Volume 8 / Part 3 — PART III. THE BATTURE AT NEW-ORLEANS. (continued 2)

'Alluvio est incrementum [adundatio, adaggeratio] agro tuo flumine adjectum, ita latens et paulatim, ut intelligi non possit quantum quoquo temporis momento adjiciatur.' 'Alluvion is an increment [adundation, ad-aggeration] added by the river to your field, so latent and gradual, that the quantity added in every moment of time cannot be known.'

This is the Roman definition.

In the Law Dictionary of the Encyclop. Method, voce 'Alluvion' by Le Rasle, the definition is:

'Alluvion, un accroissement de terrein qui se fait peu-a-peu sur les bords de la mer, des fleuves, et des rivières, par les terres que l'eau y apporte, et qui se consolident pour ne faire qu'un tout avec la terre voisine.' 'Alluvion, an increment of ground which is made by little and little on the border of the sea, rivers or streams, by earth which the water brings, and which is consolidated so as to make but one whole with the neighboring ground.'

To reduce the essential members of the Roman and French definitions to a single one, according with our own common sense, for certainly we all understand what alluvion is, I should consider the following definition as comprehending the essential characteristics of both.

1. 'Alluvion is an extension which the waters add insensibly. 'Incrementum flumine adjectum latens et paulatim.

2. By apposition of particles of earth. πρόσχωσις, adaggeratio. πρόσκλυσις, adundatio.

3. Against the adjacent field. Agro.

4. And consolidate with it so as to make a part of it. Qui se consolide pour ne faire qu'un tout avec la terre voisine.'

I take this to be rigorously conformable with the French and Roman definitions, as cited from the authorities before mentioned, and that it contains not one word which is not within their unquestionable meaning. Now let us try the batture by this test.

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1. 'Alluvion is an extension which the waters add insensibly.' But the increment of the batture has by no means been insensible. Every swell of six months is said [Derb xix.] to deposit usually nearly a foot of mud on the whole surface of the batture, so that, *when the waters retire, the increment is visible to every eye. And we have seen that, aided by Mr. Livingston's works, a single tide extended the batture from 75 to 80 feet further into the river, and deposited on it from 2 to 7 feet of mud, insomuch that a saw-scaffold, 7 feet high when the waters rose on it, was, on their retiring, buried to its top. This increment is, surely, not insensible. See the Mayor's answer to the Governor, Nov. 18, '08. MS.

2. 'By apposition of particles of earth,' or, by their adhesion. But the addition to the batture is by deposition of particles of earth on its face, not by their apposition or adhesion to the bank. It is not pretended that the bank has extended by apposition of particles to its side, one inch towards the river. It remains now the same as when the levée was erected on it. The deposition of earth on the bottom of a river, can be no more said to be an apposition to its sides, than the coating the floor of a room can be said to be plastering its walls.

3. 'Against the adjacent field,' la terre voisine. Not a particle has been added to the adjacent field. That remains as it was, bounded by the identical line, crepido, or ora terræ, which has ever bounded it.

4. 'And consolidated with the field so as to make part of it.' Un tout avec la terre voisine. Even supposing the continuity of the adjacent field not to be broken by the intervention of the levée and road, nothing is consolidated with it, not even with the margo riparum, or chemin de hallage, if there be any, between the levée and brim of the bank. No extension of its surface has taken place so as to form one with the former surface, so as to be a continuation of that surface, so as to be arable like that. The highest part of the batture, even where it abuts against the bank, is still materially below the level of the adjacent field. A terrass of some feet height still separates the field from the deposition called the batture. It is now as distinguishable from the adjacent field as it ever was, being covered with water periodically 6 months in the year, while that is dry. Alluvion is identified with the farmer's field, because of identity of character, fitness for the same use: but the batture is not fitted for ploughing or sowing. It is clear then that the batture has not a single feature of Alluvion; and divesting it of this misnomer, the whole claim of the plaintiff falls to the ground: for he has not pretended that it could be his under any other title than that of Alluvion.

We will now proceed to shew what it is, which will further demonstrate what it is not.

| Bed, Beach, Bank. 45*| In the channel, or hollow, containing a river, the Roman law has distinguished the alveus, or bed of the river, and the ripa, or bank, the river itself being aqua, water. 'Tribus constant flumina, alveo, aqua, et ripis'. Dig. 43. 12. *not. 1. All above high water mark they considered as ripa, bank, and all below as alveus, or bed. The same terms have the same extent in the language of our law likewise. But we distinguish, by an additional name, that band, or margin of the bed of the river, which lies between the high and the low water marks. We call it the beach. Other modern nations distinguish it also. In Spanish it is playa, Ital. piaggia, in French plage, in the local terms of Orleans it is batture, and sometimes platin.[97] In Latin I know of no terms which applies exactly to the beach of a river. Litus is restrained to the shore of the sea, and there comprehends the beach, going to the water edge, whether at high or low tide. 'Litus est maris, ripa fluminis,' says Vinnius in his Commentary on the Inst. 2. 1. 4. and he confirms this difference of extent towards the water, ibid. where he says,

'Neque verò idem est ripa in flumine, quod litus in mari. Ripa flumini non subjicitur, ut litora subjiciuntur mari, et quotidianis accessibus ab eo occupantur.' 'Nor is the bank of a river, and the shore of the sea, the same thing. The bank is not subjacent to the river as the shores are to the sea, which are occupied by it in its daily accesses.'

In our rivers, as far as the tide flows, the beach is the actual, as well as the nominal bed of the river, during the half of every day. Above the flow of tide, it is covered half the year at a time, instead of half of every day. The tide there being annual only, or one regular tide in a year. This, in the State where I am, begins about the first of November, is at its full tide during the months of January and February, and retires to its minimum by the end of April. In other States from North to South, this progression may vary a little. Hence we call them the Summer and Winter tides, as the Romans did theirs, hibernus et æstivus. The Mississippi resembles our fresh water rivers in having only one regular swell or tide a year. It differs from them in not being subject to occasional swells. The regions it waters are so vast that accidental rains and droughts in one part are countervailed by contrary accidents in other parts, so as never |46*| to become *sensible in the river. It is only when all the countries it occupies become subject to the general influence of summer or winter, that a regular and steady flood or ebb takes place. It differs too in the seasons of its tides, which are about three months later than in our rivers. Its swell begins with February, is at its greatest height in May, June, and July, and the waters retire by the end of August. Its high tide, therefore, is in summer, and the low water in winter. Being regular in its tides, it is regular also in the period of its inundations. Whereas in ours, although the natural banks rarely escape being overflowed at some time of the season, yet the precise time varies with the accident of the fall of rains. But it is not the name of the season but the fact of the rise and fall which determine the law of the case.

Now the batture St. Mary is precisely within this band, or margin, between the high and low water mark of the Missisipi called the beach. It extended from the bank into the river from 122 to 247 yards, before Mr. Livingston began his works, and these have added in one year, from 75 to 80 feet to its breadth. This river abounds with similar beaches, but this one alone, from its position and importance to the city, has called for a legal investigation of its character. Every country furnishes examples of this kind, great or small; but the most extensive are in Northern climates. The beach of the Forth, for example, adjacent to Edinburgh, is a mile wide, and is covered by every tide with 20 feet water. Abundance of examples of more extensive beaches might be produced; many doubtless from New-Hampshire and Maine, where the tide rises 40 feet. This therefore of St. Mary is not extraordinary but for the cupidity which its importance to the city of New-Orleans has inspired.

I shall proceed to state the authorities on which this division between the bank and bed of the river is established, and which makes the margin or beach a part of the bed of the river.

'Ripa est pars extima alvei, quò naturaliter flumen excurrit.' Grotius de Jour. B. et P. 2. 8. 9. 'Ripa ea putatur esse quæ plenissimum flumen continet.' Dig. 43. 12. 3. And Vinnius's commentary on this passage is 'ut significet, partem ripæ non esse, spatium illud, ripæ proximum, quod aliquando flumine, caloribus minuto æstivo tempore non occupatur.' 'The bank is the outermost part of the bed in which the river naturally flows.' 'That is considered to be bank, which contains the river when fullest,' and Vinnius's commentary on this passage is 'this signifies that the space next to the bank, which is sometimes not occupied by the river, when reduced by heats in the summer season, is not a part of the bank.'

'Ripa autem ita rectè definietur, id quod flumen continet naturalem* |47*| rigorem[98] cursus sui tenons. Cæterùm si quando vel imbribus, vel mari, vel quâ alia ratione, ad tempus excrevit, ripas non mutat. Nemo denique dixit Nilum, qui incremento suo Ægyptum operit, ripas suas mutare, vel ampliare. Nam cum ad perpetuam sui mensuram redierit, ripæ alvei ejus muniendæ sunt.' Dig. 43. 12. §. 5. 'The bank may be thus rightly defined, that which contains the river holding the natural direction of its course. But, if at any time, either from rains, the sea, or any other cause, it has overflowed a time, it does not change its banks. Nobody has said that the Nile, which by its increase covers Egypt, changes or enlarges its banks. For when it has returned to its usual height, the banks of its bed are to be secured.'

'Alveus flumine tegitur.' Grot. de jur. B. ac P. 2. 8. 9. 'Alveus est spatium illud flumini subjectum per quod fluit.' Vinnii Partitiones jur. Civil. 1. 17. 'The bed is covered by the river.' 'The bed is the space, subjacent to the river, through which it flows.'

Littus, in the Roman law, being the beach or shore of the sea, 'rivage,' definitions of that will corroborate the division between the ripa and alveus, bed and bank of a river. In both cases what is covered by the highest tide belongs to the public, all above it is private property.

'Litus est quousque maximus fluctus à mari pervenit. Idque Marcum Tullium aiunt, cum arbiter esset. primum constituisse.' Dig. 50. 16. 96. 'Est autem litus maris quatenùs hibernus fluctus maximus excurrit.' Inst. 2. 1. 3. the paraphrase of Theophilus adds, 'undè et æstate, usque ad ea loca litus definimus,' and his Scholiast subjoins 'non ut mediis caloribus solet, sed hibernus; quoniam hieme protissimum mare turbatur, mare est undabundum.' 'The shore is as far as the greatest wave of the sea reaches; and it is said that Marcus Tullius first established that when he was an Arbiter.' 'The shore of the sea is as far as the greatest winter wave reaches.' The paraphrase of Theophilus adds, 'wherefore, in summer also, we bound the shore by the same limits, and his Scholiast subjoins, 'not the wave of midsummer, but of winter; because the sea is most agitated, and most swelled.'

'By shore, the Institutes mean up to the high-water mark, or (where little or no tides, as in the Mediterranean) as high as the highest winter wave washes. 1. Brown's Civil and Admiralty law. B. 2. c. 1.

|48*| We must not, however, with Mr. Livingston, pa. 61. seize on the single word 'hibernus,' in the last quotations, and sacrifice *to that both the fact, and the reason of the law. The substance of the fact on which the law goes, is that there is a margin of the bed of the river, covered at high water, uncovered at low. The season when this happens is a matter of circumstance only, and of immaterial circumstance. In the rivers familiar to the Romans the maximus fluctus, or highest wave, was in the winter; in the Missisipi it is in summer. Circumstance must always yield to substance. The object of the law is to reserve that margin to the public. But to reduce, with Mr. Livingston, the public right to the Summer water-line would relinquish that object. The explanations quoted from Vinnius, from Theophilus and his Scholiast, prove from the reason of the law, that the law of the winter tide for the Po, and the Tyber, must be that of the Summer tide of the Missisipi. The Spanish law therefore, is expressed in more correct terms; and we have the authority of Mr. Livingston [ibidem] for saying that the Justinian code is the common law of Spain.

'La ribera del rio se entiende todo lo que cubre el agua de el, quando mas crece, en qualquiera tiempo del año, sin salir de su yema y madre.' Curia Philipica. 2. 3. 1. cited Derb. 46. 'The bank of a river is understood to be the whole of what contains its waters, when most swelled, in whatsoever time of the year, without leaving its bed or channel.'

This is the law correctly for all rivers, leaving to every one its own season of flood or ebb.

To these authorities from the Roman and Spanish law, I will add that of the French Ordinance of 1681. § 43. Art. 1. on the same subject.

'Sera réputé bord et rivage de la mer, tout ce qu'elle couvre et découvre [precisely the beach or batture] pendant les nouvelles et pleines lunes, et jusqu'où le grand flot de mer cesse de s'y faire sentir. Il est facile de connoître jusqu'où s'étend ordinairement le grand flot de Mars, par le gravier qui y est déposé; ainsi il ne faut pas confondre cette partie avec l'espace où parvient quelque fois l'eau de la mer par les ouragans, et par les tempêtes. Ainsi jugé à Aix le 11. Mai 1742.' Boucher, Institut au droit Maritime 2713. Nouveau Commentaire sur l'Ordonnance de la Marine de 1681. tit. 7. Art. 1. 'The border and shore of the sea shall be reputed to be the whole which it covers and uncovers [precisely the beach or batture] during the new and full moons, and as far as to where the full tide of the sea ceases to be perceived. It is easy to know how far ordinarily the full tide of March extends; by the gravel which is deposited there; therefore we must not confound that part with the space where the waters of the sea come sometimes in hurricanes and storms.' So adjudged at Aix, May 11, 1742.

|49*| Let us now embody those authorities, by bringing together the separate members, making them paraphrase one another, and form a *single description. The Digest 43. 12. 3. with Vinnius's comment will stand thus. 'The bank ends at the line to which the water rises at its full tide; and although the space next below it is sometimes uncovered by the river, when reduced by heats in the Summer season, yet that space is not a part of the bank.' Now, substituting for 'the heats of the summer season' which is circumstance, and immaterial, the term 'low water,' which is the substance of the case, nothing can more perfectly describe the beach or batture, nor collated with the other authorities, make a more consistent and rational provision. 'The bank ends at that line on the levée to which the river rises at its full tide: and altho' the batture or beach next below that line is uncovered by the river, when reduced to its low tide, yet that batture or beach does not therefore become a part of the bank, but remains a part of the bed of the river,' for says Theophilus 'even in low water [et æstate] we bound the bank at the line of high water.' Inst. 2. 1. 3. 'The bank being the extima alvei, the border of the bed, within which bed the river flows when in its fullest state naturally, that is to say, not when 'imbribus, vel quâ aliâ ratione, ad tempus, excrevit,' not when 'temporarily overflowed by extraordinary rains, &c.' Dig. 43. 12. 5. but 'quando mas crece, sin salir de su madre, en qualquiera tiempo del año,' 'when in its full height, without leaving its bed, to whatsoever season of the year the period of full height may belong.' This is unquestionably the meaning of all the authorities taken together, and explaining one another.

From these authorities, then, the conclusion is most rigorously exact, that all is river, or river's bed, which is contained between the two banks, and the high water line on them; and all is bank which embraces the waters in their ordinary full tide.

Agreeably to this has been the constant practice and extent of grants of lands on the Missisipi. Charles Trudeau swears [Liv. 57.] that 'during 28 years that he has performed the functions of Surveyor General of this province, it has always been in his knowledge, that the grants of lands on the borders of the Missisipi, have their fronts on the edge of the river itself, and when its waters are at their greatest height.' And Laveau Trudeau [Liv. 58.] that 'the concession to the Jesuits, he believes, was like all the others, that is, from the river at its greatest height.'

Thus we see what the law is; that it has been perfectly understood in the territory, and has been constantly practiced on, and consequently that neither the grant to the Jesuits, nor to Bertrand Gravier, could have included the beach or batture.

| Missisipi. 50*| It will perhaps be objected that, establishing the commencement of the bank at high water mark, leaves in fact no bank at all, as the high water regularly overflows the natural* bank or brim of the channel. And will it be a new phenomenon to see a river without banks sufficient to contain its waters at their full tide? The Missisipi is certainly a river of a character marked by strong features. It will be very practicable, by exaggerating these, to draw a line of separation between this and the mass of the rivers of our country, to consider it as sui generis, not subject to the laws which govern other rivers, but needing a system of law for itself. And until this system can be prepared it may be abandoned to speculations of death and devastation like the present. But will this be the object of the sound judge or legislator? it is certainly for the good of the whole nation to assimilate as much as possible all its parts, to strengthen their analogies, obliterate the traits of difference, and to deal law and justice to all by the same rule and same measure. The bayous of all that territory and of the country thence to Florida Point are without banks to contain their full tides. The Missisipi is in the like state as far as Bâton Rouge, where competent banks first rise out of the waters, and continue with intervals of depression to its upper parts. Many of the rivers of our maritime states are under circumstances resembling these. The channel which nature has hallowed for them is not yet deep enough, or the depositions of earth on the adjacent grounds not yet sufficiently accumulated, to raise them entirely clear of the flood tides. Extensive bodies of lands, still marshy therefore, are covered by them at every tide. In some of these cases, the hand of man, regulated by laws which restrain obstructions to navigation and injury to others, has aided and expedited the operations of nature, by raising the bank which she had begun, and redeeming the lands from the dominion of the waters. The same thing has been done on the Missisipi. An artificial bank of 3, 4, or 5 feet has been raised on the natural one, has made that sufficient to contain its full waters, and to protect a fertile and extensive country from its ravages. These are become the real banks of the river, on which the laws operate as if the whole was natural. The Nile, | Nile.| like the Missisipi, has natural banks, not competent in every part to the conveyance of its waters. In these parts artificial banks are, in like manner, raised, through which and the natural bayous and artificial canals the inundation, when at a given[99] height, is admitted; this being indispensable to fertilize the lands in a country where it never rains. And these banks of the Nile, natural and artificial, are recognized as such by the Roman |51*|law, as appears in *a passage of the Digest before cited, declaring that its banks, tho' inundated periodically, are not thereby changed. Nor are those of our rivers when temporarily overflowed by rains, or other causes. Wherever therefore the banks of the Missisipi have no high water line, the objection is of no consequence, because the lands there are not as yet reclaimed or inhabited; and wherever they are reclaimed, the objection is not true; for there a high water line exists to separate the private from public right.[100]

1. The Upper Missisipi, like the Upper Nile, has competent natural banks through probably three fourths of its whole course. There then the Roman law is applicable in its very letter. 2. For about 400 miles more, the natural banks have been aided by artificial ones, on both sides, so as to contain all the waters of the flumen plenissimum: and the inhabitants there have no occasion as those of the Nile, to open their banks for the purpose either of fertilizing, or irrigating the lands. Here then there is still less reason, than in the case of the Nile, to say that 'the Missisipi has changed its bank.' 3. On the lower parts of the Missisipi and some of its middle portion, especially on the Western side, artificial banks have not yet been made, and the country is regularly inundated, as it is on those parts of our Atlantic rivers not yet embanked. But our increasing population will continue to extend these banks of our Atlantic rivers; and, for this purpose, our governments grant the lands to individuals. And the same, we know, is done on the Missisipi. The Cypriores adjacent to New-Orleans, for example, though covered with the refluent water from the lake, we know have been granted to individuals, and will, with the rest of the drowned lands, be reclaimed in time, as all lower Egypt has been.

Thus then we find the laws of the Tyber and Nile transferred and applied to the Missisipi with perfect accordance, and that all rivers may be governed by the same laws. Other rivers are subject to accidental floods, which are declared however not to disturb the law of the plenissimum flumen. The Nile and Missisipi, not being subject to accidental floods, the flumen plenissimum with them is steady and undisturbed, and needs not the benefit of the exception. Nor will the reason of the law be changed, whether the cause of the inundation be the saturation of the earth and fountains, or rains, or melted snows, or the reflux of the ocean. The principle remains universally the same, that the land mark, when once established by a competent bank, is not changed by the inundation, or by any cause or circumstance of its high waters.

|52* Property in bed and bank.| *Having ascertained what the batture is not, and what it is, and established the high water mark as the line of partition between the bed and bank of the river, we will proceed to examine to whom belongs ground on either side of that line?

And 1. As to the bed of the river, there can be no question but that it belongs purely and simply to the sovereign, as the representative and trustee of the nation. If a navigable river indeed deserts its bed, the Roman law gave it to the adjacent |53*| proprietors;* the former law of France to the sovereign; and the new Code gives it as an indemnity to those through whose lands the new course is opened. But, while it is occupied by the river, all laws, I believe, agree in giving it to the sovereign; not as his personal property, to become an object of revenue, or of alienation, but to be kept open for the free use of all the individuals of the nation.

'Flumina omnia, et portus, publica sunt.' Inst. 2. 1. 2. 'All rivers and ports are public.'

'Impossibile est ut alveus fluminis publici non sit publicus.' Dig. 43. 12. 7. 'It is impossible that the bed of a public river should not be public.'

'Litus publicum est eatenùs qua maximus fluctus exæstuat.' Dig. 50. 16. 96. 112. 'The seashore is public as far as the greatest wave surges.'

And 'littus' we have seen is the beach or shore of the sea.

'As to navigable streams and rivers, on which boats can ply, the property of them is in the king, as an incontestable right, naturally attached to the sovereignty; and since public things belonged to the people in the Roman republic, amongst us [in France] they must belong to our Sovereigns.' Julien, cited by Thierry 10. And Prevost de la Jannès, in his Principles of French Jurisprudence, after having said that the property of public things belongs to the king adds 'subject to the use thereof that is due to the people.' Thierry, ib.

In like manner, by the Common law of England, the property, tam aquæ quam soli, of every river, having flux or reflux, or susceptible of any navigation, is in the king; who cannot grant it to a subject, because it is a highway, except for purposes which will increase the convenience of navigation. 'The king has a right of property to the sea shore, and the maritima incrementa. The shore is the land lying between high water and low water mark in ordinary tides, and this land belongeth to the king de jure communi, both in the shore of the sea, and shore of the arms of the sea. And that is called an arm of the sea where the tide flows and reflows, and so far only as the tide flows and reflows.' Hale de jure maris. c. 4. cited in Bac. Abr. Prærog. B. 3.

So that I presume no question is to be made but that the bed of the Missisipi belongs to the sovereign, that is, to the Nation.

2. In the bank, from the high water line inland, it is admitted that the property or ownership, is in the Riparian proprietor of the adjacent field or farm: but the use is in the public, for the purposes of navigation and other necessary uses.

'Riparum quoque usus publicus est jure gentium [i. e. gentis humanæ] sicut ipsius fluminis: itaque naves ad eas appellere, funes arboribus ibi natis religare, onus aliquod in his reponere, cuilibet liberum est, sicut per ipsum flumen navigare. Sed proprietas earum, illorum est, quorum prædiis hærent: quâ de causâ arbores quoque in eisdem natæ corundem sunt.' Inst. 2. 1. 4. And Vinnius adds 'non ut litora maris, ita ripas, conditionem fluminis sequi.' 'Publica sunt flumina, portus, alveus fluminis quamdiu à flumine 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 |54*| *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.

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, | Limitations of the rights of property. 55*| 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.

|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.' '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. '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. '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.' '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.' '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. '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 |57*| *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.

|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.' §. 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.' §. 4. 'Dabitur autem satis vicinis; sed et his qui trans flumen possidebunt. '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. §. 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.' §. 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 | Surety. 59*| *interdict establishes that the engagement, or security, against future injury, shall be for ten years, by the opinion of a good man.' §. 4. 'Security shall be given to the neighbors, and also to possessors on the other side of the river.' '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.

|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. |61*| *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.

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 | Levées and Police of Missisipi.| 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 |62*| 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.

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.

| Suspension of Liv.'s works, by whom? 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.

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 | Their nature.| 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 |64*| 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.

| 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?

| Abatement of Nuisance.| 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 |65*| 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.

| 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. '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, |66*| 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.

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 | Roman law. 67*| *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.

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 |68*| 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 | Squatters.|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 | Jurisdiction in whom.|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 | When it results to Courts.|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.

| Act of Congress. 69*| 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 | Remitter. 70*| 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.

| 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.

|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.

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, |72*| 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.

| Orders of the Government.| 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 | Proceedings under them.| 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. |73*| 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.

| Chancery Jurisdiction.| 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 |74*| *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.

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 |75*| 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 |76*| 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.

| 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.