The Writings of Thomas Jefferson, Vol. 8 · Thomas Jefferson
THE BATTURE AT NEW-ORLEANS.
The citizens, in the daily habit of using without control the port and Quai, imagined themselves exclusive proprietors of its soil, and came forward in that capacity, claiming, sometimes under some vague title which they did not define, and sometimes under the abandonment of right by Bertrand Gravier; *the Sovereign, formerly their kings, but now the United States the legal holder of the public rights in the beds, beaches and banks of all navigable waters, seems not to have been thought of at all in the contest. The United States were no party to the suit; nor could they be, having made themselves _amenable_ to no tribunal. Their property can never be questioned in any court, but in special cases in which, by some particular law, they delegate a special power, as to the boards of Commissioners, and in some small fiscal cases. But a general jurisdiction over the national demenses, being more than half the territory of the United States, has never been by them, and never ought to be, subjected to any tribunal. Not adverting to this circumstance, however, the consternation in New-Orleans, on this decision, was like that of Boston, on the occlusion of their port by the Boston port bill. If we have not forgotten that feeling, we may judge what the citizens of New-Orleans felt on this decree of the court.
The governor instantly writes, [letter of May 20, '07.] 'I understand that this morning an important cause has been determined, in which Edward Livingston was the _real_ plaintiff, and the city defendant, as to the right of property to some lands in front of the fauxbourg, made by the river, and over which the city has heretofore exercised a right of ownership. My impression is that the United States are the legal claimants to it.' On the 21st of August, 1807, Mr. Derbigny's opinion was published, [Thierry 5.] and first brought into view the right of the United States, and that the sentence of the court must of course, as to them, be a mere nullity, 'res inter alios acta, quæque aliis non potest præjudicium facere.' A thing passing between others, and which to no others can do prejudice. Codex. 7. 60. And coming, with respect to the United States, under the provisions of the same code. Tit. 56. 'Si neque mandasti fratri tuo defensionem rei tuæ, neque quod gestum est ratum habuisti, præscriptio rei judicatæ tibi non oberit: et ideò non prohiberis causam tuam agere, sine præjudicio rerum judicatarum.' 'If you have not committed to your brother the defence of your right, nor sanctioned what has been done, the plea _rei judicata_ shall not bar you: and therefore you shall not be precluded from conducting your own cause, without exception from a former decision.'
Presuming, however, that the coast was now clear, and the question finally settled, the ostensible actors withdrew, and their principal comes forward, is put into possession by the Sheriff, and begins his works. The Governor, in his letter of Sept. 3, 1807, says, 'a few days since, [Aug. 24.] Mr. Livingston employed a number of negroes to commence digging a canal which he projected to take in a part of the land called the batture. But the citizens assembled in considerable force and drove them off. On the day following he went in person, but was again opposed by the citizens. The minds of the people were much agitated. The opposition is so general that I must resort to measures the most conciliatory, as the only means of avoiding still greater tumult, and _perhaps much bloodshed_. I have not issued a proclamation because it might make an impression in the United States that the people are disposed for insurrection, which is not true. My opinion is that the title is in the United States. If the batture be reclaimed, it is feared the current of the Missisipi will in some measure change its course, which will not only prove injurious to the navigation, but may occasion degradation in the levees of the city, or those in its vicinity.'
To abridge our narration by giving the substance of the communications. The people assembled the next day about the same hour, and for several days successively, by beat of drum. [Livingston's letter of Sept. 15. '07.] On Monday the 31st of August, Mr. Livingston recommenced his work, after having given notice that he should do so. He began about 10 o'clock, A. M. and about 4 or 5 o'clock in the afternoon the people assembled again and drove off his labourers. On the 14th of September he again attempted to work, getting two constables to attend his labourers. The people drove them off, and the constables having noted on a list some of those present, they seized them, took the list and tore it to pieces. [Sheriff's letter.] On the next day he writes to the Governor that he shall set his labourers to work again that day at 12 o'clock, 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 labourers there. In the afternoon the people re-assembled to the number of several hundreds. The governor repaired there and 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, and the great injury which would result to the inhabitants if the land should be built upon and improved. And another declaring that they wished the decision of Congress, and in the mean time, no work to be done on the batture, there was a general exclamation from the crowd, 'that is the general wish,' followed by a request that they might nominate an agent to bear to the President of the United States, a statement of their grievances, and that the Governor would recommend the agent to the government. He said he would do so, and they nominated Col. Macarty, by general and repeated acclamations. They then withdrew in peace to their respective homes, and on the 16th the Governor expresses the hope that this unpleasant affair is at an end, that everything is then quiet, and the public mind much composed: that some of his hot-headed countrymen censured the mild course which was pursued, and would have been better pleased if the _military_ had been called upon to disperse the assemblage.
But I feel, says he, that the policy adopted was wise and humane, and that a contrary conduct would have increased the discontents, and _occasioned the effusion of much innocent blood_. The Louisianians, he adds, are an amiable, virtuous people, but sensibly feel any wrongs which may be offered them. Mr. Livingston is alike feared and hated by most of the ancient inhabitants. They dread his talents as a lawyer, and hate his views of speculation, which in the case of the batture was esteemed very generally by the Louisianians no less iniquitous, than ruinous to the welfare of the city.' The governor says in another letter of October 5, to the Secretary of state, that in a progress he made a few days afterwards through several parishes of the territory, he perceived but one sentiment with respect to the decision of the court. The long and uninterrupted use of the batture by the city, the sanction given by the Spanish authorities to the public claim, and the heavy public expenditures in maintaining the levee which fronts it, seem to have given rise to a very general opinion that the court has been in error in deciding the batture to be private property.
On the 13th of November he again writes, 'I should be wanting in duty did I not earnestly recommend the subject of the batture to the attention of the government. There is no doubt but the agents of Spain considered it as a public property, and did appropriate the same to the use of the city, as a common. I should presume that, under the treaty, the United States may justly claim the batture, and if any *means can be devised to arrest the judgment of the territorial court, or to carry this case before another tribunal, the earlier they are resorted to, the better; for Mr. Edward Livingston is now in possession of the property, and _making improvements thereon_.' And the next day, Nov.
14, a grand jury of the most respectable characters of the place gave in a presentment to the court in which they say, 'We present as a subject of the most serious complaint the present operations on the batture by Edward Livingston and others connected with him: that this is from 4 to 6 months of every year a part of the bed of the river, and an important part of the port of New-Orleans: that these operations of Edward Livingston are calculated to obstruct the free navigation of the river, to change the course of its waters, to deprive our western brethren, whose only market for the produce of their extensive territory, is to be found in this city, of the deposit which has hitherto remained free to them, and not only of incalculable importance, but of absolute necessity. Whether it be private or public property, is immaterial, so long as the laws do not permit such use of it as to injure and obstruct the navigation: and we present it as our opinion that all such measures should be taken as are consistent with law to arrest these operations which are injurious for the present, and, in changing the course of the river, are hazardous in the extreme.'
We find Mr. Livingston then, 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 territory until the National government should decide. In the latter end of the same year, [Surveyor's Rep. to Mayor, Dec. 28, '08.] he opens a canal from the bank directly through the beach into the river [88]276 feet long, 64 feet wide, and 4 feet 2 inches deep at low water, and with the earth excavated he forms a bank or quai, on each side, 19 feet 6 inches wide, from 4 to 6 feet high above the level of the batture, and faced with palisades. Within one year after this, what had been anticipated by the Governor, the grand jury and others, had already manifested itself. In Dec. of the ensuing year, 1808, [See Surveyor's rep. Dec. 28, '08.] 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 showed itself, on the decrease of the river, were such as had, the year before, been navigable at low water. [Mayor's *answer to Governor, Nov. 18, '08.] 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 feet further into the river, and risen from 2 to 5 feet 10 inches generally, and more in places, as a saw scaffold which, at the preceding low tide, was 7 feet high, was now buried to its top; and Tanesse, the Surveyor, [See his affidavit, MS.] in his affidavit says he does not doubt that these works have produced the last year's augmentation of the batture, at the expense of the bed of the river, have occasioned the carrying away a great part of the platin or batture of the lower suburbs, and breaking the levee of M. Blanque next below, and 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, [See his 3d affidavit, MS.] that they would produce changes in the banks of the river, on both sides, prejudicial to the city, and riparian proprietors, by directing the efforts of the river against parts not heretofore exposed to it. And Mr. Poydras tells us, [p. 20 of one of his speeches,] that when the river is at its 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 wide, having an annual tide of 12 to 14 feet rise, which brings the water generally to within 8 or 10 inches, and sometimes 2 or 3 inches, of the top of the levee, insomuch that it splashes over with the wind, [See Peltier's, and Tanesse's affidavits, MS. and also the maps,] were the channel narrowed 250 yards, as Mr. Livingston intends, that is to say, a fourth or fifth of its whole breadth, the waters must rise higher in nearly the same proportion, that is to say, 3 feet at least, and would sweep away the whole levee, the city it now protects, and inundate all the lower country. [Sidenote: 21*] [Sidenote: Cabinet deliberation.]
Thus urged by the continued calls of the Governor, who declared he could not be responsible for the peace or preservation of the place, by the tumult and confusion in which the city was held by the bold aggressions of the intruders on the public rights, by the daily progress of works which were to interrupt the commerce of the whole western country, threatened to sweep away a *great city and its inhabitants, and lay the adjacent country under water, I listened to the calls of duty, imperious calls, which had I shrunk from, I should have been justly responsible for the calamities which would have followed. On the 28th of October, '07, the Attorney General had given his opinion, and on the 27th of November, I asked the attendance of the heads of the departments, to whom the papers received had been previously communicated for their consideration. We had the benefit of the presence of the Attorney General, and of the lights which it was his office to throw on the subject. 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, and of those which have since corroborated them. [Sidenote: What law?] [Sidenote: Proclamation of O'Reilly.]
Their laws are subject to be changed only in the case, and extent which their new legislature shall will. The changes introduced by Spain, after 1769, were chiefly in the organization of their government, and but little in the principles of their jurisprudence. The instrument which some have understood as suppressing the French and introducing the Spanish code, is the proclamation of O'Reilly of November 25, 1769, two months after the actual delivery of the colony. [See appendix to documents communicated to Congress by the President, with his message of October 17, 1803.] The transfer of the country, however, had been announced to the people five years before. Now surely, during these five years the *French laws must have continued entire, and of course after them, so far as not altered. And that this proclamation made specific only, and not general alterations, a brief examination of its tenor will evince. It begins by charging the late council with a participation in the insurrection which had taken place, and by declaring it indispensable to abolish that, and to establish the _form_ of politic government and administration of justice prescribed by the wise laws of Spain. But a _form_ of government may surely be changed, and the mass of the laws remain the same, as took place in our revolution.
He proceeds then to establish that _form of government_, _dependence_ and _subordination_, which should accord with the good of the service, and happiness of the colony. For this purpose he substitutes a Cabildo, in place of the ancient council, and instead of former analogous officers, he says there shall be Alferes, Alcades, Alguazils, Depositors, Regidors, a Scrivener, Procurator, Mayordomo, &c.; adopting thus the Spanish instead of the French organization of officers, for the administration of the laws. He changes the manner of proceedings in judicial trials, and of pronouncing judgments, according to a digest made by Unestia and Rey, by his order, _until_ a general knowledge of the Spanish language and more extensive information on the statutes themselves might be acquired; prescribes rules for instituting actions by parties, of different denominations, the names and substance of the pleadings, rules for appearances, answers, replications, rejoinders, depositions, witnesses, exceptions, trials, judgments, appeals, executions, testaments, probates, advancements, and distributions: not changing the great outlines of the law, or the ratio decidendi generally; but merely the organization of officers, and forms of their proceeding.
He states also the criminal law, what it is in sundry cases of irreligion, treason, murder, theft, rape, adultery, and trespass, proclaiming mostly what was already law; lastly, he establishes the fees of officers, and with that closes the proclamation, without a word said about abolishing the French, and substituting the Spanish code of laws generally. As far then as this instrument makes any special changes, its authority is acknowledged. But the very act of making special changes is a manifestation that a general one was not then intended. He did not mean by this instrument to change 'all and some.' One may indeed conjecture, from loose expressions in the instruments, that a more extensive change was in contemplation for some future time, when the inhabitants, as it says, should have acquired a general knowledge of the Spanish language. But _until_ then expressly, and in the interim, the innovations it specifies are the only ones introduced. The great system of law which *regulates property, which prescribes the rights of persons and things, and sanctions to every one the enjoyment of those rights, is left untouched, in full force and authority. If such a radical change were really meditated, it was never carried into execution; nor seems at any after time to have occupied seriously the attention of government.
In the following year 1770, O'Reilly issued an additional ordinance respecting grants of lands; and Carondelet, in 1795, (26 years after the possession of the colony, and a year only before its transfer to us,) passed an ordinance of police, concerning bridges, roads, levees, slaves, coasters, travellers, arms, estrays, fishing and hunting; and these three acts seem to constitute the whole of the changes made in the established system of laws during the Spanish occupation of the country. Probably the Spanish authorities found, in the progress of their administration, that the difference between the French and Spanish codes, taken both from the same Roman original, would not justify disturbing the public mind, by a formal suppression of the one, and substitution of the other. Probably the officers themselves, not adepts in either, and partly French, and partly Spanish individuals, confounded them in practice as they found convenient; and hence the ill-defined ideas of what their laws were. But certainly when we appeal, as in the present case, to exact right, the French code is the only one sanctioned by regular authority; and the special changes before mentioned, of organization and police, having no relation to the beds and increments of rivers, that code is to give us the law of the present case.
That code, like all those of middle and southern Europe, was originally feudal, [Encyclop. Method. Jurisprudence. Coutume. 400.] with some variations in the different provinces, formerly independent, of which the kingdom of France had been made up. But as circumstances changed, and civilization and commerce advanced, abundance of new cases and questions arose, for which the simple and unwritten laws of feudalism had made no provision. At the same time, they had at hand the legal system of a nation highly civilized, a system carried to a degree of conformity with natural reason attained by no other. The study of this system too was become the favorite of the age, and, offering ready and reasonable solutions of all the new cases presenting themselves, was recurred to by a common consent and practice; not indeed as laws, formally established by the legislator of the country, but as a RATIO SCRIPTA, the dictate, in all cases, of that sound reason which should constitute the law of every country.[89] Over both of these systems, however, the occasional* edicts of the monarch are paramount, and amend and control their provisions whenever he deems amendment necessary; on the general principle that 'leges posteriores priores abrogant.'[90] Subsequent laws abrogate those which were prior. This composition of the French code is affirmed by all their authorities. One only of them shall be particularly cited, to wit, Ferriere Dict. de droit. Ordonnance.
This system of law was transferred to Louisiana, as is evinced by the [91]charter of Louis XIV. to Crozat, bearing date the *14th of Sept. 1712. The VIIth article of that is in these words. 'Our edicts, ordinances and customs, and the usages of the Mayorality and Shreevalty of Paris, shall be observed for laws and customs in the said country of Louisiana.' The customary law of Paris seems to have been selected, because considered as the best digest, and that to which it was proposed to reduce the customary law of all the provinces. Enc. Meth. Jurispr. Coutume. 405. This is the first charter we know of which established the boundaries and laws of Louisiana. It says nothing of the Roman law; but that, having become incorporated, by usage, with the customs of Paris, and constituting, as a supplement, one system with them, seems to have been considered as of their body, and transferred with them to Louisiana.[92] In 1717, Crozat transferred his rights to the Compagnie d'Occident, at the head of which was the famous Law, 8. Raynal. 166. [edit. 1780.] which again in 1720, by union with others, became the Compagnie des Indes, who in 1731, surrendered the colony back to the king. 1. Valin, 20. But these various transfers from company to company, of the monopoly of their commerce, for that was the sum of what was granted them, and their final surrender to the king, could not affect the rights of the people, nor change the laws by which they were governed. When they returned to the immediate government of the king, their laws passed with them, and remained in full force until, and so far only as, subsequently altered by their legislator. That this was the sense of their *government may be inferred from a clause in the edict creating the Compagnie des Indes Occidentales, art. 34.
'Seront les juges établis en tous les dits lieux tenus de juger suivant les lois et ordonnances du royaume, et les officiers de suivre et se conformer à la coutume de la Prevôté et vicomté de Paris, suivant laquelle les habitans pourront contracter, sans que l'on y puisse introduire aucune autre coutume, pour éviter la diversité. 1. Moreau de St. Mery, 100. 'The judges established in all the said places shall be held to adjudge according to the laws and ordinances of the kingdom, and the officers to follow and conform themselves to the customs of the Prevôté and vicomté of Paris, according to which the inhabitants may contract, without that any other custom may be introduced, to avoid diversity.' 1. Moreau de St. Mery, 100. [Sidenote: Alluvion.]
Ideas discussed in this chapter
Text from Project Gutenberg, public domain in the United States.