From Littleton W. Tazewell
Norfolk. July 5. 1810.
Your letter of the 28th Ulto was received yesterday, after I had forwarded mine of that date to you, or it would have been then attended to. Altho’ I am not a practitioner at the bar of the Fœderal Circuit Court, and shall have no other inducement for attending at Richmond when it may be necessary, but to attend to this particular caze; yet the confidence which you have reposed in me, by selecting me (under such circumstances) as one of your advocates, requires that I should not hesitate to assure you, that I will with pleasure undertake your defence, and render you all the aid in my power, in the conduct of the suit which Mr Livingston has instituted against you—1
Considering myself now as embarked in this cauze, I feel it my duty, to suggest to you the propriety of filing a plea in abatement of this action, before the time allowed by law for the filing of such a plea shall expire. The ground of this defence will be, that the Fœderal Courts can entertain jurisdiction of no cause brought, by a Citizen of the U.S., except of suits instituted by Citizens of one State, against Citizens of another State. Now Mr Livingston is a citizen of the Territory of Orleans; and it has often been decided by the Fœderal Courts I believe, that the Territories of the U.S. were not States, within the meaning of any of the Acts of Congress—. It is true the only effect of this plea, even if it succeeds, will be, to stop the present suit; leaving your adversary at liberty by changing his residence to institute a new suit in the same Court hereafter. But while such an effect would give to you the chance of escaping from further annoyance, inasmuch as it is not presumable that Mr Livingston would change his residence, merely for the purpose of giving to himself the right of suing in a particular Court, it would at the same time allow a further oppy, for the public mind which is now heated upon this subject, to settle down, and thereby furnish a greater probability, of a cool and dispassionate enquiry hereafter, before the Jury who will be impanelled to try this cause. Time may effect too other changes, which I should deem essentially beneficial to your interest should they occur—These it is unnecessary to state, they will probably present themselves at once to you without my suggestion. Of the validity and success of this plea I have no doubt myself; but even if I should be mistaken it can do no harm, since the only result of its being overuled will be, the award of a Respondeat Ouster, when the whole defence upon the merits will be as open as now.
I must request of you to be informed Sir, when it is probable the trial of this Cause will come on, and to furnish me in due season with all the information in your power touching its defence.
Littn: W Tazewell
RC (DLC); dateline at foot of text; endorsed by TJ as received 12 July 1810 and so recorded in SJL.
Tazewell’s preceding letter was dated not yesterday but 3 July 1810. respondeat ouster: “let him make further answer,” a judgment that the party whose plea has been denied must now plead on the merits of the case (Black’s Law Dictionary description begins Bryan A. Garner and others, eds., Black’s Law Dictionary, 7th ed., 1999 description ends ).
1. Tazewell canceled “mr Hay” at the start of the next paragraph.
- Batture Sainte Marie, controversy over; communications between TJ and his counsel concerning search
- Batture Sainte Marie, controversy over; TJ assembles counsel search
- Tazewell, Littleton Waller; and batture controversy search
- Tazewell, Littleton Waller; letters from search
- United States Circuit Court, Virginia District; and batture controversy search