Thomas Jefferson Papers

Enclosure: Albert Gallatin’s Memorandum on Edward Livingston’s Suit against Thomas Jefferson in the Batture Case, [ca. 14 July 1810]


Albert Gallatin’s Memorandum on Edward Livingston’s Suit against Thomas Jefferson in the Batture Case

Memorandum respecting the suit instituted by E. Livingston, against Ths Jefferson late President of the United States, for damage &a &a in the Batture case

I.  The law authorised the President to remove E. Livingston
II.  The decree of the territorial Court in favour of Livingston did not preclude the President from the right of exercising the general powers vested in him
III.  E. Livingston has no claim for damages because he had no title

First point

The President was authorised

The act to prevent settlements &a passed March 3. 1807, makes distinct provisions for the removal of intruders who were in possession of and residing on the lands before or at the time of passing the act, and for that of intruders who shall, after the passing of the act, take possession

1. In relation to persons who, “before the passing of the act, had taken possession of, occupied, or made a settlement on public lands, and who at the time of passing the act, did actually inhabit and reside on such lands,” it is provided; 1st that they may obtain permission to remain as tenants at will on the Land, previously signing a declaration that they lay no claim to the same; 2dly that they may be removed by the marshal, (no mention being made of military force) three months previous notice being given to them; 3dly that the power to remove shall not apply to persons claiming lands in the territories of Orleans or Louisiana; whose claim shall have been filed with the (land)1 commissioners before the 1st January 1808.
The exception in favour of Orleans claimants would not have exempted E. Livingston from removal, because he had not filed his claim before 1 Jany 08. But the three months notice was not given to him, because he was not embraced in the description of intruders before the law. It is true that John Gravier2 had begun in 1804–5, to enclose a part of the batture, by which act he may perhaps be said to have taken possession & occupied. But this enclosure was taken away immediately by order of the Municipal body (city council) of New Orleans acting in that respect as a Court of police. And on the 3 March 1807, neither Gravier, Livingston, or any other person did actually inhabit & reside on the batture, or was, in any way, in possession or occupancy of the same. The decree of the Court, under which Gravier or his assigns were put in possession, is dated 20th May 1807. It is therefore by virtue of the provisions respecting intruders after the act that Livingston was removed.
2. In relation to persons who “after the passing of the act shall take possession of, or make a settlement on, public lands; or shall cause such lands to be thus occupied, taken possession of, or settled; or shall survey, attempt to survey, or cause to be surveyed any such lands; or designate any boundaries thereon &a—. until thereto duly authorised by law”; it is provided; 1st that such offenders shall forfeit any right, title or claim which they might have to such lands, which right title or claim shall be vested in the United States: provided that nothing therein contained shall affect the right, title, or claim of any person to lands in the territories of Orleans & Louisiana, before the reports of the land commissioners shall have been made & the decision of Congress been had thereon: 2dly that it shall be lawful for the President of the U.S. to direct the marshal, and also to take such other measures, and to employ such military force as he may judge necessary and proper to remove from the lands any persons who shall after passing of the act take possession of the same, or make or attempt to make a settlement thereon, until thereunto authorised by law.
E. Livingston is embraced by the exception to the first provision, that is to say, that his right, title, or claim (if any he had) is not affected by his having taken possession of the batture subsequent to the act. But to the other provision, the authority vested in the President to remove intruders after the act, of 3 March 1807, there is no exception in favor of persons in the Orleans territory, or of any kind whatever. The authority is general; and the fact being admitted, that E. Livingston had subsequent to the 3d March 1807, taken possession of lands ceded to the United States by a treaty with a foreign nation, which lands had not been previously (to his taking possession)3 ceded by the United States, and the claim to which, by him or any other, had not been previously recognised and confirmed by the U. States; the President exercised the legitimate authority vested in him by the law, in removing said Livingston from the land.

Second point

The decree of the territorial Court

no bar to the President’s exercise

of the authority vested in him by law

One of the descriptive characters, by which lands to which the power of removal applies are designated, being, that “the claim to such lands shall not have been previously recognised and confirmed by the United States”; it may perhaps be urged that the decree of the territorial Court of Orleans in favor of Gravier or his assigns in their suit against the corporation of New Orleans, is a recognition & confirmation of the title of sd Gravier by the United States, and thereby precluded the President from exercising in that case the general power of removal vested in him by law.

To that plea the following answers appear satisfactory.

1. The recognition and confirmation contemplated by the act are evidently such as would imply that the claim was valid against the United States and that they had abandoned their claim to the land. But the U. States were no party to the suit between Gravier and the corporation of N. Orleans: their right was not supported or even discussed before the Court: and the decree of this, if of any avail, was conclusive only against the claim of ownership improperly set up by the corporation. For that body, not reflecting that the jurisdiction which, either as Cabildo under the Spanish Government, or as city council under the American Government, they had uniformly exercised over the batture, was exercised in their character of Municipal Court or Court of police, and not in their corporate capacity as owners of the soil in fee simple, made no objection to the jurisdiction of the territorial Court, and instead of stating that the batture was the property of the United States, claimed it without shadow of title as the property of the city. To that particular claim of the city alone did the decree of the Court apply which enjoined the Corporation not to disturb Gravier & his assigns in the possession which, as above mentioned, they had taken in 1804.

2. Even if the decree of the Court was intended or could be construed as an absolute confirmation of Gravier’s & Livingston’s claim and as in any degree affecting the right of the United States; that did not impair the power of the President to remove, which is vested4 in the following words—“it Shall be lawful for the President &a—to remove from lands ceded or secured to the United States by treaty, or cession as aforesaid, any person or persons who shall hereafter take possession of the same, or make, or attempt to make a settlement thereon, until thereunto authorised by law.” The recognition and confirmation of the claim, the authorisation to take possession & settle, which would have taken from the President the power to remove, must be by law & not by the judgment or decree of a Court. Any such decree to the contrary notwithstanding, so long as no law authorises the settlement, it is lawful for the President to remove. If there be any impropriety in that provision, it attaches to the act of Congress and not to the act of the President. [The object of the law is however obvious. The United States cannot permit that possession should be taken of the public lands under colour of claims not recognised by law. The whole of the public lands would otherwise be invaded & probably irretrievably lost. Nor can the United States be sued, or the Courts be indirectly permitted to give possession so long as the lands continue to be public lands. But whenever the United States sell to individuals, the courts are opened to claimants, who then, but not till then, may bring ejectements against those who have purchased from the public and obtain decisions in their favor and possession of the lands if their claim is well founded. Such is the general intention of the land laws, a subject hinted at in this place, on account of the clamour raised against the power of removal, & which may be indirectly used to give an improper bias to public or judicial opinion.]5

3. The proceedings & decree of the territorial Court in this case appear to have been an usurpation of power not vested in that Court, and therefore a mere nullity.

By the act of March 26 1804. erecting Louisiana into two territories, a certain organisation of Government was given to the territory of Orleans. The 5th Section relates to the judiciary & the judges were to hold their offices for 4 years. By the act of March 2. 1805, a governmt in all respects similar to that of the Mississippi territory (which last established by act of April 7. 1798 is in all respects similar to that of the North West Territory) was established in the territory of Orleans; and the ordinance of Congress of 13th July 1787 (which establishes the Govt North West of the Ohio & had been extended to the Mississippi territory) is, with two exceptions not connected with this subject, extended to the said territory of Orleans. So much of the act of March 26 1804 as was repugnant with the last act (of March 2. 1805) is repealed, including therein all that related to the judiciary; new judges being directed to be appointed, who were accordingly appointed during good behaviour according to the ordinance. The organisation & jurisdiction of the superior court has therefore no other foundation than the ordinance of 13 July 1787: and the whole is contained in the following words “There shall also be appointed a court to consist of three judges, any two of whom to form a court, who shall have a common law jurisdiction.” For the legislative powers of the Governor & judges pertain to the first grade of territorial Government and do not apply to the territory of Orleans. (See 2d Vol. of U.S. laws, Swift’s edition, page 560):

When the city council of New Orleans destroyed (in 1804) the enclosure made by Gravier on the batture, he (or his assigns) applied to the territorial Court for an injunction forbidding the council &a which was granted. The suit proceeded on that ground, and the decree consists merely in making the injunction perpetual. And so was the question decided without trial by jury tho’ secured by the ordinance to the territory. A Court vested only with a common law jurisdiction, words of technical meaning, assumed Chancery powers, and by a chancery process not pertaining to a court only6 of common law jurisdiction, contrived to decide themselves7 a question which according to the organisation & legitimate powers of the court,8 ought to have been tried by a jury.

It has been answered to this 1st that that portion of the 5th Section of the Act of 26 March 1804 which defined the jurisdiction of the Superior court not being repugnant to the act of 2 March 1805 & to the ordinance of 13 July 1787 was not repealed by the act of 2 March 1805—2dly that the laws in force in the territory of Orleans at the time of passing the last mentioned act, & not inconsistent with the provisions thereof, having been continued in force by the act; the civil law was thereby adopted & that the process of injunction & other chancery forms were in conformity with the civil law.

1. No more of the 5th Section of the act of 26 March 1804 can be in force than was not repugnant to the ordinance of 13 July 1787;9 and this having confined the jurisdiction of the judges (who derive their appointment & authority solely from the act of 2 March 1805 & ordinance aforesaid) to a common law jurisdiction, whatever in the 5th Section of the act of 26 March 1804 might be construed as vesting chancery as contra distinguished from common law jurisdiction is of course repealed as repugnant to the ordinance.

2. There is an essential difference between the adoption of mere forms used in the civil law, and the assumption of a jurisdiction not given under colour of such jurisdiction having been exercised by civil law judges. In all cases where the principles of the civil law differ from those of the common law, the judges of Orleans must also10 in their decisions be governed by the principles of the civil law which is the law of the land. But this does not extend the jurisdiction of the judges beyond the11 limits fixed by the technical words “common law jurisdiction”: and the trial by jury, a most material encroachment on the civil law, having been introduced by the law, a sufficient field remained for the jurisdiction of the Court. If, however, the act of Congress was found deficient, that body not having considered that a country governed by the civil law wanted other courts than one of only common law jurisdiction, the remedy was not to be found in an usurpation of the Court, founded, (as it is understood to have been) on a private arrangement of the bench & bar, but in an application to Congress. Or, the territorial legislature might have interfered, as has been done in the Indiana & Mississippi territories where a similar inconvenience was felt & remedied; in Indiana by an act erecting a court of chancery; in Mississippi by a law vesting the territorial court with chancery powers.

The President having been vested with the authority to remove intruders in certain cases, the intrusion of E. Livingston being embraced amongst those cases, and the decree of the territorial Court being no bar to the exercise of that authority, it is not perceived on what grounds a private action can be sustained for any damages received by E. Livingston by reason of that legitimate exercise of power vested in the President by law. Supposing even some error of judgment or improper use of discretionary power, so long as the power was vested in him by law, he is no more liable in his private capacity, than a judge for the execution of his official duties. A case of corruption, wilful oppression, or direct12 violation of law must be made out, in order to make either in any degree personally responsible. The question, therefore, whether E. Livingston has been unjustly deprived of his property by the act of Government founded on a law of Congress is irrelevant to the suit now audaciously instituted. But it may be due to the reputation of Government to show that, a sound discretion was used in the exercise of this discretionary power, that no act of real oppression has been committed, and that E. Livingston having not even the shadow of a title was, solely from a sense of duty, removed from that public property which he had invaded. As this question, that of title has been discussed in several pamphlets, nothing more will be done here than to arrange the several arguments under distinct heads, referring for details to the publications already before the public. But a previous13 recapitulation of14 the leading facts & a sketch of the topography of the country may be necessary for the better understanding of the subject.

1. Topography. The river Mississippi on account of its magnitude is never affected by accidental causes, and is not liable to any irregular freshets or fall of water. From December till May it uniformly & regularly rises: from May till December it uniformly & regularly falls. Its greatest height opposite to New Orleans is about twelve feet above low water mark; either hardly varying one inch from year to year. In the natural state of the Country, almost the whole below the Iberville was annually overflowed: a few insulated spots, the seats of Indian villages, arose a few feet above the level of the inundation. But every where, in that alluvial country, the banks alone of the river were at any time sufficiently high for cultivation. That slip of comparatively high ground extends in depth from the river from a quarter of a mile to one mile; beyond which the ground which gradually falls from the bank, is lower than the level of the river at low water mark and becomes a perfect Swamp. At present from the Iberville on the left, & from the Fourche on the right bank of the river, to New Orleans & about thirty miles lower, a continued15 levy or mound of earth rarely more than four or five feet high, protects on each bank the whole of16 that17 narrow slip from the annual inundations. But although no portion of that space, which contains nearly all the wealth and the greater part of the population of lower Louisiana, is now inundated, the river contained between those two levies on artificial banks & having no outlet for any portion of its water, rises now two or three18 feet higher than it did when the country was in its natural state. Like all other rivers, the Mississippi carries away from some places & deposits in others, forming sometimes shoals called in the language of the country “battures,” which are covered with water at high & left bare at low water. Whenever it happens that by gradual & continued deposits the portion of the batture which is adjacent to & outside of the levy has become, as elevated as the cultivated land immediately inside of the levy, this may be removed, or rather a new one erected at the outer edge of the elevated part of the batture, and the plantation is so far enlarged. Throughout the whole19 province the concessions of land by its former masters were made “fronting the river” and under the express condition of a levy and public road, immediately inside of the levy, being made & kept in repairs by the grantee, in front of his grant. The enclosed land or plantation therefore uniformly commences, about 40 or 50 feet, the breadth of the road from the levy which forms the bank of the river.

Facts. Adjacent to and immediately above the old town of New Orleans, lies the suburb of St Mary’s (formerly St Louis), in front of which is a batture very narrow at the lower end and increasing in breadth at the upper end of the suburb. It is uncertain when that batture, which is the subject matter of this controversy began to be noticed: It is however probable that a portion existed before the year 1763, and that it had encreased considerably in 1788,20 although it may be proven that at that time vessels could in time of low water, lay close to21 the levy in the lower22 end of the suburb. At present, the most elevated part, close to the levy, being covered with about 4½ feet of water at high water, is still below the level of the cultivated land & road immediately inside of the levy.

The suburb itself is part of a plantation formerly belonging to the Jesuits and which on the expulsion & subsequent extinction of that order, having reverted to the crown, was in 1763 divided into lots and sold at public sale. The two23 lowest lots adjacent to the town containing 13 arpens in front (the arpent length measure is, it is believed, 180 feet) were sold to Mr Pradel, & by his widow to Mr Renard, whose widow having married Bertrand Gravier, he is acknowledged to have become, according to the laws of the country, lawful proprietor of the said tract. In 1788, B. Gravier laid out the tract into a suburb and sold most of the lots, subsequent to which & for which reason he refused to keep the levy and road in repair. The suburb was annexed to the town as a new ward (quartier)24 and its ward officers from the year 1796 were appointed by the Cabildo. In 1797, on B. Gravier’s death, his brother John Gravier as co-heir, became possessed of the estate as adjudicatee & with benefit of inventory. During all that time and till 1804 after the country had fallen under the American Governt no claim was laid to the batture aforesd in front of the plantation or suburb, by either of the proprietors of sd plantation or suburb. But it was always used as public property under the Superintendence of the Governor & Cabildo. Earth was dug from it to fill the streets of New Orleans & for the common use of the inhabitants. At low water it was used as a common place of landing by boats & for depositing their cargoes. At high water the levy was their wharf & place of landing. Whenever any attempt was made to appropriate the batture to private use, it was forbidden by the constituted authorities, & the enclosures or building demolished. The road & levy adjacent thereto were also kept in repair at the public expence: It is true that Gravier did privately sell three or four lots on it to individuals. But the sales were kept secret: he himself repeatedly declared that he had no claim to it; and one of the purchasers of those lots did, without mentioning his purchase, apply to the Cabildo for leave to erect thereon a mill. Leave was refused, & the mill was not erected:25 In 1804, John Gravier having for one dollar sold to Labigarre, under whom Livingston claims, the suit as above mentioned took place.

Third Point

E. Livingston has no title whatever

This position is supported on five distinct grounds—1. that the batture cannot by law have become the private property of any individual—2. that Bertrand Gravier never had any title to it—3 that if he had, he lost it in consequence of his laying out the adjacent land into a suburb—4. that, if it was B. Gravier’s property, John Gravier did not acquire it.—5. that the pretended26 sale of John Gravier to Labigarre under whom Livingston claims27 is illegal and conveys no title.

1. The batture cannot have become private property.
1. It is contended by Derbigny that alluvions by virtue of the edicts of Louis 14th belong to the crown & not to the adjacent proprietor—a position strenuously disputed & of doubtful nature
2. Thierri insists that an alluvion must be dry ground before it can be appropriated to private use. It certainly was not so when the suburb was laid out; and even now, the most elevated part is, as above stated, lower than the level of the adjacent cultivated land and road inside of the levy. He, therefore, considers it as being to this day, the bank of the river, and, as such, public property.
2d Bertrand Gravier & the purchasers under whom he claimed28 had no title to the Batture
  The grant to the Jesuits is not in existence, nor has that of the crown, under the sale of 1763, to the first purchaser Pradel, been produced. But a procès verbal of this last sale proves that it did take place, leaving at the same time the question undecided whether the tract sold was bounded by the river or by the intervening road & levy: for it only states that the land had “so many arpens in front.” Nor does Gravier rely on the survey made at the time of the sale as fixing the boundary next to the river, but he, on the contrary, insists that the line parallell to the river therein mentioned is not a boundary, but merely indicative of the general course of the river. For what, in a survey made in the United States, would be called the lower corner, next to the city is inside of the road & levy, and although the line according to the protraction of Lafon (a friend of Livingston) crosses afterwards the levy, it still leaves out almost the whole of the Batture. Having therefore, or at least producing neither a grant or survey descriptive of the boundaries, B. Gravier could29 claim as within his boundaries only30 what had uniformly been in his (Pradel’s or Renard’s) possession. But the batture never was in the possession of either; and, on the contrary, it is abundantly proven (by the Pieces probantes) that from 1763 to 1804, & even prior to 1763, the batture was in the exclusive possession of Government, & as such, under the superintendence of the Governor & Cabildo. Under color of31 a claim derived only, so far as relates to boundaries, from possession, the present claimants claim what never was in the possession of those under whom they claim, but actually was in the possession of the public.
 The only pleas of Livingston against this are 1st the order of sale which directs the sale of the whole property of the Jesuits, & describes it as having arpens in front (en face) of the river & 2dly general usage, the concessions in Louisiana having generally been made in front of & adjoining the river. To these, the following answers are made.
1. The descriptive words en face du fleuve used incidentally in the order of sale, are superceded by those in the adjudication to Pradel where the river is not mentioned: nor do they mean adjacent to the river, which, if intended, would have been expressed by joignant le or sur le bord du fleuve. Every plantation there faces the river, even if it does not join it, & if the intervening road & levy are the boundary.
2. Granting that general usage be as stated by Livingston, this is true only so far as relates to original concessions made before any levy or public road existed and imposing the obligation of making both: but the sale of the Jesuits property was not an original concession; it was a re-sale of forfeited property, on which the levy and public road having been previously made and existing at the time of the resale, it was as natural to bound on the public road as on the river.
3. The order of sale relied on by Livingston, describes the Jesuits property as having fifty arpens in depth; and it appears by a late survey, that the Gravier plantation has in no place less than that depth commencing from inside of the road & levy, & in some places, owing to the circular course of said road, reaches fifty six arpens. Whence it follows that he has his full complement and more than his complement, exclusively not only of the batture but even of the road & levy.
4. The pleas of Livingston in that respect being only inferences and not direct proofs are fully balanced by the preceding observations, and altogether overset by the positive fact of undisturbed possession in the Government, corroborated as it is by all the collateral circumstances of the sale & survey.
3d B. Gravier lost any previous right to the batture, by his laying out the front part of the plantation into a suburb.
  1. Thierri insists that the right of alluvion attaches only to the Prædium rusticum & not to the Prædium urbanum, and that therefore, the suburb having been laid with the approbation of Government & become a new quartier (ward) of the city, all alluvion subsequent thereto is the public’s.
2. He also states that the river & its bank or levy having thenceforth become a part of the port of the city, the existing previous batture, so far as it then existed, did, as well as the levy, become, as part of the port, a part of the public domaine. In that respect, it must be observed that the private right to ground under water in a port is unknown in France, where therefore there are no private wharves, but only public Quays. This is said to be the case also in Spain & in conformity with the general principles of the civil law. (The law & practice are different in the U. States.) The possession & jurisdiction exercised by Government corroborate the truth of those positions.
3. B. Gravier sold all the front lots in the suburb, vizt those adjacent to the road. As the right of alluvion is accessory & presupposes the ownership of the adjacent land, he necessarily lost the accessory by his sale of the land itself. There remained nothing in his own right32 to which the accessory, the alluvion could attach. In order to repel this plain & apparently irresistible argument, E. Livingston is obliged to insist that the fee simple of the road & levy remained in Gravier even after the sale of the lots: on which the following observations occur.
  1. In order to support this position, it is asserted that the road & levy might be changed by proprietors of land according to circumstances; that the public had only the use of both & could only require a road & levy. But in this case at least, Gravier lost that supposed privilege in relation to the road which having been converted by his sale into a street, in front of the front lots, became inalterable, & even granting the general position of Livingston, ceased from that moment to be his (Gravier’s) property.
2. Several of Gravier’s sales of lots are expressed “facing the river”; and, according to the arguments of the claimants themselves, the right to the batture in front thereof became vested in the purchasers of the lots.
3. Subsequent to the sale, Gravier refused to repair the levy, thereby recognising that it was no longer, if ever it had been, his property: and it has thenceforth uniformly been kept in repair at the public expence:33 and he repeatedly said that he had no claim to the batture.
4. The position itself, that after selling the whole of a tract of land bordering on a public road & public levy, the original owner preserves the fee simple of these cannot be supported.34

  4. Supposing however an abstract & contingent right to the levy to have remained in B. Gravier, it would not imply a right to the adjacent batture. For the right of alluvion is founded on the ground that as the riparian owner runs the risk of losing by the encroachments of the adjacent river, he is entitled to the chance of what may be gained by its deposits. The whole doctrine of alluvions rests on that foundation, both by the civil & by the common law, because it is its only foundation in justice & according to common sense. But, in this case, as by the sale of the lots & the necessity of repairing the public levy, the loss & expence, in case of encroachments by the river must have fallen on the owners of lots or on the public, so the right to35 alluvions or batture became undoubtedly vested in either of these, & could certainly no longer belong to Gravier.
4th John Gravier did not acquire B. Gravier’s right (if any,) to the batture
The heir or co-heir at law may, by the civil law, take the inheritance simply, or by adjudication & with benefit of inventory. If he takes it simply, he is answerable for all the debts to the creditors of the deceased, and for the nett proceeds of his property, after paying the debts, to the other co-heirs if any. If he takes it with benefit of inventory, the inventory is made by public officers, the property is appraised & adjudicated to him, and he is responsible to the creditors & co-heirs, only for the amount of the appraisement. When B: Gravier died without children36 in 1797, his brother John Gravier being on the spot chose to take the inheritance with benefit of inventory: (and that, it is said, for very substantial reasons, B. Gravier having left France insolvent, & there being other brothers or sisters in Europe) Whence it resulted that he ran no risk from the possibility of the debts of his brother exceeding the value of the estate, and that he has ultimately gained all the rise37 of value of the property which he received, since both to creditors & co-heirs, he is answerable only for the appraised value. But, on the other hand, he received only that property which was described in the inventory, appraised, & adjudicated to him. And it is in proof 1. that the batture, which, if private property, was worth much more than all the residue of the estate, (it is now valued 500,000 dollars)38 is not mentioned or appraised in the inventory & was not adjudicated to John Gravier; & 2. that the estate is described so as to exclude the batture altogether—vizt—“about 13 arpens &a from which land the most useful part has been taken away (retranchée) on the front &a” If therefore B. Gravier had any claim to the batture, it is not vested in39 John Gravier, but still belongs to B. Gravier’s estate, to his creditors & heirs probably; but if the debts are paid & John Gravier the sole heir, still, in order to become the proprietor, of the batture,40 he must apply for a new inventory, appraisement & adjudication; till which he owns nothing [more]41 than, what was contained in the first.
 It may also be here incidentally observed, that the acquiescence of John Gravier in an inventory in which the batture was omitted is an additional proof that no claim did exist or was understood to exist; and that if he had applied in order to have it included & adjudicated, it would most undoubtedly have been refused by the Spanish Government.

5th The sale of John Gravier to Labigarre conveys no title.
In 1804, John Gravier sells the batture for one dollar to Labigarre who had lately arrived from New York, on condition 1st that if Labigarre recovers the batture, he shall pay (30, or, 60) thousand dollars to Gravier, and that if he does not recover it, he shall have no redress against Gravier. The deed is printed. It is then said that Livingston undertook to manage the cause for one fourth part of the batture; (if recovered) and he has since the suit, purchased another portion from Labigarre not yet paid for. It is said that those proceedings are illegal & that the deed from Gravier to Labigarre conveys no title.
 Be that as it may; it is evident that no pretensions were made to the batture till after the Americans had taken possession of Louisiana; that on Sight of that shoal, the slips & wharves of New York fresh in their recollection, Livingston & Labigarre men of desperate fortunes, & the first a public delinquent for sixty thousand dollars, conceived the plan of appropriating to themselves that property; that they made an agreement for that purpose with John Gravier; that the district attorney of the United States (& perhaps others) became concerned, and that by some management of the bar & bench, a decree was obtained contrary to law, to justice, & to common sense.
 In order to rescue the public property from that invasion, and on the application of the inhabitants of New Orleans to whom the batture was in every respect of great use, and who apprehended fatal effects to the health of the city from the ditches & dykes commenced by E. Livingston, the President directed him to be removed in conformity with the powers vested in him by law. He now claims damages. If he had no title he has received none. But if he had a title, still the possession of which42 he has been deprived would be useless to him, since by an Act of the territorial legislature, no person can make any new levee, front, or embankment nearer the river than those now existing unless authorised by a jury of twelve free-holders: and that authorisation he well knows that he never will obtain from a Louisiana jury.

MS (DLC: TJ Papers, 190:33388–95); in Gallatin’s hand; undated; endorsed by TJ: “Gallatin Albert inclosd in his July 14. 10. recd. July 19.” Tr (NHi: Gallatin Papers); in several different hands; endorsed: “Memorandum respecting the Suit instituted by E. Livingston against Ts Jefferson late President & Letters to & from Mr Jefferson 1810.”

prædium rusticum referred to an agricultural estate, as opposed to prædium urbanum, land used for business or residential purposes (Black’s Law Dictionary description begins Bryan A. Garner and others, eds., Black’s Law Dictionary, 7th ed., 1999 description ends ). The United States district attorney at New Orleans from 1805–08, James Brown, was one of Jean Gravier’s attorneys in 1804 and later served as counsel for Livingston (JEP description begins Journal of the Executive Proceedings of the Senate of the United States description ends , 2:8, 18, 69 [20 Dec. 1805, 27 Jan. 1806, 19 Feb. 1808]; George Dargo, Jefferson’s Louisiana: Politics and the Clash of Legal Traditions [1975], 210n).

1Word interlined.

2Preceding two words interlined in place of “he.”

3Preceding four words interlined.

4Word interlined in place of “given.”

5Brackets in original.

6Word interlined.

7Word interlined.

8Gallatin here canceled “could.”

9MS and FC: “1807.”

10Word interlined.

11Gallatin here canceled “boundari.”

12Word interlined.

13Word interlined.

14Gallatin here canceled “some.”

15Word interlined.

16Preceding three words interlined.

17Gallatin here canceled “smal.”

18Reworked from “three or four.”

19Gallatin here canceled “territo.”

20Reworked from “1798.”

21Preceding two words interlined in place of “against.”

22Word interlined in place of “upper.”

23Word interlined.

24Preceding five words interlined.

25Remainder of sentence interlined.

26Word interlined.

27Preceding four words interlined.

28Preceding seven words interlined.

29Preceding three words interlined in place of “he can.”

30Word interlined.

31Preceding two words interlined.

32Preceding four words interlined.

33Remainder of sentence interlined.

34 Gallatin here successively canceled “5. B. Gravier always said that he had no claim to the batture,” “4. John Gravier has not acquired B. Gravier’s right, if any to the Batture,” “4. The right of alluvion is,” and “and, in this case, is less tenable than.”

35Preceding two words interlined.

36Preceding two words interlined.

37Reworked from “he gained all the probable rise.”

38To this point in text Gallatin keyed a marginal note: “see the last affidt of Pieces probantes.”

39Preceding two words interlined.

40Preceding three words interlined.

41Omitted word editorially supplied.

42Preceding four words interlined in place of “it would not avail.”

Index Entries

  • An Act erecting Louisiana into two territories, and providing for the temporary government thereof (1804) search
  • An Act for an amicable settlement of limits with the State of Georgia; and authorizing the establishment of a government in the Mississippi Territory (1798) search
  • An Act further providing for the government of the territory of Orleans (1805) search
  • An Act to prevent settlements being made on lands ceded to the United States until authorized by law (1807); and batture controversy search
  • Batture Sainte Marie, controversy over; A. Gallatin on search
  • Batture Sainte Marie, controversy over; and Congress search
  • Brown, James; and batture controversy search
  • civil law search
  • common law; and batture controversy search
  • Congress, U.S.; and batture controversy search
  • Delabigarre, Peter; and batture controversy search
  • Derbigny, Pierre (Peter) Augustin Bourguignon; and batture controversy search
  • France; and U.S. search
  • Gallatin, Albert; and batture controversy search
  • Gravier, Bertrand; and batture controversy search
  • Gravier, Jean (John); and batture controversy search
  • Gravier, Maria Deslonde Renard (André Renard’s widow; Bertrand Gravier’s wife) search
  • Indiana Territory; chancery court in search
  • Lafon, Bartholemew; “Plan of the City and Environs of New Orleans,” search
  • law; books on search
  • law; civil search
  • law; common search
  • Livingston, Edward; A. Gallatin on search
  • Louisiana (Spanish and French colony); Spanish government of search
  • Louis XIV, king of France; and edict of1693 search
  • Louis XIV, king of France; and edict of1710 search
  • Mississippi River; water level of search
  • Mississippi Territory; courts of search
  • Mississippi Territory; government of search
  • New Orleans; height of Mississippi River at search
  • Northwest Ordinance search
  • Orleans Territory; land commissioners in search
  • Orleans Territory; legislature of search
  • Pradelle (Pradel), Alexandrina de la Chaise search
  • Pradelle (Pradel), Jean search
  • religion; Jesuits search
  • Renard, André search
  • Swift, Zephaniah; The laws of the United States of America search
  • The laws of the United States of America (Swift) search
  • Thierry, Jean Baptiste Simon; and batture controversy search
  • United States; and France search