called Gravier v. City of New Orleans, but it is remembered simply as the “batture case” after the piece of land that was the subject of the suit. In lower Louisiana, a batture is an area of land between the river and the levee that remains dry for most of the year but is covered by the river in its annual swells.29 The batture in question in the Gravier case was upriver from the Vieux Carré in Faubourg St. Marie. In the late eighteenth century the land was part of Bertrand Gravier’s plantation, but in 1788 he subdivided much of the land in establishing New Orleans’s first suburb and sold parcels of this estate throughout the 1790s. When Bertrand died in 1797, his brother, Jean Gravier, inherited the land that had not been sold. The batture land bordering Faubourg St. Marie had been neither sold nor improved but was being used by the public. In 1803–4, Jean Gravier attempted to move the levee on this batture closer to the river in order to claim more land, a practice that had developed throughout New Orleans’s history because the batture was constantly widening due to the buildup of soil. This time, however, the public protested because Gravier did not own any of the land bordering the batture. Gravier then sued the city in the Orleans Superior Court to establish his title to the St. Marie batture. Livingston agreed to represent Jean Gravier on a contingency fee. If he won, Gravier would grant Livingston a part of the batture on which Livingston planned to construct a commercial dock. In answering the lawsuit, the city of New Orleans, represented by Pierre Derbigny and Louis Moreau-Lislet, claimed that the St. Marie batture was public land. On May 23, 1807, a unanimous court granted a decision in favor of Gravier. Yet, while Livingston won the case for his client, he was never allowed to build on the land. President Jefferson claimed the land as federal government property and ordered the eviction of Gravier and Livingston pursuant to a law of Congress of March 3, 1807, that allowed the government to evict squatters on public lands. The order was executed, and Gravier and Livingston were evicted, in January 1808.30
While the batture case pitted New Orleans’s most accomplished common law–trained lawyer against two of the civil law’s best, the issues of the case had little to do with disputes over the Americanization of the legal system.31 Livingston’s client, Jean Gravier, was Louisiana born and tended to favor the civil law tradition, while Claiborne and Jefferson, avid proponents of the common law tradition, both supported the city’s position. In fact, Moreau-Lislet and Livingston came to admire and respect each other even though they were opponents in the case and were trained in different legal traditions. Each showed an appreciation of the other’s legal tradition. In his time on the City Court bench, Moreau-Lislet acted like a common law judge in his liberal interpretations of existing law and willingness to make decisions based on custom and precedent. For his part, Livingston was a proponent of civilian law even before coming to Louisiana. Once he got there, he became one of its most articulate defenders against common law encroachment. Moreau-Lislet and Livingston were both ambitious men seeking power and influence, but both also seemed genuinely interested in improving the territory’s legal system. Under the influence of these two men, the heated debates between proponents of civilian law and proponents of common law subsided by the end of the territorial period.
Indeed, the respective careers in New Orleans of both Moreau-Lislet and Livingston suggest that each was more concerned with creating certainty in the territory’s laws than in pushing for one tradition over the other. As a result, they were willing and active participants in the drafting and clarification of the substantive laws and legal procedures of early American Louisiana. In 1804, having recently arrived in New Orleans from New York, Livingston wrote that the governor’s “ordinances in English mixed with those of his predecessors in Spanish and French, the laws of Castile, the Customs of Paris, the Leyes de Partidas, les Edits du Roi, the Statutes of the United States and the omnipresent common law of England make a confusion worse than that of Babel.”32 He helped clarify the territory’s laws by drafting a code of civil procedure in 1805. Moreau-Lislet also played a big role in providing certainty and clarity to the territory’s laws. In June 1806, the legislature assigned him and James Brown the task of compiling the region’s laws into a written digest. Moreau-Lislet was the dominant partner in this joint effort. Two years later the two submitted their work for legislative approval, and the legislature quickly adopted a bill to make it the law of the land in Louisiana. Despite some concerns that he would, Claiborne did not veto the bill.33 The 1808 compilation of laws was a digest rather than a code. Moreau-Lislet did not create a set of laws by reasoning from basic principles (as Portalis had done in drafting the Napoleonic Code); rather, he studied existing laws in Louisiana and organized and categorized them in written form. This is important because it means that the Civil Digest of 1808 did not break from past law; it merely organized and summarized it, and it was not the exclusive law of the land.34 Finally, in 1822, the state legislature commissioned Livingston, Moreau-Lislet, and Derbigny to prepare a full revision of the civil code, a commercial code, and a comprehensive code of civil procedure. The new Civil Code of Louisiana was completed, was accepted by the legislature, and became law in 1824.35
The legal system that emerged in Louisiana from all these efforts was, not surprisingly, a compromise influenced by both the civil law and common law traditions. The U.S. Constitution guaranteed the rights of trial by jury and habeas corpus, both elements of the English common law and strangers to Roman civil law. And the March 26, 1804, act of Congress created a common law (or adversarial) court system in the territory.36 The law of civil procedure, while unique, adopted many of the basic components of the American system, including some of the common law forms of action, the adversary process itself, and the controlling importance of the judicial interpretation of the written law. The Civil Digest of 1808 did nothing to alter the American court system to which the local population had adjusted with surprising speed, and it did nothing to prevent the introduction of American criminal law and criminal procedure, again drawing little protest from the locals. Furthermore, Louisiana rejected a commercial code that might have alienated it from the national economy that was increasingly becoming the key to its prosperity. The only area of the Civil Digest that was truly civil law in nature was that of private substantive law, such as the laws governing contracts, marriage and family obligations, and inheritance.37 Finally, the 1824 Civil Code incorporated common law principles of property and contract into the basic framework of the Napoleonic Code.38
Anglo-Americans and Franco-Louisianans also fought over what should be the official language of the Orleans Territory. English speakers argued that it should be English only so as to conform to the rest of the country. They claimed that requiring publication in both French and English would be too costly and cumbersome. French speakers, on the other hand, feared that an English-only requirement would put them at a grave disadvantage in legal proceedings. The French speakers, with the support of Livingston and Superior Court justice John Prevost, won the day, at least officially. The Civil Digest of 1808 was printed in both French and English, and Livingston’s rule of civil procedure required all court documents to be drawn up in both languages. In the City Court, however, this requirement was ignored more often than it was followed. Out of all the cases in the court involving free people of color, about a third of the court documents were filed in English, about a third in French, and about a third in both. Only a handful of parties objected when the rule was not followed.39
The battles over the future of Louisiana’s legal system and clash of legal cultures were intertwined with concerns about preserving a fragile Union and assertions of local control. At the time of the Purchase, Jefferson was convinced that the best way of ensuring the loyalty of Louisiana’s ancienne habitants to the United States was by indoctrinating them into Anglo-American culture, especially its legal culture. He appointed Claiborne as governor with instructions to oversee the overhaul of the legal system. After many local elites resisted attempts at a complete overhaul, however, Claiborne let up in his campaign against the civil law. He had come to accept that he could best win the loyalty of the old inhabitants by allowing some of their customs, including the civil law, to continue. In an October 1808 letter to James Madison regarding the legal system in Louisiana, the governor made establishing the common law his third priority. His first goal was “to render the laws certain; [his] next … to render them just, and [finally] to assimilate [Louisiana’s] system of jurisprudence as much as possible,
