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This right, as to real property, was first restrained in England by a statute of the 5. R. 2. c. 7. which forbade entry into lands with strong hand ; and another of the same reign, 15. R. 2. c. 2. authorized immediate restitution to the wrong doer, put out by forcible entry. And even at this day, in an action of trespass, for an entry, vi et armis, if the defendant makes good title, he is maintained in his possession, and the plaintiff recovers no damages for the force. Lambard 2. 4. Hawk. P. C. 1. 64. 3. And in like manner, the natural right of recaption by force still exists, as to personal goods, and the validity of their recaption. Hawk. 1. 64. 1. Kelway 92. is express. Blackstone, indeed, 3. 1. 2. limits the right of recaption to a peaceable one, not amounting to a breach of the peace ; meaning, I presume, that the recaptor by force may be punished for the breach of the peace. So may the defendant in trespass for an entry vi et armis. Yet in an action of detinue for the personal thing retaken by force, the first wrong doer cannot recover it, nor damages for the recaption, any more than in the case of trespass for lands. So that to this day the law supports the right of recaption, as between the parties, although it will punish the public offence of a breach of the peace.
When this natural right was first restrained among the Romans, I am not versed enough in their laws to say. It was not by the laws of the XII tables, which continued *long their only laws. From the expression
67* 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 pros * By the Imperial constitutions it pectum est, ut nemini liceat vi rap- is provided that no one shall take cre vel rem mobilem, vel se mov- by force a thing either moveable, entem, licet suam eandem rem or moving, although he considers existimat. Quod non solum in it as his own. Which the constitumobilibus rebus, quæ rapi possunt, tions have ordained to take place, constitutiones obtinere censuerunt, not only in moveable things, which sed etiam in invasionibus, quæ circa may be taken, but also in intrusions res soli fiunt.'
which are made into lands.
But I believe that no nation has ever yet restrained itself in the exercise of this natural right of reseising its own possessions, or bound up its own hands in the manacles and cavils of litigation. It takes possession of its own at short hand, and gives to the private claimant a specified mode of preferring his claim. There are cases, of particular circumstance, where the sovereign, as by the English law, must institute a previous inquest : but in general cases as the present, he enters at once on what belongs to his nation. This is the law of England. · Whenever the king's [i. e. the nation's) title appears of record, or a possession in law be called upon him by descent, escheat, &c., he may enter without an office found : for if his title appear any way of record, it is as good as if it were found by office : and if any one enter on him, even before his entry made, he is an intruder; he cannot gain any freehold in the land, nor does he put the king to an assize or ejectment, or take away his right of entry : for he cannot be disseised but by record. Stamford. Prærogativa regis. 56. 57. Com. Dig. Prærog. D. 71. the substance of the authorities cited.
What are the prescriptions of the Roman law in this case, I do not know; nor are they material but inasmuch as they may be the law of the case in Louisiana. A Spanish law before cited, p. 55. forbidding erections on the beds, or on the banks of rivers, says expressly, 'si alguno lo ficiese debe ser deribado.' 'If any one does it, it is to be destroyed. And the constant practice of the Governors of demolishing such erections was the best evidence of the law we could obtain. Not skilled in their laws ourselves, we had certainly a right to consider the Governor and Cabildo as competent expositors of them, and as acting under their justification and prescription. We might reasonably think ourselves safe *in their opinions of their own law.
69* 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 be
Squatters. fore us too the example of many of the states, and of the general government itself, which have never hesitated to re
move by force the Squatters and intruders on the public lands.* 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 com.
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
Squatters or Intruders on the public or Indian lands were repeatedly removed by the state of Virginia, before its cession to Congress, by the old Congress, (see Journ. 15 June 1785,) by the present government at various times, and, as is believed, by other individual states on the ground of natural right only. MS. Note.
When it results
Act of Congress.
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.
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
69* 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 óceded 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 coun
sel seems to intimate, Opinions LXVII. that this *70 was a remitter to him of the ancient possession *of
Bertrand Gravier, I answer that it was no remitter against any one, because the case was corim 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