James Madison Papers

To James Madison from Edward Livingston, 13 July 1808

Washington 13. July 1808.


In the letter I had the honor to address to you on the 6th. May last, I offerred propositions which after making every allowance for the illusions of self interest I can not but think highly evincive of the justice of my claim. They were also intended to shew the Confidence I then felt that the President would Seize the opportunity they offerred of reviewing a determination made on an ex parte State ment which I have offerred and am Ready to prove false in fact and erroneous in law. It having been deemed inconsistent with Official Duty to examine my proofs or listen to my argument, I must at present Content myself with having Done every thing that a sense of justice & the extreme of moderation could require. The Representatives of the People to whom I am referred ⟨   ⟩ must determine Whether they are Competent to the Trial of a title, and whether they intended to invest the President with the power of reversing the decision of a court, of opposing the execution of its Decrees, and depriving a Citizen of his property without even the form of trial or affording him the Means of Defence

I must however Sir now be permitted to direct Your Attention to another Circumstance in this Transaction which is of the utmost Consequence not only to me but to the territory in which I reside. From the verbal Communications I had the honor to Make to you at Washington, supported by the Copy of a record which I delivered for the Presidents perusal, it appeared that when I first heard a Warrant had been received by the Marshall to Divest me of my property I applied by petition to the superior Court who on hearing, granted an injunction ordering the Marshal to desist from the execution of the Warrant but that this officer supposing the Authority of the President paramount to that of the Court proceeded to execute his orders.

For this Contempt offerred to the highest judicial Authority in this Country I might have obtained an Attachment and an Order for restitution, but I was unwilling to exhibit to the inhabitants of the territory the degrading Spectacle of a court unable to execute its Decrees or the afflicting one of a Violent Struggle, perhaps a bloody Conflict between the Ministerial officers of Judicial and executive power. Persuaded that the Warrant had been issued in Consequence of Some gross Misrepresentation of facts, I desisted from any further prosecution of my appeal to the laws and thought that propriety required me to suspend any to the public untill I should have endeavoured to rectify the errors under which I supposed the President had acted. With this View I silently and Assiduously applied myself to the removal of those pecuniary difficulties, which this unexpected proceeding had produced and as soon as this was sufficiently effected Came on with a hope bordering on conviction that When heard (and I considered this as a matter of Course) I could Demonstrate to any reasonable Man Not only that I had been hardly Dealt with in the Manner, but that there was not even a Colour of title in the United States to the land of which I had been deprived. As however it has not been deemed expedient to admit even a possibility of error or misrepresentation, as the appeal I made to the Candor of the executive has failed it may become necessary for me to prosecute that which I offerred to the justice of the Courts, but this Statement will Shew you Sir how important it is for me to Ask which I now most respectfully Do, Whether it is the intention of the President that the Marshal shall use the force placed at his Disposal to oppose the Decrees of the territorial judiciary. If as I hope and would wish to believe, the ordinary Course of justice is not to be interrupte⟨d,⟩ I have only to request that orders conformable to Such intentions may be sent to the Marshall Whose Conduct has Shewn that he is under a Contrary impression and it would be Desireable to avoid that opposition to which his mistaken sense of Duty might lead. But if the presidents warrant is to be supported by force against the process of the Court I ought to be apprized of it that I may then determine whether the Obligations I owe to my family & my professional Duty to a Widow & two Orphans whose rights were Committed to my Care will permit me to Sacrafice their interest in order to preserve the peace of the territory Or whether I should assert my rights and leave the responsibility where it ought to rest. If these lands Do not belong to the United States none will fall upon me & I am willing to risque every thing upon the Decision, whenever it shall be again made by impartial & intelligent men

I shall depart this evening for Philadelphia, & purposing to embark from thence in three or four Days, I wish to Carry with me the presidents Determination. I beg therefore that so soon as may be convenient you would favor me with your Answer and at the Same time would have the goodness to return the Copy of my petition for an injunction Which I had the honor to Deliver to you for the president in May last. I am Sir very respectfully Your Mo Obdt. Ser

Edw Livingston

DNA: RG 59—ML—Miscellaneous Letters.

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