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

tiff's right, because, however confident of indulgence, Respons bility of in the case of an honest error, I believed it would be

more satisfactory to show, that in the exercise of the

discretionary power entrusted to me by Congress, a sound discretion had been used, no act of oppression had been exercised, no error committed, and consequently no wrong done to the plaintiff. I have no pretensions to exemption from error. In a long course of public duties, I must have committed many. And I have reason to be thankful that, passing over these, an act of duty has been selected as a subject of complaint, which the delusions of self interest alone could have classed among them, and in which, were there error, it has been hallowed by the benedictions of an entire province, an interesting member of our national family, threatened with destruction by the bold enterprise of one individual. If this has been defeated, and they rescued, good will have been done, and with good intentions.

a piblic functionary.

Our constitution has wisely distributed the administration of the government into three distinct, and independent departments. To each of these it belongs to administer law within its separate jurisdiction. The judiciary in cases of meum and tuum, and of public crimes; the Executive, as to laws executive in their nature; the legislature in various cases which belong to itself, and in the important function of amending and adding to the

system. Perfection in wisdom, as well as in integrity, is *79 neither required, nor expected in these *agents. It be

longs not to man. Were the judge who, deluded by sophistry, takes the life of an innocent man, to repay it with his own; were he to replace, with his own fortune, that which his judgment has taken from another, under the beguilement of false deductions; were the Executive, in the vast mass of concerns of first magnitude, which he must direct, to place his whole fortune on the hazard of every opinion; were the members of the legislature to make good from their private substance every law productive of public or private injury; in short were every man engaged in rendering service to the public, bound in his body and goods to indemnification for all his errors, we must commit our public affairs to the paupers of the nation, to the sweepings of hospitals and poor-houses, who, having nothing to lose, would have nothing to risk. The wise know their weakness too well to assume infallibility; and he who knows most, knows best how little he knows. The vine and the fig-tree must withdraw, and the briar and bramble assume their places. But this is not the spirit of our law. It expects not impossibilities. It has consecrated the principle that its servants are not answerable for honest error of judgment. 1. Ro. Abr. 92. 2 Jones 13. 1 Salk. 397. He who has done this duty honestly, and according to his best skill and judgment, stands acquitted before God and man. If indeed a judge goes against law so grossly, so palpably as no imputable degree of folly can account for, and nothing but corruption, malice or wilful wrong can explain, and especially if circumstances prove such motives, he may be punished for the corruption, the malice, the wilful wrong ; but not for the error:

nor is he liable to action by the party grieved. And our form of government constituting its respective functionaries judges of the law which is to guide their decisions, places all within the same reason, under the safeguard of the same rule. That in deciding and acting under the law in the present case, the plaintiff, who

may think there was error, does not himself believe there was corruption or malice, I am confident. What ? was it my malice or corruption which prompted the Governors and Cabildoes to keep these grounds clear of intrusion? Did my malice and corruption excite the people to rise, and stay the parricide hand uplifted to destroy their city, or the grand jury to present this violator of their laws ? Was it my malice and corruption which penned the opinion of the Attorney General, and drew from him a confirmation, after two years of further consideration, and when I was retired from all public office? Was it my malice or corruption which dictated the unanimous advice of the heads of departments, when officially called on for consultation and advice? Was it my malice and corruption which procured the immediate thanks of the two houses of legislature of the territory of Orleans, and a renewal of the same thanks *for the same interference, in their late vote of February 80* last? Has it been my malice and corruption which has induced the national legislature, through five successive sessions, to be deaf to the doleful Jeremiads of the plaintiff on his removal from his estate at New Orleans ? Have all these opinions then been honest, and mine alone malicious and corrupt? Or has there been a general combination of all the public functionaries Spanish, French, and American, to oppress Mr. Livingston ? No. They have done their duties, and his Declaration is a libel on all these functionaries. His counsel, indeed, has discovered [Opinions Lxxiv) that we should have had legal inquests taken, writs of enquiry formed, prosecutions for penalties, with all the et cæteras of the law. That is that we should be playing pushpin with judges and lawyers, while Livingston was working double tides to drown the city. If a functionary of the highest trust, acting under every sanction which the constitution has

provided for his aid and guide, and with the approbation, expressed or implied, of its highest councils, still acts on his own peril, the honors and offices of his country would be but snares to ruin him. It is not for me to enquire into the motives of the plaintiff in this action. I know that his understanding is of an order much too high to let him believe that he is to recover the value of the batture from me. To what indirect object he may squint with one eye, while the other looks at me, I do not pretend to say.

But I do say, that if human reason is not mere illusion, and law a labyrinth without a clue, no error has been committed : and recurring to the tenor of a long life of public service, against the charge of malice and corruption I stand conscious and erect.


MONTICELLO, July 31, 1810.

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


Albinos—Description of, 318.

IMPRES-MENT--Our remonstrances against,
AMERICA— Whether animals and mau de-

generate in, 312.

ARMY-We should not maintain a stand-

rad, 78, 97.
ing army, 11.

INDIANS--Their improvement, 7, 51, 118,

185, 191, 210, 214, 219, 226, 229.
BARBARY STATES--Our relations with, 8, Oir ludian relations-17, 21, 25, 31,
30, 31, 33, 35, 51, 65, 96, 97.

37, 42, 66, 85, 106. 172, 184, 186.
War with Tripoli. 7, 17.

Acquisitions of Territory from, 25,
Peace with, restored, 50).

52, 93, 94 108, 190, 192, 199, 206,
Case of Hanet Caremalli ex-Bashaw

219, 237, 239.
of Tripoli, 54.

Relatious with, during revolutionary
Difficulties with Tunis, 61.

War, 172, 177.
BERLIN AND Milan DECREES-Character Our policy towards. 186, 188, 192,
of, 100.

193, 196, 201, 203, 207, 211, 217,
BURR, AARON-His conspiracy, 71, 78, 87.


Probibition of sale of spirituous li.
CARRYING TRADE-Condition of, 16.

quors to, 187, 191, 233.
CENSUS OF 1800—8.

Commerce with, 196.
CHESAPEAKE, THE--Case of, 83, 102, 106, Warned against uniting with English

in war of 1812, 212, 215, 217, 233,
CLASSICS-Study of, should not be neg.

lected, 389.

Virgin a Indians, 336.

Burial places of, 341.
DEBT, Public Reduction of, 19, 26, 39, Linguage of. 345.
52, 67, 109.

Origin of, 344.
Deluge-Reasons against a general Del. Catalogue of tribes of, 346.

Logan's speech, 308.

The character of the races of, 304.
England-Negotiations with, 70.

The cupacity of, 305.
EMBARGO-Preferable to war--127, 134, Efforts to preserve peace between,
135, 140, 141, 143, 144, 163, 164,

221, 223, 228, 236.
165, 169, 170.

Removal of, West, 231.

Government of, 435.
FEVER, YELLOW-Its ravages, 46.

Tribes of sea board, 434, 437.
FINANCES--Prosperous condition of, 18,

JEFFER-on, Thomas—. Declines being a
FOREIGN RELATIONS—-40, 47, 62, 85, 102, candidate a third time, 121, 123,

Franklin, BENJAMIN—Anecdotes of, 4:7. Judiciary— Re-organization of, 13.

uge, 275.

too. 494

GOVERNMENT—Principles of, as set forth KosciusKO, GEN.—Biographical sketch of,

in Jefferson's Inaugural Address, 1.
Is progressive, 42

Benefits of Republican, 148. Lewis. MERRIWETHER-Biographical sketch
Gun-Boats—The use of, recommended, 79.

of. 481).

LEWIS AND CLARKE--Their expedition, 59,
HENRICK, THE—Case of, 22.


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