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Enclosure: Albert Gallatin’s Notes on Thomas Jefferson’s Statement on the Batture Case, [ca. 10 September 1810]


Albert Gallatin’s Notes on Thomas Jefferson’s Statement on the Batture Case

Page 2d  Strike out Ohio—No board was established there, because there were not any previous Spanish or French claims, in the State of Ohio Yet the Governor of the North West Territory which included both that State & Indiana had at an earlier period been appointed sole1 Commissr for that purpose (by act of 3 March 1791.)
5th  low tide—is not the word ‘tide’ exclusively appd to diurnal swelling of the sea? and would not the expression here2 introduce some confusion? for there is no tide at N. Orleans.
✓ same  —batture described as 12 feet in height. This must be erroneous, and the error if admitted would give some advantage to Livingston. For if 12 feet high (above low water mark) it is as high as the highest dry land within the levée, and is therefore at this time a complete alluvion. But the fact is not so: at low water the river is only 12 feet lower than the levée, and there are 4 or 5 feet water at the foot of the levee. The batture is therefore only 7 or 8 feet in height. This is confirmed by the manuscript plan signed ‘Pelletier’ annexed to Mr Jefferson’s memoir. There the batture at the foot of the levée is marked 4 feet 9 inches 7 lines below it, and the difference between the levels of the river at high and low water (or between April &3 December) at 11 feet 8 inches 1 line, making therefore the height of the most elevated part of the4 batture above low water mark less than 7 feet.
✓ same  Bertd Gravier had claimed right as riparian possessor to the beach or batture. This is doubtful; and if admitted will diminish the force of the argument derived from the possession & use by the public. The only proof of his having so claimed is derived I think from the reservation to dig for clay in the Sale of lots to N. Gravier.
✓ same  —J. Gravier took the inheritance as purchaser & not as heir. By the civil & Louisa code, the same appellation of heritier is given in both cases.
✓ Page 6th  2d line—surplus to be divided among coheirs. Observe that that surplus to be thus5 divided was only the difference between appraisement & debts, and not between those debts & the amount for which J. Gravier might sell the property which he received by the appraisement. The profit on such sale would at all events be his; & that was an additional advantage to him resulting from his taking as ‘heritier avec benefice d’inventaire’—I have myself taken one inheritance on those conditions & rejected another.
10th  Court decreed by opinion of two against one—Only two6 judges were present; and Livingston asserts that the third would have agreed with the others.
✓ 21st  as to all other (encroachments) of later date (than April 1566) they are left to fall by the law. But the ordinance as quoted above says positively (if I understand it) that those holders, possessors and proprietors who had neither titles or possession prior to April 1566 shall be maintained & secured on payment of two years revenue.
22d  Such an ordinance (Spanish) could not change the laws as to past rights—This argument is sound & sufficient. But Livingston has urged 1. that the Spanish laws came in force prior to the sale of the Jesuits sale7—which appears unfounded—2d that the Spanish laws (the Indian code) were formally, by the Sovereign’s edict, made the law of Louisiana. If this be true, it will ultimately prove nothing, but will be used in answer to the argument that Spanish Governors could not of their own authority alter the old laws of the province.
24th  The argument drawn by Livingston from the decree of Bordeaux does not seem to be fully answered. He contends that it proves that the Courts decided that the ordinance of Louis 14th did not alter (in the manner contended by Derbigny) the previous law, and that therefore if the custom of Paris, which was transferred to Louisiana, recognised the right of alluvion, that remained notwithstanding the ordinance
25th  The word rivage is certainly applicable to banks of rivers. But in the quotation from the Napoleon code, the omission of the article les between ‘rivages’ & ‘lais’ makes, in the sentence les rivages, lais & relais de la mer, the word rivages apply only to the banks of the sea. It means only ‘the shores, increments & decrements of the sea,’ and not ‘shores (generally) and the increments & decrements of the sea’
29th  The sudden increase caused by Livingston’s works cannot, I think, be brought as an argument to prove that the increment was not, previous to his taking possession, insensible, so as to give to the batture the character of alluvion.
same  the distinction between apposition & deposition appears to me more ingenious than solid. The increment must necessarily adhere by its basis to the bed & by its side to the bank of the river. Is it not therefore in all cases of real alluvion a deposition as to the bed, and an apposition as to the bank?
same  the highest part of the batture is still below the level of the adjacent field. The use made here of this leading fact shews the necessity of correcting the error pointed out in 5th page.
34.  Sera reputé bord et rivage de la mer tout ce qu’elle couvre & decouvre &a Hence it follows that what is thus covered and uncovered is bord et rivagelittus” and not lit (alveus) of the sea. This quotation seems therefore to make against the position assumed that the batture is the bed & not the bank of the river. On the contrary by analogy this quotation would prove that the batture is ripa fluminis, in same manner as beach is there stated to be rivage de la mer. I suspect that the object of this passage of Boucher is to define the boundary line of littus & ager & not of littus and alveus. For he adds that the space where waters may accidentally come in storms is not to be considered as rivage, meaning certainly that it is part of the field and not of the bed of the sea. The contention on this point is only whether the batture be part of the bank or of the bed of the river. At least I do not think that Livingston contends that it is not the bank. But Thierri contends that it is the bed. That however will not affect the general argument of Mr Jefferson which embraces both suppositions.
Page 47th  1 & 2d lines—If Mr Livingston was removed as an intruder of public lands, could the territorial legislature pass an act under which he might be re-instated? May not therefore the admission of that power render questionable the power exercised by the President, by considering the batture not as public lands absolutely, but as that species of public property which was under the controul of the local legislature. I have always feared that the strongest argument of Livingston would be to deny that the batture was public land, within the meaning of the act of 3 March 1807, and to insist that it was the bed or bank of the river. For that reason, merely as it relates to the suit agt Mr Jefferson, the whole of the argument against Livingston’s claim which is derived from the batture being part of the bank or bed has appeared to me somewhat dangerous.
✓ 51.  In support of the doctrine that Govt possesses the right of expelling intruders—see the resolution & proclamation of the old Congress of 15 June 1785—(Journals vol. 10. page 1128) They were to my knowledge actually removed by the troops, their cabins burnt &c. But I do not find in the journals the resolution directing the act.
Page 53—
1st line—Strike out ‘with a right of pre-emption of 320 acres.’ The intruders obtaining permission are to retain possession as tenants at will of 320 acres; but no pre-emption of the soil is allowed.
54th   That the bank of a river is only what is above high water mark &c That is the point which as remarked in note on page 34 does not appear to me fully proven. The definitions of ripa in page 32 are those of a mathematical line binding high water mark. Those of littus embrace the ground between high & low water mark. In common parlance ‘bank’ has the same signification. But I believe the true argument in that respect to be, that bed & bank (so far as that bank is regularly tho’ not always covered with water) are both public & follow the same rule. Hence littus which includes the beach is not9 private property, and ripa which is above high water mark is private property.
✓ 55—  narrowing the river one third would raise it in same proportion……, quadruple bulk of levée &c—This is expressed too strongly. I would strike out ‘in same proportion’ & substitute a more indefinite expression to ‘quadruple,’ because the velocity of the current & not the height of water may be increased by narrowing the10 river for only a short distance, & because tho’ the breadth of the river may be diminished one third, it is on a depth averaging only 7 feet, the third of which is less than 2 feet ½
Page 62.  Does not the decision of the Court in the case of _______ versus Dexter for damages on acct of the destruction by fire of the war office in Washington, corroborate the doctrine that public officers are not responsible; unless malice or corruption be proven?

MS (DLC: TJ Papers, 191:34095–7); in Gallatin’s hand, with one correction by TJ and with check marks added by TJ to indicate which suggestions he had dealt with in revising his 31 July 1810 Statement on the Batture Case; undated; ellipsis in original; notation by Gallatin written lengthwise in right margin of last page: “Memorandum.”

The act of 3 march 1791 was entitled “An Act for granting lands to the Inhabitants and settlers at Vincennes and the Illinois country, in the territory northwest of the Ohio, and for confirming them in their possessions” (U.S. Statutes at Large description begins Richard Peters, ed., The Public Statutes at Large of the United States . . . 1789 to March 3, 1845, 1855–56, 8 vols. description ends , 1:221–2). heritier avec benefice d’inventaire: “heir with benefit of inventory.” The court decision to which Gallatin referred was Jean Gravier v. the mayor, alderman, and inhabitants of the City of New Orleans, decided 23 May 1807. A 15 Dec. 1693 French royal edict asserted the king’s right to rivers and navigable streams, including alluvions, but confirmed occupants with claims predating April 1566 on payment to the Crown of one year’s revenue, and for all others, two years revenue. Peter S. Du Ponceau argued that a 30 June 1786 decree of bordeaux reinforced the right of the individual to riparian accumulations, alluvions, and deposits (Livingston, Address description begins Edward Livingston, Address to the People of the United States, on the measures pursued by the Executive with respect to the Batture at New-Orleans: to which are annexed, a Full Report of the cause tried in the Superior Court of the Terri[to]ry of Orleans: the Memoire of Mr. Derbigny: an Examination of the Title of the United States: the Opinion of Counsel thereon: and a number of other Documents necessary to a full understanding of this interesting case, New Orleans, 1808; Sowerby, nos. 3484, 3493, 3495–8, 3502 description ends , pt. 4, pp. xx–xxi, pt. 6, pp. ix–xi, xvii–xix, xlviii). The work by Pierre B. boucher is Institution au droit maritime: ouvrage complet sur la législation maritime, ayant pour base l’ordonnance de 1681, à laquelle sont adaptées les lois de l’ancien et du nouveau régime, des réflexions, des jugemens étayés des autorités les plus respectables, notamment d’Emérigon, Valin et Pothier, des formules de divers actes, traités, comptes, des instructions nouvelles sur le course maritime (Paris, 1803; Sowerby, description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, 1952–59, 5 vols. description ends no. 2123). The resolution & proclamation of the old congress instructed unauthorized settlers to leave public lands or “answer the same at their peril” (Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789 [1904–37], 28:460–2).

1Word interlined.

2Word interlined.

3Gallatin here canceled “November.”

4Preceding five words interlined.

5Word interlined.

6Gallatin here canceled “members.”

7Thus in manuscript.

8TJ here interlined “212.”

9Gallatin here canceled “publ.”

10Gallatin here canceled “bank.”

Index Entries

  • An Act for granting lands to the inhabitants and settlers at Vincennes and the Illinois country (1791) search
  • An Act to prevent settlements being made on lands ceded to the United States until authorized by law (1807); and batture controversy search
  • A Review of the Cause of the New Orleans Batture (Du Ponceau) search
  • Batture Sainte Marie, controversy over; acts cited in case of search
  • Bordeaux, Decree of search
  • Boucher, Pierre B.; Institution au droit maritime search
  • Continental Congress, U.S.; resolution on public lands search
  • Derbigny, Pierre (Peter) Augustin Bourguignon; and batture controversy search
  • Dexter, Samuel search
  • Du Ponceau, Peter Stephen; A Review of the Cause of the New Orleans Batture search
  • Examen des Droits des Etats-Unis et des pretensions de Mr. Edouard Livingston sur la Batture en Face du Faubourg Ste. Marie (Thierry) search
  • France; laws of search
  • Gallatin, Albert; and TJ’s statement on the batture controversy search
  • Gravier, Bertrand; and batture controversy search
  • Gravier, Jean (John); and batture controversy search
  • Gravier, Nicholas search
  • Institution au droit maritime (Boucher) search
  • Jean Gravier v. the mayor, aldermen, and inhabitants of the City of New Orleans search
  • Jefferson, Thomas; Writings; statement on the batture case search
  • Jesuits; and batture search
  • law; French search
  • law; Spanish search
  • Livingston, Edward; A. Gallatin on search
  • Mansuy Pelletier, Charles V.; and batture surveys search
  • Mississippi River; water level of search
  • Napoleon I, emperor of France; code of search
  • Northwest Territory; act establishing search
  • Paris; coutumes de (legal customs of) search
  • religion; Jesuits search
  • Spain; laws of search
  • statement on the batture case (Thomas Jefferson); copies of returned to TJ search
  • Thierry, Jean Baptiste Simon; Examen des Droits des Etats-Unis et des pretensions de Mr. Edouard Livingston sur la Batture en Face du Faubourg Ste. Marie search
  • War Department, U.S.; fire at search