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Littleton W. Tazewell to Thomas Jefferson, 27 September 1810

From Littleton W. Tazewell

Norfolk. Septr 27. 1810.

Dear Sir;

Yours of the 18th Ulto was duly received—Since its receipt, I have occupied myself during every interval of leisure, in examining the narrative which it inclosed—And in returning this document to you again (conformably to your request), I have to offer you my thanks, for the pleasure as well as information which the perusal of it has given me.

There is but one doubt which has presented itself to my mind, in investigating the various subjects relative to the title of the Batture, which you have so ably discussed. This I will take the liberty to state to you, under the hope, that your better information upon this topick, may enable you to dispel it.

One of the propositions asserted by you is, that admitting the Batture to be Alluvion land, yet by the Laws of France, Alluvions did not belong to the riparious proprietors, but to the Sovereign— This proposition is sustained, 1. by a reference to the General Customary or Common Law of France, as stated by Pothier Guyot and La Rasle; and 2. by a reference to the edict of Louis the 14th in 1693.

With respect to the General Customary or Common Law of France, I do not understand its provisions to be such as you seem to suppose them—Guyot and La Rasle in other parts of the same works to which you have referred certainly lay down the law differently—The former in his Rep: Univ. voce Alluvion, after stating the disposition made of Alluveins by the Roman Law, adds, “Cette disposition du droit Romain, est suivie dans le Royaume, excepté neanmoins en Franche-Compte Etc.” Obviously meaning thereby, that the Roman Law of Alluvein is the General Law of France, altho’ in Franche-Compte and other districts of that Kingdom a different rule obtains, by virtue of their particular Customs. And La Rasle in the Encyclop: Method: Jurisprudence. Alluvion, declares the same thing, nearly in the same words. These writers then, if not authorities directly against your position, must certainly be put aside altogether, because of their inconsistency with themselves, and then your doctrine stands supported by Pothier alone.

Now Pothier however respectable, when opposed by many other writers, both before and after him, can hardly be received as authority; especially when his opinions are opposed to the clear precepts of the Roman Law, which is acknowledged on all hands to be, the great substratum of all the laws of the Countries on the West side of the Continent of Europe. And we have only to refer to the writings of Damoulin, Denizart, Renusson, and of the two Ferrieres, to discover, that the opinion of all these equally respectable Jurists are in opposition to Pothier. Among these too, the writings of the two Ferrieres it seems to me ought most to be relied on, because they were both Professors of Law in the University of Paris, and therefore more probably acquainted at least with the particular Customs of Paris than Pothier, and these Customs of Paris are specially made the Law of Louisiana—I am inclined therefore at present to doubt the correctness of the first part of your proposition.

This I admit would be of no consequence, if the Edict of Louis the 14h in 1693 applies to the subject. But I do not see that this is by any means established. For admitting the preamble of this edict, which asserts the Royal title to all “Atterissements et Accroissments,” to comprehend Alluvions also, (which I do not think is quite certain) yet you yourself contend, that this preamble makes no part of the enacting clauses of the edict itself. Now the ancient systems cannot be alter’d, by any thing but a positive Statute, enacting the change—Mere recitals of supposed rights in the Crown, altho’ called incontestable rights, would not suffice to alter the established laws of the land relative to those rights, unless those recitals are followed by something, manifesting a clear intent to change these established laws. And in this edict there is no other intent manifested, than merely to tax the proprietors of Alluvions, not however to deprive them of their possessions as being part of the Royal Demesnes, or to declare a new rule relative to the title of Alluvions in future—The French Jurists must surely understand the true intent and meaning of this edict much better than we can, and may very fairly be relied upon, if found in opposition to the meaning which you ascribe to it; because we well know, that under that Government, the examples of opposition to the prerogatives of the Crown are rare indeed—If then we find, the French writers generally, since the enaction of that edict, laying down the law in opposition to what you consider as its commands, and even those who state the law to be as you suppose the edict asserts, resting their opinions not upon the edict, but the General Customs of the Realm, it will surely amount to very strong evidence, to prove that your construction of the edict is wrong. But Denizart Renusson, and the two Ferrieres, all writing subsequently to the promulgation of this edict, unite in declaring the law to be different, and this too without even hinting that the edict was said by any to be opposed to their opinions. Nay Pothier himself, while he asserts the law to be as you suppose, derives it not from the edict, but as a part of the Customary Law of the kingdom.

I have said nothing of the Counsellor Portalis, becauze I am very willing to admit, that his speech to the Legislative body, ought not to be referred to as Authority.But if it be, there is an end of the question, for this Lawyer while he declares the Old law of Alluvein to have been alterd &1 settled by a decision of the Parliament of Bourdeaux, does not pretend to ascribe the origin of that old Law to any Edict, but to the Customs of the Country—“Les proprietaires riverains etaient entiérement écartes (says he) par la plupart des Coutumes.” And if the fact had justified it,2 the Orator would hardly have lost this golden oppy of drawing a contrast between Napoleon and Louis so favorable to the former, by ascribing the old law then about to be repealed to the oppressions of the latter. Nay the assertion that the Parliament of Bourdeaux had reversed and settled3 the old law, is not to be reconciled with the supposition that that law was derived from a Royal Edict—For even4 admitting that decision to have been made under the particular Customs of the Bordelois, yet the Edicts of the Sovereign would certainly have controlled these Customs, especially in a matter of Revenue.

Until other sources of information are before me then, I can but doubt both parts of your proposition, that either by the General Customary Law of France, or the particular edict of Louis the 14h, Alluveins were vested in the Sovereign. I have stated my ideas upon this subject more fully than I otherwise should, under a hope, that as it composed so important a member of the argument, it would receive much of your examination, and that your better means of obtaining information might enable you to dispel all5 my doubts, and to rest this part of the Caze on ground the most impregnable.

The idea of the Levee being the true Ripa or Bank of the Missisippi, & consequently that the Batture is a part of the Alveus or bed of that River, is new, but I am satisfied is correct. Reflecting upon this subject it has occurred to me, that this idea would probably find strong support from two sources, one of which certainly and the other very probably is within your command, but neither of which are at present attainable by me—1. The Act of the former Government of Louisiana, by which the Levee along the Missisippi was first directed or permitted, will very probably I think describe that Levee or its baze as being the Bank of the River, and if so, will of course terminate the question. 2. The Greek Historian Herodotus, as well as I remember, while describing the situation of Egypt, speaks particularly of the artificial banks of the Nile, as being established long before his day, and he wrote about6 450 years before Christ. He also mentions I believe, the manner of ascertaining the time when it was injoined to cut these banks at certain places, and when to repair them again—For I think he states, that a graduated7 pillar was erected on the Delta, and so soon as the water arose to a depth noted on that pillar, all were then required to cut the river’s banks, in order to fertilize the Country; but that when the water had descended to an inferior degree also denoted on the pillar, all were then required to repair these banks where they had been before cut. I speak of this author only from the recollection of my school-boy days, for I have never seen him since, but I confide much in my memory—If my recollection be correct, then it follows, that the Levees of the Nile have been considered as its banks for more than 2200 years, and that no one has dared to intrude beyond them during this whole period, ergo, that the same results should be found on the Missisippi, which resembles the Nile most perfectly—Again, by this history of the Nile, a doubtful passage of the Roman Law, which is strongly relied upon by Messrs Livingston & Duponceau, and is not sufficiently explained by Mr Thierry, will be perfectly reconcileable with other precepts of the same Law, & instead of being an authority against us, is made one directly in our favour—The passage to which I allude is Ulpean’s saying in8 the Digest 43.12.1.5., in which speaking of the Banks of rivers he says, “Nemo denique dixit, Nilum, qui incremento suo Ægyptum operit, ripas suas mutare vel ampliare”—If by Ripas we understand the artificial embankments or Levees, which had been considered as the Banks of the Nile for more than 1,000 years before Ulpian wrote, the passage is an authority directly in favour of our proposition—And that this term ought to be so understood, is not only clear from the history of Ægypt, with which we must suppose this great Lawyer to be well acquainted, as it was then a part of the dominions of his master, but also from the next member of the same sentence. For Ulpian goes on to add “Nam cum ad perpetuam sui mensuram” “redierit, ripæ alvei ejus muniendæ sunt.” Which terms “muniendæ sunt” altho interpreted by Mr Thierry furnished, by Mr Duponceau enclosed, and by you supplied,9 I humbly concieve do litterally mean repaired, an expression never applicable to natural but ever to artificial works.

And here I will remark, that the triumphant reply of Mr Duponceau to Mr Thierry, in which he supposes that the Nile overflows his banks when he fertilizes Ægypt, is founded upon an evident misconception of the meaning of “operit” (qui incremento suo Ægyptum operit). The idea given by this term which he has correctly translated covers, is as perfectly consistent with the fact, that Ægypt is not10 inundated but irrigated by the waters of the Nile being voluntarily introduced upon it, as it is with the supposition that the Nile overflows his banks. And we cannot suppose that Ulpian (who I have before shewn meant the artificial Levees of the Nile by “Ripas”) would have illustrated his meaning by an example which he knew was unfounded in fact, especially when we find him using the figurative expression “operit” rather than the plain and common word denoting inundation.

With respect to the plea to the locality of the Action which is suggested by Mr Hay, I do not see any necessity or propriety for or in filing11 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 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 our 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 plt: himself,12 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 [try]ing the question upon its 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. Str: 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 by Mr Hay must necessarily draw down a demurrer from the plt: in which we shall be compelled to join, & then the Case will very probably go off upon its 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 U.S., 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—13

I have troubled you with a very long letter, which I hope you will excuse when you remember, that it has proceeded solely from an anxiety to render you all the assistance in my power, & that such assistance would as probably be supplied by the timely14 suggesting of probable difficulties, as by any other means. If any idea which I have here suggested shall serve to place the subject in a clearer point of view, or to guard against inconveniences or hazards which might otherwise hereafter occur, I shall be well pleased—

With very great respect I remain Sir your mo: obdt servt

Littn: W Tazewell

P.S. I inclosed your four bonds to Welch sometime since, but have never received any acknowledgment of their receipt. I hope howev[er] they got safe to hand.

RC (DLC); edge chipped; endorsed by TJ as received 4 Oct. 1810 and so recorded in SJL. Enclosure: TJ’s Statement on the Batture Case, 31 July 1810.

Jean Etienne Marie Portalis’s speech to the legislative body of France is in his Projet de Code Civil (Paris, 1801; Sowerby, description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, 1952–59, 5 vols. description ends no. 2216). nemo deniquemuniendæ sunt: translated by TJ as “Nobody has said that the Nile, which by it’s increase, covers Ægypt, changes or enlarges it’s banks. For when it has returned to it’s usual height, the banks of it’s bed are to be secured” (Jefferson, Proceedings description begins Thomas Jefferson, 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. prepared for the use of counsel, by Thomas Jefferson, New York, 1812; Sowerby, nos. 3501, 3508; Poor, Jefferson’s Library, 10 (no. 604) description ends , 47). Peter S. Du Ponceau’s triumphant reply to Jean Baptiste Simon Thierry was entitled A Review of the Cause of the New Orleans Batture and of the discussions that have taken place respecting it: Containing Answers to the Late Publications of Messrs. Thierry & Derbigny on that subject (Philadelphia, 1809; Sowerby, description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, 1952–59, 5 vols. description ends no. 3506). black: rep: William Blackstone, Reports of Cases Determined in the Several Courts of Westminster-Hall, from 1746 to 1779 (London, 1781; for a later ed. see Sowerby, description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, 1952–59, 5 vols. description ends no. 2081). str: rep: John Strange, Reports of Adjudged Cases in the Courts of Chancery, King’s Bench, Common Pleas, and Exchequer, from Trinity Term in the second year of King George I to Trinity Term in the twenty-first Year of King George II (London, 1755; for a later ed. see Sowerby, description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, 1952–59, 5 vols. description ends no. 2083).

1Preceding two words interlined.

2Preceding two words interlined in place of “been otherwise.”

3Word interlined in place of “alter’d.”

4Word interlined.

5Word interlined.

6Word interlined.

7Word interlined.

8Preceding two words interlined in place of “commentary upon.”

9Above this word TJ wrote “secured.”

10Tazewell here canceled “overflow’d.”

11Word interlined.

12Preceding four words interlined.

13Preceding two paragraphs quoted in TJ to George Hay, 7 Oct. 1810.

14Preceding two words interlined.

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
  • Anciennes loix des François (Hoüard, Littleton, and Pothier) search
  • A Review of the Cause of the New Orleans Batture (Du Ponceau) search
  • Argentré, Bertrand d’; Coûtumes generales du paîs et duché de Bretagne 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
  • Bordeaux, Decree of search
  • Collection de décisions nouvelles (Denisart) search
  • Coutumes du comté et bailliage de Mante et Meulant (Du Moulin) search
  • Coûtumes generales du paîs et duché de Bretagne (Argentré and Du Moulin) search
  • Denisart, Jean Baptiste; Collection de décisions nouvelles search
  • Dictionnaire de droit et de pratique (Ferrière) search
  • Du Moulin, Charles; Coutumes du comté et bailliage de Mante et Meulant search
  • Du Moulin, Charles; Coûtumes generales du paîs et duché de Bretagne search
  • Du Ponceau, Peter Stephen; A Review of the Cause of the New Orleans Batture search
  • Egypt; and batture controversy search
  • Encyclopédie Méthodique: Jurisprudence (Lerasle) search
  • Examen des Droits des Etats-Unis et des pretensions de Mr. Edouard Livingston sur la Batture en Face du Faubourg Ste. Marie (Thierry) search
  • Ferrière, Claude de search
  • Ferrière, Claude Joseph de; Dictionnaire de droit et de pratique search
  • France; laws of search
  • Guyot, Joseph Nicolas; Répertoire universel et raisonné de jurisprudence civile, criminelle, canonique et béneficiale search
  • Hay, George; and TJ’s statement on the batture case search
  • Herodotus; cited in batture case search
  • Hoüard, David; Anciennes loix des François search
  • Jefferson, Thomas; Business & Financial Affairs; account with W. Welch search
  • Jefferson, Thomas; Writings; statement on the batture case 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
  • law; Roman search
  • Lerasle; Encyclopédie Méthodique: Jurisprudence search
  • Littleton, Thomas; Anciennes loix des François 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
  • Louis XIV, king of France; and edict of1693 search
  • Mississippi River; compared to Nile search
  • Nile River; and batture case search
  • Œuvres (Renusson) search
  • Paris; coutumes de (legal customs of) search
  • Portalis, Jean Etienne Marie; Projet de Code Civil search
  • Pothier, Robert Joseph; Anciennes loix des François search
  • Projet de Code Civil (Portalis) search
  • Renusson, Philippe de; Œuvres search
  • Répertoire universel et raisonné de jurisprudence civile, criminelle, canonique et béneficiale (Guyot) 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
  • Roman law; and batture controversy search
  • statement on the batture case (Thomas Jefferson); copies of returned to TJ 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 account with W. Welch search
  • Tazewell, Littleton Waller; and TJ’s statement on the batture case search
  • Tazewell, Littleton Waller; letters from 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); and riverine inundations search
  • Thierry, Jean Baptiste Simon; Examen des Droits des Etats-Unis et des pretensions de Mr. Edouard Livingston sur la Batture en Face du Faubourg Ste. Marie search
  • Welch, Wakelin; TJ’s bond to search