Notes on William Wirt’s Comments on the Batture Statement
Ans. I leave the establishment of this as legal evidence to the gentlemen in actual practice, who are so much more familiar with the authorities than I am. I have no doubt they will be able to shew that2 tho’ we may not resort3 to books of history for documents of a nature merely private, yet we may for those of a public character, e.g. treaties Etc. and especially when those documents are not under our controul, as when they are in foreign countries, or even in our own country, when they are not patent in their nature, or demandable of common right.
Obj.4 that the incorporation of the Roman law with the Customs of Paris, & their joint transfer to Louisiana does not appear.
Ans.5 1. at the date of Crozat’s patent,6 the Roman law had for many centuries been amalgamated with the Customary law of Paris, made one body with it, and it’s principal part. it might well then be understood to be transferred as a part of the laws of Paris to Louisiana.7 2. if the term Coutumes de Paris, in the patent,8 be rigorously restrained to it’s literal import, yet the judges of Louisiana would have the same authority for appealing to the Roman as a Supplementary code, which the judges of Paris, and of all France, had had; and even greater, as being sanctioned by so general an example. 3. the practice of considering the Roman law as a part of the law of the land in Louisiana, is evidence of a general opinion of those who composed that state, that it was transferred, and of an opinion much better informed & more authoritative than ours can be. or it may be considered as an adoption by universal tho’ tacit consent of those who had a right to adopt either formally or informally as they pleased, as the laws of England were originally adopted in most of these states, and still stand on no other ground.
Obj. from Dig. 43.12.3. ‘Ripa ea putatur esse quae plenissimum flumen continet.’ & Vinnius’s comment ‘ut significet, partem ripae non esse, spatium illud, ripae proximum, quod aliquando flumine, caloribus minuto aestivo tempore, non occupatur.’ stating & paraphrasing the text & commentary together9‘the bank ends at the line to which the water rises at it’s full tide: and altho’ the space next below it is sometimes uncovered by the river, when reduced by heats in the Summer season, yet that space10 is not a part of the bank.’ now, substituting for ‘the heats of the Summer season’ which is circumstance, & immaterial, the term ‘low water’ which is the substance of the case, nothing can more perfectly take in the beach or batture, nor, collated with the other authorities, make a more consistent and rational provision. ‘the bank ends at that line on the levee to which the river rises at it’s full tide: and altho’ the batture or beach next below that line11 is uncovered by the river, when reduced to it’s low tide, yet that batture or beach does not therefore become a part of the bank, but remains a part of the bed of the river’ for, says Theophilus ‘even in low water [et aestate] we bound the bank at the line of high water’ Inst. 2.1.3. ‘the bank being the extima alvei, the border of the bed, within which bed the river flows when in it’s fullest state naturally,’12 that is to say, not when ‘imbribus, vel quâ aliâ ratione, ad tempus excrevit’ not when ‘temporarily overflowed by extraordinary rains Etc.’ Dig. 43.12.5. but ‘quando mas crece, sin salir de su madre, en qualquiera tiempo del año’ ‘when in it’s full height, without leaving it’s bed, to whatsoever season of the year the period of full height may belong.’ this is unquestionably the meaning of all the authorities taken together, & explaining one another.
MS (MdHi, 1944); in TJ’s hand; undated; brackets in original; endorsed by Wirt: “Thomas Jefferson.” PoC (DLC: TJ Papers, 192:34141); containing subsequent revisions not incorporated into MS; at head of text: “Objections which have been suggested, and answers to them”; with a small attached slip (fol. 34140) containing three unrelated draft sentences on feudal law for the Batture statement.
After sending these notes to Wirt, TJ revised them further as indicated below for insertion into his Statement on the Batture Case, 31 July 1810. In 1712 Louis XIV gave Antoine Crozat an exclusive charter to control the territory of Louisiana. It was rescinded in 1717 (Henri Joutel, A Journal of the Last Voyage Perform’d by Monsr. de la Sale [London, 1714; Sowerby, description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, 1952–59, 5 vols. description ends no. 4074]). TJ owned a Latin translation of the sixth-century Greek paraphrase of Justinian’s Institutes by theophilus: Theophili Antecessoris Institutiones (Paris, 1638; Sowerby, description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, 1952–59, 5 vols. description ends no. 2198). et aestate: “in summer.”
1. Word replaced in PoC by “pa. <
18.> 17. add to bottom of Note.”
2. In PoC TJ here added “for al.”
3. In PoC “appeal” is interlined in place of this word.
4. Word replaced in PoC by “ib. pa. 18. l. 10. subjoin Note if it <
may> be objected.”
5. Reworked in PoC to “I answer.”
6. In PoC “charter” is interlined in place of this word.
7. In PoC “by the Customs of Paris were doubtless meant the laws of Paris, of which the Roman then made an important part, and might well be understood to be transferred with them. it was hardly intended that the new colonists were to unravel this web, and take out for their own use only the fibres of Parisian customs, the least applicable part of the system to their novel situation” is interlined in place of this sentence.
8. In PoC “charter” is interlined in place of this word.
9. In PoC, paragraph to this point replaced by “<
[. . .] 33. 34. l. 14. Let us now embody these authorities and reduce them to one whole by stating> [. . .] Let us now embody these authorities by bringing together < these members> the separate members making them paraphrase one another, and form a single description. the Digest 43.12.3. with Vinnius’s comment will stand yus.”
10. Word interlined.
11. Word interlined.
12. Omitted closing quotation mark editorially supplied.
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