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Thomas Jefferson Manuscript and Autograph Note Signed Relating to the Butture Case....
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Description
Jefferson manuscript relating to a land dispute in territory acquired with the Louisiana Purchase
Thomas Jefferson Manuscript and Autograph Note Signed Relating
to the Butture Case. "Th. Jefferson". Four-page
manuscript, front and back, accompanied by a one page note, each
sheet measuring 7.75" x 9.75", Monticello, Virginia; August 20,
1810. The manuscript, written in Jefferson's hand in both English
and Latin, contains notes on the St. Mary Batture Case, relating to
a section of beach on the Mississippi River, located in the
Louisiana Purchase which was made in 1803. Together with an
Autograph Note Signed in the third person transmitting the
manuscript to William Wirt, one of Jefferson's attorneys. The
manuscript is undated, but the note is dated August 20, 1810.In 1807, a dispute arose in the newly formed state of Louisiana when lawyer Edward Livingston claimed ownership of a section of beach and planned to construct a private port there. Area locals, however, strongly opposed the building and called upon Governor William Claiborne to ensure the river's free and open access. Claiborne, in turn, sought the advice of then president Thomas Jefferson. In 1808, Jefferson seeing the importance of access to the Mississippi River remaining in the public sector, sent U.S. marshals to evict Livingston and his workers from the site, and the incensed Livingston sued the government and Jefferson in the circuit court in Richmond. Of particular concern to Jefferson was that Federalist John Marshall, who he perceived as an enemy, was, in addition to his duties on the Supreme Court, sitting in Richmond as the Circuit Court judge. To strengthen his case, Jefferson, by this time no longer president, hired three attorneys, George Hay, Littleton Waller Tazewell, and William Wirt. Nevertheless, he conducted much of the research himself, and on July 31, 1810 drafted a lengthy statement in his defense, a document that he continued to revise. As a result of the District Court ruling, Livingston obtained some portion of the land, while Judge John Tyler, with Marshall's concurrence, ruled that Jefferson could not be sued in Virginia for a cause of action arising out of land situated in the Louisiana Territory. Although the Livingston suit was nullified by the District Court, Jefferson wanted the case to go to trial, so the issue could get a full hearing. Not willing to let the issue drop without all of the facts before the public, Jefferson arranged for his brief to be published as The Proceedings of the Government of the United States, in Maintaining the Public Right to the Beach of the Missisipi [sic], Adjacent to New-Orleans, Against the Intrusion of Edward Livingston (New York, 1812).
The following are the notes relating to the legal brief Jefferson drafted concerning the case. His mention of Crozat is in reference to Antoine Crozat, who was given a charter to the territories in Louisiana by Louis XIV in 1712. The document reads, in full:
"Obj. that Joutel's journal may not be admitted as evidence of the Charter to Crozat.
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 that tho' we may not resort 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 control, 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. that the incorporation of the Roman law with the Customs of Paris, & their joint transfer to Louisiana does not appear.
Ans. 1. at the date of Crozat's patent, 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. 2. if the term Coutumes de Paris, in the patent, 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 together '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 space 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 line 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,' 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.
Note to page 36. L. 4.t. it is thought that this subject needs further explanation from the authorities which have been quoted it results as a principle that 'inundation (whether caused by repletion of the foundations, by rains, melted snows, or refluence of the regular floods of the ocean) inundation, I say, does not change the bank of the river, whether natural or artificial, nor remove the landmark established on that by the limit of the water, in the High-water season, whether that be Summer or Winter.' And this principle is the law for every river, as well those of general, as of particular character.
To apply it to ordinary river. 1. These have, along their greater part, & some of them thro' their whole course, natural banks, adequate to the confinement of their waters, in the high-water season, except in cases of accidental inundation, have then the Roman authorities tell us the inundation does not change the bank, nor the landmark on it. 2. Along other parts, where the natural bank was not high enough to contain the river in it, season of steady high water, the hand of men has raised an artificial bank on the natural one, which effects this purpose, with the exception, as before, of accidental inundations, where such happen. This artificial bank performs all the functions of the natural, & is placed under the same law. 3. In other parts of them, the natural banks are still not high enough to contain the high tides, nor have they yet been made so by the hand of man, here then the law cannot operate because the local peculiarities, as yet, exclude the case from its provisions. The ground so covered by inundation, is indeed public properly: but the legislator instead of holding it as the bed of the river, grants it to individuals, as far as to the natural or incipient bank, that they, by completing the bank, may reclaim the land for their own & the public good, and this, done, the law comes into action on it. Much of this reclaimed, & unreclaimed land exists in all these states.
To proceed to rivers of particular character. The Nile has natural banks sufficient to contain all it's waters, through the whole of Upper Egypt, in Lower Egypt they were not sufficient; but they have been made so artificially; so that Lower Egypt is now no more subject then the Upper, to inundation; its banks, natural & artificial, protecting the lands of the whole country. Yet, for the purposes of irrigating & fertilizing them, as we do our meadows, when the river is at its full height, they cut their banks, at certain places, and let the waters on the fields. But this inundation, as the Digest, ubi supra, tells us, does not change the banks. 'nemo dixit Nilum ripas suas mulare [illegible].' When the river retires within its natural bed, the banks are again secured. 'cum ad perpetuam sui mensuram redicrit, ripae alvei ejus muniendae sunt.' Ib.
1. The Upper Mississippi, like the Upper Nile, has competent natural banks thro' probably, three fourths of its whole course. There then the Roman law is applicable in its very letter. 2. For about 400 miles more, the natural banks have been aided by artificial ones, on both sides, so as to contain all the waters of the flumen plenisimum:
Plenisimum: and the inhabitants there have no occasion, as these of the Nile to open their banks for the purpose either of fertilizing or irrigating the lands, here then there is still less reason than in the case of the Nile, to say that 'the Mississippi has changed its bank.' 3. On the lower parts of the Mississippi, and some of its middle portion, especially on its Western side, artificial banks have not yet been made, and the country is regularly inundated, as it is on those parts of our Atlantic rivers not yet embanked, but our increasing population will continue to extend these banks, and, for this purpose, our governments grant the lands to individuals and the same we know is done on the Mississippi. The Cyprieres adjacent to N. Orleans, for example, tho' covered with the refluent water from the lake, we know have been granted to individuals, and will, with the rest of the drowned lands, be reclaimed in time, as all Lower Egypt has been.
Thus then we find the laws of the Tyber and Nile transferred & applied to the Mississippi with perfect accuracy, and that all rivers may be governed by the same laws. Other rives are subject to accidental floods; which are declared however not to disturb the law of the plenissimum flumen. The Nile & the Mississippi, not being subject to accidental floods, the flumen plenissimum, with them, is steady & undisturbed and needs not the benefit of that exception. Nor will the reason of the law be changed, whether the cause of the inundation be the saturation of the earth & fountains, or rains, or melted snows, or the reflux of the ocean. The principle remains universally the same, that the landmark, when once established by a competent bank, is not changed by inundation or by any cause or circumstance of its high waters."
An interesting manuscript showing Jefferson, almost 70 years of age, maintained his prowess as a lawyer. He had been admitted to the Virginia bar in 1767, and served in the Virginia House of Burgesses until his skills were turned to use in the writing of the Declaration of Independence.
Edward Livingston (1764-1836) was a lawyer and political leader who practiced in New York alongside the likes of Aaron Burr and Alexander Hamilton. In 1801, he became mayor of New York City, but after the city's yellow fever epidemic and his own personal financial troubles, Livingston moved to New Orleans. His brother Robert was one of the key negotiators of the Louisiana Purchase.
Condition: Flattened folds, with light toning around the edges. The first page of the manuscripts has a small area of red soiling at the left margin. The corners are creased with some minor paper loss. There are some small tears, chipping, and areas of paper loss along the left vertical edge where the pages were removed from a larger volume.
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