The New Orleans batture controversy awakened a general and widespread anxiety over the kind of treatment the people of Louisiana could expect in American courts with American judges, who were ignorant of local custom. The dispute over the batture symbolized and dramatized the underlying ethnic, cultural, and legal conflicts as Louisiana shifted its identity from French and Spanish to American. The batture controversy ignited a public fury that would take years to recede.
The battle controversy centered on the Faubourg St. Marie batture, situated just outside the French Quarter, currently part of the Central Business and Warehouse Districts. The batture abutted a parcel of land originally owned by Bertrand Gravier, who bought it from the Jesuits when they were expelled in 1763, and sold it off into lots. The unsold portions passed to his brother Jean Gravier upon his death in 1797. Jean, a savvy entrepreneur, saw a profit in the accreting and constantly growing batture land. However, his portions of the St. Marie suburb did not abut the batture. Jean solved this problem by constructing a levee separating the riparian lots his brother had sold years prior from the batture, and claimed that the batture was not included when the lots were sold. This plan was not contested until he began prohibiting the public from general use and enjoyment of the batture.
At this point, the city government became involved. They too had their own interests in the batture and their own desire to consolidate control of it. After a series of protests by the public who were angered by Gravier’s insistence that they could not enter his property, the Conseil de ville proclaimed the batture to be open to the public. The Conseil relied on both French and Spanish riparian civil law and on customary use. Civil law prescribed that while a landowner could privately hold property abutting the river, the riverbanks must be open to the public. However, it was in the Conseil’s interest to control and define what “the public” was and how they could use the batture. After the fire that swept through the city in 1794, many homeless residents had taken up residence on the batture. Though the city government tolerated their presence at first, after a time the government insisted that the temporary dwellings must be torn down. In so doing, the government demonstrated that while they public may be able to access and use the batture, it only did so within well-regulated limits and controlled by the centralized government.
Hoisting American Colors, Louisiana Cession, 1803, Thure de Thulstrup (1903). Image provided courtesy of the Louisiana Historical Society.
The controversy would likely have ended there but for Edward Livingston’s arrival in New Orleans in 1804. Though already considered one of the nation’s most brilliant legal minds prior to his arrival, he had publicly disgraced himself as mayor of New York City when a city employee absconded with $44,000 from the city’s treasury. Livingston was personally charged with the debt. He fled to Louisiana, hoping to create a clean slate. He brought with him an American perspective on property rights, and a keen eye for business opportunities. It is not clear how Gravier and Livingston met but Livingston offered to litigate the batture dispute for Gravier for no fee. Instead, he was promised a portion of the batture should he prevail. Suit was filed in October 1805.
Livingston argued that because the disputed land began accreting prior to the final sale of the riparian lots and because the batture was not explicitly included in those lots, Gravier retained title to the land. Louis Moreau-Lislet and Pierre Derbigny, arguing for the city and its residents, responded that Gravier’s deceased brother had never secured title to the batture himself when he purchased the land from the Jesuits. Additionally, the land was subject to a riparian servitude under civil law, guaranteeing public access to and use of the batture and river.
Livingston immediately sank $12,000 into his portion of the batture land, which was 1/3 of the total disputed land, estimated at $200,000. He planned to open a private port, and wanted to first construct a new levee to make the current batture land dry year-round. After the levee was complete, he planned to construct a navigable canal and large buildings. These plans were immediately stymied by the public. Every day his workers would arrive and every day they were turned back by a loud and rambunctious group of protesters.
This mob grew larger over the summer. The protestors appointed a guard to beat a large drum whenever the workers arrived, to summon the rioting mob. Though the rioters were in violation of the law, their interests aligned with the city government, and so they were not arrested. In late August, Livingston had had enough, and contacted the territorial governor, William C.C. Claiborne. At nearly the same time, the Conseil also contacted the governor over the same issue, but with a new strategy. The Conseil pleaded with Claiborne to contact U.S. President Thomas Jefferson and ask the federal government to claim title to the batture, much as the French colonial government had done. They argued that under French civil law, the crown retained control of the batture, which it provided for use of the public. Thus, when the United States took control of the territory, the federal government stepped into the French crown’s role.
Claiborne, fearing that the riots might lead to bloodshed, contacted Jefferson. But as he awaited his reply, the crisis escalated. On September 15, 1807, Livingston arrived with a new group of workers, who were all white. He had prior to that time only employed African-American workers. He likely hoped that racial allegiances would triumph, and also that because the workers were white, they had full access to the rights of citizenship themselves as members of the public. He was mistaken. A crowd of nearly 400 assembled that day. Claiborne himself arrived and told the mob to disperse. He told them to leave the issue to the courts, but attempted to alleviate their concerns by letting them know the federal government would likely be involved. After promising to send an envoy to Washington, D.C., to communicate the rioters’ concerns with affidavits signed by them attesting to the public nature of the batture, they agreed to leave.
William Charles Cole Claiborne II (Jean Joseph Vaudechamp, 1831). Image provided courtesy of the Historic New Orleans Collection, 1981.376.1.
Claiborne then began preparing official papers, asking the federal government to intervene. Jefferson, who was concerned about a threat to the stability of the newly-acquired territory, agreed. In January 1808, a U.S. marshal arrived and ejected Livingston’s workers from the batture, claiming it in the name of the federal government. Though Livingston promptly secured an injunction, the marshal ignored it and continued to remove the workers. In September 1808, the Conseil resolved that all citizens could remove batture soil free of charge. 
By involving Jefferson, Claiborne turned a local issue into a national one. In Jefferson, he also brought in a legal mind equal to Livingston’s, who also harbored a deep antipathy towards him because of his actions in New York. Just as important to Jefferson was his desire for a free and open Mississippi, the very same reason he had negotiated the Louisiana Purchase on behalf of the newly growing West. In his mind, an open Mississippi meant free commerce and a growing economy - a closed Mississippi meant economic stagnation. The Westerners had appealed to the government for help when the river was blocked to them, arguing that common open use of the river was imperative to their survival. Public use, to Jefferson’s mind, included the critical component of access to the riverbanks. This argument would later shape Jefferson’s views on the batture controversy.
As the dispute worsened, pamphlets were distributed throughout the city, arguing both sides. Derbigny and Livingston both prepared pamphlets, repeating their same legal arguments from the earlier court case. But these pamphlets also allowed Derbigny an opportunity to publicly attack and condemn the court’s decision. He framed the arguments as common law versus civil law, thus tapping into a deep and pervasive worry that the Americans had arrived to destroy the Louisianian way of life. The court consisted of judges trained in the common law, Derbigny argued, and could not be trusted to understand Louisiana’s unique civil law. Though the judges had consulted and relied on civil law sources in their decision, their backgrounds alone were sufficient to disqualify them, according to Derbigny. Derbigny also relied on the power and unpredictability of the mighty Mississippi as support for his argument. Just as the Mississippi gives, so too can she take away. Her ebb and flow had no regard for property lines and exposed them as legal artifice. New Orleans had developed a public use of the batture in part to cope with these erratic and sometimes dangerous changes.
In 1808, the first digest of civil laws in effect in U.S. territorial Louisiana was published. The Digest of 1808 codified Louisiana’s civil law tradition, including the public use servitude of the riverbanks. The Digest repeated the court’s decision in the Gravier case, that riparian land owners also owned the riverbanks. But the law also required that the private property owners allow all public use of those same riverbanks.
Julien de Lalande Poydras (author and date unknown)
After Claiborne's plea, Jefferson expelled Livingston from the batture by force. Livingston was not deterred, however. In response to his eviction by Jefferson, he filed suit in federal court in 1810, claiming $100,000 in damages. The suit was quickly blocked on procedural grounds by a judge who was a Jefferson loyalist. Livingston also filed suit in state district court against the U.S. marshal who evicted him. In this case in 1813, he won again as he had in 1807 in the same court. His victory was short-lived though, as the city quickly obtained an injunction. Livingston returned to court for the third time and for the third time he won, dissolving the injunction. But the fight was far from over. Over the next few years, Livingston traveled to Washington, D.C., twice to plead his case with the new President, James Madison, and with Congress. Though he succeeded in getting a resolution introduced in the House of Representatives on his behalf, after an outraged address to the House by Representative Poydras, it did not proceed any further. Poydras was especially incensed because the proposal sought to move the controversy into federal courts, including review by the U.S. Supreme Court. Poydras saw this as a direct threat to the legitimacy of Louisiana legal precedent.
In 1814, Livingston filed suit against a laborer who took soil from the batture for use in a public works project. The Conseil was enraged, and posted in the newspaper that they would pay for the defense of anyone arrested for doing so. Going one step further, the government also voted to post guards along the riverfront, who were charged with arresting those who prevented anyone from the public from using the land for whatever purpose.
Livingston decided to try a different tactic. He attempted to utilize a statute that decreed that twelve riparian landowners could jointly decide to move a levee located on their property. In response, in the fall of 1815, the Conseil passed a statute that overturned the previous, making the city the final arbiter of any proposed levee moves. In so doing, the city made it plainly clear that no matter what Livingston did, he would never control the property on his own terms. At this point, Livingston apparently realized he would never win. He resigned himself to offering a series of compromises to the city over the next four years. However, the city consistently refused the deals. He first offered the traditional right for the public to remove sediment. Next, he offered to donate a portion of the batture to the city. He then offered to construct a new levee. In the end, he guaranteed all of the above to the city along with a new public market and a wide public road adjacent to the batture. In return, Livingston retained marketable title to a portion of the land two blocks deep and eight blocks long. In 1820, the deal was struck. On September 20th, 1820, Livingston and city representatives authorized what came to be known as the "Donation of 1820," by notarial act in front of Hugues Lavergne, giving use of the batture to the people of New Orleans for "the uses to which it is naturally destined," which by legal precedent included rights to wharfage, storage, drayage, and recreation.
Though some did try to still argue for unfettered public access, the final compromise revealed what the dispute really was about for the most powerful actors in the controversy: development of the city's commerce. The commercial consequence of the port on the batture was not lost on the city, even as they characterized their arguments as the desire to support the public. By 1820, steamboats had been navigating the river for 7 years. The port was bustling and new enterprises were springing up all along the river. Though Livingston may not have succeeded in entirely privatizing the batture, he did succeed in reshaping the government’s and the public’s view of the batture to acknowledge its potentially vast economic impact.
right: Map dividing out boundaries from 1820 notarial act. Image from the Notarial Archives Division, provided courtesy of Dale N. Atkins, Clerk of Civil District Court, Parish of Orleans, Louisiana.
left: The Levee - New Orleans (poster by Currier & Ives, 1884).
Livingston and the city may have thought that the batture controversy had ended with the signing of the Donation of 1820. They were wrong. Sixteen years later, in 1836, a new issue arose that took the batture controversy all the way to the highest court in the country, the U.S. Supreme Court.
As the batture land continued to accrete and expand in the years after 1820, the city attempted to sell portions of it, from lands earlier designated as "quay," by the French King in 1728. These lands were located down river from the earlier contested portions along the Faubourg St. Marie. The federal government filed suit to intervene and block the city. Though only separated by Canal Street, the quay, according to both the city and Livingston, who represented the city at the U.S. Supreme Court, was and always had been since its designation as solely for public use. The designation as public use quay was continued when the land came under Spanish control. The Court determined that this land could be so designated by the authority of the sovereign monarch, which then made the lands unalienable. Because the lands could not be alienated, they could not be transferred to the United States, even if the U.S. could be empowered to receive it. The Court stated, "All powers which properly appertain to sovereignty, which have not been delegated to the federal government, belong to the states and the people." And so, the U.S. had no legal interest or involvement with the land.
After this great victory for the people of New Orleans, Livingston died later that same year. Over the next several decades, batture disputes continued. As new alluvial accretions created new land (7 blocks in total from 1820 to 1900), more controversies arose between the city, the public, and private landowners. In 1850, the city again attempted to sell off portions of the batture, which had become quite expensive to maintain. A second compromise was struck in 1851, which tightened the city's control over the land. The Compromise of 1851 (authorized by Act 257 of 1850 by the Louisiana Legislature) also conferred title to the city to any newly created land in the future. The public's right to use this land also continued, with the city acting as administrator and enforcer of the public's rights.
As railroad tracks began to be laid out across the land, railroad executives quickly saw that it was far cheaper and easier for railroads to be added by the legislature to the legal understanding of public rights of use, the "uses to which it is naturally destined," rather than to transfer title of the land. The administration of the batture was also thereby removed in part from the city to the railroad commission, a state agency. Vessel owners followed suit and in 1893 their interests were also removed from the city and transferred to the Dock Board, another state agency.
As decades passed, railroads were no longer the powerhouse they once were. In the early 1950s, the railroads themselves brought to the attention of the city the possibility of selling the land for construction of an international trade mart. However, when the Compromises of 1820 and 1851 were dusted off, it was quickly realized that the railroads had no interest to sell. The city, on the other hand, had legal interests in the land that were long forgotten. Because the 1851 compromise included language allowing the city to use the land on behalf of the public for the benefit of commerce, new construction began. This construction turned from the Rivergate Convention Center in the 60s, into the World's Fair in the 80s, and then into the current Harrah's casino in the 90s. Whether the interests of commerce are the same as the interests of the people of New Orleans is quit debatable. But under precedent set by Livingston in 1820, the city continues in the same position today, as administrator of the batture.
