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and City Council, gave a concurrent power to the parish judge, and a jury of 12 riparians: and without dispensing with the security required by the existing law, adds penalties against contraveners.
And surely it is the territorial legislature, which not only has the power, but is under the urgent duty, of providing regulations for the government of this river and its inhabitants, regulations adapted to their present political regulations, as well as to the peculiar character and circumstances of the river, and the adjacent country. Their power is amply given in the act of Congress of 1804. c. 38. §. 11. The laws in force in the said territory at the commencement of this act, and not inconsistent with the provisions thereof, shall continue in force, until altered, modified, or repealed by the legislature. $. 4. The Governor, by and with advice and consent of the said legislative council, or of a majority of them, shall have power to alter, modify, and repeal the laws which may be in force at the commencement of this act. Their legislative powers shall extend to all the rightful subjects of legislation ;' with special exceptions, none of which take away the authority to legislate for the police of the river. And if ever there was a rightful subject of legislation, it is that of restraining greedy individuals from destroying the country by inundation.
And here it must be noted that Mr. Livingston's works were arrested by the Marshal and posse comitatus, by an
Suspension of order from the Secretary of State on the *25th of January 1808, and on the 15th of the ensuing month, the legislature took the business into the 63* hands of their own government, by passing this act. From this moment it was in Mr. Livingston's power to resume his works, by obtaining permission from the legal authority. The suspension of his works therefore by the general government was only during these 21 days.
That Mr. Livingston's works were clearly within the interdict of the Roman the French, and the Spanish laws, which forbid the extending a mole into the water, constructing in it mills,
floodgates, canals, towers, houses, cabins, fisheries, stakes or other
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-Praetorian 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 suppress
ion.* 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. Flam 64* mis 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 oil 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.
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 wirich they have since appeared, but sufficiently manifested to show that an atrocious enterprise was in a course of execution, which it 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, authorised by the laws, and prompt enough to arrest the mischief?
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
And as the obstructing a high way 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 oil a part of its water, to ob struct 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 sin
free to pass.
gular if, what every man may, or may not do, at his pleasure, the magistrate who is sworn to see the law executed, and is charged with the care of the public property and rights, is alone prohibited from doing; or if his order should vitiate an act which without it would have been lawful, or which he might have executed in person.
It would be equally singular, and equally absurd, that the law should punish the magistrate for hindering Mr. Livingston from doing what itself had forbidden and would
punish, and reward him with damages for having been *65 restrained *from what they had forbidden him to do.
The law makes it a duty in a bystander to lay hands on a man who is beating another in the street, and to take him off. And yet it is proposed that the same law shall punish him for taking off one who was engaged, not in beating a single individual, but in drowning a whole city and country. This is not our law ; it is not the law of reason; and I am persuaded it is no part of a system emphatically called ratio scripta. If it is, let the law be produced. Until it is, we hold every man authorised to stay a wrongdoer, in the commission of a wrong, in which himself and all others are interested. 2. By nature's law, every man has a right to seize and retake
by force, his own property, taken from him by an
other, 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. c. 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 If a disseisin has been commitet principale competit remedium ted, a first and principal remedy quod ille qui ita disseisitus est, per lies, that he who has been so disse, si possit, vel sumptis viribus, seised, by himself, if he can, or takvel resumptis (dum tamen sine ali- ing force, and retaking, (provided quo intervallo, flagrante disseisinâ et it be without any interval, the dismaleficio) rejiciat spoliantem. Quem seisin and wrong being yet flasi nullo modo expellere possit, ad grant,) may eject the spoliator. superioris auxilium erit recurren Whom, if he can by no means exdum. Si autem verus possessor pel, resort is to be had to the asabsens fuerit, tunc locorum distan- sistance of a superior. But if the tia distinguere oportebit, secundem rightful possessor were abquod fuerit propè vel longè, quo sent, then, regard must *be 66* tempore viz. scire potuit disseisinam had to the distance of the esse factam, ut sic, allocatis ei ra- places, according as it was near or tionabilibus dilationibus, primo die far off, at what time, for instance, cum venerit, statim suum dejiciat he could know that a disseisin had disseisitorem ; qui, si primo die, non been committed, that so, reasonable possit, in crastino, vel die tertio vel delays being allowed him, on the ulterius, dum tamen sine fictitiâ, first day when he comes, he may hoc facere poterit, vires sibi resum- immediately eject the disseisor, endo, arma colligendo, auxiliumque which if he cannot do on the first amicorum convocando.' Fleta L. 4. day, he may on the morrow, or
And Braeton L. 4. c. 6. in third day, or later, provided howalmost totidem verbis ; aud Britton ever he do it without false pretences, le premer remedie pour disseisine by taking to himself force, colest al disseisi de recollier amys et lecting arms, and calling in the aid force et sauns delay faire (après ceo of his friends.' And Bracton L. 4. que il le purra saver) engetter les c. 6. almost in the same words; disseisours.' Britton c. 44.
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.'