Thomas Jefferson Papers
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https://founders.archives.gov/documents/Jefferson/03-03-02-0295

Thomas Jefferson’s Plea in Livingston v. Jefferson on Ground of Justification to Abate a Nuisance, [ca. 28 February 1811]

Plea in Livingston v. Jefferson on Ground of Justification to Abate a Nuisance

[ca. 28 Feb. 1811]

And the said Thomas, according to the statute in such case made and provided, and by leave of the Court, for further plea in this behalf saith, that as to the force and arms; and as to the breaking cutting in pieces and destroying of the goods & chattells of the said Edward, either by the said Thomas himself or by his servants; and as to the digging and raising, or causing to be dug and raised the soil of the said Edward, by him the said Thomas or by his servants; and as to the carrying away, or the causing the said soil to be carried away, by him the said Thomas or by his servants; and as to the converting the said soil to the use of him the said Thomas; and as to the cutting down the Banks of the said canals, by him the said Thomas or by his servants, and as to all the other trespasses above supposed to have been done by him the said Thomas or by his servants, (except as to the breaking & entering the messuages or dwelling houses and closes or parcels of land thereto adjoining in the first and fifth counts of the said declaration mentioned; and except also as to the breaking and entering the closes in the second and sixth counts of the said declaration mentioned, & the putting out expelling and removing the said Edward therefrom, and the keeping and continuing him the said Edward so expelled and removed therefrom, for the space of time in the said declaration in that respect mentioned; and also except as to the breaking and entering the said closes in the third and seventh counts in the said declaration mentioned, and the driving off expelling and removing therefrom the said Edward with his servants & workmen, and forcing them to interrupt and quit their work, and the keeping and continuing the said Edward so removed from the possession of the said closes, for the space of time in the said declaration in that respect mentioned; And also except as to the breaking and entering of the said closes in the fourth and eighth counts of the said declaration mentioned, and the driving off expelling & removing therefrom the said Edward with his servants and workmen, and forcing them to interrupt and quit their work, and the keeping and continuing the said Edward so removed from the possession of the said closes, for the space of time in the said declaration in that respect mentioned;) he is not guilty in manner and form as the said Edward hath above thereof complained against him; and of this he putteth himself upon the Country &c

And as to the other supposed trespasses, to wit, the said breaking and entering the messuages or dwelling houses & closes or parcels of land thereto adjoining in the first and fifth counts in the said declaration mentioned, and also as to the breaking and entering the closes in the second and sixth counts of the said declaration mentioned, & the putting out expelling and removing the said Edward therefrom, and the keeping and continuing the said Edward so expelled & removed therefrom, for the space of time in the said declaration in that respect mentioned; and also as to the breaking and entering the said closes in the third and seventh counts of the said declaration mentioned, and the driving off removing and expelling therefrom the said Edward with his servants and workmen, and forcing them to interrupt and quit their work, and the keeping and continuing the said Edward so removed from the possession of the said closes, for the space of time in the said declaration in that respect mentioned; and also as to the breaking and entering the said closes in the fourth and eighth counts of the said declaration mentioned, and the driving off, removing and expelling therefrom the said Edward with his servants & workmen, and forcing them to interrupt and quit their work, and the keeping & continuing the said Edward so removed from the possession of the said closes, for the space of time in the said declaration in that respect mentioned; he the said Thomas saith, that he the said Edward ought not to have or maintain his said action thereof against him, because he saith, that the said several messuages, dwelling houses, closes and parcels1 of land in the several counts of the said declaration mentioned, are one & the same, or parts of one and the same messuage, dwelling house, close and parcel of land which said close is called and known as the Batture or Suburb of St Mary, and that they are not other or different, or parts of other or different messuages, dwelling houses and closes; And that long before the said time when the several trespasses in the declaration above supposed to be done by him, he the said Thomas had been, and at the several times when &ct—he the said Thomas was, the President of the United States of America; And that the aforesaid messuage, and the said close or parcel of land called and known as the Batture of the Suburb St Mary are, at the several times when &c were,2 and from time immemorial have been a part of the bed of the river Mississippi, which said river Mississippi, is now, & at the several times when &c was,3 and ever hath been a public and common navigable river, whose bed at the places aforesaid, in which &ct.—is, and was and4 ever hath been alternately covered and uncovered by the regular swell and recess of the waters of the said river, during the period of months at least in each and every year.

And the said Thomas further saith that before the time when &ct.— to wit on the day of in the year of our Lord 180  at the parish of in the county aforesaid & within the jurisdiction aforesaid5 he the said Edward wrongfully and unlawfully intruded himself into the said messuage and close, then and there being part of the bed of the6 said river Mississippi, and then uncovered by the waters of the said river; and that he the said Edward claiming the exclusive possession of the said messuage & close, on which he had so intruded himself, together with his servants and workmen then and there erected the dwelling house aforesaid, on the said messuage & close; and that he the said Edward employed himself and his said servants and workmen in then and there constructing and digging and making a canal, and a Levee, Dyke, or Embankment, of Earth, on the said messuage and close, while the same was uncovered by the waters of the Mississippi aforesaid, which said dwelling house, Canal, Levee, Embankment or Dyke when erected, would have greatly hindered and obstructed the navigations of the said river when at its highest point, & would also have greatly hindered and obstructed the common use of the bed of the said river when the waters thereof should again subside to their lowest point; for which reason, he the said Thomas as it was lawful for him to do as President of the United States aforesaid, for the necessary preservation & protection of the free navigation of the said River Mississippi when at its highest point & for the necessary preservation & protection of the common use of the said beds of the said River when the waters thereof should be at their lowest point,7 at the several times when &ct—peaceably & without force entered the said messuage dwelling house & close aforesaid, in which &ct.—& were so unlawfully hindering &ct—as being part of the bed of such navigable river as aforesaid, while the same was uncovered as aforesaid, with the intent only of abating the nuisances8 which he the said Plaintiff with his servants & workmen was then & there erecting & had already then and there erected in the said messuage and close; And that he the said Thomas did then and there abate the said nuisance as by law he might, and did then and there gently remove the said Edward with his servants & workmen from off the said messuage & close, in order to effect the abatement of the said nuisances; which are the same supposed9 breaking and entering &c—whereof &c—and this he is ready to verify10 &c. Wherefore &ct.—

MS (Vi: USCC-LJ); in William Wirt’s hand; undated; endorsed (by unidentified hand): “<6> 5 Plea—Justification <under the Act of Congress> to abate a Nuisance” and (by Wirt): “Feby 28th 1811”; notation by clerk: “$187 [$1.87].” Enclosed in George Hay to TJ, 25 Jan. 1811, and TJ to Hay, 3 Mar. 1811.

1Manuscript: “parcls.”

2Preceding seven words interlined.

3Preceding eight words interlined.

4Preceding two words interlined.

5Phrase from dash to this point interlined in place of illegible phrase.

6Preceding three words interlined.

7Phrase from “as President” to this point interlined.

8Manuscript: “nuissances.”

9Word interlined.

10Preceding five words interlined.

Index Entries

  • Batture Sainte Marie, controversy over; pleadings in search
  • Livingston, Edward; opens canal on batture search
  • United States Circuit Court, Virginia District; and batture controversy search
  • Wirt, William; drafts batture pleadings search