might, on payment of the money, force him to convey. Therefore, no one but Gravier could sue.

But why was not the deed made in legal form? Why take a private deed, when a public act was necessary to convey the property? The reason is obvious: the owner would give no other. Mr. Delabigarre had not been two months in the country at the time of the purchase; his resources were unknown; it was therefore thought most prudent by Gravier, to make no definitive sale until one of the payments should be made. It is, I believe, no uncommon transaction in this or any other part of the United States, to make covenants for giving a title, on the payment of the price or a part of it; and this, though in terms a sale, yet legally amounted to nothing more. A conclusive proof that neither concealment nor impropriety was intended, is, that the transaction is stated by Gravier, in his petition against the corporation, wherein after alleging the disturbances of which he complains, he says "by reason whereof persons who have contracted for the purchase of parts of this land, refuse to pay." And this petition I drew, and signed as his counsel. Now it is inconceivable, that a man of common prudence, directed by a counsellor of common skill, would, if they were conscious of illegality or crime, furnish the evidence of it on record; and still more inconceivable, that the court to whom the petition was addressed, should not immediately punish so open a violation of the laws.

But there was no illegality. Neither the statute of Henry 8., to which Mr. J. refers, nor the text of the Roman law, forbid the purchase of any land of which the seller is in possession, although it should be known there are adverse claims. If it were so, it would be an offence to buy lands in a very great proportion of the state of North-Carolina, on account of lord Grenville's claim; in the Mississippi territory, on account of the English grants; in Kentucky, where, as I am informed, two, three, and sometimes four patents have issued under the state of Virginia, for the same land; and in every part of the state of Louisiana, where the titles are unconfirmed by congress. If this monstrous doctrine were true, every purchaser of a farm would be guilty of this crime, if the boundary between him and his neighbours was unsettled, although the person from whom he bought were in possession.

But what possession is necessary to justify a purchase? Clearly such a one as consists with the nature of the property sold; if of a house or other improved estate, actual occupation, or receipt of the rents and profits; but if uncultivated lands, nothing is required but that there be an ostensible title, and no acknowledged adverse possession. How often do we find the opposite claimants of tracts of uncultivated land selling their titles by regular conveyances without having ever seen the estate. Yet, who ever heard of a prosecution under this or a similar statute in such a case?

The proprietor of a farm, with a private road running through it, sells the soil of the road, and opens another equally conveninient for those who have the right of way. He has never had any other possession of the road than that which all his neighbours have had, yet it is not selling a pretended title; the soil belongs to him, and he had that constructive possession which alone is consistent with the nature of the property.

To apply this to the present case: the public have a right to the use of the space between the levée and the edge of the water; (although, as will be clearly shewn in the course of this discussion, the soil remains in the proprietor of the adjacent land) until he incloses and protects it from the river;-'till then he has no exclusive right, and can no more interfere with the enjoyment of it by the public, than he could in the case put of the road; but neither in the one case nor in the other does it prevent his selling the property, subject to the right which the public have of enjoying it;—in the case of the road, until an equally convenient one shall be opened;-in the case of the batture, until the land shall be inclosed by a new levée, and when this is done, the right of public enjoyment will be restricted to the space between the new levée and the river.

John Gravier then succeeding, as has been shewn, to all the rights of his brother, the proprietor of the plantation, had a constructive possession of the part of it which lay between the levée and the river, in other words of the batture, he had the same possession which every proprietor of land on the river has to that part of it lying outside of the levée, and having this possession might sell it, without being guilty of any oflence. The purchaser, it is true, must take it subject to all the legal rights of the public. What these are will be shewn in another part of

the inquiry; here the only question is the legality of this purchase.*

But John Gravier had more than the constructive;-he had of a great part the actual exclusive possession, and was busied in the exercise of that right which the other proprietors had of advancing their levées nearer to the river. His ancestor had by public recorded acts, sold parcels of this very property to individuals ten years before. The purchaser, therefore, had a fair right to consider him as the true proprietor, even if he had notice of the claims of the corporation of New Orleans. As to those of the United States, no one ever heard of them until after the decision of the suit, and surely a sale in opposition to the claim of the city only, could not be called the sale of a pretended title, when that very claim is acknowledged by the parties who set it up, to have been a groundless one, by the repeated resolutions they have since passed declaring the title to be in the United States, and not as they contended on the trial, in the city.

The nature of the claim set up by the city, even if a suit had been pending relative to it, would not have rendered the sale illegal. It was the claim of a servitude or right of common, as we should call it in English, to dig sand and lay wood, &c. on the premises. The land might certainly be sold with the risk of this claim pending over it,—or the vendor might take the risk upon himself, and if it were established, might lawfully agree to rescind the sale.

The first agreement for a sale, it will be recollected, is for only two thirds of the land, and contains no other condition than that of paying the money on the part of the purchaser, and that of warranty on the part of the seller. The second is dated nearly two years after, and is for a larger portion of land, including the first. It contains other covenants, and the circumstances which had occurred, rendered them not only legal but

. Conformably to this reasoning is the text of the civil law. Rectè dicimus eum fundum TOTUM nostrum esse etiam cum ususfructus alienus est: cum ususfructus non dominii pars, sed servitutis sit: ut via, et iter. Dig. 50. 16. 25.— Now if the totum fundum as the text expresses it, be mine, although another have the usufruct or a right of way over it, surely I may dispose of this which is so emphatically termed all mine, and a fortiori, I may dispose of it when the usufruct, or the servitude is only claimed, but does not exist in reality.

prudent. The suit had since been commenced, it had been long protracted; if the corporation established the servitude or right of digging for which they contended, the land would be nearly useless to the purchaser. He had, therefore, a right to guar against that event, by stipulating, that in case it happened, the deed should be void. But, in fact, this stipulation did no more than the law would have done without it;-if the claim of the corporation had prevailed, the purchaser might by the civil law, either have rescinded the sale, or sought a compensation in damages, at his option;-and surely no covenant can be called criminal, which only enforces an acknowledged principle of law. I had, as I have said, no agency in this second deed, nor any other interest in defending the conduct of those who made it than that which is naturally excited, in hearing the memory of an unfortunate man, treated with unmerited obloquy and concontempt; a widow* bereft of reason, two infant children (one of them blind) deprived of their bread, are not enough!—the reputation of their father must be wantonly and unjustly destroyed before the vengeance of this just magistrate is complete.-Parties, witnesses, all who dare to complain of oppression, or to prove its existence, must be involved in one general proscription, that the public may cease to interest themselves in favour of men who are represented as so unworthy of their sympathy. But the device is too stale to succeed with an enlightened-too odious to be favoured by a generous nation; and the mixture of jocularity and oppression which it exhibits only convinces us, that the most hateful traits in the tyrants of antiquity may sometimes be found united with an affectation of republicanism, and of a regard for the rights of man.

While on this subject, let me assure the public, that Mr. Parisien, who is most facetiously called a joiner by trade, and a comedian by profession, and who it is most charitably insinuated, was suborned to bear false witness to a most unimportant fact, was a man while he lived, of respectability and worth.†--

The proceedings of the late president have actually produced this melancholy effect. The relict of the late Delabigarre is confined in a mad-house; his two daughters depend on the benevolence of relations.

It will hardly be believed that this serious charge should be made on hearsay only. Mr. J. never saw the testimony on which he comments with such severity. He has seen only an affidavit of a gentleman who says, that he was informed Parisien had given such testimony.

that Mr. Sigur, who is treated with the same levity,is one of the most ancient and respectable inhabitants of the country,and that proof of these facts will be found in the Appendix.* It is no excuse for Mr. J. that he has heard what he asserts,— he should be certain of its truth before he gives it the sanction of his name.

Having thus, as he supposed, excited a sufficient degree of prejudice against his opponent, Mr. Jefferson ventures, but by cautious approaches, on something like a justification of himself. We are first told that the judgment of the superior court in the suit with the corporation did not bind the United States;

and a page or two is gravely employed in proving, that none but parties or privies are bound by a judgment. This is undoubtedly true, and if the rage of making Latin quotations had not seized the author, he would without citing the Codex, have been content with my acknowledgment of it in my Address, p. 22, where I state that I sent on my Examination with a view to prevent the United States from ordering a suit. That acknowledgment and this admission, however, are both founded on the supposition, that the claim of the United States is one they have IN THEIR OWN RIGHT and for their owN USE;-but if, as I have since been convinced, those who made the claim on behalf of the United States, did it only as trustees for the original party in the suit, and for their benefit only, then, I say, though not nominal parties, they are bound.-Nor shall the party really interested avail itself of a concealment of the trust, in order to procure a double trial on the merits. This subject will be more fully developed in another part of the discussion. I proceed with the pamphlet.—Having established to his own satisfaction, that the United States were not bound by the proceedings in the suit which had been determined, the most natural course to be expected, would be for the president to institute one to which they should be a party; but this was too much in the common line. Mr. Jefferson did not like "playing at push-pin with judges and lawyers," as he very elegantly terms it; the forms of law were too slow to satisfy his eager desire to do justice. There had been a commotion among the people,—there had * See Appendix, No. II.

† Examination of the title of the United States to the land called the Batture, published afterwards with my address to the people of the United States, in the year 1808.