TO THE ATTORNEY GENERAL OF THE UNITED STATES.
Monticello, September 25, 1810.
Dear Sir,—I have to thank you for your kind letter of June 8th, and the suggestions it furnished on the question whether Livingston could maintain an action in Richmond for a trespass committed in Orleans. This being a question of common law, I leave it to my counsel so much more recent than I am in that branch of law. I have undertaken to furnish them with the grounds of my defence under the lex loci. I wished for the aid of Moreau's Memoire because it is understood to be the ablest of any. However, my counsel being ruled to plead, and pressing me for the grounds of defence, I proceeded to consider the case, meaning at first only an outline, but I got insensibly into the full discussion, which became very voluminous, and the more so as it was necessary not only to enter all the authorities at large in the text, because few possess them, but also translations of them, because all do not understand all the languages in which they are. Believing my late associates in the executive would feel an interest in the justification of a conduct in which all concurred, and also in the issue of it, I have thought it a duty to consult them as to the grounds to be taken, and to take none against their advice. My statement has therefore been submitted to the President, Mr. Smith and Mr. Gallatin, and will be forwarded to you by Mr. Smith as soon as he shall have read it. I have to request your consideration and corrections of it, and that you will be so good as to furnish them on a separate paper. I am obliged also to ask an immediate attention to them, because time presses to give to this paper its ultimate shape, to plead, and collect the evidence. Its early return to me therefore is urging. I do not know whether my counsel (Hay, Wist and Tazewell) have pleaded to the jurisdiction. * * * * * The death of Cushing is opportune, as it gives an opening for at length getting a republican majority on the supreme bench. Ten years has the anti-civism of that body been bidding defiance to the spirit of the whole nation, after they had manifested their will by reforming every other branch of the government. I trust the occasion will not be lost; Bidwell's disgrace withdraws the ablest man of the section in which Cushing's successor must be named. The pure integrity, unimpeachable conduct, talents and republican firmness of Lincoln, leave him now, I think, without a rival. He is thought not an able common lawyer. But there is not and never was an able one in the New England States. Their system is sui generis, in which the common law is little attended to. Lincoln is one of the ablest in their system, and it is among them he is to execute the great portion of his duties. Nothing is more material than to complete the reformation of the government by this appointment, which may truly be said to be putting the keystone into the arch. In my statement of the law of Livingston's case, I do not pretend to consider every argument as perfectly sound. I have, as is usual, availed myself of some views, which may have a weight with others which they have not with me. I have no right to assume infallibility, and I present them, therefore, ut valcant ubi possint. Accept the assurances of my constant and affectionate esteem.
P. S., September 26. In my letter of yesterday, I have omitted to observe, with respect to the arrangement of materials in the paper it speaks of, that it is not such as counsel would employ in pleading a cause. It was determined by other considerations. I thought it very possible the case might be dismissed out of court by a plea to the jurisdiction. I determined, on this event, to lay it before the public, either directly or through Congress. Respect for my associates, for myself, for our nation, would not permit me to come forward, as a criminal under accusation, to plead and argue a cause. This was not my situation. This would naturally be by way of narrative or statement of the facts in their order of time, establishing these facts as they occur, and bringing forward the law arising on them, and pointing to the Executive the course he was to pursue. I supposed it more dignified to present it as a history and explanation of what had taken place. It does not, indeed, in that form, display the subject in one great whole, but it brings forward successively a number of questions, solving themselves as they arise, and leaving no one unexamined. And the mind, after travelling over the whole case, and finding as it goes along that all has been considered and all is right, rests in that state of satisfaction which it is our object to produce. In truth, I have never known a case which presented so many distinct questions, having no dependence on one another, nor belonging even to the same branches of jurisprudence.