Thomas Jefferson Papers

To Thomas Jefferson from James Madison, 11 May 1808

Capt: Winston’s May 11. 1808

Dear Sir

Shortly after you set out from Washington, I was called on by Mr. E. Livingston, and requested to be the channel of a representation to the Executive on the subject of the Batture. Without adverting to the nature of the question involved, which connects it rather with the Dept. of Treasury than of State. I did not refuse the request; and recd. from him afterwards the letter and documents herewith enclosed to be forwarded to you. I had an oppy. however of letting him know, that the communication ought to have been made thro’ Mr. Gallatin, and that I presumed it wd. be thro’ him that the result of his application would be learned. He put into my hands also the newspaper containing his appeal to the public some time ago, which I believe we both saw soon after its appearance.

I have not had time to do more than skim over his printed argument. I observe he labors more to establish the identity of the French with the Roman & Spanish law, than to show that the proceeding on which his title depends, was under the Spanish, not the French law. At the time this took place France retained the possession, after having executed a Treaty of alienation. If France had a right to do what was done, it would seem that the French not the Spanish law, wd. be the rule in that as in all other transactions during the interval of non delivery of the ceded Country: If the proceeding was not of right, the title derived from it must be a nullity also; unless made good by some subsequent sanction under the Spanish authority. To consider France as the Trustee of Spain, would make the Spanish code her guide, and viciate all proceedings under the French code. To consider France as the sovereign de facto, not de jure, wd. make the French law, equally the law de facto, tho’ not de jure, and exclude the Spanish law as the criterion in the case. Unless therefore the French law of Alluvion be in reality the same with that of Spain, the title of Mr. E. will depend on the course of things relating to it, after the possessory transfer to Spain. These are very hasty ideas, and wd. not be hazarded without a knowledge that if incorrect they will be superseded by your better view of the subject.

I arrived here on Monday morning, having been stopped on sunday night by the high waters of the North river, which I passed in a boat a little above Norman’s ford, the morning after. I left Washington on Saturday abt. 10 OC. the wind so high that I was obliged to go up to the Bridge. This prevented my getting farther than Ellicots Mills. The next day, notwithstanding occasional obstructions in the road, I should have reached this, but for the impassable state of Normans ford. At present I continue rain bound; and how I am to cross the Waters before me I know not. I see no certainty but in falling down to German[. . . .], where there is a good boat; but it will add 14 or 15 miles to the distance.

Yrs with constant attachment & the highest respect

James Madison

DLC: Papers of Thomas Jefferson.

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