MS (DLC); in John Graham’s hand; endorsed by TJ: “Department of State. list of papers sent me from it on the subject of the batture” and “List of papers sent from office of state to Th:J.” Enclosures:
(1) William C. C. Claiborne to James Madison, New Orleans, 3 Sept. 1807, stating that soon after Edward Livingston arrived in Orleans Territory he acquired an interest in “a parcel of ground fronting the Fauxbourg of this City, commonly called the Batture or Alluvion Land”; that the people of New Orleans had occupied this land “for many years previous” and regarded their title to it as unquestionable; that the territory’s Superior Court had nonetheless confirmed Livingston’s claim and the sheriff had given him possession, but that the citizens drove the workers off when Livingston’s workers began to dig a canal on the Batture; that Livingston himself was similarly treated the following day; that Claiborne was absent during these developments but “found the public mind in a great state of agitation” on his 1 Sept. return to the city; that Livingston and the city council have each asked him to intervene on their behalf; that while popular opposition to a court decision sets a dangerous precedent and cannot be countenanced, opposition is so widespread that conciliatory measures are needed to avoid greater tumult and possible bloodshed; that despite the court decree he believes that title properly belongs to the United States; that in a letter of the same date he urged James Brown, the federal attorney, to pursue the public’s claim despite Brown’s status as Livingston’s counsel; that he has not honored Livingston’s call for a proclamation advising the people to desist from further opposition to the claimant lest it create an inaccurate perception that the city is disposed to insurrection; and that this issue is important because the Batture supplies earth for constructing levees, public and private buildings, and roads, and because raising the Batture above the level of the water year-round might alter the course of the Mississippi, endangering river navigation and the city’s levees (RC in DNA: RG 59, LCBNO; in a clerk’s hand, signed by Claiborne).
(2) Claiborne to Madison, New Orleans, 16 Sept. 1807, summarizing and enclosing nos. 3–8; stating that at noon on the previous day ten or twelve white laborers employed by Livingston began working on the Batture; that several hundred citizens, mainly natives of France and Louisiana Creoles, assembled there four hours later and were addressed by Claiborne (no. 8), whom the sheriff had advised of the potential disturbance of the peace; that after he had been respectfully received and heard, Col. Jean Baptiste Macarty spoke of the uneasiness excited by the court decision, which overturned the city’s long and undisturbed possession of the Batture under both Spanish and French rule, and of the injuries the inhabitants would sustain if the land were improved; that he had replied that he lacked authority to challenge a court decision; that when a listener called for an appeal to Congress and cessation of work at the Batture in the meantime, many others exclaimed that this was the general wish;that Claiborne then offered to forward information regarding the conflicting claims to the general government; that Col. Joseph Deville Degoutin Bellechasse argued that the Batture was public property and stated that he would search in Pensacola for Spanish government documents to support this claim; that when Bellechasse asked Claiborne if the people could choose a representative to present their grievances to the president, he assured him that while he would transmit the information himself, he had no objection to their sending a respectable representative, upon which Macarty was elected; that after Claiborne reiterated that the laws must be observed, he left and the crowd dispersed peacefully; that this morning all is quiet; that while some of his “hot headed Countrymen” wish he had called in the military, he preferred a wise and humane approach; that Livingston is feared and hated, his legal talents are dreaded, and his views on speculation are iniquitous and ruinous to the city’s welfare; that Bellechasse and Macarty are well-respected Louisiana natives, members of the militia and the legislative council, whose insufficient knowledge of American governmental principles may have occasioned some imprudences; that the mayor of New Orleans (James Mather), an old and respected citizen who believes the court is in error, will document the public claim; and suggesting that in some cases an appeal should be possible from the territory’s Superior Court, either to the United States Supreme Court or to a court of appeals for this and the adjoining territory (RC in same; in a clerk’s hand, signed by Claiborne).
(3) James Brown to Claiborne, New Orleans, 12 Sept. 1807, stating that he has received Claiborne’s letter of 3 Sept. requesting a federal prosecution of the case; enclosing a resolution of the New Orleans City Council and an opinion (no. 28) of its counsel, Pierre Auguste Charles Bourguignon Derbigny, both maintaining that the batture or alluvion in front of the Faubourg Sainte Marie is the property of the United States;that in Brown’s opinion, as attorney for the United States he is to initiate civil suits only when ordered to do so by an act of Congress or by the executive; that without such instructions he ought not to institute a federally funded suit on behalf of private individuals or corporate bodies not specifically charged with the guardianship of public property; that in addition to this general consideration, he has refused to prosecute because of specific weaknesses in the claim of the United States; that Jean Gravier bases his claim to alluvion on the ancient grants under which he claims title; that the city council bases its claim on Bertrand Gravier’s abandonment of the Batture, his failure to repair the road and levee, and a Spanish royal grant under which the corporation claimed the vacant commons around the city to a distance of eight hundred toises (a toise is a linear measure equaling 6 French feet, or 6.4 English feet [OED description begins James A. H. Murray, J. A. Simpson, E. S. C. Weiner, and others, eds., The Oxford English Dictionary, 2d ed., 1989, 20 vols. description ends ]), taking in the alluvion fronting the Faubourg; that by section three of a 3 Mar. 1807 statute, Congress granted the corporation any vacant commons within six hundred yards of the city’s fortifications, including all or almost all of the valuable part of the Batture; that on 23 May last the Superior Court ruled against the city and awarded the alluvion to Gravier; that the city council then declared that the alluvion was the property of the United States; that the Superior Court gave its opinion after the case had been argued twice, and it was signed by two judges after the departure of the presiding judge, who was believed to have given his approbation; that these judges, appointed directly by the president, should not be “censured as erroneous” without clear and indisputable reasons; that Brown believes that the ancient titles and concessions on which Gravier based his claims were bounded in the front by the Mississippi, and that common use and the law will support his claim unless the city can prove voluntary abandonment or neglect in claiming his property;that the adjacent land of Madame Delor had been recently inclosed by a levee, divided into lots, sold, and improved without any argument that it belonged to the United States; and that if the government does decide to initiate a new suit, he “shall oppose no obstacle to its wishes; but shall cheerfully retire, and permit a more enlightened successor, whose opinion on this subject may better correspond with that of Government to exert his zeal and his talents in the prosecution of the cause” (Tr in same).
(4) William G. Garland to Claiborne, New Orleans, 14 Sept. 1807, reporting as sheriff that by an order of the territorial Superior Court, he had recently honored a court order and put Livingston in possession of the Batture; that this afternoon a premeditated riot broke out to keep Gravier and Livingston’s workers off of the property; that the rioters tore to pieces a partial list of the participants compiled by one of the two constables present; and that the rioters intended to return at seven the next morning to prevent work and oppose any officers seeking to stop them (Tr in same).
(5) Livingston to Claiborne, New Orleans, 15 Sept. 1807, repeating the substance of a verbal application; explaining that on 23 May 1807, the Superior Court issued a final decree favorable to Gravier in his case against the mayor, aldermen, and inhabitants of New Orleans; that the defendants then insisted that the property belonged to the United States and requested a new trial but were overruled and the plaintiff put in possession of the land; that annual inundations prevented any further steps until August, when the land was divided among the several persons who had purchased lots from Gravier;that Bellechasse held a militia review on the property, which he described as the “Public Batture,” and there made a speech of which Livingston incloses a published version, from which inflammatory passages may have been suppressed; that on 24 Aug. the ground was sufficiently dry to begin some improvements on the property Livingston had purchased; that persons who had “collected there for that purpose” and previously signed a pledge to defend the Batture had forcibly removed his negro workers; that the next day Livingston found the crowd at the Batture very “noisy and clamorous,” and that it used threats and force to stop his negroes from working on his canal; that Livingston retired and the crowd dispersed, but that it gathered again at meetings announced “by beat of Drum for Several evenings Successively”; that Livingston provided Claiborne with copies of the judgment and execution and suggested that he warn the people of the danger they were incurring; that when Claiborne agreed to reason with the leaders of the opposition, Livingston suspended action, sent an affidavit advising the sheriff of the riot, informed him that he would recommence work on Monday (14 Sept. 1807), and requested the presence of a posse to help preserve the peace; that the same scene unfolded on Monday; that Bellechasse and Macarty encouraged opposition to the laws at all of these illegal assemblies; that the crowd has not yet reconvened today but the sheriff has seen their ringleaders at the Batture; that Livingston intends to send his workers out again about midday; and that the sheriff has not called out a posse and no proclamation has been issued (Tr in same).
(6) Speech by Bellechasse and Macarty, New Orleans, 15 Aug. 1807, calling on the militia and citizens present at the review held on the Batture to defend their liberty and independence against British imprudence and temerity; insisting that previous governments had preserved the Batture as public property and that it has been used as such for a hundred years; that if Jean Gravier had a right to the alluvion before the settling of the Faubourg Sainte Marie and could reclaim that right after having relinquished it, he could also seize and build in all the streets; that the lots fronting the river had been sold as far as the river and those of the interior as far as a given street; stating that the law must be followed, but that if they are to obey the orders of the corporation, they must have earth to raise unimproved lots, and to get that earth, they must disobey the Superior Court; that their only expedients are to seek acknowledgment of their right or a new trial to establish it from the general government, and publicly despise all those who may, before the decision of Congress, purchase alluvion land from “him who neither feared nor blushed, by yielding to the alurements of sordid interest, to bring a general disaster on the country” (clipping from New Orleans Telegraph et le General Advertiser, 20 Aug. 1807, in same).
(7) Claiborne to Livingston, New Orleans, 15 Sept. 1807, acknowledging no. 5, commenting that in the absence of the territory’s attorney general, John W. Gurley, the sheriff is under the orders of the acting attorney general; and that he has asked the sheriff for timely warning of any efforts to disturb the peace (Tr in DNA: RG 59, LCBNO).
(8) Claiborne’s speech, 15 Sept. 1807, urging the people assembled at the Batture to disperse peacefully after advising them that their mode of redress is improper; that the territory’s Superior Court had awarded the Batture to Jean Gravier and Livingston, and the sheriff had put them in possession; that he has already and will continue transmitting information on the conflicting claims to the Batture to the president; and that while the court decree must be obeyed, this does not preclude further enquiry, if conducted “in submission to the government and conformably to the laws” (The Batture, dated New Orleans, 16 Sept. 1807, printed broadside in same; in English and French; endorsed by TJ: “Sep. 16.”).
(9) Report from unidentified New Orleans newspaper, 17 Sept. 1807, describing the dispute concerning the Batture up to that point; supplying a copy of Claiborne’s speech (no. 8); reporting that the crowd was generally silent, with some expression of discontent, and that the decision to send Macarty to Washington to plead their case was unanimously approved; commenting that only one incident approaching violence occurred, when a citizen “laid violent hands upon a constable” but was restrained by others before any injury took place; and that most Louisianians are “well-disposed to the government, and are only to be led astray by an indiscreet zeal in favor of what they consider their indisputable rights” (clipping in DNA: RG 59, LCBNO).
(10) Claiborne to Madison, Concordia, 5 Oct. 1807, reporting that American slaves escaping to Texas have received Spanish protection and that he has written on the subject to Governor Manuel María de Salcedo; that when he left New Orleans on 19 Sept., order had been restored on the Batture; that on his journey through several parishes he has learned that the people support the public claim to the Batture based on its long and uninterrupted use by the citizenry, the sanction of Spanish authorities, and the heavy public expenditures to maintain the levee there; enclosing no. 11; advising that he does not intend to return to New Orleans before November; and indicating that the results of the territorial elections were satisfactory (RC in same; printed in Terr. Papers description begins Clarence E. Carter and John Porter Bloom, eds., The Territorial Papers of the United States, 1934–75, 28 vols. description ends , 9:765–6).
(11) Superior Court Decree in Jean Gravier v. the mayor, aldermen, and inhabitants of the City of New Orleans, signed by George Mathews and Joshua Lewis, 23 May 1807, stating that the title of Bertrand Gravier has not been disputed; that in the court’s opinion the land in question is bounded not by the highway but by the Mississippi River; that applicable Spanish law gives rights incident to land bounded by a navigable river; that had Bertrand Gravier retained the entire tract of land, his title to the alluvion would be unquestionable; that Gravier had established the Faubourg and sold lots fronting and adjoining the highway; that if no alluvion existed when Gravier sold the land adjoining the high road, then an alluvion subsequently formed would not become his property, because mere possession of a road or levee does not give the right of alluvion; that however while Gravier was proprietor, an alluvion high enough to be considered private property had formed adjoining the levee in front of the Faubourg and extending its entire length, and hence became part of Gravier’s estate; that the evidence of abandonment is only verbal and refuted by Gravier having sold part of the alluvion to one of the front proprietors; that the defendant has not had an exclusive possession and thus cannot claim by prescription; that the validity or invalidity of Jean Gravier’s title as opposed to his coheirs is immaterial to the question of the adverse pretensions of the city to the soil or the right of carrying it away; and that the court accordingly awards Jean Gravier lawful possession of the alluvion (Tr in DNA: RG 59, LCBNO; certified by the clerk, John Witherspoon Smith, 6 Oct. 1807, with an additional certification by Smith that the decree was drafted but not signed by William Sprigg).
(12) Claiborne to Madison, New Orleans, 13 Nov. 1807, enclosing and recommending to the government’s attention printed documents relating to the Batture, and reporting that Spanish agents undoubtedly considered the Batture to be public property and appropriated it for the city’s common use; that the United States can claim it under the treaty; that the judgment of the territorial court ought to be arrested or brought before another tribunal, because Livingston is in possession of and actively improving the property; and that Brown should not be consulted because he is one of Livingston’s attorneys and has or had an interest in the Batture (RC in same; in a clerk’s hand, signed by Claiborne).
(13) Caesar A. Rodney to Madison, 24 Oct. 1807, returning and concurring with no. 28 (RC in DNA: RG 59, OAG; Tr in same, LCBNO).
(14) Rodney to TJ, 24 Oct. 1807, concurring with Derbigny, Louis Moreau Lislet, and Gurley in favor of the United States’s title to the Batture, and giving his opinion that the president can use military force to enforce the statute of 3 Mar. 1807 (DNA: RG 59, OAG; same, LCBNO).
(15) Madison to Claiborne, Washington, 30 Nov. 1808 [1807], enclosing instructions for the marshal, in accordance with the federal statute of 3 Mar. 1807, to remove from the Batture immediately by civil power any persons who had taken possession or settled thereon since that date; and also enclosing instructions to the commanding officer of United States troops authorizing the use of military force, if necessary, to carry out the order of removal (Tr in DNA: RG 59, LCBNO).
(16) Claiborne to Madison, New Orleans, 29 Jan. 1808, stating that he had received Madison’s letter of 30 Nov. 1807 on 24 Jan. 1808 and that on the following day Madison’s communication to the marshal was delivered and the president’s orders executed despite an opposing injunction from the Superior Court; enclosing nos. 17–9; that it was fortunate that long-resident Louisianians did not support Livingston, because the court’s conduct was calculated to encourage resistance; that the doctrine of contempt of court has been extended further than law or precedent would warrant, but that no action has yet been taken against the marshal; that Livingston enjoys support among Americans, but Louisianians have passed a vote of thanks to the president that Claiborne will forward by this mail; that merchants in Louisiana are hastily dispatching vessels in advance of the Embargo;and that General Jean Moreau and Governor Vicente Folch are in town (RC in same; in a clerk’s hand, signed by Claiborne).
(17) Francis Joseph Le Breton D’orgenoy to Claiborne, Bayou Road, 27 Jan. 1807 [1808], stating that in accordance with Madison’s orders he proceeded to the Batture on 25 Jan. and removed several laborers there; that they began to work on the Batture after 3 Mar. 1807; that they initially obeyed his orders but returned an hour later; that when he attempted to remove them again, the person in charge told him that Livingston had ordered them to stay “untill an adequate armed force” compelled them to go; that he accordingly returned later with a posse comitatus and obliged the laborers to retire; enclosing nos. 18–9; and indicating that he acted not in contempt of the court, but in his “official character” (RC in same).
(18) Certification by John Witherspoon Smith that the Superior Court has enjoined D’orgenoy from removing Livingston from the Batture, New Orleans, 25 Jan. 1808 (Tr in same; certified by D’orgenoy as received at 11 A.M. on 25 Jan.).
(19) Injunction warning D’orgenoy not to disturb Livingston in his possession of the Batture on pain of being found in contempt of court, New Orleans, 25 Jan. 1808 (Tr in same; conjoined with no. 18; signed by Smith; certified by D’orgenoy as a “Second warrant” received that day at about 3:30 P.M.).
(20) Claiborne to Madison, New Orleans, 2 Jan. 1809, transmitting a Memoire by Moreau Lislet (not included in the papers Robert Smith sent TJ) and nos. 21–7; asking that these enclosures be sent to the attorney general; and stating that the Batture forms part of the bed of the Mississippi for several months each year and is at present nearly submerged (RC in same; in a clerk’s hand, signed by Claiborne; printed in Claiborne, Letter Books, 4:288).
(21) Claiborne to Mather, New Orleans, 17 Nov. 1808, stating that the “shoal” commonly called the Batture has increased considerably over the past year and asking how much of that increase can be attributed to the work done on it by Livingston and how much of it came after his removal in January 1808; that traces of Livingston’s levee are still visible; that alluvion is “a latent, imperceptible addition or accretion made along the sea shore or the Banks of Rivers,” which makes the rate of increase of the Batture important; that the Philadelphia attorneys who gave opinions favorable to Livingston probably knew nothing of the amount of ground gained in recent years; that Edward Tilghman and William Lewis assumed that increase had been so gradual that they did not determine what law applied to the Batture during the separate periods of Spanish, French, and American control; that the accumulations over the last year had actually raised it as high or higher than any other ground nearby; and requesting him to forward a plat of the Batture with the newest portion “distinctly laid down” (Tr in DNA: RG 59, LCBNO; in a clerk’s hand, signed by Claiborne).
(22) Mather to Claiborne, New Orleans, 18 Nov. 1808, replying that Livingston’s activity caused the recent augmentation of the Batture, as a grand jury had foreseen in a presentment made near the end of 1807; that the course of the river has changed, navigation has been obstructed, and parts of the river that were navigable at low water are now dry; that Livingston’s “disastrous” works have also impaired port activity in front of the town and created a new batture opposite the customhouse; that the enclosed plan, dated 4 Oct. 1808 and certified by city surveyor Jacques Tanesse, shows the extent of the Batture from the foot of the levee to the river in front of the Rues Gravier, Poydras, Girod, Julie, and Saint Joseph; that it also shows the highest elevation of the Batture above the low-water mark in front of these same streets and the ground level of the five streets of the Faubourg, as far back as the Rue Carondelet; that when this plan is compared with that of 5 Dec. 1807, signed by Charles V. Mansuy Pelletier, Jean Hyacinthe Laclotte, and Hilaire Boutté and forwarded to the president two months afterward, the mean extent of the Batture has clearly increased by at least 75–80 feet; that local observers agree that it has greatly increased in height; that in the last rise of the river, the entire frame of a saw pit about 7 feet high in front of Baptiste Rolland’s house was buried by earth brought by the river; and that other parts of the Batture have increased similarly (Tr in same).
(23) Claiborne to Mather, 22 Dec. 1808, New Orleans, stating that Thomas Pollock, the acting commander of the revenue cutter Louisiana, and captains of merchant vessels have examined the nearly completed canal constructed by Livingston; that they have determined that it will aid commerce by providing a berth for ships and boats and that similar canals built along the whole front of the Faubourg Sainte Marie, particularly when storehouses are erected there, will facilitate the loading and unloading of vessels; that Claiborne cannot see how the canal could effect this, but that the statement has been certified and published with a view to make an impression on the government; and that he accordingly wants information on the maximum depth of water at the mouth of the canal during the summer, the duration of the annual swell, the period during which the Batture is submerged, and the feasibility of ships finding berths in the canal (Tr in same).
(24) Mather to Tanesse, New Orleans, 24 Dec. 1808, commissioning him to measure Livingston’s canal and answer the questions Claiborne posed in no. 23 (RC in same).
(25) Statement by Tanesse, New Orleans, 28 Dec. 1808, reporting that on the two preceding days he went to the part of the Batture fronting the Rue Girod, where Livingston’s canal dock was constructed near the end of 1807, and found that the canal is 64 feet wide within the palisades, 276 feet long measured from the outer edge of the levee to the outer end of the wharves, and 10 feet deep; estimating the current depth of the water as 4 feet 2 inches; indicating that the wharves on each side of the canal are 19 feet 6 inches wide, with one rising 4 and the other 6 feet above the Batture; declaring that the dock or canal follows a straight line with its entrance originally opening to the east, five degrees south, but now changed by soil deposits so that the water enters through a narrow southeast inlet that was dry until the recent rise of the river; that the water at the mouth of the canal cannot exceed 10 feet in depth during the highest swell and that the maximum depth is likely to diminish as the deposits of the river raise the bottom; that the highest annual swell of the river generally comes between April and June, and that the Batture is generally covered for about six months of the year, from February to July; that the canal cannot be used by vessels drawing above 6 feet of water and that only flat keelboats can moor within it; that other vessels would find it difficult to get out due to the changes in the river bottom at every swell; that such changes will result from Livingston’s works, because the strong eddy current there deposits large quantities of sand and because the projecting wharves and new levee will impel waters toward the opposite bank (MS in same; signed by Tanesse and certified by Mather).
(26) Mather to Claiborne, New Orleans, 30 Dec. 1808, enclosing nos. 24–5 (RC in same).
(27) William Colcock, master warden, and Andrew Price and George Pollock, wardens of the port, to Claiborne, New Orleans, 28 Dec. 1808, reporting that at the highest annual swell, the water at the mouth of the canal is 10 feet deep; that the river is generally at its highest swell for about two months and that the Batture is generally covered for six months; that Livingston’s canal or dock is 300 feet long and 60 feet wide and at high water can berth at least five sea vessels drawing less than 10 feet without impeding access; that during low water, the canal provides good shelter for smaller vessels; that at this moment the canal is 4 feet deep and the Batture is dry for quite a distance; that a bar or shoal has formed nearly opposite the mouth of the canal, precluding all entrance except from the south; that the shoal has been formed or increased by the bank on the east side of the canal, which obstructs the eddy and forces water outwards; that in contrast, the eddy when the river is high runs upstream; that Livingston planned to run a new levee or bank along the outer edge of the Batture; that because the shoal has formed since the works were abandoned, it cannot be attributed to a defect in construction; but that the canal will become useless unless the shoal is cut through and measures taken to prevent its forming again (RC in same).
(28) Derbigny, Mémoire a Consulter, sur la Réclamation de la Batture, Située en Face du Faubourg Sainte-Marie de la Nouvelle-Orléans (New Orleans, 1807; Sowerby, description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, 1952–59, 5 vols. description ends nos. 3475, 3479).
(29) Pieces Probantes a l’Appui des Droits des Habitans de la Cité D’Orléans et de ses Faubourgs, sur la Batture en Face du Faubourg Sainte-Marie, Contestés Par Mr. Jean Gravier (New Orleans, 1807; Sowerby, description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, 1952–59, 5 vols. description ends nos. 3481–2).
(30) Jean Baptiste Simon Thierry, Examen des Droits des Etats-Unis et des pretensions de Mr. Edouard Livingston sur la Batture en Face du Faubourg Ste. Marie (New Orleans, 1808; Sowerby, description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, 1952–59, 5 vols. description ends no. 3477; English translation, Sowerby, description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, 1952–59, 5 vols. description ends no. 3478).