From William Wirt
Charlottesville. Augt 9. 1810.
I have perused, with equal pleasure and conviction, your view of the question touching the batture at New Orleans: the copy is now returned. With such aid, I think it must be the fault of your counsel if they leave any room for candor to doubt or even for sophistry to cavil, with any hope of success.
I had noted a few slight omissions which it will be necessary to supply in order to clear the sense: but taking it for granted that you will, again, run over the copy, your self, before you make any public use of it, I have thought it unnecessary to trouble you with my note.
Not having seen the opinions of Mr. Livingston’s counsel, I do not know by what arguments they have supported a conclusion which, to me enlightened by your exposition, appears so extraordinary: and it is, therefore, not improbable that those ideas which it occurred to me, as I went along, they might attempt to urge against some of your positions, have been already advanced by them, in their opinions. I will beg your permission, however, to suggest them here; that you may forestall them, more directly, if you shall think it not sufficiently done already; or that you may make1 farther notes upon them for your counsel if you deem it expedient.
I have supposed it probable that they will object to the competency of Joutal’s journal of la Sales voyage as evidence of the Charter of Louis XIV. It is true, they will say, that the rule of law requires only the best evidence which the nature of the case will admit: but then 1. Is this the best evidence. 2. Is it any evidence, at all?—1. The nature of the case will prove that superior evidence once existed, if it do not still exist: the inaccessibility of the archives of France as well as of every other regular depository in which an authentic copy might be naturally expected, must at least be formally established before a resort to inferior proof. 2 Is it any proof at all: Histories are sometimes permitted by courts to be offered in evidence of national events; but are they ever permitted as evidence of records: vid. Peake’s Evidence 79 & seq.
In page 18. it is said that the Roman law was incorporated with the customs of Paris and, with them, was transferred to Louisiana: the transfer of those customs is distinctly shewn by authority; but I do not recollect that the authority is cited to prove that the Roman law formed a part of those customs.
Notwithstanding the luminous exposition of the component parts of a river, on the 32nd page, is it not still to be apprehended that a difficulty may be raised as to the extent of the ripa and alveus even on these authorities:—thus—Grotius defines the ripa to be “the outermost part of the bed in which the river naturally flows”: and thus raises the question what is the natural state of the river? is it the river fed by its fountains in their fullest winter state, or is it the river in a fresh caused by rains? If the latter, then certainly the leveé is the ripa and the batture is bed: but if the former, does it not follow from Grotius’ definition that that part of the batture which is in immediate contact with the river in its winter state, is the bank, and that under the name of ripa the public are only entitled to a right of way &c on its border?—If to avoid this conclusion, we say that the regularity of the summer flood and the natural causes on which it depends constitute that as much the natural state of the river, as is its condition during the other half of the year, will they not bring the case of the Nile to bear upon us: because its inundations are just as regular and depend upon the same causes: yet according to the Digest 43.12.5 these annual inundations of the Nile are not considered as shewing the ripa of that river; on the contrary, it is the state of the river when the fresh is gone that does, according to the Digest, mark its alveus & ripa:
By the Digest 43.12.3 we are aided by the word plenissimum, as shewing the ripa but does not Vinnius reduce its force by his commentary? He says that the passage signifies that that space next to the bank which is sometimes not occupied by the river when diminished by summer droughts is not a part of the bank: but this, it may be said, is not the case of the batture; it is not made bare by summer droughts: if it were, the state of water so produced might be considered as casual & unnatural, because proceeding from an altered state of the fountains which form the river’s natural supplies: and hence, combining Vinnius commentary with the text, it will be attempted to be inferred that the plenissimum of the river is when its fountains are unaffected by summer heats, and its stream by evaporation.
The spanish definition of a bank at page 33 when it uses the phrase quando mas crece will be considered as falling under the same course of animadversion:
RC (DLC); addressed: “Thomas Jefferson esquire Monticello”; endorsed by TJ as received 12 Aug. 1810 and so recorded in SJL. Enclosure: TJ’s Statement on the Batture Case, 31 July 1810.
joutal’s journal: Henri Joutel, Journal Historique du dernier Voyage que feu M. de la Sale fit dans le Golfe de Mexique (Paris, 1713, Sowerby, description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, 1952–59, 5 vols. description ends no. 4073; English translation, London, 1714, Sowerby, description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, 1952–59, 5 vols. description ends no. 4074). peake’s evidence: Thomas Peake, A Compendium of the Law of Evidence (London, 1801). ripa: “riverbank.” alveus: “riverbed.” plenissimum: “full, filled.” TJ owned an edition of the seventeenth-century commentary on Justinian’s Corpus juris civilis by Arnoldus vinnius (Sowerby, description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, 1952–59, 5 vols. description ends no. 2193). TJ translated quando mas crece as “when most swelled” in his Statement on the Batture Case.
1. Wirt here canceled “any.”
- A Compendium of the Law of Evidence (Peake) search
- Batture Sainte Marie, controversy over; communications between TJ and his counsel concerning search
- Corpus juris civilis (Justinian) search
- Corpus Juris civilis Romani (Godefroy) search
- France; laws of search
- Godefroy, Denys (Denis); Corpus Juris civilis Romani search
- Grotius, Hugo; cited in batture controversy search
- Jefferson, Thomas; Writings; statement on the batture case search
- Journal Historique du dernier Voyage que feu M. de la Sale fit dans le Golfe de Mexique (Joutel) search
- Joutel, Henri; Journal Historique du dernier Voyage que feu M. de la Sale fit dans le Golfe de Mexique search
- Justinian; Corpus juris civilis search
- law; books on search
- law; French search
- law; Roman search
- Louisiana (Spanish and French colony); laws governing search
- Louis XIV, king of France; and La. territorial charter search
- Peake, Thomas; A Compendium of the Law of Evidence search
- Rome, ancient; laws of search
- statement on the batture case (Thomas Jefferson); copies of returned to TJ search
- Vinnius, Arnoldus; commentary on Justinian’s Corpus juris civilis search
- Wirt, William; and TJ’s statement on the batture case search
- Wirt, William; letters from search