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Littleton W. Tazewell to Thomas Jefferson, 15 May 1812

From Littleton W. Tazewell

Norfolk May 15. 1812.

Dear Sir;

A long absence from this place, occasion’d by my attendance on the Court of Chancery in Wmsburg, prevented my receiving your letter of the 12th Ulto until within a few days past— I embrace this earliest occasion (since it has been in my power) to acknowledge its receipt, and to tender you my thanks for its inclosure. The remuneration you have made me for my professional services in Livingston’s suit is satisfactory. So far as these services were in fact usefully employed for you, the labor was inconsiderable, and altho’ I dedicated much more of my attention to the merits of the controversy, than to the consideration of the question upon which this cause was finally decided, yet the pleasure and (if I do not flatter myself too much) the improvement which I derived from the study of a subject so new, and heretofore deemed to be so little connected with the duties of my profession, I have always regarded as ample equivalents for the labor and time bestowed upon it.

My own opinion was, that this controversy should not have been permitted to pass away without a decision upon its merits. This opinion was founded not only upon a firm conviction (the result of much reflection) that the question upon its merits was clearly in our favour, but also on the belief, that even if I erred in this respect, my error could produce no mischief, since the point upon which the cause finally turned, might have been resorted to at last, even if we had failed upon the merits—. Added to these considerations there was another which had great influence upon my mind—This cause involved a question of high importance to the future political destiny of our Country, inasmuch as it necessarily called for the decision of the proposition, whether the Chief Magistrate, who is compelled by his duty to act according to his discretion, is responsible to any Individual, for an act of mere indescretion—The decision of this question is one in my conception of vital moment to the cause of free government, and ought not to have been avoided, in a case where its decision even if adverse could (as I have before stated) have produced no injury to you—. My associates and myself differed however upon this point. They thought, that the objection to the Jurisdiction could only be taken by plea in abatement, and thinking so were of opinion, that your interests ought not to be put in hazard even, for the purpose of settling either abstract political questions, or of trying a right of property in others who seemed to take no interest in the controversy. If they were right in their first opinion, they were unquestionably so in the last; and concurring with them as I did as to this last, I was unwilling further to press my dissent to the first, and therefore yielded to their proposed plan of defence.

The manner in which this cause went off, coupled with the personal attack made upon you by Mr Livingston, created a duty upon you to explain to the public (before whose bar You had been arraigned) the reasons and motives of your conduct in this transaction. And the mode you have adopted to make this explanation is certainly a very proper one, especially as it is that which he himself selected—Your publication will I think convince all who will read and attentively examine it of the propriety of your conduct, and of the just and legal right of the U. S. to the property in contest. I say so with more confidence, because your reasoning upon this subject produced this effect upon my own judgment,1 which was originally very decided against the claim of the U. S., altho’ I never doubted as to your not being responsible to any Individual for that which you had done.

I wish that in preparing this work for the press you had given a different arrangement to its parts. The chronological order of events which you have pursued, altho’ generally the best where facts alone are the subjects to be discussed, yet by dividing often times weakens the effect of the general argument. Hence more attentive examination will probably be required to judge correctly of the great merit of this little work, than is perhaps to be expected from the mass of readers. And as “the publick” is the forum to which it is addressed, the character of the mass of readers would probably render a different method more desireable. There is nothing which I would wish retrenched, and but little indeed which I could have desired to be added to your pamphlet; even the arrangement of its contents I would not have alter’d, so far as attentive readers are concerned—

We have now both of us done with this subject,2 most probably forever, but as it has heretofore engaged much of our attention, before I bid adieu to it, I will state a single idea, which occurred to me during its investigation, and which in your hands, may possibly be moulded into something useful to those who may be engaged in it hereafter, should it ever again be revived—Whatever may be the opinion of others, relative to the right under the French Law, to what may properly be called “Alluvion,” yet all must admit, that the right to what in that law is called “Atterrissement,” is clearly vested in the nation. And this not less by the positive ordinances of the sovereigns, than under the settled and admitted principles of the Customary or Common Law of France. If therefore it can be shewn, that the batture is “Atterrissement,” the question is at once settled— Mr Livingston and his advocates seem to have been aware of this, and therefore they wisely attempted at the outset to prove the negative, by shewing what “Atterrissement” was, thereby shewing that the batture did not fit this description—See Living: Exam: 28. Dupon: XII. XIII. In your pamphlet altho’ you do not yield assent to this definition directly, yet you seem to regard “Atterrissement” as a generic term, of which “Alluvion” is a species, see page 33—. According to my conception however both these propositions are erroneous—Each of the terms used by the French writers when speaking upon the subject of augmentation viz: “accroissement, atterrissement, alluvion &c” are specific terms, denoting different kinds of land in contradistinction to water. If I be right in this conjecture, (for it is nothing more) all the authorities are reconciled, the sovereigns who enacted so many ordinances upon this subject are rescued from the folly of tautology, and the case is decided.

The term “Atterrissement” I take to be a derivative from the obsolete neuter verb “atterrir,” which means (as its components “à terre” plainly shew) to approach (“a la terre”) to the land. This verb when in use was a technical term, used in navigation, and may properly be translated in our seamans language “to near the land,” or “to get soundings”—Another acknowledged derivative3 of this verb is the substantive “atterrage,” which altho interpreted by some of the lexicographers to mean “the driving of a ship near the coast,” yet I understand to be another term of the nautical art, and to denote what our seamen would call “soundings”—If this be right, then the several terms “atterrage, atterrissement, alluvion,” have each their appropriate signification. “Atterrage” denoting all the land of or belonging to the shore (“a la terre”) which is perpetually covered with water, that is all the land between the margin of the fathomless deep and the low water line. “Atterrissement”4 denoting the beach itself, that is all the land of or belonging to the shore (“a la terre”) which is between the low and high water line, & which of course is not perpetually, but only occasionally though5 regularly covered with water. And “Alluvion” denoting that part of the shore itself immediately contiguous to the beach, which having been originally annexed to the dry land (“a la terre”) by washing, and being consolidated with it, is like the other parts of that shore never covered with water, except by accidental inundation—If dry land be formed elsewhere than contiguous to the shore and “atterrissement,” that is to say, if it be formed in the river or sea, the land so formed is not “alluvion,” but “accroissement”—This “Accroissement” must have annexed to it its own “Atterrissement & Atterages,” and may be augmented by “Alluvion” also—If6 land not dry but7 occasionally and regularly covered with water be formed elsewhere than contiguous to the shore, that is to say, if it be formed in the river or sea, the land so formed is not “Atterrissement,” because it does not belong to the shore (“a la terre”) but it is called “Assablessement, Javeaux &c” according to the substance of which it is composed, whether of sand or mud &c—“Alluvion” and “Accroissement” are land in fact, so soon as their formation is complete, but they do not acquire8 “la terre” land; until9 time shall have given to the name of10 oblivion the manner of their formationsBut “Atterrage Atterrissement Assablissement Javeaux &c” can never become land either in fact or name,11 until they pass through the stage of “Alluvion” or “Accroissement”—Until then they are accessaries “a la terre,” drawing no appendage with them, while “Alluvion and Accroissement” are “les terres” themselves, and as such principals, leading all the others as followers in their train—. As “Atterrage Atterrissement Assablissement Accroissement & Alluvion” may all by passing through the several gradations become “la terre” dry12 land, so “la terre” itself, may lose its great character of a principal, and become an accessary, like one of these, since13 in the conflict between the two great elements earth and water, the augmentation of the one is the diminution of the other—It is true “la terre” can never become either “Alluvion or Accroissment,” because as I have before said, these so soon as their formation is complete are dry land in fact—But each of these three by diminution, that is the gaining of the water upon them, may successively become “ atteragement and atterrage,” and if this diminution be irregular, they may also become “assablissement or Javeaux,” according to the substances of which they are formed—

There are some other suggestions probably more wild than this which I intended to offer to you, but I have wearied myself and must have fatigued you,14 permit me therefore to tender you my assurances of very high respect and to conclude.

Littn: W Tazewell

RC (DLC); dateline at foot of text; endorsed by TJ as received 27 May 1812 and so recorded in SJL.

living: exam: 28 refers to Livingston, Address, pt. 5, p. 28. dupon: xii. xiii. refers to Peter Stephen Du Ponceau, Opinion on the case of the alluvion land or batture, near New-Orleans (a separately paginated section of the previous publication), xii–xiii.

1Word interlined in place of “mind.”

2Word interlined in place of “controversy.”

3Manuscript: “derivavite.”

4Tazewell mistakenly interlined an “i” above this word to make “Atterrissiment.”

5Word interlined in place of “and.”

6Tazewell here canceled “the ‘atterissement’ be composed.”

7Preceding three words interlined in place of an illegible word.

8Preceding sixteen words interlined in place of “<may> must both become.”

9Word interlined in place of “which.”

10Preceding three words interlined.

11Preceding five words interlined.

12Word interlined.

13Word interlined.

14Tazewell here canceled “’ere this.”

Index Entries

  • Address to the People of the United States, on the measures pursued by the Executive with respect to the Batture at New-Orleans (Livingston) search
  • Batture Sainte Marie, controversy over; communications between TJ and his counsel concerning search
  • Batture Sainte Marie, controversy over; L. W. Tazewell on search
  • Du Ponceau, Peter Stephen; Opinion on the case of the alluvion land or batture, near New-Orleans search
  • Jefferson, Thomas; Writings; The Proceedings of the Government of the United States, in maintaining the Public Right to the Beach of the Missisipi, Adjacent to New-Orleans, against the Intrusion of Edward Livingston search
  • law; French search
  • Livingston, Edward; Address to the People of the United States, on the measures pursued by the Executive with respect to the Batture at New-Orleans search
  • Livingston, Edward; L. W. Tazewell on search
  • Opinion on the case of the alluvion land or batture, near New-Orleans (Du Ponceau) search
  • Tazewell, Littleton Waller; and Livingston v. Jefferson search
  • Tazewell, Littleton Waller; and TJ’s statement on the batture case search
  • Tazewell, Littleton Waller; letters from search
  • Tazewell, Littleton Waller; TJ pays search
  • The Proceedings of the Government of the United States, in maintaining the Public Right to the Beach of the Missisipi, Adjacent to New-Orleans, against the Intrusion of Edward Livingston (Thomas Jefferson); L. W. Tazewell on search