From William Pinkney
Thursday Night [24 February 1813]
The Case of Livingston ag’ Dorgenoy1 (formerly Marshall of the Territory of orleans) now depending before the Supreme Court of the U.S. involves some Questions of Importance to the Government—and I presume that it will be proper that I should argue them. The Case has been opened on the part of Livingston and the further Argument has been postponed to afford Time to Counsel to look fully into the Subject. I do not know whether it is wished that (considering the Mass of Business with which I am literally overwhelmed) any Assistance should be afforded on this occasion. I do not ask it—but if Mr Jones (the District atty here) should be required to join me in the argument I shall certainly take it in very good part.
The incessant occupation which the Court find for me will I am sure be accepted by you as an Excuse for my not having the Honour to call from Time to Time as otherwise I should do. I have the Honour to be with sincere Respect & Attachment Dr Sir your faithful & Ob Servt.
PS. The Court expect that the Case of Livingston shd. be resumed early in next Week.
RC (DLC). Undated; dated 1814 in the Index to the James Madison Papers; conjectural date assigned here on the basis of 24 Feb. 1813 being the first Thursday between 18 Feb. and 16 Mar. 1813, when Livingston v. Dorgenois was argued before the U.S. Supreme Court.
1. Livingston v. Dorgenois was part of Edward Livingston’s effort to reclaim or obtain compensation for the New Orleans Batture land, of which U.S. marshal Francis Joseph Le Breton Dorgenois, acting on Thomas Jefferson’s orders as conveyed by JM, had dispossessed him in 1808 (for the Batture controversy, see PJM-PS description begins Robert A. Rutland et al., eds., The Papers of James Madison: Presidential Series (6 vols. to date; Charlottesville, Va., 1984–). description ends , 2:34 n. 5). The proceedings of the case in the district court at New Orleans were stayed in accord with the U.S. district attorney’s argument that the actual defendant was not Dorgenois, but the United States, which could not be sued. Livingston then appealed to the Supreme Court, where Pinkney also asserted, among other arguments, that the federal government was not suable. The case was, however, remanded to the district court, with orders that a judgment be made. On 4 Aug. 1813, the district court found that the government’s action had been illegal and ordered that the property be returned to Livingston (7 Cranch 577–89; Hatcher, Edward Livingston, 165).