mr.

Price's. I do not expect his witnesses have any

thing material to say. However, if it should not

be inconvenient to you to ride there at the hour of

12 and to ask any questions which may be neces-

sary to produce the whole truth, I shall be obliged

to you. My unchangeable and tenderest love to my

ever dear Martha and to the little ones : affectionate

attachment to yourself. Adieu.



         TO THOMAS MANN RANDOLPH.



             WASHINGTON, January 23, 1801.

 Yours of the 17th reached this on the 21st, from

Saturday to Wednesday. This will leave this place

to-morrow (Saturday, the 24th), and ought to be

with you on Thursday, the 29th, but it seems that

a week is lost somewhere. I suspect the Freder-

icksburg rider leaves that place an hour or two be-

fore the Northern post reaches it. On this subject

I will this day write to the Postmaster General. I

am sincerely concerned for the misfortune to poor

Holmes. I have not yet seen his father on the sub-



@#(1) The treaty which had been negotiated with France by the envoys

sent out by Mr. Adams. See Life and Works of John Adams, vol. ix,

pp. 241-310-EDs. @#

 







232        Jefferson's Works



ject, who is a clerk in the Register's office here.

Lewis must continue under Mr. Dinsmore, in order

to expedite that work. I will very willingly under-

take to pay Gibson and Jefferson for you L135 ;, but

I must take from 40 to 70 days for it, having noth-

ing at my disposal sooner. I am not sure of being

able to do it at the first term (March 1 ), but pos-

sibly may. At the second (April 1 ), they will have

the money in their own hands for my tobacco sold

and payable then, but do not consider this as en-

gaging you" hands. If you can employ them more

advantageously for yourself than by hiring, do it.

If not, we will take any which you had rather hire

than employ at what we are to pay for others. My

former letter will have conveyed to you my wish

that the nailers able to cut should be so employed ;

and I have written to Mr. Eppes that I am indiffer-

ent whether Powell comes till the first of April. I

shall then be at home, and shall engage Whateley

to undertake to build the new shop, out and out,

on his own terms, immediately. I forgot to ask

the favor of you to speak to Lilly as to the treatment

of the nailers. It would destroy their value, in my

estimation, to degrade them in their own eyes by

the whip. This, therefore, must not be resorted to

but in extremities; as they will be again under my

government, I would choose they should retain the

stimulus of character. After Lilly shall have com-

pleted the clearing necessary for this year for Mr.

Craven, I would have him go on with what will be

 







        Private Papers         233



wanting for him the next year, that being my most

important object. The building of the negro houses

should be done whenever Mr. Craven prefers it ; as

all the work is for him, he may arrange it. I will

thank you to continue noting the day of the receipt

of my letters, that I may know whether the post-

master corrects the mismanagement.'



  We continue as uncertain as ever as to the event

of an election by the House of Representatives.

Some appearances are favorable, but they may be

meant to throw us off our guard. Mr. Adams is

entirely for their complying with the will of the

people. Hamilton the same. The mercantile or

paper interest also. Still, the individuals who are

to decide will decide according to their own desires.

The Jersey election damps them, so does the Euro-

pean intelligence, but their main body is still firm

and compact. My tenderest love to my dear Mar-

tha. I wrote to her the last week. Kisses to all

the little ones, and affectionate attachments to

yourself. Adieu.



 P. S. When I come home I shall lay off the

canal, if Lilly's gang can undertake it. I had

directed Lilly to make a dividing fence between

Craven's fields at Monticello and those I retain.

The object was to give me the benefit of the latter

for pasture. If I stay here, the yard will be pasture

enough and may spare, or at least delay, this great

and perishable work of the dividing fence. At least

 







234        Jefferson's Works



it may lie for further consideration. I hope Lilly

keeps the small nailers engaged so as to supply our

customers in the neighborhood, so that we may not

lose them during this interregnum. Mr. Higgin-

botham, particularly, and Mr. Kelly, should be

attended to.



      TO MARTHA JEFFERSON RANDOLPH.



            WASHINGTON, January 26, 1801.



 MY DEAR MARTHA,-I wrote to Mr. Randolph

on the 9th and 10th inst., and yesterday received

his letter of the 10th. It gave me great joy to learn

that Lilly had got a recruit of hands from Mr.

Allen, though still I would not have that prevent

the taking all from the nailery who are able to cut,

as I desired in mine of the 9th, as I wish Craven's

ground to be got ready for him without any delay.

Mr. Randolph writes me you are about to wean

Cornelia; this must be right and proper. I long to

be in the midst of the children, and have more

pleasure in their little follies than in the wisdom of

the wise. Here, too, there is such a mixture of the

bad passions of the heart, that one feels themselves

in an enemy's country. It is an unpleasant cir-

cumstance, if I am destined to stay here, that the

great proportion of those of the place who figure

are Federalists, and most of them of the violent

kind. Some have been so personally bitter that

they can never forgive me, though I do

 







        Private Papers         235



them with sincerity. Perhaps in time they will

get tamed. Our prospect as to the election has

been alarming ; as a strong disposition exists to pre-

vent an election, and that case not being provided

for by the Constitution, a dissolution of the govern-

ment seemed possible. At present there is a pros-

pect that some, though Federalists, will prefer yield-

ing to the wishes of the people rather t,han have no

government. If I am fixed here, it will be but three

easy days' journey from you, so that I should hope

you and the family could pay an annual visit here

at least ; which with mine to Monticello of the spring

and fall, might enable us to be together four or five

months of the year. On this subject, however, we

may hereafter converse, lest we should be counting

chickens before they are hatched. I inclose for

Anne a story, too long to be got by heart but worth

reading. Kiss them all for me, and keep them in

mind of me. Tell Ellen I am afraid she has for-

gotten me. I shall probably be with you the first

week in April, as I shall endeavor to be at our court

for that month. Continue to love me, my dear

Martha, and be assured of my unalterable and ten-

derest love to you. Adieu.



 P. S. Hamilton is using his uttermost influence

to procure my election rather than Colonel Burr's.

 







236        Jefferson's Works





         TO THOMAS MANN RANDOLPH.



            WASHINGTON, January 29 [1801].

  Yours of the 29th came to hand last night. On

application to the Postmaster General it seems that

I should have put my letters into the office here on

the Thursday instead of Friday. This accordingly

goes to the office this day, which is Thursday, and

therefore ought to get to you on Thursday next.

It may very likely, therefore, go with my letter of

the 23d.



  I am very glad, indeed, to find that Lilly has got

so strong a gang, independent of yours and the

nailers. With respect to yours, I wish you to do

exactly what is most for your own interest, either

keeping them yourself or putting any of them with

mine as best suits your own convenience. I still

think it will be better that such of the nailers as may

be able to handle the axe should be employed with

it till April, that is to say, till Powell comes. It

will be useful to them morally and physically, and

I have work enough of that kind with the canal

and road to give them full employment. Perhaps,

as the blowing to be done in the canal will be tedious,

it might be worth while to keep Joe and Wormely

employed on that in all good weather; if you think

so, they should work separately, as I think that one

hand to hold the auger and one to strike is throwing

away the labor of one. There should be force enough

kept in the nailery to supply our standing custom-

 







        Private Papers          237



ers. There is another reason for employing only

the weaker hands in the nailery. I do not believe

there is rod to emply the whole any length of time,

and none can be got to them till April. I should be

glad [if] Mr. Lilly or Mr. Dinsmore would count the

fagots on hand, and inform me of the quantity by

return of post, as I have forgotten the state of the

supplies on hand when I left home. Mr. Wilson

Nicholas and myself have this day joined in order-

ing clover seed from New York, where it is to be

had, it is said, at twelve dollars. I have ordered five

bushels for you. I believe I have none to sow my-

self. Mr. Jefferson informs me two small casks of

wine are forwarded for me to Milton. Out of this

I wish to you take what I borrowed of you, and I

will be thankful to you to inform me as soon as you

can of the size of the casks, that I may know how

to proportion the equivalent to Mr. Yznardi. It

should be stored in the dining-room cellar, and that

secured by double locks, as I presume it is. With

respect to the election, there is no change of ap-

pearance since my last. The main body of the

Federalists are determined to elect Burr or to pre-

vent an election. We have eight States certain;

they six, and two divided. There are six individ-

uals of moderate disposition, any one of which

coming over to us will make a ninth vote. I dare

not trust more through the post. My tender love

to my ever dear Martha and to the little ones. I

believe I must ask her to give directions to Goliah

 







238        Jefferson's Works



and his senile corps to prepare what they can

in the garden, as it is very possible I may

want it. Accept assurances of my sincere affection.

Adieu.

         TO THOMAS MANN RANDOLPH.



              WASHINGTON, March 2, 1801.



  DEAR SIR,-I mentioned to you in my letter by

Mr. Nicholas that I should be able by this post to

fix a day for the departure of Davy Bowles with

my chair and horses, and that he should be in readi-

ness ; though it is impossible for me to say to a day

"hen I can set out from hence, yet I expect it may

be by the time you receive this. I would therefore

have him set off from Monticello on Saturday the

21st inst. and come to Mr. Heron's in Culpeper, half

a mile this side of Mr. Strode's, where he will arrive

on Sunday the 22d, and will wait for me till I get

there, which, if nothing unexpected occurs, will be

on that or the next day. But circumstances might

arise which might detain me longer, in which case

he must wait here. It is probable Mr. Strode will

press him much to go with the horses to his house,

but he must be charged expressly to continue at

Heron's, which is a house of entertainment. My

stay at home cannot exceed a fortnight, or a very

few days over that.



  I am still at a great loss, Mr. Madison not having

been able to come on as yet, Mr. Gallatin not agree-

 









        Private Papers     239



ing to join us till my return,i and not, knowing as

yet where to get a Secretary of the Navy; General

Smith refused, so did Mr. Langdon. I am now

pressing again on General Smith, but with little

hope of his acceding; in that case my distress will

be very great. Hitherto appearances of reunion are

very flattering, in all the States south of New Eng-

land. A few removals from office will be indispen-

sable. They will be chiefly for real malconduct, and

mostly in the offices connected with the adminis-

tration of justice. I shall do as little in that way

as possible. This may occasion some outcry; but

it must be met. One removal will give me a great

deal of pain, because it will pain you [illegible] it

would be inexcusable [in) me to make that excep-

tion. The prostitution of justice by packing of

juries cannot be passed over. Embrace my dear

Martha for me a thousand times, and kisses to the

young ones. To yourself affectionate esteem and

attachment.



        TO THOMAS MANN RANDOLPH.



            WASHINGTON, March 26, 1801.

I am still here, and not yet absolutely certain of

the moment I can get off. I fear I shall this evening

receive a fourth refusal of the Secretaryship of the

James Madison was the new Secretary of State, and Albert Galla-

tin the new Secretary of the Treasury, but the latter did not take

office immediately. See Lanman's Biographical Annals, p. 506.-

EDS. @#

 







240        Jefferson's Works



Navy. Should it take place, I have fixed on a. tem-

porary arrangement, and in any event expect to get

away in the course of two or four days, so as to be

with you by the time you receive this or very soon

after. It is the getting the naval department under

way which alone detains me. My tenderest affections

to my ever dear Martha and to the little ones.

Friendly attachment to yourself.



           TO CATHARINE CHURCH.(1)



              WASHINGTON, MarCh 27, 1801.

  I owe you a letter, my dear young friend. It is

a debt I pay with pleasure, and therefore should

not have so long delayed but for the importunity

of others more urging and less indulgent. I thank

you for your kind congratulations on the proof of

public esteem lately bestowed on me. That you

write in these sentiments renders them more dear

to me. The post is not enviable, as it affords little

exercise for social affections. There is something

within us which makes us wish to have things con-

ducted in our own way and which we generally

fancy to be in patriotism. This ambition is gratified

by such a position. But the heart would be happier



@#(1) Catharine Church was the daughter of John B. Church, of New

York, an intimate friend of Alexander Hamilton, and of Angelica

Schuyler, his wife, Early in 1802 she was married to Bertram P.

Cruger, by whom she had a large family. (See N. Y. Genealogical

and Biographical Record, vol. vi. pp. 78, 79€) Her mother had long

been a friend and correspondent of Jefferson: EDs. @#

 







        Private Papers         241



enjoying the affections of a family fireside. It is

more than six weeks since I heard from Maria. This

is a proof of her aversion to her pen, and must be

her apology for not answering your letter, which she

received in due time, and resolved to answer every

day for a month before I parted with her last. She

continues to love you as much as ever, and would

give you, as she does me, every proof of it except

writing letters. She is in a fair way to be again a

mother. This will prevent her meeting me at home,

in a short excursion I am about making thither.

Mrs. Randolph always recollects you with her for-

mer affection. She is the mother of four children,

and half of another. I shall endeavor to persuade

them to come and see me here sometimes, and will

not be without hopes it may tempt you to take a

flying trip, which, in summer, is of three days only.

Present my friendly respects to Mr. and Mrs. Church,

and accept yourself assurances of my constant and

affectionate attachment.



         TO THOMAS MANN RANDOLPH.



               WASHINGTON, May 14., 1801.

  I take up my pen merely because I have not writ-

ten to you since my arrival here, and simply to in-

form you I am well. I shall be happy to hear the

same from you, and hope this day's post may bring

me that information, or that Fontrees's wagon will

do it, which, I expect, will arrive to-morrow or next



   VOL. XVIII-IS

 







242        Jefferson's. Works    



day. We are selling off all our vessels except the

13 frigates established by law, bringing 7 of them

to this place and sending out 3 to take exercise. The

expense will be reduced to about half a million annu-

ally, great part of which will be paid this year by

the proceeds of the sales of the others. We fear that

Spain is ceding Louisiana to France, an inauspicious

circumstance to us. Mr. Gallatin's arrival yester-

day renders the organization of our new administra-

tion complete, and enables us to settle our system of

proceeding. Mr. and Mrs. Madison and Miss Payne

are lodging with us till they can get a house. Great

desires are expressed here that Patsy and Maria

should come on, but that I give no hopes of till

autumn. My tenderest affections to Patsy and kisses

to the young ones. Sincere attachment and friendly

salutations to yourself.



  P. S. I have engaged a capital whitesmith, who

is a nailer also, to go on from Philadelphia in July.







         TO THOMAS MANN 'RANDOLPH.



            WASHINGTON, February 21,  1802.

  DEAR SIR,-I am made happy by the regular ac-

counts of the health of the inhabitants of Edgehill.

Here there has been an uncommon degree of sick-

ness, ascribed, of couse, to the mild winter, though

we cannot see why. The House of Representatives

have now been a week debating the judiciary law,

 





        Private Papers         243



and scarcely seem to be yet on the threshold of it.

I begin to apprehend a long session;. however, I be-

lieve all material matters recommended in the first

day's message will prevail. The majority begins

to draw better together than at first. Still there

are some wayward freaks which now and then dis-

turb the operations.



  I know nothing of the person from Loudon who

went to take Shadwell, having never heard of him

till your letter. In a letter to Mr. Craven, which

he received on the day of the date of yours, I ex-

pressed a wish that he could bring some good tenant

to it ; and as the man happened to be with him that

very day, he made an agreement with him to take

all, except the yard, on Peyton's terms; but as to

the yard, that remains to be arranged. I have writ-

ten to him on the subject.



  I forward you two newspapers presenting two ver-

sions of Hamilton's speeches. The language of

insurgency is that of the party at present, .even in

Congress. Mr. Bayard,l in a speech of seven hours,

talked with confidence of the possibility of resistance

by arms. They expect to frighten us, but are met

with perfect sang froid. Present my warmest affec-

tions to my ever dear Martha and the little ones, and

be assured of my constant and sincere attachment.



  @#(1) James A. Bayard of Delaware, one of the most eminent and influ-

ential Federalists in the House of Representatives. He strenuously

resisted the appeal of the Judiciary Act.-EDs. @#

 







244        Jefferson's Works





         TO THOMAS MANN RANDOLPH.



             WASHINGTON, DeCember 19, 1803.



   DEAR SIR,-The post of last night brings us agree-

able information from New Orleans and Natchez.

General Wilkinson arrived at New Orleans from

Mobile Nov. 25, settled immediately with Laussat

all the circumstance of the delivery, and proceeded

next day to Fort Adams, where he would arrive on

the 30th, and expect to meet Claiborne there ready

for embarkation. On the 29th Laussat demanded

possession of the Spanish officers, who instantly

agreed to deliver the place on the next day (30th) at

noon and every thing was arranged for that purpose.

Laussat meant.to garrison the forts with militia, and

to appoint a person to every office civil and military

to take the place of the Spanish incumbents. In all

this he acted in concert with Clarke, mixing many

Americans in the offices, and giving the command of

the militia to a friend of Clarke's. Claiborne em-

barked 100 militia Dec. 1, from Natchez for Fort

Adams, and set out Dec. 2 by land for the same

place, expecting to fall in with and carry on to that

place 80 militia more. He would find Wilkinson

there with all the regulars ready for embarkation,

which probably took place on the ;d or 4th, and

they would arrive at New Orleans the 6th or 7th. If

on the, 6th, we shall hear of it Christmas night ; if not

till the 7th, we shall not hear it till the night of New

 







        Private Papers         245



Year's day.(1) The Marquis of Casa Calva had ordered

the barracks to be got ready to receive and accom-

modate our troops, and proposed ' to embark all his

own, the moment he had delivered the place, on

board an armed vessel then lying ready to receive

them; so that they will be gone before the arrival of

our troops. Laussat would hold the government

about a week. This is for yourself and Mr. Eppes.(2)

My tender love to my dear Martha and Maria, and all

the young ones, and affectionate salutations to

yourself and Mr. Eppes.



      TO MARTHA JEFFERSON RANDOLPH.



                WASHINGTON, Oct, 7, 1804.

  MY DEAR MARTHA,-I arrived here this day week,

having travelled through the rain of that day rather

than stay in disagreeable quarters. I experienced no

inconvenience from it. The Marquis Yrujo arrived

two days after me, and Mr. Madison and General

Dearborn got here the last night. The latter has

left his family in Maine for the winter. Yrujo is said

to be very ill, taken two days ago. I enclose a mag-

azine for Jefferson, merely for the sake of the plate

which may add to the collection for his room.3 You



 @#(1) For an account of the delivery of Louisiana to the United States,

see Henry Adams's History of the United States, vol. €. p. 256.-EDs.



 (2) Maria, Jefferson's youngest surviving daughter, had married her

half-cousin, John Eppes, October 13, 1797. She died April 17, 1804.



-EDS.

 (3) Thomas Jefferson Randolph, Jefferson's eldest grandson, was then

about twelve years old, Eds @#

 







246        Jefferson's Works



will see in the magazine an 'account of a new work by

Mrs. Robinson, Mrs. Cosway, and Mrs. Watson,

which must be curious.' A great deal of sickness

has been and still exists in this place : I trust, how-

ever, that the hard frosts we had a week ago have

destroyed the germ of new cases. The sickness of the

summer has been so general that we may consider the

exemption of our canton from it as very remarkable.

Four weeks to-morrow our winter campaign opens.

I dread it on account of the fatigues of the table in

such a round of company, which I consider as the

most serious trials I undergo. I wish much to turn it

over to younger hands and to be myself but a guest

at the table and free to leave it as others are; but

whether this would be tolerated is uncertain. I hope

Mr. Randolph, yourself, and the dear children con-

tinu