Chapter 19

Not long after the establishment of the city of New-Orleans, and while the religious society of Jesuits retained their standing in France, they obtained from Louis XIV. a grant of lands adjacent to the city, bearing date the 11th|Title of the Jesuits.|of April, 1726. The original of this grant having been destroyed in the fire which consumed a great part of the city in 1794, and no copy of it as yet produced, the extent and character of the grant is known from no authentic document. Its other limits are unimportant, but that next the river and above the city is understood to have been of 20 arpents, or acres, [of 180 French feet, or 64 yards of our measure each,]|Fronting river.|'face au fleuve,'the ambiguity of which expression is preserved by translating it, 'fronting the river.' Whether this authorized them to go to the water line of the river, or only to the road and levee, is a question of some difficulty, and not of importance enough to arrest our present attention. To these they had added 12 arpents more by purchase from individuals. In 1763 the order of Jesuits was suppressed in France, and their property confiscated.|Confiscation.|The 32 arpents, before mentioned, were divided into 6 parcels, described each as'faisant face au fleuve,'and the one next to the city of 7 arpents in breadth, and 50 in depth, was sold to Pradel; but how these 7 arpents,|Gravier's title.|like Falstaff's men in buckram, became 12 in the sale of the widow Pradel to Renard, [Report 7.] 13 in Gravier's inventory, and nearly 17, as is said Derb. viii. ix. in theextent of his fauxbourg, the plaintiff is called on to show, and to deduce titles from the crown, regularly down to himself. In 1788, Gravier, in right of his wife the widow of Renard, laid off the whole extent of his front on the river, whatever it was, into 4 ranges of lots, and|Fauxbourg.|in '96 he added 3 ranges more, establishing them as a Fauxbourg, or Suburb to the city. That this could not be done without permission from the government may be true; and no formal and written permission has been produced. Whether such an one was given and lost in the fire, or was only verbal, is not known.|6*|*But that permission was given must be believed, 1. From Gravier's declaration to Charles Trudeau the surveyor, which must operate as an Estoppel [Report 45.] against all contrary pretensions in those claiming under him. 2. From Carondelet's order to Trudeau, first to deposit a copy of the plan in the public archives, and afterwards an order for a second one to be delivered to himself, which implied necessarily that he had consented to the establishment; but more especially when B. Gravier relying on this establishment as freeing him from the repairs of the bank, the Governor declared 'it was true and that Gravier was right.' 3. From the records of the Cabildo, or town council, with whom the Governor sat in person, showing that at their sessions on the 1st day of January annually, for regulating the police of the city, a Commissary of police for the new quarter was regularly appointed from the year 1796, till the United States took possession. The actual settlement of the ranges next the river, and the addition of the new ranges, now probably rendered that necessary. 4. From the conviction expressed by the Surveyor that, from his knowledge of the laws and customs of the Spanish colonies, no one would have dared to establish a city, bourg, village or fauxbourg without authorization, verbal at least, from the Governor. 5. From the act of the local legislature incorporating the city of New Orleans. [Thierry 32.] That no formal written act of authorization can be produced is not singular, as that is known to be the condition of a great proportion of their titles from thegovernment: and the extraordinary negligence in these titles was what rendered it necessary for Congress to establish, in the several territories of Orleans, Mississippi, Louisiana, Indiana and Michigan, boards of Commissioners, to ascertain and commit them to record. To this we may add that the principle which shall take from the inhabitants of the Suburb St. Mary the validity of their establishment, will annul a great portion of the land rights of those several territories. Finally, whatever act of the government may be considered as amounting to evidence of its ratification of the establishment of the fauxbourg, is retrospective, and will amount to an original authorization under the maxim,'omnis ratihabitio retrotrahitur, et mandato æquiparatur.'|Gravier's sale.|Bertrand Gravier proceeded to sell the lots of his new Fauxbourg, and particularly he sold the whole range next the river. Such deeds for these lots as have been produced, describe them as'haciendo frente al rio,''fronting the river.' And it is affirmed, [Examen 13. Poydras 7. and 18. Thierry 39.] that almost all, if not all the deeds, used the same expression. [See notarial copies of the deeds of B. Gravier to Nicholas Gravier, and of Nicholas Gravier to Escot, Girod,|7*|*Wiltz.] Bertrand Gravier himself, on all occasions, [Pieces Probantes 9. 21. 28. 30. Livingston 59. Monile's deposition, MS.] declared that he had sold his lots'faisant face au fleuve,'and had passed to the purchasers his right to thedevanture, meaning every thing in front of his lots. Whatever extent then towards the river, passed to the Jesuits by the term'face au fleuve,' or from the king to the purchasers of the Jesuit's property, under whom B. Gravier claimed, the same extent was, by the same expression,'face au fleuve,'or'frente al rio,'passed by Bertrand Gravier to the purchasers of the front lots. If the words'face au fleuve,'gave him only to the road and levee, he by the same words gave them no farther; if to the water edge, then he sold to the water edge also, and having parted with all his right as riparian possessor, could transmit none to those claiming under him by subsequent title,as the plaintiff does. In a note added to the end of the printed Report of this case, whether by the reporter or the plaintiff does not appear, it is said that this objection was answered by showing,from the deeds, that each lot had a clear front boundary, by referring to the 'plan which in no instance crossed the road.' And that this brings it within the rule of law which says,'in agris limitatis jus alluvionis locum non habere constat.'Dig. 41. 1. 16. This process of deduction, if not clear, is compendious at least, and better placed in a note, than in the text, where explanation would have been expected. Let us spread it open and examine it. What says the deed to Nicholas Gravier for 58 lots?Yo Don Beltran Gravier vendo a Don Nicholas Gravier cinquenta y ocha terrenos situados en esta dicha ciudad, extramuros de la puerta de Chapitulas, à saver,trece haciendo frente al rio, Missisipi, y lindando por el lado de abaxo, que es de esta dicha ciudad, con terreno de Don R. Jons, y por el de arriba con otros de Don J. B. Sarpy, &c. Y losquarenta y cinco terrenos restantescompleta a los cinquenta y ocho, que quedan indicados, comenzan sobre el limite de la primera calle, formande una linea directa à empezar por el terreno que se halla detras del de Don J. Poydras, todo conforme al plano que, delineado por Don C. L. Trudeau, hé entregado al comprador para su inteligencia*|8*|y resguardo: però con la condicion de que me reservo el derecho de tomar la tierra que necessitaré para mi fabrica de ladrillos, extension de los nominados tres terrenos que hacen frente al dicho rio.I Don Beltran Gravier sell to Don Nicholas Gravier 58 lots situated in this said city without the gate of Chapitulas, to wit,13 fronting the riverMissisipi, and bordering on the lower side, which is that of this said city, with the lot of Don R. Jones, and on the upper side with others of Don J. B. Sarpy, &c. Andthe 45 lots remaining, the complement of the 58 before mentioned, commence above [or beyond] the limit of the first street, forming a right line, beginning at the lot which is behind that of Don J. Poydras, in conformity with the plan which having been delineated by Don C. L. Trudeau, I have delivered to the purchaser for his information and ascertainment: Nevertheless, with the condition that I reserve to myself the right to take the earth which I shall need for my manufacture of bricks on the beach or batture which is in the extension of the said 13 lots which front the river.The first part of this description is of the 13 lots, to wit, that they front the river. The second part relates wholly to the remaining|Streets.|45 lots, which begin beyond or above the first street in a straight line from the lot behind Poydras', and refers to the plan to show their position more particularly as back lots, behind the front range. It is to be noted that the public way in front of the fauxbourg is not a street: it is the samechemin royale, royal road, which has existed from early times, and has never been merged in the character of a street. Nothing can prove more clearly, that this reference to the plan was not to give a front line to the 13 lots, than that the same deed reserves the right of digging earth on the batture beyond that line. Now if nothing was meant to be conveyedbeyondthe front line marked in the plan, why reserve a right to dig earth on the batture, which isbeyondthat line? And that Nicholas Gravier, Escot, Girod and Wiltz did not consider this line as the limit of their rights, appears from their deeds conveying thebattureexpressly by that name, with the lots themselves. On the whole, we see here a curious specimen of tergiversation in reasoning. When urged that the grant to the Jesuits, and to Bertrand Gravier, though expressed to be 'face au fleuve,'must still have stopped at this line or edge of the royal road, it is answered that those terms convey to the water edge, and make it an'ager arcifinius,'to which the right of alluvion appertains. But when Bertrand Gravier conveys to his purchasers 'face au fleuve,'they turn about and say that the same identical words 'face au fleuve,'convey now only to this same line or edge of the royal road, which they overleaped before, and make the grounds conveyed an'ager limitatus,'to which the right of alluvion does not appertain. It is perfectly equal which of the meanings is ascribed to these words. Only give them the same in both instances, and say which. If these words make the road your boundary,you never had a right to the batture beyond it. If they extend to the river what was conveyed toyou, they extend to the river also what was conveyedfrom you. Will it be pretended that, after establishing his town, Bertrand Gravier could then have sold the streets to others? and yet he might, a fortiori, having not included them in any deed. But does not common sense and common honesty|9*|*proclaim that the establishment of his town, and sale of the lots, implied a relinquishment to the inhabitants of the communications of streets and shores adjacent, as a common, which are the necessary and constant appendages of every town? The express conveyance then of his riparian rights, and the implication as to them and the streets, are believed to be conclusive to show that the plaintiff having had no right, can have sustained no wrong.|Beach or Batture.|In 1797, Bertrand Gravier died intestate; and at this epoch we must introduce what constitutes the sole object of the existing contest. Opposite to the habitation or plantation of B. Gravier, now the Fauxbourg Ste. Marie, the beach of the river, called in that country Batture, of ordinary breadth within memory, has sensibly increased, by deposits of earth, during the annual floods of the river, [Derb. xix.] till in the year 1806, it was found to extend in breadth, at low tide, from 122 to 247 yards of our measure, from the water edge into the river: and from about 7 f. height, where it abuts against the bank, declining to the water edge. See Pelletier's plan annexed. Thiery xvii. While uncovered, which is from August to January inclusive, it has served as a Quai for lading and unlading goods, stowing away lumber and firewood, and has furnished all the earth for building the city, and raising its streets and courts, essential in that oozy soil. Derb. ii. While covered, which is during the other six months of the year, from February to July inclusive, [Liv. 58. Poydras 20. 21. 23.] it is the port for all the small craft of the river, and especially for the boats of the upper country, which, in the season of high water, can land or lie no where else in the neighborhood of thecity. During this period, they anchor on its bottom, or moor to its bank. It is then, like every other beach, the bed of the river one half the year, and a Quai the other half, distinguished from those of tide waters, by being subject to an annual, instead of a semidiurnal ebb and flood. In this beach or shoal, with the bank to which it is adjacent, if Bertrand Gravier claimed any right, as riparian proprietor of the habitation, he had certainly meant to convey that right to the purchasers of the front lots, by the term'frente al rio,''fronting the river,' reserving expressly, as we have seen, from one purchaser of 58 lots, a right to take earth, from the beach, for his brickkilns. As he died without children, the inheritance belonged to John Gravier, and other brothers and sisters whom he had left in France, or their representatives, as co-heirs.|Purchase by Inventory.10*|By the civil law, if an heir accepts the inheritance, he is considered, not merely as the representative, but as continuing the person of the ancestor himself, is answerable for all his debts, and out of all his property, as well his own, as* what he had newly acquired by the inheritance. Time, therefore, was allowed him to inform himself of the condition of the estate and debts, during which it was considered as anhæreditas jacens, vested in nobody. If he declined taking the inheritance simply as heir, he was allowed to take it as purchaser, or in their language, as heir with the benefit of inventory: whereupon an inventory and appraisement of it took place, and he had the preëmption at the appraised value. He was then liable to no more debts than the amount of the appraisement; and if there was a surplus of the appraised value over and above the debts it was his, if a single heir, or partitioned among the co-heirs, as parceners, if there were more than one. Brown. civ. law, I. 218. 302. Kaim's law tracts, 389. Gibbon's c. 44. 153. Bertrand Gravier is understood to have left France indebted and insolvent: and John Gravier, therefore, either knowing, or ignorant of the amount of the debts, chose on behalf, or perhaps in defraud, of the co-heirs, to decline the inheritance, and to take the estate as a purchaser by inventoryand appraisement. It was inventoried and appraised. In the inventory is placed a single article of lands, in these words, 'are placed in the inventory the lands of this habitation, whose extent cannot be calculated immediately, on account of his having sold many lots; but Mr. N. Gravier informs us that its bounds go to the forks of the bayou, according to the titles.' And in the appraisement also there is but this same single article of lands, thus described, 'about thirteen arpents of land, of which the habitation is estimated, including the garden, of which the most useful part is taken off in front, the residue consisting of the lowest part, [to wit, that descending back to the bayou,] the side being sold to Navarro, one Percy, and the negro Zambo, a portion of which, &c. estimated at 190 D. the front acre, with all the depth, which makes 2470 D.' Then follows the adjudication, which adjudges to John Gravier 'the effects, real estate, moveables and slaveswhich have been inventoriedas belonging to the estate of his deceased brother Bertrand Gravier, &c. Report 9. 10. We see, then, that no lands were inventoried but the thirteen arpents in front, composing the inhabitation. And it is impossible that that term should be meant to include the beach of the river, cut off from it by the intervention of the whole Fauxbourg of seven ranges of squares; or that they should not have used a more obvious expression, if the idea of the beach had been in their minds. Nobody could consider these two parcels, distant and disjointed as they were, as being one parcel only, one habitation. No man having two farms, or two tracts of land, separated by the lands of others, would expect that by devising or conveying one, the other would|11*|*pass also. In fact, at that time, neither John Gravier nor any one else, considered the beach as any part of Bertrand Gravier's estate: and in the appraisement, they estimate the front arpents, (that is, fronting on the fauxbourg,) with all their depth to the bayou, at 190 dollars, the front arpent; contemplating clearly only what was between the fauxbourg and bayou. Accordingly Fernandez, acting for the Depositor General, the legal officer in those cases, swears thathe took charge and possession of all the estate according to the inventory which had been made from the 28th of June to the 4th of July, 1797; that, in that inventory, the batture never was mentioned, or heard of, as property of Gravier, nor in charge of the Depositor, and that, on delivering the estate to John Gravier, the batture never was spoken of. It is equally certain that had there been an idea that they were smuggling the batture away, through these proceedings, the citizens of New-Orleans would not have been so silent, nor the Governor, the Cabildo and other Spanish authorities so passive, when so active on all former occasions respecting the batture: and that had the batture been under the view of the appraisers, instead of estimating it at 2470 dollars, conjointly with other thirteen arpents, a very different sum must have been named. The batture alone is now estimated at half a million of dollars. But the truth is, that neither John Gravier, nor any one else, at that day, considered it but as public property. And for six years ensuing, he never manifested one symptom of ownership; until Mr.|Livingston's arrival.|Livingston's arrival there from New-York, with the wharves and slips of that place fresh in his recollection. The flesh-pots of Egypt could not suddenly be forgotten, even in this new land of Canaan. Then John Gravier received his inspiration that the beach was his; and is tempted, by one kind of bargain after another, to try his fortune with it. It was only to lend his name, and receive a round sum if anything could be made of it. To get over the palpable omission of it in the inventory and appraisement, they|Parisien.|find a man whose recollection is exactlyà propos; a Henry Parisien, a comedian by profession, and a joiner by trade. He had been one of the appraisers, 10 years before, and recollected, and so swore that he had 'walked on the batture, before the closing of the appraisement to ascertain its extent, and be the better able to judge of its value, and that it was through forgetfulness thatit had not been taken into the estimate.'Piecès Prob.33. It happens that nature bears witness against him. From the 20th of June to the 4th of July is within the period of highwaters; and it is proved that, at the very time of the appraisement, the river was still overflowing, and the batture covered with water:|12*|*the journals of the sawmills further attest that they did not cease to work till the 25th of August of that year; and when the waters of the river are sufficiently low to stop the mills, all the battures are still covered with water. P. Pr. 34. However even this Henry Parisien swears, 'that the batture was not in the estimate, and that it was through forgetfulness that it was not.' Examin 19. Rep. 21. Pi. Prob. 33. No matter through what cause, it is enough that it wasnot in the inventory or estimate, and of course not sold to J. Gravier. This corroborates the testimony of the Depositor, that he neither had it in his charge, nor included it in the estate sold and delivered. J. Gravier must therefore, as to this part of his brother's estate, if his it were, recommence his work, by having a new inventory, appraisement and adjudication. But to repel the present proceeding, it suffices that having made his election to take, not as heir, but purchaser, this beach is not yet his; it is still anhæreditas jacens, and before he can convey it to Mr. Livingston, he must get it by a new process, and make a third bargain.We will proceed further to trace the history of this acquisition of the batture, by the plaintiff, who writes a letter of lamentations to some member of the government, on the 27th of June, 1809. That 'Congress will probably adjourn without coming to any decision on the subject of my removal by the late president of the United States from my estate at New-Orleans.' A most ungrateful complaint; for had he not been removed, he must, at the time of writing this letter, have been, as his estate was, some 10 or 12 feet under water; the river being then at its greatest height. And when was this notable discovery made, that the beach of the river was the separate and exclusive property of J. Gravier, clear of all public right to its use? Let us hear the Governor, in answer to this question. In a letter to the Secretary of State of October 13, 1807, he says, 'early after the arrival of Mr. Livingston in this territory, he became concernedin the purchase of a parcel of ground fronting the fauxbourg of this city, commonly called the batture, a property which had been occupied as a common by the city for many years previous, and the title to which, in the opinion of the inhabitants was unquestionable.' The day[82]of the arrival of Mr. Livingston in New-Orleans I do not know; but I recollect he was one of the earliest emigrants to that country, which was ceded to the United States on the 30th of October, 1803. We are told, [Rep. 11. Thierry 5.] it was proved by some oral testimony that J. Gravierbeganan inclosure of 500 feet square in that year, and completed it in the next. The day *of beginning|13*|is not stated; but we may safely presume it was not while the French Governor thought the country belonged to his master, and most probably not till after 'the early arrival of Mr. Livingston.' This enclosure was demolished by an order of the Cabildo of Feb. 22, 1804.[83]The next step was to make an ostensible deed, to an ostensible purchaser,[84]a Peter de la Bigarre, a brother emigrant of Mr. Livingston's|Bigarre.|from New York, some old acquaintance. This was dated March 27, 1804, is expressed to be in consideration of 10,000 dollars, and conveys two undivided thirds of all that part or parcel of land, situate on the bank [sur la rive] of the river Missisipi, between the public road and the current of the said river, &c. with a warranty. I call the purchases ostensible, because notwithstanding his pretended purchase, J. Gravier, on the 20th of October, 1805, [Rep. 1.] commenced a suit against the city, as proprietor of the whole, and the court adjudged him proprietor of the whole; and because the same J. Gravier, [Poydr. 3.] by a deed to the same P. de la Bigarre, in which no mention was made of the former, or reference to it, conveys to him on the 14th Dec. 1806, the batture Ste. Marie, along the whole limits of this land, between the road and river, on condition that he shall pay all expenses of the suit depending, with 50,000 dollars in addition; that the property shall remain unsoldand hypothecated for the purchase money till paid, and that if the law-suit fails, the sale is void, and Bigarre to pretend to no damages for non-execution. It is observable here that neither buyer or seller risked anything. It was a mere speculation on the chance of a law-suit, in which they were to divide the spoils if successful, and to lose nothing if they failed.[85]It was by our law a criminal purchase of a pretense title, 32. H. 8. 9. and equally criminal by the law of that territory, where I presume the provision of the Roman law is in force,'qui improbè coeunt in alienam litem, ut quidquid ex condemnatione in rem ipsius redactum fuerit, inter eos commnnicaretur, lege Juliâ, de vi privatâ, tenentur.'Dig. 47. 8. 6. 4 Blackst. 135. 'Whosoever shall take part in the suit of another, so that whatever shall be recovered by the judgment is to be divided between them, shall be subject to the Julian law,de vi privata.' By which law, ib. tit. 7. § 1. they were to lose one third of their goods, and be rendered infamous. The deed was not only criminal on its face, but was void by an express law of the territory, [a law of Governor Unzaga. Poydras 6. Rep. 25.] and so pronounced to be on the floor of Congress *by their representative,|14*|because not executed before either witnesses or notaries. It was kept secret from its date, till the day before judgment was pronounced, when the parties becoming apprised of the decision which was to be given, (for this was known at least on the 20th of May,) [Governor Claiborne's letter May 20, '07,] produced it, for the first time, to the Notary to be recorded. And the day after its publication, the court, by the opinion of two members|Decision of Court.Alarm occasioned.|against one, [Examen 3.] adjudged the property wholly to the very man, who, if he had ever had any right, had conveyed away two thirds of it, before he brought his action, and the whole while it was pending. The alarm which this adjudication produced was immediate and great. The fact was notorious that, from the earliest to the latest extensionof the beach, the public had had a free use of it, as their Quai in low water, and in high water their port; and never before had their right been doubted by themselves, or questioned by their riparian possessors. If any fact was ever proved by human testimony, this is. Turn to the Pieces Probantes, and out of 29 affidavits of the oldest and most respectable persons in the territory, men who had, most of them, borne offices under their former government, 21 of them uniformly declare that the public had ever been considered as having a right to the beach, as their port and Quai, that, as such, the Governors and Cabildo had the constant care and control of it, had demolished buildings and enclosures erected on it, had, by public Ban, prohibited all erections or obstructions to its use, had themselves erected a rampart, to inclose within it a chamber accessible for earth at high water for rebuilding the city after the fire, and exercised uninterruptedly every other act of authority derived from the public rights; and 11 of them prove, as far as a negative can be proved, that the Graviers, till the change of government, and new views by Edward Livingston, had never pretended to more than the right of Common in it, and never had questioned that of the public, or the authority of the Governor and Cabildo over it. While they held the adjacent plantation indeed, they maintained the road and bank, as all rural proprietors are obliged by[86]law to do: for here it is proper to observe, that pursuing the spirit of the Roman law, which prescribed that every one should|Servitude of road.|maintain the public road along his own dwelling,'construat vias publicas unusquisque secundum propriam domum.'Dig 43. 10. 3. The lands in Louisiana were granted generally on a condition, (called in those days *servitude,) of furnishing|15*|ground for a public road, and of opening and maintaining that road. From which condition, however, they were released as to any portion of the ground which should afterwards become a town; the expense of roads or streets of that portion devolving then on the town itself. AccordinglyB. Gravier, after establishing the front of his plantation into a suburb, and thus cutting off the residue from the road and river, being[87]called on to repair the road by an order from Governor Carondelet, who seems at the moment not to have adverted to the change, Bertrand Gravier answered, that having sold the lotsfaisant face au fleuve, fronting the river, he had abandoned the batture to the town, and that the road and levee could not be at his expense, the Governor correcting himself at once, says, 'Gravier is right, all this is true,' and immediately, and ever after had the repairs made by the public. And the Graviers from that time stood discharged from these burthens on the same principle which had freed the original owners of the site of the city from maintaining the banks of the city. This is declared by an host of witnesses in thePieces Probantes, and probably could have been declared by every ancient inhabitant of the place. We are told indeed by Laroche and Segur, in their affidavit, [Livingston 66.] of Carondelet, and some other Governor asking leave of Gravier in 1795 and 1798, to deposit masts on the beach. If this be true, which Mr. Thierry, [p. 42.] who knew the witnesses, treats as ridiculous and absurd, it shows that they were forgetful, or inconsistent, or over complaisant; but not that Gravier required, or expected to be asked; and much less could it divest a public right, acknowledged from the earliest times, and essential to the commerce and existence of the city. An accurate discrimination indeed between the measure of right in the riparian proprietor while he held the adjacent farm, in the individuals of the nation as usufructuaries, and in the sovereign as their representative and trustee, as respectively apportioned to them by the law, seems not to have been attended to either by the citizens at large, or the adjacent proprietors. The riparian possessor appears to have been sensible he had some rights, without distinctly understanding what they were: but, whatever they were, he knew he had parted with them by the deeds establishing his fauxbourg. The citizens, in the daily habit of using withoutcontrol the port and Quai, imagined themselves exclusive proprietors of its soil, and came forward in that capacity, claiming, sometimes under some vague title which they did not define, and sometimes under the abandonment of right by Bertrand|16*U. States no party.|Gravier; *the Sovereign, formerly their kings, but now the United States the legal holder of the public rights in the beds, beaches and banks of all navigable waters, seems not to have been thought of at all in the contest. The United States were no party to the suit; nor could they be, having made themselvesamenableto no tribunal. Their property can never be questioned in any court, but in special cases in which, by some particular law, they delegate a special power, as to the boards of Commissioners, and in some small fiscal cases. But a general jurisdiction over the national demenses, being more than half the territory of the United States, has never been by them, and never ought to be, subjected to any tribunal. Not adverting to this circumstance, however, the consternation in New-Orleans, on this decision, was like that of Boston, on the occlusion of their port by the Boston port bill. If we have not forgotten that feeling, we may judge what the citizens of New-Orleans felt on this decree of the court.The governor instantly writes, [letter of May 20, '07.] 'I understand that this morning an important cause has been determined, in which Edward Livingston was therealplaintiff, and the city defendant, as to the right of property to some lands in front of the fauxbourg, made by the river, and over which the city has heretofore exercised a right of ownership. My impression is that the United States are the legal claimants to it.' On the 21st of August, 1807, Mr. Derbigny's opinion was published, [Thierry 5.] and first brought into view the right of the United States, and that the sentence of the court must of course, as to them, be a mere nullity,'res inter alios acta, quæque aliis non potest præjudicium facere.'A thing passing between others, and which to no others can do prejudice. Codex. 7. 60. And coming, with respect to the United States, under the provisions of the same code.Tit. 56. 'Si neque mandasti fratri tuo defensionem rei tuæ, neque quod gestum est ratum habuisti, præscriptio rei judicatæ tibi non oberit: et ideò non prohiberis causam tuam agere, sine præjudicio rerum judicatarum.''If you have not committed to your brother the defence of your right, nor sanctioned what has been done, the plearei judicatashall not bar you: and therefore you shall not be precluded from conducting your own cause, without exception from a former decision.'Certainly the city council did not appear, or pretend to appear, under authorization from the government of the United States, nor as the advocates of their rights. They were called there as defendants of their own claim. The court did not undertake to decide on the right of the United States, which|17*|was *neither before them, nor within their competence; and the injunction they issued could only be addressed to the parties between whom they had adjudged, and not to suspend the rights of others whom they had never heard, much less of the United States, who could not be heard before them. Sec 2 Dallas 408. 3 Dallas 412. 414. 415.|Livingston's Intrusion.|Presuming, however, that the coast was now clear, and the question finally settled, the ostensible actors withdrew, and their principal comes forward, is put into possession by the Sheriff, and begins his works. The Governor, in his letter of Sept. 3, 1807, says, 'a few days since, [Aug. 24.] Mr. Livingston employed a number of negroes to commence digging a canal which he projected to take in a part of the land called the batture. But the citizens assembled in considerable force and drove them off. On the day following he went in person, but was again opposed by the citizens. The minds of the people were much agitated. The opposition is so general that I must resort to measures the most conciliatory, as the only means of avoiding still greater tumult, andperhaps much bloodshed. I have not issued a proclamation because it might make an impression in the United States that the people are disposed for insurrection, which is not true. My opinion is that the title is in the United States. If the batture be reclaimed,it is feared the current of the Missisipi will in some measure change its course, which will not only prove injurious to the navigation, but may occasion degradation in the levees of the city, or those in its vicinity.' To abridge our narration by giving the substance of the communications. The people assembled the next day about the same hour, and for several days successively, by beat of drum. [Livingston's letter of Sept. 15. '07.] On Monday the 31st of August, Mr. Livingston recommenced his work, after having given notice that he should do so. He began about 10 o'clock, A. M. and about 4 or 5 o'clock in the afternoon the people assembled again and drove off his labourers. On the 14th of September he again attempted to work, getting two constables to attend his labourers. The people drove them off, and the constables having noted on a list some of those present, they seized them, took the list and tore it to pieces. [Sheriff's letter.] On the next day he writes to the Governor that he shall set his labourers to work again that day at 12 o'clock, and 'he shall not be surprised to see the people change the insolence of riot into the crime of murder.' At noon he accordingly placed 10 or 12 white labourers there. In the afternoon the people re-assembled to the number of several hundreds. The governor repaired there and spoke to them. He was heard with respectful attention:*and|18*|one of them, speaking for the whole, expressed the serious uneasiness which the decision of the court had excited, the long and undisturbed possession of the batture by the city, as well under the French as the Spanish government, and the great injury which would result to the inhabitants if the land should be built upon and improved. And another declaring that they wished the decision of Congress, and in the mean time, no work to be done on the batture, there was a general exclamation from the crowd, 'that is the general wish,' followed by a request that they might nominate an agent to bear to the President of the United States, a statement of their grievances, and that the Governor would recommend|Appeal to government of the United States.|the agent to the government. He said he would doso, and they nominated Col. Macarty, by general and repeated acclamations. They then withdrew in peace to their respective homes, and on the 16th the Governor expresses the hope that this unpleasant affair is at an end, that everything is then quiet, and the public mind much composed: that some of his hot-headed countrymen censured the mild course which was pursued, and would have been better pleased if themilitaryhad been called upon to disperse the assemblage. But I feel, says he, that the policy adopted was wise and humane, and that a contrary conduct would have increased the discontents, andoccasioned the effusion of much innocent blood. The Louisianians, he adds, are an amiable, virtuous people, but sensibly feel any wrongs which may be offered them. Mr. Livingston is alike feared and hated by most of the ancient inhabitants. They dread his talents as a lawyer, and hate his views of speculation, which in the case of the batture was esteemed very generally by the Louisianians no less iniquitous, than ruinous to the welfare of the city.' The governor says in another letter of October 5, to the Secretary of state, that in a progress he made a few days afterwards through several parishes of the territory, he perceived but one sentiment with respect to the decision of the court. The long and uninterrupted use of the batture by the city, the sanction given by the Spanish authorities to the public claim, and the heavy public expenditures in maintaining the levee which fronts it, seem to have given rise to a very general opinion that the court has been in error in deciding the batture to be private property. On the 13th of November he again writes, 'I should be wanting in duty did I not earnestly recommend the subject of the batture to the attention of the government. There is no doubt but the agents of Spain considered it as a public property, and did appropriate the same to the use of the city, as a common. I should presume that, under the treaty, the United States may justly claim the batture,|19*|and if any *means can be devised to arrest the judgment of the territorial court, or to carry this case before another tribunal, the earlier they are resorted to, the better;for Mr. Edward Livingston is now in possession of the property, andmaking improvements thereon.' And the|Livingston's works.|next day, Nov. 14, a grand jury of the most respectable characters of the place gave in a presentment to the court in which they say, 'We present as a subject of the most serious complaint the present operations on the batture by Edward Livingston and others connected with him: that this is from 4 to 6 months of every year a part of the bed of the river, and an important part of the port of New-Orleans: that these operations of Edward Livingston are calculated to obstruct the free navigation of the river, to change the course of its waters, to deprive our western brethren, whose only market for the produce of their extensive territory, is to be found in this city, of the deposit which has hitherto remained free to them, and not only of incalculable importance, but of absolute necessity. Whether it be private or public property, is immaterial, so long as the laws do not permit such use of it as to injure and obstruct the navigation: and we present it as our opinion that all such measures should be taken as are consistent with law to arrest these operations which are injurious for the present, and, in changing the course of the river, are hazardous in the extreme.' We find Mr. Livingston then, instead of awaiting the decision of Congress, the only constitutional tribunal, resuming his works boldly, and the people, whom he represented as like 'to change the insolence of riot into the crime of murder,' appealing peaceably, by presentment, to the laws of their territory until the National government should decide. In the latter end of the same year, [Surveyor's Rep. to Mayor, Dec. 28, '08.] he opens a canal from the bank directly through the beach into the river[88]276 feet long, 64 feet wide, and 4 feet 2 inches deep at low water, and with the earth excavated he forms a bank or quai, on each side, 19 feet 6 inches wide, from 4 to 6 feet high above the level of the batture, and faced with palisades. Within one year after this, what had been anticipated by the Governor, the grand jury and others, had alreadymanifested itself. In Dec. of the ensuing year, 1808, [See Surveyor's rep. Dec. 28, '08.] a bar had already formed across the mouth of the canal, which was dry at low water, the course of the waters had been changed during the intervening flood, and the places where dry ground first showed itself, on the decrease of the river, were such as had, the year before, been navigable|20*|at low water. [Mayor's *answer to Governor, Nov. 18, '08.] The port in front of the town had been impaired by a new batture begun to be formed opposite the Custom house, which could not fail to increase by the change of the current. The beach or batture of St. Mary had, in that single tide extended from 75 to 80 feet further into the river, and risen from 2 to 5 feet 10 inches generally, and more in places, as a saw scaffold which, at the preceding low tide, was 7 feet high, was now buried to its top; and Tanesse, the Surveyor, [See his affidavit, MS.] in his affidavit says he does not doubt that these works have produced the last year's augmentation of the batture, at the expense of the bed of the river, have occasioned the carrying away a great part of the platin or batture of the lower suburbs, and breaking the levee of M. Blanque next below, and that the main port of the city being a cove, immediately below Livingston's works, would, if they were continued, be filled up in time; and it is the opinion of Piedesclaux also, [See his 3d affidavit, MS.] that they would produce changes in the banks of the river, on both sides, prejudicial to the city, and riparian proprietors, by directing the efforts of the river against parts not heretofore exposed to it. And Mr. Poydras tells us, [p. 20 of one of his speeches,] that when the river is at its height, the boats which drift down it can only land in the eddies below the points, as they would be dashed to pieces in attempting to land in the strong current. That, at the town, they cannot land for want of room, there being always there two or three tier of vessels in close contact; nor at the lower suburbs of Marigny, which being at the lower part of the cove, are too much exposed both to winds and current. Indeed no evidence is necessary to prove that in a riverof only 1200 yards wide, having an annual tide of 12 to 14 feet rise, which brings the water generally to within 8 or 10 inches, and sometimes 2 or 3 inches, of the top of the levee, insomuch that it splashes over with the wind, [See Peltier's, and Tanesse's affidavits, MS. and also the maps,] were the channel narrowed 250 yards, as Mr. Livingston intends, that is to say, a fourth or fifth of its whole breadth, the waters must rise higher in nearly the same proportion, that is to say, 3 feet at least, and would sweep away the whole levee, the city it now protects, and inundate all the lower country.Thus urged by the continued calls of the Governor, who declared he could not be responsible for the peace or preservation of the place, by the tumult and confusion in which the city was held by the bold aggressions of the intruders on the public rights, by the daily progress of works which were to interrupt the commerce of the whole western country, threatened to sweep|21*Cabinet deliberation.|away a *great city and its inhabitants, and lay the adjacent country under water, I listened to the calls of duty, imperious calls, which had I shrunk from, I should have been justly responsible for the calamities which would have followed. On the 28th of October, '07, the Attorney General had given his opinion, and on the 27th of November, I asked the attendance of the heads of the departments, to whom the papers received had been previously communicated for their consideration. We had the benefit of the presence of the Attorney General, and of the lights which it was his office to throw on the subject. We took of the whole case such views as the state of our information at that time presented. I shall now develope them in all the fulness of the facts then known, and of those which have since corroborated them.|What law?|The first question occurring was, what system of law was to be applied to them? On this there could be but one opinion. The laws which had governed Louisiana from its first colonization, that is to say, the laws of France with some local modifications, were still in force when this questionwas generated by the sale of the Jesuits' property to B. Gravier and others. France had indeed, about the end of the preceding year 1762, by a secret convention, ceded Louisiana to Spain, to be delivered whenever Spain should be in readiness to receive it. But this was not announced to the inhabitants till the 21st of April, 1764, nor did Spain receive possession till the 17th of August, 1769. [9 Raynal, 222. 235.] In the mean time the French government and laws continued, the Jesuits' property was sold, and purchased under the faith of the existing laws; and according to these laws must the rights acquired by the purchaser, or left in the crown, be decided. Indeed in no case are the laws of a nation changed, of natural right, by their passage from one to another denomination. The soil, the inhabitants, their property, and the laws by which they are protected go together. Their laws are subject to be changed only in the case, and extent which their new legislature shall will. The changes introduced by Spain, after 1769, were chiefly in the organization of their government, and but little in the principles of their jurisprudence. The instrument which some have understood as suppressing the French and introducing the Spanish|Proclamation of O'Reilly.|code, is the proclamation of O'Reilly of November 25, 1769, two months after the actual delivery of the colony. [See appendix to documents communicated to Congress by the President, with his message of October 17, 1803.] The transfer of the country, however, had been announced to the people five years before. Now surely, during these five years|French code.22*|the *French laws must have continued entire, and of course after them, so far as not altered. And that this proclamation made specific only, and not general alterations, a brief examination of its tenor will evince. It begins by charging the late council with a participation in the insurrection which had taken place, and by declaring it indispensable to abolish that, and to establish theformof politic government and administration of justice prescribed by the wise laws of Spain. But aformof government may surely be changed, and the mass of the laws remain thesame, as took place in our revolution. He proceeds then to establish thatform of government,dependenceandsubordination, which should accord with the good of the service, and happiness of the colony. For this purpose he substitutes a Cabildo, in place of the ancient council, and instead of former analogous officers, he says there shall be Alferes, Alcades, Alguazils, Depositors, Regidors, a Scrivener, Procurator, Mayordomo, &c.; adopting thus the Spanish instead of the French organization of officers, for the administration of the laws. He changes the manner of proceedings in judicial trials, and of pronouncing judgments, according to a digest made by Unestia and Rey, by his order,untila general knowledge of the Spanish language and more extensive information on the statutes themselves might be acquired; prescribes rules for instituting actions by parties, of different denominations, the names and substance of the pleadings, rules for appearances, answers, replications, rejoinders, depositions, witnesses, exceptions, trials, judgments, appeals, executions, testaments, probates, advancements, and distributions: not changing the great outlines of the law, or theratio decidendigenerally; but merely the organization of officers, and forms of their proceeding. He states also the criminal law, what it is in sundry cases of irreligion, treason, murder, theft, rape, adultery, and trespass, proclaiming mostly what was already law; lastly, he establishes the fees of officers, and with that closes the proclamation, without a word said about abolishing the French, and substituting the Spanish code of laws generally. As far then as this instrument makes any special changes, its authority is acknowledged. But the very act of making special changes is a manifestation that a general one was not then intended. He did not mean by this instrument to change 'all and some.' One may indeed conjecture, from loose expressions in the instruments, that a more extensive change was in contemplation for some future time, when the inhabitants, as it says, should have acquired a general knowledge of the Spanish language. Butuntilthen expressly, and in the interim, the innovations it specifies are the only ones introduced. The great system of law which|23*|*regulates property, which prescribes the rights of persons and things, and sanctions to every one the enjoyment of those rights, is left untouched, in full force and authority. If such a radical change were really meditated, it was never carried into execution; nor seems at any after time to have occupied seriously the attention of government. In the following year 1770, O'Reilly issued an additional ordinance respecting grants of lands; and Carondelet, in 1795, (26 years after the possession of the colony, and a year only before its transfer to us,) passed an ordinance of police, concerning bridges, roads, levees, slaves, coasters, travellers, arms, estrays, fishing and hunting; and these three acts seem to constitute the whole of the changes made in the established system of laws during the Spanish occupation of the country. Probably the Spanish authorities found, in the progress of their administration, that the difference between the French and Spanish codes, taken both from the same Roman original, would not justify disturbing the public mind, by a formal suppression of the one, and substitution of the other. Probably the officers themselves, not adepts in either, and partly French, and partly Spanish individuals, confounded them in practice as they found convenient; and hence the ill-defined ideas of what their laws were. But certainly when we appeal, as in the present case, to exact right, the French code is the only one sanctioned by regular authority; and the special changes before mentioned, of organization and police, having no relation to the beds and increments of rivers, that code is to give us the law of the present case. That code, like all those of middle and southern Europe, was originally feudal, [Encyclop. Method. Jurisprudence. Coutume. 400.] with some variations in the different provinces, formerly independent, of which the kingdom of France had been made up. But as circumstances changed, and civilization and commerce advanced, abundance of new cases and questions|Roman.|arose, for which the simple and unwritten laws of feudalism had made no provision. At the same time, they had at hand the legal system of a nation highly civilized, a system carried to a degree of conformity with naturalreason attained by no other. The study of this system too was become the favorite of the age, and, offering ready and reasonable solutions of all the new cases presenting themselves, was recurred to by a common consent and practice; not indeed as laws, formally established by the legislator of the country, but as aRATIO SCRIPTA, the dictate, in all cases, of that sound reason which should constitute the law of every country.[89]Over|24*|both of these systems, however, the occasional* edicts of the monarch are paramount, and amend and control their provisions whenever he deems amendment necessary; on the general principle that'leges posteriores priores abrogant.'[90]Subsequent laws abrogate those which were prior. This composition of the French code is affirmed by all their authorities. One only of them shall be particularly cited, to wit, Ferriere Dict. de droit. Ordonnance.'Les Ordonnances sont les vraies lois du royaume. Elles font la partie la plus générale et la plus certaine de notre droit Français, attendu qu'elles sont soutenues de l'autorité aussi bien que de la raison; au lieu que les loix Romaines ne subsistent que par leur équité, elles n'ont par elles-mêmes aucune autorité, qu'autant qu'elles sont considérées comme une raison écrite, du moins en pays coutumier; et à l'égard du pays de droit écrit, les loix Romaines n'y ont force de loi, que parceque nos rois ont bien voulu y consentir.'The Ordinances are the true laws of the kingdom. They constitute the most general and certain part of our French law, inasmuch as they are supported by authority as well as reason; whereas the Roman laws stand on their equity alone, having of themselves no authority, but as they are considered aswritten reason, at least in the provinces of Customary law. And as to those of written law, the Roman laws are in force only because our kings have thought proper to consent to it.This system of law was transferred to Louisiana, as is evinced by the[91]charter of Louis XIV. to Crozat, bearing date|25*|the *14th of Sept. 1712. The VIIth article of that is in these words. 'Our edicts, ordinances and customs, and the usages of the Mayorality and Shreevalty of Paris, shall be observed for laws and customs in the said country of Louisiana.' The customary law of Paris seems to have been selected, because considered as the best digest, and that to which it was proposed to reduce the customary law of all the provinces. Enc. Meth. Jurispr. Coutume. 405. This is the first charter we know of which established the boundaries and laws of Louisiana. Itsays nothing of the Roman law; but that, having become incorporated, by usage, with the customs of Paris, and constituting, as a supplement, one system with them, seems to have been considered as of their body, and transferred with them to Louisiana.[92]In 1717, Crozat transferred his rights to theCompagnie d'Occident, at the head of which was the famous Law, 8. Raynal. 166. [edit. 1780.] which again in 1720, by union with others, became theCompagnie des Indes, who in 1731, surrendered the colony back to the king. 1. Valin, 20. But these various transfers from company to company, of the monopoly of their commerce, for that was the sum of what was granted them, and their final surrender to the king, could not affect the rights of the people, nor change the laws by which they were governed. When they returned to the immediate government of the king, their laws passed with them, and remained in full force until, and so far only as, subsequently altered by their legislator. That|26*|this was the sense of their *government may be inferred from a clause in the edict creating theCompagnie des Indes Occidentales, art. 34.'Seront les juges établis en tous les dits lieux tenus de juger suivant les lois et ordonnances du royaume, et les officiers de suivre et se conformer à la coutume de la Prevôtéet vicomté de Paris, suivant laquelle les habitans pourront contracter, sans que l'on y puisse introduire aucune autre coutume, pour éviter la diversité.1. Moreau de St. Mery, 100.'The judges established in all the said places shall be held to adjudge according to the laws and ordinances of the kingdom, and the officers to follow and conform themselves to the customs of the Prevôté and vicomté of Paris, according to which the inhabitants may contract, without that any other custom may be introduced, to avoid diversity.' 1. Moreau de St. Mery, 100.|Alluvion.|This then is the system of law by which the legal character of the facts of the case is now to be tested: and the plaintiff and his counsel having imagined that, in the Roman branch of it, they had found a niche in which they could place the batture to great advantage, have availed themselves of it with no little dexterity, and by calling it habitually an alluvion, have given a general currency to the idea that it is really an alluvion: insomuch that even those who deny their inferences, have still suffered themselves carelessly to speak of it under that term. Were we, for a moment to indulge them in this misnomer, and to look at their claim as if really an alluvion one, the false would be found to avail them as little as the true name. The Roman law indeed says,'quod per alluvionem agro tuo flumen adjecit, jure gentium, tibi adquiritur.''What the river adds to your field by alluvion, becomes yours by the law of nations. Institute. L. 1. tit. 1. §. 20. Dig. L. 41. tit. 1. §. 7. The same law, in like manner, gave to the adjacent proprietors, the sand bars, shoals, islands rising in the river, and even the bed of the river itself, as far as it was contracted or deserted. Inst. 2. 1. 22. and 2. 1. 23. But the established laws of France differed in all these cases.'Par notre droit Français, dit Pothier, les alluvions qui se font sur le bord des fleuves, et des rivières navigables, appartiennent au roi. Les propriétaires riverains n'y peuvent rien prétendre, à moins qu'ils n'ayant des titres de la concession que le roi leur aurait faite du droit d'alluvion.'1. Pothier.Traité de la propriété.*1 Part. c. 2. §. 3. art. 2. No. 159.|27*|'By our French law, says Pothier, one of their most respected authorities, the alluvions formed on the borders of navigable streams and rivers belong to the king. The proprietors of riparian heritages can have no claim to them, unless they have evidences of the grant made to them by the king, of the right of alluvion along their heritages.' Pothier, Part 1. c. 2. §. 3. art. 2. No. 159. cited Derbigny, xviii.And Guyot, in theRépertoire Universel de Jurisprudence, a work also of authority and cited with approbation by the plaintiff and his counsel, [Liv. 21. Du Ponceau, 14.] under the word'île,'says,'Nous n'admettons pas comme les Romains, les alluvions, et les accroissemens, au profit des propriétaires riverains, soit par les changemens qui peuvent survenir dans le lit des rivières, soit relativement aux îles, et îlots qui peuvent s'y former. Chez eux le lit, et les bords des fleuves et rivières étaient censés faire partie des héritages riverains; et par une suite de ces maximes, le terrain qu'un fleuve ajoutait à ces héritages, appartenait à ceux qui en étaient propriétaires. Ils réunissaient de même à leurs possessions le lit que le fleuve abandonnait; et lorsqu'il se formait une île dans le milieu de son lit, les riverains y avaient un droit égal, et en partageaient la propriété. Suivant nos principes, les rivières navigables, leur lit, rives, et tous les terrains qui peuvent s'y former, appartiennent au roi, à raison de sa souveraineté. C'est la disposition précise de l'article 41. du tit. 37 de l'Ordonnance des eaux et forêts de 1669, qui a dissipé tous les doutes que l'on cherchait à faire naître dans plusieurs provinces, sur les fondemens des énonciations qui se rencontraient dans les anciennes concessions.'We do not admit, as the Romans, alluvions and accumulations to go to the riparian proprietors, either by changes which may happen in the bed of rivers, or relating to isles, and islets which may there be formed. With them the bed and borders of rivers and streams were considered as making part of the riparian inheritances; and as a consequence of these maxims, the earth which a river added to these inheritances, belonged to those who were the proprietors of them. They reunited in like manner to their possessions the bed which a river abandoned, and when an isle was formed in the middle of its bed, the riparians had an equal right to it, and divided the property. According to our principles, navigable streams, their bed, banks, and all the grounds which may be formed there, belong to the king, in rightof his sovereignty. It is the precise provision of art. 41. tit. 37. of theOrdonnance des eaux et forêts, which has dissipated all the doubts which they had endeavored to raise in several provinces, on the grounds of the enunciations which were found in the ancient concessions.' Cited Derbigny 23.Again, after laying down the Roman law of alluvion, and of islands formed in the beds of rivers, Le Rasle, in the law Dictionary, forming a part of theEncyclopédie Méthodique. Jurisprud. accession. 94, says,'Nous n'avons pas suivi dans notre droit Français les *dispositions Romaines à|28*|cet égard; toutes les isles ou autres attérissemens qui se forment dans les rivières appartiennent au roi, et font partie du domaine. Les terres ajoutées par alluvion aux héritages baignés par le fleuve et les rivières navigables, n'appartiennent aux riverains, que lorsqu'ils out un titre de concession qui leur permet de se les approprier.''We have not in our French law followed the Roman provisions in this respect; all islands or other accumulations which are formed in rivers, belong to the king, and constitute a part of the domain. Lands added by alluvion to inheritances washed by rivers and navigable streams, do not belong to the riparians but when they have a deed of concession which permits them to appropriate them to themselves.'And Ferriere, quoted also by the plaintiff, says,'Pour ce qui regarde l'augmentation arrivée à un héritage subitement et tout d'un coup, la décision que les loix Romaines ont faites à cet égard n'est point observée dans le royaume. Cette augmentation appartient au roi, dans les rivières navigables.'And Denizert agrees,'que les attérissements formés subitement dans le mer, ou dans les fleuves ou rivières navigables, appartiennent au roi, par le seul titre de sa souveraineté.''As to augmentations happening suddenly and all at once, the decision of the Roman laws in this respect, is not observed in the kingdom. These augmentations belong to the king in navigable rivers.' And Denizert agrees, 'thatatterrissementsformed suddenly in the sea, or the navigable rivers or streams, belong to the king in the sole right of his sovereignty.'And he refers to the edicts of 1683. 1693. and 1710.And to put aside all further question as to the law of France on this subject. Louis XIV. by an edict of December 15, 1693, says,'Louis, &c. salut. Le droit de propriété que nous avons sur tous les fleuves et rivières navigables de notre royaume, et conséquemment de toutes les isles, moulins, bacs, &c. attérissemens et accroissemens formés pas les dites fleuves et rivières, étant incontestablement établi par les lois de l'état, comme une suite et une dépendence nécessaire de notre souveraineté, les rois nos prédecesseurs et nous, avons de tems en tems, ordonné des recherches des isles et crémens qui s'y sont formés, &c. A ces causes, de l'avis de notre conseil et de notre certaine science, pleine puissance et autorité royale, nous avons par ces *présentes, signées|29*|de notre main, dit, statué et ordonné, disons, statuons et ordonnons, voulons et nous plait, que tous les détenteurs, propriétaires, ou possesseurs des îles, îlots, attérissemens, accroissemens,alluvions, droits de pêche, péages, ponts, moulins, bacs, coches, bateaux, édifices et droits sur les rivières navigables de notre royaume, qui rapporteront des titres de propriété ou de possession, avant le 1erAvril, 1566, y soient maintenus et conservés dans leurs possessions, en payant au fise une année, et ceux sans titre, ni possession antérieurs au 1erAvril, 1566, en payant deux années de revenu.''Louis, &c., Greeting. The right of property which we have in all rivers and navigable streams of our kingdom, and consequently in all the isles, mills, ferries, &c. accumulations and increments formed by the said rivers and navigable streams, being incontestably established by the laws of the state, as a necessary consequence and dependence of our sovereignty, the kings, our predecessors, and ourselves, have from time to time ordered inquiries as to isles and increments therein formed, &c. For these causes, with the advice of our council, and of our certain knowledge, full power and royal authority, we have by these presents, signed with our hand, declared, enacted and ordained, and we do declare, enact and ordain, we will, and it is our pleasure that all the holders, proprietors, or possessors, of isles, islets, accumulations, increments,alluvions, rights of fishery, tolls, bridges, mills, ferriers, packets, bateaux, edifices and imposts on the navigable rivers of our kingdom which shall produce titles of property or of possession before the 1st of April, 1566, shall be therein maintained and secured in their possessions, on paying to the treasury one year's revenue, and those without title papers, or possession prior to the 1st of April, 1566, on payment of two years' revenue.'

Not long after the establishment of the city of New-Orleans, and while the religious society of Jesuits retained their standing in France, they obtained from Louis XIV. a grant of lands adjacent to the city, bearing date the 11th|Title of the Jesuits.|of April, 1726. The original of this grant having been destroyed in the fire which consumed a great part of the city in 1794, and no copy of it as yet produced, the extent and character of the grant is known from no authentic document. Its other limits are unimportant, but that next the river and above the city is understood to have been of 20 arpents, or acres, [of 180 French feet, or 64 yards of our measure each,]|Fronting river.|'face au fleuve,'the ambiguity of which expression is preserved by translating it, 'fronting the river.' Whether this authorized them to go to the water line of the river, or only to the road and levee, is a question of some difficulty, and not of importance enough to arrest our present attention. To these they had added 12 arpents more by purchase from individuals. In 1763 the order of Jesuits was suppressed in France, and their property confiscated.|Confiscation.|The 32 arpents, before mentioned, were divided into 6 parcels, described each as'faisant face au fleuve,'and the one next to the city of 7 arpents in breadth, and 50 in depth, was sold to Pradel; but how these 7 arpents,|Gravier's title.|like Falstaff's men in buckram, became 12 in the sale of the widow Pradel to Renard, [Report 7.] 13 in Gravier's inventory, and nearly 17, as is said Derb. viii. ix. in theextent of his fauxbourg, the plaintiff is called on to show, and to deduce titles from the crown, regularly down to himself. In 1788, Gravier, in right of his wife the widow of Renard, laid off the whole extent of his front on the river, whatever it was, into 4 ranges of lots, and|Fauxbourg.|in '96 he added 3 ranges more, establishing them as a Fauxbourg, or Suburb to the city. That this could not be done without permission from the government may be true; and no formal and written permission has been produced. Whether such an one was given and lost in the fire, or was only verbal, is not known.|6*|*But that permission was given must be believed, 1. From Gravier's declaration to Charles Trudeau the surveyor, which must operate as an Estoppel [Report 45.] against all contrary pretensions in those claiming under him. 2. From Carondelet's order to Trudeau, first to deposit a copy of the plan in the public archives, and afterwards an order for a second one to be delivered to himself, which implied necessarily that he had consented to the establishment; but more especially when B. Gravier relying on this establishment as freeing him from the repairs of the bank, the Governor declared 'it was true and that Gravier was right.' 3. From the records of the Cabildo, or town council, with whom the Governor sat in person, showing that at their sessions on the 1st day of January annually, for regulating the police of the city, a Commissary of police for the new quarter was regularly appointed from the year 1796, till the United States took possession. The actual settlement of the ranges next the river, and the addition of the new ranges, now probably rendered that necessary. 4. From the conviction expressed by the Surveyor that, from his knowledge of the laws and customs of the Spanish colonies, no one would have dared to establish a city, bourg, village or fauxbourg without authorization, verbal at least, from the Governor. 5. From the act of the local legislature incorporating the city of New Orleans. [Thierry 32.] That no formal written act of authorization can be produced is not singular, as that is known to be the condition of a great proportion of their titles from thegovernment: and the extraordinary negligence in these titles was what rendered it necessary for Congress to establish, in the several territories of Orleans, Mississippi, Louisiana, Indiana and Michigan, boards of Commissioners, to ascertain and commit them to record. To this we may add that the principle which shall take from the inhabitants of the Suburb St. Mary the validity of their establishment, will annul a great portion of the land rights of those several territories. Finally, whatever act of the government may be considered as amounting to evidence of its ratification of the establishment of the fauxbourg, is retrospective, and will amount to an original authorization under the maxim,'omnis ratihabitio retrotrahitur, et mandato æquiparatur.'

|Gravier's sale.|Bertrand Gravier proceeded to sell the lots of his new Fauxbourg, and particularly he sold the whole range next the river. Such deeds for these lots as have been produced, describe them as'haciendo frente al rio,''fronting the river.' And it is affirmed, [Examen 13. Poydras 7. and 18. Thierry 39.] that almost all, if not all the deeds, used the same expression. [See notarial copies of the deeds of B. Gravier to Nicholas Gravier, and of Nicholas Gravier to Escot, Girod,|7*|*Wiltz.] Bertrand Gravier himself, on all occasions, [Pieces Probantes 9. 21. 28. 30. Livingston 59. Monile's deposition, MS.] declared that he had sold his lots'faisant face au fleuve,'and had passed to the purchasers his right to thedevanture, meaning every thing in front of his lots. Whatever extent then towards the river, passed to the Jesuits by the term'face au fleuve,' or from the king to the purchasers of the Jesuit's property, under whom B. Gravier claimed, the same extent was, by the same expression,'face au fleuve,'or'frente al rio,'passed by Bertrand Gravier to the purchasers of the front lots. If the words'face au fleuve,'gave him only to the road and levee, he by the same words gave them no farther; if to the water edge, then he sold to the water edge also, and having parted with all his right as riparian possessor, could transmit none to those claiming under him by subsequent title,as the plaintiff does. In a note added to the end of the printed Report of this case, whether by the reporter or the plaintiff does not appear, it is said that this objection was answered by showing,from the deeds, that each lot had a clear front boundary, by referring to the 'plan which in no instance crossed the road.' And that this brings it within the rule of law which says,'in agris limitatis jus alluvionis locum non habere constat.'Dig. 41. 1. 16. This process of deduction, if not clear, is compendious at least, and better placed in a note, than in the text, where explanation would have been expected. Let us spread it open and examine it. What says the deed to Nicholas Gravier for 58 lots?

The first part of this description is of the 13 lots, to wit, that they front the river. The second part relates wholly to the remaining|Streets.|45 lots, which begin beyond or above the first street in a straight line from the lot behind Poydras', and refers to the plan to show their position more particularly as back lots, behind the front range. It is to be noted that the public way in front of the fauxbourg is not a street: it is the samechemin royale, royal road, which has existed from early times, and has never been merged in the character of a street. Nothing can prove more clearly, that this reference to the plan was not to give a front line to the 13 lots, than that the same deed reserves the right of digging earth on the batture beyond that line. Now if nothing was meant to be conveyedbeyondthe front line marked in the plan, why reserve a right to dig earth on the batture, which isbeyondthat line? And that Nicholas Gravier, Escot, Girod and Wiltz did not consider this line as the limit of their rights, appears from their deeds conveying thebattureexpressly by that name, with the lots themselves. On the whole, we see here a curious specimen of tergiversation in reasoning. When urged that the grant to the Jesuits, and to Bertrand Gravier, though expressed to be 'face au fleuve,'must still have stopped at this line or edge of the royal road, it is answered that those terms convey to the water edge, and make it an'ager arcifinius,'to which the right of alluvion appertains. But when Bertrand Gravier conveys to his purchasers 'face au fleuve,'they turn about and say that the same identical words 'face au fleuve,'convey now only to this same line or edge of the royal road, which they overleaped before, and make the grounds conveyed an'ager limitatus,'to which the right of alluvion does not appertain. It is perfectly equal which of the meanings is ascribed to these words. Only give them the same in both instances, and say which. If these words make the road your boundary,you never had a right to the batture beyond it. If they extend to the river what was conveyed toyou, they extend to the river also what was conveyedfrom you. Will it be pretended that, after establishing his town, Bertrand Gravier could then have sold the streets to others? and yet he might, a fortiori, having not included them in any deed. But does not common sense and common honesty|9*|*proclaim that the establishment of his town, and sale of the lots, implied a relinquishment to the inhabitants of the communications of streets and shores adjacent, as a common, which are the necessary and constant appendages of every town? The express conveyance then of his riparian rights, and the implication as to them and the streets, are believed to be conclusive to show that the plaintiff having had no right, can have sustained no wrong.

|Beach or Batture.|In 1797, Bertrand Gravier died intestate; and at this epoch we must introduce what constitutes the sole object of the existing contest. Opposite to the habitation or plantation of B. Gravier, now the Fauxbourg Ste. Marie, the beach of the river, called in that country Batture, of ordinary breadth within memory, has sensibly increased, by deposits of earth, during the annual floods of the river, [Derb. xix.] till in the year 1806, it was found to extend in breadth, at low tide, from 122 to 247 yards of our measure, from the water edge into the river: and from about 7 f. height, where it abuts against the bank, declining to the water edge. See Pelletier's plan annexed. Thiery xvii. While uncovered, which is from August to January inclusive, it has served as a Quai for lading and unlading goods, stowing away lumber and firewood, and has furnished all the earth for building the city, and raising its streets and courts, essential in that oozy soil. Derb. ii. While covered, which is during the other six months of the year, from February to July inclusive, [Liv. 58. Poydras 20. 21. 23.] it is the port for all the small craft of the river, and especially for the boats of the upper country, which, in the season of high water, can land or lie no where else in the neighborhood of thecity. During this period, they anchor on its bottom, or moor to its bank. It is then, like every other beach, the bed of the river one half the year, and a Quai the other half, distinguished from those of tide waters, by being subject to an annual, instead of a semidiurnal ebb and flood. In this beach or shoal, with the bank to which it is adjacent, if Bertrand Gravier claimed any right, as riparian proprietor of the habitation, he had certainly meant to convey that right to the purchasers of the front lots, by the term'frente al rio,''fronting the river,' reserving expressly, as we have seen, from one purchaser of 58 lots, a right to take earth, from the beach, for his brickkilns. As he died without children, the inheritance belonged to John Gravier, and other brothers and sisters whom he had left in France, or their representatives, as co-heirs.

|Purchase by Inventory.10*|By the civil law, if an heir accepts the inheritance, he is considered, not merely as the representative, but as continuing the person of the ancestor himself, is answerable for all his debts, and out of all his property, as well his own, as* what he had newly acquired by the inheritance. Time, therefore, was allowed him to inform himself of the condition of the estate and debts, during which it was considered as anhæreditas jacens, vested in nobody. If he declined taking the inheritance simply as heir, he was allowed to take it as purchaser, or in their language, as heir with the benefit of inventory: whereupon an inventory and appraisement of it took place, and he had the preëmption at the appraised value. He was then liable to no more debts than the amount of the appraisement; and if there was a surplus of the appraised value over and above the debts it was his, if a single heir, or partitioned among the co-heirs, as parceners, if there were more than one. Brown. civ. law, I. 218. 302. Kaim's law tracts, 389. Gibbon's c. 44. 153. Bertrand Gravier is understood to have left France indebted and insolvent: and John Gravier, therefore, either knowing, or ignorant of the amount of the debts, chose on behalf, or perhaps in defraud, of the co-heirs, to decline the inheritance, and to take the estate as a purchaser by inventoryand appraisement. It was inventoried and appraised. In the inventory is placed a single article of lands, in these words, 'are placed in the inventory the lands of this habitation, whose extent cannot be calculated immediately, on account of his having sold many lots; but Mr. N. Gravier informs us that its bounds go to the forks of the bayou, according to the titles.' And in the appraisement also there is but this same single article of lands, thus described, 'about thirteen arpents of land, of which the habitation is estimated, including the garden, of which the most useful part is taken off in front, the residue consisting of the lowest part, [to wit, that descending back to the bayou,] the side being sold to Navarro, one Percy, and the negro Zambo, a portion of which, &c. estimated at 190 D. the front acre, with all the depth, which makes 2470 D.' Then follows the adjudication, which adjudges to John Gravier 'the effects, real estate, moveables and slaveswhich have been inventoriedas belonging to the estate of his deceased brother Bertrand Gravier, &c. Report 9. 10. We see, then, that no lands were inventoried but the thirteen arpents in front, composing the inhabitation. And it is impossible that that term should be meant to include the beach of the river, cut off from it by the intervention of the whole Fauxbourg of seven ranges of squares; or that they should not have used a more obvious expression, if the idea of the beach had been in their minds. Nobody could consider these two parcels, distant and disjointed as they were, as being one parcel only, one habitation. No man having two farms, or two tracts of land, separated by the lands of others, would expect that by devising or conveying one, the other would|11*|*pass also. In fact, at that time, neither John Gravier nor any one else, considered the beach as any part of Bertrand Gravier's estate: and in the appraisement, they estimate the front arpents, (that is, fronting on the fauxbourg,) with all their depth to the bayou, at 190 dollars, the front arpent; contemplating clearly only what was between the fauxbourg and bayou. Accordingly Fernandez, acting for the Depositor General, the legal officer in those cases, swears thathe took charge and possession of all the estate according to the inventory which had been made from the 28th of June to the 4th of July, 1797; that, in that inventory, the batture never was mentioned, or heard of, as property of Gravier, nor in charge of the Depositor, and that, on delivering the estate to John Gravier, the batture never was spoken of. It is equally certain that had there been an idea that they were smuggling the batture away, through these proceedings, the citizens of New-Orleans would not have been so silent, nor the Governor, the Cabildo and other Spanish authorities so passive, when so active on all former occasions respecting the batture: and that had the batture been under the view of the appraisers, instead of estimating it at 2470 dollars, conjointly with other thirteen arpents, a very different sum must have been named. The batture alone is now estimated at half a million of dollars. But the truth is, that neither John Gravier, nor any one else, at that day, considered it but as public property. And for six years ensuing, he never manifested one symptom of ownership; until Mr.|Livingston's arrival.|Livingston's arrival there from New-York, with the wharves and slips of that place fresh in his recollection. The flesh-pots of Egypt could not suddenly be forgotten, even in this new land of Canaan. Then John Gravier received his inspiration that the beach was his; and is tempted, by one kind of bargain after another, to try his fortune with it. It was only to lend his name, and receive a round sum if anything could be made of it. To get over the palpable omission of it in the inventory and appraisement, they|Parisien.|find a man whose recollection is exactlyà propos; a Henry Parisien, a comedian by profession, and a joiner by trade. He had been one of the appraisers, 10 years before, and recollected, and so swore that he had 'walked on the batture, before the closing of the appraisement to ascertain its extent, and be the better able to judge of its value, and that it was through forgetfulness thatit had not been taken into the estimate.'Piecès Prob.33. It happens that nature bears witness against him. From the 20th of June to the 4th of July is within the period of highwaters; and it is proved that, at the very time of the appraisement, the river was still overflowing, and the batture covered with water:|12*|*the journals of the sawmills further attest that they did not cease to work till the 25th of August of that year; and when the waters of the river are sufficiently low to stop the mills, all the battures are still covered with water. P. Pr. 34. However even this Henry Parisien swears, 'that the batture was not in the estimate, and that it was through forgetfulness that it was not.' Examin 19. Rep. 21. Pi. Prob. 33. No matter through what cause, it is enough that it wasnot in the inventory or estimate, and of course not sold to J. Gravier. This corroborates the testimony of the Depositor, that he neither had it in his charge, nor included it in the estate sold and delivered. J. Gravier must therefore, as to this part of his brother's estate, if his it were, recommence his work, by having a new inventory, appraisement and adjudication. But to repel the present proceeding, it suffices that having made his election to take, not as heir, but purchaser, this beach is not yet his; it is still anhæreditas jacens, and before he can convey it to Mr. Livingston, he must get it by a new process, and make a third bargain.

We will proceed further to trace the history of this acquisition of the batture, by the plaintiff, who writes a letter of lamentations to some member of the government, on the 27th of June, 1809. That 'Congress will probably adjourn without coming to any decision on the subject of my removal by the late president of the United States from my estate at New-Orleans.' A most ungrateful complaint; for had he not been removed, he must, at the time of writing this letter, have been, as his estate was, some 10 or 12 feet under water; the river being then at its greatest height. And when was this notable discovery made, that the beach of the river was the separate and exclusive property of J. Gravier, clear of all public right to its use? Let us hear the Governor, in answer to this question. In a letter to the Secretary of State of October 13, 1807, he says, 'early after the arrival of Mr. Livingston in this territory, he became concernedin the purchase of a parcel of ground fronting the fauxbourg of this city, commonly called the batture, a property which had been occupied as a common by the city for many years previous, and the title to which, in the opinion of the inhabitants was unquestionable.' The day[82]of the arrival of Mr. Livingston in New-Orleans I do not know; but I recollect he was one of the earliest emigrants to that country, which was ceded to the United States on the 30th of October, 1803. We are told, [Rep. 11. Thierry 5.] it was proved by some oral testimony that J. Gravierbeganan inclosure of 500 feet square in that year, and completed it in the next. The day *of beginning|13*|is not stated; but we may safely presume it was not while the French Governor thought the country belonged to his master, and most probably not till after 'the early arrival of Mr. Livingston.' This enclosure was demolished by an order of the Cabildo of Feb. 22, 1804.[83]The next step was to make an ostensible deed, to an ostensible purchaser,[84]a Peter de la Bigarre, a brother emigrant of Mr. Livingston's|Bigarre.|from New York, some old acquaintance. This was dated March 27, 1804, is expressed to be in consideration of 10,000 dollars, and conveys two undivided thirds of all that part or parcel of land, situate on the bank [sur la rive] of the river Missisipi, between the public road and the current of the said river, &c. with a warranty. I call the purchases ostensible, because notwithstanding his pretended purchase, J. Gravier, on the 20th of October, 1805, [Rep. 1.] commenced a suit against the city, as proprietor of the whole, and the court adjudged him proprietor of the whole; and because the same J. Gravier, [Poydr. 3.] by a deed to the same P. de la Bigarre, in which no mention was made of the former, or reference to it, conveys to him on the 14th Dec. 1806, the batture Ste. Marie, along the whole limits of this land, between the road and river, on condition that he shall pay all expenses of the suit depending, with 50,000 dollars in addition; that the property shall remain unsoldand hypothecated for the purchase money till paid, and that if the law-suit fails, the sale is void, and Bigarre to pretend to no damages for non-execution. It is observable here that neither buyer or seller risked anything. It was a mere speculation on the chance of a law-suit, in which they were to divide the spoils if successful, and to lose nothing if they failed.[85]It was by our law a criminal purchase of a pretense title, 32. H. 8. 9. and equally criminal by the law of that territory, where I presume the provision of the Roman law is in force,'qui improbè coeunt in alienam litem, ut quidquid ex condemnatione in rem ipsius redactum fuerit, inter eos commnnicaretur, lege Juliâ, de vi privatâ, tenentur.'Dig. 47. 8. 6. 4 Blackst. 135. 'Whosoever shall take part in the suit of another, so that whatever shall be recovered by the judgment is to be divided between them, shall be subject to the Julian law,de vi privata.' By which law, ib. tit. 7. § 1. they were to lose one third of their goods, and be rendered infamous. The deed was not only criminal on its face, but was void by an express law of the territory, [a law of Governor Unzaga. Poydras 6. Rep. 25.] and so pronounced to be on the floor of Congress *by their representative,|14*|because not executed before either witnesses or notaries. It was kept secret from its date, till the day before judgment was pronounced, when the parties becoming apprised of the decision which was to be given, (for this was known at least on the 20th of May,) [Governor Claiborne's letter May 20, '07,] produced it, for the first time, to the Notary to be recorded. And the day after its publication, the court, by the opinion of two members|Decision of Court.Alarm occasioned.|against one, [Examen 3.] adjudged the property wholly to the very man, who, if he had ever had any right, had conveyed away two thirds of it, before he brought his action, and the whole while it was pending. The alarm which this adjudication produced was immediate and great. The fact was notorious that, from the earliest to the latest extensionof the beach, the public had had a free use of it, as their Quai in low water, and in high water their port; and never before had their right been doubted by themselves, or questioned by their riparian possessors. If any fact was ever proved by human testimony, this is. Turn to the Pieces Probantes, and out of 29 affidavits of the oldest and most respectable persons in the territory, men who had, most of them, borne offices under their former government, 21 of them uniformly declare that the public had ever been considered as having a right to the beach, as their port and Quai, that, as such, the Governors and Cabildo had the constant care and control of it, had demolished buildings and enclosures erected on it, had, by public Ban, prohibited all erections or obstructions to its use, had themselves erected a rampart, to inclose within it a chamber accessible for earth at high water for rebuilding the city after the fire, and exercised uninterruptedly every other act of authority derived from the public rights; and 11 of them prove, as far as a negative can be proved, that the Graviers, till the change of government, and new views by Edward Livingston, had never pretended to more than the right of Common in it, and never had questioned that of the public, or the authority of the Governor and Cabildo over it. While they held the adjacent plantation indeed, they maintained the road and bank, as all rural proprietors are obliged by[86]law to do: for here it is proper to observe, that pursuing the spirit of the Roman law, which prescribed that every one should|Servitude of road.|maintain the public road along his own dwelling,'construat vias publicas unusquisque secundum propriam domum.'Dig 43. 10. 3. The lands in Louisiana were granted generally on a condition, (called in those days *servitude,) of furnishing|15*|ground for a public road, and of opening and maintaining that road. From which condition, however, they were released as to any portion of the ground which should afterwards become a town; the expense of roads or streets of that portion devolving then on the town itself. AccordinglyB. Gravier, after establishing the front of his plantation into a suburb, and thus cutting off the residue from the road and river, being[87]called on to repair the road by an order from Governor Carondelet, who seems at the moment not to have adverted to the change, Bertrand Gravier answered, that having sold the lotsfaisant face au fleuve, fronting the river, he had abandoned the batture to the town, and that the road and levee could not be at his expense, the Governor correcting himself at once, says, 'Gravier is right, all this is true,' and immediately, and ever after had the repairs made by the public. And the Graviers from that time stood discharged from these burthens on the same principle which had freed the original owners of the site of the city from maintaining the banks of the city. This is declared by an host of witnesses in thePieces Probantes, and probably could have been declared by every ancient inhabitant of the place. We are told indeed by Laroche and Segur, in their affidavit, [Livingston 66.] of Carondelet, and some other Governor asking leave of Gravier in 1795 and 1798, to deposit masts on the beach. If this be true, which Mr. Thierry, [p. 42.] who knew the witnesses, treats as ridiculous and absurd, it shows that they were forgetful, or inconsistent, or over complaisant; but not that Gravier required, or expected to be asked; and much less could it divest a public right, acknowledged from the earliest times, and essential to the commerce and existence of the city. An accurate discrimination indeed between the measure of right in the riparian proprietor while he held the adjacent farm, in the individuals of the nation as usufructuaries, and in the sovereign as their representative and trustee, as respectively apportioned to them by the law, seems not to have been attended to either by the citizens at large, or the adjacent proprietors. The riparian possessor appears to have been sensible he had some rights, without distinctly understanding what they were: but, whatever they were, he knew he had parted with them by the deeds establishing his fauxbourg. The citizens, in the daily habit of using withoutcontrol the port and Quai, imagined themselves exclusive proprietors of its soil, and came forward in that capacity, claiming, sometimes under some vague title which they did not define, and sometimes under the abandonment of right by Bertrand|16*U. States no party.|Gravier; *the Sovereign, formerly their kings, but now the United States the legal holder of the public rights in the beds, beaches and banks of all navigable waters, seems not to have been thought of at all in the contest. The United States were no party to the suit; nor could they be, having made themselvesamenableto no tribunal. Their property can never be questioned in any court, but in special cases in which, by some particular law, they delegate a special power, as to the boards of Commissioners, and in some small fiscal cases. But a general jurisdiction over the national demenses, being more than half the territory of the United States, has never been by them, and never ought to be, subjected to any tribunal. Not adverting to this circumstance, however, the consternation in New-Orleans, on this decision, was like that of Boston, on the occlusion of their port by the Boston port bill. If we have not forgotten that feeling, we may judge what the citizens of New-Orleans felt on this decree of the court.

The governor instantly writes, [letter of May 20, '07.] 'I understand that this morning an important cause has been determined, in which Edward Livingston was therealplaintiff, and the city defendant, as to the right of property to some lands in front of the fauxbourg, made by the river, and over which the city has heretofore exercised a right of ownership. My impression is that the United States are the legal claimants to it.' On the 21st of August, 1807, Mr. Derbigny's opinion was published, [Thierry 5.] and first brought into view the right of the United States, and that the sentence of the court must of course, as to them, be a mere nullity,'res inter alios acta, quæque aliis non potest præjudicium facere.'A thing passing between others, and which to no others can do prejudice. Codex. 7. 60. And coming, with respect to the United States, under the provisions of the same code.

Certainly the city council did not appear, or pretend to appear, under authorization from the government of the United States, nor as the advocates of their rights. They were called there as defendants of their own claim. The court did not undertake to decide on the right of the United States, which|17*|was *neither before them, nor within their competence; and the injunction they issued could only be addressed to the parties between whom they had adjudged, and not to suspend the rights of others whom they had never heard, much less of the United States, who could not be heard before them. Sec 2 Dallas 408. 3 Dallas 412. 414. 415.

|Livingston's Intrusion.|Presuming, however, that the coast was now clear, and the question finally settled, the ostensible actors withdrew, and their principal comes forward, is put into possession by the Sheriff, and begins his works. The Governor, in his letter of Sept. 3, 1807, says, 'a few days since, [Aug. 24.] Mr. Livingston employed a number of negroes to commence digging a canal which he projected to take in a part of the land called the batture. But the citizens assembled in considerable force and drove them off. On the day following he went in person, but was again opposed by the citizens. The minds of the people were much agitated. The opposition is so general that I must resort to measures the most conciliatory, as the only means of avoiding still greater tumult, andperhaps much bloodshed. I have not issued a proclamation because it might make an impression in the United States that the people are disposed for insurrection, which is not true. My opinion is that the title is in the United States. If the batture be reclaimed,it is feared the current of the Missisipi will in some measure change its course, which will not only prove injurious to the navigation, but may occasion degradation in the levees of the city, or those in its vicinity.' To abridge our narration by giving the substance of the communications. The people assembled the next day about the same hour, and for several days successively, by beat of drum. [Livingston's letter of Sept. 15. '07.] On Monday the 31st of August, Mr. Livingston recommenced his work, after having given notice that he should do so. He began about 10 o'clock, A. M. and about 4 or 5 o'clock in the afternoon the people assembled again and drove off his labourers. On the 14th of September he again attempted to work, getting two constables to attend his labourers. The people drove them off, and the constables having noted on a list some of those present, they seized them, took the list and tore it to pieces. [Sheriff's letter.] On the next day he writes to the Governor that he shall set his labourers to work again that day at 12 o'clock, and 'he shall not be surprised to see the people change the insolence of riot into the crime of murder.' At noon he accordingly placed 10 or 12 white labourers there. In the afternoon the people re-assembled to the number of several hundreds. The governor repaired there and spoke to them. He was heard with respectful attention:*and|18*|one of them, speaking for the whole, expressed the serious uneasiness which the decision of the court had excited, the long and undisturbed possession of the batture by the city, as well under the French as the Spanish government, and the great injury which would result to the inhabitants if the land should be built upon and improved. And another declaring that they wished the decision of Congress, and in the mean time, no work to be done on the batture, there was a general exclamation from the crowd, 'that is the general wish,' followed by a request that they might nominate an agent to bear to the President of the United States, a statement of their grievances, and that the Governor would recommend|Appeal to government of the United States.|the agent to the government. He said he would doso, and they nominated Col. Macarty, by general and repeated acclamations. They then withdrew in peace to their respective homes, and on the 16th the Governor expresses the hope that this unpleasant affair is at an end, that everything is then quiet, and the public mind much composed: that some of his hot-headed countrymen censured the mild course which was pursued, and would have been better pleased if themilitaryhad been called upon to disperse the assemblage. But I feel, says he, that the policy adopted was wise and humane, and that a contrary conduct would have increased the discontents, andoccasioned the effusion of much innocent blood. The Louisianians, he adds, are an amiable, virtuous people, but sensibly feel any wrongs which may be offered them. Mr. Livingston is alike feared and hated by most of the ancient inhabitants. They dread his talents as a lawyer, and hate his views of speculation, which in the case of the batture was esteemed very generally by the Louisianians no less iniquitous, than ruinous to the welfare of the city.' The governor says in another letter of October 5, to the Secretary of state, that in a progress he made a few days afterwards through several parishes of the territory, he perceived but one sentiment with respect to the decision of the court. The long and uninterrupted use of the batture by the city, the sanction given by the Spanish authorities to the public claim, and the heavy public expenditures in maintaining the levee which fronts it, seem to have given rise to a very general opinion that the court has been in error in deciding the batture to be private property. On the 13th of November he again writes, 'I should be wanting in duty did I not earnestly recommend the subject of the batture to the attention of the government. There is no doubt but the agents of Spain considered it as a public property, and did appropriate the same to the use of the city, as a common. I should presume that, under the treaty, the United States may justly claim the batture,|19*|and if any *means can be devised to arrest the judgment of the territorial court, or to carry this case before another tribunal, the earlier they are resorted to, the better;for Mr. Edward Livingston is now in possession of the property, andmaking improvements thereon.' And the|Livingston's works.|next day, Nov. 14, a grand jury of the most respectable characters of the place gave in a presentment to the court in which they say, 'We present as a subject of the most serious complaint the present operations on the batture by Edward Livingston and others connected with him: that this is from 4 to 6 months of every year a part of the bed of the river, and an important part of the port of New-Orleans: that these operations of Edward Livingston are calculated to obstruct the free navigation of the river, to change the course of its waters, to deprive our western brethren, whose only market for the produce of their extensive territory, is to be found in this city, of the deposit which has hitherto remained free to them, and not only of incalculable importance, but of absolute necessity. Whether it be private or public property, is immaterial, so long as the laws do not permit such use of it as to injure and obstruct the navigation: and we present it as our opinion that all such measures should be taken as are consistent with law to arrest these operations which are injurious for the present, and, in changing the course of the river, are hazardous in the extreme.' We find Mr. Livingston then, instead of awaiting the decision of Congress, the only constitutional tribunal, resuming his works boldly, and the people, whom he represented as like 'to change the insolence of riot into the crime of murder,' appealing peaceably, by presentment, to the laws of their territory until the National government should decide. In the latter end of the same year, [Surveyor's Rep. to Mayor, Dec. 28, '08.] he opens a canal from the bank directly through the beach into the river[88]276 feet long, 64 feet wide, and 4 feet 2 inches deep at low water, and with the earth excavated he forms a bank or quai, on each side, 19 feet 6 inches wide, from 4 to 6 feet high above the level of the batture, and faced with palisades. Within one year after this, what had been anticipated by the Governor, the grand jury and others, had alreadymanifested itself. In Dec. of the ensuing year, 1808, [See Surveyor's rep. Dec. 28, '08.] a bar had already formed across the mouth of the canal, which was dry at low water, the course of the waters had been changed during the intervening flood, and the places where dry ground first showed itself, on the decrease of the river, were such as had, the year before, been navigable|20*|at low water. [Mayor's *answer to Governor, Nov. 18, '08.] The port in front of the town had been impaired by a new batture begun to be formed opposite the Custom house, which could not fail to increase by the change of the current. The beach or batture of St. Mary had, in that single tide extended from 75 to 80 feet further into the river, and risen from 2 to 5 feet 10 inches generally, and more in places, as a saw scaffold which, at the preceding low tide, was 7 feet high, was now buried to its top; and Tanesse, the Surveyor, [See his affidavit, MS.] in his affidavit says he does not doubt that these works have produced the last year's augmentation of the batture, at the expense of the bed of the river, have occasioned the carrying away a great part of the platin or batture of the lower suburbs, and breaking the levee of M. Blanque next below, and that the main port of the city being a cove, immediately below Livingston's works, would, if they were continued, be filled up in time; and it is the opinion of Piedesclaux also, [See his 3d affidavit, MS.] that they would produce changes in the banks of the river, on both sides, prejudicial to the city, and riparian proprietors, by directing the efforts of the river against parts not heretofore exposed to it. And Mr. Poydras tells us, [p. 20 of one of his speeches,] that when the river is at its height, the boats which drift down it can only land in the eddies below the points, as they would be dashed to pieces in attempting to land in the strong current. That, at the town, they cannot land for want of room, there being always there two or three tier of vessels in close contact; nor at the lower suburbs of Marigny, which being at the lower part of the cove, are too much exposed both to winds and current. Indeed no evidence is necessary to prove that in a riverof only 1200 yards wide, having an annual tide of 12 to 14 feet rise, which brings the water generally to within 8 or 10 inches, and sometimes 2 or 3 inches, of the top of the levee, insomuch that it splashes over with the wind, [See Peltier's, and Tanesse's affidavits, MS. and also the maps,] were the channel narrowed 250 yards, as Mr. Livingston intends, that is to say, a fourth or fifth of its whole breadth, the waters must rise higher in nearly the same proportion, that is to say, 3 feet at least, and would sweep away the whole levee, the city it now protects, and inundate all the lower country.

Thus urged by the continued calls of the Governor, who declared he could not be responsible for the peace or preservation of the place, by the tumult and confusion in which the city was held by the bold aggressions of the intruders on the public rights, by the daily progress of works which were to interrupt the commerce of the whole western country, threatened to sweep|21*Cabinet deliberation.|away a *great city and its inhabitants, and lay the adjacent country under water, I listened to the calls of duty, imperious calls, which had I shrunk from, I should have been justly responsible for the calamities which would have followed. On the 28th of October, '07, the Attorney General had given his opinion, and on the 27th of November, I asked the attendance of the heads of the departments, to whom the papers received had been previously communicated for their consideration. We had the benefit of the presence of the Attorney General, and of the lights which it was his office to throw on the subject. We took of the whole case such views as the state of our information at that time presented. I shall now develope them in all the fulness of the facts then known, and of those which have since corroborated them.

|What law?|The first question occurring was, what system of law was to be applied to them? On this there could be but one opinion. The laws which had governed Louisiana from its first colonization, that is to say, the laws of France with some local modifications, were still in force when this questionwas generated by the sale of the Jesuits' property to B. Gravier and others. France had indeed, about the end of the preceding year 1762, by a secret convention, ceded Louisiana to Spain, to be delivered whenever Spain should be in readiness to receive it. But this was not announced to the inhabitants till the 21st of April, 1764, nor did Spain receive possession till the 17th of August, 1769. [9 Raynal, 222. 235.] In the mean time the French government and laws continued, the Jesuits' property was sold, and purchased under the faith of the existing laws; and according to these laws must the rights acquired by the purchaser, or left in the crown, be decided. Indeed in no case are the laws of a nation changed, of natural right, by their passage from one to another denomination. The soil, the inhabitants, their property, and the laws by which they are protected go together. Their laws are subject to be changed only in the case, and extent which their new legislature shall will. The changes introduced by Spain, after 1769, were chiefly in the organization of their government, and but little in the principles of their jurisprudence. The instrument which some have understood as suppressing the French and introducing the Spanish|Proclamation of O'Reilly.|code, is the proclamation of O'Reilly of November 25, 1769, two months after the actual delivery of the colony. [See appendix to documents communicated to Congress by the President, with his message of October 17, 1803.] The transfer of the country, however, had been announced to the people five years before. Now surely, during these five years|French code.22*|the *French laws must have continued entire, and of course after them, so far as not altered. And that this proclamation made specific only, and not general alterations, a brief examination of its tenor will evince. It begins by charging the late council with a participation in the insurrection which had taken place, and by declaring it indispensable to abolish that, and to establish theformof politic government and administration of justice prescribed by the wise laws of Spain. But aformof government may surely be changed, and the mass of the laws remain thesame, as took place in our revolution. He proceeds then to establish thatform of government,dependenceandsubordination, which should accord with the good of the service, and happiness of the colony. For this purpose he substitutes a Cabildo, in place of the ancient council, and instead of former analogous officers, he says there shall be Alferes, Alcades, Alguazils, Depositors, Regidors, a Scrivener, Procurator, Mayordomo, &c.; adopting thus the Spanish instead of the French organization of officers, for the administration of the laws. He changes the manner of proceedings in judicial trials, and of pronouncing judgments, according to a digest made by Unestia and Rey, by his order,untila general knowledge of the Spanish language and more extensive information on the statutes themselves might be acquired; prescribes rules for instituting actions by parties, of different denominations, the names and substance of the pleadings, rules for appearances, answers, replications, rejoinders, depositions, witnesses, exceptions, trials, judgments, appeals, executions, testaments, probates, advancements, and distributions: not changing the great outlines of the law, or theratio decidendigenerally; but merely the organization of officers, and forms of their proceeding. He states also the criminal law, what it is in sundry cases of irreligion, treason, murder, theft, rape, adultery, and trespass, proclaiming mostly what was already law; lastly, he establishes the fees of officers, and with that closes the proclamation, without a word said about abolishing the French, and substituting the Spanish code of laws generally. As far then as this instrument makes any special changes, its authority is acknowledged. But the very act of making special changes is a manifestation that a general one was not then intended. He did not mean by this instrument to change 'all and some.' One may indeed conjecture, from loose expressions in the instruments, that a more extensive change was in contemplation for some future time, when the inhabitants, as it says, should have acquired a general knowledge of the Spanish language. Butuntilthen expressly, and in the interim, the innovations it specifies are the only ones introduced. The great system of law which|23*|*regulates property, which prescribes the rights of persons and things, and sanctions to every one the enjoyment of those rights, is left untouched, in full force and authority. If such a radical change were really meditated, it was never carried into execution; nor seems at any after time to have occupied seriously the attention of government. In the following year 1770, O'Reilly issued an additional ordinance respecting grants of lands; and Carondelet, in 1795, (26 years after the possession of the colony, and a year only before its transfer to us,) passed an ordinance of police, concerning bridges, roads, levees, slaves, coasters, travellers, arms, estrays, fishing and hunting; and these three acts seem to constitute the whole of the changes made in the established system of laws during the Spanish occupation of the country. Probably the Spanish authorities found, in the progress of their administration, that the difference between the French and Spanish codes, taken both from the same Roman original, would not justify disturbing the public mind, by a formal suppression of the one, and substitution of the other. Probably the officers themselves, not adepts in either, and partly French, and partly Spanish individuals, confounded them in practice as they found convenient; and hence the ill-defined ideas of what their laws were. But certainly when we appeal, as in the present case, to exact right, the French code is the only one sanctioned by regular authority; and the special changes before mentioned, of organization and police, having no relation to the beds and increments of rivers, that code is to give us the law of the present case. That code, like all those of middle and southern Europe, was originally feudal, [Encyclop. Method. Jurisprudence. Coutume. 400.] with some variations in the different provinces, formerly independent, of which the kingdom of France had been made up. But as circumstances changed, and civilization and commerce advanced, abundance of new cases and questions|Roman.|arose, for which the simple and unwritten laws of feudalism had made no provision. At the same time, they had at hand the legal system of a nation highly civilized, a system carried to a degree of conformity with naturalreason attained by no other. The study of this system too was become the favorite of the age, and, offering ready and reasonable solutions of all the new cases presenting themselves, was recurred to by a common consent and practice; not indeed as laws, formally established by the legislator of the country, but as aRATIO SCRIPTA, the dictate, in all cases, of that sound reason which should constitute the law of every country.[89]Over|24*|both of these systems, however, the occasional* edicts of the monarch are paramount, and amend and control their provisions whenever he deems amendment necessary; on the general principle that'leges posteriores priores abrogant.'[90]Subsequent laws abrogate those which were prior. This composition of the French code is affirmed by all their authorities. One only of them shall be particularly cited, to wit, Ferriere Dict. de droit. Ordonnance.

This system of law was transferred to Louisiana, as is evinced by the[91]charter of Louis XIV. to Crozat, bearing date|25*|the *14th of Sept. 1712. The VIIth article of that is in these words. 'Our edicts, ordinances and customs, and the usages of the Mayorality and Shreevalty of Paris, shall be observed for laws and customs in the said country of Louisiana.' The customary law of Paris seems to have been selected, because considered as the best digest, and that to which it was proposed to reduce the customary law of all the provinces. Enc. Meth. Jurispr. Coutume. 405. This is the first charter we know of which established the boundaries and laws of Louisiana. Itsays nothing of the Roman law; but that, having become incorporated, by usage, with the customs of Paris, and constituting, as a supplement, one system with them, seems to have been considered as of their body, and transferred with them to Louisiana.[92]In 1717, Crozat transferred his rights to theCompagnie d'Occident, at the head of which was the famous Law, 8. Raynal. 166. [edit. 1780.] which again in 1720, by union with others, became theCompagnie des Indes, who in 1731, surrendered the colony back to the king. 1. Valin, 20. But these various transfers from company to company, of the monopoly of their commerce, for that was the sum of what was granted them, and their final surrender to the king, could not affect the rights of the people, nor change the laws by which they were governed. When they returned to the immediate government of the king, their laws passed with them, and remained in full force until, and so far only as, subsequently altered by their legislator. That|26*|this was the sense of their *government may be inferred from a clause in the edict creating theCompagnie des Indes Occidentales, art. 34.

|Alluvion.|This then is the system of law by which the legal character of the facts of the case is now to be tested: and the plaintiff and his counsel having imagined that, in the Roman branch of it, they had found a niche in which they could place the batture to great advantage, have availed themselves of it with no little dexterity, and by calling it habitually an alluvion, have given a general currency to the idea that it is really an alluvion: insomuch that even those who deny their inferences, have still suffered themselves carelessly to speak of it under that term. Were we, for a moment to indulge them in this misnomer, and to look at their claim as if really an alluvion one, the false would be found to avail them as little as the true name. The Roman law indeed says,'quod per alluvionem agro tuo flumen adjecit, jure gentium, tibi adquiritur.''What the river adds to your field by alluvion, becomes yours by the law of nations. Institute. L. 1. tit. 1. §. 20. Dig. L. 41. tit. 1. §. 7. The same law, in like manner, gave to the adjacent proprietors, the sand bars, shoals, islands rising in the river, and even the bed of the river itself, as far as it was contracted or deserted. Inst. 2. 1. 22. and 2. 1. 23. But the established laws of France differed in all these cases.

And Guyot, in theRépertoire Universel de Jurisprudence, a work also of authority and cited with approbation by the plaintiff and his counsel, [Liv. 21. Du Ponceau, 14.] under the word'île,'says,

Again, after laying down the Roman law of alluvion, and of islands formed in the beds of rivers, Le Rasle, in the law Dictionary, forming a part of theEncyclopédie Méthodique. Jurisprud. accession. 94, says,

And Ferriere, quoted also by the plaintiff, says,

And he refers to the edicts of 1683. 1693. and 1710.

And to put aside all further question as to the law of France on this subject. Louis XIV. by an edict of December 15, 1693, says,

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