THE BATTURE AT NEW-ORLEANS.
[Sidenote: Title of the Jesuits.]
[Sidenote: Fronting river.]
[Sidenote: Confiscation.]
[Sidenote: Gravier's title.]
[Sidenote: Fauxbourg.]
[Sidenote: 6*]
Not long after the establishment of the city of New-Orleans,
and while the religious society of Jesuits retained
their standing in France, they obtained from Louis
XIV. a grant of lands adjacent to the city, bearing date the 11th
of April, 1726. The original of this grant having been destroyed
in the fire which consumed a great part of the city in 1794,
and no copy of it as yet produced, the extent and character of
the grant is known from no authentic document. Its other
limits are unimportant, but that next the river and above the city
is understood to have been of 20 arpents, or acres,
[of 180 French feet, or 64 yards of our measure
each,] 'face au fleuve,' the ambiguity of which expression
is preserved by translating it, 'fronting the river.'
Whether this authorized them to go to the water line of the
river, or only to the road and levee, is a question of some difficulty,
and not of importance enough to arrest our present attention.
To these they had added 12 arpents more by purchase
from individuals. In 1763 the order of Jesuits was
suppressed in France, and their property confiscated.
The 32 arpents, before mentioned, were divided into 6
parcels, described each as 'faisant face au fleuve,' and the one
next to the city of 7 arpents in breadth, and 50 in
depth, was sold to Pradel; but how these 7 arpents,
like Falstaff's men in buckram, became 12 in the
sale of the widow Pradel to Renard, [Report 7.] 13 in Gravier's
inventory, and nearly 17, as is said Derb. viii. ix. in the
extent of his fauxbourg, the plaintiff is called on to show, and
to deduce titles from the crown, regularly down to
himself. In 1788, Gravier, in right of his wife the
widow of Renard, laid off the whole extent of his
front on the river, whatever it was, into 4 ranges of lots, and
in '96 he added 3 ranges more, establishing them as a Fauxbourg,
or Suburb to the city. That this could not be done without
permission from the government may be true; and no formal
and written permission has been produced. Whether such an
one was given and lost in the fire, or was only verbal, is
not known. *But that permission was given must be
believed, 1. From Gravier's declaration to Charles Trudeau
the surveyor, which must operate as an Estoppel [Report
45.] against all contrary pretensions in those claiming under him.
2. From Carondelet's order to Trudeau, first to deposit a copy
of the plan in the public archives, and afterwards an order
for a second one to be delivered to himself, which implied necessarily
that he had consented to the establishment; but more
especially when B. Gravier relying on this establishment as
freeing him from the repairs of the bank, the Governor declared
'it was true and that Gravier was right.' 3. From the records
of the Cabildo, or town council, with whom the Governor sat
in person, showing that at their sessions on the 1st day of
January annually, for regulating the police of the city, a Commissary
of police for the new quarter was regularly appointed
from the year 1796, till the United States took possession. The
actual settlement of the ranges next the river, and the addition
of the new ranges, now probably rendered that necessary. 4.
From the conviction expressed by the Surveyor that, from his
knowledge of the laws and customs of the Spanish colonies, no
one would have dared to establish a city, bourg, village or fauxbourg
without authorization, verbal at least, from the Governor.
5. From the act of the local legislature incorporating the city of
New Orleans. [Thierry 32.] That no formal written act of
authorization can be produced is not singular, as that is known
to be the condition of a great proportion of their titles from the
government: and the extraordinary negligence in these titles
was what rendered it necessary for Congress to establish, in the
several territories of Orleans, Mississippi, Louisiana, Indiana and
Michigan, boards of Commissioners, to ascertain and commit
them to record. To this we may add that the principle which
shall take from the inhabitants of the Suburb St. Mary the validity
of their establishment, will annul a great portion of the
land rights of those several territories. Finally, whatever act of
the government may be considered as amounting to evidence of
its ratification of the establishment of the fauxbourg, is retrospective,
and will amount to an original authorization under the
maxim, 'omnis ratihabitio retrotrahitur, et mandato æquiparatur.'
[Sidenote: Gravier's sale.]
[Sidenote: 7*]
Bertrand Gravier proceeded to sell the lots of his new Fauxbourg,
and particularly he sold the whole range next
the river. Such deeds for these lots as have been
produced, describe them as 'haciendo frente al rio,'
'fronting the river.' And it is affirmed, [Examen 13. Poydras
7. and 18. Thierry 39.] that almost all, if not all the deeds, used
the same expression. [See notarial copies of the deeds of B.
Gravier to Nicholas Gravier, and of Nicholas Gravier to
Escot, Girod, *Wiltz.] Bertrand Gravier himself, on all
occasions, [Pieces Probantes 9. 21. 28. 30. Livingston
59. Monile's deposition, MS.] declared that he had sold his lots
'faisant face au fleuve,' and had passed to the purchasers his
right to the _devanture_, meaning every thing in front of his lots.
Whatever extent then towards the river, passed to the Jesuits
by the term 'face au fleuve,' or from the king to the purchasers
of the Jesuit's property, under whom B. Gravier claimed, the
same extent was, by the same expression,'face au fleuve,' or
'frente al rio,' passed by Bertrand Gravier to the purchasers of
the front lots. If the words 'face au fleuve,' gave him only to
the road and levee, he by the same words gave them no farther;
if to the water edge, then he sold to the water edge also, and
having parted with all his right as riparian possessor, could
transmit none to those claiming under him by subsequent title,
as the plaintiff does. In a note added to the end of the printed
Report of this case, whether by the reporter or the plaintiff does
not appear, it is said that this objection was answered by showing,
_from the deeds_, that each lot had a clear front boundary,
by referring to the '_plan which in no instance crossed the
road_.' And that this brings it within the rule of law which says,
'in agris limitatis jus alluvionis locum non habere constat.'
Dig. 41. 1. 16. This process of deduction, if not clear, is compendious
at least, and better placed in a note, than in the text,
where explanation would have been expected. Let us spread it
open and examine it. What says the deed to Nicholas Gravier
for 58 lots?
[Sidenote: 8*]
Yo Don Beltran Gravier vendo a Don Nicholas Gravier cinquenta
y ocha terrenos situados en esta dicha ciudad, extramuros de
la puerta de Chapitulas, à saver, _trece haciendo frente al
rio_, Missisipi, y lindando por el lado de abaxo, que es de
esta dicha ciudad, con terreno de Don R. Jons, y por el de
arriba con otros de Don J. B. Sarpy, &c. Y los _quarenta y
cinco terrenos restantes_ completa a los cinquenta y ocho,
que quedan indicados, comenzan sobre el limite de la primera
calle, formande una linea directa à empezar por el terreno que
se halla detras del de Don J. Poydras, todo conforme al plano
que, delineado por Don C. L. Trudeau, hé entregado al comprador
para su inteligencia* y resguardo: però con la condicion de
que me reservo el derecho de tomar la tierra que necessitaré
para mi fabrica de ladrillos, extension de los nominados tres
terrenos que hacen frente al dicho rio.
I Don Beltran Gravier sell to Don Nicholas Gravier 58 lots
situated in this said city without the gate of Chapitulas, to
wit, _13 fronting the river_ Missisipi, and bordering on the
lower side, which is that of this said city, with the lot of
Don R. Jones, and on the upper side with others of Don J. B.
Sarpy, &c. And _the 45 lots remaining_, the complement of the
58 before mentioned, commence above [or beyond] the limit of
the first street, forming a right line, beginning at the lot
which is behind that of Don J. Poydras, in conformity with
the plan which having been delineated by Don C. L. Trudeau,
I have delivered to the purchaser for his information and
ascertainment: Nevertheless, with the condition that I reserve
to myself the right to take the earth which I shall need for
my manufacture of bricks on the beach or batture which is in
the extension of the said 13 lots which front the river.
[Sidenote: Streets.]
[Sidenote: 9*]
The first part of this description is of the 13 lots, to wit, that
they front the river. The second part relates wholly to the remaining
45 lots, which begin beyond or above the first street in
a straight line from the lot behind Poydras', and refers to the
plan to show their position more particularly as back lots, behind
the front range. It is to be noted that the public way in
front of the fauxbourg is not a street: it is the same chemin
royale, royal road, which has existed from early times, and has
never been merged in the character of a street. Nothing can
prove more clearly, that this reference to the plan was not to
give a front line to the 13 lots, than that the same deed reserves
the right of digging earth on the batture beyond that line. Now
if nothing was meant to be conveyed _beyond_ the front line marked
in the plan, why reserve a right to dig earth on the batture,
which is _beyond_ that line? And that Nicholas Gravier, Escot,
Girod and Wiltz did not consider this line as the limit of their
rights, appears from their deeds conveying the _batture_ expressly
by that name, with the lots themselves. On the whole, we see
here a curious specimen of tergiversation in reasoning. When
urged that the grant to the Jesuits, and to Bertrand Gravier,
though expressed to be 'face au fleuve,' must still have stopped
at this line or edge of the royal road, it is answered that those
terms convey to the water edge, and make it an 'ager arcifinius,'
to which the right of alluvion appertains. But when Bertrand
Gravier conveys to his purchasers 'face au fleuve,' they turn
about and say that the same identical words 'face au fleuve,'
convey now only to this same line or edge of the royal road,
which they overleaped before, and make the grounds conveyed
an 'ager limitatus,' to which the right of alluvion does not appertain.
It is perfectly equal which of the meanings is ascribed
to these words. Only give them the same in both instances,
and say which. If these words make the road your boundary,
you never had a right to the batture beyond it. If they extend
to the river what was conveyed to _you_, they extend to the
river also what was conveyed _from you_. Will it be
pretended that, after establishing his town, Bertrand
Gravier could then have sold the streets to others? and
yet he might, a fortiori, having not included them in any deed.
But does not common sense and common honesty
*proclaim that the establishment of his town, and sale
of the lots, implied a relinquishment to the inhabitants
of the communications of streets and shores adjacent, as a common,
which are the necessary and constant appendages of every
town? The express conveyance then of his riparian rights, and
the implication as to them and the streets, are believed to be
conclusive to show that the plaintiff having had no right, can
have sustained no wrong.
[Sidenote: Beach or Batture.]
In 1797, Bertrand Gravier died intestate; and at this epoch
we must introduce what constitutes the sole object of the existing
contest. Opposite to the habitation or plantation
of B. Gravier, now the Fauxbourg Ste. Marie,
the beach of the river, called in that country Batture,
of ordinary breadth within memory, has sensibly increased, by
deposits of earth, during the annual floods of the river, [Derb.
xix.] till in the year 1806, it was found to extend in breadth, at
low tide, from 122 to 247 yards of our measure, from the water
edge into the river: and from about 7 f. height, where it abuts
against the bank, declining to the water edge. See Pelletier's
plan annexed. Thiery xvii. While uncovered, which is from
August to January inclusive, it has served as a Quai for lading
and unlading goods, stowing away lumber and firewood, and
has furnished all the earth for building the city, and raising its
streets and courts, essential in that oozy soil. Derb. ii. While
covered, which is during the other six months of the year, from
February to July inclusive, [Liv. 58. Poydras 20. 21. 23.] it is
the port for all the small craft of the river, and especially for
the boats of the upper country, which, in the season of high
water, can land or lie no where else in the neighborhood of the
city. During this period, they anchor on its bottom, or moor to
its bank. It is then, like every other beach, the bed of the river
one half the year, and a Quai the other half, distinguished from
those of tide waters, by being subject to an annual, instead of a
semidiurnal ebb and flood. In this beach or shoal, with the bank
to which it is adjacent, if Bertrand Gravier claimed any right,
as riparian proprietor of the habitation, he had certainly meant
to convey that right to the purchasers of the front lots, by the
term 'frente al rio,' 'fronting the river,' reserving expressly, as
we have seen, from one purchaser of 58 lots, a right to take
earth, from the beach, for his brickkilns. As he died without
children, the inheritance belonged to John Gravier, and other
brothers and sisters whom he had left in France, or their representatives,
as co-heirs.
[Sidenote: Purchase by Inventory.]
[Sidenote: 10*]
[Sidenote: 11*]
[Sidenote: Livingston's arrival.]
[Sidenote: Parisien.]
[Sidenote: 12*]
By the civil law, if an heir accepts the inheritance,
he is considered, not merely as the representative, but
as continuing the person of the ancestor himself, is answerable
for all his debts, and out of all his property, as well his
own, as* what he had newly acquired by the inheritance.
Time, therefore, was allowed him to inform himself of
the condition of the estate and debts, during which it was considered
as an hæreditas jacens, vested in nobody. If he declined
taking the inheritance simply as heir, he was allowed to take it
as purchaser, or in their language, as heir with the benefit of
inventory: whereupon an inventory and appraisement of it took
place, and he had the preëmption at the appraised value. He
was then liable to no more debts than the amount of the appraisement;
and if there was a surplus of the appraised value
over and above the debts it was his, if a single heir, or partitioned
among the co-heirs, as parceners, if there were more than
one. Brown. civ. law, I. 218. 302. Kaim's law tracts, 389.
Gibbon's c. 44. 153. Bertrand Gravier is understood to have
left France indebted and insolvent: and John Gravier, therefore,
either knowing, or ignorant of the amount of the debts,
chose on behalf, or perhaps in defraud, of the co-heirs, to decline
the inheritance, and to take the estate as a purchaser by inventory
and appraisement. It was inventoried and appraised.
In the inventory is placed a single article of lands, in these
words, 'are placed in the inventory the lands of this habitation,
whose extent cannot be calculated immediately, on account of
his having sold many lots; but Mr. N. Gravier informs us that
its bounds go to the forks of the bayou, according to the titles.'
And in the appraisement also there is but this same single article
of lands, thus described, 'about thirteen arpents of land, of
which the habitation is estimated, including the garden, of
which the most useful part is taken off in front, the residue
consisting of the lowest part, [to wit, that descending back to
the bayou,] the side being sold to Navarro, one Percy, and the
negro Zambo, a portion of which, &c. estimated at 190 D. the
front acre, with all the depth, which makes 2470 D.' Then follows
the adjudication, which adjudges to John Gravier 'the
effects, real estate, moveables and slaves _which have been inventoried_
as belonging to the estate of his deceased brother Bertrand
Gravier, &c. Report 9. 10. We see, then, that no lands
were inventoried but the thirteen arpents in front, composing
the inhabitation. And it is impossible that that term should be
meant to include the beach of the river, cut off from it by the
intervention of the whole Fauxbourg of seven ranges of squares;
or that they should not have used a more obvious expression, if
the idea of the beach had been in their minds. Nobody could
consider these two parcels, distant and disjointed as they were,
as being one parcel only, one habitation. No man having two
farms, or two tracts of land, separated by the lands of others,
would expect that by devising or conveying one, the
other would *pass also. In fact, at that time, neither
John Gravier nor any one else, considered the beach as
any part of Bertrand Gravier's estate: and in the appraisement,
they estimate the front arpents, (that is, fronting on the fauxbourg,)
with all their depth to the bayou, at 190 dollars, the
front arpent; contemplating clearly only what was between the
fauxbourg and bayou. Accordingly Fernandez, acting for the
Depositor General, the legal officer in those cases, swears that
he took charge and possession of all the estate according to the
inventory which had been made from the 28th of June to the
4th of July, 1797; that, in that inventory, the batture never was
mentioned, or heard of, as property of Gravier, nor in charge
of the Depositor, and that, on delivering the estate to John Gravier,
the batture never was spoken of. It is equally certain that
had there been an idea that they were smuggling the batture
away, through these proceedings, the citizens of New-Orleans
would not have been so silent, nor the Governor, the Cabildo
and other Spanish authorities so passive, when so active on all
former occasions respecting the batture: and that had the batture
been under the view of the appraisers, instead of estimating
it at 2470 dollars, conjointly with other thirteen arpents, a very
different sum must have been named. The batture alone is now
estimated at half a million of dollars. But the truth is, that
neither John Gravier, nor any one else, at that day, considered
it but as public property. And for six years ensuing, he never
manifested one symptom of ownership; until Mr.
Livingston's arrival there from New-York, with the
wharves and slips of that place fresh in his recollection.
The flesh-pots of Egypt could not suddenly be forgotten,
even in this new land of Canaan. Then John Gravier received
his inspiration that the beach was his; and is tempted, by one
kind of bargain after another, to try his fortune with it. It was
only to lend his name, and receive a round sum if anything
could be made of it. To get over the palpable
omission of it in the inventory and appraisement, they
find a man whose recollection is exactly à propos; a Henry
Parisien, a comedian by profession, and a joiner by trade. He
had been one of the appraisers, 10 years before, and recollected,
and so swore that he had '_walked on the batture_, before the
closing of the appraisement to ascertain its extent, and be the
better able to judge of its value, and that it was through forgetfulness
that _it had not been taken into the estimate_.' Piecès Prob.
33. It happens that nature bears witness against him. From
the 20th of June to the 4th of July is within the period of high
waters; and it is proved that, at the very time of the appraisement,
the river was still overflowing, and the batture covered
with water: *the journals of the sawmills further attest
that they did not cease to work till the 25th of August
of that year; and when the waters of the river are sufficiently
low to stop the mills, all the battures are still covered with water.
P. Pr. 34. However even this Henry Parisien swears, '_that
the batture was not in the estimate_, and that it was through forgetfulness
that it was not.' Examin 19. Rep. 21. Pi. Prob. 33.
No matter through what cause, it is enough that it was _not in
the inventory or estimate_, and of course not sold to J. Gravier.
This corroborates the testimony of the Depositor, that he neither
had it in his charge, nor included it in the estate sold and delivered.
J. Gravier must therefore, as to this part of his brother's
estate, if his it were, recommence his work, by having a new
inventory, appraisement and adjudication. But to repel the
present proceeding, it suffices that having made his election to
take, not as heir, but purchaser, this beach is not yet his; it is
still an hæreditas jacens, and before he can convey it to Mr.
Livingston, he must get it by a new process, and make a third
bargain.
[Sidenote: 13*]
[Sidenote: Bigarre.]
[Sidenote: 14*]
[Sidenote: Decision of Court.]
[Sidenote: Alarm occasioned.]
[Sidenote: Servitude of road.]
[Sidenote: 15*]
[Sidenote: 16*]
[Sidenote: U. States no party.]
We will proceed further to trace the history of this acquisition
of the batture, by the plaintiff, who writes a letter of lamentations
to some member of the government, on the 27th of June, 1809.
That 'Congress will probably adjourn without coming to any
decision on the subject of my removal by the late president of
the United States from my estate at New-Orleans.' A most ungrateful
complaint; for had he not been removed, he must, at
the time of writing this letter, have been, as his estate was, some
10 or 12 feet under water; the river being then at its greatest
height. And when was this notable discovery made, that the
beach of the river was the separate and exclusive property of
J. Gravier, clear of all public right to its use? Let us hear the
Governor, in answer to this question. In a letter to the Secretary
of State of October 13, 1807, he says, 'early after the arrival
of Mr. Livingston in this territory, he became concerned
in the purchase of a parcel of ground fronting the fauxbourg of
this city, commonly called the batture, a property which had
been occupied as a common by the city for many years previous,
and the title to which, in the opinion of the inhabitants was
unquestionable.' The day[82] of the arrival of Mr. Livingston in
New-Orleans I do not know; but I recollect he was one of
the earliest emigrants to that country, which was ceded to the
United States on the 30th of October, 1803. We are told, [Rep.
11. Thierry 5.] it was proved by some oral testimony that J.
Gravier _began_ an inclosure of 500 feet square in that
year, and completed it in the next. The day *of beginning
is not stated; but we may safely presume it was not
while the French Governor thought the country belonged to his
master, and most probably not till after 'the early arrival of Mr.
Livingston.' This enclosure was demolished by an order of
the Cabildo of Feb. 22, 1804.[83] The next step was to make an
ostensible deed, to an ostensible purchaser,[84] a Peter
de la Bigarre, a brother emigrant of Mr. Livingston's
from New York, some old acquaintance. This was dated
March 27, 1804, is expressed to be in consideration of 10,000
dollars, and conveys two undivided thirds of all that part or
parcel of land, situate on the bank [sur la rive] of the river
Missisipi, between the public road and the current of the said
river, &c. with a warranty. I call the purchases ostensible, because
notwithstanding his pretended purchase, J. Gravier, on
the 20th of October, 1805, [Rep. 1.] commenced a suit against
the city, as proprietor of the whole, and the court adjudged him
proprietor of the whole; and because the same J. Gravier,
[Poydr. 3.] by a deed to the same P. de la Bigarre, in which no
mention was made of the former, or reference to it, conveys to
him on the 14th Dec. 1806, the batture Ste. Marie, along the
whole limits of this land, between the road and river, on condition
that he shall pay all expenses of the suit depending, with
50,000 dollars in addition; that the property shall remain unsold
and hypothecated for the purchase money till paid, and that if
the law-suit fails, the sale is void, and Bigarre to pretend to no
damages for non-execution. It is observable here that neither
buyer or seller risked anything. It was a mere speculation on
the chance of a law-suit, in which they were to divide the spoils
if successful, and to lose nothing if they failed.[85] It was by our
law a criminal purchase of a pretense title, 32. H. 8. 9. and
equally criminal by the law of that territory, where I presume
the provision of the Roman law is in force, 'qui improbè coeunt
in alienam litem, ut quidquid ex condemnatione in rem ipsius
redactum fuerit, inter eos commnnicaretur, lege Juliâ, de vi privatâ,
tenentur.' Dig. 47. 8. 6. 4 Blackst. 135. 'Whosoever
shall take part in the suit of another, so that whatever shall be
recovered by the judgment is to be divided between them, shall
be subject to the Julian law, de vi privata.' By which law, ib.
tit. 7. § 1. they were to lose one third of their goods, and be
rendered infamous. The deed was not only criminal on its
face, but was void by an express law of the territory, [a law of
Governor Unzaga. Poydras 6. Rep. 25.] and so pronounced
to be on the floor of Congress *by their representative,
because not executed before either witnesses
or notaries. It was kept secret from its date, till the day before
judgment was pronounced, when the parties becoming apprised
of the decision which was to be given, (for this was known
at least on the 20th of May,) [Governor Claiborne's letter May
20, '07,] produced it, for the first time, to the
Notary to be recorded. And the day after its publication,
the court, by the opinion of two members
against one, [Examen 3.] adjudged the property wholly to the
very man, who, if he had ever had any right, had conveyed away
two thirds of it, before he brought his action, and
the whole while it was pending. The alarm which
this adjudication produced was immediate and great.
The fact was notorious that, from the earliest to the latest extension
of the beach, the public had had a free use of it, as
their Quai in low water, and in high water their port; and
never before had their right been doubted by themselves, or
questioned by their riparian possessors. If any fact was ever
proved by human testimony, this is. Turn to the Pieces Probantes,
and out of 29 affidavits of the oldest and most respectable
persons in the territory, men who had, most of them, borne
offices under their former government, 21 of them uniformly
declare that the public had ever been considered as having a
right to the beach, as their port and Quai, that, as such, the
Governors and Cabildo had the constant care and control of it,
had demolished buildings and enclosures erected on it, had, by
public Ban, prohibited all erections or obstructions to its use, had
themselves erected a rampart, to inclose within it a chamber accessible
for earth at high water for rebuilding the city after the
fire, and exercised uninterruptedly every other act of authority
derived from the public rights; and 11 of them prove, as far as
a negative can be proved, that the Graviers, till the change of
government, and new views by Edward Livingston, had never
pretended to more than the right of Common in it, and never
had questioned that of the public, or the authority of the
Governor and Cabildo over it. While they held
the adjacent plantation indeed, they maintained the
road and bank, as all rural proprietors are obliged
by[86] law to do: for here it is proper to observe, that pursuing the
spirit of the Roman law, which prescribed that every one should
maintain the public road along his own dwelling, 'construat vias
publicas unusquisque secundum propriam domum.' Dig 43.
10. 3. The lands in Louisiana were granted generally
on a condition, (called in those days *_servitude_,) of furnishing
ground for a public road, and of opening and
maintaining that road. From which condition, however, they
were released as to any portion of the ground which should
afterwards become a town; the expense of roads or streets of
that portion devolving then on the town itself. Accordingly
B. Gravier, after establishing the front of his plantation into a
suburb, and thus cutting off the residue from the road and
river, being[87] called on to repair the road by an order from
Governor Carondelet, who seems at the moment not to have
adverted to the change, Bertrand Gravier answered, that having
sold the lots _faisant face au fleuve_, fronting the river, he had
abandoned the batture to the town, and that the road and levee
could not be at his expense, the Governor correcting himself at
once, says, 'Gravier is right, all this is true,' and immediately,
and ever after had the repairs made by the public. And the
Graviers from that time stood discharged from these burthens
on the same principle which had freed the original owners of
the site of the city from maintaining the banks of the city.
This is declared by an host of witnesses in the Pieces Probantes,
and probably could have been declared by every ancient
inhabitant of the place. We are told indeed by Laroche and
Segur, in their affidavit, [Livingston 66.] of Carondelet, and
some other Governor asking leave of Gravier in 1795 and
1798, to deposit masts on the beach. If this be true, which Mr.
Thierry, [p. 42.] who knew the witnesses, treats as ridiculous
and absurd, it shows that they were forgetful, or inconsistent,
or over complaisant; but not that Gravier required, or expected
to be asked; and much less could it divest a public right, acknowledged
from the earliest times, and essential to the commerce
and existence of the city. An accurate discrimination
indeed between the measure of right in the riparian proprietor
while he held the adjacent farm, in the individuals of the nation
as usufructuaries, and in the sovereign as their representative
and trustee, as respectively apportioned to them by the law,
seems not to have been attended to either by the citizens at
large, or the adjacent proprietors. The riparian possessor appears
to have been sensible he had some rights, without distinctly
understanding what they were: but, whatever they were,
he knew he had parted with them by the deeds establishing his
fauxbourg. The citizens, in the daily habit of using without
control the port and Quai, imagined themselves exclusive proprietors
of its soil, and came forward in that capacity, claiming,
sometimes under some vague title which they did not define,
and sometimes under the abandonment of right by Bertrand
Gravier; *the Sovereign, formerly their kings, but
now the United States the legal holder of the public
rights in the beds, beaches and banks of all navigable waters,
seems not to have been thought of at all in the contest.
The United States were no party to the suit;
nor could they be, having made themselves _amenable_
to no tribunal. Their property can never be questioned in any
court, but in special cases in which, by some particular law, they
delegate a special power, as to the boards of Commissioners, and
in some small fiscal cases. But a general jurisdiction over the
national demenses, being more than half the territory of the
United States, has never been by them, and never ought to be,
subjected to any tribunal. Not adverting to this circumstance,
however, the consternation in New-Orleans, on this decision, was
like that of Boston, on the occlusion of their port by the Boston
port bill. If we have not forgotten that feeling, we may judge
what the citizens of New-Orleans felt on this decree of the court.
The governor instantly writes, [letter of May 20, '07.] 'I
understand that this morning an important cause has been determined,
in which Edward Livingston was the _real_ plaintiff,
and the city defendant, as to the right of property to some lands
in front of the fauxbourg, made by the river, and over which the
city has heretofore exercised a right of ownership. My impression
is that the United States are the legal claimants to it.' On
the 21st of August, 1807, Mr. Derbigny's opinion was published,
[Thierry 5.] and first brought into view the right of the United
States, and that the sentence of the court must of course, as to
them, be a mere nullity, 'res inter alios acta, quæque aliis non
potest præjudicium facere.' A thing passing between others,
and which to no others can do prejudice. Codex. 7. 60. And
coming, with respect to the United States, under the provisions
of the same code.
Tit. 56. 'Si neque mandasti fratri tuo defensionem rei tuæ,
neque quod gestum est ratum habuisti, præscriptio rei judicatæ
tibi non oberit: et ideò non prohiberis causam tuam agere,
sine præjudicio rerum judicatarum.'
'If you have not committed to your brother the defence of
your right, nor sanctioned what has been done, the plea _rei
judicata_ shall not bar you: and therefore you shall not be
precluded from conducting your own cause, without exception
from a former decision.'
[Sidenote: 17*]
Certainly the city council did not appear, or pretend to appear,
under authorization from the government of the United
States, nor as the advocates of their rights. They were called
there as defendants of their own claim. The court did not undertake
to decide on the right of the United States, which
was *neither before them, nor within their competence;
and the injunction they issued could only be addressed
to the parties between whom they had adjudged, and not to
suspend the rights of others whom they had never heard, much
less of the United States, who could not be heard before them.
Sec 2 Dallas 408. 3 Dallas 412. 414. 415.
[Sidenote: Livingston's Intrusion.]
[Sidenote: 18*]
[Sidenote: Appeal to government of the United States.]
[Sidenote: 19*]
[Sidenote: Livingston's works.]
[Sidenote: 20*]
Presuming, however, that the coast was now clear, and the
question finally settled, the ostensible actors withdrew,
and their principal comes forward, is put into
possession by the Sheriff, and begins his works. The
Governor, in his letter of Sept. 3, 1807, says, 'a few days since,
[Aug. 24.] Mr. Livingston employed a number of negroes to
commence digging a canal which he projected to take in a part
of the land called the batture. But the citizens assembled in
considerable force and drove them off. On the day following
he went in person, but was again opposed by the citizens. The
minds of the people were much agitated. The opposition is so
general that I must resort to measures the most conciliatory, as
the only means of avoiding still greater tumult, and _perhaps
much bloodshed_. I have not issued a proclamation because it
might make an impression in the United States that the people
are disposed for insurrection, which is not true. My opinion is
that the title is in the United States. If the batture be reclaimed,
it is feared the current of the Missisipi will in some
measure change its course, which will not only prove injurious
to the navigation, but may occasion degradation in the levees
of the city, or those in its vicinity.' To abridge our narration
by giving the substance of the communications. The people
assembled the next day about the same hour, and for several days
successively, by beat of drum. [Livingston's letter of Sept. 15.
'07.] On Monday the 31st of August, Mr. Livingston recommenced
his work, after having given notice that he should do so.
He began about 10 o'clock, A. M. and about 4 or 5 o'clock in
the afternoon the people assembled again and drove off his labourers.
On the 14th of September he again attempted to
work, getting two constables to attend his labourers. The people
drove them off, and the constables having noted on a list some
of those present, they seized them, took the list and tore it to
pieces. [Sheriff's letter.] On the next day he writes to the
Governor that he shall set his labourers to work again that day
at 12 o'clock, and 'he shall not be surprised to see the people
change the insolence of riot into the crime of murder.' At noon
he accordingly placed 10 or 12 white labourers there. In the
afternoon the people re-assembled to the number of several
hundreds. The governor repaired there and spoke to
them. He was heard with respectful attention:*and
one of them, speaking for the whole, expressed the
serious uneasiness which the decision of the court had excited,
the long and undisturbed possession of the batture by the city,
as well under the French as the Spanish government, and the
great injury which would result to the inhabitants
if the land should be built upon and improved. And
another declaring that they wished the decision of
Congress, and in the mean time, no work to be done on the batture,
there was a general exclamation from the crowd, 'that is
the general wish,' followed by a request that they might nominate
an agent to bear to the President of the United States, a
statement of their grievances, and that the Governor would recommend
the agent to the government. He said he would do
so, and they nominated Col. Macarty, by general and repeated
acclamations. They then withdrew in peace to their respective
homes, and on the 16th the Governor expresses the hope that
this unpleasant affair is at an end, that everything is then quiet,
and the public mind much composed: that some of his hot-headed
countrymen censured the mild course which was pursued,
and would have been better pleased if the _military_ had
been called upon to disperse the assemblage. But I feel, says
he, that the policy adopted was wise and humane, and that a
contrary conduct would have increased the discontents, and
_occasioned the effusion of much innocent blood_. The Louisianians,
he adds, are an amiable, virtuous people, but sensibly feel
any wrongs which may be offered them. Mr. Livingston is
alike feared and hated by most of the ancient inhabitants. They
dread his talents as a lawyer, and hate his views of speculation,
which in the case of the batture was esteemed very generally by
the Louisianians no less iniquitous, than ruinous to the welfare
of the city.' The governor says in another letter of October
5, to the Secretary of state, that in a progress he made a few
days afterwards through several parishes of the territory, he
perceived but one sentiment with respect to the decision of the
court. The long and uninterrupted use of the batture by the
city, the sanction given by the Spanish authorities to the public
claim, and the heavy public expenditures in maintaining the
levee which fronts it, seem to have given rise to a very general
opinion that the court has been in error in deciding the batture
to be private property. On the 13th of November he again
writes, 'I should be wanting in duty did I not earnestly recommend
the subject of the batture to the attention of the
government. There is no doubt but the agents of Spain considered
it as a public property, and did appropriate the same to
the use of the city, as a common. I should presume that, under
the treaty, the United States may justly claim the batture,
and if any *means can be devised to arrest the
judgment of the territorial court, or to carry this case
before another tribunal, the earlier they are resorted to, the better;
for Mr. Edward Livingston is now in possession of the property,
and _making improvements thereon_.' And the
next day, Nov. 14, a grand jury of the most respectable
characters of the place gave in a presentment
to the court in which they say, 'We present as a subject of the
most serious complaint the present operations on the batture
by Edward Livingston and others connected with him: that
this is from 4 to 6 months of every year a part of the bed of the
river, and an important part of the port of New-Orleans: that
these operations of Edward Livingston are calculated to obstruct
the free navigation of the river, to change the course of
its waters, to deprive our western brethren, whose only market
for the produce of their extensive territory, is to be found in this
city, of the deposit which has hitherto remained free to them,
and not only of incalculable importance, but of absolute necessity.
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.' We find Mr. Livingston then, instead of awaiting
the decision of Congress, the only constitutional tribunal,
resuming his works boldly, and the people, whom he represented
as like 'to change the insolence of riot into the crime of
murder,' appealing peaceably, by presentment, to the laws of
their territory until the National government should decide. In
the latter end of the same year, [Surveyor's Rep. to Mayor,
Dec. 28, '08.] he opens a canal from the bank directly through
the beach into the river [88]276 feet long, 64 feet wide, and 4 feet
2 inches deep at low water, and with the earth excavated he
forms a bank or quai, on each side, 19 feet 6 inches wide, from
4 to 6 feet high above the level of the batture, and faced with
palisades. Within one year after this, what had been anticipated
by the Governor, the grand jury and others, had already
manifested itself. In Dec. of the ensuing year, 1808, [See Surveyor's
rep. Dec. 28, '08.] a bar had already formed across the
mouth of the canal, which was dry at low water, the course of
the waters had been changed during the intervening flood, and
the places where dry ground first showed itself, on the decrease
of the river, were such as had, the year before, been navigable
at low water. [Mayor's *answer to Governor,
Nov. 18, '08.] The port in front of the town had been
impaired by a new batture begun to be formed opposite the
Custom house, which could not fail to increase by the change
of the current. The beach or batture of St. Mary had, in that
single tide extended from 75 to 80 feet further into the river,
and risen from 2 to 5 feet 10 inches generally, and more in
places, as a saw scaffold which, at the preceding low tide, was
7 feet high, was now buried to its top; and Tanesse, the Surveyor,
[See his affidavit, MS.] in his affidavit says he does not
doubt that these works have produced the last year's augmentation
of the batture, at the expense of the bed of the river,
have occasioned the carrying away a great part of the platin or
batture of the lower suburbs, and breaking the levee of M.
Blanque next below, and that the main port of the city being a
cove, immediately below Livingston's works, would, if they
were continued, be filled up in time; and it is the opinion of
Piedesclaux also, [See his 3d affidavit, MS.] that they would
produce changes in the banks of the river, on both sides, prejudicial
to the city, and riparian proprietors, by directing the
efforts of the river against parts not heretofore exposed to it.
And Mr. Poydras tells us, [p. 20 of one of his speeches,] that
when the river is at its height, the boats which drift down it
can only land in the eddies below the points, as they would be
dashed to pieces in attempting to land in the strong current.
That, at the town, they cannot land for want of room, there being
always there two or three tier of vessels in close contact;
nor at the lower suburbs of Marigny, which being at the lower
part of the cove, are too much exposed both to winds and current.
Indeed no evidence is necessary to prove that in a river
of only 1200 yards wide, having an annual tide of 12 to 14 feet
rise, which brings the water generally to within 8 or 10 inches,
and sometimes 2 or 3 inches, of the top of the levee, insomuch
that it splashes over with the wind, [See Peltier's, and Tanesse's
affidavits, MS. and also the maps,] were the channel narrowed
250 yards, as Mr. Livingston intends, that is to say, a fourth or
fifth of its whole breadth, the waters must rise higher in nearly
the same proportion, that is to say, 3 feet at least, and would
sweep away the whole levee, the city it now protects, and inundate
all the lower country.
[Sidenote: 21*]
[Sidenote: Cabinet deliberation.]
Thus urged by the continued calls of the Governor, who declared
he could not be responsible for the peace or preservation
of the place, by the tumult and confusion in which the city was
held by the bold aggressions of the intruders on the public rights,
by the daily progress of works which were to interrupt the commerce
of the whole western country, threatened to sweep
away a *great city and its inhabitants, and lay the adjacent
country under water, I listened to the calls of
duty, imperious calls, which had I shrunk from, I should have
been justly responsible for the calamities which would have followed.
On the 28th of October, '07, the Attorney General had
given his opinion, and on the 27th of November,
I asked the attendance of the heads of the departments,
to whom the papers received had been previously
communicated for their consideration. We had the
benefit of the presence of the Attorney General, and of the
lights which it was his office to throw on the subject. We took
of the whole case such views as the state of our information at
that time presented. I shall now develope them in all the fulness
of the facts then known, and of those which have since
corroborated them.
[Sidenote: What law?]
[Sidenote: Proclamation of O'Reilly.]
[Sidenote: French code.]
[Sidenote: 22*]
[Sidenote: 23*]
[Sidenote: Roman.]
[Sidenote: 24*]
The first question occurring was, what system of law was to
be applied to them? On this there could be but one
opinion. The laws which had governed Louisiana
from its first colonization, that is to say, the laws of France with
some local modifications, were still in force when this question
was generated by the sale of the Jesuits' property to B. Gravier
and others. France had indeed, about the end of the preceding
year 1762, by a secret convention, ceded Louisiana to Spain, to
be delivered whenever Spain should be in readiness to receive it.
But this was not announced to the inhabitants till the 21st of
April, 1764, nor did Spain receive possession till the 17th of August,
1769. [9 Raynal, 222. 235.] In the mean time the French
government and laws continued, the Jesuits' property was sold,
and purchased under the faith of the existing laws; and according
to these laws must the rights acquired by the purchaser, or
left in the crown, be decided. Indeed in no case are the laws of
a nation changed, of natural right, by their passage from one to
another denomination. The soil, the inhabitants, their property,
and the laws by which they are protected go together. Their
laws are subject to be changed only in the case, and extent which
their new legislature shall will. The changes introduced by
Spain, after 1769, were chiefly in the organization of their government,
and but little in the principles of their jurisprudence.
The instrument which some have understood as suppressing
the French and introducing the Spanish
code, is the proclamation of O'Reilly of November
25, 1769, two months after the actual delivery of the colony.
[See appendix to documents communicated to Congress by the
President, with his message of October 17, 1803.] The transfer
of the country, however, had been announced to the people five
years before. Now surely, during these five years
the *French laws must have continued entire, and
of course after them, so far as not altered. And
that this proclamation made specific only, and not
general alterations, a brief examination of its tenor
will evince. It begins by charging the late council with a participation
in the insurrection which had taken place, and by
declaring it indispensable to abolish that, and to establish the
_form_ of politic government and administration of justice prescribed
by the wise laws of Spain. But a _form_ of government
may surely be changed, and the mass of the laws remain the
same, as took place in our revolution. He proceeds then to establish
that _form of government_, _dependence_ and _subordination_,
which should accord with the good of the service, and happiness
of the colony. For this purpose he substitutes a Cabildo,
in place of the ancient council, and instead of former analogous
officers, he says there shall be Alferes, Alcades, Alguazils, Depositors,
Regidors, a Scrivener, Procurator, Mayordomo, &c.;
adopting thus the Spanish instead of the French organization
of officers, for the administration of the laws. He changes the
manner of proceedings in judicial trials, and of pronouncing judgments,
according to a digest made by Unestia and Rey, by his
order, _until_ a general knowledge of the Spanish language and
more extensive information on the statutes themselves might be
acquired; prescribes rules for instituting actions by parties, of
different denominations, the names and substance of the pleadings,
rules for appearances, answers, replications, rejoinders, depositions,
witnesses, exceptions, trials, judgments, appeals, executions,
testaments, probates, advancements, and distributions: not
changing the great outlines of the law, or the ratio decidendi
generally; but merely the organization of officers, and forms of
their proceeding. He states also the criminal law, what it is in
sundry cases of irreligion, treason, murder, theft, rape, adultery,
and trespass, proclaiming mostly what was already law; lastly,
he establishes the fees of officers, and with that closes the proclamation,
without a word said about abolishing the French, and
substituting the Spanish code of laws generally. As far then as this
instrument makes any special changes, its authority is acknowledged.
But the very act of making special changes is a manifestation
that a general one was not then intended. He did not
mean by this instrument to change 'all and some.' One may
indeed conjecture, from loose expressions in the instruments, that
a more extensive change was in contemplation for some future
time, when the inhabitants, as it says, should have acquired a
general knowledge of the Spanish language. But _until_ then
expressly, and in the interim, the innovations it specifies are
the only ones introduced. The great system of law which
*regulates property, which prescribes the rights of persons and
things, and sanctions to every one the enjoyment of those
rights, is left untouched, in full force and authority. If such
a radical change were really meditated, it was never carried
into execution; nor seems at any after time to have occupied
seriously the attention of government. In the following year
1770, O'Reilly issued an additional ordinance respecting grants
of lands; and Carondelet, in 1795, (26 years after the possession
of the colony, and a year only before its transfer to us,) passed
an ordinance of police, concerning bridges, roads, levees, slaves,
coasters, travellers, arms, estrays, fishing and hunting; and these
three acts seem to constitute the whole of the changes made in
the established system of laws during the Spanish occupation of
the country. Probably the Spanish authorities found, in the
progress of their administration, that the difference between the
French and Spanish codes, taken both from the same Roman
original, would not justify disturbing the public mind, by a formal
suppression of the one, and substitution of the other. Probably
the officers themselves, not adepts in either, and partly French,
and partly Spanish individuals, confounded them in practice as
they found convenient; and hence the ill-defined ideas of what
their laws were. But certainly when we appeal, as in the present
case, to exact right, the French code is the only one sanctioned
by regular authority; and the special changes before mentioned,
of organization and police, having no relation to the beds
and increments of rivers, that code is to give us the law of the
present case. That code, like all those of middle and southern
Europe, was originally feudal, [Encyclop. Method. Jurisprudence.
Coutume. 400.] with some variations in the different provinces,
formerly independent, of which the kingdom of France had
been made up. But as circumstances changed, and civilization
and commerce advanced, abundance of new cases and questions
arose, for which the simple and unwritten laws of
feudalism had made no provision. At the same
time, they had at hand the legal system of a nation highly civilized,
a system carried to a degree of conformity with natural
reason attained by no other. The study of this system too was
become the favorite of the age, and, offering ready and reasonable
solutions of all the new cases presenting themselves, was
recurred to by a common consent and practice; not indeed as
laws, formally established by the legislator of the country, but as
a RATIO SCRIPTA, the dictate, in all cases, of that sound reason
which should constitute the law of every country.[89] Over
both of these systems, however, the occasional* edicts of
the monarch are paramount, and amend and control their
provisions whenever he deems amendment necessary; on the
general principle that 'leges posteriores priores abrogant.'[90] Subsequent
laws abrogate those which were prior. This composition
of the French code is affirmed by all their authorities.
One only of them shall be particularly cited, to wit, Ferriere
Dict. de droit. Ordonnance.
'Les Ordonnances sont les vraies lois du royaume. Elles
font la partie la plus générale et la plus certaine de notre
droit Français, attendu qu'elles sont soutenues de l'autorité
aussi bien que de la raison; au lieu que les loix Romaines ne
subsistent que par leur équité, elles n'ont par elles-mêmes
aucune autorité, qu'autant qu'elles sont considérées comme
une raison écrite, du moins en pays coutumier; et à l'égard du
pays de droit écrit, les loix Romaines n'y ont force de loi,
que parceque nos rois ont bien voulu y consentir.'
The Ordinances are the true laws of the kingdom. They constitute
the most general and certain part of our French law, inasmuch
as they are supported by authority as well as reason; whereas
the Roman laws stand on their equity alone, having of themselves
no authority, but as they are considered as _written reason_,
at least in the provinces of Customary law. And as to those
of written law, the Roman laws are in force only because our
kings have thought proper to consent to it.
[Sidenote: 25*]
[Sidenote: 26*]
This system of law was transferred to Louisiana, as is evinced
by the [91]charter of Louis XIV. to Crozat, bearing date
the *14th of Sept. 1712. The VIIth article of that is in
these words. 'Our edicts, ordinances and customs, and
the usages of the Mayorality and Shreevalty of Paris, shall be
observed for laws and customs in the said country of Louisiana.'
The customary law of Paris seems to have been selected, because
considered as the best digest, and that to which it was proposed
to reduce the customary law of all the provinces. Enc.
Meth. Jurispr. Coutume. 405. This is the first charter we know
of which established the boundaries and laws of Louisiana. It
says nothing of the Roman law; but that, having become incorporated,
by usage, with the customs of Paris, and constituting, as
a supplement, one system with them, seems to have been considered
as of their body, and transferred with them to Louisiana.[92]
In 1717, Crozat transferred his rights to the Compagnie d'Occident,
at the head of which was the famous Law, 8. Raynal.
166. [edit. 1780.] which again in 1720, by union with others,
became the Compagnie des Indes, who in 1731, surrendered the
colony back to the king. 1. Valin, 20. But these various transfers
from company to company, of the monopoly of their commerce,
for that was the sum of what was granted them, and their
final surrender to the king, could not affect the rights of the
people, nor change the laws by which they were governed. When
they returned to the immediate government of the king, their
laws passed with them, and remained in full force until, and so
far only as, subsequently altered by their legislator. That
this was the sense of their *government may be inferred
from a clause in the edict creating the Compagnie des
Indes Occidentales, art. 34.
'Seront les juges établis en tous les dits lieux tenus de juger
suivant les lois et ordonnances du royaume, et les officiers de
suivre et se conformer à la coutume de la Prevôté et vicomté
de Paris, suivant laquelle les habitans pourront contracter,
sans que l'on y puisse introduire aucune autre coutume, pour
éviter la diversité. 1. Moreau de St. Mery, 100.
'The judges established in all the said places shall be held to
adjudge according to the laws and ordinances of the kingdom, and
the officers to follow and conform themselves to the customs
of the Prevôté and vicomté of Paris, according to which the
inhabitants may contract, without that any other custom may
be introduced, to avoid diversity.' 1. Moreau de St. Mery, 100.
[Sidenote: Alluvion.]
This then is the system of law by which the legal character
of the facts of the case is now to be tested: and the
plaintiff and his counsel having imagined that, in the
Roman branch of it, they had found a niche in which they could
place the batture to great advantage, have availed themselves of
it with no little dexterity, and by calling it habitually an alluvion,
have given a general currency to the idea that it is really an alluvion:
insomuch that even those who deny their inferences,
have still suffered themselves carelessly to speak of it under that
term. Were we, for a moment to indulge them in this misnomer,
and to look at their claim as if really an alluvion one, the
false would be found to avail them as little as the true name.
The Roman law indeed says, 'quod per alluvionem agro tuo
flumen adjecit, jure gentium, tibi adquiritur.' 'What the river
adds to your field by alluvion, becomes yours by the law of nations.
Institute. L. 1. tit. 1. §. 20. Dig. L. 41. tit. 1. §. 7. The
same law, in like manner, gave to the adjacent proprietors, the
sand bars, shoals, islands rising in the river, and even the bed of
the river itself, as far as it was contracted or deserted. Inst. 2. 1.
22. and 2. 1. 23. But the established laws of France differed in
all these cases.
[Sidenote: 27*]
'Par notre droit Français, dit Pothier, les alluvions qui
se font sur le bord des fleuves, et des rivières navigables,
appartiennent au roi. Les propriétaires riverains n'y peuvent
rien prétendre, à moins qu'ils n'ayant des titres de la
concession que le roi leur aurait faite du droit d'alluvion.'
1. Pothier. Traité de la propriété. *1 Part. c. 2. §. 3. art.
2. No. 159.
'By our French law, says Pothier, one of their most respected
authorities, the alluvions formed on the borders of navigable
streams and rivers belong to the king. The proprietors of
riparian heritages can have no claim to them, unless they have
evidences of the grant made to them by the king, of the right
of alluvion along their heritages.' Pothier, Part 1. c. 2. §.
3. art. 2. No. 159. cited Derbigny, xviii.
And Guyot, in the Répertoire Universel de Jurisprudence, a
work also of authority and cited with approbation by the plaintiff
and his counsel, [Liv. 21. Du Ponceau, 14.] under the word
'île,' says,
'Nous n'admettons pas comme les Romains, les alluvions, et
les accroissemens, au profit des propriétaires riverains,
soit par les changemens qui peuvent survenir dans le lit des
rivières, soit relativement aux îles, et îlots qui peuvent s'y
former. Chez eux le lit, et les bords des fleuves et rivières
étaient censés faire partie des héritages riverains; et par une
suite de ces maximes, le terrain qu'un fleuve ajoutait à ces
héritages, appartenait à ceux qui en étaient propriétaires.
Ils réunissaient de même à leurs possessions le lit que le
fleuve abandonnait; et lorsqu'il se formait une île dans le
milieu de son lit, les riverains y avaient un droit égal,
et en partageaient la propriété. Suivant nos principes, les
rivières navigables, leur lit, rives, et tous les terrains
qui peuvent s'y former, appartiennent au roi, à raison de sa
souveraineté. C'est la disposition précise de l'article 41.
du tit. 37 de l'Ordonnance des eaux et forêts de 1669, qui
a dissipé tous les doutes que l'on cherchait à faire naître
dans plusieurs provinces, sur les fondemens des énonciations
qui se rencontraient dans les anciennes concessions.
'We do not admit, as the Romans, alluvions and accumulations
to go to the riparian proprietors, either by changes which
may happen in the bed of rivers, or relating to isles, and
islets which may there be formed. With them the bed and borders
of rivers and streams were considered as making part of the
riparian inheritances; and as a consequence of these maxims, the
earth which a river added to these inheritances, belonged to
those who were the proprietors of them. They reunited in like
manner to their possessions the bed which a river abandoned,
and when an isle was formed in the middle of its bed, the
riparians had an equal right to it, and divided the property.
According to our principles, navigable streams, their bed,
banks, and all the grounds which may be formed there, belong
to the king, in right of his sovereignty. It is the precise
provision of art. 41. tit. 37. of the Ordonnance des eaux et
forêts, which has dissipated all the doubts which they had
endeavored to raise in several provinces, on the grounds of
the enunciations which were found in the ancient concessions.'
Cited Derbigny 23.
Again, after laying down the Roman law of alluvion, and of
islands formed in the beds of rivers, Le Rasle, in the law Dictionary,
forming a part of the Encyclopédie Méthodique. Jurisprud.
accession. 94, says,
[Sidenote: 28*]
'Nous n'avons pas suivi dans notre droit Français les
*dispositions Romaines à cet égard; toutes les isles ou autres
attérissemens qui se forment dans les rivières appartiennent
au roi, et font partie du domaine. Les terres ajoutées par
alluvion aux héritages baignés par le fleuve et les rivières
navigables, n'appartiennent aux riverains, que lorsqu'ils out
un titre de concession qui leur permet de se les approprier.'
'We have not in our French law followed the Roman provisions
in this respect; all islands or other accumulations which are
formed in rivers, belong to the king, and constitute a part of
the domain. Lands added by alluvion to inheritances washed by
rivers and navigable streams, do not belong to the riparians
but when they have a deed of concession which permits them to
appropriate them to themselves.'
And Ferriere, quoted also by the plaintiff, says,
'Pour ce qui regarde l'augmentation arrivée à un héritage
subitement et tout d'un coup, la décision que les loix Romaines
ont faites à cet égard n'est point observée dans le royaume.
Cette augmentation appartient au roi, dans les rivières
navigables.' And Denizert agrees, 'que les attérissements
formés subitement dans le mer, ou dans les fleuves ou rivières
navigables, appartiennent au roi, par le seul titre de sa
souveraineté.'
'As to augmentations happening suddenly and all at once, the
decision of the Roman laws in this respect, is not observed
in the kingdom. These augmentations belong to the king in
navigable rivers.' And Denizert agrees, 'that atterrissements
formed suddenly in the sea, or the navigable rivers or streams,
belong to the king in the sole right of his sovereignty.'
And he refers to the edicts of 1683. 1693. and 1710.
And to put aside all further question as to the law of France on this
subject. Louis XIV. by an edict of December 15, 1693, says,
[Sidenote: 29*]
'Louis, &c. salut. Le droit de propriété que nous avons sur
tous les fleuves et rivières navigables de notre royaume,
et conséquemment de toutes les isles, moulins, bacs, &c.
attérissemens et accroissemens formés pas les dites fleuves
et rivières, étant incontestablement établi par les lois de
l'état, comme une suite et une dépendence nécessaire de notre
souveraineté, les rois nos prédecesseurs et nous, avons de
tems en tems, ordonné des recherches des isles et crémens qui
s'y sont formés, &c. A ces causes, de l'avis de notre conseil
et de notre certaine science, pleine puissance et autorité
royale, nous avons par ces *présentes, signées de notre main,
dit, statué et ordonné, disons, statuons et ordonnons, voulons
et nous plait, que tous les détenteurs, propriétaires, ou
possesseurs des îles, îlots, attérissemens, accroissemens,
_alluvions_, droits de pêche, péages, ponts, moulins, bacs,
coches, bateaux, édifices et droits sur les rivières navigables
de notre royaume, qui rapporteront des titres de propriété ou
de possession, avant le 1er Avril, 1566, y soient maintenus
et conservés dans leurs possessions, en payant au fise une
année, et ceux sans titre, ni possession antérieurs au 1er
Avril, 1566, en payant deux années de revenu.'
'Louis, &c., Greeting. The right of property which we have
in all rivers and navigable streams of our kingdom, and
consequently in all the isles, mills, ferries, &c. accumulations
and increments formed by the said rivers and navigable streams,
being incontestably established by the laws of the state, as
a necessary consequence and dependence of our sovereignty,
the kings, our predecessors, and ourselves, have from time
to time ordered inquiries as to isles and increments therein
formed, &c. For these causes, with the advice of our council,
and of our certain knowledge, full power and royal authority,
we have by these presents, signed with our hand, declared,
enacted and ordained, and we do declare, enact and ordain, we
will, and it is our pleasure that all the holders, proprietors,
or possessors, of isles, islets, accumulations, increments,
_alluvions_, rights of fishery, tolls, bridges, mills, ferriers,
packets, bateaux, edifices and imposts on the navigable rivers
of our kingdom which shall produce titles of property or of
possession before the 1st of April, 1566, shall be therein
maintained and secured in their possessions, on paying to the
treasury one year's revenue, and those without title papers,
or possession prior to the 1st of April, 1566, on payment of
two years' revenue.'
Having no copy of this Ordinance, I quote it from Mr. Derbigny,
p. 20. Duponçeau, p. 10. and l'Examen de la Sentence,
p. 8, by putting together the parts they cite, for neither gives
the whole of what I have cited. Other respectable authorities
might be produced, to the same effect, were it necessary to multiply
them: and it is also admitted that authorities of weight, and
of a different aspect exist, among these is Dumoulin, as respectable
as Pothier, Guyot, or any other who has been cited. Were
it absolutely incumbent on me, more than on those who rely on
the contrary authorities, to assign reasons for a difference of
opinion among lawyers, on any point, it might be ascribed in this
case to a difference of impression from views on the same subject,
diversified as were the customs of the various provinces of
France, on this very point. Dumoulin wrote a century and a
half before the Ordinance of Louis XIV. In that course of time
printing had become more diffused, books greatly multiplied,
and a more correct collation of these customs could be made.
So that had Dumoulin written in the days of Pothier and Guyot,
and with their advantages, he would probably have concurred in
the preceding observation, that, 'if there were any doubts, this
Ordinance has dissipated them.' Be this as it may, Louis XIV.
and his council have decided between these two opinions, and if
it were not law before, his decision made it so. By this edict he
declares the law of France, 'incontestably,' to be that '_Alluvions_
belong to the king in all navigable rivers.' But with a spirit*
of indulgence, meriting more respect than he has found
in the language of the adverse party who dislike the truths
he has declared, he confirmed all anterior usurpations,
on payment of certain compositions and future rents, re-establishing,
by the example, the authority of the laws, and rights of
the crown against these usurpations. This Ordinance was passed
19 years before the charter to Louisiana, and consequently was
comprehended among the edicts and ordinances originally established
as the law of the Province.
[Sidenote: 30*]
[Sidenote: 31*]
Mr. Livingston and his advocates have asserted that the right
to the beds and increments of rivers, is a gift of the feudal system
to the sovereign, that is, to the nation, and is a peculiarity
of that system: and further, that that system was never introduced
into Louisiana. That the latter assertion is palpably erroneous,
could be readily shown, were not the question altogether
unnecessary. With respect to the former, surely it is putting the
cart before the horse to say, that the authority of the nation flows
from the Feudal system, instead of the Feudal system flowing
from the authority of the nation. That the lands within the
limits assumed by a nation belong to the nation as a body, has
probably been the law of every people on earth at some period
of their history. A right of property in moveable things is admitted
before the establishment of government. A separate
property in lands not till after that establishment. The right to
moveables is acknowledged by all the hordes of Indians surrounding
us. Yet by no one of them has a separate property in lands
been yielded to individuals. He who plants a field keeps possession
till he has gathered the produce, after which one has as
good a right as another to occupy it. Government must be established
and laws provided, before lands can be separately appropriated,
and their owner protected in his possession. Till then
the property is in the body of the nation, and they, or their
chief as their trustee, must grant them to individuals, and determine
the conditions of the grant. In certain countries, they have
granted them on a system of conditions and principles which
have acquired the appellation of Feudal. Surely then it is the
sovereign which has created the Feudal principles, and not these
principles which have created the rights of the sovereign. The
Edinburgh Reviewers, [No. 30. 339. Jan. 1810.] who in the progress
of their work have deservedly attained a high standing in
the public estimation, reviewing the condition of land-tenures
among the Hindoos, say, 'the territory of the nation, belonging
in common to the nation, belongs, in this general sense, to the
king, as the head and representative of the nation. As far accordingly
as we have sufficient documents respecting rude
nations*, we find their kings, _without perhaps a single
exception_, recognized as the sole proprietors of the soil.'
And they quote as their authorities,
In Europe.
For Wales, Leges Walliæ. c. 337.
Great Britain. The Bretons while they held the whole island,
Turner's Anglo Saxons, c. 3.
Gaul and Germany. Cæsar, 4. 1. To which add Spain, Portugal,
Italy, and all feudal states.
In Asia.
For China. Barrow. 397.
India. Montesq. Sp. L. 14. 6. Scott's Ferishta, vol. 2. 148-495.
2. Bernier, 189.
Persia. 3. Chardin, 340. Syria and the Turkish dominions. 2.
Volney, 402.
In Africa.
For Egypt. Herodot. 2. 109. Volney passim.
Other parts of Africa. 4. Hist. gen. des voyages 13. v. do.
7. 5. 17. Mod. Univ. Hist. 322. Parke, 260.
In America.
For the Spanish part. Acosta 6. 15. and 18. Garcilaso, 1. 5.
1. Carli. letter 15.
For the United States and the Indian hordes of our continent,
we cite our own knowledge.
[Sidenote: 32*]
It seems then to be a principle of universal law that the lands
of a country belong to its sovereign as trustee for the nation. In
granting appropriations, some sovereigns have given away the
increments of rivers to a greater, some to a lesser extent, and
some not at all. Rome, which was not feudal, and Spain and
England which were, have granted them largely; France, a
feudal country, has not granted them at all on navigable rivers.
Louis XIV. therefore was strictly correct when in his edict of
1693, he declared that the increments of rivers were incontestably
his, _as a necessary consequence of the sovereignty_. That is
to say, that where no special grant of them to an individual could
be produced, they remained in him, as a portion of the original
lands of the nation, or as new-created lands, never yet granted
to any individual. They are unquestionably a regalian, or national
right, paramount, and pre-existent to the establishment of
the feudal system. That system has no fixed principle on the
subject, as is evident from the opposite practices of different
feudal nations. The position, therefore, is entirely unfounded,
that the right to them is derived from the feudal law; and it is
consequently unnecessary to go into the proof of what
the grants in that country *exhibit palpably enough, that
infeudations were partially at least, if not generally, introduced
into Louisiana.
It ought here to be observed however that, so far as respects
the beds and navigation of rivers, the right vested in the sovereign
is a mere trust, not alienable. It is not like lands, imposts,
taxes, an article of public property constituting the revenues of
the state, but like roads, canals, public buildings, reserved for
the use of the individuals of the nation. See an explanation of
this subject, Vattel 1. 235. 239.
[Sidenote: M. Thierry.]
[Sidenote: 33*]
I have now to advert, and I do it with extreme regret, to a
passage in the very able Memoire of M. Thierry, a
Memoire conspicuous for its learning and sound reasoning,
and to which I acknowledge myself peculiarly indebted
for information on the points he has discussed. He says, p. 30.
'To the ancestors of John Gravier the right of alluvion belonged,
not only by virtue of the Coutumes de Paris, which for two centuries
back acknowledged the principle of the Roman law, and
against which, for that reason, the Ordinances of the kings of
France could with no manner of success be pleaded, inasmuch
as a royal ordinance specially made that Coutume the civil law
of this colony; but also by virtue of the Spanish laws, which
from 1769, have been constantly in force in Louisiana.' 1. That
the Roman principle of Alluvion was acknowledged by the Coutumes
de Paris has not been proved. The adverse counsel,
[Dupon. p. 9.] has said indeed, that those Customs were silent on
this subject. But I have considered Pothier, Guyot, and Le
Rasle as better authority. 2. Mr. Thierry supposes that a Royal
Ordinance having specially made that Coutume the civil law of
Louisiana, the Ordinances of the kings of France were excluded
from the system, and could not control what was Coutume.
He had not, I presume, seen the charter of 1712, which makes
the edicts and _ordinances_, with the Coutume de Paris, the law
of that province; nor sufficiently considered that had the Coutumes
been alone established by one ordinance, another might
change them. 3. He supposes the Spanish laws have given Alluvions
to the riparian proprietor. But the laws of the province,
established by their charter, were not annulled by the change of
one king for another, as their legislator. The latter might change
them. But has he done so? If he has, his edict must be produced,
that we may weigh its words, and judge of its effects
for ourselves. And we must guard against admitting that the
example of a Spanish Governor, if such example has occurred,
occasionally and incorrectly acting on the laws of Spain, amounted
to a repeal of the whole system then existing, and a formal
establishment of a different one. No such intention on
his part, *to make so momentous a change, should be so
slightly inferred; and no power of his could effect it,
even if intended. Nothing less than an Ordinance of the Sovereign
himself, signed with his own hand, and sanctioned by all
the solemnities attending their enactment and promulgation, was
competent to reverse at once the legal condition of a whole
people, and the laws under which their lives and properties were
held. Again, even such an ordinance could not change the law
as to past rights; and those now in question were vested before
the Spanish government took place, and could not be annulled
by a subsequent law. These gratuitous admissions, therefore, of
Mr. Thierry, not at all necessary to his argument, and therefore
probably not well considered, and in opposition to the opinions
and demonstrations of an able brother counsellor (Mr. Derbigny),
must be disavowed, and the authority of the Ordinance
of 1693 insisted on with undiminished confidence. Mr. Thierry
himself will perhaps the more readily abandon them, when he
sees with what avidity his eagle-eyed adversary has pounced
upon them in a letter to some member of the government, in
which he considers them as giving up all ground of opposition
to his claims.
[Sidenote: Edict of Louis XIV.]
[Sidenote: 34*]
To that edict then I shall now recur; and to the cavils raised
against it by the advocates of the claims it annihilates.
It is idle for them to call it bursal, fiscal, and
the act of a tyrant, &c. [Duponc. 10.] as if the
authority of laws was to be graduated by the character of the existing
legislator; and as if we were to be the judges, for other
nations, of the character and obligation of their laws. It is vain
to pretend that because the word 'Alluvion,' inserted in the enacting
clause of the edict, is not in the preamble, therefore it has no
force in the body of the law: as if the preface, giving the general
reason and views of the law, was alone to be the law, and its
actual enactments a mere nullity. Although the preamble of a
statute is considered as a key to open the mind of the makers as
to the mischiefs in their view, yet in general it is no more than
a recital of some inconveniences, which does not exclude any
other for which the enacting clauses provide; nor must the
general words of an enacting clause be restrained by the particular
words of the preamble. 6. Bac. Abr. Statute. I. 2. and the
authorities there stated. So says our law; so says reason; and
so must say the Roman law, if it be ratio scripta. But it is
further to be observed that the words 'attérrissements and accroissements,'
accumulations and increments, used in this preamble
are generic terms, of which 'Alluvion' is a species, and
therefore strictly comprehended by it. This is proved
by the Roman definition, 'Alluvio est _incrementum_*
latens,' 'alluvion est un accroissement ou crement imperceptible,'
by the Napoleon code cited by Mr. Livingston:
[Sidenote: Napoleon Code.]
'Les attérissements et accroissements qui se forment
successivement et imperceptiblement aux fonds riverains d'un
fleuve, ou d'une rivière, s'appellent Alluvion.' §. 556
'The accumulations and increments which form themselves
successively and imperceptibly against the riparian lands of
a river or stream are called Alluvion.' Sect. 556.
[Sidenote: Portalis.]
And by the edicts of 1686 and 1689, both of which have the
expression '_crémens_ qui s'y sont formés, soit par _alluvion_,
ou par industrie, &c.' And here Portalis's
rhetorical flourish, on presenting this law, is cited, [Duponc. 17.
Liv. 22.] with triumph, as declaring that this law terminates
the great question of Alluvion, and decides it conformably to
the Roman law. It is very true indeed that it has terminated
the question as to future cases, by changing the law, by transferring
the right of Alluvion from the sovereign to the riparian proprietor,
by giving the abandoned bed of a river, as an indemnification
to him on whose land it has opened a new passage, and
making this the future law of all the provinces. And had Louisiana
then been subject to France, the law would have been
changed _thenceforward_, for Louisiana also. I find no fault with
Napoleon for this Roman predilection. I believe the change is
for the better, so far as concerns rural possessions. A decision
too of the parliament of Bordeaux is quoted by Mr. Duponceau
19. to prove that the law giving Alluvion to the adjacent possessor
has been acknowledged in France by the decision of the parliament
of Bordeaux, confirmed, _as he has heard_, on appeal by
the parliament of Paris. This proves only that the Roman law
of alluvion was the law of the Generality of Bordeaux, not that
it was then the law of all France. In the country called the
Bordelois, Customary laws prevail. But
'Lorsque la coutume de Bordeaux ne s'est pas expliquée sur
certains points de droit, ce n'est ni à la coutume de Paris,
ni à d'autres coutumes qu'on a recours pour les faire décider,
mais au droit écrit.' Enc. Meth. Jurisp. Bordeaux.'
'When the Custom of Bordeaux has not sufficiently explained
itself on certain points of law, it is neither to the Customs of
Paris, nor to other customs that recourse is had for decision,
but to the written law,' that is, the Roman law.
The inference then is, either that the Coutume de Bordeaux was
the same on this point as the Roman law, or, that being silent,
the Roman law was referred to.[93]
[Sidenote: 35*]
*Surely never was the urgency of squeezing argument
out of everything so apparent, as in the emphasis with
which the adverse party presses and comments, [Liv. 32.] on the
answers of the several tribunals, to which the Napoleon Code
was referred for consideration and amendment. A dozen tribunals
are named, with an &c. for more, who are acknowledged to have
said nothing about alluvion: and this is produced as proof that it
had belonged before to the riparian proprietor. But it proves
more probably that these tribunals were contented with the
change proposed, and had no amendment of it to offer. But, in
truth, it proves nothing either the one way or the other. The
tribunal of Paris is then quoted, with an acknowledgment that
they do not make a single observation on the subject. Then long
extracts from that of Rouen, proposing that _islands_, rising in the
rivers, shall be given to the riparian proprietors: and recommendations
to the same effect from those of Toulouse and Lyons.
Now it is remarkable that neither the word 'Alluvion,' nor the
idea of the thing, is either expressed or referred to in any one of
these quotations. And yet Mr. Livingston says, 'we find all
these learned men either passing over these articles, as merely
declaratory of the old law, or else _expressly acknowledging them_
as such;' and again after the citation from Rouen, 'here we have
the positive declaration of a learned tribunal, &c. deciding that
the edicts did not extend to alluvions, but only to islands in navigable
rivers.' And yet I repeat that neither the word nor the
idea is to be found in any one of the quotations; for it is of
these only I can speak, not possessing the book, but I presume
Mr. Livingston's quotations are of the strongest passages. It is
impossible to characterize such reasoning respectfully. I shall
therefore leave it to the reflection of others. And I think myself
authorized to conclude on the whole, that had the Batture
been really an Alluvion, its ownership was to be decided by the
laws of France; and that Louis XIV. with the advice of his
council, certainly knew when they declared what the law of their
country 'incontestably' was; and if we, with our scanty reading
on the subject, at this day and distance, know better than they
did, yet the enacting clause of the edict made it the law _thenceforward_;
that it came over as law for Louisiana, made the batture,
if an alluvion, the property of the sovereign; and certainly the
whole tenor of the conduct of the Spanish government proved
that they did not mean to relinquish it.
[Sidenote: 36*]
Before we quit this branch of the discussion, it is not amiss to
*observe that the eloquent declamations of these learned
men of Rouen, so much eulogized by Mr. Livingston,
were not at all heeded. The Napoleon code, §. 560.
retained the _islands_ rising in the beds of navigable or floatable
rivers, and (changing the French law only as to alluvions) declares,
§. 538. in opposition to the Roman law, that
'Les fleuves et rivières navigable ou flottables, les rivages,
lais et relais de la mer, les ports, les havres, les rades,
&c. sont considérés comme le dépendances du domaine public.'
'Rivers and navigable or floatable streams, shores, increments
and decrements of the sea, ports, harbors, roads, &c. are
considered as dependances of the public domain.'
So that notwithstanding the 'persuasive and conclusive arguments
of these first lawyers of the country,' Liv. 31. the French
law as it stands at this day, and stood before, would have given
the batture to the public, being unquestionably the [94]rivage or
shore of the river.[95]
[Sidenote: 37*]
[Sidenote: 38*]
[Sidenote: 39*]
*I will now proceed further and say, that had the batture
been an alluvion, and to be decided by the Roman,
instead of the French law, the conversion of the plantation
of Gravier into a *suburb, made it public property. And
here I rejoin with pleasure the standard of M. Thierry,
and avail myself of his luminous discussion of this point.
Were I fully to go into it, I could *but repeat his matter. I shall
therefore give but a summary view of it, and rest on his
argument for its more detailed support.
[Sidenote: Rural and Urban.]
[Sidenote: 40*]
[Sidenote: 41*]
The position laid down is that the Roman law gave alluvion only to the
rural proprietor of the bank; urban possessions being considered as
prædia limitata, limited possessions. The law which gives this right is
expressed in the Institutes in these words, 'quod per alluvionem _agro_
tuo flumen adjecit, jure gentium tibi adquiritur.' Inst. 2. 1. 20. 'What
the river has added, _agro tuo_, becomes yours by the laws of nations.'
And the Digest 41. 1. 7. 1. in almost the same words says, 'quod per
alluvionem _agro_ nostro flumen adjecit, jure gentium nobis adquiritur.'
In both instances it is to the possessor _agri_ only that it is given. It
becomes material therefore to understand rigorously the import of the
word _ager_, in the Roman laws; and it happens that its definition is given
critically by the same authority which uses it. 'Locus sine ædificio, in
urbe _area_, *rure autem _ager_ appellatur idemque _ager_, cum ædificio,
_fundus_ dicitur.' Dig. 50. 16. 211. 'Quæstio est, fundus a possessione,
vel agro, vel prædio quid distet?' Ib. 115 _in notis_, 'fundus est ipsum
solum: eo si utimur, prædium dicitur. _Ager_ esse potest sine villâ.'
'Ground, without a building, in a city is called _area_, but in the
country _ager_.' Pliny 1. 6. affirms that _ager_ is derived from the Greek
ἀγρὸς of the same import. And in the Greek Pragmatics of Attaliata tit.
45. the law of alluvion uses 'ἀγρὸς' for _ager_. 'Τὸ ἀνεπαισθήτως διὰ
τοῦ ποταμοῦ προστεθὲν τῷ ἀγρῷ μου πρόσχωσις ἐστὶν, ἤτοι πρόσκλυσις, καὶ
ἐμοὶ ἁρμόζει.' 'Quod insensibiliter τῷ ἀγρῷ μου per flumen adjectum est,
alluvionis est, et mihi competit. 'What is insensibly added by the river
_agro meo_ is alluvion [_adundatio, adaggeratio_] and belongs to me.' In
the same title 'ὅπερ ἐν τῷ ἀγρῷ σοῦ σπείρω σόν ἐστιν.' 'What I sow ἀγρῷ
σου agro tuo, in your _field_, is yours.' And Stephens, in his Thesaur.
ling. Gr. voce 'Ἀγρὸς' translates it 'rus, ager,' 'ἐν ἀγρῷ' in agro,
ruri. Ἐξ ἀγρου, ex agro, rure. 'Εἰς ἀγρον, in agrum, rus.' And he cites
examples: 'Νηῦς δέ μοι ἥδ' ἕστηκεν ἐπ' ἀγροῦ, νόσφι πόληος'. Hom. Od. 1.
185. 'My vessel is stationed in the _country_, apart from the city.' 'Διὰ
τὸ μὴ μεγάλας εἶναι τότε τὰς ΠΟΛΕΙΣ, ἀλλ' ἐπὶ τῶν ΑΓΡΩΝ οἰκεῖν τὸν δῆμον
ἄσχολον ὄντα.' Aristo. Polit. 5. 'Because, the _cities_ not being then
large, the people were occupied in the _country_, where ἀγρὸς is proved
to be pointedly the contradiction to πόλις, to wit, the _country_ to
the _city_. From these definitions it appears that the word ager, in the
law, constantly means a field, or farm, in the country, and that a city
lot is called _area_. In towns, the whole bank and beach being necessary
for public use, the private right of alluvion would be inadmissible;
and the adverse counsel have been challenged [Thierry, 33.] to produce
a single instance, under the Roman law, of a claim of Alluvion allowed
in a city. To this might be added a similar challenge as to the laws of
England. These give alluvion on rivers, as the civil law does, to the
riparian proprietor. Bracton L. 2. c. 2. § 1. Fleta. L. 3. c. 2. Can
they from the volumes of English law, with which they are so much more
familiar, produce one single instance of the private right of alluvion
allowed in a city? In England, I mean, and not in America, where special
circumstances have prevented attention to the law on this subject, or
the breach of it. And this must be from the reason of the thing alone,
because the common law never having been, like the civil law, reduced
to a text, no verbal criticisms on a text can have co-operated against
the claim.[96] Repeating, *therefore, my reference to the reasoning and
authorities of M. Thierry on this point, and my own conviction of their
soundness, I consider it as established that, were this question to be
decided by the Roman law, the conversion of the farm into a fauxbourg
of the city passed to the public all the riparian rights attached to it
while a rural possession, and among these the right of alluvion.
[Sidenote: Principal and accessory]
[Sidenote: 42*]
And, if the right of alluvion is not given to urban proprietors,
much less would it to a mere holder of the bed of a
road. But did any one ever hear of a *man's holding
the bed of a road, and nothing else? Is it possible
to believe that Bertrand Gravier, in selling his
lots _face au fleuve_, really meant to retain the bed of
the road and levee? That a man, having a road on the margin
of his land, which is its boundary, should mean to sell his land
to the road, and to retain that by itself? a thing of no possible
_use_ to him, because the _use_ being in the public, he could never
employ it in agriculture or otherwise. Were all this possible,
yet this bed of a road, this "labrum amnis" would be no _ager_,
no field to which the right of alluvion could attach. That right
is but an accessory, or, in the language of our law, an appendage
or appurtenance, and an accessory, not to a mere line, but to
something of which it can become a part. Had the law, therefore,
ever given alluvion to any but the holder of an _ager_, of a
field, yet the general doctrines of principal and accessory, would
not have carried the benefit to Bertrand Gravier in this case.
'Accessorium sequitur naturam sui principalis. Et in accessoriis,
præstanda sunt quæ in principali. Accessorium non tenet sine
principali. Sublato principali, tollitur et accessorium.' These
are maxims of the civil law. Calvini lexicon jurid. 'An accessory
follows the nature of its principal.' If the accession then
be to a field, it becomes part of the field; if to a town, it would
become part of the town; if to a road, the use of which belongs
to the public, it would be to the road, and to the public. It
must follow the nature of its principal, and become a part of that,
subject to the same rights, uses and servitudes with that: and
Bertrand Gravier had no right of use in the principal, that is, of
the road and levee.
The equity on which the right of alluvion is founded is, that
as the owner of the field is exposed to the danger of loss, he
ought, as an equivalent, to have the chance of gain. But what
equitable reason could there be, in the present case, for giving
to Gravier the benefit of alluvion, when he could lose nothing
by alluvion? If the levee and bank were washed away, they
would not go to his plantation, back of the suburb, for a new
one. The public would have to purchase a new bed for a road
from the adjacent lot holders. Then 'qui sentit onus, sentire
debet et commodum.'
[Sidenote: Beach or Batture not Alluvion.]
But I do deny to the Batture every characteristic
of Alluvion.
The French and Roman law constituting that of
the place, let us seek from them the definition of Alluvion. The
Institute 2. 1. 20. gives it in these words, and the Digest. 41. 1.
7. §. 1. in almost verbatim the same.
'Quod per alluvionem agro tuo flumen adjecit, jure gentium
tibi adquiritur. Est autem alluvio incrementum latens. Per
alluvionem autem id videtur adjici, quod ita paulatim adjicitur,
ut intelligi non possit quantum quoquo temporis momento
adjiciatur.'
'What the river adds by alluvion to your field becomes yours by
the law of nature. Alluvion is a latent increase. That seems
to be added by alluvion, which is so added by degrees, that
you cannot conceive how much in each moment of time is added.'
And in the Greek version of Theophilus, the words, 'Alluvio
est incrementum latens' are rendered 'ἀλουβιων ἐστιν ἠ πρόσκλυσις ἢ
πρόσχωσις,' translated by Curtius 'Alluvio est adundatio vel adaggeratio.'
Retaining only the words of this paragraph which
are definition it will stand thus.
'Alluvio est incrementum [_adundatio_, _adaggeratio_] agro
tuo flumine adjectum, ita latens et paulatim, ut intelligi
non possit quantum quoquo temporis momento adjiciatur.'
'Alluvion is an increment [_adundation_, _ad-aggeration_]
added by the river to your field, so latent and gradual, that
the quantity added in every moment of time cannot be known.'
This is the Roman definition.
In the Law Dictionary of the Encyclop. Method, _voce_ 'Alluvion'
by Le Rasle, the definition is:
'Alluvion, un accroissement de terrein qui se fait peu-a-peu
sur les bords de la mer, des fleuves, et des rivières, par
les terres que l'eau y apporte, et qui se consolident pour ne
faire qu'un tout avec la terre voisine.'
'Alluvion, an increment of ground which is made by little and
little on the border of the sea, rivers or streams, by earth
which the water brings, and which is consolidated so as to
make but one whole with the neighboring ground.'
To reduce the essential members of the Roman and French
definitions to a single one, according with our own common
sense, for certainly we all understand what alluvion is, I should
consider the following definition as comprehending the essential
characteristics of both.
1. 'Alluvion is an extension which the waters add insensibly.
2. By apposition of particles of earth.
3. Against the adjacent field.
4. And consolidate with it so as to make a part of it.
'Incrementum flumine adjectum latens et paulatim.
{ πρόσχωσις, adaggeratio.
{ πρόσκλυσις, adundatio.
_Agro_.
Qui se consolide pour ne faire qu'un tout avec la terre
voisine.'
I take this to be rigorously conformable with the French and
Roman definitions, as cited from the authorities before mentioned,
and that it contains not one word which is not within
their unquestionable meaning. Now let us try the batture by
this test.
[Sidenote: 44*]
1. 'Alluvion is an extension which the waters add insensibly.'
But the increment of the batture has by no means been
_insensible_. Every swell of six months is said [Derb xix.] to deposit
usually nearly a foot of mud on the whole surface
of the batture, so that, *when the waters retire, the increment
is visible to every eye. And we have seen that,
aided by Mr. Livingston's works, a single tide extended the batture
from 75 to 80 feet further into the river, and deposited on it
from 2 to 7 feet of mud, insomuch that a saw-scaffold, 7 feet
high when the waters rose on it, was, on their retiring, buried
to its top. This increment is, surely, not insensible. See the
Mayor's answer to the Governor, Nov. 18, '08. MS.
2. 'By _apposition_ of particles of earth,' or, by their _adhesion_.
But the addition to the batture is by _deposition_ of particles of
earth on its face, not by their _apposition_ or _adhesion_ to the bank.
It is not pretended that the bank has extended by apposition of
particles to its side, one inch towards the river. It remains now
the same as when the levée was erected on it. The deposition
of earth on the bottom of a river, can be no more said to be an
apposition to its sides, than the coating the floor of a room can
be said to be plastering its walls.
3. 'Against the adjacent field,' la terre voisine. Not a particle
has been added to the adjacent field. That remains as it
was, bounded by the identical line, _crepido_, or _ora terræ_, which
has ever bounded it.
4. 'And consolidated with the field so as to make part of it.'
Un tout avec la terre voisine. Even supposing the continuity
of the adjacent field not to be broken by the intervention of the
levée and road, nothing is consolidated with it, not even with the
_margo riparum_, or chemin de hallage, if there be any, between
the levée and brim of the bank. No extension of its surface has
taken place so as to form one with the former surface, so as to
be a continuation of that surface, so as to be arable like that.
The highest part of the batture, even where it abuts against the
bank, is still materially below the level of the adjacent field.
A terrass of some feet height still separates the field from the
deposition called the batture. It is now as distinguishable from
the adjacent field as it ever was, being covered with water
periodically 6 months in the year, while that is dry. Alluvion
is identified with the farmer's field, because of identity of character,
fitness for the same use: but the batture is not fitted for
ploughing or sowing. It is clear then that the batture has not
a single feature of Alluvion; and divesting it of this misnomer,
the whole claim of the plaintiff falls to the ground: for he has
not pretended that it could be his under any other title than that
of Alluvion.
We will now proceed to shew what it is, which will further
demonstrate what it is not.
[Sidenote: Bed, Beach, Bank.]
[Sidenote: 45*]
In the channel, or hollow, containing a river, the Roman law
has distinguished the _alveus_, or bed of the river, and
the _ripa_, or bank, the river itself being _aqua_, water.
'Tribus constant flumina, alveo, aqua, et ripis'. Dig.
43. 12. *not. 1. All above high water mark they
considered as _ripa_, bank, and all below as _alveus_, or
bed. The same terms have the same extent in the language of
our law likewise. But we distinguish, by an additional name,
that band, or margin of the bed of the river, which lies between
the high and the low water marks. We call it the _beach_. Other
modern nations distinguish it also. In Spanish it is _playa_, Ital.
_piaggia_, in French _plage_, in the local terms of Orleans it is _batture_,
and sometimes _platin_.[97] In Latin I know of no terms which
applies exactly to _the beach of a river_. _Litus_ is restrained to
_the shore of the sea_, and there comprehends the beach, going to
the water edge, whether at high or low tide. '_Litus_ est maris,
_ripa_ fluminis,' says Vinnius in his Commentary on the Inst. 2.
1. 4. and he confirms this difference of extent towards the water,
ibid. where he says,
'Neque verò idem est _ripa in flumine_, quod _litus in mari_.
Ripa flumini non subjicitur, ut litora subjiciuntur mari, et
quotidianis accessibus ab eo occupantur.'
'Nor is the bank of a river, and the shore of the sea, the same
thing. The bank is not subjacent to the river as the shores
are to the sea, which are occupied by it in its daily accesses.'
In our rivers, as far as the tide flows, the beach is the actual,
as well as the nominal bed of the river, during the half of every
day. Above the flow of tide, it is covered half the year at a
time, instead of half of every day. The tide there being annual
only, or one regular tide in a year. This, in the State where I
am, begins about the first of November, is at its full tide during
the months of January and February, and retires to its minimum
by the end of April. In other States from North to South, this
progression may vary a little. Hence we call them the Summer
and Winter tides, as the Romans did theirs, _hibernus et æstivus_.
The Mississippi resembles our fresh water rivers in having only
one regular swell or tide a year. It differs from them in not
being subject to occasional swells. The regions it waters are so
vast that accidental rains and droughts in one part are countervailed
by contrary accidents in other parts, so as never
to become *sensible in the river. It is only when all the
countries it occupies become subject to the general influence
of summer or winter, that a regular and steady flood or ebb
takes place. It differs too in the seasons of its tides, which are
about three months later than in our rivers. Its swell begins
with February, is at its greatest height in May, June, and July,
and the waters retire by the end of August. Its high tide, therefore,
is in summer, and the low water in winter. Being regular
in its tides, it is regular also in the period of its inundations.
Whereas in ours, although the natural banks rarely escape being
overflowed at some time of the season, yet the precise time varies
with the accident of the fall of rains. But it is not the name of
the season but the fact of the rise and fall which determine the
law of the case.
[Sidenote: 46*]
Now the batture St. Mary is precisely within this band, or margin,
between the high and low water mark of the Missisipi called
the beach. It extended from the bank into the river from 122
to 247 yards, before Mr. Livingston began his works, and these
have added in one year, from 75 to 80 feet to its breadth. This
river abounds with similar beaches, but this one alone, from its
position and importance to the city, has called for a legal investigation
of its character. Every country furnishes examples of
this kind, great or small; but the most extensive are in Northern
climates. The beach of the Forth, for example, adjacent to
Edinburgh, is a mile wide, and is covered by every tide with 20
feet water. Abundance of examples of more extensive beaches
might be produced; many doubtless from New-Hampshire and
Maine, where the tide rises 40 feet. This therefore of St. Mary
is not extraordinary but for the cupidity which its importance to
the city of New-Orleans has inspired.
I shall proceed to state the authorities on which this division
between the bank and bed of the river is established, and which
makes the margin or beach a part of the bed of the river.
'Ripa est pars extima alvei, quò naturaliter flumen excurrit.'
Grotius de Jour. B. et P. 2. 8. 9.
'Ripa ea putatur esse quæ _plenissimum_ flumen continet.' Dig.
43. 12. 3. And Vinnius's commentary on this passage is 'ut
significet, partem ripæ non esse, spatium illud, ripæ proximum,
quod aliquando flumine, caloribus minuto æstivo tempore non
occupatur.'
[Sidenote: 47*]
'Ripa autem ita rectè definietur, id quod flumen continet
naturalem* rigorem[98] cursus sui tenons. Cæterùm si quando vel
imbribus, vel mari, vel quâ alia ratione, ad tempus excrevit,
ripas non mutat. Nemo denique dixit Nilum, qui incremento
suo Ægyptum operit, ripas suas mutare, vel ampliare. Nam cum
ad perpetuam sui mensuram redierit, ripæ alvei ejus muniendæ
sunt.' Dig. 43. 12. §. 5.
'Alveus flumine tegitur.' Grot. de jur. B. ac P. 2. 8. 9.
'Alveus est spatium illud flumini subjectum per quod fluit.'
Vinnii Partitiones jur. Civil. 1. 17.
'The bank is the outermost part of the bed in which the river
naturally flows.'
'That is considered to be bank, which contains the river when
_fullest_,' and Vinnius's commentary on this passage is 'this
signifies that the space next to the bank, which is sometimes
not occupied by the river, when reduced by heats in the summer
season, is not a part of the bank.'
'The bank may be thus rightly defined, that which contains the
river holding the natural direction of its course. But, if at
any time, either from rains, the sea, or any other cause, it
has overflowed a time, it does not change its banks. Nobody
has said that the Nile, which by its increase covers Egypt,
changes or enlarges its banks. For when it has returned to
its usual height, the banks of its bed are to be secured.'
'The bed is covered by the river.'
'The bed is the space, subjacent to the river, through which
it flows.'
Littus, in the Roman law, being the beach or shore of the sea,
'rivage,' definitions of that will corroborate the division between
the _ripa_ and _alveus_, _bed_ and _bank_ of a river. In both cases
what is covered by the highest tide belongs to the public, all
above it is private property.
'Litus est quousque maximus fluctus à mari pervenit. Idque
Marcum Tullium aiunt, cum arbiter esset. primum constituisse.'
Dig. 50. 16. 96.
'Est autem litus maris quatenùs hibernus fluctus maximus
excurrit.' Inst. 2. 1. 3. the paraphrase of Theophilus adds,
'undè et æstate, usque ad ea loca litus definimus,' and his
Scholiast subjoins 'non ut mediis caloribus solet, sed hibernus;
quoniam hieme protissimum mare turbatur, mare est undabundum.'
'The shore is as far as the greatest wave of the sea reaches;
and it is said that Marcus Tullius first established that when
he was an Arbiter.'
'The shore of the sea is as far as the greatest winter wave
reaches.' The paraphrase of Theophilus adds, 'wherefore, in
summer also, we bound the shore by the same limits, and his
Scholiast subjoins, 'not the wave of midsummer, but of winter;
because the sea is most agitated, and most swelled.'
'By _shore_, the Institutes mean up to the high-water mark, or
(where little or no tides, as in the Mediterranean) as high as the
highest winter wave washes. 1. Brown's Civil and Admiralty
law. B. 2. c. 1.
[Sidenote: 48*]
We must not, however, with Mr. Livingston, pa. 61. seize on
the single word 'hibernus,' in the last quotations, and
sacrifice *to that both the fact, and the reason of the law.
The substance of the _fact_ on which the law goes, is that
there is a margin of the bed of the river, covered at high water,
uncovered at low. The season when this happens is a matter
of circumstance only, and of immaterial circumstance. In the
rivers familiar to the Romans the _maximus fluctus_, or highest
wave, was in the winter; in the Missisipi it is in summer. Circumstance
must always yield to substance. The _object_ of the
law is to reserve that margin to the public. But to reduce, with
Mr. Livingston, the public right to the Summer water-line would
relinquish that object. The explanations quoted from Vinnius,
from Theophilus and his Scholiast, prove from the reason of the
law, that the law of the winter tide for the Po, and the Tyber,
must be that of the Summer tide of the Missisipi. The Spanish
law therefore, is expressed in more correct terms; and we have
the authority of Mr. Livingston [ibidem] for saying that the Justinian
code is the common law of Spain.
'La ribera del rio se entiende todo lo que cubre el agua de
el, quando mas crece, en qualquiera tiempo del año, sin salir
de su yema y madre.' Curia Philipica. 2. 3. 1. cited Derb. 46.
'The bank of a river is understood to be the whole of what
contains its waters, when most swelled, in whatsoever time of
the year, without leaving its bed or channel.'
This is the law correctly for all rivers, leaving to every one its
own season of flood or ebb.
To these authorities from the Roman and Spanish law, I will
add that of the French Ordinance of 1681. § 43. Art. 1. on the
same subject.
'Sera réputé bord et rivage de la mer, tout ce qu'elle couvre
et découvre [precisely the beach or batture] pendant les
nouvelles et pleines lunes, et jusqu'où le grand flot de mer
cesse de s'y faire sentir. Il est facile de connoître jusqu'où
s'étend ordinairement le grand flot de Mars, par le gravier
qui y est déposé; ainsi il ne faut pas confondre cette partie
avec l'espace où parvient quelque fois l'eau de la mer par
les ouragans, et par les tempêtes. Ainsi jugé à Aix le 11.
Mai 1742.' Boucher, Institut au droit Maritime 2713. Nouveau
Commentaire sur l'Ordonnance de la Marine de 1681. tit. 7.
Art. 1.
'The border and shore of the sea shall be reputed to be the
whole which it covers and uncovers [precisely the beach or
batture] during the new and full moons, and as far as to where
the full tide of the sea ceases to be perceived. It is easy
to know how far ordinarily the full tide of March extends;
by the gravel which is deposited there; therefore we must not
confound that part with the space where the waters of the sea
come sometimes in hurricanes and storms.' So adjudged at Aix,
May 11, 1742.
[Sidenote: 49*]
Let us now embody those authorities, by bringing together
the separate members, making them paraphrase one another,
and form a *single description. The Digest 43. 12.
3. with Vinnius's comment will stand thus. 'The bank
ends at the line to which the water rises at its full tide; and although
the space next below it is sometimes uncovered by the
river, when reduced by heats in the Summer season, yet that
space is not a part of the bank.' Now, substituting for 'the heats
of the summer season' which is circumstance, and immaterial,
the term 'low water,' which is the substance of the case, nothing
can more perfectly describe the beach or batture, nor collated
with the other authorities, make a more consistent and rational
provision. 'The bank ends at that line on the levée to which
the river rises at its full tide: and altho' the batture or beach
next below that line is uncovered by the river, when reduced to
its low tide, yet that batture or beach does not therefore become
a part of the bank, but remains a part of the bed of the river,'
for says Theophilus 'even in low water [et æstate] we bound
the bank at the line of high water.' Inst. 2. 1. 3. 'The bank
being the _extima alvei_, the _border of the bed_, within which bed
the river flows when in its fullest state _naturally_, that is to say,
not when 'imbribus, vel quâ aliâ ratione, ad tempus, excrevit,'
not when 'temporarily overflowed by extraordinary rains, &c.'
Dig. 43. 12. 5. but 'quando mas crece, sin salir de su madre, en
qualquiera tiempo del año,' 'when in its full height, without
leaving its bed, to whatsoever season of the year the period
of full height may belong.' This is unquestionably the meaning
of all the authorities taken together, and explaining one
another.
From these authorities, then, the conclusion is most rigorously
exact, that all is river, or river's _bed_, which is contained between
the two banks, and the high water line on them; and all is _bank_
which embraces the waters in their ordinary full tide.
Agreeably to this has been the constant practice and extent
of grants of lands on the Missisipi. Charles Trudeau swears
[Liv. 57.] that 'during 28 years that he has performed the functions
of Surveyor General of this province, it has always been in
his _knowledge_, that the grants of lands on the borders of the
Missisipi, have their fronts on the _edge_ of the river itself, and
when its waters are _at their greatest height_.' And Laveau
Trudeau [Liv. 58.] that 'the concession to the Jesuits, he believes,
was like all the others, that is, from the river at its greatest
height.'
Thus we see what the law is; that it has been perfectly understood
in the territory, and has been constantly practiced on,
and consequently that neither the grant to the Jesuits, nor to
Bertrand Gravier, could have included the beach or batture.
[Sidenote: Missisipi.]
[Sidenote: 50*]
[Sidenote: Nile.]
[Sidenote: 51*]
It will perhaps be objected that, establishing the commencement
of the bank at high water mark, leaves in fact
no bank at all, as the high water regularly overflows
the natural* bank or brim of the channel. And will
it be a new phenomenon to see a river without banks
sufficient to contain its waters at their full tide? The Missisipi
is certainly a river of a character marked by strong features. It
will be very practicable, by exaggerating these, to draw a line
of separation between this and the mass of the rivers of our
country, to consider it as _sui generis_, not subject to the laws
which govern other rivers, but needing a system of law for itself.
And until this system can be prepared it may be abandoned to
speculations of death and devastation like the present. But will
this be the object of the sound judge or legislator? it is certainly
for the good of the whole nation to assimilate as much as possible
all its parts, to strengthen their analogies, obliterate the traits
of difference, and to deal law and justice to all by the same rule
and same measure. The _bayous_ of all that territory and of the
country thence to Florida Point are without banks to contain
their full tides. The Missisipi is in the like state as far as Bâton
Rouge, where competent banks first rise out of the waters, and
continue with intervals of depression to its upper parts. Many
of the rivers of our maritime states are under circumstances resembling
these. The channel which nature has hallowed for
them is not yet deep enough, or the depositions of earth on the
adjacent grounds not yet sufficiently accumulated, to raise them
entirely clear of the flood tides. Extensive bodies of lands, still
marshy therefore, are covered by them at every tide. In some
of these cases, the hand of man, regulated by laws which restrain
obstructions to navigation and injury to others, has aided and
expedited the operations of nature, by raising the bank which
she had begun, and redeeming the lands from the dominion of
the waters. The same thing has been done on the Missisipi.
An artificial bank of 3, 4, or 5 feet has been raised on the natural
one, has made that sufficient to contain its full waters, and
to protect a fertile and extensive country from its ravages. These
are become the real banks of the river, on which the
laws operate as if the whole was natural. The Nile,
like the Missisipi, has natural banks, not competent in every part
to the conveyance of its waters. In these parts artificial banks
are, in like manner, raised, through which and the natural bayous
and artificial canals the inundation, when at a given[99] height, is
admitted; this being indispensable to fertilize the lands in a
country where it never rains. And these banks of the Nile, natural
and artificial, are recognized as such by the Roman
law, as appears in *a passage of the Digest before cited,
declaring that its banks, tho' inundated periodically, are
not thereby changed. Nor are those of our rivers when temporarily
overflowed by rains, or other causes. Wherever therefore
the banks of the Missisipi have no high water line, the
objection is of no consequence, because the lands there are not
as yet reclaimed or inhabited; and wherever they are reclaimed,
the objection is not true; for there a high water line exists to
separate the private from public right.[100]
1. The Upper Missisipi, like the Upper Nile, has competent natural banks
through probably three fourths of its whole course. There then the Roman
law is applicable in its very letter. 2. For about 400 miles more, the
natural banks have been aided by artificial ones, on both sides, so as
to contain all the waters of the flumen plenissimum: and the inhabitants
there have no occasion as those of the Nile, to open their banks for the
purpose either of fertilizing, or irrigating the lands. Here then there
is still less reason, than in the case of the Nile, to say that 'the
Missisipi has changed its bank.' 3. On the lower parts of the Missisipi
and some of its middle portion, especially on the Western side, artificial
banks have not yet been made, and the country is regularly inundated,
as it is on those parts of our Atlantic rivers not yet embanked. But
our increasing population will continue to extend these banks of our
Atlantic rivers; and, for this purpose, our governments grant the lands
to individuals. And the same, we know, is done on the Missisipi. The
_Cypriores_ adjacent to New-Orleans, for example, though covered with the
refluent water from the lake, we know have been granted to individuals,
and will, with the rest of the drowned lands, be reclaimed in time, as
all lower Egypt has been.
Thus then we find the laws of the Tyber and Nile transferred and applied
to the Missisipi with perfect accordance, and that all rivers may be
governed by the same laws. Other rivers are subject to accidental floods,
which are declared however not to disturb the law of the _plenissimum
flumen_. The Nile and Missisipi, not being subject to accidental floods,
the _flumen plenissimum_ with them is steady and undisturbed, and needs not
the benefit of the exception. Nor will the reason of the law be changed,
whether the cause of the inundation be the saturation of the earth and
fountains, or rains, or melted snows, or the reflux of the ocean. The
principle remains universally the same, that the land mark, when once
established by a competent bank, is not changed by the inundation, or
by any cause or circumstance of its high waters.
[Sidenote: 52*]
[Sidenote: Property in bed and bank.]
*Having ascertained what the batture is not, and what it is,
and established the high water mark as the line of
partition between the bed and bank of the river, we
will proceed to examine to whom belongs ground on
either side of that line?
[Sidenote: 53*]
And 1. As to the bed of the river, there can be no question
but that it belongs purely and simply to the sovereign, as the
representative and trustee of the nation. If a navigable river
indeed deserts its bed, the Roman law gave it to the adjacent
proprietors;* the former law of France to the
sovereign; and the new Code gives it as an indemnity to those
through whose lands the new course is opened. But, while it is
occupied by the river, all laws, I believe, agree in giving it
to the sovereign; not as his personal property, to become an object
of revenue, or of alienation, but to be kept open for the free
use of all the individuals of the nation.
'Flumina omnia, et portus, publica sunt.' Inst. 2. 1. 2.
'Impossibile est ut alveus fluminis publici non sit publicus.'
Dig. 43. 12. 7.
'Litus publicum est eatenùs qua maximus fluctus exæstuat.'
Dig. 50. 16. 96. 112.
'All rivers and ports are public.'
'It is impossible that the bed of a public river should not
be public.'
'The seashore is public as far as the greatest wave surges.'
And 'littus' we have seen is the beach or shore of the sea.
'As to navigable streams and rivers, on which boats can ply,
the property of them is in the king, as an incontestable right,
naturally attached to the sovereignty; and since public things
belonged to the people in the Roman republic, amongst us [in
France] they must belong to our Sovereigns.' Julien, cited by
Thierry 10. And Prevost de la Jannès, in his Principles of
French Jurisprudence, after having said that the property of public
things belongs to the king adds 'subject to the use thereof
that is due to the people.' Thierry, ib.
In like manner, by the Common law of England, the property,
_tam aquæ quam soli_, of every river, having flux or reflux, or
susceptible of any navigation, is in the king; who cannot grant
it to a subject, because it is a highway, except for purposes which
will increase the convenience of navigation. 'The king has a
right of property to the sea shore, and the _maritima incrementa_.
The _shore_ is the land lying between high water and low water
mark in ordinary tides, and this land belongeth to the king
_de jure communi_, both in the shore of the sea, and shore of
the arms of the sea. And that is called an arm of the sea
where the tide flows and reflows, and so far only as the tide
flows and reflows.' Hale de jure maris. c. 4. cited in Bac. Abr.
Prærog. B. 3.
So that I presume no question is to be made but that the bed
of the Missisipi belongs to the sovereign, that is, to the Nation.
2. In the bank, from the high water line inland, it is admitted
that the property or ownership, is in the Riparian proprietor of
the adjacent field or farm: but the use is in the public, for the
purposes of navigation and other necessary uses.
[Sidenote: 54*]
'Riparum quoque usus publicus est jure gentium [i. e. gentis
humanæ] sicut ipsius fluminis: itaque naves ad eas appellere,
funes arboribus ibi natis religare, onus aliquod in his
reponere, cuilibet liberum est, sicut per ipsum flumen navigare.
Sed proprietas earum, illorum est, quorum prædiis hærent: quâ
de causâ arbores quoque in eisdem natæ corundem sunt.' Inst.
2. 1. 4. And Vinnius adds 'non ut litora maris, ita ripas,
conditionem fluminis sequi.'