Thomas Jefferson Papers

Thomas B. Robertson to Thomas Jefferson, 7 December 1810

From Thomas B. Robertson

New Orleans 7 Dec 1810


I have the honor to enclose you a copy of the proceedings in the case of Livingston v D’Orgenoy

Soon after this suit had been judicially decided, Mr. Livingston went upon the Batture, affected to take possession of the same, and published in all the gazettes of the City the advertisement which I also herewith transmit to you

meeting with him at the house where I usually dine, he observed to me that, he had not possessed himself of the Batture, until he had received assurances that the Govt would not disapprove of the measure—and that the secretary of State had given him to understand that no second warrant would be issued to dispossess him—I listened to his remarks with entire incredulity—accordingly when the Marshal applied to me for advice—I stated explicitely that, I considered the warrant under date of the 30 Nov 1807 as still being in full force—and recommended it to him to obtain and to follow the opinion of the District Attorney—I was well acquainted with the sentiments of that Gentleman a copy of whose opinion in which I perfectly concured you will find inclosed

Mr Livingston in consequence1 of his second Expulsion, has again instituted a suit v the Marshal I presume that this is seriously meant, and not like his late action, a trick between himself, DOrgenoy, & his Counsel—accept the assurances of my most sincere respect

Th B Robertson

RC (DLC); at foot of text: “Thomas Jefferson Esqr Monticello”; endorsed by TJ as received 9 Jan. 1811 and so recorded in SJL. Enclosures: (1) case file on Livingston v. D’orgenoy, which includes Edward Livingston’s 4 July 1810 petition requesting damages for his removal from the batture in front of the Faubourg Sainte Marie by then–federal marshal Francis Joseph Le Breton D’orgenoy and its restoration to his possession; Livingston’s 15 Oct. 1810 petition describing Jean Gravier’s successful lawsuit against the mayor, aldermen, and citizens of New Orleans, repeating his call for the return of the batture, and changing his request for damages from $150,000 to such “further and other relief as the nature of his case may require”; Le Breton D’orgenoy’s 18 July and 15 Oct. 1810 responses that he had acted on behalf of the president of the United States through the secretary of state; a 22 Oct. 1810 petition from attorneys for the United States maintaining that Le Breton D’orgenoy has no right of property or possession in the batture and is therefore an uninterested party, arguing that the plaintiff and defendant are colluding so that Livingston can obtain possession of the batture from the United States, introducing as evidence the following documents (also included in this file): Livingston to Le Breton D’orgenoy, 6 June 1810, Le Breton D’orgenoy to Lavau Trudeau, 5, 13 Oct. 1810, and statements of James Alexander, Le Breton D’orgenoy, New Orleans mayor James Mather, Paillette, and Philip Grymes, 22 Oct. 1810, and requesting a stay in the proceedings; a 24 Oct. 1810 statement from United States District Court Judge Dominick A. Hall agreeing that Le Breton D’orgenoy has no legal interest in the batture, that he could not be deprived of possession because he never had it or had long since given it up, that the abovementioned documents show that an understanding existed between the parties to the suit, that the United States is the clear possessor of the batture, that the court cannot determine the right of possession in this case, and thus that the proceedings are to be stayed; a 7 Nov. 1810 request by Livingston for a further hearing based on new testimony from John Michael Fortier, the United States marshal for Orleans Territory, Tully Robinson, its district attorney, and Mather regarding the public right to the batture, government communications concerning Livingston’s removal therefrom, and the right of the United States to the land; and a 14 Nov. 1810 statement by the court rejecting Livingston’s request (Tr in DNA: RG 59, LCBNO; certified 17 Nov. 1810 by Thomas L. Kennedy; endorsed by TJ, with his notation: “recd in T B Robertson’s of Dec. 7. 10 Livingston v. Orgenois”; digested through the events of 24 Oct. 1810 in François Xavier Martin, Orleans Term Reports, or Cases Argued and Determined in the Superior Court of the Territory of Orleans [New Orleans, 1810], vol. 1, pt. 1, pp. 87–96; Sowerby, description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, 1952–59, 5 vols. description ends no. 2180). (2) Livingston’s proclamation on the batture, 17 Nov. 1810, described at Mather to TJ, 30 Nov. 1810. (3) Robinson to Fortier, New Orleans, 19 Nov. 1810, affirming the continuing validity of the 30 Nov. 1807 warrant directed to Le Breton D’orgenoy, and noting that this original mandate to remove intruders includes the continuing power to preserve the batture from possession until a legislative or judicial decision allows for it; that this interpretation is confirmed both by TJ’s 7 Mar. 1808 message to Congress and by a 20 May 1808 letter from then–secretary of state James Madison to Livingston; that in the former the president declared that measures have been taken according to law to keep the batture clear of intruders; that the latter reiterated “the duty of the President to keep the ground clear of all adversary possession”; that Fortier should accordingly remove from the batture any intruders or squatters; that Livingston’s assertion that Secretary of State Robert Smith had suggested that the government would not prevent his seizure of the batture “can be considered only as an ingenious contrivance to sooth & conciliate the Public as well as the officer whose duty it is to protect from intrusion the Land in question”; that Fortier should ignore the suit lately brought by Livingston in district court because, far from sanctioning his efforts, the court has consistently accepted motions by the United States arguing that the litigation is “fictitious & collusive” and stayed the proceedings; that having lost in court, Livingston invented an expedient to relieve his mortification; but that in appealing to the court, he implicitly agreed to abide by its determination (Tr in DLC; at head of text: “Copy”; at foot of text: “Jno M: Fortier Esqr Marshal of the Orleans Territory”).

1Manuscript: “consequnce.”

Index Entries

  • Alexander, James search
  • D’orgenoy, Francis Joseph Le Breton; marshal at New Orleans search
  • Fortier, John Michael; and batture controversy search
  • Grymes, Philip; and batture controversy search
  • Hall, Dominick A. search
  • Jefferson, Thomas; Public Service; messages to Congress search
  • Livingston, Edward; proclaims right to batture search
  • Livingston v. D’orgenoy search
  • Madison, James; as secretary of state search
  • Martin, François Xavier; term reports of search
  • Mather, James; and batture controversy search
  • Robertson, Thomas Bolling; and batture controversy search
  • Robertson, Thomas Bolling; letters from search
  • Robinson, Tully search
  • Smith, Robert; and batture controversy search
  • Trudeau, Lavau search