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and they are worthy of the notice of all just and humane perThe President wrote to Merriwether Lewis, Governor of Louisiana Territory,' August 21st (1808):
MILITARY COERCION OF THE INDIANS.
"I regret that it has been found necessary to come to open rupture with the Osages, but, being so, I approve of the course you have pursued-that of drawing off the friendly part of the nation-withdrawing from the rest the protection of the United States, and permitting the other nations to take their own satisfaction for the wrongs they complain of. I have stated to General Dearborn that I think we may go further, and as the principal obstacle to the Indians acting in large bodies is the want of provisions, we might supply that want, and ammunition also, if they need it. With the Sacs and Foxes I hope you will be able to settle amicably, as nothing ought more to be avoided than the embarking ourselves in a system of military coercion on the Indians. If we do this, we shall have general and perpetual war. When a murder has been committed on one of our stragglers, the murderer should be demanded. If not delivered, give time, and still press the demand. We find it difficult, with our regular government, to take and punish a murderer of an Indian. Indeed, I believe we have never been able to do it in a single instance. They have their difficulties also, and require time. In fact, it is a case where indulgence on both sides just and necessary, to prevent the two nations from being perpetually committed in war, by the acts of the most vagabond and ungovernable of their members. When the refusal to deliver the murderer is permanent, and proceeds from the want of will, and not of ability, we should then interdict all trade and intercourse with them till they give us complete satisfaction. Commerce is the great engine by which we are to coerce them, and not war. I know this will be less effectual on this side the Mississippi, where they can have recourse to the British; but this will not be a long-lived evil. By this forbearing conduct towards the Mississippian Indians for seven years past, they are become satisfied of our justice and moderation towards them, that we have no desire of injuring them, but, on the contrary, of doing them all the good offices we can, and they are become sincerely attached to us; and this disposition, beginning with the nearest, has spread and is spreading itself to the more remote, as fast as they have opportunities of understanding our conduct. The Sacs and Foxes, being distant, have not yet come over to us. But they are on the balance. Those on this side the Mississippi, will soon be entirely with us, if we ursue our course steadily. The Osages, Kanzas, the Republican, Great and Wolf Panis, Matas, Poncaras, etc., who are inclined to the Spaniards, have not yet had time to know our dispositions. But if we use forbearance, and open commerce with them, they will come to, and give us time to attach them to us."
And he again wrote to Governor Lewis, three days later:
"Isham Lewis arrived here last night and tells me he was with you at St. Louis about the second week in July, and consequently, after your letter of the 1st of that month, that four Iowas had been delivered up to you as guilty of the murder which had been charged to the Sacs and Foxes, and that you supposed three of them would be hung. It is this latter matter which induces me to write again.
1 Appointed Governor by the President in 1807.
"As there was but one white murdered by them, I should be averse to the execution of more than one of them, selecting the most guilty and worst character. Nothing but extreme criminality should induce the execution of a second, and nothing beyond that. Besides their idea that justice allows only man for man, that all beyond that is new aggression, which must be expiated by a new sacrifice of an equivalent number of our people, it is our great object to impress them with a firm persuasion that all our dispositions towards them are fatherly; that if we take man for man, it is not from a thirst for blood or revenge, but as the smallest measure necessary to correct the evil, and that though all concerned are guilty, and have forfeited their lives by our usages, we do not wish to spill their blood as long as there can be a hope of their future good conduct. We may make a merit of restoring the others to their friends and their nation, and furnish a motive for obtaining a sincere attachment. There is the more reason for this moderation, as we know we cannot punish any murder which shall be committed by us on them. Even if the murderer can be taken, our juries have never yet convicted the murderer of an Indian. Should these Indians be convicted, I would wish you to deliver up to their friends at once, those whom you select for pardon, and not to detain them in confinement until a pardon can be actually sent you. That shall be forwarded to you as soon as you shall send me a copy of the judgment on which it shall be founded."
The circumstances which led to the celebrated "Batture Case" between the President and Edward Livingston, arose, or rather came to a head, during the summer of 1808.1
1 The Batture was "a shoal or elevation of the bottom of the river [Mississippi] adjacent to the bank of the suburb St. Mary [in the city of New Orleans], produced by the successive depositions of mud during the annual inundations of the river, and covered with water only during those inundations. At all other times it had been used by the city, immemorially, to furnish earth for raising the streets and courtyards, for mortar, and other necessary purposes, and as a landing or quay for unloading firewood, lumber, and other articles brought by water." It extended "from one hundred and twenty-two to two hundred and forty-seven yards from the water's edge into the river." While covered with water (from February to July inclusive), it was the port for all the small craft and boats from the upper country, which, in high water, "could land or lie nowhere else in the neighborhood of the city." It was estimated, even then, to be worth half a million of dollars, could it be used for private purposes. But it had been considered the public property time out of mind, and had been treated as such during the French and Spanish governments in the island. (It will be understood that we follow the general historical version of the facts as they are given by Mr. Jefferson in his paper on the Batture case.) The owner of the adjacent property (J. Gravier) suddenly, in 1805, claimed, and commenced a suit against the city to recover, the whole Batture. On the 14th of December, 1806, he executed a deed of two-thirds of the property to one Peter de la Bigarre, on condition that the latter should pay the expenses of the suit and $50,000 additional, if the land was recovered-the land to remain meanwhile unsold and hypothecated for the purchase-money till paid; and Bigarre was to receive nothing if the suit failed.
The President, when this matter was brought before him, came to the conclusion that this "was a mere speculation on the chance of a lawsuit in which" the parties "were to divide the spoils if successful and to lose nothing if they failed"- a criminal purchase of a pretence title." He believed also that Bigarre was the mere instrument, in this matter, of Edward Livingston, who had originated and contrived all the steps in the affair; and this appears to have been the impression of the inhabitants of New Orleans generally. The deed to Bigarre was not executed before witnesses or notaries, nor recorded until the day before the court decided on the title, and when the nature of their decision was known to the parties.
The court, two against one, adjudged the title of the whole Batture to be in Gravier. This produced much popular excitement, and it was freely charged that the court had
been bribed. When Mr. Livingston appeared as the owner, and commenced certain excavations on the land (August, 1807), his workmen were driven away by the people. This happened several times, until Governor Claiborne restored order by promising to immediately dispatch an agent to place the subject before the General Government, in which, he claimed, lay the title of the disputed land.
THE BATTURE CASE.
A grand-jury, composed of the most respectable characters in the territory, made a presentment, in November, against Livingston's structures on the Batture, in which they said: "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."
To show the kind and degree of hazard these structures produced, it was brought in proof before the President, that in consequence of them, the Batture was by one single particular tide extended seventy-five or eighty feet further into the river, and raised from two feet to five feet and ten inches generally. The tide already, it was in proof, generally brought the water within eight or ten inches of the top of the levee, or artificial banks of the river, and sometimes within two or three inches of the top, so that it splashed over with the wind." None need to be told that the plain on which New Orleans stands is lower than the surface of the river, and that a breach in the levee might therefore cause that city and the adjacent country to be submerged almost instantly under the descending torrents of the largest river in North America.
Governor Claiborne repeatedly called the attention of the General Government to the subject, invoking its interposition, and declaring that otherwise he could not be responsible for the peace, or even the safety, of New Orleans. The President submitted the facts to the Attorney-General, and that officer (October 28th, 1807) gave it as his opinion that the title to the disputed land was in the United States. Gravier's title was considered wholly defective on various grounds. The United States had been no party to the suit of Gravier against the city, the court had not undertaken to decide on the right of the United States, and if it had so undertaken, the question was wholly out of its competence or jurisdiction.
By the act of Congress of 1807, chap. 91, it had been enacted, "If any person should take possession of any lands ceded to the United States by treaty, he should forfeit all right to them, if any he had; and it should be lawful for the President of the United States to direct the marshal, or the military, to remove him from the lands; providing, however, that this removal should not affect his claim until the Commissioners* should have made their reports, and Congress decided thereon." This law was expressly designed to prevent the seizure and possession ("nine points of the law") of the most valuable tracts in the newly-acquired territory of French Louisiana, by greedy speculators, under all sorts of fictitious and fraudulent claims. And, inasmuch as the new territory (where the title had not been legally vested in individuals) belonged equally to the people of all the States, Congress reserved the ultimate decision of these claims to itself, and did not delegate it to local courts, or any other local tribunals.
The President called a Cabinet consultation on this subject, November 27th, 1807, at which the Attorney-General and heads of departments were present. After a long and signally careful scrutiny into the facts, and an investigation into not only the Spanish, French, and United States laws, in regard to riparian possessions, but the analogous statutes and customs of other nations, running back to the most remote antiquity, the Cabinet came unanimously to the conclusion, that the Executive was "authorized and in duty bound, without delay to arrest the aggressions of Mr. Livingston on the public rights, and on the peace and safety of the city of New Orleans, and that orders should be immediately dispatched for that purpose." The Secretary of State, accordingly, wrote Governor Claiborne, November 30th, inclosing instructions for the marshal "to remove immediately, by the civil power, any persons from the Batture Ste. Marie, who had taken possession since the 3d of March, and authorizing the governor, if necessary, to use military force; for which purpose a letter of the same date was written by the Secretary at War to the commanding officer at New Orleans." The instructions were delivered to the marshal, January 25th, 1808. At the order of this officer, Livingston's workmen peaceably retired. They soon returned, however, by direction of their principal, and informed the marshal that they were commanded not to give up the Batture until they should be compelled to do so by an adequate armed force.
In the meantime, Livingston "obtained from a single judge of the Superior Court of the Territory, an order, purporting to be an injunction, forbidding the marshal to disturb Edward Livingston in his possession of the Batture, under pain of a contempt of court." This was not the first nor last instance of a single New Orleans judge (invested by the acts Congress, from which he solely derived authority, with merely common law and no
The tribunal specially delegated by Congress to take cognizance of the claims to public lands in Orleans, and report what were free from claim, etc.
↑ See Jefferson's Paper on the Batture case, in his Works, Cong. Ed., vol. viii., at p. 593.
chancery jurisdiction) attempting, on a mere ex parte hearing, to arrest by his fiat both the laws of Congress and the officers acting under the direct authority of the Executive of the United States for their execution.
The marshal of Orleans disobeyed the judicial injunction, and dispossessed Mr. Liv. ingston. The latter made no further attempts to resume his work. Three weeks after his dispossession, the Territorial Legislature passed an act prescribing the terms on which riparian proprietors should proceed, and this gave Mr. Livingston an opportunity to resume his enterprise under its conditions; but he had elected to seek his remedy from Congress and courts of law. The Orleans Legislature also passed a vote of thanks to the President for his interposition.
On the 7th of March, 1808, the President, by message, informed Congress of the general facts in this case, mentioning his own measures "to prevent any change in the state of things, and to keep the grounds clear of intruders," "until this question could be decided under legislative authority." He nowhere attempted to pass upon the real title, regarding the possession as "the only charge of the Executive," and he committed the question of title to Congress, "the only authority competent to its decision."* He admitted that if that title was ultimately found to rest in Mr. Livingston, the latter would be entitled to damages from the parties, which, without right, had received the intermediate profits.
Mr. Livingston appealed to the public in a pamphlet, and applied to Congress for relief. He also commenced suits for damages against Mr. Jefferson and the marshal who dispossessed him. From Congress he derived no satisfaction, though the matter was pressed for several terms. The Attorney-General, after two years more of consideration (and after Mr. Jefferson had retired from office), reaffirmed his former opinion. The Legislature of Orleans Territory also renewed their vote of thanks in February, 1810, pending the suit of Livingston against Jefferson. The latter was decided adversely to the plaintiff (1811), on a technical point, we think, without reaching the merits of the case. The suit was not renewed by Mr. Livingston, and here the matter dropped, so far as Mr. Jefferson was concerned. Livingston afterwards, however, recovered possession of a portion of the Batture, on Gravier's title and even this had risen so enormously in value, that it enabled him to pay all the expenses which he had been at, to most honorably discharge all his earlier liabilities, and still to realize a large fortune.
On the legal questions involved in the Batture case, we do not, of course, assume to decide, though acting on the proofs before the President and Cabinet, it would be difficult for us to see on what possible sound rule, in regard to riparian possessions, an adjacent owner could be entitled to embank round and exclude the overflow of the river at high water from any mud deposit or shoal, over which it was necessary for the river at such times to flow, in order not to be so dammed up or obstructed as to lead to inundation, or to a change in the bed of the stream, or to other practical injurious consequences, always liable to ensue in such cases. (For example, the filling up of the stream above or below the obstruction, to the entire destruction of existing docks, or rendering it necessary to extend them much further to reach deep water-thus constantly changing the frontage, and more and more obstructing the stream.) If the adjacent owners of shoals, uncovered in low water, are entitled, as a matter of course, to inclose them against high water, the Hudson, and many other of the finest navigable streams of our country, might thus be rendered wholly unnavigable in ten years. The owner of a far projecting shoal on one side of a river, might thus drive the descending waters of the next "fresh on the lands of the opposite owner, and lead, in some instances, to their complete abrasion, so that henceforth the bed of the stream would pass where they had stood. And let us imagine an adjacent owner "docking out," beyond high water mark, from one hundred and twenty-two to two hundred and forty-seven yards into the North or East Rivers at the city of New York, or into the Delaware at Philadelphia! It is unnecessary to further demonstrate the complete and self-evident absurdity of such a doctrine.
We repeat, we speak of facts as they were on proof before the President, and conse. quently as they appeared to his mind and to the minds of his Cabinet. How differently they were made to appear on the trial, we are not apprised, as we have not looked up the record of the case, considering the accuracy of the testimony in regard to the cha racter of the Batture of no consequence in estimating the President's motives or even the degree of prudence which he exercised. He acted on abundant testimony; and, in reality, it was only the question of possession, and not the question of title, which the President interfered with. Here he had the direct authority of an act of Congress. And he had not then, or afterwards, the slightest direct or indirect personal interest in the
As we have several times cited Mr. Jefferson's paper in this celebrated case, we should, in justice to Mr. Livingston, make an explanation. That paper does not conceal the idea that the latter acted throughout the whole transaction the part of a trickish. unprincipled, greedy speculator and adventurer. Mr. Jefferson unquestionably enter
⚫ See his Paper on the Batture case, Works, Cong. Ed., vol. viii. p. 601.
tained this view of Livingston's character, and he considered him doubly dangerous by reason of his great talents and perfect knowledge of all the turnings and windings of legal practice. It is proper also to say, that this was the prevailing impression, at the time, of the most prominent and best men in Orleans Territory. The Creole population, especially, regarded and feared him as a great incarnation of wickedness and subtlety.
There is little doubt that gross exaggerations had crept into these popular concep tions of his character. We are ready to believe that the President, influenced by the representations of the Government officers and prominent inhabitants of the territory, did no little injustice to his motives and his actions. Mr. Jefferson was proverbially scant in his charity towards great speculations and great speculators. There might have been other lurking prejudices. It is not to be denied that the prevailing impressions of Livingston's political career were far from favorable. He was spontaneously selected by both parties as that Republican in Congress, in the election of 1801, who would be the first to go over to Burr, if any one did so. Jefferson, at that period, had no suspicions of him. He gave him an office. Livingston became a defaulter in that office. He went South with a tarnished name. He was accused of favoring Burr's schemes in 1806. He appeared as his counsel at New Orleans. All these circumstances, with his attempted speculations and the public sentiment at New Orleans, conspired to beget unfavorable and exaggerated prejudices.
It would be difficult to believe, that at all periods of his life, Edward Livingston was a perfectly scrupulous man. Yet there is just as little doubt that, at the meridian of a career which became splendid, and from thence to its close, he possessed the full confidence of the most just and intelligent of his compatriots. He became a lawgiver and statesman, who received and was entitled to the common confidence of his country.
THE BATTURE CASE.
One of the surest indications that could be adduced that he was really a right-hearted man, is to be found in the fact that, subsequently to the bitter contests we have recorded, he purely voluntarily made an overture towards the restoration of friendly relations with Mr. Jefferson. This overture was made not when the great orb of the latter was blazing at its zenith, and when the ambitious were eager to bask in its beams, but when it was touching the horizon; and Livingston's own star now needed no reflected brightness. The spirit and tone of Jefferson's answer showed that he had completely changed his opinions of his earlier Batture antagonist.