THE WRITINGS OF



THOMAS JEFFERSON











Definitive Edition



CONTAINING HIS







AUTOBIOGRAPHY, NOTES ON VIRGINIA, PARLIA-



MENTARY  MANUAL, OFFICIAL PAPERS,



MESSAGES AND ADDRESSES, AND OTHER



WRITINGS, OFFICIAL AND PRIVATE,



NOW COLLECTED AND







PUBLISHED IN THEIR ENTIRETY FOR THE FIRST TIME







INCLUDING







ALL OF THE ORIGINAL MANUSCRIPTS, DEPOSITED IN THE DEPARTMENT



OF STATE AND PUBLISHED IN 1853 by ORDER OF THE



JOINT COMMITTEE OF CONGRESS







WITH NUMEROUS ILLUSTRATIONS



AND



A COMPREHENSIVE ANALYTICAL INDEX















ALBERT ELLERY BERGH



EDITOR











VOL. XVIII.



















ISSUED UNDER THE AUSPICES OF



THE THOMAS JEFFERSON MEMORIAL ASSOCIATION



OF THE UNITED STATES



WASHINGTON, D. C.



1907





















        COPYRIGHT, 1905,



        BY



        THE THOMAS JEFFERSON MEMORIAL



        ASSOCIATION

















        JEFFERSON'S CONTRIBUTION TO



        A FREE PRESS. 















  Perhaps the strongest utterance of faith in the



power of a free, honest and liberty-loving press,



made by man, was Jefferson's declaration: "Were



it left to me to decide whether we should have a



government without newspapers or newspapers



without a government, I should not hesitate a



moment to prefer the latter. "







 Was this too high praise of newspapers? History



furnishes the answer: it was the press and the



printed letters of Payne, Jefferson, Madison, Adams



and others, read in every nook and corner of the



colonies, which aroused the people of America to



secure independence, rather than the thrilling elo-



quence of the Patrick Henrys, heard by small



audiences; and almost every right won for the



people since Guttenberg has owed its success to the



agitation, argument and exhortation of newspaper



and pamphlet. Indeed, but for the invention of



the art of printing and its wise use by men like



Jefferson, who were devoted to liberty, the flood-



tide of freedom would have been centuries later in



reaching the shores of the New World. In a letter



from Paris on Shays's Rebellion, which shows that







   VOL. XVIII-A







        i













ii        Jefferson's Contribution to a







he was decades ahead of his time, Jefferson gave



expression to his high estimate of the value of news-



papers as moulders of sound public opinion. He



wrote :







  " The people are the only censors of their gover-



nors; and even their errors will tend to keep them



to the true principles of their institution. To



punish these errors too severely would be to sup-



press the only safeguard of the public liberty. The



way to prevent these irregular interpositions of the



people is to give them full information of their



affairs, through the channel of public papers, and



to contrive that those papers should penetrate the



whole mass of the people. The basis of our govern-



ment being the opinion of the people, the very first



object should be to keep that right; and were it



left to me to decide, whether we should have a



government without newspapers, or newspapers



without a government, T should not hesitate a



moment to prefer the latter. But I should mean



that every man should receive those papers, and



be capable of reading them. "







  In 1786, to Dr. James Currie, he wrote : " Our



liberty depends on the freedom of the press and that



cannot be limited without being lost. " In 1808,



in answer to an address, he wrote: " The liberty of



speaking and writing guards our other liberties."



To General Washington, in 1792, he wrote : " No



government ought to be without censors; and



where the press is free, no one ever will. "

















        Free Press       iii







  Mr. Jefferson, more than any man of his day,



appreciated the mighty power of the printed page.



Indeed it may be doubted whether any man of any



age appreciated so truly its capacity to create public



sentiment. He more than any of his famous con-



temporaries understood that the man imbibes what



he reads more than what he hears. But more and



better than that: he recognized the priceless value



of a free press, just as he felt the necessity of free-



dom to worship God without restraint. Freedom



was to him a religion. He hated anything that



hindered man's liberty to think, to write, to speak



to do. His life was largely given to unfettering



the mind of man. " I have sworn," he wrote, " upon



the altar of God, eternal hostility against every



form of tyranny over the mind of man. "







  The statute for religious liberty, drawn by him



and enacted by the Virginia Assembly, was the first



step in the line of carrying out the oath he had taken



" upon the altar. " His whole life shows that he was



never " disobedient to the heavenly vision " which



inspired that oath. He deemed it one of the three



achievements of his life worthy to be carved on the



granite shaft, which he directed to be placed above



his grave. He acquired his deep-seated hostility



to religious bigotry and to church establishment-



(nearly always twin brothers)-when he saw dis-



senting preachers carried to jail for what Patrick



Henry called " the crime of preaching the gospel. "



The sense of outrage that a man should be impris-

















iv        Jefferson's Contribution to a







oned for not accepting a creed which he could not



believe,-that seemed to his tolerant mind the



unpardonable sin--the sin that loomed above all



other transgressions. His resentment toward those



who would compel men to worship according to



dictation from priest or politician was so deep



that the pendulum of his mind swung in the opposite



direction so far, that his intolerance for church



establishment and clerical persecution and religious



tyranny-(the trinity of abortions upon Chris-



tianity)-was construed into hostility to religion.



His letters show, whether he accepted the orthodox



creed or not, such a construction does injustice to 



his reverent admiration of the teachings of Jesus.







 Tucker, in his biography of Jefferson, says, " with-



out having either gained a battle, made a speech,



or founded a sect, he raised himself from the ranks



of private life to the highest civil honors of his



country. " Jefferson 's " Autobiography " negatives



the idea that he never made a speech, for, asked



by a member of the Annapolis Congress, how he



"could sit in silence, hearing so much false reason-



ing which a word should refute," Mr. Jefferson



says : " I observed to him, that to refute was indeed



easy, but to silence was impossible ; that in meas-



ures brought forward by myself, I took the laboring



oar, as was incumbent on me." But, having no



special talent and no taste for public speaking, he



leaned upon the press as the medium through which



to reach the American people. In truth he had an

















        Free Press      v







abhorrence of much speaking, and in his "Auto-



biography, " cited the example of Washington and



Franklin as illustrating that short speeches accom-



plish more than long ones, for he says, "I served



with General Washington in the Legislature of Vir-



ginia, before the Revolution, and during it with Dr.



Franklin in. Congress. I never heard either of them



speak ten minutes at a time, nor to any but the main



point, which was to decide the question." He



recognized, too, that it was the people, rather than



the legislators, whose opinion made permanent



statutes and changed constitutions, and his appeal



was always to them. They could be reached only



through the press, and he found a large portion of



the press controlled by those who did not believe



in the ability of men to govern themselves,-papers



so hostile to popular government, as advocated by



Jefferson, that they actually favored the sedition



law, a law that destroyed their own real inde-



pendence. One of the most difficult tasks of Jeffer-



son's life was to secure the establishment of papers



that would combat error, and to preserve their



freedom from every form of tyranny when they were



preaching the doctrine of liberty which he had



sworn to uphold. He did this, too, in a day when a



free press was regarded in official circles and by



most of the world's leaders as sure to destroy stable



government. His faith in a free press was so



supreme that it did literally "remove mountains."







 Before he secured the passage of the statute of

















vi        Jefferson's Contribution to a







religious liberty in Virginia, in law it was a crime



not to baptize children into the Episcopal Church,



to permit Quakers to live in the colony, to fail to



pay compulsory tithes to the State Church. Im-



passioned orators did indeed arouse hostility to the



religious " tyranny over the human mind, " but it



remained for the never-flagging and systematic zeal



of Jefferson to secure the repeal of the laws that



made such religious slavery possible in the New



World.







 The Declaration of Independence, written by the



inspired pen of Jefferson, was the Magna Charta of



American freedom, the corner stone of the temple



of free thought, free speech, free press. " It sounded



through the land like Roderick's bugle-note in the



Highlands; it rallied the wavering and cheered the



firm ; it removed doubt and fixed a purpose ; it



was the guide which, leaving by-paths and cross-



cuts, got into the plain, straight road and said to



the wandering hosts, ` Come on ' ; it settled the



debate, removed the doubt, fixed the resolution;



it burned the bridge ; it crossed the dead line ; it



took the route toward that bourne from which no



rebel returns save with a rope around his neck; it



was a call to nationality, a watch-word, a rallying



point ; its official statement of ultimate aim and



object becoming the pillar of fire which led the



people through the darkest night of their dread



journey toward the Republic." Jefferson regarded



the authorship of that document worthy a place on

















        Free Press            vii







his monument, because it ended civic "tyranny



over the human mind. "







 The University of Virginia, founded to teach and



illustrate the right of man to think and to think



without " restraint or interference, " was the third



accomplishment of his life that the sage of Mon-



ticello deemed important enough to have carved



on his tomb-stone. His devotion to public educa-



tion was a child of his oath of " eternal hostility



against every form of tyranny over the mind of



man. " Many extracts from his public papers and



private letters would illustrate this truth. Three



will suffice. To Dupont de Nemours he wrote,



"Enlighten the people generally, and tyranny and



oppression of body and mind will vanish like evil



spirits a.t the dawn of day. " To Madison he wrote



"Above all things I hope the education of the com-



mon people will be attended to. * * * Educate



and inform the whole mass of the people. Enable



them to see that it is to their interest to preserve



peace and order, and they will preserve them. * * *



They are the only sure reliance for the preservation



of our liberty. " To George White he wrote, " Preach



a crusade against ignorance. Establish and improve



the law for educating the common people. * * *



The tax which is paid for this purpose is not more



than the thousandth part of what will be paid to



kings, priests, and nobles, who will rise up among



us, if we leave the people in ignorance."







 These three achievements made straight the path

















viii        Jefferson's Contribution to a







for the service he rendered to the free press in



America. Indeed they themselves were greatly



contributors to the creation of a free press in the



early days of the Republic, when population was



widely scattered and when the large number of.



unlettered voters depended more for political direc-



tion upon the stump-speech than upon the news-



paper. And, as they were the forerunners of an



uncensored press, that press in turn guarded and



protected civic, religious and intellectual freedom.



While Patrick Henry stirred and moved his small



audiences, which went forth from his impassioned



orations ready to die for liberty, Jefferson, through



his writings, was instilling the same vital truths into



the minds and hearts of thousands who could never



see him or hear his voice.







 While Congress was framing the Federal Con-



stitution, Jefferson was minister to France, succeed-



ing Dr. Franklin, America's first great editor. He



was distressed when he learned that the new Con-



stitution contained no bill of rights, no guarantee



to freedom of religion and the liberty of the press.



A biographer of Jefferson says : " The chief grounds



of his objections to the Federal Constitution as '



framed were the omission of a bill of rights, pro-



viding, clearly and without the aid of sophism, for



the freedom of religion, freedom of the press,



security against standing armies, restriction of



monopolies, trial by jury, and against all suspension



of habeas corpus."    He would, in all probability





















        Free Press             ix







have declared against its ratification, but for his



profound conviction of the immediate need of a



stable government and his faith that the people



would add amendments incorporating the sugges-



tions in his letter to Mr. Madison. Instead of



opposing its ratification, he did what was better.



He advised those who looked to him for counsel that



four States should refuse to ratify until the amend-



ments suggested by him were adopted. North



Carolina, by a majority of an even hundred, in its



Convention at Hillsborough, passed a resolution



reciting that it had " thought proper neither to



ratify now .nor reject the Constitution proposed for



the government of the United States, " and a bill



of rights and certain amendments were presented



by Mr. Willie Jones, a devoted disciple of Jefferson.







  In presenting them Mr. Jones said: " I have, in my



proposition, adopted, word for word, the Virginia



amendments; with one or two additional ones. "







  The North Carolina amendment on the freedom



of the press was in these words : "That the people



have a right to freedom of speech, and of writing



and publishing their sentiments; that freedom of



the pen is one of the greatest bulwarks of liberty



and ought not to be violated. " There is a tradition



in North Carolina that Willie Jones had a letter,



never printed, from Thomas Jefferson, advising the



course pursued by the majority of the Convention,



which he read to the 184 men, man by man, who



voted to stay out of the Union until the amend-

















x        Jefferson's Contribution to a







ments drafted by Jefferson were adopted. So great



was the influence of Mr. Jefferson in North Carolina



-an influence that happily abides to this day-that



no argument or persuasion of Iredell or Davie could



change a vote after the letter of Mr. Jefferson had



been passed from hand to hand.







 Jefferson was the inspiration of the action taken



by the seven States that demanded an amendment



for religious liberty and the freedom of the press.



He actually wrote or inspired amendments to the



Constitution which North Carolina and Rhode



Island insisted upon "previous to ratification."



The amendment to the Federal Constitution guar-



anteeing freedom of the press, which was incorpo-



rated in the fundamental charter of the Republic,



is in these words :







  " Congress shall make no law respecting an estab-



lishment of religion; or prohibiting the free exercise



thereof, or abridging the freedom of speech, or of



the press, or of the right of the people peaceably to



assemble and petition the government for a redress



of grievances: "







  For this amendment and the healthy agitation



that secured it, all men who believe in a free press



will ever hold Jefferson in grateful esteem. It was



contended that this amendment was wholly unnec-



essary-" useless surplusage, " as one Federalist



declared,-but the prophetic eye of the liberty-



loving sage of Monticello looked from Paris across



the Atlantic and saw that the influences that dis-

























        Free Press











trusted the people would muzzle the press, unless



the Constitution forged chains that would deny



power " abridging the freedom of speech or of the



press. " In 1799, evidently having the fear of some



sedition law in his mind, Jefferson wrote to Elbridge



Gerry, " I am for freedom of the press, and against



all violations of the Constitution to silence by force



and not by reason the complaints or criticisms,



just or unjust, of our citizens against the conduct



of their agents. "







 Mr. Jefferson, when insisting upon the amend-



ment denying the right of Congress to make laws



"abridging the freedom of the press," did not see



the exact form which hostility to a free press would



take, but he knew intuitively it would come in



some form if those who distrusted the capacity of



the people to govern themselves, obtained control



of the Federal Government. He had not long to



wait before his prophecy of a war upon a free press,



backed by all the power of the national administra-



tion and accompanied by usurpations hitherto not



dreamed of, was employed to destroy the freedom



of the press. Long before the sedition law he had



seen the hostility to a free press in the Federalist



leaders. Some of the anti-Federalist papers did



not even spare Washington, in their attacks upon



what they called "the monocrats," and, smarting



under their criticisms, the President gave expression



to his objection to an unrestrained press. At that



time, 1794, writing to Madison, who was then in

















xii        Jefferson's Contribution to a







Virginia, Jefferson said: "It is wonderful, indeed,



that the President should have permitted himself



to be the organ of such an attack on the freedom of



discussion, the freedom of writing and publishing."







  The Sedition law, employed to strengthen the



Adams administration, proved its undoing, thanks



to the promptness and the splendid courage of Mr.



Jefferson and his associates. He felt that should



the people submit to the restrictions of the press



in the Sedition law, the hope of free government



was lost, and he aroused himself from his quiet life



to make a supreme struggle to preserve the liberty



for which the American people in the Revolution



had ventured all that men hold dear. Federalism



seemed firmly entrenched. It had become fashion-



able to sneer at the rule of the people, to contemn



free discussion and equality, and in all official



positions there was a feeling that the only good



government was such as the few would frame and



carry on. The men who went to sleep under Wash-



ington 's safe rule were rudely awakened by the



passage of the Alien and Sedition laws-acts that



jeopardized the very life of the young Republic.



Foreseeing that the Federalists would seek to stifle



the voice of the press, Jefferson wrote to Madison



in 1798 : " This summer is the season for systematic



energies and sacrifices. The engine is the press.



Every man must lay his purse and his pen under



contribution. As to the former, it is possible I may



be obliged to assume something for you. As to the

















        Free Press      xiii







latter, let me pray and beseech you€ to set apart



a certain portion of every day to write what may



be proper for the public. "







 Jefferson's arraignment of the law sounded like



a bell in the night-as clear as the first shot at



Lexington or Moore's Creek. Men who were



engrossed in mending their private fortunes and



who had not cared for political life, sprung into



leadership to resist the encroachments upon the



spirit of the Declaration of Independence and the



annulment of the very letter of the amendment



which Jefferson had forced into the Constitution.



To show the purpose and the danger in the Sedition



act, it will be necessary to quote only the following



portion of section z :-







  "And be it further enacted, that if a,ny shall



write, print, utter, or publish, or shall cause or



procure to be written, printed, uttered, or pub-



lished, or shall knowingly and willingly assist or



aid in writing, printing, uttering, or publishing,



any false, scandalous, and malicious writing or



writings against the government of the United



States, or either House of the Congress of the United



States with an intent to defame the said govern-



ment or either House of the said Congress, or the



President, or to bring them or either of them into



contempt or disrepute, or to excite against them,



or either or any of them the hatred of the good



people of the United States, etc., then such persons,



being thereof convicted before any court of the

















xiv        Jefferson's Contribution to a







United States having jurisdiction thereof, shall be



punished by a fine not exceeding two thousand



dollars, and by imprisonment not exceeding two



years. "







 That law had hardly been promulgated before



Mr. Jefferson pronounced it unconstitutional and



commenced the most far-reaching and vigorous



onslaught upon it. He not only aroused the people



of America, but he brought to bear the power of



enlightened public sentiment in England and on



the Continent to produce a world-wide condemna-



tion so strong that, added to the indignant protests



of their constituents, the law-makers would be



forced to repeal it. To John Taylor in 1798 he



wrote: " I enclose you a column, cut out of a London



paper to show you that the English, though charmed



with our making their enemies our enemies, yet



blush and weep over our Sedition law. "







  The first and the only national campaign upon



the issue of appealing to the people to protect the



freedom of the press, guaranteed in' the Federal



Constitution, was inaugurated by Mr. Jefferson



against the Alien and Sedition laws. He not only



inspired the spirit of the criticisms upon these



dangerous laws in the newspapers, but he wrote



the famous Kentucky Resolutions that for years



engrossed the public mind to the exclusion of all



other topics. In the Kentucky Resolutions, upon



the question of the attempt to shackle the press



by the Federal Government, Mr. Jefferson wrote:

















        Free Press        xv







 "It is true as a general principle, and is also



expressly declared by one of the amendments to the



Constitution, that the `powers not delegated to



the United States by the Constitution nor prohibited



by it to the States, are reserved to the States respec-



tively, or to the people; and * * * no power over



the freedom of religion, freedom Of speech, or free-



dom of the press being delegated to the United



States by the Constitution, nor prohibited by it



to the States, all lawful powers respecting the same



did of right remain, and were reserved to the States



or the people. ' * * * There was manifested their



determination to retain to themselves the right of



judging how far the licentiousness of speech, and



of the press, may be abridged without lessening



their useful freedom and how far those abuses



which cannot be separated from their use should



be tolerated, rather than the use be destroyed.



And thus also they guarded against all abridgment



by the United States of the freedom of religious



opinions and exercises and retained to themselves



the right of protecting the same as this State (Ken-



tucky), by a law passed on the general demand of



its citizens, had already protected them from all



human restraint or interference. * * * In addition



to this general principle and express declaration,



another and more special provision has been made



by one of the amendments to the Constitution,



which expressly declares, that "Congress shall



make no law respecting an establishment of religion,

















xvi        Jefferson's Contribution to a







or prohibiting the free exercise thereof, or abridging



the freedom of speech, or of the press," thereby



guarding in the same sentence and under the same



words, the freedom of religion, of speech and of the



press, insomuch, that whatever violates either,



throws down the sanctuary which covers the others,



and that libels, falsehoods, and defamation, equally



with heresy and false religion, are withheld from



the cognizance of Federal tribunals. * * * There-



fore, the act of Congress of the United States passed



on the 14th day of July, 1798, intitulated "An Act



in addition to the act intitulated `An Act for the



punishment of certain crimes against the United



States ', " which does abridge the freedom of the



press, is not law, but is altogether void, and of no



force. " * * * " If these acts (the Alien and Sedition



acts) should stand, these conclusions would flow



from them: That the General Government may



place any act that they think proper on the list of



crimes and punish it themselves whether enume-



rated or not enumerated by the Constitution as



cognizable to the President, or any other person,



who may himself be the accuser, counsel, judge,



and jury, whose suspicion may be the evidence, his



order the sentence, his officer the executioner, and



his breast the sole record of the transaction: that



a very numerous and exact description of the inhabi-



tants of these States being by his precedent reduced



to outlaws, to the absolute dominion of one man,



and the barrier of the Constitution thus swept away

















        Free Press           xvii







from us all, no rampart now remains against the



passions and the powers of the majority in Congress



to protect from a like exportation, or other more



grievous punishment, the minority of the same body,



the legislatures, judges, governors, and councellors



of the States, nor their other peaceable inhabitants,



who ma.y venture to reclaim the constitutional rights



and liberties of the States and people, or who for



other causes, good or bad, may be obnoxious to



the views, or marked by the suspicions of the Presi-



dent, or to be thought dangerous to his or their



election, or other interests, public or personal:



that the friendless alien has indeed been selected



as the safest subject of a first experiment but the



citizen will soon follow or rather, has already fol-



lowed, for already has a Sedition Act marked him



as his prey : that these and successive acts of the



same character, unless arrested at the threshold,



necessarily drive these States into revolution and



blood, and will furnish new calumnies against



republican government, and new pretexts for those



who wish it to be believed that man cannot be



governed but by a rod of iron. "







 The Virginia Resolutions, drawn by Mr. Madison



and approved by Mr. Jefferson, condemned the



Alien and Sedition laws, and, with reference to the



attack on the freedom of the press, employed these



words: " exercises in like manner, a power riot dele-



gated by the Constitution, but, on the contrary,



expressly and positively forbidden by one of the







   VOL. XVIII-B

















xviii        Jefferson's Contribution to a







amendments thereto-a power which, more than



any other, ought to produce universal alarm; because



it is levelled against the right of freely examining



public characters and measures, and of free com-



munication among the people thereon, which has



ever been justly deemed the only effectual guardian



of every other right. "







  Jefferson, seeing the coming of the Sedition law



before it was enacted, was gathering ammunition



with which to attack it before it was on the statute



books. Writing to Mr. Madison April 26th, 1798,



he prophesied thus: "One of the war party, in a



fit of passion, declared sometime ago they would



pass a citizen bill, an alien bill, and a sedition bill;



accordingly, some days ago, Coit laid a motion on



the table of the House of Representatives for modi-



fying the citizen law. Their threats point at Gal-



latin, and it is believed they will endeavor to reach



him by this bill. Yesterday. Mr. Hillhouse laid



on the table of the Senate a motion for giving power



to send away suspected aliens. This is understood



to be meant for Volney and Collot. But it will not



stop there when it gets in a course for execution.



There is now only wanting, to accomplish the whole



declaration before mentioned, a sedition bill, which



we shall certainly soon see proposed. " In Novem-



ber of the same year he wrote to John Taylor : " For



the present, I should be for resolving the Alien and



Sedition laws to be against the Constitution and



merely void, and for addressing the other States

















        Free Press           xix







to obtain similar declarations : and I would not do



anything at this moment which should commit us



further, but reserve ourselves to shape our future



measures, or no measures, by the events which may



happen. "







  In the same year he wrote to Madison of the threat



of an alien and sedition bill, and of the sedition bill



said, "The object of that, is the suppression of the



Whig presses, Bache's has been particularly named.



That paper and also Carey's totter for want of sub-



scriptions. We would really exert ourselves to



procure them, for if these papers fail, republicanism



will be entirely brow-beaten. "



 



 In June, 1799, seeing the fulfillment of his prophecy



he commenced the agitation for the repeal of the



law that abridged the freedom of speech and wrote



to Madison as follows : " They have brought into



the lower House a sedition bill, which, among other



enormities, undertakes to make printing certain



matters criminal, though one of the amendments



to the Constitution has so expressly taken religion,



printing presses, etc., out of their coercion. Indeed



this bill, and the alien bill are both so palpably in



the teeth of the Constitution as to show they mean



to pay no respect to it. "







  He followed closely every act and speech attend-



ing the passage of this objectionable law and all



subsequent debates on it, and gave this pen-picture



in a letter to Mr. Madison in February, 1799, of a



scene in the House of Representatives : " Yesterday

















xx        Jefferson's Contribution to a







witnessed a scandalous scene in the House of Rep-



resentatives. It was the day for taking up the



report of their committee against the Alien and



Sedition laws, etc. They (the federalists) held a



caucus and determined that a word should not be



spoken on their side, in answer to anything that



should be said on the other. Gallatin took up the



Alien, and Nicholas the Sedition law; but after a



little while of common silence, they began to enter



into loud conversations, laugh, cough, etc., so that



the last hour of these gentlemen's speaking they



must have had the lungs of a vendue master to have



been heard. Livingston, however, attempted to



speak. But after a few sentences, the Speaker



called him to order, and told him what he was saying



was not to the question. It was impossible to pro-



ceed. The question was carried in favor of the



report, 52 to 48 ; the real strength of the two parties



is 56 to 50."







 Again, to Madison in the same year, he wrote,



" Petitions and remonstrances against the Alien



and Sedition laws are coming from different parts



of New York, New Jersey, and Pennsylvania. * * *



I am in hopes Virginia will stand so countenanced



by those States as to repress the wishes of the gov-



ernment to coerce her, which they might venture



on if they supposed she would be left alone. Firm-



ness on our part, but a passive firmness, is the true



course. Anything rash or threatening might check



the favorable dispositions of these Middle States,

















        Free Press          xxi







and rally them again around the measures which are



ruining us. "



  



 With the instinct of the political seer he looks



into the future and sees that if the opponents of



that law content themselves with firm and orderly



protests, the attempt to abridge the freedom of the



press will destroy the Federal party. Writing to



Edward Pendleton in February, 1799, he said, " In



Pennsylvania, we fear that the ill-designing may



produce insurrection (against the Alien and Sedition



Laws). Nothing could be so fatal. Anything like



force would check the progress of the public opinion,



and rally them around the government. This is



not the kind of opposition the American people will



permit. But keep away all show of force, and they



will bear down the evil propensities of the govern-



ment, by the constitutional means of election and



petition. " In the same month he wrote thus to



Archibald Stuart: "Several parts of this State



(Pennsylvania) are so violent that we fear an insur-



rection. This will be brought about by some if



they can. It is the only thing we have to fear.



The appearance of an attack of force against the



government would check the present current of the



Middle States, and rally them around the govern-



ment ; whereas if suffered to go on it will pass on to



a reformation of abuses."







 He believed that the Alien and Sedition Law was



but the first step in converting the republic into a



virtual monarchy, for in 1799 he wrote to S. T.





























                 x xii        Jefferson's Contribution to a







Mason : " I consider these laws as merely an experi-



ment on the American mind, to see how far it will



bear an avowed violation of the Constitution. If



this goes down; we shall immediately see attempted



another act of Congress, declaring that the Presi-



dent shall continue in office during life, reserving



to another occasion the transfer of the succession



to the heirs, and the establishment of the Senate



for life. At least, this may be the aim of the



Oliverians, while Monk and the Cavaliers (who are



perhaps the strongest), may be playing their game



for the restoration of his most gracious Majesty,



George III. That these things are in contemplation,



I have no doubt; nor can I be confident of their



failure, after the dupery of which our countrymen



have shown themselves susceptible. "







 When Jefferson was elected to the Presidency



the Alien and Sedition laws were speedily repealed



and all persons convicted or awaiting trial under



them were at once pardoned or released. Referring



to his actions, with reference to persons convicted



under the Sedition law, he wrote to Mrs. John



Adams in July, 1804, "I discharged every person



under punishment or prosecution under the Sedition



law, because I considered and now consider that



law to be a nullity, as absolute and as palpable as if



Congress had ordered us to fall down and worship



a golden image; and that it was as much my duty



to arrest its execution in every stage, as it would



have been to have rescued from the fiery furnace

















        Free Press          xxiii







those who should have been cast into it for refusing



to worship the image. It was accordingly done in



every instance, without asking what the offenders



had done, or against whom they had offended, but



whether the pains they were suffering were inflicted



under the pretended sedition law. "







  During his administration, some of Mr. Jeffer-



son's over-zealous friends in Connecticut had insti-



tuted a prosecution against a clergyman in that



State for a libel against the President from the



pulpit. As soon as he was informed of it, Mr. Jeffer-



son wrote to Mr. Granger, the Postmaster-General,



then in Connecticut, that " he had laid it down as



a law to himself, to take no notice of the thousand



calumnies issued against him, but to trust his char-



acter to his own conduct and the candor of his



fellow-citizens, that he had no reason to be dis-



satisfied with that course; and was unwilling it



should be broken, through. " He therefore desired



him to request the district attorney to dismiss the



prosecution. Having afterwards heard of subpoenas



for witnesses, he made a peremptory request to the



same effect. The district attorney did dismiss the



prosecution, and accompanied the dismission with



the avowal that the court had no jurisdiction over



libels. There were other prosecutions, of which



he had no previous knowledge, but they were all



dismissed at the same time. The clergyman after-



wards, in a letter to Mr. Granger, disavowed all



personal ill will to Mr. Jefferson, and solemnly

















xxiv        Jefferson's Contribution to a







declared he had not uttered the words charged.



These prosecutions were dismissed, as Tucker says



in his " Life of Jefferson, " on the same grounds as



he had himself acted on in the case of Duane, Cal-



lender, and others, in considering the Sedition law



unconstitutional.-







  In a letter to€ Mr. Granger in 1814, Mr. Jefferson



wrote : " With respect to the dismission of the prose-



cutions for sedition in Connecticut, it is well known



to have been a tenet of the republican portion of



our fellow-citizens, that the Sedition law was con-



trary to the Constitution, and; therefore, void.



On this ground I considered it as a nullity whenever



I met it in the course of my duties; and on this



ground I directed nolle prosequis in all the prosecu-



tions which had been instituted under it; and, as



far as the public sentiment can be .inferred from the



occurrences of the day, we must say that this



opinion had the sanction of the nation. The prose-



cutions, therefore, which were afterwards instituted



in Connecticut, of which two were against printers,



two against preachers, and one against a judge,



were too inconsistent with this principle to be per-



mitted to go on. We were bound to administer



to others the same measure of law, not which they



had meted to us, but we to ourselves, and to extend



to all equally the protection of the same constitu-



tional principles. These prosecutions, too, were



chiefly for charges against myself, and I had from



the beginning laid it down as a rule to notice nothing

















        Free Press            xxv







of the kind. I believe that the long course of ser-



vices in which I had acted on the public stage, and



under the eye of my fellow-citizens, furnished better



evidence to them of my character and principles,



than the angry invectives of adverse partisans in



whose eyes the very acts most approved by the



majority were subjects of the greatest demerit and



censure. These prosecutions against them, there-



fore, were to be dismissed as a matter of duty. "







 Why did Mr. Jefferson maintain silence when



unjustly accused and why did he prevent the prose-



cution of men who had slandered him? The answer



is found in his own words. He profoundly believed



that, while a free press would often wound and



temporarily injure, ten thousand times more evil



would follow censorship or prosecutions than to



trust to the innate good sense of the public to



separate the true from the false, and, before Emer-



son put it into an axiom, Jefferson was confident



of this truth: "A man passes for what he is worth.



Very idle is all curiosity concerning other people's



estimate of us, and idle is all fear of remaining



unknown. If a man know that he can do any-



thing-that he can do it better than any one else-



he has a pledge of the acknowledgment of that fact



by all persons. The world is full of judgment days;



and into every assembly that a man enters, in every



action that he attempts, he is gauged and stamped. "



His conviction upon that point was put into an



epigram in a letter to Thomas Seymore in February,

















xxvi        Jefferson's Contribution to a







  1807. He wrote, " The press is impotent when it



abandons itself to falsehood." That truth he more



fully emphasized and elaborated in a long letter to



Mr. Seymore, from which the following extracts



are taken: " Conscious that there was not a truth



on earth which I feared should be known, I have



lent myself willingly as the subject of a great experi-



ment, which was to prove that an administration,



conducting itself with integrity and common under-



standing, cannot be battered down, even by the



falsehoods of a licentious press, and consequently



still less by the press, as restrained within legal



and wholesome limits of truth. This experiment



was wanting for the world to demonstrate the false-



hood of the pretext that freedom of the press is



incompatible with orderly government. I have



never, therefore, even contradicted the thousands



of calumnies so industriously. propagated against



myself. But the fact being once established, that



the press is impotent when it abandons itself to



falsehood, I leave to others to restore it to its



strength, by recalling it within the pale of truth.



Within that, it is a noble institution, equally the



friend of science and of civil liberty. "







 Though Matthew Lyon, soldier, patriot, printer



was put in jail in Connecticut because he accused



Mr. Adams of avarice, vanity and childish love of



pomp, the result of the prosecution of Mr. Lyon



proved the wisdom of Mr. Jefferson's view of "getting



along without public prosecutions for libels." The

















        Free Press         xxvii.







Connecticut people expressed their disapproval of



the prosecution of Lyons by re-electing him to



Congress while he lay in jail. To Levi Lincoln, in



1802, after he had liberated the men prosecuted



under the sedition law, Mr. Jefferson wrote, "I



would wish much to see the experiment tried of



getting along without public prosecutions for libels.



I believe we can do it. Patience and well doing,



instead of punishment, if it can be found sufficiently



efficacious, would be a happy change in the instru-



ments of government. "







 The best place to find Jefferson's mature and



real views are in his acts-the conspicuous part he



bore in incorporating the guarantee of freedom of



the press in State constitutions; the prominent



place he gave to this in every constitution or bill of



rights he suggested or drafted; his forcing into



the Federal Constitution the provision that no laws



should be passed abridging the liberty of the press ;



his sincere, courageous and effective fight against



the unconstitutional and wicked sedition law; his



recommendations in State papers; his inaugural



addresses and the general trend of his writings



and actions.







 In his first inaugural address, Mr. Jefferson was



on the mountain top of faith in the people and



devotion to the freedom of the press, and his con-



victions then may be summed up in this sentence



in a letter to Charles Yancey : " Where the press is



free and every man able to read, all is safe." In

















xxviii        Jefferson's Contribution to a







his first inaugural address he said: "Freedom of



the press I deem (one of the) essential principles



of our government and consequently (one) which



ought to shape its administration. " In the same



address, among the essential principles of govern-



ment he enumerated " the diffusion of information



and arraignment of all abuses at the bar of public



reason; freedom of religion, freedom of the press,



and freedom of the person, under protection of



the habeas corpus; and trial by juries impartially



selected. "







  Between his first inaugural address and the second



Mr. Jefferson and his administration had been the



recipient of a steady stream of misrepresentation



and abuse from the press hostile to his principles



and those of the party he had founded. In his



second inaugural he felt called upon to refer to the



studied and continued attacks, but instead of



recommending some other measure of suppression,



or the re-enactment of the Sedition law, he used



the incident to enforce his abiding faith in his



creed: " The liberty of speaking and writing guards



our other liberties. " Printing has been said to be



" the art preservative of arts. " It is equally true



that the free press is the preservative of all freedom.







 In his second inaugural address, Mr. Jefferson,



while commenting with severity upon the lengths



to which a licentious press had gone in misrepresent-



ing his administration, used the abuse of their



liberty and its failure to accomplish its purpose to

















        Free Press         xxix







injure, as the perfect and complete vindication of



the position he had always maintained. He said:







  " During ' this course of administration, and in



order to disturb it, the artillery of the press has been



levelled against us, charged with whatsoever its



licentiousness could devise or dare. These abuses



of an institution so important to freedom and



science are deeply to be regretted, inasmuch as they



tend to lessen its usefulness and to sap its safety.



They might, indeed, have been corrected by the



wholesome punishments reserved and provided by



the laws of the several States against falsehood



and defamation; but public duties more urgent



press on the time of public servants, and the offenders



have therefore been left to find their punishment in



the public indignation.







  "Nor was it uninteresting to the world, that an



experiment should be fairly and fully made, whether



freedom of discussion, unaided by power, is not



sufficient for the propagation and protection of



truth? Whether a government, conducting itself



in the true spirit of its constitution, with zeal and



purity, and doing no act which it would be unwilling



the whole world should witness, can be written down



by falsehood and defamation? The experiment



has been tried. You have witnessed the scene.



Our fellow-citizens have looked on cool and col-



lected. They saw the latent source from which



these outrages proceeded. They gathered around



their public functionaries ; and, when the Constitu-

















xxx        Jefferson's Contribution to a







tion called them to the decision by suffrage, they



pronounced their verdict, honorable to those who



had served them, and consolatory to the friend of



man, who believes he may be intrusted with his



own affairs.







  " No inference is here intended that the laws pro-



vided by the State against false and defamatory pub-



lications should not be enforced. He who has time,



renders a service to public morals and public tranquil-



lity in reforming these abuses by the salutary coercions



of the law. But the experiment is noted to prove



that, since truth and reason have maintained their



ground against false opinions, in league with false



facts, the press, confined to truth, needs no other



legal restraint. The public judgment will correct



false reasonings and opinions, on a full hearing of



all parties ; and no other definite line can be drawn



between the inestimable liberty of the press and



its demoralizing licentiousness. If there be still



improprieties which this rule would not restrain,



its supplement must be sought in the censorship of



public opinion. "







  But, though he never wavered in his faith in the



blessings of a free press, Mr. Jefferson was so hunted



by the hyenas of a malignant and scurrilous personal



journalism, that he often gave expression to his



sense of outrage at the _misrepresentations of his



character and views, in language that has been



twisted into the idea that he came, in his latter



years, to doubt his early belief that the press should

















        Free Press           xxxi







be unrestrained. Such expressions were always



uttered or written hastily while he was smarting



under what he knew to be undeserved criticism



and abuse, as will be seen by extracts from private



letters written by him. These letters were not



written for publication. In them he was merely



thinking aloud. They convey only a passing wave



of indignation that often causes a man to speak



vehemently to his friend of a sense of injustice.



It is therefore not just to accept such expressions



as his deliberate and well-considered convictions.







 If any public man ever had the right to rail at



the press, that man was Mr. Jefferson, who was



abused and vilified by a portion of it from the day



he secured the repeal of the law of primogeniture



in Virginia almost to the day of his death. Writing



of his fight against Mr. Pendleton's compromise,



proposing to give the elder son a double portion,



in his ' `Autobiography, " Mr. Jefferson thus gives



the substance of his reply : " I observed that if the



eldest son could eat twice as much, or do double



work, it might be a natural evidence of his right to a



double portion ; but being on a par in his powers



and wants with his brothers and sisters, he should



be on a par also in the partition of the patrimony;



and such was the decision of the other members."



In taking that stand, then almost revolutionary,



Mr. Jefferson brought down upon his head, then



and ever afterwards, the wrath of two classes:



First, those who stand for all forms of special privi-

















xxxii        Jefferson's Contribution to a







lege-as primogeniture, church establishment, pro-



tection to particular interests, belief in inherited



monarchies, a censorship of the press, and the like;



second, those, who, by the natural process of inertia,



oppose all innovations under the guise of conserva-



tism. Jefferson was inherently an innovator. No



tradition, no custom, no practice, no belief, that



did not appeal to his judgment and reason had any



sacredness to him. Of all his great measures, when



he first unfolded them, it was as true as of the one



of which he wrote in a letter from France, " The leap



I then proposed was too long, as yet, for the mass



of our citizens. " But he lived to see the country



approve them all before he died. A man who



shows contempt for outworn creeds and beliefs, is



as sure to cut across the grain of the large and reac-



tionary class who cling tenaciously to them as he



is to arouse the hostility of those enjoyers of special



privilege who see their perquisites and bounties



taken from them by a law of equality. To his



defiance of these two classes, and to the misconcep-



tion of the man by those misled by them, Mr. Jeffer-



son was indebted for the storm of abuse that beat



upon his head from the day that the supporters of



primogeniture and the fox-hunting clergy were pro-



voked to resentment by Mr. Jefferson's broad-



minded and liberal measures.







  It is not surprising that he gave vent to his indig-



nation when viciously slandered. The surprise is



that his indignation did not drive him to the point

















        Free Press        xxxiii







of favoring censorship of the press or severe pun-



ishment of editors who wrote false things about



him. Though extremely sensitive to criticism and



sometimes wounded at the sorest point by the



printed libels, he never faltered in his creed that a



free press was " the only tocsin of a nation. " To



Edward Rutledge, in 1796, he wrote, " You have seen



my name lately tacked to so much of eulogy and of



abuse that I dare say you hardly thought that it



meant your old acquaintance of ' 76. In truth, I



did not know myself under the pens of either friends



or foes. It is unfortunate for our peace that unmer-



ited abuse wounds, while unmerited praise has not



the power to heal. These are hard wages for the



services of all the active and healthy years of one's



life. " To Samuel Smith, in 1798, he wrote : " Were



I to undertake to answer the calumnies of the news-



papers, it would be more than all my own time, and     ,



that of twenty aids could effect. For while I should



be answering one, twenty new ones would be



invented. " To John Adams, in 1817, he wrote :



" It is fortunate for those in public trust that pos-



terity will judge them by their works and not by



the malignant vituperations and invectives of the



Pickerings and Gardners of their age." To M.



Pictet he wrote : " The abuses of the freedom of the



press here have been carried to a length never before



known or borne by any civilized nation. * * * Our



newspapers, for the most part, present only the



caricatures of disaffected minds. " To James Mon.







  VOL. XVIII-C





















xxxiv        Jefferson's Contribution to a







roe, in 1798, he wrote: " It is really a most afflicting



consideration that it is impossible for a man to act



in any office for the public without encountering



a persecution which even his retirement will not



withdraw from him."







 The most severe arraignment of the press into



which his resentment to calumny upon himself and



his administration ever led him was toward the



close of his second term. Beset with foreign and



domestic complications, harassed by divisions in



his party in Congress, he was sorely wounded by



the virulent criticisms of the Federalist or anti-



republican press. He felt that he had spent him-



self for his country, without selfish aims, and he



craved, as he was going into retirement, after half a



century devoted to affairs of state, the good will



and appreciation of his fellow countrymen. Instead '



of giving him assurances that his contribution to



the life, safety and guidance of the young Republic



was appreciated, a large part of the press was making



his slightest act the fresh occasion for slander and



detraction. It was at that time, in 1807, that he



wrote the following letter from the national capitol



to George Norvell, in response to a. request as to



how to conduct a newspaper, in which he gave vent



to his feeling of resentment : " To your request of



my opinion of the manner in which a newspaper



should be conducted, so as to b e most useful, I should



answer, `by restraining it to true facts 'and sound



principles only.' Yet I fear such a paper would

















        Free Press         xxxv







find few subscribers. It is a melancholy truth,



that a suppression of the press could not more com-



pletely deprive the nation of its benefits, than is



done by its abandoned prostitution to falsehood.



Nothing can now be believed which is seen in a news-



paper. Truth itself becomes suspicious by being



put into that polluted vehicle. The real extent



of this state of misinformation is known only to



those who are in situations to confront facts within



their knowledge with the lies of the day. I really



look with commiseration over the great body of my



fellow-citizens, who, reading newspapers, 'live and



die in the belief, that they have known something



of what has been passing in the world in their time ;



whereas the accounts they have read in newspapers



are just as true a history of any other period of the



world as of the present, except that the real names



of the day are affixed to their fables. General facts



may indeed be collected from them, such as that



Europe is now at war, that Bonaparte has been a



successful warrior, that he has subjected a great



portion of Europe to his will, etc., etc., but no details



can be relied on. I will add, that the man who



never looks into a newspaper is better informed



than he who reads them; inasmuch as he who



knows nothing is nearer to truth than he whose



mind is filled with falsehoods and errors. He who



reads nothing will still learn the great facts, and the



details are false.







 " Perhaps an editor might begin a reformation in

















xxxvi        Jefferson's Contribution to a







some such way as this : Divide his paper into four



chapters, heading the 1st, Truths. 2d, Probabili-



ties. 3d, Possibilities. 4th, Lies. The first chap-



ter would be very short, as it would contain little



more than authentic papers, and information from



such sources, as the editor would be willing to risk



his own reputation for their truth. The second'



would contain what, from a mature consideration



of all circumstances, his judgment should conclude



to be probably true. This, however, should rather



contain too little than too much. The third and



fourth should be professedly for those readers who



would rather have lies for their money than the



blank paper they would occupy.







  " Such an editor, too, would have to set his face



against the demoralizing practice of feeding the



public mind habitually on slander, and the depravity



of taste which this nauseous aliment induces. Defa-



mation is becoming a necessary of life; insomuch,



that a dish of tea in the morning or evening cannot



be digested without this stimulant. Even those



who do not believe these abominations still read



them with. complaisance to their auditors, and



instead of the abhorrence and indignation which



should fill a virtuous mind, betray a secret pleasure



in the possibility that some may believe them,



though they do not themselves. It seems to escape



them that it is not he who prints, but he who pays



for printing a slander, who is its real author.



  "These thoughts on the subject of your letter

















        Free Press        xxxvii







are hazarded at your request. Repeated instances



of the publication of what has not been intended



for the public eye, and the malignity with which



political enemies torture every sentence from me



into meanings imagined by their own wickedness



only, justify my expressing a solicitude that this



hasty communication may in nowise be permitted



to find its way into the public papers. Not fearing



these political bull-dogs, I yet avoid putting myself.



in the way of being baited by them, and do not



wish to volunteer away that portion of tranquillity,



which a firm execution of my duties will permit me



to enjoy. "







 Mr. Jefferson never but once replied to his critics



in the press-and that was when accused of robbing



a widow and her children while acting as executor.



He did not then write his answer to a paper, but to



a friend, and its calmness and fullness of statement



completely destroyed the slander and discredited



the slanderer. The reasons for his silence under



great provocation are given by himself in letters



to friends. To Wm. Duane, in 1807, he wrote:



"Slander I have thought it best to leave to the



scourge of public opinion." To Martin Van Buren,



in 1824, he wrote, " My rule of life has been never



to harass the public with fendings and provings of



personal slanders. * * * I have ever trusted to



the justice and consideration of my fellow-citizens,



and have no reason to repent it, or change my



course. " To Dr. George Logan, in 1816, he wrote,

















xxxviii        Jefferson's Contribution to a







"As to federal slanders I never wished them to be



answered but by the tenor of my life, half a century



of which has been on a theatre at which the public



have been spectators, and competent judges as to



merit. Their appreciation has taught a lesson,



useful to the. world, that the man who fears, no



truths has nothing to fear from lies. I should have



fancied myself half guilty had I condescended to put



pen to paper in refutation of their falsehoods or



drawn to them respect by any notice from myself. "







  Mr. Jefferson's party founded a newspaper-



Freneau's Gazette,-edited by a clerk in his depart-



ment, while Jefferson was Secretary of State in



Washington's cabinet: It was established to coun-



teract the teachings of Fenno's Gazette, chiefly



edited by Hamilton, which preached the doctrines



held by the Federalist party. The President thought



that Jefferson should dismiss from the public service



Mr. Freneau because he was quite free in criticising



the administration of the Treasury Department



under Hamilton. Though Jefferson stood by Fren-



eau, manifesting a courageous and practical exhibi-



tion of his belief that every man should be allowed



to speak and write what he pleased,  and refused



to accede to Washington's request to dismiss him,



he did not write for Freneau's paper, though Hamil-



ton, . supposing Jefferson to be the author of the



attacks upon his policy in that paper, assailed Jef-



ferson most severely. To these attacks upon him,



as to all others, he made no reply and gave no out-

















        Free Press      xxxix







ward sign that he had read them. To Edmund



Randolph, prior to that time, Jefferson had written;



" I have preserved through life a resolution, set in



a very early part of it, never to write in a public



paper without subscribing my name, and to engage



openly an adversary who does not let himself be



seen, is staking all against nothing: "







 In a letter, September g, I 7 9 2, to General Wash-



ington, who had told Jefferson that articles in



Freneau's paper "tended to produce a separation



in the Union, " and attacking him indirectly, though



thinking him "fool enough to swallow the little



sugar plums here and there thrown out to him "



Jefferson defended himself for giving Freneau, the



poet, an appointment in his office. He declared



that his expectations looked only to the chastise-



ment of the aristocratical and monarchical writers,



and not to any criticism on the proceedings of the



government: that Hamilton could see no motive



for any appointment but that of making a con-



venient partisan, but he knew that talents and



science were with him a sufficient recommendation.



Freneau, as a man of genius, found a preference



with him, and he added: " Freneau and Fenno are



rivals for the public favors ; the one courts them



by flattery, the other by censure; and I believe it



will be admitted that one has been as servile as the



other severe. But is not the dignity, and even



decency of government committed, when one of its



ministers enlists himself as an anonymous writer

















xl        Jefferson's Contribution to a







or paragraphist, for either the one or the other of



them ? And where the press is free, no one ever



will. If virtuous, he need not fear the operation



of attack and defence. Nature has given to man



no other means of sifting the truth, either in religion,



law or politics. I think it is as honorable to the



government neither to know nor to notice syco-



phants or censure, as it would be undignified and



criminal to pamper the former and persecute the



latter. "







  Mr. Jefferson was the more severely abused for



giving a position in the State Department to Mr.



Freneau, probably because the power exerted by



his paper was the cause of the loss of popular favor



by the Federalists in the administration'. Hamil-



ton's defenders dared not admit that it was because



Freneau's paper was destroying their idol's hold



upon the confidence of the country, though that



was the motive that prompted the criticisms of



Mr. Jefferson for retaining the editor in the public



service. Therefore, the Federalists declared the



retention of Freneau to be a  want of courtesy to



his associates in the administration and a breach



of moral duty. To that criticism George Tucker



in his " Life of Jefferson " makes this conclusive



answer :







  " But against no aspersion of his enemies is his



vindication more easy. On the .public measures



thus condemned, his opinions were known, in the



cabinet and out of it, to be diametrically opposite

















        Free Press            xli







to those of Mr. Hamilton, their chief adviser; and



while the press was made to assail him, his opinions,



and motives, he surely had a right to use the same



weapon in their defence. But further: according



to his views of the interests of the country, and of the



object and tendency of Hamilton's policy, it was



not only his right, but his duty, to endeavor to



operate upon public opinion, which was to be the



final arbiter between them. In availing himself of



this auxiliary, he seems never to have transcended



the bounds of legitimate warfare. He practiced



no concealment either of his principles or of his



patronage of Freneau ; he betrayed no confidence ;



he countenanced no doctrines in that paper which,



he did not maintain everywhere else. It does not



appear that he ever wrote for the paper, for that



did not accord with his notions either of prudence



or propriety; but had he done so, he might have



defended himself by the example of his political



antagonist. It must also be recollected that the



political principles and measures of Hamilton and



his adherents were the chief objects of attack in the



National Gazette, while the President, who was



never .confounded with them was always treated



with decorum and respect. In every respect, then,



the charge appears to be frivolous or unfounded.







  " Mr. Jefferson had yet a further ground of vindi-



cation, had he needed it, though he never deigned



to make use of it; and this was the fact, that the



National Gazette was not set up by him, but by

















xlii Jefferson's Contribution to a







Mr. Madison and General Henry Lee, then Governor



of Virginia, and afterwards so warm a Federal par-



tisan, for the double purpose of assisting Freneau,



who had been their fellow collegian at Princeton,



and of affording the public an opportunity of hear-



ing the arguments of both the parties that then



divided the country. "







  Though he did not personally write for the press



he had well-matured opinions as to the duty of a



political editor. He gave expression to his opinion



in the following letter, written in 1811 from Monti-



cello to William Duane: " I think an editor should



be independent; that is, of personal influence, and



,not be moved from his opinions on the mere authority



of an individual: But, with respect to the general



opinion of the political section with which he habi-



tually accords, his duty seems very like that of a



member of Congress. Some of these, indeed, think



that independence requires them to follow always



their own opinion, without respect for that of



others. This has never been my opinion, nor my



practice, when I have been of that or any other



body, differing on a political question from those



whom I knew to be of the same political principles



with myself, and with whom I generally thought



and acted. A consciousness of the fallibility of



the human mind and of my own' in particular, with



a respect for the accumulated judgment of my



friends, has induced me to suspect erroneous impres-



sions on myself, to suppose my own opinion wrong,

















                Free Press           xliii







and to act with them on theirs. The want of this



spirit of compromise, or of self-distrust, proudly



but falsely, called independence, is what gives the



Federalists victories which they could never obtain



if these brethren could learn to respect the opinion



of their friends more than their enemies, and pre-



vent many able and learned men from doing all the



good they otherwise might do. " Of Duane he



wrote to Mr. Wirt : " I believe Duane to be a very



honorable man and sincerely republican ; but his



passions are stronger than his prudence, and his



personal as well as general antipathies render him



very intolerant. These traits lead him astray and



require his readers, even those who value him for



his steady support of the republican cause, to be



on their guard against his occasional observations."







  The critics of Mr. Jefferson have been wont to



attribute what, in his lifetime, they termed his



over-trust in the capacity of the people for self-



government, to the views he imbibed in France.



No doubt the spectacle of a people in a country



where " every man must be a hammer or an anvil "



at a time when the love of liberty and the rights of



man inspired the best portion of the people of that



country to demand a larger voice in governing



themselves, had a permanent influence upon his



life and views. But he secured the repeal of the



law of primogeniture and church establishment,



and drafted provisions for future constitutions,



insuring the freedom to write and speak without

















xliv        Jefferson's Contribution to a







restraint, before he ever walked the streets of Paris.



It was Jefferson instructing Frenchmen in the neces-



sity for a free press as the mudsill of national liberty



rather than learning from them the love of a free



press that was a ruling passion of his life.



 While in Paris, Jefferson prepared a charter of



rights for the French people, the ninth section being



as follows : " Printers shall be liable to legal prose-



cution for printing and publishing false facts, inju-



rious to the party prosecuting ; but they shall be



under no other restraint. "







  They were in far too liberal a spirit of concession



for the government party and nothing came of his



wise recommendation. In 1802, writing to Thomas



Cowper, he declared, "The press, the only tocsin



of a nation, is completely silenced. " Among the



abuses in France that brought on the Revolution



he named "the shackles on the freedom of con-



science, of thought and of speech; on the freedom



of the press by censure. "







  In M. Necker's report to the King, it was sug-



gested by Mr. Jefferson's advice, " How far the



press might be made free. " He noted that the



restraint on the freedom of the press was one of the



chief complaints of the government in the French



Revolution. In his "Autobiography " Jefferson



says: "Nor should we wonder at * * * (the)



pressure (for a fixed Constitution in I 7 88-9 ) when



we consider the monstrous abuses of power under



which * * * (the French) people were ground to

















        Free Press          xlv







powder; when we pass in review the shackles * * *



on the freedom of the press by the censure. "







 In spite of Mr. Jefferson's strong predilection for



popular government, and his belief in its practica-



bility, he still doubted, as he doubted when he was



in Europe, as he says in a letter to his friend La



Fayette, in November, 1823, whether the state of



society in Europe could bear a republican govern-



ment. He remarks, "an hereditary chief, strictly



limited, the right of war vested in the legislative



body, a rigid economy of the public contributions,



and absolute interdiction of all useless expenses,



will go far towards keeping the government honest



and unoppressive. But the only security of all is a



free press. The force of public opinion cannot be



resisted when permitted freely to be expressed.



The agitations it produces must be submitted to.



It keeps the waters pure. "







 In the same year, writing to M. Coray, he said:



" This formidable censor of the public functionaries



(press) by arraigning them at the tribunal of public



opinion, produces reform peaceably, which must



otherwise be done by revolution." To M. Coray



in Paris; in 1823 ; he wrote : " The press is the best



instrument for enlightening the mind of ma,n, and



improving him as a rational, moral, and social



being. "







 In his retirement, when the French dynasty was



crushing popular liberty, Mr. Jefferson reminded



La Fayette of the proposition he had made at the

























xlvi        Jefferson's Contribution to a







early stage of the revolution to secure a compact



with the King, the benefit of habeas corpus, jury



trial, freedom of the press, and religion, and a nat-



ional legislature which he would then have yielded;



and to let them work out the amelioration of the



condition of the people, until they should have been



rendered capable of more.







  In 1793, tu De Viar and De Jandenes, he wrote:



"Your residence in the United States has given



you an opportunity of becoming acquainted with



the extreme freedom of the press in these States.



Considering its great importance to public liberty,



and the difficulty of subjecting it to very precise



rules, the laws have thought it less mischievous to



give greater scope to its freedom than to the restraint



of it. "







  Thus it is seen that, if the people of France at



that time had learned the lesson of liberty under



law as well as it had been learned in America's



school of experience, Mr. Jefferson's suggestions



would have been incorporated into the law of the



land, and some of the horrors of the French Revolu-



tion might have been prevented:







  Mr. Jefferson s contribution to the free press was



not bounded by geographical lines or limited by any



period of time. It was for all countries and all ages.



In his life, whether laboring in the land of his birth



to obtain, safeguard and make permanent the free-



dom of the press, or seeking to aid the people of



France, groping through the darkness with only

















        Free  Press       xlvii







the dim gleam of a censored press, to secure the



"liberty of speaking and writing which guards all



other liberties;" he was always animated 'by faith



in the capacity of man to control his own affairs; and



by his oath of " eternal hostility against every form



of tyranny over the human mind." His influence



-inspiring, powerful, salutary in his day-did not



die when his mortal body was laid to rest or. the



sloping hillside of Monticello, hard by the home



where his pen had written the appeals, the resolu-



tions, the statutes that gave America its untram-



melled press.







 Jefferson's services for liberty are immortal.



Wherever men look out of darkened windows of



despotic governments they are cheered by the light



of Jefferson's Declaration, which penetrates and



illumines the deepest cell of civic tyranny. Wher-



ever, in any decade of the world's history-yester-



day, to-day, to-morrow-the pen is subjected to



censorship, the words and deeds of Jefferson are



the bow of promise set in the heavens.



 As the years shall pass,







   " And the thoughts of men are widen'd with the process



      of the suns "







and, one by one the nations that sit in darkness



come into the glorious light of freedom-freedom



of conscience, freedom of speech, freedom to think



and write and print-the majestic figure of Jefferson



will loom up as the inspiring spirit who first breathed

















xlviii Contribution to a Free Press







into the printing press- (theretofore the unresponsive



instrument to further the decrees of kings and bind



the conscience and thoughts of men)-the breath



of life, and made it responsive, sentient, virile, free.



In this new life that dates from Jefferson, this free



press has become the champion of the oppressed,



the teacher of the young, the guide of the mature,



the comfort of the aged, and the mightiest power



for good that blesses and shall ever bless mankind.























 Raleigh, N. C., April 13, 1904

















        CONTENTS.



















                        .                                                      

                                                                               

                                                       page



JEFFERSON'S CONTRIBUTION TO A FREE PRESS.                          



By Josephus Daniels, Editor of the News and Observer, Raleigh,

N.C...................i











THE BATTURE AT NEW

ORLEANS........................................................1-132



The proceedings of the Government  of the



United States in maintaining the public right



to the beach of the Mississippi, adjacent to



New Orleans, against the intrusion of Edward



Livingston. Prepared for the use of counsel,



by Thomas Jefferson.











BIOGRAPHICAL SKETCHES OF DISTINGUISHED MEN...............135-172



Peyton  Randolph

...............................................................................

...........135



Meriwether 

Lewis..........................................................................

...............140



General Thaddeus

Kosciusko......................................................................

...161



Anecdotes of Benjamin

Franklin.....................................................................16

6











THE JEFFERSON

PAPERS.................................................................175-357



From the collection of letters and other pri-



vate documents presented to the Massa-



chusetts Historical Society in June, 1898, by



Jefferson's great-grandson, Thomas Jefferson



Coolidge.







Preface........................................................................

....................................175



To Lucy Nelson, October 24,

1777.................................................................179



To William S. ,Smith, July 9

1786....................................................................180



To Martha Jefferson Randolph, May 16,

1790.................................................184







 VOL. XVIII-D.

















l              Contents







THE JEFFERSON

PAPERS--Continued..............................................................

.........................page



To Edmund Pendleton, July 24,

1791...............................................................186



To Samuel Biddle, December 12,

1792............................................................187



To Martha Jefferson Randolph, December 31,

1792.........................................191



To John Taylor, December 29,

1794................................................................192



To Thomas Mann Randolph, November 28,

1796............................................200



To John Taylor, October 8,

1797.....................................................................201



To Edmund Pendleton, January 14,

1798.........................................................203



To John Taylor, June 4,

1798...........................................................................

205



To Thomas Mann Randolph, January  17,

1799................................................210



To John Taylor, November 26,

1799................................................................213



To Thomas Mann Randolph, February 4,

1800.................................................215



To Thomas Mann Randolph, March 4,

1800.....................................................216



To Thomas Mann Randolph, April 4,

1800.......................................................218



To Edmund Pendleton, April 19,

1800..............................................................220



To Thomas Mann Randolph, May 7,

1800........................................................222



To Thomas Mann Randolph, November 30,

1800.............................................224



To Thomas Mann Randolph, December 5,

1800...............................................226



To Thomas Mann Randolph, December 12,

1800.............................................227



To Thomas Mann Randolph, January 9,

1801...................................................228



To Thomas Mann Randolph, January 23,

1801.................................................231



To Martha Jefferson Randolph, January 26, 

1801............................................234



To Thomas Mann Randolph, January 29,

1801.................................................236



To Thomas Mann Randolph, March 12,

1801...................................................238



To Thomas Mann Randolph, March 26,

1801...................................................239



To Catharine Church, March 27,

1801..............................................................240



To Thomas Mann Randolph, May 14,

1801......................................................241



To Thomas Mann Randolph, February 21,

1802...............................................242



To Thomas Mann Randolph, December 19,

1803.............................................244



To Martha Jefferson Randolph, October 7,

1804...............................................245



To George Jefferson, June 12,

1805..................................................................247



To James Ogilvie, June 23,

1806.......................................................................247

















                Contents







THE JEFFERSON PAPERS---CONTINUED.



To Thomas Mann Randolph, November 3,

1806...............................................249



To Martha Jefferson Randolph, November 23,

1807.........................................250



To Thomas Mann Randolph, November 22,

1808.............................................252



To Charles L. Bankhead, November 26,

1808..................................................253



To Anne Cary Bankhead, December 8,

1808....................................................255



To Thomas Mann Randolph, December 13,

1808.............................................256



To Thomas Mann Randolph, January 2,

1809...................................................257



To Charles L. Bankhead, January 19,

1809......................................................260



To Thomas Mann Randolph, January 31,

1809.................................................262



To William Pinckney, July 15,

1810..................................................................264



To Mary Page; March 4,

1811.........................................................................26

6



To James Madison, April 7,

1811.....................................................................268



To Charles Pinckney, February 2,

1812............................................................271



To E. I. Dupont de Nemours, June 16,

1812.....................................................272



To Richard Rush, August 2,

1812.....................................................................274



To E. I. Dupont de Nemours, November  8,

1812............................................275



To Charles W. Peale, April  17,

1813...............................................................276



To William Short, August 20,

1814...................................................................280



To Horatio G. Spafford, December 16,

1814....................................................284



Memorandum of Jefferson's Taxable

Property...................................................285



To William Short, May 15,

1818.......................................................................286



To Charles W. Peale, June 13,

1818.................................................................287



To Thomas W. Maury, January 27,

1816..........................................................290



To Stephen Cathalan, February 1,

1816............................................................292



To Mary B. Briggs, April 17,

1816...................................................................294



To Joseph Story, June 19,

1816.......................................................................295



To William Thornton, July 27,

1816..................................................................296



To Charles Pinckney, September 9,

1816.........................................................297



To Noah Worcester, November 26,

1817........................................................298



To Bernard Peyton, March 20,

1818................................................................299



To John Nelson, November 8,

1818................................................................300



To William Tudor, January 31,

1819................................................................302

















lii        Contents







THE JEFFERSON PAPERS-CONTINUED.                                           PAGE







To William Short, June 22,

1819....................................................................303



To George A. Otis, December 25,

1820........................................................305



To Maria Cosway, December 27,

1820.........................................................308



To William Thornton, January 19,

1821..........................................................310



To John Taylor, February 14,

1821................................................................312



To ----  November 24,

1822.........................................................................31

4



To William Tudor, February 24,

1823............................................................317



To Thomas Cox, June 3,

1823.......................................................................318



To James Monroe, June 24,

1823..................................................................320



To Joshua Dodge, August 3,

1823.................................................................321



To Thomas Cox, September 5,

1823.............................................................323



Marquis De La Fayette to Thomas Jefferson,



December 20,

1823...........................................................................

...........324



To Samuel Parr, April 26,

1824....................................................................329



To Dugald Stewart, April 26,

1824...............................................................331



To Joseph Coolidge, Jr., January 15,

1825....................................................334



To Joseph Coolidge, Jr., April 12,

1825........................................................337



To Ellen W. Coolidge, August 27,

1825........................................................340



To Joseph Coolidge, Jr., October 23,

1825..................................................342



To Ellen W. Coolidge, November 14,

1825..................................................346



To Ellen W. Coolidge, March 19,

1826........................................................352



To Joseph Coolidge, Jr., June 4,

1826..........................................................354







AN ESSAY ON THE ANGLO-SAXON AND MODERN



DIALECTS OF THE ENGLISH LANGUAGE.................................361---411



To Herbert Croft, Esq., LL.B., London, October 30, 1798......

..................361



The

Alphabet.......................................................................

.......................367



Orthography....................................................................

...........................369



Pronunciation..................................................................

............................372



Grammar........................................................................

............................375



Supines and

Gerunds........................................................................

..........381



Observations on Anglo-Saxon

Grammar.....................................................392



Declensions of

Nouns..........................................................................

.......396



























        THE BATTURE



        AT NEW ORLEANS.















THE PROCEEDINGS OF THE GOVERNMENT OF THE UNITED STATES IN MAINTAINING THE

PUBLIC RIGHT TO THE BEACH OF THE MISSISSIPPI, ADJACENT TO NEW ORLEANS,



 AGAINST  THE INTRUSION OF EDWARD  LIVINGSTON. PREPARED FOR  THE USE    OF

COUNSEL, BY  THOMAS JEFFERSON.













        PREFACE.







 Edward Livingston, of the territory of Orleans, having taken



possession of the beach of the river Mississippi adjacent to the city of



New Orleans, in defiance of the general right of the nation to the



property and use of the beaches and beds of their rivers, it became my



duty, as charged with the preservation of the public property, to



remove the intrusion, and to maintain the citizens of the United States



in their right to a common use of that beach. Instead of viewing this



as a public act, and having recourse to those proceedings which are



regularly provided for conflicting claims between the public and an



individual, he chose to consider it as a private trespass committed on



his freehold, by myself personally, and instituted against me, after my



retirement from office, an action of trespass, in the circuit court of the



United States for the district of Virginia.







 Being requested by my Counsel to furnish them with a statement of



the facts of the case, as well as of my own ideas of the questions of



right, I proceeded to make such a statement, fully as to facts, but



briefly and generally as to the questions of right. In the progress of



the work; however, I found myself drawn insensibly into details, and



finally concluded to meet the questions generally which the case would



present, and to expose the weakness of the plaintiff's pretensions, in



addition to the strength of the public right. These questions were of



course to arise under the laws of the territory of Orleans, composed of



the Roman, the French, and Spanish codes, and written in those



languages. The books containing them are so rare in this country as



scarcely to be found in the best-furnished libraries. Having more time



than my Counsel, consistently with their duties to others, could bestow



on researches so much out of the ordinary line, I thought myself bound



to facilitate their tabors, and furnish them with such materials as I



could collect. I did it by full extracts from the several authorities, and



in the languages in which they were originally written, that they might



judge for themselves whether I misinterpreted them. These materials



and topics, expressed in the technical style of the law, familiar to them,



they were of course to use or not to use, according to the dictates of

















        Preface











their better judgment. If used, it would be with the benefit of being



delivered in a form better suited to the public ear. I passed over the



question of jurisdiction, because that was one of ordinary occurrence,



and its limitations well ascertained. On this, in event, the case was



dismissed ; the court being of opinion they could not decide a question



of title to lands not within their district. My 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 authorized and required them to do. Precluded now from this



mode of justification, I adopt that of publishing what was meant



originally for the private eye of counsel. The apology for its general



complexion, more formal than popular, must be found as well in the



character of the question, as in the views with which its discussion had



been prepared. The necessity, indeed, of continuing the elaborate



quotations, is strengthened in the case of ordinary readers, who are



supposed to have still less opportunity of turning to the authorities



from which these are taken.







 The questions arising, being many and independent of each other,



admitted not a methodical and luminous arrangement. Proceeding,



therefore, in a course of narrative, I have met and discussed the points



of law in the order in which events presented them ; thus securing, as



we go along, the ground we pass over, and leaving nothing adversary



or doubtful behind. Hence the mixture of fact and law which will be



observed through the whole.







 Vouchers for the facts are regularly referred to. These are princi-



pally, I. Affidavits taken and published on the part of the plaintiff,



and of the city of New Orleans, very deeply interested in this question.



a. Printed statements, by the counsel on each side, uncontradicted



by the other, of facts under their joint observation and knowledge.



3. Records. 4. Notarial acts, and 5. Letters and reports of public



functionaries filed in the office of the Department of State.



 Feb. 25, 1812.













        JEFFERSON'S WORKS.











        THE BATTURE AT NEW ORLEANS.















 Not long after the establishment of the city of



New Orleans, and while the religious society of Jesuits retained their standing

[Title of the Jeauits.]  in France, they obtained from Louis XIV. a grant of



lands adjacent to the city, bearing date the 11th of



April, 1726. The original of this grant having  been



destroyed in the fire which conSumed a great part of



the city in 1794, .and no copy of it as yet produced,



the extent and character of the grant is known from



no authentic document. Its other limits are unim-



portant, but that next the river and above the city is



understood to have been of 20 arpents,  [ Fronting  river]



or acres, [of 280 French feet, or 64 yards



of our measure each,) "face au fleuve," the ambi-



guity of which expression is preserved by translating



it, " fronting the river. " Whether this authorized



them to go to the water line of the river, or only



to the road and levee, is a question of some diffi-



culty, and not of importance enough to arrest our



present attention. To these they had added 12 ar-



   vol. xvliii

















            Jefferson's Works







pents more by purchase from individuals. In 1763



the order of Jesuits was suppressed in



[Confiscation.] France; and their property confiscated.



The 32 arpents, before mentioned, were divided



into 6 parcels, described each as "faisant face au



[Gravier's  Title] fleuve, " and the one next to the city of 7



arpents in breadth, and 50 in depth, was



sold to Pradel; but how these 7 arpents, like Fal-



staff's men in buckram, became 12 in the sale of



the widow Pradel to Renard, (Report 7 .] 13 in Gra-



vier's inventory, and nearly 17, as is said Derb. viii.



ix. in the extent of his fauxbourg, the plaintiff is



called on to show, and to deduce titles from the



crown, regularly.down to himself. In



[Fauxbourg.]  1788 Gravier, in right of his wife the



widow of Renard, laid off the whole extent of



his front on the river, whatever it was, into q. ranges



of lots, and in '96 he added 3 ranges more, estab-



lishing them as a Fauxbourg, or Suburb to the



city. That this could not be done without permis-



sion from the government may be true ; and no for-



mal and written permission has been produced.



Whether such an one was given and lost in the fire,



or was only verbal, is not known. But that permis-



sion was given must be believed, 1. From Gravier 's



declaration to Charles Trudeau the surveyor, which



must operate as an Estoppel. (Report 45.] against all



contrary pretensions in those claiming under him:.



2. From Carondelet 's order to Trudeau, first to de-



pocit a copy of the plan in the public archives, and

















        The Batture at New Orleans      3







afterwards an order for a second one to be delivered



to himself, which implied necessarily that he had



consented to the establishment ;. but more especially



when : B. Gravier relying on this establishment as



freeing him from the repairs of the bank., the Gov-



ernor declared " it was true and that Gravier was.



right. " 3. From the records of the Cabildo,  or



town council, with whom the Governor sat in person, 



showing that at their sessions on the 1st day of Jan-



uary annually, for regulating the police of the city, a



Commissary of police for the new quarter was regu-



larly appointed from the year 1796 till the United



States took possession. The actual settlement of



the ranges next the river, and the addition of the '



new ranges, now, probably rendered that necessary:



4.. From the conviction expressed by the Surveyor



that, from his knowledge of the laws and customs of



the Spanish colonies, no one would have dared to



establish a city, bourg, village or fauxbourg without



authorization, verbal at least,.. from the Governor.



5 : From the act of the local legislature incorporating



the city of New Orleans.. [Thierry 32.] That no



formal written act of authorization can be produced



is not singular, as that is known to be the condition '



of a great proportion of their titles from the govern-.



ment: and the extraordinary negligence in these



titles was what rendered it necessary for Congress to



establish, in the several territories of Orleans, Missis-



sippi, Louisiana, Indiana and Michigan, boards of.



Commissioners, to ascertain and committed

















4        Jefferson's Works







record. To this we may add that the principle



which shall take from the inhabitants of the' Suburb



St. Mary the validity of their establishment, will an-



nul a great portion of the land rights of those several



territories. Finally, whatever act of the govern-



ment may be considered as amounting to evidence



of its ratification of the establishment of the faux-



bourg, is retrospective, and will amount to an origi-



nal authorization under the maxim, "omnis rati-



habitio retrotrahitur, et mandato aequiparatur. "







  Bertrand Gravier proceeded to sell the lots of. his



[Gravier's sale] new Fauxbourg, and particularly he sold



the whole range next the river. Such



deeds for these lots as have been produced, de-



scribe them as "haciendo frente al rio," ``fronting



the river. " And it is affirmed, [Examen 13. Poy-



dras 7. and 18. Thierry 39.] that almost all, if not



all the deeds, used the same expression. [See



notarial copies of the deeds of B. Gravier to Nicholas



Gravier, and of Nicholas Gravier to Escot, Girod,



Wiltz.] Bertrand Gravier himself; on all occasions,



[Pieces Probantes 9. 21. 28. 30. Livingston 59€



Monile's deposition, MS.] declared that he had sold



his lots " faisant face au fleuve, " and had passed to



the purchasers his right to the devanture, meaning



everything in front of his lots. Whatever extent



then towards the river, passed to the Jesuits by the



term " face au fleuve," or from the king to the pur-



chasers of the Jesuits ' property, under whom B. Gra-



vier claimed,' the same extent was, by the same ex-

















        The Batture at New Orleans     5







pression, " face au fleuve, " or '"frente al rio, " passed



by Bertrand Gravier to the purchasers of the front



lots. If the words " face au fleuve, " gave him only



to the road and levee, he by the same words gave



them no farther; if to the water edge, then he sold



to the water edge also, and having parted with all



his right as riparian possessor, could transmit none



to those claiming under him by subsequent title, as



the plaintiff does. In a note added to the end of the



,printed Report of this case, whether by the reporter



or the plaintiff does nut appear, it is said that this



objection was answered by showing, from the, deeds,



that each lot had a clear front boundary, by refer-



ring to the "plan which in no instance crossed the



road. " And that this brings it within the rule of



law which says, "in agris limitatis jus alluvionis



locum non habere constat. " Dig. 41. I. 16. This



process of deduction, if not clear, is compendious at



least, and better placed in a note, than in the text,



where explanation would have been expected. Let



us spread it open and examine it. What says the



deed to Nicholas Gravier for 5 8 lots ?







Yo Don Beltran ' Gravier vendo



a Don Nicholas Gravier cinquenta



y ocha terrenos situados en esta



dicha ciudad, extramuros de la



puerta de Chapitulas, a saver,



trece haciendo frente al' rio, Mis-



sisipi, y lindando por el lado de



abaxo, que es de esta dicha ciudad,



con terreno de Don R. Jons, y por



el de arriba con otros de Don J. B.







  I Don Beltran Gravier sell to



Don Nicholas Gravier 58 lots situ-



ated in this said, city without the



gate of Chapitulas, to wit, 13 front-



ing the river Missisipi, and border-



ing on the lower side, which is that



of this said city, with the lot of



Don R. Jones, and on the upper



side with others of Don J. B.



Sarpy, &c. And the 45 lots re-

















6        Jefferson's Works







Sarpy, &c. Y los quarenta y cinco



terrenos restantes' completa a los



cinquenta y ocho, que quedan in-



dicados, comenzan sobre el limite



de laprimera oalle; formande una



linea directa A empezar por el ter-



reno;que se halla detras del de



Don J. Poydras, todo conforme al



plano que, delineado por Don C.



L. Trudeau, he entregado al com-



prador para su inteligencia y res-



guardo: pera con la condieion de



que me reservo el derecho de



tomar la tierra que necessitare



para mi 'fabrica de ladrillos, en



la playa b Battura que hay en la



extension de losnominados trece



terrenos que hacen frente al dicho







rio.



maining, the complement of the



58 before mentioned, . commence



above [or beyond] the ..limit of the



first street, forming a right line,



beginning at the lot which is be-



hind that of Don J. Poydras, in



conformity with the plan which



having been delineated by Don C.



L. Trudeau, I have delivered to



the purchaser for his information



and ascertainment : Nevertheless,



with the condition. that I reserve



to myself the right to .take the



earth which I shall need for my



manufacture of bricks on the



beach or .batture which is in the



extension of the said 13 lots which



front the river.







  The first part of this description is of the z 3 lots,



to wit; that they front the river. The second part



relates wholly to the remaining 45 lots, which begin



beyond or above the first street in a straight line



from the lot behind Poydras ', and refers to the plan



to show their position more particularly as back lots,



behind the front range. It is to be noted that the



public way in front of the fauxbourg is not a street :



it is the same chemin royale, royal road, which has



existed from early times, and has never been merged



in the character of a street. Nothing can prove



more clearly, that this reference to the' plan was not



to give a front line to the 23 lots, than that the same



deed reserves the right of digging earth' on the



batture beyond that line. Now if nothing was



meant to be conveyed beyond the front line marked

















        The Batture at New Orleans     7







in the plan, why reserve a right to dig earth on



the batture, which is beyond that line ? And that



Nicholas Gravier, Escot, Girod and Wiltz didn't



consider this line as the limit of their rights, appears



from their deeds conveying the batture expressly



by that name, with the lots themselves. On the



whole, we see here a curious specimen of tergiversa-



tion in reasoning.  When urged that the grant to



the Jesuits, and to Bertrand  Gravier, though ex-



pressed to be " face au fleuve," must still have



stopped at this line or edge of the royal road, it is



answered that those terms convey to the water edge,



and make it an " ager arcifinius, " to which the right



of alluvion appertains. But when Bertrand Gra-



vier conveys to his purchasers " face au fleuve, " they



turn about and say that the same identical words



" face au fleuve, " convey now only to this same line



or edge of the royal road, which they overleaped



before, and make the grounds conveyed an " ager



limitatus, " to which the right of alluvion. .does nat



appertain. It is perfectly equal which of the mean-



ings is ascribed to these words. Only give them the



same in both instances, and say which. If these



words make the road your boundary, you never had



a right to the batture beyond it. If they extend to



the river what was convey ed to you, they extend to



the river also what was conveyed from



you. Will it be pretended that, after



establishing his town, Bertrand Gravier could then



have sold the streets to others ? and yet he might" a

















8        Jefferson's Works







fortiori, having not included them in any deed. But



does not common sense and common honesty pro-



claim that the establishment of his town, and sale



of the lots, implied a relinquishment to the inhabi-



tants of the communications of streets and shores



adjacent, as a common, which are the necessary and



constant appendages of every town? The express



conveyance then of his riparian rights, and the impli-



cation as to them and the streets, are believed to be



conclusive to show that the plaintiff having had no



right, can have sustained no wrong:







 In 1797, Bertrand Gravier died intestate ; and at



this epoch we must introduce what constitutes



the sole object of the existing contest. Opposite to



the habitation or plantation of B. Gra-



[Beach or Batture] vier, now the Fauxbourg Ste. Marie, the



beach of the river, called in that country



Batture, of ordinary breadth within memory, has



sensibly increased, by deposits of earth, during the



annual floods of the river, [Derb. xix.] till in the year



1806, it was found to extend in breadth, at low tide,



from 122 to 247 yards of our measure, from the water



edge into the river: and from about 7 f. height,



where it abuts against the bank, declining to the



water edge. See Pelletier's plan annexed'. Thiery



xvii. While uncovered, which is from August to



January inclusive, it has served as a Quai for lading



and unlading goods, stowing away lumber and fire-



wood, and has furnished all the earth for building



the city, and raising its streets and courts, essential

















        The Batture at New Orleans       9







in that oozy soil. Derb. €. While covered, which



is during the other six months of the year, from Feb-



ruary to July inclusive, [Liv. 58. Poydras 20. 21 23.)



it is the port for all the small craft of the river, and



especially for the boats of the upper country, which,



in the season of high water, can land or lie no where



else in the neighborhood of the city. During this



period, they anchor on its bottom, or moor to its



bank. It is then, like every other beach; the bed



of the river one half the year, and a Quai the other



half, distinguished from those of tide waters, by



being :subject to an annual, instead of a semidiurnal



ebb and flood. In this beach or shoal, with the bank



to which it is adjacent, if Bertrand Gravier claimed



any right, as riparian proprietor of the habitation,



he had certainly meant to convey that right to the



purchasers of the front lots, by the term "frente al



rio, " " fronting the river, " reserving expressly, as



we have seen; from one purchaser of 58 lots, a right€



to take earth, from the beach, for his brickkilns. As



he died without children, the inheritance belonged



to John Gravier, and other brothers and sisters whom



he had left in France, or their representatives, as



co-heirs.







  By the civil law, if an heir accepts the    [Purchase by Inventory]

inheritance, he is considered, not merely



as the representative, but as continuing the person



of the ancestor himself, is answerable for all his debts,



and out of all his property, as well his own, as what



he had newly acquired by the inheritance. Time,

























10        Jefferson's Works







therefore, was allowed him to inform himself of the



condition of the estate and debts, during which it



was considered as an haereditas jacens, vested in



nobody. If he declined taking the inheritance sim-



ply as heir, he was allowed to take it as purchaser,



or in their language, as heir with the benefit of inven-



tory: whereupon an inventory and appraisement of



it. took place; and he had the pre-emption at the ap-



praised value. He was then liable to no more debts



than the amount of the appraisement ; and if there



was a surplus of the appraised value over and above



the debts it was his, if a single heir, or partitioned



among the co-heirs, as parceners, if there were more



than one. Brown. civ. law, I. 218. 302. Kaim 's



law tracts, 3 89. Gibbon 's c. 44. I 5 3 € Bertrand



Gravier is understood to have left France indebted



and insolvent : and John Gravier, therefore, € either



knowing, or ignorant of the amount of the debts,



chose on behalf, or perhaps in defraud, of the co-



heirs, to decline the inheritance, and to take the



estate as a purchaser by inventory and appraise-



ment. It was inventoried and appraised. In the



inventory is placed a single article of lands, in these



words, " are placed in the inventory the lands of this



habitation, whose extent cannot be calculated im-



mediately, on account of his having sold many lots ;



but Mr: N. Gravier informs us that its bounds gb to



the forks of the bayou, according to the titles. " And



in the appraisement also there is but this same single



article of lands, thus described, " about thirteen ar-

















        The Batture at New Orleans     11







pents of land, of which the habitation is estimated,



including the garden, of which the most useful part is



taken off in front, the residue consisting of the lowest



part; [to wit, that descending back to the bayou,] the



side being sold to Navarro, one Percy, and the negro



Zambo, a portion of which, etc., estimated at 190 D.



the front acre, with all the depth,which makes 2470



D." Then follows the adjudication, which adjudges



to John Gravier " the effects, real estate" moveables



and slaves which have been inventoried as belonging



to the estate of his deceased brother Bertrand Gra-



vier, etc." Report.9. 10. We see, then, that no



lands were inventoried but the thirteen arpents in



front, composing the inhabitation. And it is im-



possible that that term should be meant to include



the, beach of the river, cut off from it by the inter-



vention of the whole Fauxbourg of seven ranges of



squares ; or that they should not have used a more.



obvious expression, if the idea of the beach had been



in their minds. Nobody could consider these two



parcels, distant and disjointed as they were, as being



one parcel only, one habitation.  No man having two



farms, or two tracts of"land, separated by the lands



of others, would expect that by devising or convey-



ing one, the other would pass also. In fact, at that



time, neither John Gravier nor any. one else, consid-



ered the beach as any part of Bertrand Gravier's



estate : and in the appraisement, they estimate the



front arpents, (that is; fronting on the fauxbourg,)



with all their depth to the bayou, at 190 dollars, the

















12        Jefferson's Works







front arpent; contemplating clearly only what was



between the fauxbourg and bayou. Accordingly



Fernandez, acting for the Depositor General, ' the



legal officer in those cases, swears that he took charge



and possession of all the estate according to the in-



ventory which had been made from the 28th of June



to the 4th of July, 1797 ; that, in that inventory, the



batture never was mentioned, 'or heard of, as prop-



erty of Gravier, nor in charge of the Depositor, and



that, on delivering the estate to John Gravier, the



batture never was spoken of. It is equally certain



that had there been an idea that they were smuggling



the batture away, through these proceedings, the citi-



zens of New Orleans would not have been so silent,



nor the Governor, the Cabildo, and other Spanish



authorities so passive, when so active on all former



occasions respecting the batture: and that had the



batture been under the view of the appraisers, in-



stead of estimating it at 2470 dollars, conjointly €



with other thirteen arpents, a very different sum



must have been named. The batture alone is now



estimated at half a million of dollars. ' But the



truth is, that neither John Gravier, nor any one else,



at that day, considered it but as public property.



And for six years ensuing, he never manifested one



symptom of ownership; until Mr. Livingston's



[Livingston's  Arrival] arrival there from New York



with the wharves and slips of that place



fresh in his recollection. The flesh-pots of Egypt



could not suddenly be forgotten, even in this new

















        The Batture at New Orleans     13







land of Canaan. Then John Gravier received his



inspiration that the beach was his; and is tempted,



by one kind of bargain after another, to try his for-



tune with it. It was only to lend his name, and   [Parisien]



receive a round sum if anything could be made of it.



To get over the palpable omission of it



in the inventory and appraisement, they



find a man whose recollection is exactly a propos;



a Henry Parisien, a comedian by profession, and a



joiner by trade. He had been one of the appraisers,



ten years before, and recollected, and so swore that



he had "walked on the batture, before the closing of



the appraisement, to ascertain its extent and be the



better able to judge of its value, and that it was



through forgetfulness that it had not been taken into



the estimate." Pieces Prob. 33. It happens that



nature bears witness against him. From the 20th



of June to the 4th of July is within the period of high



waters; and it is proved that, at the very time of the



appraisement, the river was still overflowing, and



the batture covered with water : the journals of the



sawmills further attest that they did not cease to



work till the 25th of August of that year : and when



the waters of the river are sufficiently low to stop



the mills, all the battures are still covered with water.



P. Pr. 34. However even this Henry Parisien



swears, " that the batture was not in the estimate, and



that it was through forgetfulness that it was not. "



Examin 19. Rep. 21. Pi. Prob. 33. No matter



through what cause, it is enough that it was not in

















14        Jefferson's Works







the inventory or estimate, and of course not sold to



J. Gravier. This corroborates the testimony of the



Depositor, that he neither had it in his charge, nor



included it' in the estate sold and delivered. J: Gra-



vier must, therefore, as to this part of his brother's



estate, if his it were ; recommence his work, ' by having



a new inventory, appraisement and adjudication.



But to repel the present proceeding, it suffices that



having made his election to take, not as heir, but



purchaser, this beach is not yet his ; it is still an



haereditas jacens, and before he can convey it to



Mr. Livingston, he must get it by a new process, and



make a third bargain.







 We will proceed further to trace the history of this



acquisition of the batture; by the plaintiff; who



writes a letter of lamentations to some member of



the government, on the 27th of June; 1809. That



" Congress will probably adjourn without coming to



any decision on the subject of my removal by the



late President of the United States from my estate at



New Orleans." A most ungrateful complaint; for



had he not been removed, he must; :at the time of



writing this letter, have been, as his estate was, some



10 or 12 feet under water ; the river being then at its



greatest height. And when was this notable discov-



ery made, that the beach of the river was the separate



and exclusive property of J. Gravier, clear of all pub-



lic right to its use ? Let us hear the Governor, in an-



swer to this question.' In a letter to the Secretary of



State of October 13, 1807, he says, "early after the

















        The Batture at New Orleans     15







arrival of Mr. Livingston in this territory; he became



concerned in the purchase of a parcel of ground



fronting the fauxbourg of this city, commonly called



the batture, a property which had been occupied as



a common by the city for many years previous; and



the title to which, in the opinion of the inhabitants



was unquestionable. " The day(1) of the arrival of



Mr. Livingston in New Orleans I do not know ; but



I recollect. he was one of the earliest emigrants to



that country, which was ceded to the United States



on the 30th of October, 1803. We are told, [Rep: 11.



Thierry 5. ) it was proved by some oral testimony



that J. Gravier began an inclosure of 500 feet square



in that year, and completed it in the next. The day



of beginning is not stated; but we may safely pre-



sume it was not 'while the French Governor thought



the country belonged to his master, and.most prob-



ably not till after " the early arrival of Mr.  Living-



ston." This enclosure was demolished by an order



of the Cabildo of Feb. 22, 1804.(2) The next step was



to make an ostensible deed, .to an osten-



sible purchaser,(3) a Peter dela Bigarre, a       [Bigarre.]



br,other emigrant of Mr. Livingston's from New



York,.some old acquaintance. This was dated



March 27, 1804, is expressed 'to be in consideration



of 10,000 dollars, and conveys two undivided thirds



of all that part or parcel of land, situate on the bank







@#(1) He says, February, 1804.



 (2) Thierry.              .



 (3) Notar. copy, Gravier to Bigarre.. @#

















16        Jefferson's Works







(sur la rive] of the river Missisipi, between the public



road and the current of the said river, etc., with a



warranty. I call the purchases ostensible, because



notwithstanding his pretended purchase, J. Gravier,



on the 20th of October, 1805, [Rep. I.] commenced a



suit against the city, as proprietor of the whole, and



the court adjudged him proprietor of the whole ; and



because the same J. Gravier, [Poydr. 3 .] by a deed to



the same P. de la Bigarre, in which no mention was



made of the former, or reference to it; conveys to him



on the 14th Dec. 1806, the batture Ste. Marie, along



the whole limits of this land, between the road and



river, on condition that he shall pay all expenses of



the suit depending, with 50,000 dollars in addition;



that the property shall remain unsold and hypothe-



cated for the purchase money till paid, and that if



the law-suit fails; the sale is void, and Bigarre to pre-



tend to no damages for non-execution. It is observ-



able here that neither buyer nor seller risked anything.



It was a mere speculation on the- chance of a law-



suit, in which they were to divide the spoils if suc-



cessful, and to lose nothing if they failed.(1) It was by



our law a criminal purchase of a pretense title, 32.



H. 8. g. and equally criminal by the law of that terri-



tory, where I presume the provision of the Roman



law is in force, " qui improbe coeunt in alienam litem,



ut quidquid ex condemnatione in rem ipsius redac-



tum fuerit, inter eos communicaretur, lege Julia, de







@#  (1)Lafon, in his map of New Orleans, says expressly that the Mississippi,at

the city, ia €uniformly of the breadth of 300 toises only. MS. Note. @#

















        The Batture at New Orleans     17







vi privata, tenentur." Dig. 47. 8. 6. 4 Blackst. 135. .



"Whosoever shall take part in the suit of another,



so that whatever shall be recovered by the judgment



is to be divided between them, shall be subject to the



Julian law, de vi privata. " By which law, ib. tit. 7.



º I: they were to lose one-third of their goods, and be



rendered infamous. The deed was not only criminal



on its face, but was void by an express law of the ter-



ritory, [a law of Governor Uncaga. Poydras 6. Rep.



25.] and so pronounced to be on the floor of Congress



by their representative, because not executed before



either witnesses or notaries. I t was kept secret from



its date, till the day before judgment was pro-



nounced, when the parties becoming apprised of the



decision which was to be given, (for this was known



at least on the 20th of May,) [Governor Claiborne's



letter May 20, '07,) produced it, for the



first time, to the Notary. to be recorded.   [Decision of  Court]



And the day after its publication, the



court, by the opinion of two members against one,



[Examen 3.) adjudged the property wholly to the '



very man, who, if he had ever had any right, had



conveyed away two-thirds of it, before he



brought his action, and the whole while    [Alarm occasioned]



it was pending. The alarm which this



adjudication produced was immediate and great.



The fact was notorious that, from the earliest to the



latest extension of the beach, the public had had a



free use of it, as their Quai in low water, and in high



water their port; and never before had their right







   VOL. xviii-2

















18        Jefferson's Works







been doubted by themselves, or questioned by their



riparian possessors: If any fact was ever proved by



human testimony, this is. Turn to the Pieces Prob-



antes, and out of 29 affidavits of the oldest and most



respectable persons in the territory, men who had,



most of them, borne offices under€their former gov-



ernment, 21 of them uniformly declare that the pub-



lic .had ever been considered as having a right to the



beach, as their port and Quai; that, as such, the Gov-



ernors and Cabildo had the constant care and con-



trol of it, had demolished buildings and enclosures



erected on it, had, by public ban, prohibited all



erections or obstructions to its use, had themselves



erected a rampart, to inclose within it a chamber ac-



cessible for earth at high water for rebuilding the city



after the fire, €and exercised uninterruptedly every



other act of authority derived from the public rights ;



and 11 of them prove, as far as a negative can be



proved, that the Gravier, till the change of