Thomas Jefferson Papers

George Hay to Thomas Jefferson, 15 July 1810

From George Hay

Sunday. PM—15. July 1810

Dear Sir,

It would have given me great pleasure, to have called on you, once more, before I left this place; but I could not do So, conveniently, without postponing my departure for one day. This postponement my engagements in Richmond forbid. I expect however to be here again in less than three weeks, and shall certainly, immediately after my return, pay my respects at Monticello.—

I object to the plea in abatement proposed by Mr Tazewell: 1. because it will give birth to a Suspicion, that you are afraid of a discussion on the merits:—a suspicion which it would be both needless and impolitic to encounter, as the fear does not exist: 2. because a plea in abatement must be Sworn to; and how would it be possible for you to Swear, even to your belief, that Livingston, who was born in NY. who has been there for Some time, who is now there, and who has no doubt taken care to exhibit to public view every mark and evidence of his being ‘domiciliated’, is not really and truly a resident of that State:—you may Suspect, as I do, that his removal from N.O is merely temporary, and made with a view to the institution of this very Suit in the fœderal Court; but whether this suspicion1 be true or false, will not be decided, until the Suit itself is at an end—3. because if issue be joined on a plea in abatement, a verdict against the defendant is final.—If Livingston should think proper to take issue on this plea, as possibly he might, the depositions of his witnesses in N.Y. selected by himself, and even without their knowledge prepared by himself, would insure to him an easy victory.

Permit me to say, that I am opposed to any System of defence, which will preclude a full discussion of the merits of this Case. The subject is important to the public and very interesting to yourself. A plea in abatement, which if successful drives the party out of Court upon a technical objection, will cast a Shade on the just claims of the U:S to the lands in question, and on your own just claims to public approbation for what you have done. I take the liberty of telling you that this approbation is yet with-held. The subject is not understood: in fact it is greatly misunderstood: and it is therefore important to yourself as well as to the public interests, that the defence Should be co-extensive with the charge.

This Consideration has led me also to think, that the question Concerning the locality of the action, should not be made a preliminary point of defence. The objection to the evidence Should be Stated to the Court,2 and the evidence then received, under a reservation of the defendants right to enforce that objection. This mode of proceeding is Common, and if pursued, the whole case is laid open to public view, without a Surrender on your part of the benefit which this rule, or rather principle of locality indisputably affords.—

I have run thro’ the ‘pieces probantes’ as well as the opinions of Messrs Derbigny and Thiérry. I cannot say that they have removed my doubts: they were annihilated before.

I am much pleased with this Subject. It has led me into a field of legal Science hitherto unexplored by me. In passing along some of the bye roads of the Common law, I had occasionally looked into it, but was too anxious to proceed on my journey, to enter and examine it. It is true that I have gone in now3 a short distance only, and Seen but little: but what I have seen affords me great pleasure. The Soil is rich, & the productions excellent, and what was Still more to be desired, exactly adapted to the purpose for which they are wanted.

I have one or two ideas in relation to this cause, which I may perhaps Communicate to you on my return. The palpable error into which Mr Derbigny has fallen, affords a lesson, whose influence is Strong enough, to guard me at present4 from the Communication of opinions, hastily, and most probably, erroneously taken up.

I return the book and all the papers received from you. I could not find time to go thro’ your Statement more than once. I read it however with great attention, and permit me to add, with great pleasure & benefit. I shall indeed be much5 deceived, if the impression which it makes on the public mind shall not be exactly similar to that which it has already made on mine—

I am, with great respect, Yr mo: ob. Serv.

Geo Hay.

RC (DLC); endorsed by TJ as received 15 July 1810, but recorded in SJL as received a day later. Enclosure: preliminary version of TJ’s Statement on the Batture Case, 31 July 1810, possibly the “State of the Case” (DLC: TJ Papers, 190:34099–105), and unidentified supporting documents.

For the pieces probantes and the works by Pierre Auguste Charles Bourguignon derbigny and Jean Baptiste Simon thiérry, see items 28–30 listed in enclosure to Robert Smith to TJ, 4 June 1810. The palpable error into which Derbigny had fallen was his reliance on French law as the basis for his argument in favor of the public right to the Batture Sainte Marie. By the summer of 1808 Peter S. Du Ponceau had thoroughly refuted this premise, after which TJ was the only writer to persist in using French law to assert the public claim to the Batture (George Dargo, Jefferson’s Louisiana: Politics and the Clash of Legal Traditions [1975], 83).

1Word interlined in place of “possession.”

2Hay here canceled “and the propriety.”

3Word interlined in place of “but.”

4Preceding two words interlined.

5Hay here canceled “misled.”

Index Entries

  • common law; and batture controversy search
  • Derbigny, Pierre (Peter) Augustin Bourguignon; Mémoire a Consulter, sur la Réclamation de la Batture, Située en Face du Faubourg Sainte-Marie de la Nouvelle-Orléans search
  • Du Ponceau, Peter Stephen; Mémoire en forme de consultation 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
  • Hay, George; consults with TJ on batture case search
  • Hay, George; letters from search
  • Jefferson, Thomas; Writings; statement on the batture case search
  • law; common search
  • Mémoire a Consulter, sur la Réclamation de la Batture, Située en Face du Faubourg Sainte-Marie de la Nouvelle-Orléans (Derbigny) search
  • Mémoire en forme de consultation (Du Ponceau) search
  • Pieces Probantes search
  • statement on the batture case (Thomas Jefferson); copies of returned to TJ search
  • Tazewell, Littleton Waller; and batture controversy search
  • Thierry, Jean Baptiste Simon; and batture controversy 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
  • United States Circuit Court, Virginia District; and batture controversy search