To Albert Gallatin
Monticello Sep. 27. 10.
Yours of the 10th came safely to hand and laid me under new obligations for the valuable observations it contained. the error of 12 f. instead of 7. for the rise of the batture really sautoit aux yeux, and how I could have committed it at first or passed it over afterwards without discovery & having copied Pelletier’s plan myself, is unaccountable. I have adopted also most of your other corrections. you observe that the arguments proving the batture public, yet prove it of such a character that it could not be within the scope of the law of Mar. 4. against squatters. I should so adjudge myself; yet I observe many opinions otherwise, and in defence against a spadassin it is lawful to use all weapons. besides, I have no pretensions to be exclusively the judge of what arguments are sound & what not. I give them therefore that they may weigh with those who think they have weight & have a right to decide for themselves. that act of Congress moreover was evidently respected particularly in the order under which the removal was made.
With respect to the arrangement of materials in my Statement, I know it is not such as Counsel would employ in pleading such a cause; it is not such as I would have made myself in that character. it was determined by other considerations. I thought it possible the case might be dismissed out of court by a plea to the jurisdiction. I determined, on this event, to lay it before the public, either directly, or thro’ Congress. respect for my associates, for myself, for our nation, would not permit me to come forward, as a criminal under accusation, to plead and argue a cause. this was not my situation. I had only to state to my constituents a common transaction. this would naturally be by way of Narrative, or Statement of the facts, in their order of time, establishing these facts as they occur, & bringing forward the law arising on them & pointing to the Executive the course he was to pursue. I suppose it more self-respectful to present it as a history & explanation of what had taken place. it does not indeed, in that form, display the subject in one great whole. but it brings forward successively a number of questions, solving themselves as they arise, & leaving no one unexamined. and the mind, after travelling over the whole case, and finding, as it goes along, that all has been considered, & all is right, rests in that state of satisfaction which it is our object to produce. in truth I have never known a case which presented so many distinct questions, having no dependance on one another, nor belonging even to the same branches of jurisprudence. after all I offer this as explanation not justification of the order I adopted.
What the issue of the case ought to be no unbiassed man can doubt. what it will be no one can tell. the Judge’s inveteracy is profound, and his mind of that gloomy malignity which will never let him forego the opportunity of satiating it on a victim. his decisions, his instructions to a jury, his allowances & disallowances & garblings of evidence, must all be subjects of appeal. I consider that as my only chance of saving my fortune from entire wreck. and to whom is my appeal? from the judge in Burr’s case to1 himself & his associate judges in the case of Marbury v. Madison. not exactly however. I observe old Cushing is dead. at length then we have a chance of getting a republican majority in the supreme judiciary. for ten years has that branch braved the spirit & will of the nation, after the nation had manifested it’s will by a compleat reform in every branch depending on them. the event is a fortunate one, and so timed as to be a god-send to me. I am sure it’s importance to the nation will be felt, and the occasion employed to compleat the great operation they have so long been executing, by the appointment of a decided republican, with nothing equivocal about him. but who will it be? the misfortune of Bidwell removes an able man from the competition. can any other bring equal qualifications to those of Lincoln? I know he was not deemed a profound Common lawyer; but was there ever a profound common lawyer known in one of the Eastern states? there never was, nor never can be one from those states. the basis of their law, is neither Common, nor Civil. it is an original if any compound can so be called. it’s foundation seems to have been laid in the spirit & principles of Jewish law, incorporated with some words & phrases of Common law, and an abundance of notions of their own. this makes an amalgam sui generis; and it is well known that a man first & thoroughly initiated into the principles of one system of law, can never become pure & sound in any other. Ld Mansfield was a splendid proof of this. therefore I say there never was, nor can be, a profound Common lawyer from those states. Sullivan had the reputation of preeminence there as a common lawyer. but we have his History of land titles, which gives us his measure. mr Lincoln is I believe considered as learned in their laws as any one they have. Federalists say that Parsons is better. but the criticalness of the present nomination puts him out of question. as the great mass of the functions of the new judge are to be performed in his own district, Lincoln will be most unexceptionable, and2 acceptable, there; & on the supreme bench3 equal to any one who can be brought from thence. add to this his integrity, political firmness, & unimpeachable character, & I believe no one can be found to whom there will not be more serious objections.
You seem to think it would be best to ascertain the probable result before making a proposition to Congress to defend Livingston’s suit. on mature consideration I think it better that no such proposition should be made. the debates there would fix the case as a party one, and we are the minority in the judiciary department, & especially in the federal branch of it here. till Congress can be thoroughly put in possession of all the points in the case, it is best they should let it lie. Livingston by removing it into the Judiciary, has fairly4 relinquished all claims on their interference. I am confident5 that Congress will act soundly, whenever we can give them a knolege of the whole case. but I tire you with this business, and end therefore with repeating assurances of my constant attachment & respect.
RC (NHi: Gallatin Papers). PoC (DLC); at foot of first page: “Mr Gallatin.”
sautoit aux yeux: “jumps to the eyes,” i.e., “leaps off the page.” spadassin is a French term for a ruffian. John Marshall was the judge whose inveteracy is profound. TJ evidently believed that the Scottish roots or early training in the civil law of William Murray, 1st Earl of mansfield, undermined his subsequent ability to interpret the English common law correctly as chief justice of the Court of King’s Bench (ODNB description begins H. C. G. Matthew and Brian Harrison, eds., Oxford Dictionary of National Biography, 2004, 60 vols. description ends ). The work on land titles was James Sullivan, The History of Land Titles in Massachusetts (Boston, 1801; Sowerby, description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, 1952–59, 5 vols. description ends no. 2155).
1. TJ here canceled “his own.”
2. Reworked from “be as unexceptionable, as.”
3. Manuscript: “beach.”
4. TJ here canceled “dispense.”
5. Preceding three words interlined in place of “I should not fear.”
- An Act for granting lands to the inhabitants and settlers at Vincennes and the Illinois country (1791) search
- Batture Sainte Marie, controversy over; pleadings in search
- Bidwell, Barnabas search
- Congress, U.S.; and batture controversy search
- Cushing, William; death of search
- Gallatin, Albert; and TJ’s statement on the batture controversy search
- Gallatin, Albert; letters to search
- Jefferson, Thomas; Opinions on; batture case pleadings search
- Jefferson, Thomas; Opinions on; J. Marshall search
- Jefferson, Thomas; Opinions on; New England law search
- Jefferson, Thomas; Opinions on; Supreme Court search
- Jefferson, Thomas; Writings; statement on the batture case search
- Jewish law search
- law; Jewish search
- Lincoln, Levi; as potential Supreme Court justice search
- Mansfield, William Murray, 1st Earl of; TJ on search
- Mansuy Pelletier, Charles V.; and batture surveys search
- Marshall, John; TJ on search
- Mississippi River; water level of search
- New England; TJ on law in search
- statement on the batture case (Thomas Jefferson); copies of returned to TJ search
- Sullivan, James; The History of Land Titles in Massachusetts search
- Supreme Court, U.S.; replacement for W. Cushing search
- Supreme Court, U.S.; TJ on search
- The History of Land Titles in Massachusetts (Sullivan) search