Page

209

Resemblance between the Mississippi and the Nile admitted on both
sides, and that the same laws are applicable to both. Laws of the
Romans respecting the Nile. Have foreseen and rejected Mr. J's
quibbles. Lay down in the clearest terms that what the waters of a
river cover in the time of inundation, is no part of its bed
Rights of the sovereign over the bed and banks of rivers. Mr. J's pro-
positions on the subject obscure and contradictory. Granted that the
public have a right to their use, for certain purposes, and that the
owner of the soil has no right to erect works so as to impede that use - 213
But no previous permission of the magistracy is required, nor can erec-
tions be prevented, unless complaint is made, and then only security
is required from the owner that he will not obstruct the public use
The law of the territory of Orleans requiring the assent of a riparian
jury before an owner of batture-land can advance his levée, was made
subsequent to my dispossession, and therefore Mr. J. blames me un-
justly for not having obtained that assent

And he adds insult to injury when he says that I might have obtained
such assent, and resumed my works, after I was dispossessed. For
the batture was seized as the property of the United States, and no
local authority could or would interfere with their alleged title
This last assertion inconsistent with the acts of the executive, and with
all the former arguments used to support them. It is also an aban-
donment of the claim of property in the United States
IV. Mr. J.'s fourth head of defence, that the use which I made of the
batture was dangerous and inconsistent with the laws of the territory.
Not true. My works were presented by a grand jury as a nuisance,
and the presentment was not followed up. Not the business of a
president of the United States to watch over the police of rivers and
abate nuisances. It belongs to the local government, and its subordi-
nate authorities

This point constitutionally considered

If the president had a right to remove the nuisance, he has not done it, he has only removed me from the possession of the batture Declamation calculated to excite prejudices against me. Pestilence, fever, death, destruction, ruin, and inundation. Humane conclusion that I deserved to be committed to the flames. Secret motives of this violent denunciation

Mr. Jefferson speaks in the plural number, assumes the style of royalty, and why?

His proceedings considered in a remedial point of view. His argument
reduced to three heads. 1. His right to abate nuisances. 2. His right,
on general principles, to resume by force property of the United
States illegally taken. 3. The act of congress of 1807. First point al-
ready anticipated
Second point. The United States have a right to seize their property
forcibly, or, as Mr. J. calls it, at short hand. Origin of this term. Pro-
position denied, and the contrary proved. Spanish law. Law of
England. How the Roman law, according to Mr. J. is immaterial to
this case, and at the same time the only material rule
Third point. The act of Congress of 1807. No justification to Mr. J.
1. Because my case did not come within that act. 2. Because its di-
rections were not pursued. 3. Because, if it warranted the proceed-
ings in my case, it is unconstitutional

1. My case not within the letter or spirit of the act. Its object squatters,
and uncultivated lands. Not applicable to city lots. Only to lands
ceded or secured to the United States, and to those of which posses-
sion was taken after its passage. But the batture came within neither
of these descriptions

II. Directions of the act not pursued. Removal not to take place until the 1st of January and afterwards until the 1st of July, 1808, nor before commissioners had made their report, and after three months' previous notice. The order for my removal was given in November, 1807,

214

215

ibid.

217

219

220

221

222

224

ibid.

225

234

ibid.

without waiting for a report of commissioners, and without giving me any notice

III. The act, if it comprehends my case, is unconstitutional. 1. It creates a confusion of powers, opposed to the nature and spirit of our government. Effects of such confusion. Exhibited in the present case. Striking application of a passage from Juvenal descriptive of the tyranny exercised at Rome under Tiberius

2. Judiciary power vested by our constitution in a series of regular tribunals. Danger of committing it to executive officers. Cabinet council said to have been called by the President, and to have given an unanimous decision in the case. Fact not admitted. Question, however, considered

Cabinet Council not contemplated by the constitution, not even for executive, much less for judicial purposes. Origin of the practice of calling a Cabinet Council. Its tendency and effects. Mr. J. the first, if his allegation be true, who erected it into a Court for the purpose of deciding on the title to the batture, and on the mode of dispossessing its owner. Strong reasons to doubt the fact. If true, however, it is a violation of the constitution, and does not lessen the President's responsibility

3. The act in question and the practice under it, are violations of the
constitution in other points of view. Amendments, art. 7. Territorial
ordinance. No man to be deprived of his liberty or property, but by
the judgment of his peers, or the law of the land. What is meant by
the law of the land? Clearly not an arbitrary act either of the legisla-
ture or of the executive, or of both. The seizure by force, by either,
of what the public chuses to call its own, is such an arbitrary act
This principle further explained. If the nation can take forcibly what it
calls its own, and at the same time cannot be sued, there is no fence
whatever against tyranny. Illustrated by a statement of what took
place in my own case. My property seized by force. My fruitless en-
deavours to obtain a trial of any kind, so that I only should be heard.
Attendance on the president. On congress. Solicitations-All in
vain. Pathetic description by Spenser of a situation similar to mine.
My complaints laughed to scorn, and styled Jeremiades by Mr. J. My
circular letter to the members of congress, selected as one of the ob-
jects of his pleasantry. Discussion of the principle that the state
cannot be sued. Recapitulation

The true construction of the act of 1807, so well understood at New
Orleans, that on the appearance of the president's mandate, the
superior court of the territory issued an injunction to prevent its
execution. My petition for that injunction, and order thereon
Mr. J. objects to the legality of the proceedings of the superior court
of Orleans. 1. Because the United States were not a party to the
suit between Gravier and the corporation of New Orleans. 2. Because
the court had no jurisdiction of the subject of the suit. 3. Because
the process of injunction is a chancery remedy, which they were
not authorised to grant

1. The United States not a party. Force of the objection granted, if they
claimed the batture in their own right and for their own use; but
they claimed it as trustees for the corporation of N. Orleans, who
were parties to the suit. Proofs of this fact. Their title was also
brought forward before the court in bar of the plaintiff's recovery, and
on a full hearing judgment was given against it

2. The court had no legal cognizance of the cause, because the United States cannot be sued in any court without their consent. Answer to this argument anticipated, (p. 257.) The corporation of N. Orleans, by Mr. J's. own acknowledgment, were in possession of the batture, and might legally be sued

3. The court had no right to issue an injunction, to quiet a possession, or to try without a jury. These modes of proceeding belong exclusively to a court of chancery, and by the territorial ordinance, the judges of

Page

241

247

250

251

257

ibid.

263

265

266

268

the superior court have only common law jurisdiction. Answer. This objection is a mere quibble, a play on the words "common law and chancery." Mr. J. acknowledges that the former do not mean the common law of England, but the common law of Louisiana, which is the Roman civil law. From this law, indeed, the English chancery proceedings have been borrowed, but it is not the less, on that account, the common law of the land. Injunction and quieting of possession, are among the ordinary forms of proceeding, and have proper Latin names in the civil law. A court may translate technical terms from Latin into English without exceeding its jurisdiction Answer to the objection that the Court proceeded without a jury-The judges, says Mr. J., shuffled themselves in the place of the jury. False and unjust accusation. Trial by jury unknown to the civil law. Act of congress directing that causes in the Territory of Orleans, shall be tried by a jury, if either of the parties require it. The defendants had full opportunity to demand a jury trial, but did not chuse to do it, and why? The president knew all these facts, and yet makes this serious charge in the face of them. Against men of his own appointment. Against men whom he calls respectable, and whom he knows to be so General recapitulation

Under this view of the case, can the president justify himself by means of the plea of honest error? Answer: No. Because error in judgment does not in general excuse an executive or ministerial officer. It only excuses him when he is directed by law to act according to the result of his own opinion, and when there is no constitutional bar to his being invested with such discretionary power. But neither were the case in this instance, therefore, error in judgment is no excuse for the act complained of. Nor can any bad consequences arise from this responsibility

But did the president, in this case, really err in judgment? If so, why
did he select my batture from so many others similarly situated, and
equally with mine the property of the United States, and their
owners, not like me, in possession by the judgment of a competent
court? Nothing peculiar in my title, but what made my case more
favourable than that of the other riparian owners. In other respects,
their situation, their rights were the same as mine. Probable motives
of the late president's conduct. Conclusion

Postscript. Judgment of the District Court of the United States for the
state of Louisiana, declaring Mr. J.'s proceeding to have been illegal,
and restoring me to the possession of the batture
Appendix

Page

269

273

279

283

285

290

291

ERRATA.

Since the last sheet of this number was printed off, the following Errata have been discovered, which are here noticed."

Page 140, in note, for appendix No. III, read appendix No. IV.

169, line 11, for 4 Inst. read 2 Inst.

Ib. lines 11, 12. for §. Riparum 4, read §4. Riparum.

Ib. line 26, for § Præterea, 10 Inst. read § 20. Præterea, 2 Inst.

Ib. line 31, for Demoulin, read Dumoulin.

176, line 34, for quase read quasi.

247, line 9, for The government, read 1. The government.
250, line 13, for But I do not, read 2. But I do not.

MR. LIVINGSTON'S ANSWER.

WHEN a public functionary abuses his power by any act which bears on the community, his conduct excites attention, provokes popular resentment, and seldom fails to receive the punishment it merits. Should an individual be chosen for the victim, little sympathy is created for his sufferings, if the interest of all is supposed to be promoted by the ruin of one. The gloss of zeal for the public is therefore always spread over acts of oppression, and the people are sometimes made to consider that as a brilliant exertion of energy in their favour, which, when viewed in its true light, would be found a fatal blow to their rights.

In no government is this effect so easily produced as in a free republic: party spirit, inseparable from its existence, there aids the illusion, and a popular leader is allowed in many instances impunity, and sometimes rewarded with applause for acts that would make a tyrant tremble on his throne. This evil must exist in a degree; it is founded in the natural course of human passions-but in a wise and enlightened nation it will be restrained -and the consciousness that it must exist, will make such a people more watchful to prevent its abuse. These reflections occur to one, whose property without trial or any of the forms of law, has been violently seized by the first magistrate of the Union-who has hitherto vainly solicited an inquiry into his title, who has seen the conduct of his oppressor excused or ap plauded, and who, in the book he is now about to examine, finds an attempt openly to justify that conduct upon principles as dangerous as the act was illegal and unjust.-This book relates to a case which has long been before the public, and purports to be the substance of instructions prepared by Thomas Jefferson, late president of the United States, for his counsel in a suit inNo. XVIII.

P

stituted by me against him.-After four years* earnest entreaty, I have at length obtained a statement of the reasons which induced him to take those violent and unconstitutional measures of which I have complained.

It would perhaps be deemed unreasonable to quarrel with Mr. Jefferson for the delay, when we reflect how necessary Mr. Moreau's Latin and Mr. Thierry's Greek, Poydras's elegant invective, and his own Anglo Saxon researches were, to excuse an act for which at the time he committed it he had no one plausible reason to allege. Such an act, certainly, is easier to perform than to justify, and Mr. Jefferson has been right in taking four years to consider what excuse he should give to the world for his conduct, and still more so in laying under contribution all writings, all languages, all laws, and in calling to his aid all the popular prejudices which his own conduct had excited against me. He wanted all this and more, to make a decent defence. But it was rather awkward to press into his service facts which it is confessed he did not know at the time, and something worse than awkward to impose on the public, as I shall shew he has, by false translations and garbled testimony. But we must excuse the late president; "his wish had rather been for a full investigation of the MERITS at the BAR, that the public might learn in that way, that their servants had done nothing but what the laws had authorised and required them to do;" and "PRECLUDED now from this mode of justification, he adopts that of publishing what was meant originally for the private eye of counsel.” I give the words of the author here, lest in this extraordinary sentence I should be suspected of having misrepresented or misunderstood him. An individual holding a tract of land under one whose title had been acknowledged and whose possession had been confirmed by a court of competent authority, is violently dispossessed by the orders of the president of the United States, without any of the forms of law and in violation of the most sacred provisions of the constitution; the ruined sufferer seeks redress, first by expostulation;-he offers to submit to the decision of indifferent men, and he is refused; he offers to abide by the sentence of men chosen by the president, and he is

* See in my correspondence with the attorney general, page 14, the ineffectual entreaties I used to obtain a copy of his opinion and a statement of the reasons on which he acted.