Statement of Facts in the Batture Case
[ca. 23 Mar. 1811]
State of the case
Not long after the establishment of the city of N. Orleans, and while the religious society of Jesuits retained their standing in France, they obtained from Louis XIV. a grant of lands adjacent to the city, bearing date the 11th of April 1726. the original of this grant having been destroyed in the fire which consumed a great part of the city in 1794, & no copy of it as yet produced, the extent and character of the grant is known from no authentic document. it’s other limits are unimportant, but that next the river & above the city is understood to have been of 20. arpents, of 180. French feet, or 64. yards of our measure, each, ‘face au fleuve’ the ambiguity of which expression is preserved by translating it ‘fronting the river.’ whether this authorised them to go to the water line of the river, or only to the road and levee is a question. to these they had added 12. arpents more by purchase from individuals. in 1763. the order of Jesuits was suppressed in France, and their property confiscated.—the 32. arpents before mentioned, were divided into 6. parcels described each as ‘faisant face au fleuve,’ and the one next to the city of 7. arpents in breadth, & 50 in depth, was sold to Pradel; but how these 7. arpents became 12. in the sale of the widow Pradel to Renard, 13. in Gravier’s inventory, and nearly 17. in the extent of his fauxbourg does not appear. in 1788 Gravier, in right of his wife the widow of Renard, laid off the whole extent of his front on the river, whatever it was into 4. ranges of lots, & in 96. he added 3 ranges more, establishing them as a Fauxbourg, or suburb to the city. no formal and written permission for this from the government has been produced, whether it was only verbal, or, if written, was lost in the fire, does not appear. that it was given is inferred 1.1 from Gravier’s declaration to Charles Trudeau the surveyor, 2. from Carondelet’s order to Trudeau, first to deposit a copy of the plan in the public archives, and afterwards for a second one to be delivered to himself and his subsequent declaration that the establishment of the Fauxbg had relieved Gravier from the maintenance of the road and levee. 3. from the regular appointment of officers of police for the new quarter from 1796. till the US. took possession. 4. from the character of the Spanish government, under which no one would have dared to execute such a measure without the permission of the governor. in truth written & formal titles were not given for much of the lands held in that country, as the researches of our present board of commissioners there will prove. yet the validity of these rights will not be questioned.
Bertrand Gravier proceeded to sell the lots of his new Fauxbg, and particularly he sold the whole range next the river. †such deeds for these lots as have been produced describe them as ‘haciendo frente al rio’ ‘fronting the river,’ and it is believed that most, if not all of the deeds use the same expression. Bertrand Gravier himself on all occasions declared‡ that he had sold his lots ‘faisant face au fleuve’ & had passed to the purchasers his right to the devanture, meaning every thing in front of his lots.
In 1797. Bertrand died intestate, and without children, leaving John Gravier & other brothers & sisters in France, or their representatives, as coheirs. an† inventory & appraisement of the estate took place; and it being understood that B. Gravier had left France indebted and insolvent, John Gravier declined taking it simply as heir, lest he should be liable for all his debts, and recieved it as a purchaser at it’s appraised value & with the benefit of inventory as it is termed. in the inventory is placed a single article of lands in these words, ‘are placed in the Inventory the lands of this habitation, whose extent cannot be calculated immediately, on account of his having sold many lots; but mr N. Gravier informs us that it’s bounds go to the forks of the bayou, according to the titles.’ and in the appraisement also there is but this same single article of lands thus described ‘about 13. arpents of land, of which the habitation is estimated, including the garden, of which the most useful part is taken off in the front, the residue, consisting of the lower part [to wit, that descending back to the bayou] the side being sold to Navarro, one Percy, & the negro Zamba, a portion of which, Etc estimated at 190.D. the front acre, with all the depth which makes 2470.D.’ then follows the adjudication which adjuged to John Gravier ‘the effects, real estate, moveables & slaves, which have been inventoried as belonging to the estate of his deceased brother Bertrand Gravier’ Etc
Now it happens that opposite to the habitation or plantation of B. Gravier, now the fauxbg Ste Marie, the beach of the river called in that country Batture, of ordinary breadth within memory, has sensibly increased, by deposits of earth, during the annual floods of the river, till, in the year 1806 it was found to extend in breadth, at low tide, from 122. to 247. yards of our measure, from the water edge into the river: & from about 7.f. height, where it abuts against the bank, declining to the water edge. while uncovered, which is from August to January inclusive, it has served as a Quai for lading & unlading goods, stowing away lumber & firewood, & has furnished all the earth for building the city, and raising it’s streets and courts, essential in that oozy soil. while covered, which is during the other six months of the year, from Feb. to July inclusive, it is the port for all the small craft of the river, and especially for the boats of the upper country which in the season of highwater, can land or lie no where else in the neighborhood of the city. during this period they anchor on it’s bottom, or moor to it’s bank. it is then, like every other beach, the bed of the river one half the year, and a Quai the other half, distinguished from those of tidewaters by being subject to a semiannual, instead of a semidiurnal ebb and flow. in this beach or shoal Bertrand Gravier seems sometimes to have supposed he had some vague right, not at all defined in his mind, and therefore never distinctly claimed or asserted. however whatever it was, he meant to convey it to the purchasers of the front lots, by the term ‘frente al rio’ ‘fronting the river’ as we see by his reserving in the deeds to one purchaser of 58. lots expressly a right to take earth from the beach for his brickkilns. not being considered as his property it was not put into the inventory of his estate, as we have seen; and Fernandez, acting for the Depositor general, says that he took charge & possession of all the estate according to2 the inventory which had been made from the 28th of June to the 4th of July 1797, and that the batture was not only not in the inventory, but was never heard of as the property of Gravier, was never in the charge of the Depositor, nor delivered to J. Gravier, nor spoken of at the time of the delivery to him. nor does John Gravier appear to have claimed any right to it then or for 6. years after, until the †arrival
of mr Livingston from New York, with the wharves & slips of that place fresh in his recollection. Gravier is then tempted by ‡successive bargains on different conditions, to claim the batture and lend his name, recieve a round sum for it, & in no event to be liable to any loss which might be incurred. xone of the appraisers recollects, just at the same time, that the batture was omitted through forgetfulness,7 to be inserted in the inventory; that it was intended to be inserted, & he walked over it himself in the interval of taking the inventory (to wit June 28. to July 4.) with a view of estimating it’s value; omitting to state that at the same time, the batture was covered with 7. or 8 f. water, the flood being then so high that all the sawmills were at work. in making this purchase mr Livingston found it most convenient to use the name of an old acquaintance from N. York, a Peter de la Bigarre, & perhaps to allow him some little partnership in it. John Gravier then by way of manifesting his claim‡8 began an inclosure of 500.f. square, & compleated it the next year. it is probable that this beginning was after it was understood that the country was ceded to us, & not while the French Governor considered the country as belonging to his master. however, the batture having at all times been considered as public property, having been constantly kept clear from intrusion by the Spanish governors & Cabildo, this inclosure was demolished by †order of the Cabildo of Feb. 22. 1804. that deed to la Bigarre is then made, Mar. 27. 1804. for two thirds of the property, and (notwithstanding this) Gravier on the 20th of Oct. 1805 commenced a suit against the city, as proprietor of the whole:9 and on the 14th of Dec. 1806. he, by another deed conveys the whole property to la Bigarre, on new conditions. this deed was kept secret till the day before the court pronounced it’s decree, when, the parties becoming apprised of the decision which was to be given (for it was known at least on the 20th of May, 1807) had it recorded before a notary, and the day after it’s publication the court acting as a court of Chancery, by the opinion of ‡two members against one, decreed the whole property to be John Gravier’s, his several conveyances of it notwithstanding. the alarm which this adjudication produced was immediate & great. the fact was notorious, that from the earliest to the latest extensions of the beach the public had had a free use of it, as their Quai in low water, and in high water their port, and never before had their right been doubted by themselves, or questioned by the riparian possessors. the Governors and Cabildos had had the constant care & controul of it, had demolished buildings and inclosures erected on it, had, by public Ban, prohibited all erections or obstructions to it’s use, had themselves erected a rampart, to inclose within it a chamber accessible for earth at highwater, for rebuilding the city after the fire, and had exercised uninterruptedly every other act of authority derived from the public rights; that the Graviers till the change of government and their transactions with Edward Livingston had never pretended to more than the right of common in it, and never had questioned that of the public, or the authority of the Governor & Cabildo over it. while they held the adjacent plantation indeed, they maintained the road & bank as all rural proprietors are obliged by the Roman law to do, as well as by the conditions of their grants. but after establishing the front of the plantation into a Suburb and thus cutting off the residue from the road & river, being called on to repair the road by an order from Governor Carondelet, who seems at the moment not to have adverted to the change, Bertrand Gravier answered that having sold the lots ‘faisant face au fleuve,’ fronting the river, he had abandoned the batture to the town, & that the road & levee could not be at his expence. the Governor recollecting & correcting himself at once says ‘Gravier is right, all this is true’ and immediately & ever after had the repairs made by the public†: and the Graviers from that time stood discharged from these burthens on the same principle which had freed the original owners of the scite of the city from maintaining the banks of the City.
On the 21st of Aug. 1807. mr Derbigny’s opinion was published and reanimated the public hope by bringing into view the right of the US. and shewing that the sentence of the court must, of course, as to them, be a mere nullity. the court could not have undertaken to decide on the right of the US. which was neither before them nor within their competence. and the injunction they issued could only be addressed to the parties between whom they had adjudged, and not to suspend the rights of others whom they had never heard, much less of the US. who could not be heard before them.
Presuming however that the coast was now clear, and the question finally settled, the ostensible actors withdraw, and their principal comes forward, is put into possession by the sheriff, & begins his works. Aug. 24. he employed a number of negroes to commence digging a canal which he projected to make across the beach. but the citizens assembled in considerable numbers and drove them off. on the day following he went in person, but was again opposed by the citizens, whose minds were much agitated. they assembled the next day about the same hour, & for several days successively by beat of drum. on Monday the 31st of August mr Livingston recommenced his work, after having given notice that he should do so. he began about 10. aclock A.M. and about 4. or 5. aclock in the afternoon the people assembled again & drove off his labourers. on the 14th of Sep. he again attempted to work, getting two constables to attend his laborers. the people drove them off, & the constables having noted on a list some of those present they seised them, took the list & tore it to peices. on the next day he writes to the Governor that he shall set his labourers to work again that day at 12. aclock, and ‘he shall not be surprised to see the people change the insolence of riot into the crime of murder.’ at noon he accordingly placed 10. or 12. white laborers there. in the afternoon the people re-assembled to the number of several hundreds. the Governor repaired there & spoke to them. he was heard with respectful attention: and one of them, speaking for the whole, expressed the serious uneasiness which the decision of the court had excited, the long and undisturbed possession of the batture by the city, as well under the French as the Spanish government, & the great injury which would result to the inhabitants, if the land should be built upon & improved. and another declaring that they wished the decision of Congress, & in the mean time no work to be done on the batture, there was a general exclamation from the croud ‘that is the general wish,’ followed by a request that they might nominate an Agent to bear to the President of the US. a statement of their grievances, & that the Governor would recommend the agent to the Government. he said he would do so, & they nominated Colo Macartey, by general and repeated acclamations. they then withdrew in peace to their respective homes.
†On the 14th of November, a grand jury of the most respectable characters of the place, give in a presentment to the court in which they say ‘We present as a subject of the most serious complaint the present operations’10 Etc Notwithstanding this capitulation then, we find mr Livingston, instead of awaiting the decision of Congress, the only constitutional tribunal, resuming his works boldly, and the people whom he represented as like ‘to change the insolence of riot into the crime of murder’ appealing peaceably, by presentment to the laws of their country until the national government should decide.
In the latter end of the same year, he opens a canal from the bank directly thro’ the beach into the river 276.f. long, 64.f. wide & 4.f. 2.I. deep at low water, & with the earth excavated, he forms a bank or quai, on each side, 19 f. 6 I. wide, from 4. to 6.f. high above the level of the batture, & faced with palissades. these are all French measures, to which add a fifteenth to make them ours. within one year after this what had been anticipated by the grand jury and others, had already manifested itself. in Dec. of the ensuing year 1808. a bar had already formed across the mouth of the canal, which was dry at low water; the course of the waters had been changed during the intervening flood, and the places where dry ground first shewed itself, on the decrease of the river, were such as had, the year before, been navigable at low water. the port in front of the town had been impaired by a new batture begun to be formed opposite the Custom house, which could not fail to increase by the change of the current. the beach or batture of St Mary had, in that single tide, extended from 75. to 80.f. further into the river, & risen from 2. to 5 f. 10.I. generally, & more in places; as a saw scaffold which, at the preceding low tide, was 7.f. high, was now buried to it’s top: and Tanesse, the surveyor says he does not doubt that these works have produced the last year’s augmentation of the batture, at the expence of the bed of the river, have occasioned the carrying away a great part of the platin or batture of the lower suburbs, & breaking the levee of M. Blanque next below, & that the main port of the city, being a Cove, immediately below Livingston’s works, would, if they were continued, be filled up in time; and it is the opinion of Piedesclaux also that they would produce changes in the banks of the river, on both sides, prejudicial to the city, & riparian possessors, by directing the efforts of the river against parts, not heretofore exposed to it. and mr Poydras tells us that when the river is at it’s height the boats which drift down it can only land in the eddies below the points, as they would be dashed to pieces in attempting to land in the strong current: that at the town they cannot land for want of room, there being always there two or three tier of vessels in close contact; nor at the lower suburbs of Marigny, which being at the lower part of the cove, are too much exposed both to winds and current. indeed no evidence is necessary to prove that in a river of only 1200. yards width, having an annual tide of 12. to 14.f rise, which brings the water generally to within 8. or 10. I. and sometimes 2. or 3. I., of the top of the levée, insomuch that it splashes over with the wind, were the channel narrowed 250. yards, as mr Livingston intends, that is to say a fourth or fifth of it’s whole breadth, the waters must rise higher in nearly the same proportion, that is to say 3.f. at least, and would sweep away the whole levee, the city it now protects, and inundate all the lower country.
This case was brought before the Executive of the US. thro’ different channels of information, but principally by letters from the Governor. the urgency of the danger, and necessity of a prompt remedy, were pressed. on the 24th of Oct the Atty Genl had given his opinions &11 on the 27th of Nov. 07. a consultation was held with the heads of Departments & Attorney General, and according to what was then unanimously considered & determined, the Secretary of State wrote on the 30th of Nov. to the Governor covering instructions for the Marshal to remove immediately by the civil power, any persons from the batture Ste Marie, who had taken possession of it since the 3d of March, & authorising the Governor, if necessary, to use military force, for which purpose a letter of the same date was written by the Secretary at War to the Commanding officer at N. Orleans. this force however was not called on. the epoch of the 3d of March was fixed on to bring the proceedings within the sanction of the law of that date, as well as under that of all preexisting laws. the instructions to the Marshal were delivered to him about 9. aclock, in the morning of the 25th of Jan. 1808. he immediately went to the beach and ordered off mr Livingston’s laborers. they obeyed, but soon after returned. on being ordered off a second time, the principal person told him that he was commanded by mr Livingston not to give up the batture until an adequate armed force should compel him. and in the mean time, mr Livingston had procured from a judge of the superior court of the territory, an order,† purporting to be an injunction forbidding the Marshal to disturb Edward Livingston in his possession of the batture, under pain of a contempt of court. but no court of Chancery having ever been established or authorised12 by law in that territory, & no13 court having jurisdiction over the United States, the Marshal collected a posse comitatus, ordered off the laborers again, who peaceably retired, and no further attempts were made to recommence the work.
The territorial legislature, 3. weeks after took up the subject, & passed an act14 prescribing in what manner riparian proprietors should proceed, who wished to make new embankments in advance of those existing, and passed a vote of thanks to the Executive of the US. for it’s interposition; and the Executive, recieving on the 1st of March information from Governor Claiborne of the execution of their orders, laid the whole matter on the 7th of that month before Congress by a message turning the case over to them as one in which all the Executive functions had been discharged, and now placed in the hands of the legislature the only power competent to decide it.
MS (DLC: TJ Papers, 190:34099–105); entirely in TJ’s hand; undated; pages numbered 1–13 by TJ; brackets in original. Enclosed in TJ to George Hay and William Wirt, 23 Mar. 1811.
TJ based this statement on documents described in lists of batture-related papers enclosed in Robert Smith to TJ, 4, 6 June 1810, TJ to Smith, 20 Mar. 1811, and TJ to Hay and Wirt, 23 Mar. 1811; and in Resolutions of the Orleans Territorial Legislature, [19 Jan. 1810], and William Eustis to TJ, 4 June 1810. TJ here repeats some of the language from his longer Statement on the Batture Case, 31 July 1810.
Francis Joseph Le Breton D’orgenoy was the marshal instructed to remove Edward Livingston from the New Orleans batture.
1. Number interlined.
2. Preceding two words reworked from “in.”
3. Mismatched “†” changed to “‡” by the Editors for consistency.
4. Preceding six words interlined.
5. Preceding two words interlined.
6. TJ here canceled “examine hi.”
7. Manuscript: “fogetfulness.”
8. TJ here canceled what appears to be “in 1804.”
9. TJ here canceled “and the court, acting as a court of Chancery adjudged the whole to him.”
10. Omitted closing quotation mark editorially supplied.
11. Preceding thirteen words interlined.
12. Preceding two words interlined.
13. TJ here canceled “other.”
14. TJ here canceled “providing.”
- Batture Sainte Marie, controversy over; communications between TJ and his counsel concerning search
- Blanque, Jean Paul search
- Carondelet, Francisco Luis Hector, baron; and batture search
- Case laid before Counsel for their opinion on the claim to the Batture, situated in front of the Suburb St. Mary (Derbigny) search
- Claiborne, William Charles Coles; and batture controversy search
- Delabigarre, Peter; and batture controversy search
- Derbigny, Pierre (Peter) Augustin Bourguignon; Case laid before Counsel for their opinion on the claim to the Batture, situated in front of the Suburb St. Mary search
- D’orgenoy, Francis Joseph Le Breton; marshal at New Orleans search
- Eustis, William; and batture controversy search
- Fernandez, Mr.; 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
- Gravier, Nicholas search
- Jefferson, Thomas; Writings; Statement of Facts in the Batture Case search
- Jefferson, Thomas; Writings; statement on the batture case search
- Jesuits; and batture search
- Livingston, Edward; and riots at Batture Sainte Marie search
- Livingston, Edward; opens canal on batture search
- Louis XIV, king of France; and La. territorial charter search
- Macarty, Jean Baptiste; and batture controversy search
- Madison, James; and batture controversy search
- Navarro, Mr. search
- Orleans Territory; legislature of search
- Pedesclaux, Pierre search
- Percy, Mr.; and batture search
- Poydras, Julien Lalande; affidavit on batture search
- Pradelle (Pradel), Alexandrina de la Chaise search
- Pradelle (Pradel), Jean search
- religion; Jesuits search
- Renard, André search
- Rodney, Caesar Augustus; and batture controversy search
- Statement of Facts in the Batture Case (Thomas Jefferson) search
- statement on the batture case (Thomas Jefferson); composition of search
- Tanesse, Jacques; and batture controversy search
- Trudeau, Charles search