Chapter XXXIII: Part III: The Batture at New-Orleans (2)

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

'Les Ordonnances sont les vraies lois du royaume. Elles
font la partie la plus générale et la plus certaine de notre
droit Français, attendu qu'elles sont soutenues de l'autorité
aussi bien que de la raison; au lieu que les loix Romaines ne
subsistent que par leur équité, elles n'ont par elles-mêmes
aucune autorité, qu'autant qu'elles sont considérées comme
une raison écrite, du moins en pays coutumier; et à l'égard du
pays de droit écrit, les loix Romaines n'y ont force de loi,
que parceque nos rois ont bien voulu y consentir.'

The Ordinances are the true laws of the kingdom. They constitute
the most general and certain part of our French law, inasmuch
as they are supported by authority as well as reason; whereas
the Roman laws stand on their equity alone, having of themselves
no authority, but as they are considered as _written reason_,
at least in the provinces of Customary law. And as to those
of written law, the Roman laws are in force only because our
kings have thought proper to consent to it.

[Sidenote: 25*]

[Sidenote: 26*]

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

'Seront les juges établis en tous les dits lieux tenus de juger
suivant les lois et ordonnances du royaume, et les officiers de
suivre et se conformer à la coutume de la Prevôté et vicomté
de Paris, suivant laquelle les habitans pourront contracter,
sans que l'on y puisse introduire aucune autre coutume, pour
éviter la diversité. 1. Moreau de St. Mery, 100.

'The judges established in all the said places shall be held to
adjudge according to the laws and ordinances of the kingdom, and
the officers to follow and conform themselves to the customs
of the Prevôté and vicomté of Paris, according to which the
inhabitants may contract, without that any other custom may
be introduced, to avoid diversity.' 1. Moreau de St. Mery, 100.

[Sidenote: Alluvion.]

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

[Sidenote: 27*]

'Par notre droit Français, dit Pothier, les alluvions qui
se font sur le bord des fleuves, et des rivières navigables,
appartiennent au roi. Les propriétaires riverains n'y peuvent
rien prétendre, à moins qu'ils n'ayant des titres de la
concession que le roi leur aurait faite du droit d'alluvion.'
1. Pothier. Traité de la propriété. *1 Part. c. 2. §. 3. art.
2. No. 159.

'By our French law, says Pothier, one of their most respected
authorities, the alluvions formed on the borders of navigable
streams and rivers belong to the king. The proprietors of
riparian heritages can have no claim to them, unless they have
evidences of the grant made to them by the king, of the right
of alluvion along their heritages.' Pothier, Part 1. c. 2. §.
3. art. 2. No. 159. cited Derbigny, xviii.

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

'Nous n'admettons pas comme les Romains, les alluvions, et
les accroissemens, au profit des propriétaires riverains,
soit par les changemens qui peuvent survenir dans le lit des
rivières, soit relativement aux îles, et îlots qui peuvent s'y
former. Chez eux le lit, et les bords des fleuves et rivières
étaient censés faire partie des héritages riverains; et par une
suite de ces maximes, le terrain qu'un fleuve ajoutait à ces
héritages, appartenait à ceux qui en étaient propriétaires.
Ils réunissaient de même à leurs possessions le lit que le
fleuve abandonnait; et lorsqu'il se formait une île dans le
milieu de son lit, les riverains y avaient un droit égal,
et en partageaient la propriété. Suivant nos principes, les
rivières navigables, leur lit, rives, et tous les terrains
qui peuvent s'y former, appartiennent au roi, à raison de sa
souveraineté. C'est la disposition précise de l'article 41.
du tit. 37 de l'Ordonnance des eaux et forêts de 1669, qui
a dissipé tous les doutes que l'on cherchait à faire naître
dans plusieurs provinces, sur les fondemens des énonciations
qui se rencontraient dans les anciennes concessions.

'We do not admit, as the Romans, alluvions and accumulations
to go to the riparian proprietors, either by changes which
may happen in the bed of rivers, or relating to isles, and
islets which may there be formed. With them the bed and borders
of rivers and streams were considered as making part of the
riparian inheritances; and as a consequence of these maxims, the
earth which a river added to these inheritances, belonged to
those who were the proprietors of them. They reunited in like
manner to their possessions the bed which a river abandoned,
and when an isle was formed in the middle of its bed, the
riparians had an equal right to it, and divided the property.
According to our principles, navigable streams, their bed,
banks, and all the grounds which may be formed there, belong
to the king, in right of his sovereignty. It is the precise
provision of art. 41. tit. 37. of the Ordonnance des eaux et
forêts, which has dissipated all the doubts which they had
endeavored to raise in several provinces, on the grounds of
the enunciations which were found in the ancient concessions.'
Cited Derbigny 23.

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

[Sidenote: 28*]

'Nous n'avons pas suivi dans notre droit Français les
*dispositions Romaines à cet égard; toutes les isles ou autres
attérissemens qui se forment dans les rivières appartiennent
au roi, et font partie du domaine. Les terres ajoutées par
alluvion aux héritages baignés par le fleuve et les rivières
navigables, n'appartiennent aux riverains, que lorsqu'ils out
un titre de concession qui leur permet de se les approprier.'

'We have not in our French law followed the Roman provisions
in this respect; all islands or other accumulations which are
formed in rivers, belong to the king, and constitute a part of
the domain. Lands added by alluvion to inheritances washed by
rivers and navigable streams, do not belong to the riparians
but when they have a deed of concession which permits them to
appropriate them to themselves.'

And Ferriere, quoted also by the plaintiff, says,

'Pour ce qui regarde l'augmentation arrivée à un héritage
subitement et tout d'un coup, la décision que les loix Romaines
ont faites à cet égard n'est point observée dans le royaume.
Cette augmentation appartient au roi, dans les rivières
navigables.' And Denizert agrees, 'que les attérissements
formés subitement dans le mer, ou dans les fleuves ou rivières
navigables, appartiennent au roi, par le seul titre de sa
souveraineté.'

'As to augmentations happening suddenly and all at once, the
decision of the Roman laws in this respect, is not observed
in the kingdom. These augmentations belong to the king in
navigable rivers.' And Denizert agrees, 'that atterrissements
formed suddenly in the sea, or the navigable rivers or streams,
belong to the king in the sole right of his sovereignty.'

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

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

[Sidenote: 29*]

'Louis, &c. salut. Le droit de propriété que nous avons sur
tous les fleuves et rivières navigables de notre royaume,
et conséquemment de toutes les isles, moulins, bacs, &c.
attérissemens et accroissemens formés pas les dites fleuves
et rivières, étant incontestablement établi par les lois de
l'état, comme une suite et une dépendence nécessaire de notre
souveraineté, les rois nos prédecesseurs et nous, avons de
tems en tems, ordonné des recherches des isles et crémens qui
s'y sont formés, &c. A ces causes, de l'avis de notre conseil
et de notre certaine science, pleine puissance et autorité
royale, nous avons par ces *présentes, signées de notre main,
dit, statué et ordonné, disons, statuons et ordonnons, voulons
et nous plait, que tous les détenteurs, propriétaires, ou
possesseurs des îles, îlots, attérissemens, accroissemens,
_alluvions_, droits de pêche, péages, ponts, moulins, bacs,
coches, bateaux, édifices et droits sur les rivières navigables
de notre royaume, qui rapporteront des titres de propriété ou
de possession, avant le 1er Avril, 1566, y soient maintenus
et conservés dans leurs possessions, en payant au fise une
année, et ceux sans titre, ni possession antérieurs au 1er
Avril, 1566, en payant deux années de revenu.'

'Louis, &c., Greeting. The right of property which we have
in all rivers and navigable streams of our kingdom, and
consequently in all the isles, mills, ferries, &c. accumulations
and increments formed by the said rivers and navigable streams,
being incontestably established by the laws of the state, as
a necessary consequence and dependence of our sovereignty,
the kings, our predecessors, and ourselves, have from time
to time ordered inquiries as to isles and increments therein
formed, &c. For these causes, with the advice of our council,
and of our certain knowledge, full power and royal authority,
we have by these presents, signed with our hand, declared,
enacted and ordained, and we do declare, enact and ordain, we
will, and it is our pleasure that all the holders, proprietors,
or possessors, of isles, islets, accumulations, increments,
_alluvions_, rights of fishery, tolls, bridges, mills, ferriers,
packets, bateaux, edifices and imposts on the navigable rivers
of our kingdom which shall produce titles of property or of
possession before the 1st of April, 1566, shall be therein
maintained and secured in their possessions, on paying to the
treasury one year's revenue, and those without title papers,
or possession prior to the 1st of April, 1566, on payment of
two years' revenue.'

Having no copy of this Ordinance, I quote it from Mr. Derbigny, p. 20. Duponçeau, p. 10. and l'Examen de la Sentence, p. 8, by putting together the parts they cite, for neither gives the whole of what I have cited. Other respectable authorities might be produced, to the same effect, were it necessary to multiply them: and it is also admitted that authorities of weight, and of a different aspect exist, among these is Dumoulin, as respectable as Pothier, Guyot, or any other who has been cited. Were it absolutely incumbent on me, more than on those who rely on the contrary authorities, to assign reasons for a difference of opinion among lawyers, on any point, it might be ascribed in this case to a difference of impression from views on the same subject, diversified as were the customs of the various provinces of France, on this very point. Dumoulin wrote a century and a half before the Ordinance of Louis XIV. In that course of time printing had become more diffused, books greatly multiplied, and a more correct collation of these customs could be made. So that had Dumoulin written in the days of Pothier and Guyot, and with their advantages, he would probably have concurred in the preceding observation, that, 'if there were any doubts, this Ordinance has dissipated them.' Be this as it may, Louis XIV. and his council have decided between these two opinions, and if it were not law before, his decision made it so. By this edict he declares the law of France, 'incontestably,' to be that '_Alluvions_ belong to the king in all navigable rivers.' But with a spirit* of indulgence, meriting more respect than he has found in the language of the adverse party who dislike the truths he has declared, he confirmed all anterior usurpations, on payment of certain compositions and future rents, re-establishing, by the example, the authority of the laws, and rights of the crown against these usurpations. This Ordinance was passed 19 years before the charter to Louisiana, and consequently was comprehended among the edicts and ordinances originally established as the law of the Province.

[Sidenote: 30*]

[Sidenote: 31*]

Mr. Livingston and his advocates have asserted that the right to the beds and increments of rivers, is a gift of the feudal system to the sovereign, that is, to the nation, and is a peculiarity of that system: and further, that that system was never introduced into Louisiana. That the latter assertion is palpably erroneous, could be readily shown, were not the question altogether unnecessary. With respect to the former, surely it is putting the cart before the horse to say, that the authority of the nation flows from the Feudal system, instead of the Feudal system flowing from the authority of the nation. That the lands within the limits assumed by a nation belong to the nation as a body, has probably been the law of every people on earth at some period of their history. A right of property in moveable things is admitted before the establishment of government. A separate property in lands not till after that establishment. The right to moveables is acknowledged by all the hordes of Indians surrounding us. Yet by no one of them has a separate property in lands been yielded to individuals. He who plants a field keeps possession till he has gathered the produce, after which one has as good a right as another to occupy it. Government must be established and laws provided, before lands can be separately appropriated, and their owner protected in his possession. Till then the property is in the body of the nation, and they, or their chief as their trustee, must grant them to individuals, and determine the conditions of the grant. In certain countries, they have granted them on a system of conditions and principles which have acquired the appellation of Feudal. Surely then it is the sovereign which has created the Feudal principles, and not these principles which have created the rights of the sovereign. The Edinburgh Reviewers, [No. 30. 339. Jan. 1810.] who in the progress of their work have deservedly attained a high standing in the public estimation, reviewing the condition of land-tenures among the Hindoos, say, 'the territory of the nation, belonging in common to the nation, belongs, in this general sense, to the king, as the head and representative of the nation. As far accordingly as we have sufficient documents respecting rude nations*, we find their kings, _without perhaps a single exception_, recognized as the sole proprietors of the soil.' And they quote as their authorities,

In Europe.

For Wales, Leges Walliæ. c. 337.

Great Britain. The Bretons while they held the whole island,
Turner's Anglo Saxons, c. 3.

Gaul and Germany. Cæsar, 4. 1. To which add Spain, Portugal,
Italy, and all feudal states.

In Asia.

For China. Barrow. 397.

India. Montesq. Sp. L. 14. 6. Scott's Ferishta, vol. 2. 148-495.
2. Bernier, 189.

Persia. 3. Chardin, 340. Syria and the Turkish dominions. 2.
Volney, 402.

In Africa.

For Egypt. Herodot. 2. 109. Volney passim.

Other parts of Africa. 4. Hist. gen. des voyages 13. v. do.
7. 5. 17. Mod. Univ. Hist. 322. Parke, 260.

In America.

For the Spanish part. Acosta 6. 15. and 18. Garcilaso, 1. 5.
1. Carli. letter 15.

For the United States and the Indian hordes of our continent,
we cite our own knowledge.

[Sidenote: 32*]

It seems then to be a principle of universal law that the lands of a country belong to its sovereign as trustee for the nation. In granting appropriations, some sovereigns have given away the increments of rivers to a greater, some to a lesser extent, and some not at all. Rome, which was not feudal, and Spain and England which were, have granted them largely; France, a feudal country, has not granted them at all on navigable rivers. Louis XIV. therefore was strictly correct when in his edict of 1693, he declared that the increments of rivers were incontestably his, _as a necessary consequence of the sovereignty_. That is to say, that where no special grant of them to an individual could be produced, they remained in him, as a portion of the original lands of the nation, or as new-created lands, never yet granted to any individual. They are unquestionably a regalian, or national right, paramount, and pre-existent to the establishment of the feudal system. That system has no fixed principle on the subject, as is evident from the opposite practices of different feudal nations. The position, therefore, is entirely unfounded, that the right to them is derived from the feudal law; and it is consequently unnecessary to go into the proof of what the grants in that country *exhibit palpably enough, that infeudations were partially at least, if not generally, introduced into Louisiana.

It ought here to be observed however that, so far as respects the beds and navigation of rivers, the right vested in the sovereign is a mere trust, not alienable. It is not like lands, imposts, taxes, an article of public property constituting the revenues of the state, but like roads, canals, public buildings, reserved for the use of the individuals of the nation. See an explanation of this subject, Vattel 1. 235. 239.

[Sidenote: M. Thierry.]

[Sidenote: 33*]

I have now to advert, and I do it with extreme regret, to a passage in the very able Memoire of M. Thierry, a Memoire conspicuous for its learning and sound reasoning, and to which I acknowledge myself peculiarly indebted for information on the points he has discussed. He says, p. 30. 'To the ancestors of John Gravier the right of alluvion belonged, not only by virtue of the Coutumes de Paris, which for two centuries back acknowledged the principle of the Roman law, and against which, for that reason, the Ordinances of the kings of France could with no manner of success be pleaded, inasmuch as a royal ordinance specially made that Coutume the civil law of this colony; but also by virtue of the Spanish laws, which from 1769, have been constantly in force in Louisiana.' 1. That the Roman principle of Alluvion was acknowledged by the Coutumes de Paris has not been proved. The adverse counsel, [Dupon. p. 9.] has said indeed, that those Customs were silent on this subject. But I have considered Pothier, Guyot, and Le Rasle as better authority. 2. Mr. Thierry supposes that a Royal Ordinance having specially made that Coutume the civil law of Louisiana, the Ordinances of the kings of France were excluded from the system, and could not control what was Coutume. He had not, I presume, seen the charter of 1712, which makes the edicts and _ordinances_, with the Coutume de Paris, the law of that province; nor sufficiently considered that had the Coutumes been alone established by one ordinance, another might change them. 3. He supposes the Spanish laws have given Alluvions to the riparian proprietor. But the laws of the province, established by their charter, were not annulled by the change of one king for another, as their legislator. The latter might change them. But has he done so? If he has, his edict must be produced, that we may weigh its words, and judge of its effects for ourselves. And we must guard against admitting that the example of a Spanish Governor, if such example has occurred, occasionally and incorrectly acting on the laws of Spain, amounted to a repeal of the whole system then existing, and a formal establishment of a different one. No such intention on his part, *to make so momentous a change, should be so slightly inferred; and no power of his could effect it, even if intended. Nothing less than an Ordinance of the Sovereign himself, signed with his own hand, and sanctioned by all the solemnities attending their enactment and promulgation, was competent to reverse at once the legal condition of a whole people, and the laws under which their lives and properties were held. Again, even such an ordinance could not change the law as to past rights; and those now in question were vested before the Spanish government took place, and could not be annulled by a subsequent law. These gratuitous admissions, therefore, of Mr. Thierry, not at all necessary to his argument, and therefore probably not well considered, and in opposition to the opinions and demonstrations of an able brother counsellor (Mr. Derbigny), must be disavowed, and the authority of the Ordinance of 1693 insisted on with undiminished confidence. Mr. Thierry himself will perhaps the more readily abandon them, when he sees with what avidity his eagle-eyed adversary has pounced upon them in a letter to some member of the government, in which he considers them as giving up all ground of opposition to his claims.

[Sidenote: Edict of Louis XIV.]

[Sidenote: 34*]

To that edict then I shall now recur; and to the cavils raised against it by the advocates of the claims it annihilates. It is idle for them to call it bursal, fiscal, and the act of a tyrant, &c. [Duponc. 10.] as if the authority of laws was to be graduated by the character of the existing legislator; and as if we were to be the judges, for other nations, of the character and obligation of their laws. It is vain to pretend that because the word 'Alluvion,' inserted in the enacting clause of the edict, is not in the preamble, therefore it has no force in the body of the law: as if the preface, giving the general reason and views of the law, was alone to be the law, and its actual enactments a mere nullity. Although the preamble of a statute is considered as a key to open the mind of the makers as to the mischiefs in their view, yet in general it is no more than a recital of some inconveniences, which does not exclude any other for which the enacting clauses provide; nor must the general words of an enacting clause be restrained by the particular words of the preamble. 6. Bac. Abr. Statute. I. 2. and the authorities there stated. So says our law; so says reason; and so must say the Roman law, if it be ratio scripta. But it is further to be observed that the words 'attérrissements and accroissements,' accumulations and increments, used in this preamble are generic terms, of which 'Alluvion' is a species, and therefore strictly comprehended by it. This is proved by the Roman definition, 'Alluvio est _incrementum_* latens,' 'alluvion est un accroissement ou crement imperceptible,' by the Napoleon code cited by Mr. Livingston:

[Sidenote: Napoleon Code.]

'Les attérissements et accroissements qui se forment
successivement et imperceptiblement aux fonds riverains d'un
fleuve, ou d'une rivière, s'appellent Alluvion.' §. 556

'The accumulations and increments which form themselves
successively and imperceptibly against the riparian lands of
a river or stream are called Alluvion.' Sect. 556.

[Sidenote: Portalis.]

And by the edicts of 1686 and 1689, both of which have the expression '_crémens_ qui s'y sont formés, soit par _alluvion_, ou par industrie, &c.' And here Portalis's rhetorical flourish, on presenting this law, is cited, [Duponc. 17. Liv. 22.] with triumph, as declaring that this law terminates the great question of Alluvion, and decides it conformably to the Roman law. It is very true indeed that it has terminated the question as to future cases, by changing the law, by transferring the right of Alluvion from the sovereign to the riparian proprietor, by giving the abandoned bed of a river, as an indemnification to him on whose land it has opened a new passage, and making this the future law of all the provinces. And had Louisiana then been subject to France, the law would have been changed _thenceforward_, for Louisiana also. I find no fault with Napoleon for this Roman predilection. I believe the change is for the better, so far as concerns rural possessions. A decision too of the parliament of Bordeaux is quoted by Mr. Duponceau 19. to prove that the law giving Alluvion to the adjacent possessor has been acknowledged in France by the decision of the parliament of Bordeaux, confirmed, _as he has heard_, on appeal by the parliament of Paris. This proves only that the Roman law of alluvion was the law of the Generality of Bordeaux, not that it was then the law of all France. In the country called the Bordelois, Customary laws prevail. But

'Lorsque la coutume de Bordeaux ne s'est pas expliquée sur
certains points de droit, ce n'est ni à la coutume de Paris,
ni à d'autres coutumes qu'on a recours pour les faire décider,
mais au droit écrit.' Enc. Meth. Jurisp. Bordeaux.'

'When the Custom of Bordeaux has not sufficiently explained
itself on certain points of law, it is neither to the Customs of
Paris, nor to other customs that recourse is had for decision,
but to the written law,' that is, the Roman law.

The inference then is, either that the Coutume de Bordeaux was the same on this point as the Roman law, or, that being silent, the Roman law was referred to.[93]

[Sidenote: 35*]

*Surely never was the urgency of squeezing argument out of everything so apparent, as in the emphasis with which the adverse party presses and comments, [Liv. 32.] on the answers of the several tribunals, to which the Napoleon Code was referred for consideration and amendment. A dozen tribunals are named, with an &c. for more, who are acknowledged to have said nothing about alluvion: and this is produced as proof that it had belonged before to the riparian proprietor. But it proves more probably that these tribunals were contented with the change proposed, and had no amendment of it to offer. But, in truth, it proves nothing either the one way or the other. The tribunal of Paris is then quoted, with an acknowledgment that they do not make a single observation on the subject. Then long extracts from that of Rouen, proposing that _islands_, rising in the rivers, shall be given to the riparian proprietors: and recommendations to the same effect from those of Toulouse and Lyons. Now it is remarkable that neither the word 'Alluvion,' nor the idea of the thing, is either expressed or referred to in any one of these quotations. And yet Mr. Livingston says, 'we find all these learned men either passing over these articles, as merely declaratory of the old law, or else _expressly acknowledging them_ as such;' and again after the citation from Rouen, 'here we have the positive declaration of a learned tribunal, &c. deciding that the edicts did not extend to alluvions, but only to islands in navigable rivers.' And yet I repeat that neither the word nor the idea is to be found in any one of the quotations; for it is of these only I can speak, not possessing the book, but I presume Mr. Livingston's quotations are of the strongest passages. It is impossible to characterize such reasoning respectfully. I shall therefore leave it to the reflection of others. And I think myself authorized to conclude on the whole, that had the Batture been really an Alluvion, its ownership was to be decided by the laws of France; and that Louis XIV. with the advice of his council, certainly knew when they declared what the law of their country 'incontestably' was; and if we, with our scanty reading on the subject, at this day and distance, know better than they did, yet the enacting clause of the edict made it the law _thenceforward_; that it came over as law for Louisiana, made the batture, if an alluvion, the property of the sovereign; and certainly the whole tenor of the conduct of the Spanish government proved that they did not mean to relinquish it.

[Sidenote: 36*]

Before we quit this branch of the discussion, it is not amiss to *observe that the eloquent declamations of these learned men of Rouen, so much eulogized by Mr. Livingston, were not at all heeded. The Napoleon code, §. 560. retained the _islands_ rising in the beds of navigable or floatable rivers, and (changing the French law only as to alluvions) declares, §. 538. in opposition to the Roman law, that

'Les fleuves et rivières navigable ou flottables, les rivages,
lais et relais de la mer, les ports, les havres, les rades,
&c. sont considérés comme le dépendances du domaine public.'

'Rivers and navigable or floatable streams, shores, increments
and decrements of the sea, ports, harbors, roads, &c. are
considered as dependances of the public domain.'

So that notwithstanding the 'persuasive and conclusive arguments of these first lawyers of the country,' Liv. 31. the French law as it stands at this day, and stood before, would have given the batture to the public, being unquestionably the [94]rivage or shore of the river.[95]

[Sidenote: 37*]

[Sidenote: 38*]

[Sidenote: 39*]

*I will now proceed further and say, that had the batture been an alluvion, and to be decided by the Roman, instead of the French law, the conversion of the plantation of Gravier into a *suburb, made it public property. And here I rejoin with pleasure the standard of M. Thierry, and avail myself of his luminous discussion of this point. Were I fully to go into it, I could *but repeat his matter. I shall therefore give but a summary view of it, and rest on his argument for its more detailed support.

[Sidenote: Rural and Urban.]

[Sidenote: 40*]

[Sidenote: 41*]

The position laid down is that the Roman law gave alluvion only to the rural proprietor of the bank; urban possessions being considered as prædia limitata, limited possessions. The law which gives this right is expressed in the Institutes in these words, 'quod per alluvionem _agro_ tuo flumen adjecit, jure gentium tibi adquiritur.' Inst. 2. 1. 20. 'What the river has added, _agro tuo_, becomes yours by the laws of nations.' And the Digest 41. 1. 7. 1. in almost the same words says, 'quod per alluvionem _agro_ nostro flumen adjecit, jure gentium nobis adquiritur.' In both instances it is to the possessor _agri_ only that it is given. It becomes material therefore to understand rigorously the import of the word _ager_, in the Roman laws; and it happens that its definition is given critically by the same authority which uses it. 'Locus sine ædificio, in urbe _area_, *rure autem _ager_ appellatur idemque _ager_, cum ædificio, _fundus_ dicitur.' Dig. 50. 16. 211. 'Quæstio est, fundus a possessione, vel agro, vel prædio quid distet?' Ib. 115 _in notis_, 'fundus est ipsum solum: eo si utimur, prædium dicitur. _Ager_ esse potest sine villâ.' 'Ground, without a building, in a city is called _area_, but in the country _ager_.' Pliny 1. 6. affirms that _ager_ is derived from the Greek ἀγρὸς of the same import. And in the Greek Pragmatics of Attaliata tit. 45. the law of alluvion uses 'ἀγρὸς' for _ager_. 'Τὸ ἀνεπαισθήτως διὰ τοῦ ποταμοῦ προστεθὲν τῷ ἀγρῷ μου πρόσχωσις ἐστὶν, ἤτοι πρόσκλυσις, καὶ ἐμοὶ ἁρμόζει.' 'Quod insensibiliter τῷ ἀγρῷ μου per flumen adjectum est, alluvionis est, et mihi competit. 'What is insensibly added by the river _agro meo_ is alluvion [_adundatio, adaggeratio_] and belongs to me.' In the same title 'ὅπερ ἐν τῷ ἀγρῷ σοῦ σπείρω σόν ἐστιν.' 'What I sow ἀγρῷ σου agro tuo, in your _field_, is yours.' And Stephens, in his Thesaur. ling. Gr. voce 'Ἀγρὸς' translates it 'rus, ager,' 'ἐν ἀγρῷ' in agro, ruri. Ἐξ ἀγρου, ex agro, rure. 'Εἰς ἀγρον, in agrum, rus.' And he cites examples: 'Νηῦς δέ μοι ἥδ' ἕστηκεν ἐπ' ἀγροῦ, νόσφι πόληος'. Hom. Od. 1. 185. 'My vessel is stationed in the _country_, apart from the city.' 'Διὰ τὸ μὴ μεγάλας εἶναι τότε τὰς ΠΟΛΕΙΣ, ἀλλ' ἐπὶ τῶν ΑΓΡΩΝ οἰκεῖν τὸν δῆμον ἄσχολον ὄντα.' Aristo. Polit. 5. 'Because, the _cities_ not being then large, the people were occupied in the _country_, where ἀγρὸς is proved to be pointedly the contradiction to πόλις, to wit, the _country_ to the _city_. From these definitions it appears that the word ager, in the law, constantly means a field, or farm, in the country, and that a city lot is called _area_. In towns, the whole bank and beach being necessary for public use, the private right of alluvion would be inadmissible; and the adverse counsel have been challenged [Thierry, 33.] to produce a single instance, under the Roman law, of a claim of Alluvion allowed in a city. To this might be added a similar challenge as to the laws of England. These give alluvion on rivers, as the civil law does, to the riparian proprietor. Bracton L. 2. c. 2. § 1. Fleta. L. 3. c. 2. Can they from the volumes of English law, with which they are so much more familiar, produce one single instance of the private right of alluvion allowed in a city? In England, I mean, and not in America, where special circumstances have prevented attention to the law on this subject, or the breach of it. And this must be from the reason of the thing alone, because the common law never having been, like the civil law, reduced to a text, no verbal criticisms on a text can have co-operated against the claim.[96] Repeating, *therefore, my reference to the reasoning and authorities of M. Thierry on this point, and my own conviction of their soundness, I consider it as established that, were this question to be decided by the Roman law, the conversion of the farm into a fauxbourg of the city passed to the public all the riparian rights attached to it while a rural possession, and among these the right of alluvion.

[Sidenote: Principal and accessory]

[Sidenote: 42*]

And, if the right of alluvion is not given to urban proprietors, much less would it to a mere holder of the bed of a road. But did any one ever hear of a *man's holding the bed of a road, and nothing else? Is it possible to believe that Bertrand Gravier, in selling his lots _face au fleuve_, really meant to retain the bed of the road and levee? That a man, having a road on the margin of his land, which is its boundary, should mean to sell his land to the road, and to retain that by itself? a thing of no possible _use_ to him, because the _use_ being in the public, he could never employ it in agriculture or otherwise. Were all this possible, yet this bed of a road, this "labrum amnis" would be no _ager_, no field to which the right of alluvion could attach. That right is but an accessory, or, in the language of our law, an appendage or appurtenance, and an accessory, not to a mere line, but to something of which it can become a part. Had the law, therefore, ever given alluvion to any but the holder of an _ager_, of a field, yet the general doctrines of principal and accessory, would not have carried the benefit to Bertrand Gravier in this case. 'Accessorium sequitur naturam sui principalis. Et in accessoriis, præstanda sunt quæ in principali. Accessorium non tenet sine principali. Sublato principali, tollitur et accessorium.' These are maxims of the civil law. Calvini lexicon jurid. 'An accessory follows the nature of its principal.' If the accession then be to a field, it becomes part of the field; if to a town, it would become part of the town; if to a road, the use of which belongs to the public, it would be to the road, and to the public. It must follow the nature of its principal, and become a part of that, subject to the same rights, uses and servitudes with that: and Bertrand Gravier had no right of use in the principal, that is, of the road and levee.

The equity on which the right of alluvion is founded is, that as the owner of the field is exposed to the danger of loss, he ought, as an equivalent, to have the chance of gain. But what equitable reason could there be, in the present case, for giving to Gravier the benefit of alluvion, when he could lose nothing by alluvion? If the levee and bank were washed away, they would not go to his plantation, back of the suburb, for a new one. The public would have to purchase a new bed for a road from the adjacent lot holders. Then 'qui sentit onus, sentire debet et commodum.'

[Sidenote: Beach or Batture not Alluvion.]

But I do deny to the Batture every characteristic of Alluvion.

The French and Roman law constituting that of the place, let us seek from them the definition of Alluvion. The Institute 2. 1. 20. gives it in these words, and the Digest. 41. 1. 7. §. 1. in almost verbatim the same.

'Quod per alluvionem agro tuo flumen adjecit, jure gentium
tibi adquiritur. Est autem alluvio incrementum latens. Per
alluvionem autem id videtur adjici, quod ita paulatim adjicitur,
ut intelligi non possit quantum quoquo temporis momento
adjiciatur.'

'What the river adds by alluvion to your field becomes yours by
the law of nature. Alluvion is a latent increase. That seems
to be added by alluvion, which is so added by degrees, that
you cannot conceive how much in each moment of time is added.'

And in the Greek version of Theophilus, the words, 'Alluvio est incrementum latens' are rendered 'ἀλουβιων ἐστιν ἠ πρόσκλυσις ἢ πρόσχωσις,' translated by Curtius 'Alluvio est adundatio vel adaggeratio.' Retaining only the words of this paragraph which are definition it will stand thus.

'Alluvio est incrementum [_adundatio_, _adaggeratio_] agro
tuo flumine adjectum, ita latens et paulatim, ut intelligi
non possit quantum quoquo temporis momento adjiciatur.'

'Alluvion is an increment [_adundation_, _ad-aggeration_]
added by the river to your field, so latent and gradual, that
the quantity added in every moment of time cannot be known.'

This is the Roman definition.

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

'Alluvion, un accroissement de terrein qui se fait peu-a-peu
sur les bords de la mer, des fleuves, et des rivières, par
les terres que l'eau y apporte, et qui se consolident pour ne
faire qu'un tout avec la terre voisine.'

'Alluvion, an increment of ground which is made by little and
little on the border of the sea, rivers or streams, by earth
which the water brings, and which is consolidated so as to
make but one whole with the neighboring ground.'

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

1. 'Alluvion is an extension which the waters add insensibly.

2. By apposition of particles of earth.

3. Against the adjacent field.

4. And consolidate with it so as to make a part of it.

'Incrementum flumine adjectum latens et paulatim.

{ πρόσχωσις, adaggeratio.
{ πρόσκλυσις, adundatio.

_Agro_.

Qui se consolide pour ne faire qu'un tout avec la terre
voisine.'

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

[Sidenote: 44*]

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

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

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

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

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

[Sidenote: Bed, Beach, Bank.]

[Sidenote: 45*]