natural right. They have not all had that horror of the "cavils of litigation," that seems to have possessed the president of the United States; and while the most absolute sovereigns in Europe are seen to submit their claims to the decision of the laws, the first magistrate of a free republic, has the honor of inventing the practice of taking by force, and of applying to this proceeding the pithy expression, of seizing, at "short hand,”* all that he chuses to call the property of the public.

But the example of England is cited; and if it were against me, what would be the consequence? Does Mr. J. think he can assume the powers, as easily as he does the style of the king? But it is not against me; the laws of England are as far from making the king both judge and party, as those of France and Spain.

It is acknowledged, that "there are cases of particular circumstance, when the sovereign must institute a previous inquest;" ;""but in general cases, as the present, he enters at once on what belongs to the nation." "This (it is confidently asserted) IS THE LAW OF ENGLAND." I undertake, on the contrary, to shew, most explicitly, that this is not the law of Englandthat it is the very reverse; that, in general cases, the king cannot enter without an office found, or a judgment on an information for intrusion; and that it is only in cases of particular circumstance, as Mr. Jefferson calls them, (when there is evidence tantamount to the inquest) that these proceedings are dispensed with.

I should be surprised to hear this position from any other lawyer in the United States; but the review of this work has taught me a difficult lesson; I now wonder at nothing I find there. Let me go on then calmly, with the dull work of refutation. The constitution of England, is the most unfortunate example to which he could have referred. Though, in theory, the king is supposed incapable of committing a private wrong, in practice he is not permitted to do it. A remedy is provided for every aggression of the subjects' right. The king cannot enter, without an inquest found, or a judgment on an information; or some other matter of record, by which a primâ facie title is apparent; and even after this, the claimant may either traverse the

Mr. J. not being able to find in the phraseology of our own law, any ex-. pression sufficiently descriptive of his outrageous proceeding, has borrowed, it seems, this technical term from the Scotch lawyers, who apply it sometimes, to distress for rent, impounding of cattle damage feasant, and other remedies of a similar kind, authorized, but regulated by law, so as not to produce oppression or injustice in practice. "Poinding at short hand for house-mail," Kaims' Law Tracts, 159.

inquest, or have a monstrans de droit, on which he may controvert the title of the king; and should he shew a better in himself, he has a judgment of the court, which instantly and by the very act, puts the king out of possession. This is so much the A B C of the profession, that it would be a vain parade of research, were I to cite all the authorities that could be produced. A page or two of Blackstone will settle the question.

3d Blacks. 257.259.-" The methods of redressing such injuries as the crown may receive from the subject are, first, such common law actions, as are consistent with the royal prerogative," &c. &c.

Second, the inquisition or inquest of office, which is an inquiry made by the king's officers, his sheriff, coroner, or escheator, virtute officii; or by writ to them sent for that purpose; or by commissioners specially appointed, concerning any matter that entitles the king to the possession of lands or tenements, goods or chattels," &c.-" These inquests of office were devised by law, as an authentic means to give the king his right by solemn matter of record; without which, he, in general, can neither take nor part from any thing. For it is a part of the LIBERTIES OF ENGLAND, that the king may not enter upon, or seize any man's possessions upon bare surmises, WITHOUT THE INTERVENTION OF A JURY."

There are some exceptions to this rule; one is created by statute in the tyrannical reign of Henry the Eighth; which enacts, that the estate of a person attainted of high treason, shall be vested in the crown, without inquisition.

Another is derived from the operation of law, which gives the crown the same, but no greater rights on this subject than are enjoyed by a subject, if the possession in law is cast upon him; as where he takes, by descent, in remainder or reverter. Stamf. 54. 4 Co. 58. Sav. 7. 9 Co. 95. 6.-For in all cases where a common person is put to his action, there, even after an office found in his favour, the king is put to his scire facias; for an office entitles the king to an action only, and not to an entry; but where a common person may enter or seize, there an office, without a scire facias shall suffice for the king.—9 Co. 266. Stamf. 55. a.

The last case in which the finding of the inquest is dispensed with, is where the king's title already appears by record; in which case it is generally unnecessary.-Stamf. 56.

But even in the case of an inquest found, it is not conclusive. The government of England has thought it not derogatory to its dignity, in favour of the subject's right of property, further "to bind up its own hands in the manacles and cavils of litigation;" (for it is in these terms a republican president expresses himself to designate an appeal to the laws.) The subject contending with his sovereign, may still sturdily refuse to yield. The law has provided him with more than one resource. He may, in most cases, traverse the fact found by the inquest; and has, in all cases, either his monstrans de droit, or his petition of right. The first, when he does not deny the facts found; the last, where he relies on new matter in support of his title.

Third. The third mode pointed out by the law of England, for the redress of injuries to the crown, by taking possession of public lands, is that of information "for intrusion, for any trespass committed on the lands of the crown; as by entering thereon without title, holding over after a lease is determined, taking the profits, cutting down timber, or the like." 3 Bl. Com. 261. In all these cases, the party claiming a title, has a full and fair opportunity of shewing it, of examining that of the crown, and submitting both to the decision of a jury. Is it not extraordinary then, that one so well versed in the laws of England as Mr. Jefferson, should publish so deliberate, so malicious a libel on its jurisprudence?-that he should cite the English government as one which disdained the forms of law, and seized, at short hand, whatever it chose to call its own? as one under which the subject was liable to be dispossessed, whenever a tyrannical or necessitous king should claim his property as part of the domain? and that he should assimilate the powers of the crown, to those which he has illegally exercised? The boldness of the attempt excites astonishment; but it was necessary to attempt it. The constitution of the country, in which this daring violation of private right was committed,* assured to the inhabitants, "the benefit of the trial by jury," "and of judicial proceedings according to the course of the common law;" and solemnly declared, that "no man should be deprived of his liberty or property, but by the judgment of his peers, or the law of the land." Similar provisions are found in the great charters, which secure the English subject against the encroachments of the crown. It was necessary, therefore, to persuade the

* Ordinance of 1788.

American citizen, that these sacred provisions were nugatory in England, before he could calmly see them violated in America.

The contrast, too, between a monarch whom he had designated as a tyrant, bound up by the manacles of litigationunable to seize his own at short hand-forced to respect the possessions of his subjects-affording them every means of asserting their rights, and that of the magistrate of a free people-playing the TARTUFFE of liberty-adoring it in profession, but in practice violating its most sacred principles-seizing on the property of a citizen without inquest, or the intervention of a jury-denying him every species of trial, and insulting him with impunity, when he dared to appeal to the public-this contrast was too striking to be endured; and the only way of removing it was, to bring our ideas of the British government, on the level to which his practice had degraded our own.

It is not true, then, that either in England or the more energetic governments which lately existed in the rest of Europe, the crown was permitted to seize property which belonged to it, without the intervention of those forms prescribed by law to protect private possessions from violence. The Spanish law, which is cited as that which persuaded the president that this power was vested in the former government of Louisiana, cer-, tainly is not calculated to give this idea. It directs that if any building injurious to navigation be made in rivers, or on their banks, they must be destroyed. This, clearly, is no proof that the government had a right even to put down the nuisance without a trial, much less to seize property that they claimed as their own. But the example of the Spanish governor and cabildo, it is said, was a sufficient excuse. This is a curious justification. One of the first Spanish governors, soon after his arrival, led out eight or ten of the principal inhabitants of the country, and shot them with as little ceremony as Mr. Jefferson seized upon my property; but he, surely, is not to learn that the cabildo was the city council, although the governor presided in it; and if they, legally or illegally, issued orders to destroy buildings which had been erected on Gravier's land, under an allegation that they were nuisances, does this give the same right to the president of the United States? The city council of New Orleans can make by-laws and orders for regulating the streets of the city, the same power was exercised by the cabildo; does this give a right to the president of the United States to participate in these No. XVIII.

2 G

local regulations? But again I repeat, the Spanish government never took posession of the batture at short hand, as of property belonging to itself; Mr. Jefferson, acting in the name of the United States, did. There was, therefore, no example to justify him, and I have, I trust, shewn that if there had, it would have been an unlawful one.

If, then, neither the limited monarchy of England, nor the more absolute ones of France and Spain permitted the sovereign to be his own judge; if the subjects of those powers held their possessions under the guarantee of the laws, and not at the will of the prince, can this power be lodged in the first magistrate of a free people? can that people hold their property by so precarious a tenure? If so, by whatever name the government may be called, it is not free. It is of the essence of such a government, to have the three great departments distinct; so monstrous a confusion of the legislative with the executive and judicial powers, must forever forfeit all title to the honourable appellation of a free republic. Is the constitution of our country liable to this reproach? Or are those who have administered it chargeable with that of having violated its principles? These are serious questions, and naturally come to be considered in examining what Mr. Jefferson calls his "third and conclusive remedy." This is the law of congress entitled “An act to prevent settlements being "made on lands ceded to the United States, until authorised by "law." Whatever other remedies Mr. J. had, he must justify himself under this, for it is the only one he has pursued; he took away my property under this act, and if I can shew: 1st. That my case does not come within it; 2d. That its directions were not pursued; or 3dly, that it is an unconstitutional act, I take away from the president every ground of defence.

I. This is not a case coming within either the letter or the spirit of the act. The slightest recurrence to its provisions, must shew that its intent was only to enable the president to guard against the intrusion of a class of men known in the United States by the appellation of squatters; that its provisions contemplate uncultivated land, where, from the remoteness of the situation, a sufficient number of settlers might be assembled to resist the ordinary process of law; but that it could not have entered into the mind of a single man who concurred in passing

8 Laws U.S. p. 317.