Passage II

SOCIAL SCIENCE: This passage is adapted from the book Down on the Batture by Oliver A. Houck (©2010 by UniversityPress of Mississippi).

The Mississippi River batture is unique. Here we have a place that is neither water nor land; it is both. It depends on the time of year. Spanish and French traditions going back to the time of Rome recognized public rights to public things. The civil code declared that rivers and their banks were public, which would have closed the matter. But in the late 1700s along came Edward Livingston, a New Yorker with an American notion of private property, a keen legal mind, a nose for money, and an ambition as big as the Ritz.

Livingston's accomplishments in the courthouse and the legislature remain monuments today, but the case that made him famous was about dirt on the banks of the Mississippi at a prime location in downtown New Orleans. Livingston and his client who claimed the dirt stood to make a fortune. Indeed, Livingston declined a fee in the case. Instead, if he won he would get a piece of the victory, the most valuable real estate in New Orleans.

The American notion of property was not popular in New Orleans, whose people were accustomed to using the banks of rivers to beach their boats, promenade, fish, swim, rake mussels, and even take fill for their front yards. By precedent rising from centuries, the Mississippi batture was common ground. In a city oppressed by heat, the batture was also treasured ground, the place where everyone in society from cotton brokers to boat hands could enjoy the breeze, air pleasant to inhale, and the very sight of the river. When Livingston's client undertook to develop the batture he was claiming, a public mob arrived to interrupt his work. Every day.

Livingston's client made a frontal assault. He went out at low water, diked off the batture, and then arrested people coming to take the river sand in the old and accustomed way. The ensuing lawsuits rivaled the twists and turns of a Dickens novel. On one side was Livingston, claiming that private property was sacred in America. On the other was a who's who of wellborn local names right on up to the president of the United States. Thomas Jefferson considered the public character of the Mississippi to be a civic right and essential to his ambitions for settling the West. After Livingston won his first case, Jefferson had U.S. marshals evict him from the batture anyway, at which point Livingston sued the officer who evicted him. It got that bad.

When the dust settled, years later, Livingston emerged with his property deed, but he had ceded important claims to the city, including part of his real estate and development controls on the rest. Compromise that it was, the New Orleans batture would go from small wharves and open space to an impressive accumulation of mega-wharves and warehouses. New Orleaneans not only could no longer access the river; they could no longer even see it.

Enter Robert Livingston, Edward's brother, with an even more impressive list of accomplishments and a yet bigger coup in mind. He and Robert Fulton, who had either invented the steamboat or made a quick copy of someone else's, depending on your source, tendered an offer to New Orleans that it could not refuse, a monopoly on the Mississippi River.

Fulton's steamboat had one huge advantage for the future of the city; it could go upriver. The early flatboats didn't even try. Fulton's new boat could get backup in a week, although he had not exactly done it yet. The Fulton-Livingston team proposed a deal. They would deliver steamboat commerce to New Orleans, if the city would grant them all rights to the river trade. They would own the river.

Enter another challenger. Henry Shreve came from the Red River in northwestern Louisiana and saw Livingston's monopoly as a threat to the future of his region. He built his own steamship, sailed it down to New Orleans, loaded it with goods, and sailed back home again to a hero's welcome. People did that sort of thing back then. Fulton had only talked about going back upriver. Now Shreve had actually done it, and with merchandise on board. More threatening, Shreve tried it again. Livingston had to make his move, and so, as the second Shreve boat was ready to leave New Orleans with its cargo, he had the captain and the boat arrested. The public sided against the Livingstons, as it had on the batture cases earlier, causing a small riot. Shreve was released the next day. A few months later a local judge dismissed the lawsuit. Edward Livingston might own a piece of the batture, but Robert would not own the river.