Chapter XXXV: Part III: The Batture at New-Orleans (4)

That Mr. Livingston's works were clearly within the interdict of the Roman, the French, and the Spanish laws, which forbid the extending a mole into the water, constructing in it mills, floodgates, canals, towers, houses, cabins, fisheries, stakes or other things which may obstruct or embarrass the use, will result from a brief recapitulation of their character and effects, drawn from the statement before given. For it is not to establish a mill, which, though an intrusion would be but a partial one: it is not to erect a temporary cabin or fisherman's hut, which would be a minor obstacle: but it is to take from the city and the nation what is their port in high water, and at low tide their Quai; to leave them not a spot where the upper craft can land or lie in safety; to turn the current of the river on the lower suburbs and plantations; to embank the whole of this extensive beach; to take off a fourth from the breadth of the river, and add equivalently to the rise of its waters; to demolish thus the whole levée, and sweep away the town and country in undistinguished ruin. And this not as a matter of theory alone, but of experience: the fact being known that since the embankment of the river on both sides through a space of three or four hundred miles the floods are two or three feet higher than before that embankment. In fine, should they have time to save themselves from inundation by doubling the height and breadth of their levée, it is that they may fall victims to the pestilential diseases which, under their fervid sun, will be generated by the putrefying mass with which he is to raise up the foundation between the old and new embankments. But, has he entitled himself to attain these humane achievements by fulfilling the preliminary requisites of the law? Has he obtained the Prætorian, or Pro-Prætorian license, that of the governor and city council, to erect this embankment? Has he given security for all the damages which shall be occasioned by his works for ten years? Has he even carried his case before a jury of 12 brother riparians? Or does he fear to trust it even to those having similar interests with himself? lest the virtuous feelings of compunction for the fate of their fellow citizens should scout his proposition with honest indignation? And yet, until this permission, every spadeful of earth he moved was an outrage on the law, and on the public peace and safety, which called for immediate suppression*. What was to be done with such an aggressor? Shall we answer in the words of the Imperial edict, on a similar occasion, that of breaking the banks of the Nile? Cod. 9. 38. 'Flammis eo loco consumatur, in quo vetustatis reverentiam, et propemodum ipsius imperii appetierit securitatem; consciis et consortibus ejus deportatione constringendis; sic ut nunquam supplicandi, eis, vel recipiendi civitatem vel dignitatem, vel substantiam, licentia tribuatur.' 'Let him be consumed by the flames in that spot in which he violated the reverence of antiquity, and the safety of the empire, let his accessories and accomplices be cut off by deportation from the possibility of supplicating forgiveness, or of being restored to country, dignity and possessions.' Our horror is not the less because our laws are more lenient.

[Sidenote: Remedies.]

Such, then, were the facts, and such the state of the law, on which we were called, and repeatedly and urgently called to decide: not indeed in all the fulness in which they have since appeared, but sufficiently manifested to show that an atrocious enterprise was in a course of execution, which if not promptly arrested, would end in a desolation for which we could never answer. The question before us was, What is to be done? What remedy can we apply, authorized by the laws, and prompt enough to arrest the mischief?

[Sidenote: Abatement of Nuisance.]

[Sidenote: 65*]

1. Were the case within the jurisdiction of our own laws, its character and remedy would be obvious enough. A navigable river is a high way, along which all are free to pass. And as the obstructing a highway on the land, by ditches or hedges, or logs across it, or erecting a gate across it, is a common nuisance, so to weaken injuriously the current of a river, by drawing off a part of its water, to obstruct it by moles, dykes, weirs, piles, or otherwise, is a common nuisance; and all authorities agree, that every one is allowed to remove or destroy a common nuisance. Hawkins, P. C. 1. 75. 12. The Marshal and posse, instead of pleading the order from the Secretary of State, have a right to say 'we did this as citizens, and the law is our authority:' and it would really be singular if, what every man may, or may not do, at his pleasure, the magistrate who is sworn to see the law executed, and is charged with the care of the public property and rights, is alone prohibited from doing; or if his order should vitiate an act which without it would have been lawful, or which he might have executed in person. It would be equally singular, and equally absurd, that the law should punish the magistrate for hindering Mr. Livingston from doing what itself had forbidden and would punish, and reward him with damages for having been restrained *from what they had forbidden him to do. The law makes it a duty in a bystander to lay hands on a man who is beating another in the street, and to take him off. And yet it is proposed that the same law shall punish him for taking off one who was engaged, not in beating a single individual, but in drowning a whole city and country. This is not our law; it is not the law of reason; and I am persuaded it is no part of a system emphatically called _ratio scripta_. If it is, let the law be produced. Until it is, we hold every man authorized to stay a wrongdoer, in the commission of a wrong, in which himself and all others are interested.

[Sidenote: Forcible entry.]

2. By nature's law, every man has a right to seize and retake by force, his own property, taken from him by another, by force or fraud. Nor is this natural right among the first which is taken into the hands of regular government, after it is instituted. It was long retained by our ancestors. It was a part of their Common law, laid down in their books, recognised by all the authorities, and regulated as to certain circumstances of practice. Lambard, in his Eirenarcha. B. 2. e. 4. says, 'it seemeth that (before the troublesome raigne of king Richard the second,) the Common law permitted any person (which had good right or title to enter into any land,) to win the possession by force, if otherwise he could not have obtained it. For a man may see, (in Britton fo. 115.) that a certain respite of time was given to the disseisee, (according to his distance and absence,) in which it was lawful for him to gather force, armes, and his friends, and to throw the disseisor out of his wrongful possession.' Hawkins in his Pleas of the crown, and all the Abridgements and Digests of the law say the same: but, not to take it at second hand, we will recur to the earliest authorities, written while it was yet the law of the land. Fleta in the time of E. 1. writes,

'Si facta fuerit diseissina, primum et principale competit
remedium quod ille qui ita disseisitus est, per se, si possit,
vel sumptis viribus, vel resumptis (dum tamen sine aliquo
intervallo, flagrante disseisinâ et maleficio) rejiciat
spoliantem. Quem si nullo modo expellere possit, ad superioris
auxilium erit recurrendum. Si autem verus possessor absens
fuerit, tunc locorum distantia distinguere oportebit, secundem
quod fuerit propè vel longè, quo tempore viz. scire potuit
disseisinam esse factam, ut sic, allocatis ei rationabilibus
dilationibus, primo die cum venerit, statim suum dejiciat
disseisitorem; qui, si primo die, non possit, in crastino, vel
die tertio vel ulterius, dum tamen sine fictitiâ, hoc facere
poterit, vires sibi resumendo, arma colligendo, auxiliumque
amicorum convocando.' Fleta L. 4. c. 2. And Bracton L. 4. c.
6. in almost totidem verbis; and Britton 'le premer remedie
pour disseisine est al disseisi de recollier amys et force et
sauns delay faire (après ceo que il le purra saver) egetter
les disseisours.' Britton c. 44.

[Sidenote: 66*]

'If a disseisin has been committed, a first and principal
remedy lies, that he who has been so disseised, by himself, if
he can, or taking force, and retaking, (provided it be without
any interval, the disseisin and wrong being yet flagrant,)
may eject the spoliator. Whom, if he can by no means expel,
resort is to be had to the assistance of a superior. But if
the rightful possessor were absent, then, regard must *be had
to the distance of the places, according as it was near or far
off, at what time, for instance, he could know that a disseisin
had been committed, that so, reasonable delays being allowed
him, on the first day when he comes, he may immediately eject
the disseisor, which if he cannot do on the first day, he may
on the morrow, or third day, or later, provided however he
do it without false pretences, by taking to himself force,
collecting arms, and calling in the aid of his friends.' And
Bracton L. 4. c. 6. almost in the same words; and Britton
says, 'The first remedy for disseisin is for the disseisee to
collect his friends and force, and without delay, (after he
may know of it,) to eject the disseisors.'

This right, as to real property, was first restrained in England by a statute of the 5. R. 2. c. 7. which forbade entry into lands with strong hand; and another of the same reign, 15. R. 2. c. 2. authorized immediate restitution to the wrong doer, put out by forcible entry. And even at this day, in an _action_ of trespass, for an entry, _vi et armis_, if the defendant makes good title, he is maintained in his possession, and the plaintiff recovers no damages for the force. Lambard 2. 4. Hawk. P. C. 1. 64. 3. And in like manner, the natural right of recaption by force still exists, as to personal goods, and the validity of their recaption. Hawk. 1. 64. 1. Kelway 92. is express. Blackstone, indeed, 3. 1. 2. limits the right of recaption to a peaceable one, not amounting to a breach of the peace; meaning, I presume, that the recaptor by force may be punished for the breach of the peace. So may the defendant in trespass for an entry _vi et armis_. Yet in an _action_ of detinue for the personal thing retaken by force, the first wrong doer cannot recover it, nor damages for the recaption, any more than in the case of trespass for lands. So that to this day the law supports the right of recaption, as between the parties, although it will punish the public offence of a breach of the peace.

[Sidenote: Roman law.]

[Sidenote: 67*]

When this natural right was first restrained among the Romans, I am not versed enough in their laws to say. It was not by the laws of the XII tables, which continued *long their only laws. From the expression of the Institute, '_divalibus constitutionibus_,' I should infer it was first restrained by some of the Emperors, predecessors of Justinian. L. 4. t. 2. §. 2.

'Divalibus constitutionibus prospectum est, ut nemini liceat
vi rapere vel rem mobilem, vel se moventem, licet suam eandem
rem existimat. Quod non solum in mobilibus rebus, quæ rapi
possunt, constitutiones obtinere censuerunt, sed etiam in
invasionibus, quæ circa res soli fiunt.'

'By the Imperial constitutions it is provided that no one shall
take by force a thing either moveable, or moving, although he
considers it as his own. Which the constitutions have ordained
to take place, not only in moveable things, which may be taken,
but also in intrusions which are made into lands.'

But I believe that no nation has ever yet restrained itself in the exercise of this natural right of reseising its own possessions, or bound up its own hands in the manacles and cavils of litigation. It takes possession of its own at short hand, and gives to the private claimant a specified mode of preferring his claim. There are cases, of particular circumstance, where the sovereign, as by the English law, must institute a previous inquest: but in general cases as the present, he enters at once on what belongs to his nation. This is the law of England. 'Whenever the king's [i.e. the nation's] title appears of record, or a possession in law be called upon him by descent, escheat, &c., he may enter without an office found: for if his title appear any way of record, it is as good as if it were found by office: and if any one enter on him, even before his entry made, he is an intruder; he cannot gain any freehold in the land, nor does he put the king to an assize or ejectment, or take away his right of entry: for he cannot be disseised but by record. Stamford. Prærogativa regis. 56. 57. Com. Dig. Prærog. D. 71. the substance of the authorities cited.

[Sidenote: Squatters.]

[Sidenote: 68*]

[Sidenote: Jurisdiction in whom.]

[Sidenote: When it results to Courts.]

What are the prescriptions of the Roman law in this case, I do not know; nor are they material but inasmuch as they may be the law of the case in Louisiana. A Spanish law before cited, p. 55. forbidding erections on the beds, or on the banks of rivers, says expressly, 'si alguno lo ficiese debe ser deribado.' 'If any one does it, it is to be destroyed.' And the constant practice of the Governors of demolishing such erections was the best evidence of the law we could obtain. Not skilled in their laws ourselves, we had certainly a right to consider the Governor and Cabildo as competent expositors of them, and as acting under their justification and prescription. We might reasonably think ourselves safe *in their opinions of their own law. In fact, if the immediate entry was permitted by the English law, and our own, we thought we might, _à fortiori_, conclude it permitted by those of the province. We had before us too the example of many of the states, and of the general government itself, which have never hesitated to remove by force the Squatters and intruders on the public lands.[101] Indeed if the nation were put to action against every Squatter, for the recovery of their lands, we should only have lawsuits, not lands for sale. While troops are on parade, should intruders take possession of their barracks, and shut the doors, are they to remain in the open air till an action, or even a writ of forcible entry replace them in their quarters? if in the interval of a daily adjournment, intruders take possession of the capitol, may not Congress take their seats again till an inquisition and posse shall reintroduce them? let him who can, draw a line between these cases. The correct doctrine is that so long as the nation holds lands in its own possession, so long they are under the jurisdiction of no court, but by special provision. The United States cannot be sued. The nation, by its immediate representatives, administers justice itself to all who have claims upon the public property. Hence the numerous petitions which occupy so much of every session of Congress in cases which have not been confided to the courts. But when once they have granted the lands to individuals, then the jurisdiction of the courts over them commences. They fall then into the common mass of matter justiciable before the courts. If the public has granted lands to B. which were the legal property of A., A. may bring his action against B. and the courts are competent to do him justice. The moment B. attempts to take possession of A.'s lands, the writ of forcible entry, the action of trespass or ejectment, and the Chancery process, furnish him a choice of remedies. The holders of property therefore are safe against individuals by the law; and they are safe against the Nation by its own justice: and all the alarm which some have endeavored to excite on this subject has been merely _ad captandum populum_. As if the people would not be safe in their own hands, or in those of their representatives; or safer in the hands of irresponsible judges, than of persons elected by themselves annually or biannually. The truth is, no injury can be done to any man by another acting either in his own or a public character, which may not be redressed by application to the proper organ to which that portion of the administration of justice has been assigned.

[Sidenote: Act of Congress.]

[Sidenote: 69*]

[Sidenote: Remitter.]

[Sidenote: 70*]

3. Our third and conclusive remedy was that prescribed by the act of Congress of 1807. c. 91. to prevent *settlements on lands ceded to the U. S. The Executive had been indulgent, perhaps remiss, in not removing Squatters from the public lands, under the general principles of law before explained and habitually acted on. This act therefore was a recent call on them to a more vigilant performance of their duty, in the special district of country lately ceded to them by France, with some modifications of its exercise on previous settlers. The act has two distinct classes of Intruders in view. 1. Those who, _before the passing of the act_, had possessed themselves of the lands, and were actually resident on them at the passing it: and 2. Those who should take possession _after the passage of the act_. 1. With respect to the class of Intruders _before_ the passage of the act, the 2d section provides that, on renouncing all claim, they may obtain from the register or recorder, permission to remain on the lands, extending their occupation to 320 acres, §. 8. which permissions are to be recorded: but, §. 4. those not obtaining permission are, on three months' notice, to be removed by the marshal. But Mr. Livingston was much too wise to qualify himself for the benefit of these sections, by an actual residence on the batture. _His_ part of the act therefore is the first section which enacts that 'if any person shall take possession of any lands ceded to the U. S. by treaty, he shall forfeit all right to them if any he hath; and it shall be lawful for the President of the U. S. to direct the Marshal, or the military, to remove him from the lands. Providing however that this removal shall not affect his claim until the Commissioners shall have made their reports, and Congress decided thereon.' The tribunal to which the legislature had specially delegated a power to take cognizance of the claims on the public lands in Orleans, and to inform them what lands were clear of claim, and free to be granted to our citizens, was a board of Commissioners: and the plain words and scope of the law were, to keep all claims and prior possessions _in statu quo_, until they could be investigated by these Commissioners, reported, and decided on by Congress. And this act indulgently provides that the right of a person removed by the Executive for irregularly taking possession of lands which he thought his own, should not be affected by this removal, but that he might still lay his claim before the Commissioners, and Congress would decide on it. Mr. Livingston's claim was clearly within the purview of the law. It was of lands 'ceded to the U. S. by treaty,' and he had 'taken possession of them _after the passage of the act_.' For the decree of the court was not till May 23, '07, and his possession was subsequent to that. If he should say, as his counsel seems to intimate, Opinions LXVII. that this was a _remitter_ to him of the ancient possession* of Bertrand Gravier, I answer that it was no remitter against any one, because the case was _coram non judice_, as will be shown, and still less against the U. S. who were no parties to the suit: and if it had been a remitter, then I should have observed that the order has been executed on a person not comprehended in it; for it was expressly restrained to possessions taken after the 3d of March '07, in that case the Marshal must justify himself, not under the order, but his personal right to remove a nuisance. But investigations, reports, and decisions of Congress were dangerous. It was safer to be his own judge, to seize boldly, and put the public on the defensive. He seizes the ground he claims, and refers his title to no competent tribunal. When ousted, according to the injunctions of the statute, and repossession taken on behalf of the U. S. he passes by the preparatory tribunal of the Commissioners, and endeavors to obtain a decision on his case by Congress, in the first instance: in this too he has been disappointed. Congress have maintained the ground taken under the statute; and Mr. Livingston now demands the value of the lands from the magistrate on whom devolved the duty of executing the statute.

[Sidenote: Recapitulation.]

Taking now a brief review of the whole ground we have gone over, we may judge of the correctness of the decision of the Cabinet, as to their duty in this case. I trust it will appear to every candid and unbiassed mind, that they were not mistaken in believing

That the Customs of Paris, the Ordinances of the French
government, the Roman law as a supplement to both, with the
special acts of the Spanish and American legislatures, composed
that system of law which was to govern their proceedings.

That, were this a case of Alluvion, the French law gives it to
the Sovereign in all cases; and the Roman law to the private
holder of _rural_ possessions only.

That Bertrand Gravier had converted his plantations into a
fauxbourg, and appendage of the city of New-Orleans; with the
_previous_ sanction of the Spanish government, according to
his own declarations, by which those claiming under him are
as much bound, as if made by themselves; and certainly by its
_subsequent_ formal recognitions, and confirmations, which
acted retrospectively; and the character of the ground being
thus changed from a Rural to an Urban possession, the Roman
law of Alluvion does not act on it. Recapitulation.

[Sidenote: 71*]

That even had his ground retained its _rural_ character, and
admitting that the grant to him '_face au fleuve_' conveyed
the lands to the water's edge, his sales, '_face au fleuve_'
conveyed to his* purchasers the same right which the same terms
had brought to him, and they, and not the plaintiff, now hold
the rights of B. Gravier, whatever they were.

That John Gravier having elected to take the estate as a
purchaser by inventory and appraisement, the Batture, if
Bertrand's, was not in that inventory, nor consequently
purchased by John Gravier.

That the deed from him to De la Bigarre was fraudulent and void,
as well by the _lex loci_, as on the face of the transaction.

That the decision of the court in his favor could in no wise
concern the United States, who were neither parties to the
suit, nor amenable to the jurisdiction.

And, consequently, that under all these views of the French
law: the Roman law, the conveyances '_face au fleuve_,' the
purchase by inventory, and the fraudulency of the deed to
Bigarre, the plaintiff's claim is totally unfounded. And, if
void by any one of them, it is as good as if void by every one.

But it has appeared further that the batture had not a single
characteristic of alluvion:

That the _bank_ of a river is only what is above the high
water mark:

That all below that mark is _bed_, or alveus, of which the
batture is that portion between the high and low water mark,
which we call the _beach_:

That it serves, as other beaches do, for a port while covered,
and Quai uncovered: and it is the only port in the vicinity
of the city which river craft can use.

That, as a part of the _bed_ of the river, it is purely public
property.

That it is not lawful for an individual to erect, on either
the bed or bank of a river, any works which may affect the
convenience of navigation, of the harbor or Quai, or endanger
adjacent proprietors on either side of the river.

That though it is permissible to guard our own grounds against
the current of the river, yet, so only, as to be consistent
with the convenience and safety of others.

That of this the legal magistrates are to be judges in the first
instance; but even _their_ errors are to be guarded against
by an indemnification for all damages which shall actually
accrue to individuals within a given time.

[Sidenote: 72*]

That Mr. Livingston's works, in a single flood, had given
alarming extent, both in breadth and height, to the batture:
had turned the efforts of the river against the lower suburbs,
and habitations, not before exposed to them; that they would
deprive the public of what was their Quai in low water, and
harbor* in times of flood: that, by narrowing the river one
fourth, it must raise it in an equivalent proportion, to
discharge its waters: that this would sweep away the levée,
city, and country, or quadruple the bulk of the levée, and
the increased danger to which that would expose it: and,
even then, would infect the city, by the putridity of the new
congestions, with pestilential diseases, to which its climate
is already too much predisposed.

That Mr. Livingston was doing all this, of his own authority,
without asking permission from the public magistrate, or giving
any security for the indemnity of injured citizens:

That under the pressure of these dangers, the Executive of
the nation was called on to do his duty, and to extend the
protection of the law to those against whose safety these
outrages were directed:

And that the authorities given by the laws, 1. For preventing
obstructions in the beds, or banks of rivers, 2. For re-seizing
public property intruded on; and 3. For removing intruders
from it by force, were adequate to the object, if promptly
interposed.

[Sidenote: Orders of the Government.]

[Sidenote: Proceedings under them.]

[Sidenote: 73*]

On duly weighing the information before us, which though not as ample as has since been received, was abundantly sufficient to satisfy us of the facts, and has been confirmed by all subsequent testimony, we were all unanimously of opinion, that we were authorized, and in duty bound, without delay, to arrest the aggressions of Mr. Livingston on the public rights, and on the peace and safety of the city of New-Orleans, and that orders should be immediately dispatched for that purpose, restrained to intruders since the passage of the act of March 3. The Secretary of State accordingly wrote the letter of Nov. 30, to the Governor, covering instructions for the Marshal to remove immediately, by the civil power, any persons from the batture Ste. Marie, who had taken possession since the 3d of March, and authorising the Governor, if necessary, to use military force; for which purpose a letter of the same date was written by the Secretary at war to the commanding officer at New-Orleans. This force however was not called on. The instructions to the Marshal were delivered to him about 9 o'clock in the morning of the 25th of Jan. 1808. [Dorgenoy's letter to the Governor] He immediately went to the beach, and ordered off Mr. Livingston's laborers. They obeyed, but soon after returned. On being ordered off a second time, the principal person told him that he was commanded by Mr. Livingston not to give up the batture until an adequate armed force should compel him. And, in the mean time, Mr. Livingston had procured, from a single judge of the superior court of the territory,* an order, purporting to be an injunction, forbidding the marshal to disturb Edward Livingston in his possession of the batture, under pain of a contempt of court. The marshal, placed between contradictory orders, of the national government as to the property of the nation, and a territorial judge without jurisdiction over it, obeyed the former; collected a posse comitatus, ordered off the laborers again, who peaceably retired; and no further attempts were afterwards made to recommence the work.

[Sidenote: Chancery Jurisdiction.]

[Sidenote: 74*]

I have said that the marshal received an order, purporting to be an injunction. An authoritative injunction it could not be; because that is a Chancery process, and no Chancery jurisdiction has been given by any law to the superior court of that territory. Its judges were first established by the act of Congress of 1804. c. 38. with commissions for four years, and certain specified powers, which it is unnecessary to state, because an act of March 2, of the next year, c. 83. established, in that territory, 'a government in all respects similar to that exercised in the Missisipi territory,' which government had been established by an act of 1798. c. 5. 'in all respects similar to that in the territory North-west of the Ohio.' So that we are to find all their powers in the Ordinance of 1787, for the North-Western territory, in which are the following words. 'There shall be appointed a court to consist of three judges, any two of whom to form a court, who shall have _a common law jurisdiction_, and their commissions shall continue in force during good behavior.' And again 'The inhabitants of the said territory shall always be entitled to the benefits of the writ of _Habeas corpus_, and of the trial by jury.' New commissions were accordingly given to the judges appointed under the first law, and, instead of their former powers, they were now to have _a common law jurisdiction_. By these words certainly no _chancery jurisdiction_ was given them. Every one knows that common law jurisdiction is a technical term, used in contradistinction to a chancery jurisdiction, and exclusive of that, the common law ending where the chancery begins. The one authority is here given, and therefore they have it; the other is not given, and therefore they have it not. For they have no authority but that which is given by the legislature. If they have not chancery powers, then, by this law, there remains but one other source from which they can legally derive it. The act of 1804 before mentioned § 11, says, 'the laws in force in the said territory, at the commencement of this act, and not inconsistent with the provisions thereof, shall continue in force until altered, modified, or repealed by the legislature.' We have seen that the laws in force were the French and Roman, with perhaps some occasional Spanish regulations. It being perfectly understood that these were not meant to be included in the *change, it follows that the term _common law_, when applied to this territory, must be equivalent to the common law of that land, or the law of the land. Was then the establishment of the French and Roman laws an establishment of the chancery system of law? Will it be said that the Roman and Chancery laws, for instance, are the same? That the _civil law_, and the _chancery_ are synonymous terms, both meaning the same system? Nobody will say that. The system of chancery law is partly concurrent, but chiefly supplementary and corrective of that of the common law. It sometimes corrects the harshness of the letter, where that includes what was not intended. It gives remedies in certain cases where that gave none, and more perfect remedies in other cases. It is adapted to the common law as one part of an indenture is to its counterpart. It is formed to tally with that in all its prominences and recesses, its asperities and defects, and with no other body of law on earth. It consists of a set of rules and maxims, modified by the English Chancellors thro' a course of several centuries, derived from no foreign model, but contrived to reduce specifically the principles of common law to those of justice. The Roman law has something similar in its _Jus Prætorium_, where the discretion of the Prætor was permitted to mollify and correct the harshness of the _leges scriptæ_. But to apply the _Jus Prætorium_ to our common law, or our chancery to the _leges scriptæ_ of the Romans, would be to apply to one thing the tally of another, or to mismatch the parts of different machines, so as to render them inconsistent and impracticable. Our chancery system is as different from the civil, as from the common law. All systems of law indeed profess to be founded on the principles of justice. But the superstructures erected are totally distinct. The chancery then being a system clearly distinct from that of the French and Roman laws, it cannot be said that the legislature of the U. S. by establishing the French and Roman laws in Orleans, established there the chancery system. It will not be pretended that the process of _subpœna_, used in the present case, and the sole and peculiar original process of chancery, is a civil law process. It is known to have been the invention of Waltham, Chancellor of Richard II. founded on the statute of Westminster the 2d c. 24. giving writs _in consimili casu_.

[Sidenote: 75*]

[Sidenote: 76*]

Might it be urged (for I am really at a loss to conjecture on what grounds this power has been assumed) that possessing under the act of '04, the powers of the chancery combined with those of the French and Roman laws, the subsequent act which gave them a common law jurisdiction, did not take away the others? _In totidem verbis_ it did not, but in effect it did completely, by changing the government into one in all respects similar to that in the Missisipi territory, where there was no chancery jurisdiction. Moreover, there is not a word in the act of '04, which gives them *chancery jurisdiction. It says, 'they shall have jurisdiction in all criminal cases, and original and appellate jurisdiction in all civil cases of the value of 100 dollars, and the laws in force at the commencement of this act shall continue in force.' Here then is their jurisdiction, and the particular system of law according to which they are to exercise it, and the chancery made no part of that system. This argument too would suppose that to the French, the Roman, the Spanish, and the Chancery laws, the common law was also added. This would be an extraordinary spectacle, indeed, and the imputation of such an intention would be an insult to the legislature. Their laws have always some rational object in view; and are so to be construed, as to produce order and justice. But this construction, establishing so many systems, and these inconsistent and contradictory, would produce anarchy and chaos, and a dissolution of all law, of all rights of person or property. And what would be the consequences of carrying on a system of chancery concurrent with the French and Roman laws? A case is brought, for instance, into their court of chancery. I ask the honorable judges, is the law of chancery in this case, the same as the civil law? If the same, what need of calling in the system of chancery? If different, will you decide against the law established by the legislature? If you carry on two systems, the one of which, in any case, gives a right to A. and the other to B. the suitor who covets his neighbor's property needs only to chuse that court, the rules of which will give it to him. Thus all rights will be set afloat between two opposite systems. The wisdom of the legislature therefore has been as sound in not giving a chancery jurisdiction concurrently with the civil law, as the judges have been ill-advised in usurping it. And have they adverted to the national feelings, when they have ventured, on their own authority, to abolish the trial by jury pledged by the Ordinance to the inhabitants forever? Whoever wishes to take from his opponent the benefit of this trial, has only to bring his suit in the court of chancery. In this very case, on which the well-being of a great city is suspended, no jury was called in. The judges took upon themselves to decide both fact and law; aware, at the same time, that a jury could not have been found in Orleans, which would not have given a contrary decision. I shall not ascribe either favoritism, or intentional wrong to them: but they ought not to be surprised, if those do whose interests and safety are so much jeopardised by this shuffle of the judges into the place of the jury. It is much regretted that these respectable judges have set such an example of acting against law. It will be more regretted if they do not, by the spontaneous exertion of their own good sense and self-denial, tread back their steps, and perceive that there is more honor and magnanimity in correcting, than *persevering in an error. They had before them too the example of their neighbors, of the Missisipi territory, whose government was expressly made the model of theirs. Their judges, like themselves, entitled to common law jurisdiction only, and sensible it needed the mollifying hand of the chancery, did not think the assumption of it within their competence. The territorial legislature therefore invested them with the jurisdiction. The Judiciary power of the Indian territory modelled by the same Ordinance, was enlarged in like manner by the local legislature. And yet the Orleans territory, least of all needed the aid of a Chancery, as possessing already a corresponding corrective, well adapted to the body of their law, to which the system of Chancery was entirely inapplicable.

Although I had before noted, pages 16, 68. that the decree of this court was a nullity as to the United States, 1. Because they were not a party, nor amenable to their tribunal; 2. Because also it was on a subject over which they had no jurisdiction, I have thought it useful to prove it a nullity; 3dly. Because the result of a process, and a course of pleading and trial belonging to a court whose powers they do not possess by law, in which course of action the law considers them as mere private persons, is entitled to the obedience of no one. I have done this the rather because it has been seized as a ground of censure on the Executive, as violating the sanctuary of the judicial department, and of inculpating the Marshal, who, placed between two conflicting authorities, had to decide which was legitimate, and decided correctly, as I trust appears, in obeying that which ordered him to remove the plaintiff from an usurped possession.

[Sidenote: Act of territorial Legislature.]

The territorial legislature, three weeks after, took up the subject, and passed an act prescribing in what manner riparian proprietors should proceed, who wished to make new embankments in advance of those existing. This gave to Mr. Livingston an easy mode of applying for permission to resume his enterprise; and had he obtained a regular permission, certainly it would have been duly respected by the National Executive. On the 1st of March I received from Governor Claiborne a letter of Jan. 29. informing me of the execution of our orders, and covering a vote of thanks from the legislative council and House of Representatives of Orleans, for our interposition: and on the 7th of the same month, I laid the case before Congress by the following message.

[Sidenote: Message to Congress.]

[Sidenote: 77*]

'To the Senate and House of Representatives of the United States. In the city of New-Orleans and adjacent to it are sundry parcels of ground, some of them with buildings and other improvements on them, which it is my duty to present to the attention of the legislature. The title to *these grounds appears to have been retained in the former sovereigns of the province of Louisiana, as public fiduciaries, and for the purposes of the province. Some of them were used for the residence of the Governor, for public offices, hospitals, barracks, magazines, fortifications, levées, &c. others for the town house, schools, markets, landings, and other purposes of the city of N. Orleans. Some were held by religious corporations, or persons; others seem to have been reserved for future disposition.

To these must be added a parcel called the batture, which requires more particular description. It is understood to have been a shoal, or elevation of the bottom of the river, adjacent to the bank of the suburb St. Mary, produced by the successive depositions of mud during the annual inundations of the river, and covered with water only during those inundations. At all other seasons it has been used by the city, immemorially, to furnish earth for raising their streets, and court yards, for mortar and other necessary purposes, and as a landing or Quai for unlading firewood, lumber, and other articles brought by water. This having lately been claimed by a private individual, the city opposed the claim on a supposed legal title in itself: but it has been adjudged that the legal title was not in the city. It is however alleged that that title, originally in the former sovereigns, was never parted with by them, but was retained by them for the uses of the city and province, and consequently has now passed over to the U. S. Until this question can be decided under legislative authority, measures have been taken according to law, to prevent any change in the state of things, and to keep the grounds clear of intruders. The settlement of this title, the appropriation of the grounds and improvements formerly occupied for provincial purposes to the same, or such other objects as may be better suited to present circumstances; the confirmation of the uses in other parcels to such bodies corporate, or private, as may of right, or on other reasonable considerations, expect them, are matters now submitted to the determination of the legislature. The paper and plans now transmitted, will give them such information on the subjects as I possess, and, being mostly originals, I must request that they may be communicated from the one to the other house, to answer the purposes of both. TH: JEFFERSON. _March 7, 1808._'

[Sidenote: Removal of the case before them.]

[Sidenote: 78*]

This removal of the case before Congress closed the official duties of the Executive, and his interference respecting these grounds: except that the attorney of the United States for the district of Orleans having given written permission to the inhabitants to use the batture as before, this, on the application of Mr. Livingston, was directed to be withdrawn by a letter from the Secretary of State, of Oct. 5. '09. This was correct. It placed the inhabitants exactly *on their former footing, without either permission or prohibition on the part of the National government.

The _possession_, the only charge of the Executive, was now cleared from intrusion, and restored to its former condition: and the question of title committed to the Legislature, the only authority competent to its decision. If they considered the ground taken by the Executive as incorrect, their vote, or their reference of the case to Commissioners, would correct it: and as to damages, if any could justly be claimed, they were due, as in other cases, not from the judge who decides, but the party which, without right, receives the intermediate profits. If, on the other hand, Congress should deem the public right too palpable, (as to me it clearly appears,) and the claim of the plaintiff too frivolous, to occupy their time, they would of course pass it by. And certainly they might as properly be urged to waste their time in questioning whether the beds of the Potomak, the Delaware, or the Hudson, were public or private property, as that of the Missisipi. Their refusing to act on this claim therefore for five successive sessions, though constantly solicited, and their holding so long the ground taken by the Executive, is an expression of their sense that the measure has been correct.

[Sidenote: Responsibility of a public functionary.]

[Sidenote: 79*]

[Sidenote: 80*]

I have gone with some detail into the question of the plaintiff's right, because, however confident of indulgence, in the case of an honest error, I believed it would be more satisfactory to show, that in the exercise of the discretionary power entrusted to me by Congress, a sound discretion had been used, no act of oppression had been exercised, no error committed, and consequently no wrong done to the plaintiff. I have no pretensions to exemption from error. In a long course of public duties, I must have committed many. And I have reason to be thankful that, passing over these, an act of duty has been selected as a subject of complaint, which the delusions of self interest alone could have classed among them, and in which, were there error, it has been hallowed by the benedictions of an entire province, an interesting member of our national family, threatened with destruction by the bold enterprise of one individual. If this has been defeated, and they rescued, good will have been done, and with good intentions. Our constitution has wisely distributed the administration of the government into three distinct, and independent departments. To each of these it belongs to administer law within its separate jurisdiction. The judiciary in cases of _meum_ and _tuum_, and of public crimes; the Executive, as to laws executive in their nature; the legislature in various cases which belong to itself, and in the important function of amending and adding to the system. Perfection in wisdom, as well as in integrity, is neither required, nor expected in these *agents. It belongs not to man. Were the judge who, deluded by sophistry, takes the life of an innocent man, to repay it with his own; were he to replace, with his own fortune, that which his judgment has taken from another, under the beguilement of false deductions; were the Executive, in the vast mass of concerns of first magnitude, which he must direct, to place his whole fortune on the hazard of every opinion; were the members of the legislature to make good from their private substance every law productive of public or private injury; in short were every man engaged in rendering service to the public, bound in his body and goods to indemnification for all his errors, we must commit our public affairs to the paupers of the nation, to the sweepings of hospitals and poor-houses, who, having nothing to lose, would have nothing to risk. The wise know their weakness too well to assume infallibility; and he who knows most, knows best how little he knows. The vine and the fig-tree must withdraw, and the briar and bramble assume their places. But this is not the spirit of our law. It expects not impossibilities. It has consecrated the principle that its servants are not answerable for honest error of judgment. 1. Ro. Abr. 92. 2 Jones 13. 1 Salk. 397. He who has done this duty honestly, and according to his best skill and judgment, stands acquitted before God and man. If indeed a judge goes against law so grossly, so palpably as no imputable degree of folly can account for, and nothing but corruption, malice or wilful wrong can explain, and especially if circumstances prove such motives, he may be punished for the corruption, the malice, the wilful wrong; but not for the error: nor is he liable to action by the party grieved. And our form of government constituting its respective functionaries judges of the law which is to guide their decisions, places all within the same reason, under the safeguard of the same rule. That in deciding and acting under the law in the present case, the plaintiff, who may think there was error, does not himself believe there was corruption or malice, I am confident. What? was it my malice or corruption which prompted the Governors and Cabildoes to keep these grounds clear of intrusion? Did my malice and corruption excite the people to rise, and stay the parricide hand uplifted to destroy their city, or the grand jury to present this violator of their laws? Was it my malice and corruption which penned the opinion of the Attorney General, and drew from him a confirmation, after two years of further consideration, and when I was retired from all public office? Was it my malice or corruption which dictated the unanimous advice of the heads of departments, when officially called on for consultation and advice? Was it my malice and corruption which procured the immediate thanks of the two houses of legislature of the territory of Orleans, and a renewal of the same thanks *for the same interference, in their late vote of February last? Has it been my malice and corruption which has induced the national legislature, through five successive sessions, to be deaf to the doleful Jeremiads of the plaintiff on his removal _from his estate_ at New Orleans? Have all these opinions then been honest, and mine alone malicious and corrupt? Or has there been a general combination of all the public functionaries Spanish, French, and American, to oppress Mr. Livingston? No. They have done their duties, and his Declaration is a libel on all these functionaries. His counsel, indeed, has discovered [Opinions LXXIV] that we should have had legal inquests taken, writs of enquiry formed, prosecutions for penalties, with all the _et cæteras_ of the law. That is that we should be playing push-pin with judges and lawyers, while Livingston was working double tides to drown the city. If a functionary of the highest trust, acting under every sanction which the constitution has provided for his aid and guide, and with the approbation, expressed or implied, of its highest councils, still acts on his own peril, the honors and offices of his country would be but snares to ruin him. It is not for me to enquire into the motives of the plaintiff in this action. I know that his understanding is of an order much too high to let him believe that he is to recover the value of the batture from me. To what indirect object he may squint with one eye, while the other looks at me, I do not pretend to say. But I do say, that if human reason is not mere illusion, and law a labyrinth without a clue, no error has been committed: and recurring to the tenor of a long life of public service, against the charge of malice and corruption I stand conscious and erect.

TH: JEFFERSON.
MONTICELLO, July 31, 1810.

For Mr. Livingston's Answer, see Hall's American Law Journal,
Vol. 5, p. 113, of the Baltimore edition of 1814.

FOOTNOTES:

[82] He says, February, 1804. See address.

[83] Thierry.

[84] Notar. copy, Gravier to Bigarre.

[85] Lafon, in his map of New Orleans, says expressly that the
Missisipi, at the city, is uniformly of the breadth of
300 toises only.--_MS. Note._

[86] Rep. 19.

[87] Monile's affidavit, MS.

[88] These are French measures: add a fifteenth to make them
ours.