occupatus, ripæ. Harum rerum omnium, proprietas nullius, si
ripas exciperis, quarum proprietas eorum est qui propè ripam
prædia possidunt.' Vinnii Part. jur. L. 1. c. 17.
'The use of the bank is public by the law of nations [i. e.
of nature] as to navigate the river itself. Therefore it is
free for every *one to bring his ships to at them, to make
fast ropes to the trees growing there, to discharge any load
on them. But the property of them is in those to whose farms
they adhere; for which reason the trees likewise growing on
them, belong to the same.' And Vinnius adds 'the banks do not,
like the shores of the sea, follow the condition of the river.'
'Rivers, harbors, the beds of rivers as long as occupied by
the river, and the banks are public. The property of all these
is in no one, if you will except the banks, the property of
which is in those who possess the farms on the bank.'
'Rivers, streams, high roads belong to all men in common;
and although the soil of the banks of the rivers be an accession
to the property of the owners of the contiguous land, yet all men
may make use of them so far as to make fast their vessels to the
trees which grow there, to repair them, and spread their sails on
the banks; and they may there discharge their goods. Fishermen
have also a right to dry their nets there, to expose their fish
for sale on the banks, and in general to use them for every purpose
of their art, or the occupation by which they live.' 3 Part
id. 28. 6. cited Thierry 9.
'The same usefulness of the navigation of rivers demands the
free use of their banks, so that in the breadth and length necessary
for the passage and track of the horses which draw the boats,
there be neither tree planted nor any other obstacle in the way.'
Domat, Pub. law. 1. 8. 2. 9. To moor their vessels, spread their
sails, unlade, sell their fish, &c. are here mentioned for example
only, and not as a full enumeration of the variety of uses which,
flowing from the public rights, may be exercised by them. In
England it is said to have been decided that the public have no
_common-law_ right to tow upon the banks of navigable rivers. 3
Term. Rep. 253. cited Bac. Abr. highways A.
These authorities are so clear that they need no explanation.
The text is as plain as any commentary can make it.
[Sidenote: Limitations of the rights of property.]
[Sidenote: 55*]
But there is an important limitation to these rights. Every
individual is so to use them as not to obstruct others
in their equal enjoyment. The space every one occupies
on the bank or bed, as in a highway, a market,
a theatre, is his for reasonable temporary purposes,
but not to be held *permanently. The
adjacent landholder may repair or fortify his bank to
protect his land from inundation, but under the control of the
magistrate, that his neighbors be not injured. He cannot divert
the course of the stream, or even draw off water from it, to the
injury of the navigation; nor erect any work which shall incommode
the harbor or quai.
'Ne quid in flumine publico, ripâve ejus, facias, ne quid
in flumine publico, neve in ripa ejus immittas, quo statio,
iterve navigio deterior sit. Dig. L. 43. t. 12. 1. 1. Stationem
dicimus a statuendo: is igitur locus demonstratur, ubicunque
naves tutò stare possunt. ib. §. 13.
'Deterior statio, itemque iter navigio fieri videtur, si usus
ejus corrumpatur, vel difficilior fiat, aut minor, vel rarior,
aut si in totum auferatur. Proinde, sive derivatur aqua, ut
exiguior facta minus sit navigabilis, vel si dilatetur, aut
diffusa, brevem aquam faciat; vel contra sic coangustetur,
et rapidius flumen faciat; vel si quid aliud fiat, quod
navigationem incommodet, difficiliorem faciat, vel prorsus
impediat, interdicto locus erit.' Dig. 43. 12. 15.
'Molino, nin canal, nin casa, nin torre, nin cabaña, nin otro
edificio ninguno, non puede ninguno home facer nuevamente
en los rios por los quales los homes andan con sus navios,
nin en las riveras dellos, porque se embarrasse el uso comun
dellos. E si alguno lo ficiesse y de nuevo, ó fuesse fecho
antiguamente, de que viniesse daño al uso comunal, _debe
ser deribado_. Ca non seria cosa guisada que el pro de todos
los omes communalmente se estorbasse por la pro de algunos.'
Partidas. 3. 28. 8. cited Derb. 48. Poydras 12.
'You are not to do any thing in a public river, or on its
banks, you are not to cast any thing into a public river, or
on its banks, which may render the station, or course of a
ship worse. It is called a _station_, from statuere, to place:
that place is intended where ships may safely stay.
'The station and course of a ship seems to be rendered worse,
if its use be destroyed, or made more difficult, or less, or
scantier, or if it be wholly taken away. Moreover, if water
be drawn off, so that, being scantier, it is less navigable,
or if it be dilated, or spread out, so as to make the water
shallow, or if on the other hand it be so narrowed as to
make the river more rapid; or if any thing else be done which
incommodes the navigation, makes it worse, or wholly impedes
it, there is ground for Interdict.'
'Mill, nor canal, nor house, nor tower, nor cabin, nor other
building whatsoever, may any man make newly in the rivers
along which men go with their vessels, nor on their banks, by
which their common use may be embarrassed. And if any one does
it anew, or were it anciently done, so that injury is done
to the common use, it ought _to be destroyed_. For it would
not be meet that the benefit of all men in common should be
disturbed for the benefit of some.'
The owner of lands on the bank of a river may, however,
make or repair a bank to protect them from the river.
[Sidenote: 56*]
*'Quamvis fluminis naturalem cursum, opere manu facto alio,
non liceat avertere, tamen ripam suam adversus rapidi amnis
impetum, munire prohibitum, non est.' Codex L. 7. t. 41. §.
1.
'Although it is not allowed to turn the natural course of a
river by another made by hand, yet it is not prohibited to
guard one's bank against the force of a rapid river.'
But he is not permitted to do even this if it will affect the public
right, or injure the neighboring inhabitants.
'In flumine publico, inve ripâ ejus facere, aut in id flumen
ripamve immittere, quo _aliter_ aqua fluat quam priore æstate
fluxit, veto.'
'I forbid any thing to be done in a public river, or on its
bank, or to be cast into the river or on its bank, by which the
water may be Dig. L. 43. tit. 13. §. 1. made to flow otherwise
than it flowed in the last season.'
'Quod autem ait, _aliter_ fluat non ad quantitatem aquæ fluentis
pertinet, sed ad modum, et ad rigorem cursûs aquæ referendum
est. Et si quod aliud vitii aecolæ ex facto ejus qui convenitur
sentient, interdicto locus erit.' Ib. §. 3.
'When he says, _to flow otherwise_, it relates, not to the
quantity of water, but to the manner and direction of the course
of the water. And if the neighbors experience any other evil
from the act of him who is convened, there will be ground for
interdict.'
'Sunt qui putent excipiendum hoc interdicto "quod ejus ripæ
muniendæ causa non flet," seilicet ut si quid fiat quo aliter
aqua fluat, si tamen muniendæ ripæ causâ fiat, interdicto
locus non sit. Sed ne hoc quibusdam placet; neque enim ripæ,
cum incommodo accolentium, muniendæ sunt.' Ib. §. 6.
'Some think liable to this interdict only "what is not done
for the purpose of strengthening the bank," to wit, that if
any thing be done by which the water may otherwise flow, if
nevertheless it was to secure the bank, there is no ground for
interdict. But this is not approved by others, for that banks
are not to be secured to the inconvenience of the inhabitants.'
More particularly full and explicit as to the inhibitions of the
law against obstructing the bed, beach or bank of a sea or river,
is Noodt, Probabil. Juris civilis. 4. 1. 1. After declaring that as
to a house, or other such thing, built in a public river, the law is
the same as obtains as to the sea and sea shore, he proposes to
state, 1. The law respecting the sea and its shore, and 2. As it
respects a river and its bank; and says,
'Ait Celsus maris communem usum esse, ut aëris; jactasque in
id pilas fieri ejus qui jecit: sed id concedendum non esse,
si deterior litoris marisve usus eo modo futurus sit. Adeo hoc
quod in mari exstructum est, facientis est. Ut tamen exstruere
liceat, et _decreto opus est_, et _ut innoxia ædificatio
sit_. Porrò ut usus maris, ita usus litoris, sive communis,
sive publicus est jure gentium; et ideò licet unicuique
in litore ædificare, litusque ædificatione suum facere. Si
tamen, ut in mari, ita in litore, _impetravit_: præterea si
non eo modo deterior futurus sit usus litoris; vel nisi usus
publicus _impedietur_. Hoc in mari litoribus jus est. Idem in
fluminibus publicis, Ulpiano teste, Dig. 39. 2. 24. cum sic
ait, 'fluminium publicorum communis est usus, sicut viarum
publicarum et litorum. In his igitur _publicè_ licet cuilibet
ædificare, et distruere, dum tamen hoc sine incommodo cujusquam
fiat.' Vult tamen Ulpianus, ut ædificari possit, ædificari
_publicè_ et _sine cujusquam incommodo_; pariter ut in mari et
litore definitum: _publicè_ inquam, seu _publicâ auctoritate_;
id enim hoc verbum, _publicè_ indigitat.' And (§. 2.) citing
Dig. 43. 12. 4. he says, 'quæsitum est, an is, qui in utrâque
ripâ fluminis publici domus habeat, pontem privati juris [vel
privato jure] facere potest; respondit non posse. Et si facit,
interdicto teneri. Causa responsi est quod, cum pontem facit,
usum fluminis publici facit deteriorem.' So far Noodt.
[Sidenote: 57*]
'Celsus says that the use of the sea is common, as is that of
the air: and that stones laid in it were his who laid them,
but that it was not to be admitted if the use of the shore or
sea would be *the worse. So what is constructed in the sea is
his who constructs it. But to make it lawful to construct, a
decree is necessary, and that the construction be innocent.
Moreover, as the use of the sea, so that of the shore, is
either common or public, by the law of nations. And therefore
it is lawful for any one to build on the shore, and to make the
shore his by the building; if however, as in the sea, so on
the shore, he has obtained permission: and provided besides,
the use of the shore will not thereby be rendered worse, nor
the public use be impeded. This is the law as to the sea and
its shores. It is the same as to public rivers, according to
Ulpian, Dig. 39. 2. 24. where he says, 'the use of public rivers
is common, as of highways and shores. In these, therefore,
any one may build up, or pull down, _publicly_, provided it
be done without _inconvenience to any one_.' That you may
build, however, Ulpian requires that you build _publicly_,
and _without inconvenience_ to any one; in like manner as is
prescribed as to the sea, and its shore: _publicly_, I say, or
_by public authority_; for that is what the word _publicly_,
indicates. And §. 2. citing Dig. 43. 12. 4. he says, 'it is
asked whether he who has houses on both banks of the river,
may build a bridge, of his own private authority. He answers,
he cannot; and if he does, he is bound by the interdict. The
reason of the answer is, that by building a bridge he injures
the use of a public river.' So far Noodt.
[Sidenote: 58*]
* The same is the law as to highways and public places.
Dig. 43. 8. 2. 16.
'Si quis à principe simpliciter impetraverit ut in publico
loco ædificet, non est credendus sic ædificare ut cum incommodo
alicujus id fiat.'
'If any one obtains leave, simply, from the prince, to build
in a public place, it is not to be understood he is so to
build as to incommode another.'
We see then that the Roman law not only forbade every species
of construction or work on the bed, beach or bank of a sea
or river, without regular permission from the proper officer, but
even annuls the permission after it is given, if, in event, the work
proves injurious; not abandoning the lives and properties of its
citizens to the ignorance, the facility, or the corruption, of any
officer. Indeed, without all this appeal to such learned authorities,
does not common sense, the foundation of all authorities, of the
laws themselves, and of their construction, declare it impossible
that Mr. Livingston, a single individual, should have a lawful
right to drown the city of New-Orleans, or to injure, or change,
of his own authority, the course or current of a river which is to
give outlet to the productions of two-thirds of the whole area of
the United States?
Such, then, are the laws of Louisiana, declaratory of the public
rights in navigable rivers, their beds and banks. For we
must ever bear in mind that the Roman law, from which these
extracts are made, so far as it is not controlled by the Customs
of Paris, the Ordinances of France, or the Spanish regulations,
is the law of Louisiana. Nor does this law deal in precept only,
or trust the public rights to the dead letter of law merely: it
provides also for enforcement. The Digest. L. 43. tit. 15. de
ripâ muniendâ; provides
§. 1. 'Ripas fluminum publicorum reficere, munire, utilissimum
est,--_dùm ne ob id navigatio deterior fiat_: illa enim sola
refectio toleranda est, quæ navigationi non est impedimento.'
§. 1. 'To repair and strengthen the banks of public rivers,
is most useful: provided the navigation be not by that
deteriorated; for those repairs alone are to be permitted
which do not impede the navigation.'
[Sidenote: Surety.]
[Sidenote: 59*]
§. 3. 'Is autem qui ripam vult munire, de damno futuro debet
vel cavere, vel satisdare, secundum qualitatem personæ. Et hoc
interdicto expressum est, ut damni infecti, in annos decem,
viri boni arbitratu, vel caveatur, vel satisdetur.'
§. 3. But he who would strengthen his bank, should give either
an engagement, or security against future injury, according
to the quality of the person. And this *interdict establishes
that the engagement, or security, against future injury, shall
be for ten years, by the opinion of a good man.'
§. 4. 'Dabitur autem satis vicinis; sed et his qui trans flumen
possidebunt.
§. 4. 'Security shall be given to the neighbors, and also to
possessors on the other side of the river.'
'Ne quid in loco publico facias, inve cum locum immittas, quâ
ex re quid illi damni detur. Dig. 43. 8. 2. Ad ea loca hoc
interdictum pertinet, quæ publico usui destinata noceret, Prætor
intercederet interdicto suo. §. 5. Adversus eum qui molem in
mare projecit, interdictum utile competit ei, cui forte hæc
res nocitura sit: si autem nemo damnum sentit, tuendus est is,
qui in litore ædificat vel molem in mare jacit. §. 8.--Damnum
autem pati videtur, qui commodum amittit, quod ex publico
consequebatur, qualequale sit. §. 11.--Si tamen nullum opus
factum fuerit, officio judicis continetur, ut caveatur non
fieri.' §. 18.
'You are to do nothing in any public place, nor to cast any
thing into that place, from which any damage may follow. This
interdict respects those places, which are destined for public
use: and that if anything be there done, which may injure an
individual, the Prætor may interpose by his interdict.--Against
him who projects a mole into the sea, the _interdictum utile_
lies for him to whom this may possibly do injury, but if
nobody sustains damage, he is to be protected who builds on
the sea shore, or projects a mole into the sea.--And he seems
to suffer injury who loses any convenience, which he derived
from the public, whatsoever it may be.--But if no work is
done, he should be constrained by the authority of the judge
to engage that none shall be done.'
'Seeing the use of rivers belongs to the public, nobody can
make any change in them that may be of prejudice to the said
use. Thus one cannot do any thing to make the current of the
water slower, or more rapid, should this change be any way prejudicial
to the public, or to particular persons. Thus although
one may divert the water of a brook, or a river, to water his
meadows or other grounds, or for mills and other uses; yet,
every one ought to use this liberty so as not to do any prejudice,
either to the navigation of the river, whose waters he should
turn aside, or the navigation of another river which the said water
should render navigable by discharging itself into it, or to any
other public use, or to neighbors who should have a like want,
and an equal right.' Dom. Pub. law. 1. 8. 2. 11.
[Sidenote: 60*]
*The same laws make it peculiarly incumbent on the government
and its officers to watch over the public property
and rights, and to see that they are not injured or intruded
on by private individuals. In order to preserve the
navigation of rivers, it is proper for the government to prohibit
and punish all attempts which might hinder it, or render it inconvenient,
whether it be any buildings, fisheries, stakes, floodgates
and other hindrances, or by diverting the water from the
course of the rivers, or otherwise. And it is likewise forbidden
to throw into the rivers any filth, dirt or other things, which
might be of prejudice to the navigation, or cause other inconveniences.'
Dom. Pub. L. 1. 8. 2. 8.
'Quoique la mer et ses bords soient, suivant les principes du
droit naturel, des choses publiques et communes à tous, avec
faculté à chacun d'en user selon sa destination, neanmoins
il ne doit pas étre permis aux uns d'en jouir au préjudice
des autres. Ainsi pour prévenir les inconveniens qui seroient
résultés de la liberté d'user de la chose commune, il a fallu
que cette liberté fut limitée par la puissance publique, ainsi
que s'en explique Domat, &c. Nouv. Comment. sur l'orden. de
1681. tit. 7. art. 2. Note.
'Although the sea and its shores, according to the principles
of natural law, are things public and common to all, with
liberty to every one to use them according to their destination,
nevertheless it ought not to be permitted to some to enjoy
them to the prejudice of others. Therefore to prevent the
inconveniences which would result from the liberty of using
the public property, it is necessary that that liberty be
limited by the public authority, as explained by Domat,' &c.
'It is likewise agreeable to the law of nature, that this liberty,
which is common to all, being a continual occasion of quarrels,
and of many bad consequences, should be regulated in some
manner or other; and there could be no regulation more equitable,
nor more natural, than leaving it to the sovereign to provide
against the said inconveniences. For as he is charged
with the care of the public peace and tranquillity, as it is to him
the care of the order and government of the society belongs, and
it is only in his person that the right to the things which may
belong in common to the public, of which he is the head, can
reside; he therefore as head of the commonwealth, ought to
have the dispensation and exercise of this right, that he may
render it useful to the public. And it is on this foundation that
the Ordinances of France have regulated the use of navigation,
and of fishing, in the sea and in rivers.' Dom. P. L. 1. 8. 2. 1.
note. Observe that the work of Domat was published
in 1689, and he died in 1696. *Dict. hist. par une société.
_verbo_ Domat. We know then from him the state
of the laws of France, at a period a little anterior only to the establishment
of the colony of Louisiana, and the transfer of the
laws of France to that colony by its charter of 1712.
[Sidenote: 61*]
[Sidenote: Levées and Police of Missisipi.]
To the provisions which have been thus made by the Roman
and French laws and transferred to Louisiana, no particular additions,
by either the French or Spanish government, have been
produced on the present occasion. We know the fact, and thence
infer the law, that from a very early period, the governors of
that province were attentive especially to whatever respected the
harbor of New-Orleans, which included the grounds now in
question. We see them forbidding inclosures, or buildings on
them, pulling down those built, publishing bans against future
erections, forbidding earth for buildings and streets to be taken
from the shore adjacent to the city, and assigning the beach Ste.
Marie for that purpose, protecting all individuals in the equal
use of it as a Quai, in which cares and superintendence the Cabildo
or City Council, participated; and on the change of government
we see that council pass an Ordinance declaratory of the
limits of the port of N. Orleans, and come forward in defence
of the public rights, in the first moment of J. Gravier's intrusion,
by pulling down his inclosure, and when that intrusion under
the enterprise of Mr. Livingston, assumed a more serious aspect,
they, as municipal guardians of the interests of the city, made
an immediate appeal to the Judiciary, the Executive, and Legislative
authorities. In addition, too, to the French
laws for the protection of the bed and bank of the
river, the territorial legislature, on the 15th of Feb.
1808, passed an Act, reciting that inasmuch as 'the common
safety of the inhabitants of the shores of the river Missisipi depends
not only on the good condition of the levées or embankments,
which contain the waters of the said river; but also on
the strict observance of the laws concerning the police of rivers
and their banks, _which are in force in this territory_, and by
which it is forbidden to make on the shores of the rivers, any
work tending to alter the course of the waters, or increase their
rapidity, or to make their navigation less convenient, or the anchorage
less sure, [almost in the words of the Roman law, 'ne
quid in flumine publico'] they therefore enact that no levée shall
be made in front of those which exist at present, but on an inquisition
by 12 inhabitants, proprietors of plantations situate on
the banks of the river, convoked for that purpose, by the Parish
judge; that no such levée, which at the present time of passing
this act shall happen to be commenced in front of others already
existing, shall be continued or finished without a
like authorization;* that those who act in contravention
shall be fined 100 dols. for every offence in contravention,
and pay the expenses of removing the nuisance, and costs
of suit; and prohibiting the receiving compensation for the use
of the shores under a penalty of 500 dols. A law of wonderful,
not to say imprudent and dangerous tenderness to the riparian
proprietors, who are thus made the sole judges in cases where
their own personal interests may be in direct opposition to the
interests, and even the safety of the city, to which it gives no
participation or control over the power which may devote it to
destruction.
[Sidenote: 62*]
This act is partly declaratory of the existing law, and partly
additional. Application to the Prætor was under the Roman
law (Dig. 43. 13. 6.) for permission to fortify a bank for the
protection of a farm. He might refuse permission if injurious;
but if he thought it would not be injurious, the party was to
give security to make good all damages which should accrue
within ten years; and this security was for the protection, not
only of immediate neighbors, but of those also on the opposite
bank 'trans flumen possidentibus.' The Governor and Cabildo
seem to have held this Prætorian power in Louisiana, as well as
that of demolishing what was unlawfully erected. This act of
the Legislature, without taking the power from the Governor
and City Council, gave a concurrent power to the parish judge,
and a jury of 12 riparians: and without dispensing with the
security required by the existing law, adds penalties against contraveners.
And surely it is the territorial legislature, which not only has
the power, but is under the urgent duty, of providing regulations
for the government of this river and its inhabitants, regulations
adapted to their present political regulations, as well as to the
peculiar character and circumstances of the river, and the adjacent
country. Their power is amply given in the act of Congress
of 1804. c. 38. §. 11. 'The laws in force in the said
territory at the commencement of this act, and not inconsistent
with the provisions thereof, shall continue in force, until altered,
modified, or repealed by the legislature. §. 4. The Governor,
by and with advice and consent of the said legislative council,
or of a majority of them, shall have power to alter, modify, and
repeal the laws which may be in force at the commencement of
this act. Their legislative powers shall extend to all the rightful
subjects of legislation;' with special exceptions, none of which
take away the authority to legislate for the police of the river.
And if ever there was a rightful subject of legislation, it is that
of restraining greedy individuals from destroying the country by
inundation.
[Sidenote: Suspension of Liv.'s works, by whom?]
[Sidenote: 63*]
And here it must be noted that Mr. Livingston's works were
arrested by the Marshal and posse comitatus, by an
order from the Secretary of State on the *25th of
January 1808, and on the 15th of the ensuing
month, the legislature took the business into the
hands of their own government, by passing this act.
From this moment it was in Mr. Livingston's power to resume
his works, by obtaining permission from the legal authority.
The suspension of his works therefore by the general government
was only during these 21 days.
[Sidenote: Their nature.]
[Sidenote: 64*]
That Mr. Livingston's works were clearly within the interdict
of the Roman, the French, and the Spanish laws, which forbid
the extending a mole into the water, constructing in it mills,
floodgates, canals, towers, houses, cabins, fisheries, stakes or other
things which may obstruct or embarrass the use, will
result from a brief recapitulation of their character
and effects, drawn from the statement before given. For it is
not to establish a mill, which, though an intrusion would be but
a partial one: it is not to erect a temporary cabin or fisherman's
hut, which would be a minor obstacle: but it is to take from the
city and the nation what is their port in high water, and at low
tide their Quai; to leave them not a spot where the upper craft
can land or lie in safety; to turn the current of the river on the
lower suburbs and plantations; to embank the whole of this extensive
beach; to take off a fourth from the breadth of the river,
and add equivalently to the rise of its waters; to demolish thus
the whole levée, and sweep away the town and country in undistinguished
ruin. And this not as a matter of theory alone,
but of experience: the fact being known that since the embankment
of the river on both sides through a space of three or four
hundred miles the floods are two or three feet higher than before
that embankment. In fine, should they have time to save themselves
from inundation by doubling the height and breadth of
their levée, it is that they may fall victims to the pestilential diseases
which, under their fervid sun, will be generated by the
putrefying mass with which he is to raise up the foundation between
the old and new embankments. But, has he entitled himself
to attain these humane achievements by fulfilling the preliminary
requisites of the law? Has he obtained the Prætorian,
or Pro-Prætorian license, that of the governor and city council,
to erect this embankment? Has he given security for all the
damages which shall be occasioned by his works for ten years?
Has he even carried his case before a jury of 12 brother riparians?
Or does he fear to trust it even to those having similar interests
with himself? lest the virtuous feelings of compunction for the
fate of their fellow citizens should scout his proposition with
honest indignation? And yet, until this permission, every spadeful
of earth he moved was an outrage on the law, and on the
public peace and safety, which called for immediate suppression*.
What was to be done with such an aggressor? Shall we answer
in the words of the Imperial edict, on a similar occasion,
that of breaking the banks of the Nile? Cod. 9. 38. 'Flammis
eo loco consumatur, in quo vetustatis reverentiam,
et propemodum ipsius imperii appetierit securitatem; consciis et
consortibus ejus deportatione constringendis; sic ut nunquam supplicandi,
eis, vel recipiendi civitatem vel dignitatem, vel substantiam,
licentia tribuatur.' 'Let him be consumed by the flames
in that spot in which he violated the reverence of antiquity, and
the safety of the empire, let his accessories and accomplices be
cut off by deportation from the possibility of supplicating forgiveness,
or of being restored to country, dignity and possessions.'
Our horror is not the less because our laws are more
lenient.
[Sidenote: Remedies.]
Such, then, were the facts, and such the state of the law, on
which we were called, and repeatedly and urgently
called to decide: not indeed in all the fulness in
which they have since appeared, but sufficiently manifested to
show that an atrocious enterprise was in a course of execution,
which if not promptly arrested, would end in a desolation for
which we could never answer. The question before us was,
What is to be done? What remedy can we apply, authorized
by the laws, and prompt enough to arrest the mischief?
[Sidenote: Abatement of Nuisance.]
[Sidenote: 65*]
1. Were the case within the jurisdiction of our own laws, its
character and remedy would be obvious enough. A
navigable river is a high way, along which all are
free to pass. And as the obstructing a highway on
the land, by ditches or hedges, or logs across it, or erecting a
gate across it, is a common nuisance, so to weaken injuriously
the current of a river, by drawing off a part of its water, to obstruct
it by moles, dykes, weirs, piles, or otherwise, is a common
nuisance; and all authorities agree, that every one is allowed to
remove or destroy a common nuisance. Hawkins, P. C. 1. 75.
12. The Marshal and posse, instead of pleading the order from
the Secretary of State, have a right to say 'we did this as citizens,
and the law is our authority:' and it would really be singular
if, what every man may, or may not do, at his pleasure, the
magistrate who is sworn to see the law executed, and is charged
with the care of the public property and rights, is alone prohibited
from doing; or if his order should vitiate an act which
without it would have been lawful, or which he might have
executed in person. It would be equally singular, and equally
absurd, that the law should punish the magistrate for hindering
Mr. Livingston from doing what itself had forbidden and would
punish, and reward him with damages for having been
restrained *from what they had forbidden him to do.
The law makes it a duty in a bystander to lay hands on
a man who is beating another in the street, and to take him off.
And yet it is proposed that the same law shall punish him for
taking off one who was engaged, not in beating a single individual,
but in drowning a whole city and country. This is not
our law; it is not the law of reason; and I am persuaded it is no
part of a system emphatically called _ratio scripta_. If it is, let
the law be produced. Until it is, we hold every man authorized
to stay a wrongdoer, in the commission of a wrong, in which
himself and all others are interested.
[Sidenote: Forcible entry.]
2. By nature's law, every man has a right to seize and retake
by force, his own property, taken from him by another,
by force or fraud. Nor is this natural right
among the first which is taken into the hands of regular government,
after it is instituted. It was long retained by our ancestors.
It was a part of their Common law, laid down in their
books, recognised by all the authorities, and regulated as to certain
circumstances of practice. Lambard, in his Eirenarcha. B.
2. e. 4. says, 'it seemeth that (before the troublesome raigne of
king Richard the second,) the Common law permitted any person
(which had good right or title to enter into any land,) to win
the possession by force, if otherwise he could not have obtained
it. For a man may see, (in Britton fo. 115.) that a certain respite
of time was given to the disseisee, (according to his distance
and absence,) in which it was lawful for him to gather force,
armes, and his friends, and to throw the disseisor out of his
wrongful possession.' Hawkins in his Pleas of the crown, and
all the Abridgements and Digests of the law say the same: but,
not to take it at second hand, we will recur to the earliest authorities,
written while it was yet the law of the land. Fleta in the
time of E. 1. writes,
'Si facta fuerit diseissina, primum et principale competit
remedium quod ille qui ita disseisitus est, per se, si possit,
vel sumptis viribus, vel resumptis (dum tamen sine aliquo
intervallo, flagrante disseisinâ et maleficio) rejiciat
spoliantem. Quem si nullo modo expellere possit, ad superioris
auxilium erit recurrendum. Si autem verus possessor absens
fuerit, tunc locorum distantia distinguere oportebit, secundem
quod fuerit propè vel longè, quo tempore viz. scire potuit
disseisinam esse factam, ut sic, allocatis ei rationabilibus
dilationibus, primo die cum venerit, statim suum dejiciat
disseisitorem; qui, si primo die, non possit, in crastino, vel
die tertio vel ulterius, dum tamen sine fictitiâ, hoc facere
poterit, vires sibi resumendo, arma colligendo, auxiliumque
amicorum convocando.' Fleta L. 4. c. 2. And Bracton L. 4. c.
6. in almost totidem verbis; and Britton 'le premer remedie
pour disseisine est al disseisi de recollier amys et force et
sauns delay faire (après ceo que il le purra saver) egetter
les disseisours.' Britton c. 44.
[Sidenote: 66*]
'If a disseisin has been committed, a first and principal
remedy lies, that he who has been so disseised, by himself, if
he can, or taking force, and retaking, (provided it be without
any interval, the disseisin and wrong being yet flagrant,)
may eject the spoliator. Whom, if he can by no means expel,
resort is to be had to the assistance of a superior. But if
the rightful possessor were absent, then, regard must *be had
to the distance of the places, according as it was near or far
off, at what time, for instance, he could know that a disseisin
had been committed, that so, reasonable delays being allowed
him, on the first day when he comes, he may immediately eject
the disseisor, which if he cannot do on the first day, he may
on the morrow, or third day, or later, provided however he
do it without false pretences, by taking to himself force,
collecting arms, and calling in the aid of his friends.' And
Bracton L. 4. c. 6. almost in the same words; and Britton
says, 'The first remedy for disseisin is for the disseisee to
collect his friends and force, and without delay, (after he
may know of it,) to eject the disseisors.'
This right, as to real property, was first restrained in England
by a statute of the 5. R. 2. c. 7. which forbade entry into lands
with strong hand; and another of the same reign, 15. R. 2. c. 2.
authorized immediate restitution to the wrong doer, put out by
forcible entry. And even at this day, in an _action_ of trespass,
for an entry, _vi et armis_, if the defendant makes good title, he
is maintained in his possession, and the plaintiff recovers no
damages for the force. Lambard 2. 4. Hawk. P. C. 1. 64. 3.
And in like manner, the natural right of recaption by force still
exists, as to personal goods, and the validity of their recaption.
Hawk. 1. 64. 1. Kelway 92. is express. Blackstone, indeed, 3.
1. 2. limits the right of recaption to a peaceable one, not amounting
to a breach of the peace; meaning, I presume, that the recaptor
by force may be punished for the breach of the peace.
So may the defendant in trespass for an entry _vi et armis_. Yet
in an _action_ of detinue for the personal thing retaken by force,
the first wrong doer cannot recover it, nor damages for the recaption,
any more than in the case of trespass for lands. So that
to this day the law supports the right of recaption, as between
the parties, although it will punish the public offence of a breach
of the peace.
[Sidenote: Roman law.]
[Sidenote: 67*]
When this natural right was first restrained among the Romans,
I am not versed enough in their laws to say.
It was not by the laws of the XII tables, which continued
*long their only laws. From the expression
of the Institute, '_divalibus constitutionibus_,' I should
infer it was first restrained by some of the Emperors, predecessors
of Justinian. L. 4. t. 2. §. 2.
'Divalibus constitutionibus prospectum est, ut nemini liceat
vi rapere vel rem mobilem, vel se moventem, licet suam eandem
rem existimat. Quod non solum in mobilibus rebus, quæ rapi
possunt, constitutiones obtinere censuerunt, sed etiam in
invasionibus, quæ circa res soli fiunt.'
'By the Imperial constitutions it is provided that no one shall
take by force a thing either moveable, or moving, although he
considers it as his own. Which the constitutions have ordained
to take place, not only in moveable things, which may be taken,
but also in intrusions which are made into lands.'
But I believe that no nation has ever yet restrained itself in
the exercise of this natural right of reseising its own possessions,
or bound up its own hands in the manacles and cavils of litigation.
It takes possession of its own at short hand, and gives to
the private claimant a specified mode of preferring his claim.
There are cases, of particular circumstance, where the sovereign,
as by the English law, must institute a previous inquest: but in
general cases as the present, he enters at once on what belongs
to his nation. This is the law of England. 'Whenever the
king's [i.e. the nation's] title appears of record, or a possession
in law be called upon him by descent, escheat, &c., he may
enter without an office found: for if his title appear any way of
record, it is as good as if it were found by office: and if any one
enter on him, even before his entry made, he is an intruder; he
cannot gain any freehold in the land, nor does he put the king
to an assize or ejectment, or take away his right of entry: for
he cannot be disseised but by record. Stamford. Prærogativa
regis. 56. 57. Com. Dig. Prærog. D. 71. the substance of the
authorities cited.
[Sidenote: Squatters.]
[Sidenote: 68*]
[Sidenote: Jurisdiction in whom.]
[Sidenote: When it results to Courts.]
What are the prescriptions of the Roman law in this case, I do
not know; nor are they material but inasmuch as they may be
the law of the case in Louisiana. A Spanish law before cited,
p. 55. forbidding erections on the beds, or on the banks of rivers,
says expressly, 'si alguno lo ficiese debe ser deribado.' 'If any
one does it, it is to be destroyed.' And the constant practice of
the Governors of demolishing such erections was the best evidence
of the law we could obtain. Not skilled in their laws
ourselves, we had certainly a right to consider the Governor and
Cabildo as competent expositors of them, and as acting under
their justification and prescription. We might reasonably
think ourselves safe *in their opinions of their own law.
In fact, if the immediate entry was permitted by the English
law, and our own, we thought we might, _à fortiori_, conclude
it permitted by those of the province. We had before
us too the example of many of the states, and of
the general government itself, which have never hesitated to remove
by force the Squatters and intruders on the public lands.[101]
Indeed if the nation were put to action against every Squatter,
for the recovery of their lands, we should only have lawsuits,
not lands for sale. While troops are on parade, should intruders
take possession of their barracks, and shut the doors, are they to
remain in the open air till an action, or even a writ of forcible
entry replace them in their quarters? if in the interval of a daily
adjournment, intruders take possession of the capitol, may not
Congress take their seats again till an inquisition and posse shall
reintroduce them? let him who can, draw a line between
these cases. The correct doctrine is that so
long as the nation holds lands in its own possession,
so long they are under the jurisdiction of no court, but by special
provision. The United States cannot be sued. The nation, by
its immediate representatives, administers justice itself to all who
have claims upon the public property. Hence the numerous petitions
which occupy so much of every session of Congress in
cases which have not been confided to the courts. But when
once they have granted the lands to individuals,
then the jurisdiction of the courts over them commences.
They fall then into the common mass of
matter justiciable before the courts. If the public has granted
lands to B. which were the legal property of A., A. may bring
his action against B. and the courts are competent to do him
justice. The moment B. attempts to take possession of A.'s
lands, the writ of forcible entry, the action of trespass or ejectment,
and the Chancery process, furnish him a choice of remedies.
The holders of property therefore are safe against individuals
by the law; and they are safe against the Nation by its
own justice: and all the alarm which some have endeavored to
excite on this subject has been merely _ad captandum populum_.
As if the people would not be safe in their own hands, or in
those of their representatives; or safer in the hands of irresponsible
judges, than of persons elected by themselves annually or
biannually. The truth is, no injury can be done to any man
by another acting either in his own or a public character, which
may not be redressed by application to the proper organ to
which that portion of the administration of justice has been assigned.
[Sidenote: Act of Congress.]
[Sidenote: 69*]
[Sidenote: Remitter.]
[Sidenote: 70*]
3. Our third and conclusive remedy was that prescribed by
the act of Congress of 1807. c. 91. to prevent *settlements
on lands ceded to the U. S. The Executive
had been indulgent, perhaps remiss, in not removing
Squatters from the public lands, under the general
principles of law before explained and habitually acted on. This
act therefore was a recent call on them to a more vigilant performance
of their duty, in the special district of country lately
ceded to them by France, with some modifications of its exercise
on previous settlers. The act has two distinct classes of
Intruders in view. 1. Those who, _before the passing of the act_,
had possessed themselves of the lands, and were actually resident
on them at the passing it: and 2. Those who should take possession
_after the passage of the act_. 1. With respect to the class
of Intruders _before_ the passage of the act, the 2d section provides
that, on renouncing all claim, they may obtain from the register
or recorder, permission to remain on the lands, extending their
occupation to 320 acres, §. 8. which permissions are to be recorded:
but, §. 4. those not obtaining permission are, on three
months' notice, to be removed by the marshal. But Mr. Livingston
was much too wise to qualify himself for the benefit of these
sections, by an actual residence on the batture. _His_ part of the
act therefore is the first section which enacts that 'if any person
shall take possession of any lands ceded to the U. S. by treaty,
he shall forfeit all right to them if any he hath; and it shall be
lawful for the President of the U. S. to direct the Marshal, or
the military, to remove him from the lands. Providing however
that this removal shall not affect his claim until the Commissioners
shall have made their reports, and Congress decided thereon.'
The tribunal to which the legislature had specially delegated a
power to take cognizance of the claims on the public lands in
Orleans, and to inform them what lands were clear of claim, and
free to be granted to our citizens, was a board of Commissioners:
and the plain words and scope of the law were, to keep all
claims and prior possessions _in statu quo_, until they could be
investigated by these Commissioners, reported, and decided on by
Congress. And this act indulgently provides that the right of a
person removed by the Executive for irregularly taking possession
of lands which he thought his own, should not be affected
by this removal, but that he might still lay his claim before the
Commissioners, and Congress would decide on it. Mr. Livingston's
claim was clearly within the purview of the law. It was
of lands 'ceded to the U. S. by treaty,' and he had 'taken possession
of them _after the passage of the act_.' For the decree
of the court was not till May 23, '07, and his possession was
subsequent to that. If he should say, as his counsel
seems to intimate, Opinions LXVII. that this
was a _remitter_ to him of the ancient possession* of
Bertrand Gravier, I answer that it was no remitter
against any one, because the case was _coram non judice_, as will
be shown, and still less against the U. S. who were no parties to
the suit: and if it had been a remitter, then I should have observed
that the order has been executed on a person not comprehended
in it; for it was expressly restrained to possessions taken
after the 3d of March '07, in that case the Marshal must justify
himself, not under the order, but his personal right to remove a
nuisance. But investigations, reports, and decisions of Congress
were dangerous. It was safer to be his own judge, to seize
boldly, and put the public on the defensive. He seizes the
ground he claims, and refers his title to no competent tribunal.
When ousted, according to the injunctions of the statute, and
repossession taken on behalf of the U. S. he passes by the preparatory
tribunal of the Commissioners, and endeavors to obtain
a decision on his case by Congress, in the first instance: in this
too he has been disappointed. Congress have maintained the
ground taken under the statute; and Mr. Livingston now demands
the value of the lands from the magistrate on whom devolved
the duty of executing the statute.
[Sidenote: Recapitulation.]
Taking now a brief review of the whole ground we have
gone over, we may judge of the correctness of the
decision of the Cabinet, as to their duty in this case.
I trust it will appear to every candid and unbiassed mind, that
they were not mistaken in believing
That the Customs of Paris, the Ordinances of the French
government, the Roman law as a supplement to both, with the
special acts of the Spanish and American legislatures, composed
that system of law which was to govern their proceedings.
That, were this a case of Alluvion, the French law gives it to
the Sovereign in all cases; and the Roman law to the private
holder of _rural_ possessions only.
That Bertrand Gravier had converted his plantations into a
fauxbourg, and appendage of the city of New-Orleans; with the
_previous_ sanction of the Spanish government, according to
his own declarations, by which those claiming under him are
as much bound, as if made by themselves; and certainly by its
_subsequent_ formal recognitions, and confirmations, which
acted retrospectively; and the character of the ground being
thus changed from a Rural to an Urban possession, the Roman
law of Alluvion does not act on it. Recapitulation.
[Sidenote: 71*]
That even had his ground retained its _rural_ character, and
admitting that the grant to him '_face au fleuve_' conveyed
the lands to the water's edge, his sales, '_face au fleuve_'
conveyed to his* purchasers the same right which the same terms
had brought to him, and they, and not the plaintiff, now hold
the rights of B. Gravier, whatever they were.
That John Gravier having elected to take the estate as a
purchaser by inventory and appraisement, the Batture, if
Bertrand's, was not in that inventory, nor consequently
purchased by John Gravier.
That the deed from him to De la Bigarre was fraudulent and void,
as well by the _lex loci_, as on the face of the transaction.
That the decision of the court in his favor could in no wise
concern the United States, who were neither parties to the
suit, nor amenable to the jurisdiction.
And, consequently, that under all these views of the French
law: the Roman law, the conveyances '_face au fleuve_,' the
purchase by inventory, and the fraudulency of the deed to
Bigarre, the plaintiff's claim is totally unfounded. And, if
void by any one of them, it is as good as if void by every one.
But it has appeared further that the batture had not a single
characteristic of alluvion:
That the _bank_ of a river is only what is above the high
water mark:
That all below that mark is _bed_, or alveus, of which the
batture is that portion between the high and low water mark,
which we call the _beach_:
That it serves, as other beaches do, for a port while covered,
and Quai uncovered: and it is the only port in the vicinity
of the city which river craft can use.
That, as a part of the _bed_ of the river, it is purely public
property.
That it is not lawful for an individual to erect, on either
the bed or bank of a river, any works which may affect the
convenience of navigation, of the harbor or Quai, or endanger
adjacent proprietors on either side of the river.
That though it is permissible to guard our own grounds against
the current of the river, yet, so only, as to be consistent
with the convenience and safety of others.
That of this the legal magistrates are to be judges in the first
instance; but even _their_ errors are to be guarded against
by an indemnification for all damages which shall actually
accrue to individuals within a given time.
[Sidenote: 72*]
That Mr. Livingston's works, in a single flood, had given
alarming extent, both in breadth and height, to the batture:
had turned the efforts of the river against the lower suburbs,
and habitations, not before exposed to them; that they would
deprive the public of what was their Quai in low water, and
harbor* in times of flood: that, by narrowing the river one
fourth, it must raise it in an equivalent proportion, to
discharge its waters: that this would sweep away the levée,
city, and country, or quadruple the bulk of the levée, and
the increased danger to which that would expose it: and,
even then, would infect the city, by the putridity of the new
congestions, with pestilential diseases, to which its climate
is already too much predisposed.
That Mr. Livingston was doing all this, of his own authority,
without asking permission from the public magistrate, or giving
any security for the indemnity of injured citizens:
That under the pressure of these dangers, the Executive of
the nation was called on to do his duty, and to extend the
protection of the law to those against whose safety these
outrages were directed:
And that the authorities given by the laws, 1. For preventing
obstructions in the beds, or banks of rivers, 2. For re-seizing
public property intruded on; and 3. For removing intruders
from it by force, were adequate to the object, if promptly
interposed.
[Sidenote: Orders of the Government.]
[Sidenote: Proceedings under them.]
[Sidenote: 73*]
On duly weighing the information before us, which though
not as ample as has since been received, was abundantly
sufficient to satisfy us of the facts, and has
been confirmed by all subsequent testimony, we were
all unanimously of opinion, that we were authorized, and in duty
bound, without delay, to arrest the aggressions of Mr. Livingston
on the public rights, and on the peace and safety of the city
of New-Orleans, and that orders should be immediately dispatched
for that purpose, restrained to intruders since the passage
of the act of March 3. The Secretary of State accordingly
wrote the letter of Nov. 30, to the Governor, covering instructions
for the Marshal to remove immediately, by the civil power,
any persons from the batture Ste. Marie, who had taken possession
since the 3d of March, and authorising the Governor, if
necessary, to use military force; for which purpose a letter of the
same date was written by the Secretary at war to the commanding
officer at New-Orleans. This force however was not called
on. The instructions to the Marshal were delivered to him
about 9 o'clock in the morning of the 25th of Jan. 1808. [Dorgenoy's
letter to the Governor] He immediately went to the
beach, and ordered off Mr. Livingston's laborers.
They obeyed, but soon after returned. On being
ordered off a second time, the principal person told
him that he was commanded by Mr. Livingston not to give up
the batture until an adequate armed force should compel him.
And, in the mean time, Mr. Livingston had procured,
from a single judge of the superior court of the territory,*
an order, purporting to be an injunction, forbidding the
marshal to disturb Edward Livingston in his possession of the
batture, under pain of a contempt of court. The marshal, placed
between contradictory orders, of the national government as to
the property of the nation, and a territorial judge without jurisdiction
over it, obeyed the former; collected a posse comitatus,
ordered off the laborers again, who peaceably retired; and no
further attempts were afterwards made to recommence the work.
[Sidenote: Chancery Jurisdiction.]
[Sidenote: 74*]
I have said that the marshal received an order, purporting to
be an injunction. An authoritative injunction it
could not be; because that is a Chancery process,
and no Chancery jurisdiction has been given by any
law to the superior court of that territory. Its judges were first
established by the act of Congress of 1804. c. 38. with commissions
for four years, and certain specified powers, which it is
unnecessary to state, because an act of March 2, of the next
year, c. 83. established, in that territory, 'a government in all
respects similar to that exercised in the Missisipi territory,' which
government had been established by an act of 1798. c. 5. 'in
all respects similar to that in the territory North-west of the
Ohio.' So that we are to find all their powers in the Ordinance
of 1787, for the North-Western territory, in which are the following
words. 'There shall be appointed a court to consist of
three judges, any two of whom to form a court, who shall have
_a common law jurisdiction_, and their commissions shall continue
in force during good behavior.' And again 'The inhabitants of
the said territory shall always be entitled to the benefits of the
writ of _Habeas corpus_, and of the trial by jury.' New commissions
were accordingly given to the judges appointed under
the first law, and, instead of their former powers, they were now
to have _a common law jurisdiction_. By these words certainly
no _chancery jurisdiction_ was given them. Every one knows
that common law jurisdiction is a technical term, used in contradistinction
to a chancery jurisdiction, and exclusive of that, the
common law ending where the chancery begins. The one authority
is here given, and therefore they have it; the other is not
given, and therefore they have it not. For they have no authority
but that which is given by the legislature. If they have not
chancery powers, then, by this law, there remains but one other
source from which they can legally derive it. The act of 1804
before mentioned § 11, says, 'the laws in force in the said territory,
at the commencement of this act, and not inconsistent
with the provisions thereof, shall continue in force until altered,
modified, or repealed by the legislature.' We have seen that
the laws in force were the French and Roman, with perhaps
some occasional Spanish regulations. It being perfectly understood
that these were not meant to be included in the
*change, it follows that the term _common law_, when
applied to this territory, must be equivalent to the common
law of that land, or the law of the land. Was then the
establishment of the French and Roman laws an establishment
of the chancery system of law? Will it be said that the Roman
and Chancery laws, for instance, are the same? That the _civil
law_, and the _chancery_ are synonymous terms, both meaning the
same system? Nobody will say that. The system of chancery
law is partly concurrent, but chiefly supplementary and corrective
of that of the common law. It sometimes corrects the
harshness of the letter, where that includes what was not intended.
It gives remedies in certain cases where that gave
none, and more perfect remedies in other cases. It is adapted
to the common law as one part of an indenture is to its counterpart.
It is formed to tally with that in all its prominences and
recesses, its asperities and defects, and with no other body of
law on earth. It consists of a set of rules and maxims, modified
by the English Chancellors thro' a course of several centuries,
derived from no foreign model, but contrived to reduce specifically
the principles of common law to those of justice. The
Roman law has something similar in its _Jus Prætorium_, where
the discretion of the Prætor was permitted to mollify and correct
the harshness of the _leges scriptæ_. But to apply the _Jus Prætorium_
to our common law, or our chancery to the _leges scriptæ_
of the Romans, would be to apply to one thing the tally of another,
or to mismatch the parts of different machines, so as to
render them inconsistent and impracticable. Our chancery system
is as different from the civil, as from the common law. All
systems of law indeed profess to be founded on the principles of
justice. But the superstructures erected are totally distinct.
The chancery then being a system clearly distinct from that of
the French and Roman laws, it cannot be said that the legislature
of the U. S. by establishing the French and Roman laws
in Orleans, established there the chancery system. It will not
be pretended that the process of _subpœna_, used in the present
case, and the sole and peculiar original process of chancery, is a
civil law process. It is known to have been the invention of
Waltham, Chancellor of Richard II. founded on the statute of
Westminster the 2d c. 24. giving writs _in consimili casu_.
[Sidenote: 75*]
[Sidenote: 76*]
Might it be urged (for I am really at a loss to conjecture on
what grounds this power has been assumed) that possessing
under the act of '04, the powers of the chancery combined with
those of the French and Roman laws, the subsequent act which
gave them a common law jurisdiction, did not take away the
others? _In totidem verbis_ it did not, but in effect it did completely,
by changing the government into one in all respects
similar to that in the Missisipi territory, where there was no
chancery jurisdiction. Moreover, there is not a word in the act
of '04, which gives them *chancery jurisdiction. It says, 'they
shall have jurisdiction in all criminal cases, and original
and appellate jurisdiction in all civil cases of the value of
100 dollars, and the laws in force at the commencement
of this act shall continue in force.' Here then is their jurisdiction,
and the particular system of law according to which they
are to exercise it, and the chancery made no part of that system.
This argument too would suppose that to the French, the Roman,
the Spanish, and the Chancery laws, the common law was
also added. This would be an extraordinary spectacle, indeed,
and the imputation of such an intention would be an insult to
the legislature. Their laws have always some rational object
in view; and are so to be construed, as to produce order and
justice. But this construction, establishing so many systems,
and these inconsistent and contradictory, would produce anarchy
and chaos, and a dissolution of all law, of all rights of person or
property. And what would be the consequences of carrying on
a system of chancery concurrent with the French and Roman
laws? A case is brought, for instance, into their court of chancery.
I ask the honorable judges, is the law of chancery in this
case, the same as the civil law? If the same, what need of calling
in the system of chancery? If different, will you decide
against the law established by the legislature? If you carry on
two systems, the one of which, in any case, gives a right to A.
and the other to B. the suitor who covets his neighbor's property
needs only to chuse that court, the rules of which will give it to
him. Thus all rights will be set afloat between two opposite
systems. The wisdom of the legislature therefore has been as
sound in not giving a chancery jurisdiction concurrently with
the civil law, as the judges have been ill-advised in usurping it.
And have they adverted to the national feelings, when they have
ventured, on their own authority, to abolish the trial by jury
pledged by the Ordinance to the inhabitants forever? Whoever
wishes to take from his opponent the benefit of this trial,
has only to bring his suit in the court of chancery. In this very
case, on which the well-being of a great city is suspended, no
jury was called in. The judges took upon themselves to decide
both fact and law; aware, at the same time, that a jury could not
have been found in Orleans, which would not have given a contrary
decision. I shall not ascribe either favoritism, or intentional
wrong to them: but they ought not to be surprised, if those
do whose interests and safety are so much jeopardised by this
shuffle of the judges into the place of the jury. It is much regretted
that these respectable judges have set such an example
of acting against law. It will be more regretted if they do not,
by the spontaneous exertion of their own good sense and self-denial,
tread back their steps, and perceive that there is
more honor and magnanimity in correcting, than *persevering
in an error. They had before them too the example
of their neighbors, of the Missisipi territory, whose government
was expressly made the model of theirs. Their judges,
like themselves, entitled to common law jurisdiction only, and
sensible it needed the mollifying hand of the chancery, did not
think the assumption of it within their competence. The territorial
legislature therefore invested them with the jurisdiction.
The Judiciary power of the Indian territory modelled by the
same Ordinance, was enlarged in like manner by the local legislature.
And yet the Orleans territory, least of all needed the aid
of a Chancery, as possessing already a corresponding corrective,
well adapted to the body of their law, to which the system of
Chancery was entirely inapplicable.
Although I had before noted, pages 16, 68. that the decree of
this court was a nullity as to the United States, 1. Because
they were not a party, nor amenable to their tribunal; 2. Because
also it was on a subject over which they had no jurisdiction,
I have thought it useful to prove it a nullity; 3dly. Because
the result of a process, and a course of pleading and trial belonging
to a court whose powers they do not possess by law, in
which course of action the law considers them as mere private
persons, is entitled to the obedience of no one. I have done this
the rather because it has been seized as a ground of censure on
the Executive, as violating the sanctuary of the judicial department,
and of inculpating the Marshal, who, placed between two
conflicting authorities, had to decide which was legitimate, and
decided correctly, as I trust appears, in obeying that which ordered
him to remove the plaintiff from an usurped possession.
[Sidenote: Act of territorial Legislature.]
The territorial legislature, three weeks after, took up the subject,
and passed an act prescribing in what manner
riparian proprietors should proceed, who wished to
make new embankments in advance of those existing.
This gave to Mr. Livingston an easy mode of applying
for permission to resume his enterprise; and had he obtained a
regular permission, certainly it would have been duly respected
by the National Executive. On the 1st of March I received
from Governor Claiborne a letter of Jan. 29. informing me of the
execution of our orders, and covering a vote of thanks from the
legislative council and House of Representatives of Orleans, for
our interposition: and on the 7th of the same month, I laid the
case before Congress by the following message.
[Sidenote: Message to Congress.]
[Sidenote: 77*]
'To the Senate and House of Representatives of the United
States. In the city of New-Orleans and adjacent to
it are sundry parcels of ground, some of them with
buildings and other improvements on them, which
it is my duty to present to the attention of the legislature.
The title to *these grounds appears to have
been retained in the former sovereigns of the province
of Louisiana, as public fiduciaries, and for the purposes of the
province. Some of them were used for the residence of the
Governor, for public offices, hospitals, barracks, magazines, fortifications,
levées, &c. others for the town house, schools, markets,
landings, and other purposes of the city of N. Orleans. Some
were held by religious corporations, or persons; others seem to
have been reserved for future disposition.
To these must be added a parcel called the batture, which requires
more particular description. It is understood to have
been a shoal, or elevation of the bottom of the river, adjacent
to the bank of the suburb St. Mary, produced by the successive
depositions of mud during the annual inundations of the river,
and covered with water only during those inundations. At all
other seasons it has been used by the city, immemorially, to furnish
earth for raising their streets, and court yards, for mortar
and other necessary purposes, and as a landing or Quai for unlading
firewood, lumber, and other articles brought by water.
This having lately been claimed by a private individual, the
city opposed the claim on a supposed legal title in itself: but it
has been adjudged that the legal title was not in the city. It is
however alleged that that title, originally in the former sovereigns,
was never parted with by them, but was retained by
them for the uses of the city and province, and consequently has
now passed over to the U. S. Until this question can be decided
under legislative authority, measures have been taken
according to law, to prevent any change in the state of things,
and to keep the grounds clear of intruders. The settlement of
this title, the appropriation of the grounds and improvements
formerly occupied for provincial purposes to the same, or such
other objects as may be better suited to present circumstances;
the confirmation of the uses in other parcels to such bodies corporate,
or private, as may of right, or on other reasonable considerations,
expect them, are matters now submitted to the
determination of the legislature. The paper and plans now
transmitted, will give them such information on the subjects as I
possess, and, being mostly originals, I must request that they
may be communicated from the one to the other house, to answer
the purposes of both. TH: JEFFERSON. _March 7, 1808._'
[Sidenote: Removal of the case before them.]
[Sidenote: 78*]
This removal of the case before Congress closed the official
duties of the Executive, and his interference respecting
these grounds: except that the attorney of the
United States for the district of Orleans having given
written permission to the inhabitants to use the batture as before,
this, on the application of Mr. Livingston, was directed to be
withdrawn by a letter from the Secretary of State, of
Oct. 5. '09. This was correct. It placed the inhabitants
exactly *on their former footing, without either permission
or prohibition on the part of the National government.
The _possession_, the only charge of the Executive, was now
cleared from intrusion, and restored to its former condition: and
the question of title committed to the Legislature, the only
authority competent to its decision. If they considered the
ground taken by the Executive as incorrect, their vote, or their
reference of the case to Commissioners, would correct it: and
as to damages, if any could justly be claimed, they were due, as
in other cases, not from the judge who decides, but the party
which, without right, receives the intermediate profits. If, on
the other hand, Congress should deem the public right too palpable,
(as to me it clearly appears,) and the claim of the plaintiff
too frivolous, to occupy their time, they would of course pass it
by. And certainly they might as properly be urged to waste
their time in questioning whether the beds of the Potomak, the
Delaware, or the Hudson, were public or private property, as
that of the Missisipi. Their refusing to act on this claim therefore
for five successive sessions, though constantly solicited, and
their holding so long the ground taken by the Executive, is an
expression of their sense that the measure has been correct.
[Sidenote: Responsibility of a public functionary.]
[Sidenote: 79*]
[Sidenote: 80*]
I have gone with some detail into the question of the plaintiff's
right, because, however confident of indulgence,
in the case of an honest error, I believed it would be
more satisfactory to show, that in the exercise of the
discretionary power entrusted to me by Congress, a
sound discretion had been used, no act of oppression had been
exercised, no error committed, and consequently no wrong done
to the plaintiff. I have no pretensions to exemption from error.
In a long course of public duties, I must have committed many.
And I have reason to be thankful that, passing over these, an act
of duty has been selected as a subject of complaint, which the
delusions of self interest alone could have classed among them,
and in which, were there error, it has been hallowed by the
benedictions of an entire province, an interesting member of our
national family, threatened with destruction by the bold enterprise
of one individual. If this has been defeated, and they
rescued, good will have been done, and with good intentions.
Our constitution has wisely distributed the administration of the
government into three distinct, and independent departments.
To each of these it belongs to administer law within its separate
jurisdiction. The judiciary in cases of _meum_ and _tuum_, and
of public crimes; the Executive, as to laws executive in their
nature; the legislature in various cases which belong to itself,
and in the important function of amending and adding to the
system. Perfection in wisdom, as well as in integrity, is
neither required, nor expected in these *agents. It belongs
not to man. Were the judge who, deluded by
sophistry, takes the life of an innocent man, to repay it with his
own; were he to replace, with his own fortune, that which his
judgment has taken from another, under the beguilement of false
deductions; were the Executive, in the vast mass of concerns of
first magnitude, which he must direct, to place his whole fortune
on the hazard of every opinion; were the members of the legislature
to make good from their private substance every law productive
of public or private injury; in short were every man
engaged in rendering service to the public, bound in his body
and goods to indemnification for all his errors, we must commit
our public affairs to the paupers of the nation, to the sweepings
of hospitals and poor-houses, who, having nothing to lose, would
have nothing to risk. The wise know their weakness too well
to assume infallibility; and he who knows most, knows best
how little he knows. The vine and the fig-tree must withdraw,
and the briar and bramble assume their places. But this is not
the spirit of our law. It expects not impossibilities. It has consecrated
the principle that its servants are not answerable for
honest error of judgment. 1. Ro. Abr. 92. 2 Jones 13. 1 Salk.
397. He who has done this duty honestly, and according to his
best skill and judgment, stands acquitted before God and man.
If indeed a judge goes against law so grossly, so palpably as no
imputable degree of folly can account for, and nothing but corruption,
malice or wilful wrong can explain, and especially if
circumstances prove such motives, he may be punished for the
corruption, the malice, the wilful wrong; but not for the error:
nor is he liable to action by the party grieved. And our form
of government constituting its respective functionaries judges of
the law which is to guide their decisions, places all within the
same reason, under the safeguard of the same rule. That in deciding
and acting under the law in the present case, the plaintiff,
who may think there was error, does not himself believe there
was corruption or malice, I am confident. What? was it my
malice or corruption which prompted the Governors and Cabildoes
to keep these grounds clear of intrusion? Did my malice
and corruption excite the people to rise, and stay the parricide
hand uplifted to destroy their city, or the grand jury to present
this violator of their laws? Was it my malice and corruption
which penned the opinion of the Attorney General, and drew
from him a confirmation, after two years of further consideration,
and when I was retired from all public office? Was it my
malice or corruption which dictated the unanimous advice of the
heads of departments, when officially called on for consultation
and advice? Was it my malice and corruption which procured
the immediate thanks of the two houses of legislature of the
territory of Orleans, and a renewal of the same thanks
*for the same interference, in their late vote of February
last? Has it been my malice and corruption which has
induced the national legislature, through five successive sessions,
to be deaf to the doleful Jeremiads of the plaintiff on his removal
_from his estate_ at New Orleans? Have all these opinions then
been honest, and mine alone malicious and corrupt? Or has
there been a general combination of all the public functionaries
Spanish, French, and American, to oppress Mr. Livingston? No.
They have done their duties, and his Declaration is a libel on
all these functionaries. His counsel, indeed, has discovered
[Opinions LXXIV] that we should have had legal inquests taken,
writs of enquiry formed, prosecutions for penalties, with all the
_et cæteras_ of the law. That is that we should be playing push-pin
with judges and lawyers, while Livingston was working
double tides to drown the city. If a functionary of the highest
trust, acting under every sanction which the constitution has
provided for his aid and guide, and with the approbation, expressed
or implied, of its highest councils, still acts on his own
peril, the honors and offices of his country would be but snares
to ruin him. It is not for me to enquire into the motives of the
plaintiff in this action. I know that his understanding is of an
order much too high to let him believe that he is to recover the
value of the batture from me. To what indirect object he may
squint with one eye, while the other looks at me, I do not pretend
to say. But I do say, that if human reason is not mere
illusion, and law a labyrinth without a clue, no error has been
committed: and recurring to the tenor of a long life of public
service, against the charge of malice and corruption I stand conscious
and erect.
TH: JEFFERSON.
MONTICELLO, July 31, 1810.
For Mr. Livingston's Answer, see Hall's American Law Journal,
Vol. 5, p. 113, of the Baltimore edition of 1814.
FOOTNOTES:
[82] He says, February, 1804. See address.
[83] Thierry.
[84] Notar. copy, Gravier to Bigarre.
[85] Lafon, in his map of New Orleans, says expressly that the
Missisipi, at the city, is uniformly of the breadth of
300 toises only.--_MS. Note._
[86] Rep. 19.
[87] Monile's affidavit, MS.
[88] These are French measures: add a fifteenth to make them
ours.
[89] The following instances will give some idea of the steps
by which the Roman gained on the Feudal laws. A law of
Burgundy provided that 'Si quis post hoc barbarus vel
testari voluerit, vel donare, aut Romanam consuetudinem,
aut barbaricam, esse servandam, sciat.' 'If any barbarian
subject hereafter shall desire to dispose by legacy or
donation, let him know that either the Roman or barbarian
law is to be observed.' And one of Lotharius II. of Germany,
going still further, gives to every one an election of the
system under which he chose to live. 'Volumus ut cunctus
populus Romanus interrogatur quali lege vult vivere: ut
tali lege, quali professi sunt vivere vivant: illisque
denuntiatur, ut hoc unusquisque, tam judices, quam duces,
vel reliquus populus sciat, quod si offensionem contra
eandem legem fecerint, eidem legi, quâ profitentur vivere,
subjaceant.' 'We will that all the Roman people shall be
asked by what law they wish to live: that they may live
under such law as they profess to live by: and that it be
published, that every one, judges, as well as generals,
or the rest of the people, may know that if they commit
offence against the said law, they shall be subject to the
same law by which they profess to live.' Encyc. Method.
Jurisprudence, Coutume. 399. Presenting the uncommon
spectacle of a jurisdiction attached to persons, instead
of places. Thus favored, the Roman became an acknowledged
supplement to the feudal or customary law: but still, not
under any act of the legislature, but as 'raison écrite,'
written reason: and the cases to which it is applicable,
becoming much the most numerous, it constitutes in fact
the mass of their law.
[90] Since this publication, Gen. Armstrong, our late Minister
at Paris, has sent me a printed copy of Crozat's Charter in
French, which he says he obtained directly, and in person
from the depôt of laws in Paris, but which he had no means
of comparing with the original. This printed copy, with
Gen. Armstrong's letter, I have deposited in the office
of the Secretary of State at Washington. _MS. Note._
[91] The only copy of this Charter I have ever met with is in
Joutel's Journal of La Salle's last voyage. An application
was made by the government of the United States, through
their minister at Paris, to the government of France, for
permission to have the original of this charter sought
for in their Archives, and an authentic copy obtained. The
application was unsuccessful. We must resort, therefore,
to this publication, made in 1714, two years after the
date of the patent, under the rule of law which requires
only the best evidence the nature of the case will admit.
For although we may not appeal to books of history for
documents of a nature merely private, yet we may for those
of a public character, e. g. treaties, &c., and especially
when those documents are not under our control, as when
they are in foreign countries, or even in our own country,
when they are not patent in their nature, nor demandable
of common right.
[92] If it be objected that the incorporation of the Roman law
with the customs of Paris, and their joint transfer to
Louisiana does not appear, I answer, 1. At the date of
Crozat's charter, the Roman law had for many centuries
been amalgamated with the customary law of Paris, made
one body with it, and its principal part. By the customs
of Paris were doubtless meant the laws of Paris, of which
the Roman then made an important part, and might well be
understood to be transferred with them. It was hardly
intended that the new colonists were to unravel this
web, and to take out for their own use only the fibres of
Parisian customs, the least applicable part of the system
to their novel situation. 2. If the term, coutumes de Paris
in the charter be rigorously restrained to its literal
import, yet the judges of Louisiana would have the same
authority for appealing to the Roman as a supplementary
code, which the judges of Paris and of all France had had;
and even greater, as being sanctioned by so general an
example. 3. The practice of considering the Roman law as
a part of the law of the land in Louisiana, is evidence
of a general opinion of those who composed that state,
that it was transferred, and of an opinion much better
informed, and more authoritative than ours can be. Or it
may be considered as an adoption, by universal, though
tacit consent, of those who had a right to adopt, either
formally, or informally, as they pleased, as the laws of
England were originally adopted in most of these states,
and still stand on no other ground.
[93] M. Moreau de Lislet assures us that he was in Paris at
the time of the decision of this appeal from Bordeaux,
that the decision of Bordeaux was reversed by the king
and council, then referred to the Parliament of Paris, and
the reversal confirmed by that body. See his Memoire, 50.
[94] 'Rivage, is most commonly used for the shore of the _sea_,
but correctly also for the shore of a river.
'Chaque fleuve, chaque ruisseau
A partout franchi son rivage.' Regnier.
Dict. de Richelet. Rivage.
'Le Tybre écumeux et bruyant
De sa course fougueuse étonne son rivage.'
St. Evremont.
It is particularly so used in Law. 'Sous le nom de _rivage_ est
compris le chemin qui doit être entretenu le long des côtes
et rivières navigables, pour le hallage des bateaux.' And
again, 'droit de rivage, qui est dû sur les marchandises
qui abordent au rivage de la ville de Paris.' Dict. de
Trévoux, Rivage. 'Sur le rivage de la Seine.' Dict. de
l'Académie.
[95] Little versed in French jurisprudence, possessing few of
the authors teaching it, and, of some of those quoted by
the adverse party, so much only as they have thought to
their advantage to quote, I had apprehended it possible
(pa. 29.) that there might be among those authors, that
conflict of opinions on the law of alluvions, which these
quotations indicate. But I have lately had an opportunity
of reading in MS. a Memoire on the subject of the Batture,
written by M. Moreau de Lislet of New Orleans, a French
lawyer of regular education in the profession, who has
treated the subject, generally with great learning and
abilities, and especially that branch of it which relates
to the laws of France in cases of Alluvion. He has proved
that the doctrines of these great authorities are not
contradictory, and that a proper attention to the different
questions under contemplation in the passages quoted, will
show that all are right, and all in perfect harmony. To
elucidate this he explains certain principles of French
law, which mingling themselves with this subject, have
occasioned the misunderstanding with which we have been
perplexed. 1. The laws of France leave to the king a
right to _navigable_ rivers only, and their increments.
On rivers _not navigable_, the rights of the riparian
proprietor prevail as under the Roman law. See Pothier
ante. pa. 26. Very early however these rights were drawn
into question by the Feudal Superiors, who, looking to
the example of the king in the case of navigable rivers
in his kingdom, claimed similar rights on those _not
navigable_ within their Seignories. But repeated decisions
have condemned their claims, and confirmed the rights
of the riparian tenant. 2. By the laws of France, as by
those of England, lands received by inheritance, descend,
on the death of the tenant, to the heirs of that branch,
paternal or maternal, from which they came to him. But
those he acquires by purchase (acquets) pass to that line
of heirs of which himself is the root. When therefore,
to a maternal inheritance an acquisition happened to
be made by means of Alluvion, a question would arise,
between heirs of different lines, to which of them the
Alluvion would descend; whether to the direct heirs of the
decedent, as being an acquisition first vesting in him, or
to the maternal heir as an accessory to his inheritance.
The decisions were that it united with the inheritance,
became a part of that, and passed with it. 'Incrementum
alluvionis nobis adquiritur, jure quo ager augmentatus
primum ad nos pertinebat; nec istud merementum censetur
novus ager sed pars primi.' 'The increment of Alluvion is
acquired to us in the right in which the field augmented
first belonged to us.' Nor is the increment considered as
a new field, but a part of the first, Renusson. It follows
that questions of Alluvion would often arise in cases
wherein the king's rights were not at all concerned. They
would arise between Lord and vassal, and between individual
heirs of different lines. These explanations premised, M.
Moreau takes a review of the passages quoted from Henrys,
Bourjon, Dumoulin, Ferriere, Pothier, Le Rasle, Renusson,
Dargentré, Denisart, and Guyot, and shews that in every
instance where the question concerned a _navigable_ river,
there was no division of opinions as to the validity of
the king's right; and that in every instance where the
riparian right is asserted, the question has been between
private individuals, or concerning rivers _not navigable_.
Recurring then to the edicts and Ordinances placing this
right of the king beyond cavil, he observes that a practice
had prevailed from early times among riparian proprietors
of usurping on the rights of the crown to the increments
adjacent to them, and a necessary reaction of the crown,
by reclamations and resumptions, to preserve its own. And
he gives a detail of the edicts on this subject, proving
that that of 1693, instead of being the singular act
of a particular prince, whom the adverse party delights
to revile, was one only of a long series preceding and
following it.
1554. An edict was issued requiring the proper officers to
be vigilant in watching over the king's rights in islands,
attérissements, et _alluvions_, comme ils l'ont accoutumés
faire d'ancienneté.' So that it was even then a law and
practice d'ancienneté, and expressly including _alluvions_.
1664. An Ordinance for making enquiries concerning islands,
accroissements, &c.
1668. Apr. An Edict quieting possessions of these objects
of 100 years continuance, on paying a vingtiéme annually.
1669. The Ordinance des eaux et forêts, 'qui accorde au
roi la propriété de toutes _les rivières navigables_, de
leur lit, _rives_, et de tous les terreins qui peuvents
s'y former.' Guyot, ante. pa. 27. 'granting to the king
the property in _all navigable rivers_, their bed, _banks_,
and the grounds forming there.'
1683. Apr. A declaration, reciting that as the rivers
belong to the king 'tout ce qui se trouve renfermé dans
leur lit, comme les isles, accroissemens et attérissements
lui appartient aussi,' confirms _title_ anterior to
1566 without condition, possessions anterior to 1566 on
conditions, and reunites all others to the crown.
1686. Apr.} Two edicts for Languedoc and Bretagne,
1689. Aug.} confirming possessors in the said islands,
'ensemble des crémens qui s'y sont formés, et de ceux
qui pourraient s'y former à l'avenir, soit par _alluvion_,
ou par industrie.'
1693. An edict general for the kingdom 'le droit de
propriété que nous avons _sur tous les fleuves et rivières
navigables_ étant incontestable, &c. Ordonnons que les
détenteurs des isles, islots, attérissemens, aceroissemens,
alluvions, &c. _sur_ les _rivières navigables_, &c. as
more at large, pa. 28.
1710. Feb. An edict confirming possession of islands, &c.
of the sea on specified terms, copied almost verbally from
that of 1693, using the word _alluvions_ as that does,
and referring to the provisions of that edict.
1722. Sep. An Arret resuming isles, attérissemens, &c.
formed since the edict of 1693. And those of anterior
formation where the possessor has not made the payments
provided by the edict of 1693.
But this whole branch of the argument of M. Moreau must
be read with attention. Its matter cannot be abridged,
nor otherwise expressed, but for the worse.
Having thus luminously reconciled the authorities which
had been so illy understood, and victoriously established
the public right to alluvions on _navigable rivers_, M.
Moreau, with too much facility, gives back to his adversary
one half the ground he has conquered, by a gratuitous
admission, which those interested in the event of the
cause are not ready to confirm. Led away, as it seems,
by an expression in the edict of 1683, 'tout ce qui se
trouve renfermé _dans leur lit_ nous appartient,' and
which is to be found in no other, and yielding to a single
decision of the Parliament of Paris of 1765, found in a
law dictionary, which adjudged that the Ordinances giving
to the king the isles which are formed _'dans le lit_,'
des fleuves et rivières navigables, ne lui donnent pas les
attérissements et _alluvions_ qui peuvent se former _hors_
le lit de ces mêmes fleuves,' &c. He admits that though
alluvions _within_ the bed of a river belong to the king,
those _without_ the bed do not belong to him. M. Moreau
is too reasonable to consider as a compliment to himself
the adoption of an opinion on his authority alone, by
any one not convinced by his reasonings. Certainly I do
not feel myself competent to enter the lists with him, on
any question of difficulty in the French law. Yet after
maturely considering the authorities appealed to in this
case, and which he has rendered so strong by reconciling
and forming them into one mass, I cannot yield, as he
does, so imposing a mass to a single decision of the single
Parliament of Paris. I still must consider all alluvions
on _navigable rivers_ as belonging to the nation, and will
briefly assign my reasons.
1. It is of the essence of _Alluvion_ that it be, not in the
bed of the river, but _out_ of it; that is, adjacent to the
bank. So say expressly the Roman and French definitions.
'Alluvio est incrementum _agro_ tuo flumine adjectum.'
l'Alluvion est un accroissement de terrein qui se fait
_sur les bords_ des fleuves, par les terres que l'eau y
apporte, et qui se consolident pour ne faire _qu'un tout
avec la terre voisine_.' Ante. pa. 26. Increments _within_
the bed of a river, though sometimes carelessly spoken of
under the term _alluvion_, are never so in correct language,
never in the well weighed diction of ordinances and
statutes. They are termed accroissements, attérissements,
assablissements, isles, islots, javeaux, in French, and
in our language shoals, shallows, flats, bars, islands.
_Without_ the bed of the river, they add to the beach, or
to the adjacent field, according to their elevation, and
in this last case only, constitute _Alluvion, within_ the
bed of the river they lose that name.
2. 'Les alluvions qui se forment _dans_ le lit des fleuves'
is not the language of the edicts cited by Moreau himself,
not even of that single one on which this opinion is
founded. That has indeed the expression 'dans les lits,' but
applied, not to alluvions, but to isles, accroissements,
attérissements, to which it is applicable with truth
and correctness. These are the kinds of increments it
enumerates, and describes as being 'dans le lit.' If they
are enumerated _exempli gratiâ_ only as the word _comme_ seems
to imply, and alluvions, though not named, were within the
purview, as they are within the reason of the law, then,
if the thing itself is to be understood, as if expressed
in the text, its true description also is to be understood
as if expressed, that is to say, its adjacence to the
bank. The edicts of 1686 and 1689 mention 'les isles des
rivières navigables, ensemble les crémens qui _s'y_ sont
formés.' That of 1693 says, in like manner, 'le droit,
&c., _sur_ tout les fleuves, et les isles et crémens qui
_s'y_ sont formes,' and again, 'isles et alluvions _sur_
les rivières navigables,' not '_dans leurs lits_.' That of
1710 says 'possession des isles et _alluvion sur_ les dites
rivières.' Thus we see that wherever the edicts mention
_alluvions_, they describe them _sur_ le fleuve, not _dans
le lit_ du fleuve. When they speak of those increments
which are _dans le lit_ des fleuves, they name them as
accroissemens, attérissemens, &c., but not as _alluvions_.
3. This distinction is founded on a single decision of
a single parliament, and on the authority of a king's
advocate, Bacquet, and the dictum of Salvaing there cited,
all perhaps influenced by the same and single expression
in the edict of 1683. It is cited too from a Dictionary by
Prost de Royer, where it is doubtless stated in abridgment
only, and possibly with the omission of circumstances,
arguments, and expressions which, were they before us,
would change the aspect of the case, as M. Moreau himself
has shown to be so possible in his review of the mutilated
authorities produced by the adversary. And are we, for
this, to give up the doctrines of Pothier, Denisart,
Ferriere, and the host of other great authorities, and all
the definitions of the Roman and French laws, all of which
when speaking of _alluvions_, place them exclusively on
the borders, and not in the beds of rivers? I cannot do it.
4. This distinction is new in this cause, having never
been claimed by the plaintiff or his counsel, or suggested
by any other who has treated the question. This naturally
begets a suspicion that it is peculiar; though doubtless
the adversary will adopt it with avidity. And is he
entitled to this gratuitous aid? Is it the equity of his
cause, or even its honesty, or its utility, which gives
him this claim on our tenderness? I cannot consent to a
concession which gives the Batture from the public in the
contingency of its being considered as a real alluvion,
consolidated with, and making part of, the adjacent field.
On the contrary I insist on the public right in this case
also, under the laws of France, as hitherto understood,
and as declared by her highest authorities.
5. I adhere to this ground the more firmly, because I
observe, from another part of his Memoire, pa. 99. that
M. Moreau himself seems not very decided in this new
opinion. After stating the mischief of Mr. Livingston's
works, he says, 'it is to prevent a like abuse that the
Roman and Spanish laws of haute police, which I have
cited, are opposed to every species of works undertaken
on the banks of rivers and navigable streams, the effect
of which might be to extend the limits of riparian fields,
compromising the public safety, and injuring the facility
of navigation. It was with this view, and not to create
fiscal resources for himself that Louis XIV. renewed the
Ordinances which ascribed to the sovereign the property in
rivers and navigable streams, and of whatever is contained
in their bed. For if it be advantageous to navigation that
the king should be proprietor of the islands which form
themselves in navigable rivers, the same interest requires
still more that he should be proprietor of the _alluvions_
and increments formed _along the shore itself_, since any
ownership of these objects, except that of the sovereign,
might oppose obstacles to the free landing on the shore,
which every one ought to have, and to the use of it which
the law gives to the public.'
Considering this admission then, as doubted by M. Moreau
himself on a second and sounder view of it, I conclude
that the law is accurately laid down by Pothier [ante. pa.
26.] 'By our French law, 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 documents of the grant made them by
the king, of the right of alluvion along their heritages.
With respect to alluvions formed along the borders of a
river _not navigable_, the property of which belongs to the
proprietors of the neighboring heritage, the dispositions
of the Roman law are to be followed.'
[96] Since this was written, I have seen the case of Smart v.
the magistrates, town council and community of Dundee,
reported in 8 Brown's Reports of Appeals in parl. 119. This
was an appeal from the court of Session in Scotland, to
the H. of Lords. The crown of Scotland had in very ancient
times, granted to the Corporation of Dundee, on the river
Tay, the borough, with all the lands and pertinents, the
privileges, profits, customs, ports, and liberties of
the river on both sides, as freely in all respects as is
possessed by the borough of Edinburgh over that of Leith,
and in a word, as it seems, every right, power and trust
which the crown could grant.--Smart, the proprietor of a
lot bounded on one side per fluxum maris, or the sea flood,
admitting that the sovereign, as trustee for the public,
has a right to prevent all such appropriation of the sea
shore, or the banks of navigable rivers as would impede
navigation, render it dangerous or hurt the interests of
commerce, either inland or foreign, and that all private
persons or corporations, having a grant of a port and
harbor, possess, to a certain extent, the same privileges
as derived from the sovereign within a defined space,
still he insisted on the right of the adjacent proprietor
to ground gained from the sea by its recess, or by his own
industry in embanking, or by any other opus manu factum,
_not prejudicial to navigation or the established rights
of others_. On the other hand the corporation claimed
by their grant, a right to the seashore adjacent to the
town, _in trust for the benefit of the community_, to
make harbors, basons, and works for securing them, market
places, wharves, wood yards, and other repositories for the
accommodation of the trade, and, for these different works,
to take in scites from the water by embankment, in short,
as standing in place of the crown, that they succeeded to
all the cares and powers of the crown, in the territory
and its waters, for the public good; and, for that object,
were now engaged in making an embankment adjacent to the
Appellant's lot, for the benefit of navigation and commerce.
They admit the general doctrine of the riparian right to
the soil which may be acquired from a sea or river, by its
receding naturally, or by industry: but that this does not
apply to the site of a _tenement within a burgh_, where
the corporation is entitled to all the soil not expressly
granted away: that the words, 'per fluxum maris' are but
words of description, which were accurate too at the date
of the grant, but have since become otherwise by a change
of character in the boundary, not in the area granted. They
are a limitation of the subject of the grant in the same way
as a road would be, which, if removed farther off, would
not carry the granted subject with it; or as the tenement
of another would be; and make it an _ager limitatus_, not an
_ager arcifinius_; the particular boundaries being named,
not to limit the coterminous property, but the property
granted. The Appeal was accordingly dismissed by the House
of Lords. No arguments of counsel, other than the written
pleadings, nor reasons of the Lords, are reported: but,
from this case, (crowded as it is with circumstances, many
of which are irrelevant to the merits of the question,
and of those relevant not the words but the condensed
substance is here given,) the book says, that the general
principle to be gathered is that 'where the sea flood is
stated as the boundary of premises granted on the shore of
_a sea-port being an incorporated borough_, this does not
give the grantee a right to follow the sea, or to the land
acquired from it, or left by it where it has receded, in
prejudice of the _corporation_ having, by their charter,
a right vested in them to the whole territory of the
burgh.' And consequently, in prejudice of the _king_, or
_public_, where no such grant has substituted others in
their place: and it authorizes a strong inference that
the English, like the Roman law, restrains the right of
alluvion to the _prædium rusticum__$1_, not admitting it on the
shores bordering the city.
[97] Etymologies often help us to the true meaning of words;
and where they agree in several languages, they shew the
common sense of mankind as to the meaning of the word. In
French _Batture_ is derived from _Battre_, to beat, being
the margin on which the surges beat. In English _Beach_, is
from the Anglo-Saxon verb Beo[~c]ian, Bea[~c]ian, beatian,
to beat: pronounced beachian, as christian, fustian,
question, are pronounced chrischian, fuschian, queschion,
&c.
In Spanish _Playa_, }
Italian _Piaggia_, } are from πλαγὰ, πληγεὶς.
French _Plage_, }
_Platin_ from πλήττειν, percuture. Perhaps from
_Plat_, F. flat.
Greek, αἰγειαλὸς, ἀκτὴ, from ἄγειν, agere.
θὶν, θινὸς, à θείνω, ferio, quia littus fluctibus
feritur. Clav. Homer. A. 34.
Ῥηγμὶν, à ῥήσσω, frango, quia in litore fluctus
frangitur. Ib. v. 437.
[98] Rigor, à rectitudine dieitur, et est cursus aquæ rectum
profluentis tenorem significans. Sic vigor stillicidii
rectus ejus fluxus est. Calvini Lexicon juridicum, _rigor_.
I have therefore translated it 'direction.'
[99] Justum incrementum [Nili] est eubitorum XVI; in XII.
eubitis famem sentit: in XIII etiamnum esurit: XIV eubita
hilaritatem afferunt: XV securitatem: XVI delicias: maximum
incrementum, ad hoc ævi, fuit eubitorum XVIII. eum stetêre
aquæ, apertis molibus admittuntur. Plin. hist. nat. 5. 9.
[100] This part of our subject merits fuller development.
That the periodical overflowings of some rivers do not
differ from the accidental overflowings of others, in
any circumstance which should affect the law of the high
water line, in the one more than in the other, will be
rendered more evident by taking a comparative view of them.
To begin with ordinary rivers. 1. These have along their
greater part, and some of them through their whole course,
natural banks adequate to the confinement of their waters,
in the high water season, except in cases of accidental
inundation. Here, then, the Roman authorities tell us the
inundation does not change the bank, nor the landmark on
it. 2. Along other parts, where the natural bank was not
high enough to contain the river in its season of steady
high water, the hand of man has raised an artificial bank
on the natural one, which effects this purpose, with the
exception, as before, of accidental inundations, where such
happen. This artificial bank performs all the functions
of the natural, and is placed under the same law. 3.
In other parts of them, the natural banks are still not
high enough to contain the high tides, nor have they yet
been made so by the hand of man. Here then the law cannot
operate, because the local peculiarities, as yet, exclude
the case from its provisions. The ground so covered by
inundation, has been, or may yet be, public property. But
the legislator, instead of holding it as the bed of the
river, grants it to individuals as far as to the natural
or incipient bank, that they, by completing the bank, may
reclaim the land, for their own and the public benefit,
and, this done, the law comes into action on it. Much of
this reclaimed, and unreclaimed land exists in all these
states.
I proceed next to rivers of particular character. Of which
among those analogous to the Missisipi, the Nile is best
known to us, and shall be described. That river entering
Upper Egypt at its Cataracts, flows through a valley of
20 or 30 miles wide, and of 450 miles in length, bounded
on both sides by a continued ridge of mountains. Through
most of this course, its natural banks are sufficient to
contain its waters in time of flood, till they rise to that
height, at which, by their law, they are to be drawn off.
In low parts, where the natural banks are not sufficient,
they have been raised by hand to the necessary height. In
addition also to the natural _bayous_, like those of the
Missisipi, they have opened numerous canals, leading off
at right angles from the river towards the mountains, and
sufficient to draw off the greatest part of the current
passing down the river. These, in ordinary times, are
closed by artificial banks raised to the level of the
natural ones. When the flood is at a height sufficient
for irrigating and fertilizing the fields, which by the
Nilometer is at 16 cubits above the bed of the river,
these artificial banks are cut, and the waters let in. The
plain declining gently from the banks of the river, (which,
like those of the Missisipi, are the highest ground,)
towards the mountains, the waters are there stopped, as
by a dam, and continue to rise, and diffuse themselves
till they reflow nearly to the bank of the river. If
the rise ceases there, the waters remain stagnant, and
deposit a fertilizing mud, over the whole surface. But if
uncommon rains above occasion a continuance of the rise
till all the waters meet over the summits of the banks,
then the motion of that in the river is communicated to
the stagnant water on the plains, a general current takes
place, and instead of a depositum left, the former soil
is swept away to the ocean, and famine ensues that year.
This, the traveller Bruce informs us, had happened three
times within the 30 years preceding his being in that
country. When the waters have withdrawn, and the river is
returned into its natural bed, the banks are repaired in
readiness to restrain the floods of the ensuing year. Such
is the case in Upper Egypt. When the river enters Lower
Egypt, it parts into two principal branches, the Pelusian
and Canopic, which diverge and reach the Mediterranean at
about 200 miles apart, including between them the triangle
called the Delta. Besides these, there are, within the
Delta, three natural _Bayous_, and two canals, dry at low
water, which make up the famed seven mouths of the Nile.
The mountains diverge so as do the main branches of the
river, the eastern going off to the isthmus of Suez, and
the Western to the sea near Alexandria. The waters lessened
by depletion, and spreading over a widening plain are
reduced, by the time they reach the base of the triangle
at the sea, to one or two cubits depth. Banks, therefore,
of 3 to 4 feet high, are sufficient to protect the country
until here also they open the _bayous_ and canals which
intersect the triangle. Here then the case recurs of a
river whose natural banks are partly competent to contain
its high waters in common floods, and are partly made so
by the hand of man; so as to furnish an ordinary high
water line. In extraordinary floods it overflows these
banks, and in ordinary ones is let through them. Yet these
inundations as the Digest declares, do not change the
banks. 'Nemo dixit Nilum ripas suas mutare,' &c. But when
the river retires within its natural bed, the banks are
again repaired: 'cum ad perpetuam sui mensuram redierit,
ripæ alvei ejus muniendæ sunt,' ib. [See 2. Herodot. 6-19.
Strabo 788. 1 Univ. Hist. 391-413. 1 Maillet Description
de l'Egypte 14-121. 1 De la Croix 338. Encyclop. Meth.
Geographie. Nil. 1 Savary 3-14. 2 Savary 185-275. 1 Volney
34-18. 4 Bruce 364-407.
[101] Squatters or Intruders on the public or Indian lands were
repeatedly removed by the state of Virginia, before its
cession to Congress, by the old Congress, (see Journ. 15
June 1785,) by the present government at various times,
and, as is believed, by other individual states on the
ground of natural right only. _MS. Note._
INDEX TO VOL. VIII.
ALBINOS--Description of, 318.
AMERICA--Whether animals and man degenerate in, 312.
ARMY--We should not maintain a standing army, 11.
BARBARY STATES--Our relations with, 8, 30, 31, 33, 35, 51, 65, 96,
97.
War with Tripoli, 7, 17.
Peace with, restored, 50.
Case of Hamet Caramalli ex-Bashaw of Tripoli, 54.
Difficulties with Tunis, 61.
BERLIN AND MILAN DECREES--Character of, 100.
BURR, AARON--His conspiracy, 71, 78, 87.
CARRYING TRADE--Condition of, 16.
CENSUS OF 1800, 8.
CHESAPEAKE, THE--Case of, 83, 102, 106, 120.
CLASSICS--Study of, should not be neglected, 389.
DEBT, PUBLIC--Reduction of, 19, 26, 39, 52, 67, 109.
DELUGE--Reasons against a general Deluge, 275.
ENGLAND--Negotiations with, 70.
EMBARGO--Preferable to war--127, 134, 135, 140, 141, 143, 144,
163, 164, 165, 169, 170.
FEVER, YELLOW--Its ravages, 46.
FINANCES--Prosperous condition of, 18, 26.
FOREIGN RELATIONS--40, 47, 62, 85, 102, 106.
FRANKLIN, BENJAMIN--Anecdotes of, 497.
GOVERNMENT--Principles of, as set forth in Jefferson's Inaugural
Address, 1.
Is progressive, 42.
Benefits of Republican, 148.
GUN-BOATS--The use of, recommended, 79.
HENRICK, THE--Case of, 22.
IMPRESSMENT--Our remonstrances against, 58.
IMPROVEMENT, INTERNAL--The Cumberland road, 78, 97.
INDIANS--Their improvement, 7, 51, 118, 185, 191, 210, 214, 219,
226, 229.
Our Indian relations--17, 21, 25, 31, 37, 42, 66, 85, 106, 172,
184, 186.
Acquisitions of Territory from, 25, 52, 93, 94, 108, 190, 192,
199, 206, 219, 237, 239.
Relations with, during revolutionary war, 172, 177.
Our policy towards, 186, 188, 192, 193, 196, 201, 203, 207, 211,
217, 241.
Prohibition of sale of spirituous liquors to, 187, 191, 233.
Commerce with, 196.
Warned against uniting with English in war of 1812, 212, 215,
217, 233, 236.
Virginia Indians, 336.
Burial places of, 341.
Language of, 345.
Origin of, 344.
Catalogue of tribes of, 346.
Logan's speech, 308.
The character of the races of, 304.
The capacity of, 305.
Efforts to preserve peace between, 221, 223, 228, 236.
Removal of, West, 231.
Government of, 435.
Tribes of sea board, 434, 437.
JEFFERSON, THOMAS--Declines being a candidate a third time, 121,
123, 126.
JUDICIARY--Re-organization of, 13.
KOSCIUSKO, GEN.--Biographical sketch of, 480.
LEWIS, MERIWETHER--Biographical sketch of, 480.
LEWIS AND CLARKE--Their expedition, 59, 66.
LOGAN'S SPEECH--Account of, 308.
LOOMING--The phenomenon of, 327.
LOUISIANA--The acquisition of, 23, 29.
Organization of government of, 36.
Reduction of, into possession, 32.
Benefits of acquisition, 41.
MAMMOTH, THE--An account of, 286.
MANUFACTURES--Rise of, during Embargo, 109.
MASSACHUSETTS--Extension of Republican principles in, 116.
MILITIA--Organization of, 49, 108.
NATURALIZATION--Revision of laws of, 14.
NAVY--Necessity of a small navy, 12, 20.
NEGROES--Races of, compared with the whites, 381, 384.
NEUTRALITY--Our true policy, 28.
Violations of our neutral territory, 47, 57.
Right of neutrals to trade with Belligerents, 57.
Berlin and Milan decrees inconsistent with, 100, 103.
Violations of our Neutrality, 103, 128, 129, 130, 132, 149, 151.
OFFICES--Principles on which distributed, 114.
ORLEANS, NEW--Title to the Batture at, 99.
PRESS, THE--The licentiousness of, how far to be tolerated, 43.
RANDOLPH, PEYTON--Biographical sketch of, 477.
RELIGION--Should be free, 113, 137, 138.
RETRENCHMENT--Necessity of, 9.
REVENUE, SURPLUS--How should be disposed of, 68.
SLAVERY--Roman and American slavery compared, 384.
Its effects on manners, 403.
Its evils, 404.
SLAVES--Emancipation of, 380.
Compared with whites, 381.
SLAVE TRADE--Suppression of, 67, 334.
SPAIN--Relations with, 34, 38, 85.
Difficulties with, 48, 60, 62.
TAXATION--Direct taxes should be abolished, 9, 40.
UNITED STATES--Treasonable combinations against, 90, 95.
VIRGINIA--Boundaries of, 249.
VIRGINIA--Rivers of, 250.
Mountains of, 263.
Their height, 265.
Scenery at Harper's Ferry, 264, 429.
Cascades and caverns of, 266.
Natural bridge, 269.
Mines, minerals, trees, and plants, 270.
Mineral Springs of, 279.
Mammoth of, 286.
Whether animals degenerate in America, 290, 297, 300, 431, 432.
Whether man degenerates in America, 303, 313.
The fish of, 319.
Climate of, 320.
Winds of, 323.
Changes in climate, 327.
Population of, 328.
Immigration not desirable, 330.
Militia and regular troops of, 334.
Marine of, 336.
Indians in, 336, 434.
Logan's Speech, 309, 457.
Indian burial places, 341, 440.
Counties, cities, townships, and villages of, 350.
Charters of, 352.
Oppressions of George III, 358.
First constitution of, 359.
Convention of 1776, not authorized to make a constitution, 363.
Proposition to appoint a dictator, 368.
Judicial system of, 372.
The laws of, 374.
Land laws, 378.
Negro slavery in, 380.
Bill proportioning crimes and punishments, 387.
School System of, 386.
Colleges, public establishments, roads &c., 391.
Public buildings of, 394.
Architecture of, 394,
Dwelling houses of, 395.
Property of Tories and English, how far respected during
revolution, 397.
Religious sects of, 398.
Heresy punished, 399.
Free inquiry, 400.
Religious tolerance, 401.
Manners, customs, &c., of Virginians, 403.
Commerce and manufactures of, 404.
Exports and Imports of, 406.
Wheat and tobacco culture compared, 407.
Horses of, 408.
Copy of a constitution for, submitted in 1783, 409.
Weights, coins, and measures of, 409.
Public income and expenses, 410.
Means of defence, 413.
Histories of, 415.
WAR--Preparations for, 86.
Defensive works, 111.
Our only alternative, 151, 152, 153, 154, 155, 156, 157, 158,
159, 160, 161, 162.
WESTERN COUNTRY--Exploration of, 66.
WEST POINT ACADEMY--Its enlargement proposed, 101.
WILLIAM AND MARY COLLEGE--History of, 391.