Jefferson, Thomas | The "Batture Case": Edward Livingston v. Thomas Jefferson

Jefferson, Thomas

Autograph legal manuscript, accompanied by an autograph note signed in text ("Th: Jefferson"), to William Wirt, all concerning the controversial Batture case, litigated as Livingston v. Jefferson

4 pages (247 x 196 mm) autograph legal manuscript on a now-disjunct bifolium of wove paper (watermarked G Puke | 1804), [Monticello, ca. 20 August 1810], docketed at foot of second page "Thomas Jefferson"; some minor chipping and pinholes at left margins; & three-line autograph note on a leaf of wove paper (245 x 189 mm), Monticello, 20 August 1810; chipped and browned at left margin.

A contentious lawsuit that threatened to engulf Jefferson's presidency as well as private life.

Edward Livingston was a respected jurist and legislator who served in the House of Representatives for both New York and Louisiana; he also served as Secretary of State and U.S. Minister to France under Andrew Jackson. But all of his diplomatic acumen could not dissuade him from suing the sitting President of the Unted States, Thomas Jefferson, in a case of eminent domain centered on alluvial land—essentially a sandbar, or batture, to use the French word, as Livingston did—along the bank of the Mississippi River in New Orleans.

Such sandbanks had been long regarded as public, and valueless, land, but after the conclusion of the Louisiana Purchase (which was negotiated by Livingston's older brother, Robert), the large number of newly arrived residents transformed these mooring grounds into attractive residential property. Edward Livington—fleeing financial difficulties in New York—was one of the settlers attracted to the Cresent City after its annexation into the United States. He continued to practice law and was, in fact, appointed by the legislature to help draft the Louisiana Civil Code, which first introduced elements of English common law (including trial by jury) into a judicial system that had previously been based on Roman, French, and Spanish law.

In 1805, just a year after relocating to New Orleans, Livingston represented in Superior Court one Jean Gravier, the owner of some riverbank land in the Sainte Maire district, who was claiming ownership of the adjacent batture, which the city argued was public property. Livingston won the case, which took a couple of years, and shortly thereafter took ownership of one-third of his client's alluvial land, which was probably his fee for arguing the case.

Livingston planned to improve and develop the land, but longer-tenured citizens, who still considered the sandbanks as commonly available public lands, harassed his laborers and would not allow the work to begin. The impasse did not have an easy solution, as Ronan E. Degnan explained: "There was at that time no appellate route from the Superior Court for the Territory of Orleans, so city officials who had lost in court called upon Governor Claiborne to seek aid from Washington. The Territory asserted no property claim of its own to the land, but the governor quite reasonably feared that violence and even killing would ensue unless action was taken. So Claiborne implored President Jefferson to assert United States ownership of the batture. This Jefferson did, not by directing the Attorney General to sue—which Livingston would have accepted since the courtroom was an arena wherein he excelled—but instead by directing Secretary of State James Madison to instruct the United States marshall for the Territory to assert the title claims of the United States, using whatever force was necessary. Simultaneously, the Secretary of War authorized the local military commander to use military force to regain the batture should the governor request it."

Having little choice in how to proceed, Livingston reverted to the law and sued the marshall in the New Orleans federal court and Thomas Jefferson, who had at this point left the White House and was a private citizen, in the Richmond, Virginia, federal circuit court. Jefferson, who seems to have already had an antagonistic relationship with Livingston, was furious and hired a phalanx of high-powered attorneys, including George Hay, Littleton W. Tazewell, and William Wirt, to defend the case.

Jefferson also took an active part in his own defense. The present very detailed and scholarly manuscript was written in response to a letter from Wirt, 9 August 1810 (Papers, Retirement Series 2:675–677), seeking clarification on several sources and precedents cited (including Henri Joutel, Journal Historique du dernier Voyage que feu M. de la Sale fit dans le Golfe de Mexique, Paris, 1713; and Thomas Peake, A Compendium of the Law of Evidence, London, 1801), as well as the use and definitions of various foreign terms (including ripa, alveus, plenissimum, and quando mas crece).

Jefferson prefaces his response with a brief cover note: "Th: Jefferson with his friendly salutations to mr Wirt sends him some short Notes on the several queries suggested in his letter of the 9th inst." Jefferson's "short notes" follow as a series of raised objections and answers:

"Obj. that Joutel’s journal may not be admitted as evidence of the Charter to Crozat.

"Ans. I leave the establishment of this as legal evidence to the gentlemen in actual practice, who are so much more familiar with the authorities than I am. I have no doubt they will be able to shew that tho’ we may not resort to books of history for documents of a nature merely private, yet we may for those of a public character, e.g. treaties Etc. and especially when those documents are not under our controul, as when they are in foreign countries, or even in our own country, when they are not patent in their nature, or demandable of common right.

"Obj. that the incorporation of the Roman law with the Customs of Paris, & their joint transfer to Louisiana does not appear.

"Ans. 1. at the date of Crozat’s patent,6 the Roman law had for many centuries been amalgamated with the Customary law of Paris, made one body with it, and it’s principal part. it might well then be understood to be transferred as a part of the laws of Paris to Louisiana. …

"Obj. from Dig. 43.12.3. ‘Ripa ea putatur esse quae plenissimum flumen continet.’ & Vinnius’s comment ‘ut significet, partem ripae non esse, spatium illud, ripae proximum, quod aliquando flumine, caloribus minuto aestivo tempore, non occupatur.’ stating & paraphrasing the text & commentary together ‘the bank ends at the line to which the water rises at it’s full tide: and altho’ the space next below it is sometimes uncovered by the river, when reduced by heats in the Summer season, yet that space is not a part of the bank.’ now, substituting for ‘the heats of the Summer season’ which is circumstance, & immaterial, the term ‘low water’ which is the substance of the case, nothing can more perfectly take in the beach or batture, nor, collated with the other authorities, make a more consistent and rational provision. ‘the bank ends at that line on the levee to which the river rises at it’s full tide: and altho’ the batture or beach next below that line is uncovered by the river, when reduced to it’s low tide, yet that batture or beach does not therefore become a part of the bank, but remains a part of the bed of the river’ for, says Theophilus ‘even in low water [et aestate] we bound the bank at the line of high water’ Inst. 2.1.3. ‘the bank being the extima alvei, the border of the bed, within which bed the river flows when in it’s fullest state naturally,’ that is to say, not when ‘imbribus, vel quâ aliâ ratione, ad tempus excrevit’ not when ‘temporarily