The original paper was Louis Moreau Lislet’s “Mémoire au soutien des droits des Etats-unis à la Batture du faubourg Ste Marie” (“Memorial upholding the rights of the United States to the batture of the Faubourg Sainte Marie”), New Orleans, 31 Dec. 1808 (MS in DNA: RG 59, LCBNO; in a clerk’s hand, signed by Moreau Lislet, consisting of 136 pages in French, accompanied by a note in English in Moreau Lislet’s hand and signed by him: “Note. Being under an impression that Mr Edward Livingston will not fail to answer to the Several Memorials which have been lately published in Support of the rights of the United States to the batture of the Suburb St Mary at New Orleans, and apprehending that he will probably do it in such a manner as to deprive the inhabitants of this Territory of the Benefit of a refutation, I have undertaken in this Memorial [to the risk perhaps of exposing myself to a reproach of Prolixity], to answer not only the arguments already resorted to by the Counsel of John Gravier, but even those which I suspected they might employ hereafter in his favour—of these materials, the Counsel of the U.S. will make Such use as they will deem most proper for the best Success of the Cause. they will find in this memorial, all the Authorities or Quotations in Support of the rights of the U.S, which I have been Able to Collect from Such French or Spanish books as are in my possession. I have been particular in relating even those of which Gravier’s Counsel have endeavoured to avail themselves and have Commented on them to explain their true meaning, in order to prevent the effect of misconstructions which the adverse Counsel have made or will make of them. I have copied the Authorities at large [which the limits of a printed publication had not permitted to do] because I have Supposed that it would be perhaps difficult for those to whom this Memorial is destined, to find the original books in which they are written, and if that has Given to this Memorial, a length which I Might otherwise have avoided, I must be Excused in favour of the motive”).

In the body of this extensive memoir, Moreau Lislet supported the claim of the United States to the batture in front of the Faubourg Sainte Marie, beginning with preliminary comments against the case presented in Livingston, Address. He asserted that Livingston’s occupation of the land would result in disease, that the inhabitants feared that his actions would cause floods and deprive them of their customary use of the batture, and that they accordingly welcomed the marshal’s intervention and wanted the government to overturn the superior court’s judgment in favor of Jean Gravier.

Moreau Lislet first argued that the batture is in the public domain and that, in consequence, the government had the right to seize it. In section one he sought to prove that the alluvium of navigable rivers belongs to the sovereign. To make this point he reviewed French edicts regarding alluvium, following an argument previously made by Pierre Derbigny in his refutation of a work by Livingston’s counsel Peter Stephen Du Ponceau, Réfutation du Mémoire en forme de consultation, rédigé par Mr. Duponceau, Jurisconsulte à Philadelphie, au sujet des pretensions des Etats-Unis sur la Batture du Faubourg Ste.-Marie de la Nouvelle-Orleans (New Orleans, 1808; Sowerby, description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, 1952–59, 5 vols. description ends no. 3492). Moreau Lislet noted that Joseph Nicolas Guyot had reviewed the pertinent French edicts in his Répertoire universel et raisonné de jurisprudence civile, criminelle, canonique et béneficiale, 64 vols. (Paris, 1775–83), omitting the 1554 edict of Henry II in which the king’s right to alluvium was officially stated but including a 1664 edict that established the East Indies Company and extended feudal rights to French colonies; an April 1668 edict that required people who had owned land for more than a century to pay the public a sum equal to one-twentieth of the land’s revenue; a 1669 ordinance asserting the king’s claim to all navigable rivers, their beds, banks, and the grounds forming them; an April 1683 confirmation of rights to property held under authentic titles since 1566; an April 1686 royal edict requiring landholders in Languedoc and Brittany to present their titles; a 1693 royal edict that titleholders throughout the entire kingdom pay a year’s revenue, or one-twentieth of the current value of their land; a 1710 royal edict concerning the alluvium of the sea and islands, reiterating the 1693 edict and confirming the right of the sovereign to navigable rivers; a 1717 royal edict granting the Company of the West exclusive commercial privileges in Louisiana; and a September 1722 decree insuring the execution of the former edicts and allowing royal tax collectors to take possession of islands, islets, and landings arising from the 1693 edict.

Moreau Lislet next cited Jean Baptiste Denisart, Collection de décisions nouvelles et de notions relatives à la jurisprudence, 6 vols. (Paris, 1754–56), which confirms that these edicts were fully executed, a conclusion ignored by Jean Gravier’s defenders. He also argued that Livingston misinterpreted sources that do in fact prove that the alluvium of navigable rivers belongs not to the owners of riverside properties, but rather to the sovereign, citing the definitions of alluvium in the following sources: (1) Antoine François Prost de Royer, Dictionnaire de jurisprudence et des arrêts: ou Nouvelle édition du Dictionnaire de Brillon, 5 vols. (Lyon, 1781–88); (2) Claude Henrys, Œuvres … Contenant son recueil darrêts, ses plaidoyers et harangues …, 2 vols. (Paris, 1708); (3) Philippe de Renusson, Œuvres (Paris, 1760); (4) Charles Du Moulin, Coutumes du comté et bailliage de Mante et Meulant (Paris, 1739); (5) Bertrand d’Argentré and Du Moulin, Coûtumes generales du païs et duché de Bretagne, 3 vols. (Rennes, 1745–48); (6) François Bourjon, Le droit commun de la France et la Coutume de Paris réduits en principes, 2 vols. (Paris, 1747); (7) Claude Joseph de Ferrière, Dictionnaire de droit et de pratique contenant l’explication des termes de droit, d’ordonnances, de coutumes, & de pratique: avec les jurisidictions de France, 2 vols. (Paris, 1771).

Moreau Lislet contended that the rights of French kings did not derive from feudal law, in contrast to William Blackstone’s assertion that British royal prerogatives were feudally based. He revisited Bourjon’s and Ferrière’s definitions of alluvium and added those in Lerasle, Encyclopédie Méthodique: Jurisprudence, 2d ed., 7 vols. (Paris, 1791–1800), and Robert Joseph Pothier, Traité du droit de domaine de propriété, 2 vols. (Paris, 1776), in a discussion of the nature of alluvium on navigable rivers as inherited property, concluding that Livingston cited these sources out of context, particularly Renusson, who claims that land growths such as alluvium belong to the riverside owner and therefore pass to his heirs. Moreau Lislet maintained that, while the jurists may not all define alluvium in the same way, they agree that the royal edicts say that any increase on navigable rivers belongs to the sovereign. He argued that the jurisprudence of tribunals on alluvium had been affirmed by Roman law, although in the case in question the edicts, declarations, and ordinances of the king of France have greater authority. Contrary to Du Ponceau’s claims, jurisprudence had been fixed in France from the time of the 1693 declaration and reinforced by the 1765 decree of the Parlement de Paris. On this point Moreau Lislet cited René Choppin, Oeuvres, 5 vols. (Paris, 1662–3); Jean Bacquet, Oeuvres … des droicts du domaine, de la couronne de France, de plusieurs arrests et decisions notables, et du traicté des rentes (Paris, 1644); and Denis Salvaing de Boissieu, Traité de l’usage des fiefs et autres droits seigneuriaux (Avignon, 1731).

Moreau Lislet went on to consider whether the French edicts extended to the French colonies, even if their execution there had not been expressly ordered. He gave examples refuting Du Ponceau’s assertion that feudal law had never existed in the colonies, and contested the claim that the king’s authority derived from the feudal system. When the Jesuits sold their New Orleans land to Jean Gravier’s predecessors in 1726, the French edicts were in force. Moreau Lislet argued that Moreau de Saint Méry’s Loix et constitution’s des colonies françoises de l’Amerique sous le vent, 6 vols. (Paris, 1784–90), is unreliable and incomplete because it ignores the edicts entirely, and he confirmed the applicability to French colonies of royal ordinances pertaining to navigable rivers.

Next, Moreau Lislet reviewed the chain of title to the Batture Saint Marie and made the case for its royal ownership. He asserted that the king did not give up his ownership in the land sale of 1763, because it contained no explicit clause to that effect and because a public pathway, which separated the land from the riverbank, was not included in the land sold to Jean Gravier. He then cited Pothier, David Hoüard and Thomas Littleton, Anciennes loix des François, 2 vols. (Rouen, 1766), and Emmerich von Vattel, Le Droit des Gens, ou, Principes de la loi naturelle, appliqué à la conduite & aux affaires des nations & des souverains (Leiden, 1758; Sowerby, description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, 1952–59, 5 vols. description ends nos. 1411–2), to argue that the batture is an accessory to the royal pathway and that its alienation would have required specific affirmation in these transactions. A review of the appurtenances and dependencies clause and of Ferrière’s examples of deeds prove that Gravier did not purchase ownership rights over the alluvium. Moreau Lislet concluded, therefore, that the batture never left the royal domain, citing Jean Domat, Les lois civiles dans leur ordre naturel (Paris, 1689; English trans. by William Strahan, Sowerby, description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, 1952–59, 5 vols. description ends no. 2212). Countering Livingston’s claim that the laws in effect were Spanish because Spain owned Louisiana in 1763, Moreau Lislet said that the laws were French until Alejandro O’Reilly first introduced Spanish law in 1769; in confirmation he cited Guillaume Thomas François (Abbé) Raynal, Histoire Philosophique et Politique Des Établissemens et du Commerce des Européens dans les deux Indes, 6 vols. (Amsterdam, 1770; later ed., Sowerby, description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, 1952–59, 5 vols. description ends no. 466).

In section two Moreau Lislet sought to show that a batture is not a bank or part of a bank, but rather part of the riverbed, and therefore nothing but alluvium, citing Ferrière and Boissieu. To define riverbank, he consulted formulations by Ulpian and Paul in Arnoldus Vinnius’s edition of Justinian’s Corpus juris civilis (Digest, book 43, title 12) (Vinnius, D. Justiniani sacratissimi principis [Leiden, 1646; later ed., Sowerby, description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, 1952–59, 5 vols. description ends no. 2193]), and concluded that the Spanish had adopted Paul’s definition, citing Juan de Hevia Bolaños, Curia philipica: donde breve y comprehendioso se trata de los juyzios, mayormente forenses (Valladolid, 1609). After considering the definitions of alluvium by Lerasle and Prost de Royer, Moreau Lislet defined a riverbank as that which contains the river at its highest point (“plenissimum”). Roman law accords with French law in stipulating that alluvia in riverbeds can leave the public domain only if they dry out completely, and not just after seasonal decreases in the water level.

Roman law, moreover, does not authorize a person to undertake works on a riverbank unless they can protect their fellow citizens against damage for ten years. On this point he cited the Digest, book 43, title 12, and the Law of) Alfonso X (“the Learned” from Gregorio López, Las siete partidas del sabio rey Don Alonso el Nono, 7 vols. in 4 (Salamanca, 1555). Moreau Lislet claimed that the works of Jean Gravier and Livingston would harm river navigation by reducing the safety of anchorages and possibly by impeding canals or narrowing the waters. He reported that Livingston had constructed a basin in the batture and begun a levee, both of which would make the navigation of the Mississippi more difficult, and that surveyor Jacques Tanesse stated that this work would narrow the riverbed and make the current swifter. Spanish law, as established by the 1550 edict of Philip II, forbade the seizing of alluvial islands without the proper title and consent of the king. More recently, theMississippi territorial legislature had passed an 1808 law forbidding riverside landowners from building levees on the riverbanks. Moreau Lislet concluded that whether the batture was alluvium or riverbed, it still belonged in the public domain and that no one had the right to seize or occupy it.

In section three Moreau Lislet argued that the batture is part of the port of New Orleans. Bertrand Gravier divided his land into suburbs in 1788, thereby losing the protection that Roman law afforded to rural properties. Once converted, he was subject to the same laws as New Orleans inhabitants. Bolaños says in Curia philipica that ports are the sovereign’s domain and that this extends to the riverbanks of the port. On the latter point, Moreau Lislet cited Blackstone’s assertion that in England the sovereign’s domain is based on feudal law; the 1669 ordinance claiming for the French king the ownership of all navigable rivers, their beds, banks, and the grounds forming them, as cited by Guyot, and Lopez, whose review of laws 6 through 9 of partida 3 classifies urban riverbanks and beaches with other public amenities such as fountains.

Moreau Lislet ended by examining the rights of nations, states, and sovereigns to public property, citing Vattel, Domat, and Strahan. Vattel writes that in a representative government, the right to public property resides in the nation as a whole and must be exercised by the executive, which is responsible for the possession and wise administration of such property. Moreau Lislet argued that the United States Congress is the only body with the authority to remove the batture from the public domain and that the president of the United States was entitled under the law of 3 Mar. 1807 to expel those who had seized it. He added that Jean Gravier, the supposed owner, had not obtained proper title from the United States government, that he and his predecessors had never been in de facto possession of the batture before the territorial superior court confirmed his ownership rights in May 1807, and that he could not therefore claim the batture under a statute of limitations. As the batture was part of the public domain, and had never been alienated, Moreau Lislet concluded that the federal government had every right to seize it from encroaching private citizens.

TJ regarded Moreau Lislet’s memoir as an essential tool in his defense and began trying to get a copy shortly after learning of Livingston’s lawsuit against him (TJ to William C. C. Claiborne, 3 May 1810). No letter covering the dispatch of the memoir to TJ by Rodney has been found, but TJ received it by 16 Oct. 1810 (TJ to Claiborne, 16 Oct. 1810) and used it to revise his own statement about the case. He took issue with only one point, stating that Moreau Lislet, “Led away, as it seems, by an expression in the edict of 1683 … and yielding to a single decision of the Parliament of Paris of 1765 … admits that tho’ alluvions within the bed of a river belong to the king, those without the bed do not belong to him. … I cannot yield, as he does, so imposing a mass to a single decision of the single Parliament of Paris. I still must consider all alluvions on navigable rivers as belonging to the nation” (Jefferson, Proceedings description begins Thomas Jefferson, The Proceedings of the Government of the United States, in maintaining The Public Right to the Beach of the Missisipi, Adjacent to New-Orleans, against the Intrusion of Edward Livingston. prepared for the use of counsel, by Thomas Jefferson, New York, 1812; Sowerby, nos. 3501, 3508; Poor, Jefferson’s Library, 10 (no. 604) description ends , 38n). TJ also prepared a list of the French edicts and legal authorities cited in Moreau Lislet’s memoir (MS in DLC: TJ Papers, 191:34073; entirely in TJ’s hand; undated). He sent the memoir to his counsel on 23 Mar. 1811.