Thomas Jefferson Papers
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Thomas Jefferson to George Hay, 7 October 1810

To George Hay

Monticello Octob.1 7. 10.

Dear Sir

My statement of Livingston’s case has been submitted to the President, Mr Smith & mr Gallatin, and is now in the hands of mr Rodney. when I recieve it from him, I shall give it a thorough revisal, and avail myself of their suggestions for it’s correction; which done it shall be immediately deposited with yourself & mr Wirt. mr Tazewell has had the perusal of it; and his letter to me containing some observations on the pleadings to be adopted, I will transcribe them & pray you to communicate them to mr Wirt.

‘With respect to the plea to the locality of the action, I do not see any necessity or propriety for, or in filing such a plea. I know not what is the nature of the action brought against you, whether it is Trespass or Case. but one or the other of these actions, I take it for granted, it must be, and whether the one or the other, the same result must take place. in either case the Declaration must describe the locality of the subject truly or untruly. if it describes it truly, then instead of your suggesting this fact of locality in a plea to the jurisdiction of the court, as the fact will be already spread upon the record by the pl. himself, such a plea would certainly be unnecessary, if not improper. the proper course of proceeding in this event, I take to be a special demurrer (vide 2. Black. Rep. 1070.) but even this I should feel disposed to avoid, and to trust rather to a motion in arrest after verdict, since by that means we should obtain the advantage of first trying the question upon it’s merits, without weakening the defence upon mere matters of form. should the declaration however recite the locality of the subject untruly, then the proper course of proceeding I take it, is to object to the introduction of evidence relative to any other land than that stated 1. Stra. rep. 646. in this event too, it will not be difficult, I apprehend, to draw out an opinion from the court as to the merits, before the question as to form is presented. whereas the plea suggested [to the locality] must necessarily draw down a demurrer from the pl. in which we shall be compelled to join, and then the case will very probably go off upon it’s form only, while I understand it is highly desirable that the merits should be settled, if that can be done without detriment to you personally.

Having always regard to this latter circumstance, as being one most important to you individually, if we go into special pleading at all I should strongly advise special pleas suggesting that the act complained of was done by you in your official capacity as President of US. acting under the best dictates of your own understanding, with the advice of the Attorney General, & without malice. by this course, as I understand the law, we are put safe in any possible event. and perhaps it is of more moment to the Country, to have the question presented by such pleading judicially decided at once, than to settle to whom the Batture belongs.’—so far mr Tazewell. I will immediately inclose him the declaration you sent me, being useless to myself. I never had any relish or respect for the art of pleading; and therefore am no judge of it. I believe that our law allows as many pleas to both law & fact as the def. chuses. I am satisfied the last one suggested by mr Tazewell, that the act was official & without malice, would suffice for myself; but I stand pledged to a certain degree to the territory of Orleans not to abandon their title, and I suppose that our right of using several pleas may be made to protect their interests as well as my own. all this I leave to you gentlemen to settle, and tender you assurances of my great esteem & respect

Th: Jefferson

P.S. it would seem that the general issue would2 defend the right of Orleans to the batture, & the correctness of the Executive proceedings, the special plea that I did it as Pr. US. would protect me, and the motion in arrest of judgment would give us in the last resort the benefit of the objection to the locality.

PoC (DLC); brackets in original; at foot of first page: “<Littleton W. Tazewell> Hay George”; endorsed by TJ.

1Reworked from “Sep.”

2TJ here canceled “justify.”

Index Entries

  • Batture Sainte Marie, controversy over; communications between TJ and his counsel concerning search
  • Batture Sainte Marie, controversy over; pleadings in search
  • Blackstone, William; Reports of Cases Determined in the Several Courts of Westminster-Hall, from 1746 to 1779 search
  • Gallatin, Albert; and TJ’s statement on the batture controversy search
  • Hay, George; and TJ’s statement on the batture case search
  • Hay, George; letters to search
  • Jefferson, Thomas; Opinions on; batture case pleadings search
  • Jefferson, Thomas; Writings; statement on the batture case search
  • Madison, James; and TJ’s statement on the batture case search
  • Orleans Territory; TJ on batture rights of search
  • Reports of Adjudged Cases in the Courts of Chancery, King’s Bench, Common Pleas, and Exchequer (J. Strange) search
  • Reports of Cases Determined in the Several Courts of Westminster-Hall, from 1746 to 1779 (Blackstone) search
  • Rodney, Caesar Augustus; and TJ’s statement on the batture case search
  • Smith, Robert; and TJ’s statement on the batture case search
  • statement on the batture case (Thomas Jefferson); copies of returned to TJ search
  • statement on the batture case (Thomas Jefferson); sent to TJ’s attorneys search
  • Strange, John; Reports of Adjudged Cases in the Courts of Chancery, King’s Bench, Common Pleas, and Exchequer search
  • Tazewell, Littleton Waller; and TJ’s statement on the batture case search
  • Wirt, William; and TJ’s statement on the batture case search