AN

ANSWER

ΤΟ

MR. JEFFERSON'S

JUSTIFICATION OF HIS CONDUCT

IN THE CASE OF

THE

NEW ORLEANS BATTURE.

BY EDWARD LIVINGSTON.

Nullæ sunt occultiores insidiæ, quam quæ latent in simulatione officii, aut in aliquo necessitudinis nomine.

CIC. LIB. INC. FRAGM,

SUMMARY OF CONTENTS.

INTRODUCTORY observations. Mr. Jefferson's book; its method

and component parts. His desire to obtain an investigation of this case on its merits

Brief statement of material facts. Sketch of the batture and its situation,
of the title by which that property is held and of the events which
gave rise to this controversy
Mr. Jefferson's skirmishing attacks repelled. Denies my title to the
batture. 1. Because one of the Graviers had parted with it to others
before it was conveyed to me. Mr. J.'s argument on this head founded
on a mistranslation of a Spanish record. 2. Because it belongs to all
the heirs of that same Gravier, and my title is only through one of
them, who conveyed in fraud of his brothers and sisters. Answer:
Objection not founded in fact; and the brothers and sisters have con-
firmed my title. Admitting that either of these contradictory allega-
tions were true, the president was not on that account authorised to
seize the batture
Allegation that I stirred up a dormant claim to the batture, and obtain-
ed the land by champerty. Denied, and the contrary proved. John
Gravier's possession. Mr. de la Bigarre, his widow and children. Mr.
Parisien's character established against the insinuations of Mr. J.
Mr. J. after endeavouring to excite prejudices against me, approaches
with cautious steps towards his own justification. He objects that the
judgment in my favor against the Corporation of New Orleans, did
not bind the United States, who were not parties to the suit. Answer:
They are bound, because they claim as Trustees for the Corporation,
and not for their own use. Query, why Mr. J. did not himself insti-
tute a suit to which the United States should have been parties? Mo-
tives hinted at. His dislike to playing at pushpin with judges and
lawyers
Alleged grounds on which Mr. J. proceeded to seize the batture.
Gov. Claiborne's letters. I was disliked at New Orleans. Judgment
of the Court unpopular. My works threatening to drown the city. The
people in commotion. No time to wait for the slow forms of law.-
Answer: My works did not threaten to drown the city. Mathematical
proof of the fact. Mr. J. not high Constable of New Orleans. Local
laws sufficient to prevent and local authorities to abate nuisances. The
pretended nuisance not removed. Myself only turned out of possession
Proceedings of Mr. J. on receiving those letters. Cabinet Council
called. View of the whole case taken on the proofs before them. Ob.
scure phrase of Mr. J. to avoid confessing that they had no proofs.
His, such as they are, collected since
Preliminary question said to have been decided by the Cabinet Council,
that the case was to be governed by the French, not by the Spanish
law. Both systems equally favourable to my argument. Propriety, how-
ever, of this decision doubted. Examination of the question how far
the laws of a ceded country are changed by the mere effect of the
transfer? Granted that the civil laws, but denied that the political
laws, are not changed. This question discussed
French laws not applicable to this case, because the Batture did not
exist at the time when they ceased to operate in Louisiana. The

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attorney general, himself, had doubts as to what system of laws should
be applied. Alleged unanimity of the Cabinet Council on this point
denied. Reason why the French law was selected in preference to
the Spanish. It afforded quibbles which have been refuted over and
over, and the refutations not answered. Reference to former publi-
cations

Mr. J. at last enters upon the real merits of his defence. His argument
divided into four points. 1. That the Batture is an alluvion, and, as
such, belongs to the United States in right of the kings of France. 2.
That the right of alluvion accrues only to rural, not to urban posses-
sions. 3. That the Batture is not an alluvion, but a part of the bed of
the Mississippi. 4. That my works were dangerous to the city of New
Orleans; that they were a nuisance, which he had a right to abate
1. Mr. J.'s first proposition denied and discussed. The law of France
adopts the rule of the civil law which gives the alluvions of navigable
rivers to the owners of the adjacent estates. Of five French authors
quoted by Mr. J. in support of the opposite doctrine, one alone, Po-
thier, appears to support it, and not very clearly. His quotations from
the four others are mutilated, and when restored, prove what I allege.
Guyot, Ferriere, Denisart. The Encyclopedia
Edict of Louis XIV., which, according to Mr. J. puts an end to the
question. True construction of that Edict. It did not change the an-
cient law of France, nor give alluvions to the king. Further authorities
in support of this construction, and of the general law of France, as
stated. Cujas. Boutheiller. Bacquet. Ferriere. Salvaing. Berthollet
Dufferier. Le Fevre de la Planche. Larvé. Renusson. De Liege.
Mailhe. Berryer. Dumoulin. Domat

The same provisions established and sanctioned by the Napoleon Code. Statement of the old law respecting alluvions made to the legislative assembly of France by the Counsellor of State, Mr. Portalis, on presenting the articles of the prøjet de Code on the same subject. His observations on the successful opposition made by the Parliament of Bordeaux to the king's claim of alluvions, styled by Mr. J. a rhetorical flourish, and why?

Opinions of the different Tribunals of France consulted by Bonaparte
on the provisions of the new code, and their statement of the old es-
tablished law respecting alluvions. Disingenuous answer of Mr. J. to
these authorities

Series of adjudications in the French Tribunals, prior to the late revo-
lution, and beginning as early as the year 1769 in favour of the doc-
trine for which I contend. No contrary decisions alleged or shewn
Report of the celebrated Bordeaux case, from authentic documents.
Louis XVI. issues an Edict claiming the alluvions of certain rivers in
Guienne, and orders surveys to be made of the lands claimed. The
parliament, on the motion of the attorney general, declares the Edict
null and void, and issue their injunction to prevent its execution. Their
arguments and remonstrances. Second Edict confirming the former.
More remonstrances and injunctions. The king, at last, by an explana-
tory Edict, declares that he never meant to claim the alluvions formed
on the banks of those or any other navigable rivers
Distinction taken by the French law between alluvions in the bed and
on the banks of a river. Two of Mr. J.'s colleagues, aware of this dis-
tinction, deny the United States' right to the batture under the French
Edict. Coquetting of Mr. J. to bring them over to his opinion
Learned dissertation by Mr. J. on the feudal law, the origin of titles to
land, and the nature of alluvial property. Noticed by the bye, but im-
material to the present question

II. Mr. Jefferson's second point. Alluvions by the civil law accrue only
to rural not to urban possessions. His argument in support of this doc-
trine. Ager in Latin and Agros in Greck. Learned distinction between
prædia rustica and prædia urbana. Answered by texts from the civil law
which prove unequivocally that the right of alluvion accrues to city

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property, as well as to fields. Answered also by other learned distinctions. Town slaves and country slaves. White horses and black horses. Case in point. Stradling v. Stiles

The law of England shewn to agree on this point with the civil law, in contradiction to Mr. J.'s contrary assertion

But the batture existed before the lands adjacent to it were converted into a suburb, and therefore Mr. J.'s principle, even if it were correct, cannot be applied to that property. The fact fully proved, and by Mr. J.'s own statements

III. Mr. J.'s third point; the batture is not an alluvion, but part of the bed of the river

1. It is not an alluvion, because not incrementum latens, its increase may be perceived every six months, after the inundation. Incorrectness of this argument

2 It is no alluvion because it has been formed by deposition, not apposi tion of particles of earth, which latter expression is the true translation of incrementum latens. New discoveries in the science of Etymology and in the art of translating from one language into another. Theophilus and Curtius. Prosklusis and Proschosis. Curious anecdote 3. It is no alluvion, because not plastered against the adjacent field, nor arable like it. Not very seriously answered

Reference to the plates and to the statements of Mr. J. and his colleagues to shew that the batture is really an alluvion

Batture at last defined by Mr. J. Is part of the bed or bottom of the river. More etymologies. Plage, Playa, Piaggia. These words and the word batture mean beach. Batture, from battre, beach from beotian. Discovery by Mr. J. of the true pronunciation of the Anglo Saxon tongue Batture called a shoal by Mr. J. Quibble exposed. Batture and alluvion considered as synonimous in Louisiana

Answers to Mr. J.'s etymological arguments. The words Plage, Playa, Piaggia, do not mean beach, or the narrow band which lies between high and low water mark, but the strand above it. Arguments founded on etymology are trifling. Etymologists can prove any thing. Potomac from Potamos

But even the bed of a river is only public property when covered with
water, nor, by the civil law, is there a public property in the soil so
covered, but only a public use. The same by the Spanish law
And by the French law, the beach, or the space which lies between
high and low water, is private property. Decisions of French tribunals
in point

Mr. J.'s arguments, taken together, go to prove that there cannot exist
such a thing as alluvion

Spanish definition of the bank of a river, including the space between high and low water mark. Mistranslated by Mr. J., though he had before him a correct translation of it by one of his colleagues. His argument, founded on his own interpretation of the Spanish text; but at variance with the original

The authorities from the French and the civil law, afford room for a quibble, by saying that the banks of a river extend to the water's edge, when the waters are at their greatest height. Mr. J. thereupon argues that the waters of the Mississippi are only at their greatest height during the annual period of inundation; and as some of the authorities use the words "highest tides," he contends that the overflowings of the Mississippi are tides. Poetical quotations. St. Evremont and Waller

Curious proposition directly flowing from Mr. J's. argument. That the Mississippi has no banks, and that all that it covers in the time of inundation, where not restrained by dikes, is part of its bed. His endeavour to escape from the absurdity of this proposition, by saying that it is of no consequence, as the lands are not yet inhabited or re

claimed

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