Thomas Jefferson Papers

Thomas Jefferson to Caesar A. Rodney, 25 September 1810

To Caesar A. Rodney

Monticello Sep. 25. 10

Dear Sir

I have to thank you for your kind letter of June 8. and the suggestions it furnished on the question whether Livingston could maintain an action in Richmond for a trespass committed in Orleans. this being a question of Common law, I leave it to my Counsel, so much more recent than I am in that branch of law. I have undertaken to furnish them with the grounds of my defence under the Lex loci. I wished for the aid of Moreau’s Memoir because it is understood to be the ablest of any. however my Counsel being ruled to plead, and pressing me for the grounds of defence, I proceeded to consider the case, meaning at first only an outline: but I got insensibly into the full discussion, which became very voluminous, & the more so as it was necessary not only to enter all the authorities at large in the text, because few possess them, but also translations of them, because all do not understand all the languages in which they are. believing my late associates in the executive would feel an interest in the justification of a conduct in which all concurred, and also in the issue of it, I have thought it a duty to consult them as to the grounds to be taken, & to take none against their advice. my statement has therefore been submitted to the President, mr Smith & mr Gallatin, and will be forwarded to you by mr Smith as soon as he shall have read it. I have to request your consideration & corrections of it, and that you will be so good as to furnish them on a separate paper. I am obliged also to ask an immediate attention to them because time presses to give to this paper it’s ultimate shape, to plead, & collect the evidence. it’s early return to me therefore is urging. I do not know whether my counsel (Hay, Wirt & Tazewell) have pleaded to the jurisdiction; but the feelings of the judge are too deeply engraven to let this obstacle stand in the way of getting at his victim. my only chance is an Appeal. the death of Cushing is therefore opportune as it gives an opening for at length getting a Republican majority on the supreme bench. ten years has the Anti-civism of that body been bidding defiance to the spirit of the whole nation, after they had manifested their will by reforming every other branch of the government. I trust the occasion will not be lost; Bidwell’s disgrace withdraws the ablest man of the section in which Cushing’s successor must be named. the pure-integrity, unimpeachable conduct, talents & republican firmness of Lincoln, leave him now I think without a rival. he is thought not an able Common lawyer. but there is not, & never was an able one in the N. England states. their system is sui generis, in which the common law is little attended to. Lincoln is one of the ablest in their system, & it is among them he is to execute the great portion of his duties. nothing is more material than to complete the reformation of the government by this appointment which may truly be said to be putting the keystone into the arch.—in my statement of the law of Livingston’s case, I do not pretend to consider every argument as perfectly sound. I have, as is usual, availed myself of some views, which may have a weight with others which they have not with me. I have no right to assume infallibility, & I present them therefore ut valeant ubi possint. Accept the assurances of my constant & affectionate esteem.

Th: Jefferson

P.S. Sep. 26. in my letter of yesterday I have omitted to observe, with respect to the arrangement of materials in the paper it speaks of,1 that it is not such as counsel would employ in pleading a cause. it was determined by other considerations. I thought it very possible the case might be dismissed out of court by a plea to the jurisdiction. I determined, on this event, to lay it before the public, either directly, or thro’ Congress. respect for my associates, for myself, for our nation, would not permit me to come forward, as a criminal under accusation, to plead and argue a cause. this was not my situation. I had only to state to my constituents a common transaction. this would naturally be by way of Narrative or Statement of the facts, in their order of time, establishing these facts as they occur, & bringing forward the law arising on them & pointing to the Executive the course he was to pursue. I supposed it more dignified to present it as a history & explanation of what had taken place. it does not indeed, in that form, display the subject in one great whole: but it brings forward successively a number of questions, solving themselves as they arise, & leaving no one unexamined. and the mind, after travelling over the whole case, & finding as it goes along, that all has been considered, & all is right, rests in that state of satisfaction which it is our object to produce. in truth I have never known a case which presented so many distinct questions, having no dependance on one another, nor belonging even to the same branches of jurisprudence.

RC (ViU: TJP); postscript and address on separate sheets; addressed: “Caesar A. Rodney esq. Atty Genl of the US. Wilmington Del.”; endorsed by Rodney. PoC (DLC).

lex loci: “the law of the place” (Black’s Law Dictionary description begins Bryan A. Garner and others, eds., Black’s Law Dictionary, 7th ed., 1999 description ends ). John Marshall was the judge with deeply engraven feelings. United States Supreme Court justice William cushing died on 13 Sept. 1810 (ANB description begins John A. Garraty and Mark C. Carnes, eds., American National Biography, 1999, 24 vols. description ends ). ut valeant ubi possint: “so that we may prevail wherever we are able.”

1Preceding three words interlined in place of “inclosed.”

Index Entries

  • Batture Sainte Marie, controversy over; C. A. Rodney on search
  • Batture Sainte Marie, controversy over; pleadings in search
  • Bidwell, Barnabas search
  • common law; and batture controversy search
  • Cushing, William; death of search
  • Gallatin, Albert; and TJ’s statement on the batture controversy search
  • Jefferson, Thomas; Opinions on; J. Marshall search
  • Jefferson, Thomas; Opinions on; New England law search
  • law; common search
  • Lincoln, Levi; as potential Supreme Court justice search
  • Madison, James; and TJ’s statement on the batture case search
  • Marshall, John; TJ on search
  • Moreau Lislet, Louis; “Mémoire au soutien des droits des Etats-unis à la Batture du faubourg Ste Marie,” search
  • New England; TJ on law in search
  • Rodney, Caesar Augustus; and batture controversy search
  • Rodney, Caesar Augustus; letters to search
  • Smith, Robert; and TJ’s statement on the batture case search
  • Supreme Court, U.S.; replacement for W. Cushing search
  • “Mémoire au soutien des droits des Etats-unis à la Batture du faubourg Ste Marie” (Moreau Lislet); TJ seeks search