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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.

Taking now a brief review of the whole ground we have gone over, we may judge of the correctness of the

Recapitulation. 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 gov

ernment, 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 proceed

ings. 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. That even had his ground retained its rural character, and ad

mitting that the grant to him face au fleuve conveyed the lands to the water's edge, his sales, fuce au fleuve' conveyed to his *purchasers the same right which the 71* 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 pur

chaser 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 ler loci, as on the face of the transaction. That the decision of the court in his favor could in no wise con

cern 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 plaintill'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 cha

racteristic 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 pro

perty. 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 adja

cent 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. That Mr. Livingston's works, in a single flood, had given alarm

ing 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 72* 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 giv

ing 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-scising public property intruded on; and 3. For removing intruders from it by force, were adequate to the object, if promptly interposed.

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 authorised, 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

38

Orders of the
Government.

VOL. VIII.

Proceedings under thein.

nccessary, 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, *73 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. I have said that the marshal received an order, purporting to

be an injunction. An authoritative injunction it Chancery could not be; because that is a Chancery process, Jurisdiction,

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 74* 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

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