The Writings of Thomas Jefferson, Vol. 8 · Thomas Jefferson
THE BATTURE AT NEW-ORLEANS.
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, and 50 in depth, was sold to Pradel; but how these 7 arpents, like Falstaff's men in buckram, became 12 in the sale of the widow Pradel to Renard, [Report 7.] 13 in Gravier's inventory, and nearly 17, as is said Derb. viii. ix. in the extent of his fauxbourg, the plaintiff is called on to show, and to deduce titles from the crown, regularly down to himself. 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, and in '96 he added 3 ranges more, establishing them as a Fauxbourg, or Suburb to the city. That this could not be done without permission from the government may be true; and no formal and written permission has been produced.
Whether such an one was given and lost in the fire, or was only verbal, is not known. *But that permission was given must be believed, 1. From Gravier's declaration to Charles Trudeau the surveyor, which must operate as an Estoppel [Report 45.] against all contrary pretensions in those claiming under him. 2. From Carondelet's order to Trudeau, first to deposit a copy of the plan in the public archives, and afterwards an order for a second one to be delivered to himself, which implied necessarily that he had consented to the establishment; but more especially when B. Gravier relying on this establishment as freeing him from the repairs of the bank, the Governor declared 'it was true and that Gravier was right.' 3. From the records of the Cabildo, or town council, with whom the Governor sat in person, showing that at their sessions on the 1st day of January annually, for regulating the police of the city, a Commissary of police for the new quarter was regularly appointed from the year 1796, till the United States took possession. The actual settlement of the ranges next the river, and the addition of the new ranges, now probably rendered that necessary.
Bertrand Gravier proceeded to sell the lots of his new Fauxbourg, 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 affirmed, [Examen 13. Poydras 7. and 18. Thierry 39.] that almost all, if not all the deeds, used the same expression. [See notarial copies of the deeds of B. Gravier to Nicholas Gravier, and of Nicholas Gravier to Escot, Girod, *Wiltz.] Bertrand Gravier himself, on all occasions, [Pieces Probantes 9. 21. 28. 30. Livingston 59. Monile's deposition, MS.] declared that he had sold his lots 'faisant face au fleuve,' and had passed to the purchasers his right to the _devanture_, meaning every thing in front of his lots. Whatever extent then towards the river, passed to the Jesuits by the term 'face au fleuve,' or from the king to the purchasers of the Jesuit's property, under whom B. Gravier claimed, the same extent was, by the same expression,'face au fleuve,' or 'frente al rio,' passed by Bertrand Gravier to the purchasers of the front lots.
Yo Don Beltran Gravier vendo a Don Nicholas Gravier cinquenta y ocha terrenos situados en esta dicha ciudad, extramuros de la puerta de Chapitulas, à saver, _trece haciendo frente al rio_, Missisipi, y lindando por el lado de abaxo, que es de esta dicha ciudad, con terreno de Don R. Jons, y por el de arriba con otros de Don J. B. Sarpy, &c. Y los _quarenta y cinco terrenos restantes_ completa a los cinquenta y ocho, que quedan indicados, comenzan sobre el limite de la primera calle, formande una linea directa à empezar por el terreno que se halla detras del de Don J. Poydras, todo conforme al plano que, delineado por Don C. L. Trudeau, hé entregado al comprador para su inteligencia* y resguardo: però con la condicion de que me reservo el derecho de tomar la tierra que necessitaré para mi fabrica de ladrillos, extension de los nominados tres terrenos que hacen frente al dicho rio.
The first part of this description is of the 13 lots, to wit, that they front the river. The second part relates wholly to the remaining 45 lots, which begin beyond or above the first street in a straight line from the lot behind Poydras', and refers to the plan to show their position more particularly as back lots, behind the front range. It is to be noted that the public way in front of the fauxbourg is not a street: it is the same chemin royale, royal road, which has existed from early times, and has never been merged in the character of a street. Nothing can prove more clearly, that this reference to the plan was not to give a front line to the 13 lots, than that the same deed reserves the right of digging earth on the batture beyond that line. Now if nothing was meant to be conveyed _beyond_ the front line marked in the plan, why reserve a right to dig earth on the batture, which is _beyond_ that line? And that Nicholas Gravier, Escot, Girod and Wiltz did not consider this line as the limit of their rights, appears from their deeds conveying the _batture_ expressly by that name, with the lots themselves.
On the whole, we see here a curious specimen of tergiversation in reasoning. When urged that the grant to the Jesuits, and to Bertrand Gravier, though expressed to be 'face au fleuve,' must still have stopped at this line or edge of the royal road, it is answered that those terms convey to the water edge, and make it an 'ager arcifinius,' to which the right of alluvion appertains. But when Bertrand Gravier conveys to his purchasers 'face au fleuve,' they turn about and say that the same identical words 'face au fleuve,' convey now only to this same line or edge of the royal road, which they overleaped before, and make the grounds conveyed an 'ager limitatus,' to which the right of alluvion does not appertain. It is perfectly equal which of the meanings is ascribed to these words. Only give them the same in both instances, and say which. If these words make the road your boundary, you never had a right to the batture beyond it. If they extend to the river what was conveyed to _you_, they extend to the river also what was conveyed _from you_. Will it be pretended that, after establishing his town, Bertrand Gravier could then have sold the streets to others? and yet he might, a fortiori, having not included them in any deed. But does not common sense and common honesty *proclaim that the establishment of his town, and sale of the lots, implied a relinquishment to the inhabitants of the communications of streets and shores adjacent, as a common, which are the necessary and constant appendages of every town? The express conveyance then of his riparian rights, and the implication as to them and the streets, are believed to be conclusive to show that the plaintiff having had no right, can have sustained no wrong.
By the civil law, if an heir accepts the inheritance, he is considered, not merely as the representative, but as continuing the person of the ancestor himself, is answerable for all his debts, and out of all his property, as well his own, as* what he had newly acquired by the inheritance. Time, therefore, was allowed him to inform himself of the condition of the estate and debts, during which it was considered as an hæreditas jacens, vested in nobody. If he declined taking the inheritance simply as heir, he was allowed to take it as purchaser, or in their language, as heir with the benefit of inventory: whereupon an inventory and appraisement of it took place, and he had the preëmption at the appraised value. He was then liable to no more debts than the amount of the appraisement; and if there was a surplus of the appraised value over and above the debts it was his, if a single heir, or partitioned among the co-heirs, as parceners, if there were more than one. Brown. civ. law, I. 218. 302. Kaim's law tracts, 389. Gibbon's c. 44. 153. Bertrand Gravier is understood to have left France indebted and insolvent: and John Gravier, therefore, either knowing, or ignorant of the amount of the debts, chose on behalf, or perhaps in defraud, of the co-heirs, to decline the inheritance, and to take the estate as a purchaser by inventory and appraisement. It was inventoried and appraised. 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 its 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 thirteen arpents of land, of which the habitation is estimated, including the garden, of which the most useful part is taken off in front, the residue consisting of the lowest part, [to wit, that descending back to the bayou,] the side being sold to Navarro, one Percy, and the negro Zambo, a portion of which, &c. estimated at 190 D. the front acre, with all the depth, which makes 2470 D.' Then follows the adjudication, which adjudges to John Gravier 'the effects, real estate, moveables and slaves _which have been inventoried_ as belonging to the estate of his deceased brother Bertrand Gravier, &c. Report 9. 10. We see, then, that no lands were inventoried but the thirteen arpents in front, composing the inhabitation. And it is impossible that that term should be meant to include the beach of the river, cut off from it by the intervention of the whole Fauxbourg of seven ranges of squares; or that they should not have used a more obvious expression, if the idea of the beach had been in their minds. Nobody could consider these two parcels, distant and disjointed as they were, as being one parcel only, one habitation.
No man having two farms, or two tracts of land, separated by the lands of others, would expect that by devising or conveying one, the other would *pass also. In fact, at that time, neither John Gravier nor any one else, considered the beach as any part of Bertrand Gravier's estate: and in the appraisement, they estimate the front arpents, (that is, fronting on the fauxbourg,) with all their depth to the bayou, at 190 dollars, the front arpent; contemplating clearly only what was between the fauxbourg and bayou. Accordingly Fernandez, acting for the Depositor General, the legal officer in those cases, swears that he took charge and possession of all the estate according to the inventory which had been made from the 28th of June to the 4th of July, 1797; that, in that inventory, the batture never was mentioned, or heard of, as property of Gravier, nor in charge of the Depositor, and that, on delivering the estate to John Gravier, the batture never was spoken of.
It is equally certain that had there been an idea that they were smuggling the batture away, through these proceedings, the citizens of New-Orleans would not have been so silent, nor the Governor, the Cabildo and other Spanish authorities so passive, when so active on all former occasions respecting the batture: and that had the batture been under the view of the appraisers, instead of estimating it at 2470 dollars, conjointly with other thirteen arpents, a very different sum must have been named. The batture alone is now estimated at half a million of dollars. But the truth is, that neither John Gravier, nor any one else, at that day, considered it but as public property. And for six years ensuing, he never manifested one symptom of ownership; until Mr. Livingston's arrival there from New-York, with the wharves and slips of that place fresh in his recollection. The flesh-pots of Egypt could not suddenly be forgotten, even in this new land of Canaan. Then John Gravier received his inspiration that the beach was his; and is tempted, by one kind of bargain after another, to try his fortune with it. It was only to lend his name, and receive a round sum if anything could be made of it.
To get over the palpable omission of it in the inventory and appraisement, they find a man whose recollection is exactly à propos; a Henry Parisien, a comedian by profession, and a joiner by trade. He had been one of the appraisers, 10 years before, and recollected, and so swore that he had '_walked on the batture_, before the closing of the appraisement to ascertain its extent, and be the better able to judge of its value, and that it was through forgetfulness that _it had not been taken into the estimate_.' Piecès Prob. 33. It happens that nature bears witness against him. From the 20th of June to the 4th of July is within the period of high waters; and it is proved that, at the very time of the appraisement, the river was still overflowing, and the batture covered with water: *the journals of the sawmills further attest that they did not cease to work till the 25th of August of that year; and when the waters of the river are sufficiently low to stop the mills, all the battures are still covered with water. P. Pr. 34. However even this Henry Parisien swears, '_that the batture was not in the estimate_, and that it was through forgetfulness that it was not.' Examin 19. Rep. 21. Pi. Prob.
33. No matter through what cause, it is enough that it was _not in the inventory or estimate_, and of course not sold to J. Gravier. This corroborates the testimony of the Depositor, that he neither had it in his charge, nor included it in the estate sold and delivered. J. Gravier must therefore, as to this part of his brother's estate, if his it were, recommence his work, by having a new inventory, appraisement and adjudication. But to repel the present proceeding, it suffices that having made his election to take, not as heir, but purchaser, this beach is not yet his; it is still an hæreditas jacens, and before he can convey it to Mr. Livingston, he must get it by a new process, and make a third bargain. [Sidenote: 13*] [Sidenote: Bigarre.] [Sidenote: 14*] [Sidenote: Decision of Court.] [Sidenote: Alarm occasioned.] [Sidenote: Servitude of road.] [Sidenote: 15*] [Sidenote: 16*] [Sidenote: U. States no party.]
We will proceed further to trace the history of this acquisition of the batture, by the plaintiff, who writes a letter of lamentations to some member of the government, on the 27th of June, 1809. That 'Congress will probably adjourn without coming to any decision on the subject of my removal by the late president of the United States from my estate at New-Orleans.' A most ungrateful complaint; for had he not been removed, he must, at the time of writing this letter, have been, as his estate was, some 10 or 12 feet under water; the river being then at its greatest height. And when was this notable discovery made, that the beach of the river was the separate and exclusive property of J. Gravier, clear of all public right to its use? Let us hear the Governor, in answer to this question. In a letter to the Secretary of State of October 13, 1807, he says, 'early after the arrival of Mr. Livingston in this territory, he became concerned in the purchase of a parcel of ground fronting the fauxbourg of this city, commonly called the batture, a property which had been occupied as a common by the city for many years previous, and the title to which, in the opinion of the inhabitants was unquestionable.'
The day[82] of the arrival of Mr. Livingston in New-Orleans I do not know; but I recollect he was one of the earliest emigrants to that country, which was ceded to the United States on the 30th of October, 1803. We are told, [Rep. 11. Thierry 5.] it was proved by some oral testimony that J. Gravier _began_ an inclosure of 500 feet square in that year, and completed it in the next. The day *of beginning is not stated; but we may safely presume it was not while the French Governor thought the country belonged to his master, and most probably not till after 'the early arrival of Mr. Livingston.' This enclosure was demolished by an order of the Cabildo of Feb. 22, 1804.[83] The next step was to make an ostensible deed, to an ostensible purchaser,[84] a Peter de la Bigarre, a brother emigrant of Mr. Livingston's from New York, some old acquaintance. This was dated March 27, 1804, is expressed to be in consideration of 10,000 dollars, and conveys two undivided thirds of all that part or parcel of land, situate on the bank [sur la rive] of the river Missisipi, between the public road and the current of the said river, &c. with a warranty.
I call the purchases ostensible, because notwithstanding his pretended purchase, J. Gravier, on the 20th of October, 1805, [Rep. 1.] commenced a suit against the city, as proprietor of the whole, and the court adjudged him proprietor of the whole; and because the same J. Gravier, [Poydr. 3.] by a deed to the same P. de la Bigarre, in which no mention was made of the former, or reference to it, conveys to him on the 14th Dec. 1806, the batture Ste. Marie, along the whole limits of this land, between the road and river, on condition that he shall pay all expenses of the suit depending, with 50,000 dollars in addition; that the property shall remain unsold and hypothecated for the purchase money till paid, and that if the law-suit fails, the sale is void, and Bigarre to pretend to no damages for non-execution. It is observable here that neither buyer or seller risked anything.
It was a mere speculation on the chance of a law-suit, in which they were to divide the spoils if successful, and to lose nothing if they failed.[85] It was by our law a criminal purchase of a pretense title, 32. H. 8. 9. and equally criminal by the law of that territory, where I presume the provision of the Roman law is in force, 'qui improbè coeunt in alienam litem, ut quidquid ex condemnatione in rem ipsius redactum fuerit, inter eos commnnicaretur, lege Juliâ, de vi privatâ, tenentur.' Dig. 47. 8. 6. 4 Blackst. 135. 'Whosoever shall take part in the suit of another, so that whatever shall be recovered by the judgment is to be divided between them, shall be subject to the Julian law, de vi privata.' By which law, ib. tit. 7. § 1. they were to lose one third of their goods, and be rendered infamous. The deed was not only criminal on its face, but was void by an express law of the territory, [a law of Governor Unzaga. Poydras 6. Rep. 25.] and so pronounced to be on the floor of Congress *by their representative, because not executed before either witnesses or notaries.
It was kept secret from its date, till the day before judgment was pronounced, when the parties becoming apprised of the decision which was to be given, (for this was known at least on the 20th of May,) [Governor Claiborne's letter May 20, '07,] produced it, for the first time, to the Notary to be recorded. And the day after its publication, the court, by the opinion of two members against one, [Examen 3.] adjudged the property wholly to the very man, who, if he had ever had any right, had conveyed away two thirds of it, before he brought his action, and the whole while it was pending. The alarm which this adjudication produced was immediate and great. The fact was notorious that, from the earliest to the latest extension 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 their riparian possessors. If any fact was ever proved by human testimony, this is.
Turn to the Pieces Probantes, and out of 29 affidavits of the oldest and most respectable persons in the territory, men who had, most of them, borne offices under their former government, 21 of them uniformly declare that the public had ever been considered as having a right to the beach, as their port and Quai, that, as such, the Governors and Cabildo had the constant care and control of it, had demolished buildings and enclosures erected on it, had, by public Ban, prohibited all erections or obstructions to its use, had themselves erected a rampart, to inclose within it a chamber accessible for earth at high water for rebuilding the city after the fire, and exercised uninterruptedly every other act of authority derived from the public rights; and 11 of them prove, as far as a negative can be proved, that the Graviers, till the change of government, and new views by 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 and Cabildo over it. While they held the adjacent plantation indeed, they maintained the road and bank, as all rural proprietors are obliged by[86] law to do: for here it is proper to observe, that pursuing the spirit of the Roman law, which prescribed that every one should maintain the public road along his own dwelling, 'construat vias publicas unusquisque secundum propriam domum.' Dig 43. 10. 3. The lands in Louisiana were granted generally on a condition, (called in those days *_servitude_,) of furnishing ground for a public road, and of opening and maintaining that road. From which condition, however, they were released as to any portion of the ground which should afterwards become a town; the expense of roads or streets of that portion devolving then on the town itself.
Accordingly B. Gravier, after establishing the front of his plantation into a suburb, and thus cutting off the residue from the road and river, being[87] 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, and that the road and levee could not be at his expense, the Governor correcting himself at once, says, 'Gravier is right, all this is true,' and immediately, and 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 site of the city from maintaining the banks of the city. This is declared by an host of witnesses in the Pieces Probantes, and probably could have been declared by every ancient inhabitant of the place. We are told indeed by Laroche and Segur, in their affidavit, [Livingston 66.] of Carondelet, and some other Governor asking leave of Gravier in 1795 and 1798, to deposit masts on the beach.
If this be true, which Mr. Thierry, [p. 42.] who knew the witnesses, treats as ridiculous and absurd, it shows that they were forgetful, or inconsistent, or over complaisant; but not that Gravier required, or expected to be asked; and much less could it divest a public right, acknowledged from the earliest times, and essential to the commerce and existence of the city. An accurate discrimination indeed between the measure of right in the riparian proprietor while he held the adjacent farm, in the individuals of the nation as usufructuaries, and in the sovereign as their representative and trustee, as respectively apportioned to them by the law, seems not to have been attended to either by the citizens at large, or the adjacent proprietors. The riparian possessor appears to have been sensible he had some rights, without distinctly understanding what they were: but, whatever they were, he knew he had parted with them by the deeds establishing his fauxbourg.
Ideas discussed in this chapter
Text from Project Gutenberg, public domain in the United States.