The Influence of Classical Ideas on Thomas Jefferson
through an Examination of His View on Roman Law
By Matthew Nye
At its broadest, this essay examines the effects of classical influences on early American history.
More specifically, it looks at Thomas Jefferson’s opinion and possible use of Roman law. I will
attempt to establish that Thomas Jefferson deemed that Roman law had contemporary legitimacy
and that it had more than indirect influence (through its evolution through European legal
systems) upon American legal issues. This issue is important because it elucidates one aspect of
the tension that exists between civil vs. common law in American legal debates. It also provides
a way to gauge whether classical ideas, which were often cited during the Revolutionary period,
were truly influential upon early America or merely given lip service in order to provide a sense
of legitimacy to Revolutionary ideas.
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Since the early twentieth century, the extent of the influence of classical traditions on
early Americans has been increasingly scrutinized. A large body of evidence reveals that many
of the American Founding Fathers were familiar with the ancient Greeks and Romans, but
establishing that they were guided by their knowledge of the classics is more difficult to prove.
In order to determine whether early Americans, and particularly those within the political
spheres, were truly influenced by classicism, historians have turned increasingly to early
American rhetoric, professed ideology, and imagery in order to determine the validity of these
claims. This essay will examine classical influences used in praxis, rather than advocated in
theory, through an examination of the Roman law in early American jurisprudence, and
specifically in the case of The Batture of New Orleans involving Thomas Jefferson and Edward
Livingston. To show how the Batture case is relevant, and to examine its implications, I will first
examine the two main schools of thought regarding the classical tradition in early America in
order to frame the issue in light of the current academic debate. Second, I will explain why
Thomas Jefferson in the Batture case acts as an ideal case study for the examination of Roman
law in early America. Third, I will provide a sketch of the Batture case itself, examining how
Roman law is significant in the case and how Thomas Jefferson approached Roman law in
regards to its contemporary legitimacy. Finally, in order to isolate the possible singularity of
Jefferson’s treatment of Roman law, I will examine it in light of the codification movements in
Europe.
The historical debate regarding the influence of classical traditions in early America can
be broken into two general schools of thought. The first group believes that early Americans
were heavily influenced by their reading of the classics, and relies upon the vast quantity of
references made to classicism to support their position. They also cite the importance that
classical education played in the lives of the early Americans. For example, thirty-one out of the
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fifty-five members of the Constitutional Convention were college graduates who had read
significantly from classical sources.1 Richard Gummere contributed to this school of thought by
tracing ‘this glorified game of hide-and-seek through the pages of classical antiquity’ in
biographical works of numerous early American politicians and intellectuals.2 Though some
critics claimed that Gummere’s methodology consisted of mere agglutination of classical
references by early Americans, he is credited with proving that many of the Founding Fathers
were familiar with classical sources, and for introducing the concept of ‘refraction’ to describe
how early Americans selected and adapted classical political and social theory to further their
own needs.3 Similarly, Karl Lehmann relied upon Jefferson’s classical education and extensive
knowledge of antiquity to assert that the third President was greatly influenced by these sources.
Concerning Roman law, Lehmann claimed that Jefferson as a moralist valued the equity of
Roman law as both ‘an historical ferment of legal development and as the relatively best …
system of a “nation highly civilized.”’4 However, a criticism that some have leveled at this
school of thought is that the majority of its constituents have formerly been classicists, and that
their opinion is potentially weighted in favor of the influence of the classical tradition.5
Recent scholarship concerning the classical tradition in America has tended to be more
hesitant in attributing influence to classical sources. Several historians have asserted that the
body of allusions made to antiquity by early Americans evinces a superficial and intentional use
of classical works in order to support a political agenda. Meyer Reinhold has asserted that the
Revolutionary leaders pillaged classical works for selected phrases and ideas that would
1
2
3
4
5
Caroline Winterer, The Culture of Classicism: Ancient Greece and Rome in American Intellectual Life
1780-1910 (Baltimore, 2002), p. 17.
Richard Gummere, ‘Classical Precedents in the Writings of James Wilson’, Publ. Col. Soc. Mass. Vol. 32,
(1933-37), pp. 525-538. Qtd. in Meyer Reinhold, ‘Survey of the Scholarship on Classical Traditions in
Early America’, in Classical Traditions in Early America, John Eadie, ed., (Ann Arbor, 1976), p. 10.
Meyer Reinhold, ‘Survey of the Scholarship on Classical Traditions in Early America’, in Classical
Traditions in Early America, John Eadie, ed., (Ann Arbor, 1976), pp. 10-11.
Karl Lehmann, Thomas Jefferson: American Humanist (New York, 1947), p. 133.
Reinhold, ‘Survey’, p. 9.
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legitimize their cause, such as the Roman Republic serving as the exemplar for creating America
as a novus ordo saeclorum.6 Reinhold has furthermore suggested that the prominence of classical
references during the Revolutionary era was indicative of a ‘cult of classicism’ that believed in
the potential for an American nation-state founded on the virtues of its citizenry.7 However,
Reinhold claimed that the watershed event signaling the end of this idealistic vision was the
Constitutional Convention of 1787, wherein the drafters of the Constitution realized the need for
a centralized political system to curb the tendency of self-interested regional groups to abuse the
weak system of the Articles of Confederation.8 The idea that a strong but superficial classical
tradition existed in the Revolutionary period, but later declined, is supported by the diminished
importance of classical languages in nineteenth-century American college curricula,9 as well as
the diminished use of Roman civil law in American jurisprudence in the early to mid-nineteenth
century.10 It is also supported by quotations from formerly staunch advocates of classicism such
as John Adams and Thomas Jefferson. Near the end of his life, Jefferson remarked that the
Romans, whose legal and political thought he had previously admired, ‘never had [good
government], from the rape of the Sabines to the ravages of the Caesars’, which was a clear
departure from his early advocacy of classicism.11
Historian Bernard Bailyn also asserts that classical influences were not as influential as
previous historians have purported. Bailyn claims that the classics were ‘everywhere illustrative,
not determinative, of thought’ for the early Americans; the truly influential ideas for early
Americans were those promulgated by the European Enlightenment.12 Differing slightly from
6
7
8
9
10
11
12
Meyer Reinhold, Classica American: The Greek and Roman Heritage in the United States (Detroit, 1984),
pp. 97-98.
Meyer Reinhold. ‘Roman Virtues and the American Experience’, The Augustan Papers, #1, pp. 7-11.
Reinhold, ‘Roman Virtues’, p. 13.
Winterer, pp. 46-55.
Peter Stein, The Character and Influence of Roman Civil Law: Historical Essays (London, 1988), p. 442.
Thomas Jefferson, Writings of Thomas Jefferson, vol. IV, pp. 65-66.
Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, 1992), pp. 26-28.
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both Bailyn and Reinhold, James and Alan Golden argue that classical sources influenced
Jefferson’s moral values, along with a conglomeration of other influences, including Scripture
and Enlightenment writers.13 Nevertheless, the majority of recent scholarship has supported the
theory that the classics, though respected, were primarily utilized to further the causes of the
educated American elite.
In light of this largely theoretical historical debate, the Batture case provides a useful
gauge for viewing the intersection of early American thought with the classical world for several
reasons. It occurred in the newly procured Louisiana Purchase, in the territory of Orleans that
operated in the Romano-French legal tradition.14 In addition, the defendant was Thomas
Jefferson, who was both the most adamant and knowledgeable classicist of the Founding
Fathers.15 Illustrative of Jefferson’s high esteem of classical authors was his claim in reference to
Homer that, ‘I thank on my knees him who directed my early education, for having put into my
possession this rich source of delight: and I would not exchange it for anything…’16 Furthermore,
Jefferson’s extensive knowledge of both classical sources and legal theory makes him an ideal
study for the treatment of Roman law as having legitimacy for early nineteenth century America.
Jefferson was certainly a strong supporter of the classics, and some historians in favor of
the theory of prominent classical influence in early America have claimed that Jefferson’s
actions in the Batture case supported the contemporary legitimacy of Roman law. Peter Stein
claimed that Jefferson viewed Roman law ‘almost as a form of higher law’ that could hold sway
over other forms of law.17 Stein also claimed that this was not limited to the Batture case:
Anglophobia in post-Revolutionary America contributed to both a distrust of the common law,
13
14
15
16
17
James and Alan Golden, Thomas Jefferson and the Rhetoric of Virtue (Lanham, 2002), pp. 25-28.
Jefferson, Batture, p. 505.
Reinhold, Classick Pages, p. 3.
Jefferson, Mem. Ed X, 147. Qtd. in Reinhold, Classick Pages, p. 3.
Peter Stein, The Character and Influence of Roman Civil Law: Historical Essays (London, 1988), p. 418.
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due to its English heritage, and a desire to incorporate Roman law into American civil law.18
Similarly, Karl Lehmann wrote that Jefferson ‘added a masterly historical résumé about the way
in which Roman law imposed itself on original French, feudal law.’19 According to these and
other authors who hold to a pervading influence of classicism, Roman law was capable of
superimposing itself upon other forms of law in light of its natural equity and its high esteem
amongst contemporary politicians. However, the question arises: while Jefferson referred to the
Roman law system as ratio scripta, did he believe that it was a ‘higher law’ with contemporary
legitimacy? Are the supporters of a classically influenced America correct in their interpretation
of Jefferson’s view? In order to examine this question, I will now turn to the Batture case and
specifically to the issue of Jefferson’s treatment of the Roman law.
The 1811 case centered on a batture, or long shoal or beach, which was formed by
depositions of silt and debris of the Mississippi River near New Orleans. For half of the year this
batture was covered with water and used as a free anchorage by trading craft. During the other
half of the year the batture was above the waterline and served as both a quay and a source of dirt
and sand for the city inhabitants. It had long been used as public property under the former
owner, Bertrand Gravier. When Bertrand died, the property passed to his brother John and later,
through the dubious speculative sale of the ostensible deed to a third party, in part to a lawyer
named Edward Livingston.
Livingston received his part of the land by representing John Gravier in a territorial court.
Livingston and Gravier argued that the batture was an alluvion, defined by Roman law as the
incremental buildup of solid deposits by a river, and therefore the property of the owner of the
land fronting the river. Their case rested upon the acceptance of the batture as an alluvion and the
legal legitimacy of Roman custom in the Louisiana Purchase. Roman law stated that if a large
18
19
Ibid, pp. 415-17.
Lehmann, p. 95.
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block of soil was moved, it still belonged to the original owner.20 Yet alluvions were an
exception to the Roman standard of absolute possession, with the gradual buildup of land due to
the flow of water acting as an acceptable transition agent from one owner’s possession to
another.21 After having established title through the territorial court, Livingston began to
construct a canal and level on the batture, which incited the local public against him due to their
fears that these constructions would not only prevent their use of the batture as quay, anchorage,
and soil supply, but would also cause flooding downriver. Since the territorial court had given
Livingston legal possession, the governor sent word to Washington, D.C., whereupon President
Jefferson deemed that the batture belonged to the U.S. government, and subsequently ordered the
cessation of all work on the batture by Livingston.
The Batture case began shortly after Jefferson left office, when Livingston sued Jefferson
for his actions regarding the batture. Livingston claimed that as part owner of the batture, he had
been unjustly deprived of the rights of his property, and he sued Jefferson for $100,000.22 The
former President, in order to defend himself and avoid paying the charges that would weaken
him financially, drafted with several other lawyers a lengthy debate in his defense.
In the brief, Jefferson quickly established that the batture’s possession was to be judged
according to the modified French form of law that existed in Louisiana under the French. This
legal system had been transferred nearly intact through the Spanish acquisition in 1769. Here
Jefferson notes that the French law had:
at hand the legal system of a nation highly civilized, a system carried to a degree
of conformity with natural reason attained by no other. The study of this system
too was become the favorite of the age, and, offering ready and reasonable
solutions of all the new cases presenting themselves, was recurred to by a
20
21
22
Institutiones 2.1.20-21. Qtd. in Ditlev Tamm, Roman Law and European Legal History (Copenhagen,
1997), p. 90
Institutiones 2.1.20-21. Qtd. in Ditlev Tamm, Roman Law and European Legal History (Copenhagen,
1997), p. 90.
Edward Livingston, Address to the People of the United States, Intro, Lxviii-lxxv.
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common consent and practice; not indeed as laws, formally established by the
legislator of the country, but as a RATIO SCRIPTA, the dictate, in all cases of
that sound reason which should constitute the law of every country.23
Jefferson stated that he was aware of the undercurrents of Roman law within the French law, but
argued that the former acted as the dictate of reason rather than as formally transferred laws. The
brief then revealed that according to French custom, Roman law was subordinate to the monarch.
In support of this, Jefferson cited numerous French legal works, including Pothier, Guyot, Le
Rasle, Ferriere, Crozat, and even Louis XIV’s edict of December 15, 1693.24 All of these authors
agreed that the Roman law system’s relevance was limited to the occasions that it was adopted
by local custom, edict, or the silent or obfuscatory nature of the Coutumes de Paris. The
monarch’s ordinances remained ‘the true laws of the kingdom’.25 Jefferson’s case defense was
aided by this subordination of the Roman law to the French law, since according to French
custom, battures were not considered alluvions.26 Furthermore, Livingston’s arguments relied
upon the acceptance of Roman law in the consideration of the batture as an alluvion.
Jefferson then analyzed the possibility of the Batture case being considered under the
jurisdiction of Roman rather than French law. If he could prove that even the Romans would not
have considered the batture to be an alluvion, Livingston’s claims would be further rendered
deficient. Jefferson concluded that even if the question were to be decided under Roman law,
Livingston’s claims were insufficient for two reasons. The first was that Bertrand Gravier had
attempted to convert his property into a fauxberg of New Orleans. According to Roman law, the
exceptional status of the possession of alluvion for the owner with riparian rights was conditional
upon the land bordering the water being considered ager, which Jefferson argued was interpreted
23
24
25
26
Jefferson, Batture, p. 530
Jefferson, Batture, pp. 531-39.
Ferriere, Dict. De droit. Ordonnance. Qtd. in Jefferson, Batture, p. 532.
Jefferson, Batture, pp. 534-38.
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by the Romans as farmland.27 Jefferson concluded that according to Roman definitions the
attempt to convert the land into a fauxberg meant that it was no longer considered farmland and
therefore the claim of alluvion was invalid. Furthermore, the Roman definition of alluvion was
conditional upon the gradual increase of sediment. Since the New Orleans batture was capable of
being altered by up to seven feet in a single tide, it failed to meet this criterion as well.28
Jefferson also argued that the principle of reason was sufficient for Livingston to be
denied the privilege of altering the course of the river. Jefferson claimed that according to
Roman law, which placed an emphasis on the public welfare, the batture would be considered
public property and therefore could not be changed without public permission.29 According to
French law, the monarch alone had sovereignty, but even his sovereignty was viewed as a form
of trust for the good of the general public.30 Furthermore, the principles of equity and common
sense showed that Livingston should not be allowed to alter the river and subsequently endanger
the entire population of New Orleans, since the creation of the canal would cause the river
downstream to overflow its banks. Jefferson ended his brief by reminding the court that his
actions as executive were done to protect the welfare of the public and that he should not be
punished for such actions.31
Jefferson’s conclusion was that Livingston’s claim to the possession of the batture was
untenable. The batture failed to meet the conditions of alluvion provided by the Roman law.
More importantly, Livingston was incorrect in relying upon Roman law in the case, because the
more dominant French law gave the right of the possession of alluvion to the monarch according
to the compiled testimony of Pothier, Guyot, Le Rasle, Ferriere, Crozat, and Louis XIV.
27
28
29
30
31
Qtd. in Jefferson, Batture, pp. 551-6.
Jefferson, Batture, p. 557.
From Juris Civilis 4.1.1., Dig. 43.8.2.16., Dig. L. 43. tit. 15, Qtd. in Jefferson, Batture, pp. 573-6.
Jefferson, Batture, pp. 541-3.
Jefferson, Batture, pp. 600-03.
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Accordingly, Jefferson claimed that the French monarch had passed his rights to the land over to
the federal government of the United States, and therefore Jefferson’s previous acts as President
were substantiated. In the end, the case was thrown out for lack of jurisdiction by the Virginia
court.
A juxtaposition of the treatment of Roman law in the Batture case with its treatment in
the Western European legal context reveals striking parallels. After the eleventh century
rediscovery of Justinian’s Digest, Roman law acted as a legal incubator for much of Western
Europe.32 However, the large amount of obsolete legal instruction in the Digest, as well as the
existence of new legal philosophies during the Enlightenment, caused a shift in legal thought.
This shift culminated in the codification movement of the eighteenth and nineteenth centuries in
which the various nations codified their own law codes. Scholars such as Montesquieu began
excogitating that the Roman law was still a useful tool from which legal scholars could sample,
but it was increasingly considered the dated legal system of an ancient society.33 Though the
switch from systems largely reliant upon the continuation of Roman law varied amongst the
European countries, a cursory examination of the movements towards nation-centered legal
constructs in Germany, England, Scotland and France verifies this trend.
The codification movement began in Bavaria with Kreittmayr’s Codex Maximilianeus
Bavaricus civilis in 1756, which acknowledged the subsidiary validity of Roman law.
Kreittmayr’s work was soon followed by Prussian and Austrian law codes that strayed from the
Roman tradition.34 In England, the common law, which was formed from the remains of Roman
law coupled with the numerous reports of the English courts, was finally codified in
Blackstone’s 1765 Commentaries on the Laws of England, which was itself heavily influenced
32
33
34
Peter Stein, Roman Law in European History (Cambridge, 1999), p. 43.
Stein, Roman Law in European History, p. 111.
Ditlev Tamm, Roman Law and European Legal History (Copenhagen, 1997), pp. 238-9.
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by Roman law.35 Similarly, renowned Scottish jurists such as Lord Stair aided the process of
codification displayed obvious familiarity with Roman law, but remained adamant that it was
‘not acknowledged as a law binding for its authority, yet being, as a rule, followed for its
equity’.36 Finally, in France, the codification movement was most notable in the French Civil
Code, or Napoleonic Code of 1804, which contained remnants of the applicable Roman law that
had been refined through legal tradition.37 In all of these states, pieces of the Roman legal
tradition were still discernable in the codified systems, but were used as legal doctrine only when
dictated by custom or through the silent or muddled state of codified laws.
An analysis of Jefferson’s brief reveals several insights into the former President’s views
on Roman law. He was respectful of the Roman law system as highly influential for European
legal traditions, such as French law. He also considered Roman law to be useful for its great
equity and reason. In light of the codification movement in Europe before and during this time,
Jefferson’s views were remarkably similar to those of European legal scholars such as Lord
Stair, as evinced by the similarity of their opinions regarding the usefulness but lack of formal
establishment of Roman law. Jefferson did not assert the contemporary legitimacy of Roman law
for the region of Orleans, except in cases where the French laws were silent or had adopted
Roman laws explicitly. Furthermore, there is no indication that the Roman law was viewed as a
‘higher law’ with any sort of contemporary legitimacy for the broader scope of American legal
thought; the Batture case was confined to the strict legal parameters established by the adoption
of the Romano-French tradition in the Orleans region.
As mentioned at the outset, authors such as Karl Lehmann and Peter Stein have made
bold claims about the supposed strength and continuation of the Roman legal tradition in light of
35
36
37
Charles Sherman, Roman Law in the Modern World, Vol. 1. (New Haven, 1922), p. 381.
Qtd. in Stein, The Character and Influence of the Roman Civil Law, p. 335.
Sherman, pp. 242-6.
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the Batture case. However, an examination of the Batture case reveals that these arguments are
not substantiated by Jefferson’s brief. The confusion concerning the Batture case can be
attributed in part to an overly literal interpretation of Jefferson’s words. His frequent uses of
phrases such as ‘were this question to be decided by the Roman law’ hint that Jefferson
considered Roman law as a potential contemporary legal form.38 In reality, however, his
references were part of an attempt to examine all possible methods that the case might be
construed by the judge, John Marshall, whom Jefferson distrusted.39 Since the loss of the case
would put the former President into dire financial straits, it was necessary to consider even the
remote possibility of the French law being subordinated to the Roman law by the court. Historian
Merrill Petersen commented on this attempt to attack all of Livingston’s points, claiming that
Jefferson’s case could be approached from three distinct angles: lack of jurisdiction of the
Virginia court in dealing with a case from Louisiana, the discretion of the executive, or the
merits of the case itself as described in the brief.40 In the end, Jefferson pursued every possible
method of disqualifying Livingston’s claim, including examining the issue of the batture being
an alluvion from both the French and Roman stances. Though not examined in this essay,
Jefferson also posited numerous other arguments undermining Livingston’s claim, such as the
illegitimacy of Livingston’s title to the batture. Collectively, all of these arguments indicate that
Jefferson’s hypothetical references to Roman law were merely part of a determined attempt to
topple Livingston’s suit.
An examination of the methodologies of many authors that strongly promote the proclassical tradition reveals poor scholarship. If a scholar were to read Jefferson’s brief in search of
classical references with the presupposition that classical influences were a dominant theme in
38
39
40
Jefferson, Batture, p. 554.
Merrill Petersen, Thomas Jefferson and the New Nation: A Biography (New York, 1975), p. 995.
Ibid, pp. 946-8.
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American politics, he or she could easily discover a hoard of legal references to classical works,
primarily from the Institutes or Digest. However, a closer examination reveals that the majority
of these references were made simply to establish definitions to legal terms such as ager.
Furthermore, even if Roman law were determined to have contemporary legitimacy in the
Batture case, it would not indicate a similar influence in mainstream American legal thought,
because the specific transferal of the Romano-French legal system to the Orleans region differed
from the rest of the country.
In conclusion, an examination of Jefferson’s view of Roman law in the Batture case
provides insights into the debate on classical influences on early America. Jefferson’s reference
to Roman law as ratio scripta, as well as the continued deference that he gives it in regards to its
natural equity, reveals that he considered it a very equitable system that offered a well-organized
system of justice. In this way, Jefferson’s views were nothing novel; the adoption of aspects of
Roman law into laws of Germany, France, Scotland, and England show that this was not an
American phenomenon. However, the views of authors such as Lehmann and Stein that assert
Jefferson’s reliance upon Roman as a ‘higher’ or ‘imposing’ law are not supported by The
Batture of New Orleans. Such exaggerations can be attributed both to zealous attempts to credit
classical traditions with influence, as well as to a misinterpretation of Jefferson’s hypothetical
use of Roman law in the Batture case, which was exercised in order to make his case airtight to
protect his financial situation. Jefferson’s interaction with Roman law in the Batture case also
supports historians such as Reinhold who refer to the early nineteenth-century decline in the
esteem of classicism for early Americans. Interpreted in this light, Jefferson’s views of the
Roman law as a useful but dated system of justice also can be seen as both part of the segue in
Jefferson’s personal stance on the usefulness of knowledge from the ancient world, and as a
midpoint between his early staunch advocacy of the classics and his later disenchantment with
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them.
Bibliography
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Cambridge: Belknap. 1992.
Golden, James and Alan. Thomas Jefferson and the Rhetoric of Virtue. Lanham: Roman and
Littlefield. 2002.
Gummere, Richard. The American Colonial Mind and the Classical Tradition: Essays in
Comparative Culture. Cambridge: Harvard. 1963.
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Public Right to the Beach of the Mississippi, Adjacent to New Orleans, Against the
Intrusion of Edward Livingston. Feb. 25, 1812. In The Writings of Thomas Jefferson:
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Writings, Official and Private. Vol. VIII. H.A. Washington, Ed. Washington, D.C.:
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——. Writings of Thomas Jefferson. Vol. IV. H.A. Washington, Ed. Washington, D.C.: Taylor
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Peterson, Merrill. Thomas Jefferson and the New Nation: A Biography. New York: Oxford
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Reinhold, Meyer. Classica Americana: The Greek and Roman Heritage in the United States.
Detroit: Wayne State. 1984.
——. ‘Roman Virtues and the American Experience’. The Augustan Age. Occasional Papers.
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——. ‘Survey of the Scholarship on Classical Traditions in Early America’. Classical Traditions
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——. The Classick Pages: Classical Reading of Eighteenth-Century Americans. University
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Sherman, Charles. Roman Law in the Modern World. Vol. I. New Haven: New Haven Law
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Stein, Peter. Roman Law in European History. Cambridge: University of Cambridge. 1999.
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Tamm, Ditlev. Roman Law and European Legal History. Copenhagen: DJØF Publishing. 1997.
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Acknowledgements:
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Thanks to Matt Mellema for his proofreading assistance, although any and all faults with the
paper remain solely mine.
Word count: 3,773
The above essay is all my own work: the source of all material used in its compilation has been
duly cited, and all help received is acknowledged. The essay does not substantially duplicate
material previously or simultaneously submitted to academic staff at any academic institution.
This essay follows very closely the proposal which I submitted to SCIO staff and which was
approved by them.