of filling up a mud puddle, or pulling down a dyke in New Orleans.

Nec Deus intersit nisi dignus vindice nodus, Do not let Jupiter appear until his thunders are necessary, is a maxim, true as well in the common prose transactions of real life, as in the fictions of poetry. If my works were a nuisance, a court of quarter sessions with its sheriff, its constables and parish jury was a much more appropriate machinery, than the president of the United States assembling the council of the nation, drawing out its military force and lanching his thundering mandate at my unprotected head.

There is a real or affected ignorance of the first principles of our government, which runs through all this division of Mr. Jefferson's argument, that is degrading to the author in the first hypothesis, insulting to his readers in the second. The bed of the river and its shores belong, says his argument, to the public. The sovereign is the guardian of this public right, and though the soil of the bank may belong to an individual, it is the duty of the sovereign to take care that this right of private property yield to the public use. To this point he has cited Domat in p. 60. But in our government who is the sovereign? The executive head of the federation? or the local government, the state or territorial sovereignty? No man who understands the first rudiments of our constitution can hesitate on these questions; again, of the local government which branch? Every infraction of a public right is a public offence, and all these are to be punished by the intervention of the judiciary, a branch wholly distinct in our government from the executive, but which Mr. Jefferson has confounded with it in his principle, and has degraded by his practice.

The territorial government, for all the purposes of domestic rule, is as distinct from and as independent of the general government, as is that of the states. By the ordinance of 1787, which at the period of the transaction, formed the constitution of the territory of Orleans, there was a governor with executive power, a legislative council and house of representatives, with "authority to make laws in all cases for the good government of the district, not repugnant to the ordinance," or constitution, and a judiciary regularly organized. In short, a local government complete in all its parts, excluding as much any interference of the federal government, as those established in the

states. The care, then, of all these public rights in the territory of Orleans, belonged exclusively to the proper branch of the local government, and the interference of the president of the United States was as unconstitutional under that pretence, as it would have been in New York or Massachusetts; and he might as well ord the marshal to call out his posse to destroy the weirs and floating nets in Hudson's river, or to cut down the wharves that project into its channel; he might as well, I repeat, order the demolition of Long Wharf, and direct the garrison of the castle to hold themselves in readiness for another Boston massacre, in case of resistance. He would be quite as justifiable in doing this as in doing what he has done, and he might use the same arguments with as much force in the one case as in the other.

That the right of interference resided in the territorial, not in the general government, is in effect acknowledged by our author himself, who tells us (p. 62) that "surely it is the territorial legislature which not only has the power but is under the urgent duty of providing regulations for the government of this river and its inhabitants," &c.-In the same page he tells us that "the governor and cabildo (municipal council) seem to have held this pretorian power in Louisiana, as well as that of demolishing what was unlawfully erected, and that the act of the legislature, without taking the power from the governor and city council, gives a concurrent power to the parish judge and jury," &c.Here we have an express acknowledgment, nay more, a strong desire to establish a right in the territorial legislature to make laws on the subject in dispute, and in the territorial executive to carry them into execution-not only to prevent the erection of any nuisance, but to demolish it if erected.—If, then, this right both to legislate and execute was vested in the local government, what excuse has the president of the United States for his interference? In what part of the constitution does he find this concurrent right? What confused ideas, then, I repeat, must that man have of government who believes in this justification? What contemptuous ideas of the people to whom it is addressed must he entertain, who knowing its fallacy, thinks he can impose it on their understandings!

But supposing my works a nuisance, and the president of the United States to have the power to abate it, has he done so? Is

that the act of which I complain? neither the one nor the other;his order is not an order to demolish my works, to fill up my canal, to pull down my house, but to remove ME from the possession of the land"-and this was accordingly done; the canal which was to poison the city by its pestilential vapours was suffered to remain, and is resorted to at this day, although nearly choked up for want of cleaning and repair, as a more commodious and safe harbour for boats than any other near the city. The levée that projected into the river and was to "sweep away the town and country in undistinguished ruin," was not demolished by this vigilant abater of nuisances: it was left to the operation of time. to effect. The house which impeded the navigation of the river, and interfered with the public right to its banks, was transferred to the possession of the city of New Orleans, and for several years was occupied as their guard-house. So that if the facts alleged in Mr. Jefferson's justification be true, and it was his duty to abate the nuisance, he has totally neglected it; he has suffered the nuisance to remain, but has dispossessed the owner of the land on which it was erected,-a new mode of procedure, and somewhat inconsistent with that eager desire to destroy these dangerous works, with that active zeal which could brook no delay to consult the forms of law. The truth is, that this idea of the abatement of a nuisance is a complete after-thought, never alluded to in the act or in any of the early stages of justification, suggested now by a faint hope to elude fair inquiry, and made of such stuff as are the arguments of a Newgate solicitor in defence of a felon caught in the manour.-To hide the thread-bare weakness of this argument it is glossed over with a mock heroic declamation, in which pestilence and fever, death, destruction, ruin and inundation, frighten the reader in every line, and in which he has reproached me with being afraid of submitting my cause to a jury. Mr. Jefferson reproaches me with this!—He whose constant care has been by demurrers, by pleas to the jurisdiction, by every device that chicane could invent to avoid this species of investigation; he, whose steady phalanx of friends in congress defeated every attempt to submit the cause to any species of trial!-He utters this reproach to me! who for five years have been constantly engaged in the painful unavailing task of solicitation for this or any other trial. Such an insulting disregard to propriety and truth, forces me from the modera

tion with which I wished, injured as I have been, to conduct the controversy; and the close of the passage now under review is calculated to inspire sentiments not only of indignation, but horror!

My life had been more than once threatened for exercising my legal rights. Emboldened by the idea of executive protection, excesses were committed in my case, which the love of order natural to the people of Louisiana had in every other instance avoided. The good sense of the people had got the better of this temporary frenzy; the necessity of submitting to the laws was perceived and acknowledged. Mr. Jefferson's friends must have informed him that these ideas began to prevail, and that if by a decree of the court, or in any other legal manner, I should recover my possession, there were now no hopes that I should be deprived of it by a mob. This was a prospect too mortifying to be endured, the people must be excited—the spirit of 1807 must be revived, and though the danger never existed, though if it existed it was long past, it must be painted in glowing colours, the vengeance of popular fury must be directed at my head; an expression in one of my letters, which it was thought would render me odious to the people, must be culled with malignant care-their conduct in opposing the laws must be spoken of with complacency, while mine in daring to complain is held up to the severest animadversions; and when by these arts a proper spirit is supposed to have been excited, they must be plainly told, that though their laws will not allow them to BURN me alive, it is a punishment mild enough for my offence!!

"What was to be done," says Mr. J., "with such an aggressor? Shall we answer in the words of the imperial edict?-Let him be consumed WITH FLAMES IN THAT SPOT in which he violated the reverence of antiquity and the safety of the empire, let his accessaries and accomplices be cut off," &c. "Our horror," he adds, "is not the less because our laws are more lenient." I ought perhaps only to laugh at the folly of this rhapsody, and remind the author that the flames were prepared by the Roman law for the destroyers of the dykes of the Nile, not for the one who erected them,-I ought to ask him good-naturedly to look at the title of his own law,* and determine which of us deserved

* De Nili aggeribus non rumpendi

the stake. But I confess that the mirth naturally excited by the absurdity, is somewhat repressed by horror at the wickedness of this attempt.

On these facts and on this law, the late president says "We were called and repeatedly and urgently called to decide." As I do not suppose a republican magistrate could assume the ridiculous expression of royalty, by speaking in the plural number, I must suppose that he has fallen into it by reflecting on the various capacities in which he was thus urgently called on to act. AS LEGISLATOR, he was to make a new law to fit the circumstances of the case; as JUDGE, he was to apply it to those facts which as a JUROR he was to ascertain, and to pronounce that sentence which, as EXECUTIVE OFFICER, he was himself to carry into effect; as PRESIDENT, he was to reclaim the lands of the United States; as COMMANDER IN CHIEF of the armies, a sufficient military force was to be prepared to over-awe opposition; as MAYOR of the city of New Orleans, he was to enforce its rights against the decrees of the court; as HIGH CONSTABLE, he was to abate nuisances, and as STREET COMMISSIONER to remove the putrefying mass, that threatened the health of the city. We ought not to be astonished that an officer who thought himself obliged to act in all these capacities, should speak as if he were more than one, nor that having in this instance invested himself with all the characteristics of despotism, he should have assumed its style.

Having established what he calls the fact, and the law of the case, he proceeds to shew, that he had applied the proper remedies. These he classes under three heads:

1. "The right to abate nuisances."

2. "The right to resume by force, property which had been unlawfully taken."

3. "The act of Congress, of the 3d of March, 1807."*

1. I have anticipated the argument on the first head, and have shewn that there was no nuisance; that if there were, a competent local authority was provided to abate it; that the president of the United States, if he acted on this ground, acted unconstitutionally, and assumed the powers of inferior officers, in a manner derogatory to his dignity, and contrary to his duty; and finally that if it were a nuisance, and it were his duty to abate it, he did not perform this duty, but left the nuisance in

*8 Laws U. S. p. 317.