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James Madison’s Notes on Thomas Jefferson’s Statement on the Batture Case, [ca. 10-13 August 1810]

James Madison’s Notes on Thomas Jefferson’s Statement on the Batture Case

[ca. 10–13 Aug. 1810]

p. 16. form of stating the consultation seems to imply a more elaborate inquiry into the law than was then made: better to give a summary of the grounds; & appeal to the full view of the argts in support of the opinion given.
Id.1 too unqualified2 pre-eminence ascribed to Civil Law.
17. quer. the advantage of the note which seems3 rather erudite & curious, than strictly within the scope of the reasoning which is sufficiently voluminous of necessity.
22. Tho’ true that a mere change of Govt does not change laws, is it not probable, that by usage, or some other mode, the Spanish law had come into operation; since Thierry on the spot speakes so confidently? this remark applicable to the enquiry into the4 state of the F. & Civil Law previously in force.
27. comments on definition of alluvion5 too strict. They destroy the idea of alln altogether. alluvion, when real & legal, is formed not like plastering a wall, but coating a floor.
30.6 In the Etemologies, that of Platin, at least, far fetched—It is more probably derived from Plat—flat.
35–36. characteristic features distinguishing the cases of the lands back of the river & the batture seem to be 1: (the appendix to the argument supersedes the attempt here intended)
37 et seq. Is not the point superfluously proved by so many quotations?
49 &c trop recherchè peut être.
51 & seq:. distinction between fedl & State—Ex. & Legis: authrs not observd in the reasoning
55.7 conveys idea of spontaneous advice, & concurrence of the P.
56. well to be sure, that the local law or usage8 did not confer the Chancery9 power exercised by the Court in this case. Moreau’s Memoire10 must be important on this as on some other points depending on the law of usage & the Civil law.
  The rationale of the doctrine of alluvion appears to be first, that the Claimant may lose as well as gain: secondly, that the space loses its fitness for common use, and takes a fitness for individual use: hence the doctrine does not apply to Towns where the gain would be disproportionate;11 and where the fitness of the space for public use, may be changed only, not lost.12
 The Batture would to Livingston be gain without possibility of loss; and retains its fitness for pub: use, as occasionally, a port, a Quay, and a quarry.

MS (DLC: TJ Papers, 192:34094); in Madison’s hand; with marks added by TJ (described below) to indicate which suggestions he had dealt with in revising his 31 July 1810 Statement on the Batture Case; undated, but presumably composed after Madison received TJ’s manuscript, sent from Monticello on 9 Aug., and prior to the conclusion of TJ’s visit to Montpellier of 12–13 Aug. 1810 (MB description begins James A. Bear Jr. and Lucia C. Stanton, eds., Jefferson’s Memorandum Books: Accounts, with Legal Records and Miscellany, 1767–1826, 1997, The Papers of Thomas Jefferson, Second Series description ends , 2:1259).

TJ held a consultation about the Batture Sainte Marie with his cabinet on 27 Nov. 1807. f.: French. By the appendix to the argument, Madison apparently refers to four unnumbered pages (DLC: TJ Papers, 192:34695–6) that followed pp. 35–6, which were entitled “note to pa. 36. l. 4.” trop recherchè peut être: “perhaps too elaborate.” p.: the president.

1TJ placed a check mark to the left of this line.

2Word interlined in place of “much.”

3Preceding two words interlined.

4Preceding three words interlined.

5Manuscript: “allevion.”

6TJ placed a check mark to the left of this line and added to the etymological examination of the French word platin (beach) in his Statement on the Batture Case: “perhaps however from Plat. Fr. for flat.”

7TJ placed a check mark to the left of this line and altered the pertinent section in his statement from “the four heads of departments, with the Attorney General were unanimously of Opinion, and in the same opinion I entirely concurred, that” to “we were all unanimously of Opinion, that.”

8Preceding two words interlined.

9Word interlined.

10Word interlined.

11Manuscript: “disproportinate.”

12TJ placed a check mark and wrote “pa. 28” to the left of this paragraph to indicate the place earlier in his statement where he had discussed this issue.

Index Entries

  • Batture Sainte Marie, controversy over; J. Madison on search
  • civil law search
  • France; laws of search
  • Jefferson, Thomas; Writings; statement on the batture case search
  • law; civil search
  • law; French search
  • law; Spanish search
  • Madison, James; and batture controversy search
  • Madison, James; Notes on TJ’s Statement on the Batture search
  • Montpellier (Montpelier; J. Madison’s Orange Co. estate); visitors to search
  • Moreau Lislet, Louis; on batture controversy search
  • Spain; laws of search
  • statement on the batture case (Thomas Jefferson); sent to TJ’s cabinet members search
  • Thierry, Jean Baptiste Simon; and batture controversy search