Volume 8 / Part 3 — PART III. THE BATTURE AT NEW-ORLEANS. (continued 3)

| Message to Congress. 77*| 'To the Senate and House of Representatives of the United States. In the city of New-Orleans and adjacent to it are sundry parcels of ground, some of them with buildings and other improvements on them, which it is my duty to present to the attention of the legislature. The title to *these grounds appears to have been retained in the former sovereigns of the province of Louisiana, as public fiduciaries, and for the purposes of the province. Some of them were used for the residence of the Governor, for public offices, hospitals, barracks, magazines, fortifications, levées, &c. others for the town house, schools, markets, landings, and other purposes of the city of N. Orleans. Some were held by religious corporations, or persons; others seem to have been reserved for future disposition.

To these must be added a parcel called the batture, which requires more particular description. It is understood to have been a shoal, or elevation of the bottom of the river, adjacent to the bank of the suburb St. Mary, produced by the successive depositions of mud during the annual inundations of the river, and covered with water only during those inundations. At all other seasons it has been used by the city, immemorially, to furnish earth for raising their streets, and court yards, for mortar and other necessary purposes, and as a landing or Quai for unlading firewood, lumber, and other articles brought by water. This having lately been claimed by a private individual, the city opposed the claim on a supposed legal title in itself: but it has been adjudged that the legal title was not in the city. It is however alleged that that title, originally in the former sovereigns, was never parted with by them, but was retained by them for the uses of the city and province, and consequently has now passed over to the U. S. Until this question can be decided under legislative authority, measures have been taken according to law, to prevent any change in the state of things, and to keep the grounds clear of intruders. The settlement of this title, the appropriation of the grounds and improvements formerly occupied for provincial purposes to the same, or such other objects as may be better suited to present circumstances; the confirmation of the uses in other parcels to such bodies corporate, or private, as may of right, or on other reasonable considerations, expect them, are matters now submitted to the determination of the legislature. The paper and plans now transmitted, will give them such information on the subjects as I possess, and, being mostly originals, I must request that they may be communicated from the one to the other house, to answer the purposes of both. TH: JEFFERSON. March 7, 1808.'

|Removal of the case before them. 78*| This removal of the case before Congress closed the official duties of the Executive, and his interference respecting these grounds: except that the attorney of the United States for the district of Orleans having given written permission to the inhabitants to use the batture as before, this, on the application of Mr. Livingston, was directed to be withdrawn by a letter from the Secretary of State, of Oct. 5. '09. This was correct. It placed the inhabitants exactly *on their former footing, without either permission or prohibition on the part of the National government.

The possession, the only charge of the Executive, was now cleared from intrusion, and restored to its former condition: and the question of title committed to the Legislature, the only authority competent to its decision. If they considered the ground taken by the Executive as incorrect, their vote, or their reference of the case to Commissioners, would correct it: and as to damages, if any could justly be claimed, they were due, as in other cases, not from the judge who decides, but the party which, without right, receives the intermediate profits. If, on the other hand, Congress should deem the public right too palpable, (as to me it clearly appears,) and the claim of the plaintiff too frivolous, to occupy their time, they would of course pass it by. And certainly they might as properly be urged to waste their time in questioning whether the beds of the Potomak, the Delaware, or the Hudson, were public or private property, as that of the Missisipi. Their refusing to act on this claim therefore for five successive sessions, though constantly solicited, and their holding so long the ground taken by the Executive, is an expression of their sense that the measure has been correct.

| Responsibility of a public functionary.| I have gone with some detail into the question of the plaintiff's right, because, however confident of indulgence, in the case of an honest error, I believed it would be more satisfactory to show, that in the exercise of the discretionary power entrusted to me by Congress, a sound discretion had been used, no act of oppression had been exercised, no error committed, and consequently no wrong done to the plaintiff. I have no pretensions to exemption from error. In a long course of public duties, I must have committed many. And I have reason to be thankful that, passing over these, an act of duty has been selected as a subject of complaint, which the delusions of self interest alone could have classed among them, and in which, were there error, it has been hallowed by the benedictions of an entire province, an interesting member of our national family, threatened with destruction by the bold enterprise of one individual. If this has been defeated, and they rescued, good will have been done, and with good intentions. Our constitution has wisely distributed the administration of the government into three distinct, and independent departments. To each of these it belongs to administer law within its separate jurisdiction. The judiciary in cases of meum and tuum, and of public crimes; the Executive, as to laws executive in their nature; the legislature in various cases which belong to itself, and in the important function of amending and adding to the system. Perfection in wisdom, as well as in integrity, is |79*| neither required, nor expected in these *agents. It belongs not to man. Were the judge who, deluded by sophistry, takes the life of an innocent man, to repay it with his own; were he to replace, with his own fortune, that which his judgment has taken from another, under the beguilement of false deductions; were the Executive, in the vast mass of concerns of first magnitude, which he must direct, to place his whole fortune on the hazard of every opinion; were the members of the legislature to make good from their private substance every law productive of public or private injury; in short were every man engaged in rendering service to the public, bound in his body and goods to indemnification for all his errors, we must commit our public affairs to the paupers of the nation, to the sweepings of hospitals and poor-houses, who, having nothing to lose, would have nothing to risk. The wise know their weakness too well to assume infallibility; and he who knows most, knows best how little he knows. The vine and the fig-tree must withdraw, and the briar and bramble assume their places. But this is not the spirit of our law. It expects not impossibilities. It has consecrated the principle that its servants are not answerable for honest error of judgment. 1. Ro. Abr. 92. 2 Jones 13. 1 Salk. 397. He who has done this duty honestly, and according to his best skill and judgment, stands acquitted before God and man. If indeed a judge goes against law so grossly, so palpably as no imputable degree of folly can account for, and nothing but corruption, malice or wilful wrong can explain, and especially if circumstances prove such motives, he may be punished for the corruption, the malice, the wilful wrong; but not for the error: nor is he liable to action by the party grieved. And our form of government constituting its respective functionaries judges of the law which is to guide their decisions, places all within the same reason, under the safeguard of the same rule. That in deciding and acting under the law in the present case, the plaintiff, who may think there was error, does not himself believe there was corruption or malice, I am confident. What? was it my malice or corruption which prompted the Governors and Cabildoes to keep these grounds clear of intrusion? Did my malice and corruption excite the people to rise, and stay the parricide hand uplifted to destroy their city, or the grand jury to present this violator of their laws? Was it my malice and corruption which penned the opinion of the Attorney General, and drew from him a confirmation, after two years of further consideration, and when I was retired from all public office? Was it my malice or corruption which dictated the unanimous advice of the heads of departments, when officially called on for consultation and advice? Was it my malice and corruption which procured the immediate thanks of the two houses of legislature of the territory of Orleans, and a renewal of the same thanks |80*| *for the same interference, in their late vote of February last? Has it been my malice and corruption which has induced the national legislature, through five successive sessions, to be deaf to the doleful Jeremiads of the plaintiff on his removal from his estate at New Orleans? Have all these opinions then been honest, and mine alone malicious and corrupt? Or has there been a general combination of all the public functionaries Spanish, French, and American, to oppress Mr. Livingston? No. They have done their duties, and his Declaration is a libel on all these functionaries. His counsel, indeed, has discovered [Opinions LXXIV] that we should have had legal inquests taken, writs of enquiry formed, prosecutions for penalties, with all the et cæteras of the law. That is that we should be playing push-pin with judges and lawyers, while Livingston was working double tides to drown the city. If a functionary of the highest trust, acting under every sanction which the constitution has provided for his aid and guide, and with the approbation, expressed or implied, of its highest councils, still acts on his own peril, the honors and offices of his country would be but snares to ruin him. It is not for me to enquire into the motives of the plaintiff in this action. I know that his understanding is of an order much too high to let him believe that he is to recover the value of the batture from me. To what indirect object he may squint with one eye, while the other looks at me, I do not pretend to say. But I do say, that if human reason is not mere illusion, and law a labyrinth without a clue, no error has been committed: and recurring to the tenor of a long life of public service, against the charge of malice and corruption I stand conscious and erect.

TH: JEFFERSON.

Monticello, July 31, 1810.

For Mr. Livingston's Answer, see Hall's American Law Journal, Vol. 5, p. 113, of the Baltimore edition of 1814.