James Madison Papers

Notes on Jefferson’s “Statement” on the Batture at New Orleans, [ca. 12 August] 1810

Notes on Jefferson’s “Statement”
on the Batture at New Orleans

[ca. 12 August 1810]

p. 16. form of stating the consultation seems to imply a more elaborate inquiry into the law than was then made: better to give a summary of the grounds; & appeal to the full view of the argts. in support of the opinion given.1
Id. too unqualified pre-eminence ascribed to Civil Law.2
17. quer. the advantage of the note which seems rather erudite & curious, than strictly within the scope of the reasoning which is sufficiently voluminous of necessity.3
22. Tho’ true that a mere change of Govt. does not change laws, is it not probable, that by usage, or some other mode, the Spanish law had come into operation; since Thierry on the spot speaks so confidently?4 This remark applicable to the enquiry into the state of the F. & Civil Law previously in force.
27. comments on definition of Alluvion too strict.5 They destroy the idea of Alln: altogether. Alluvion, when real & legal, is found not like plastering a Wall, but coating a floor.
30. In the Etemologies, that of Platin, at least, far fetched.6 It is more probably derived from Plat—flat.
35–36. characteristic features distinguishing the cases of the lands back of the river & the batture seem to be 1: (the appendix to the argument supersedes the attempt here intended)7
37 et seq. Is not the point superfluously proved by so many quotations?8
49&c trop recherchè peut être.9
51. & seq: distinction between fedl & state—Ex. & Legis: auths. not observd. in the reasoning10
55. conveys idea of spontaneous advice, & concurrence of the P.11
56. Well to be sure that the local law or usage did not confer the Chancery power exercised by the Court in this case.12 Moreau’s Memoir must be important on this as on some other points depending on the law of usage & the Civil law.
The rationale13 of the doctrine of Alluvion appears to be first, that the Claimant may lose as well as gain: secondly, that the space loses its fitness for common use, and takes a fitness for individual use: hence the doctrine does not apply to Towns where the gain would be disproporti[o]nate; and where the fitness of the space for public use, may be changed only, not lost.
The Batture would to Livingston be gain without possibility of loss; and retains its fitness for Pub: Use, as occasionally, a port, a Quay, and a quarry.

Ms (DLC: Jefferson Papers). In JM’s hand. Dated 1807 in the Index to the Thomas Jefferson Papers. Conjectural date here assigned on the assumption that JM began making these notes after receiving the manuscript sent him by Jefferson on 9 Aug. and before Jefferson visited Montpelier on 13 Aug. (see Jefferson to JM, 9 Aug. 1810).

1In his memoir on the batture, Jefferson described the circumstances leading to a cabinet meeting on 27 Nov. 1807 at which the attorney general advised him on the dispute between Edward Livingston and the city of New Orleans over the ownership of, and access to, the batture. Jefferson seems to have first written “On the facts before stated it became our duty to enquire, What was the law? And if not”; but he later deleted it and substituted: “We took of the whole case such views as the state of our information at that time presented. I shall now develope them in all the fulness of the facts then known, & of those which have since corroborated them” (cf. Lipscomb and Bergh, Writings of Jefferson description begins Andrew A. Lipscomb and Albert Ellery Bergh, eds., The Writings of Thomas Jefferson (20 vols.; Washington, 1903-4). description ends , 18:30).

2At this point in his manuscript Jefferson had embarked on a lengthy history of the French and Spanish law in Louisiana in order to answer his query about “what system of law” was to be applied to the case (ibid., 18:30–35). He placed a check mark in the margin of JM’s notes to indicate that he had taken the point into consideration.

3JM was evidently objecting to a note in which Jefferson sought to demonstrate that Roman law had served as a form of natural law to supplement French feudal law and therefore that elements of Roman law had been transplanted to Louisiana. Jefferson let the note stand (see ibid., 18:35).

4Jefferson took exception to those sections of J. B. S. Thierry’s pamphlet on the batture (see PJM-PS description begins Robert A. Rutland et al., eds., The Papers of James Madison: Presidential Series (2 vols. to date; Charlottesville, Va., 1984-). description ends , 1:359 n. 1) where Thierry conceded that Spanish law in Louisiana had given alluvions to the riparian proprietor (see Lipscomb and Bergh, Writings of Jefferson description begins Andrew A. Lipscomb and Albert Ellery Bergh, eds., The Writings of Thomas Jefferson (20 vols.; Washington, 1903-4). description ends , 18:49).

5JM referred to Jefferson’s efforts to adduce linguistic arguments in support of his claim that Roman law conferred alluvion rights on only rural, and not urban, proprietors of river banks (see ibid., 18:61–65).

6To advance the argument that the Mississippi deposits claimed by Livingston were not covered by any laws relating to alluvion rights, Jefferson claimed that the land in question might be more properly considered as a beach—the area “which lies between the high & low water marks.” Jefferson noted that the terms in New Orleans for such a beach were “batture, & sometimes platin,” and he suggested that the latter may have derived, among other possibilities, from the Greek “percuture.” In the margin opposite JM’s remark, Jefferson indicated with a check mark that he had noted JM’s point, and he may have added to his manuscript: “Perhaps however from plat, Fr. for flat” (see ibid., 18:71).

7Here Jefferson surveyed some complex arguments comparing the Mississippi and the Nile rivers to see how far laws governing the bed and the banks of the latter might be applicable to the former. He finally settled for the simpler statement that the bed of a river indisputably belonged to the sovereign of a nation and that for as long as the bed was “occupied by the river, all laws, I believe, agree in giving it to the sovereign; not as his personal property, to become an object of revenue or of alienation, but to be kept open for the free use of all the individuals of the nation.” JM seems to have been indicating his preference here for the latter argument (see ibid., 18:79–85, esp. 84–85).

8For Jefferson’s citation of a multiplicity of authorities demonstrating that the bed of the Mississippi belonged to the nation and that the public had navigation rights on the river, see ibid., 18:85–92.

9After his demonstration that Livingston had no claim either to own or to develop the batture, Jefferson defended at great length the “natural right” of both men and governments to repossess property taken by force or fraud (ibid., 18:104–10).

10Here Jefferson was asserting that there could be no restraint on a government exercising a “natural right” to repossess property and that the “US. cannot be sued” (ibid., 18:107–15).

11In defending the decision of his administration to evict Livingston from the batture, Jefferson wrote that after weighing the evidence then available, “⟨the four heads of departments with the attorney general⟩ were unanimously of Opinion, ⟨and in the same opinion I entirely concurred⟩ that we were authorized, & in duty bound, without delay to arrest the aggressions of mr. Livingston on the public rights.” Noting JM’s objection with a check mark in the margin, he deleted from his manuscript the phrases in angle brackets and wrote instead: “we were all unanimously of Opinion, that …” (see ibid., 18:116).

12Livingston had obtained an injunction against his eviction from the batture in January 1808, but Jefferson argued that the injunction was not “authoritative,” as it was a chancery process and “no Chancery jurisdiction has been given by any law to the Superior court of [Louisiana] territory” (see ibid., 18:117–18).

13In the margin opposite JM’s comment, Jefferson placed a check mark and wrote “pa. 28.” to refer to the section of his manuscript where he had already discussed the point that “the equity on which the right of alluvion is founded is, that as the owner of the field is exposed to the danger of loss, he ought, as an equivalent, to have the chance of gain.” Jefferson denied that the principle applied in Livingston’s case (see ibid., 18:67).

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