*13

of

beach of the river was the separate and exclusive property J. Gravier, clear of all public right to it's use? Let us hear the Governor, in answer to this question. In a letter to the Secretary of State of October 13, 1807, he says, "early after the arrival of Mr. Livingston in this territory, he became concerned in the purchase of a parcel of ground fronting the fauxbourg of this city, commonly called the batture, a property which had been occupied as a common by the city for many years previous, and the title to which, in the opinion of the inhabitants was unquestionable.' The day* of the arrival of Mr. Livingston in New Orleans, I do not know; but I recollect he was one of the earliest emigrants to that country, which was ceded to the United States on the 30th of October, 1803. We are told, [Rep. 11. Thierry 5.] it was proved by some oral testimony that J. Gravier began an inclosure of 500 feet square in that year, and completed it the next. The day *of beginning is not stated; but we may safely presume it was not while the French Governor thought the country belonged to his master, and most probably not till after the early arrival of Mr. Livingston.' This inclosure was demolished by an order of the Cabildo of Feb. 22, 1804. The next step was to make an ostensible deed, to an ostensible purchaser,‡ a Peter Bigarre. de la Bigarre, a brother emigrant of Mr. Livingston's from New-York; some old acquaintance. This was dated March 27, 1804, is expressed to be in consideration of 10,000 dollars, and conveys two undivided thirds of all that part or parcel of land, situate on the bank [sur la rive] of the river Missisipi, between the public road and the current of the said river, &c. with a warranty. I call the purchaser ostensible, because notwithstanding his pretended purchase, J. Gravier, on the 20th of October, 1805, [Rep. 1.] commenced a suit against the city, as proprietor of the whole, and the court adjudged him proprietor of the whole; and because the same J. Gravier, [Poydr. 3.] by a deed to the same P. de la Bigarre, in which no mention was made of the former, nor reference to it, conveys to him on the 14th Dec. 1806, the batture Ste. Marie, along the whole limits of this land, between the road and river, on con

เ

dition that he shall pay all expenses of the suit depending, with 50,000 dollars in addition; that the property shall remain unsold and hypothecated for the purchase money till paid, and that if the law-suit fails, the sale is void, and Bigarre to pretend to no damages for non-execution. It is observable here that neither buyer nor seller risked any thing. It was a mere speculation on the chance of a law-suit, in which they were to divide the spoils if successful, and to lose nothing if they failed.* It was by our law a criminal purchase of a pretensed title, 32. H. 8. 9. and equally criminal by the law of that territory, where I presume the provision of the Roman law is in force, 'qui improbè coeunt in alienam litem, ut quidquid ex condemnatione in rem ipsius redactum fuerit, inter eos communicaretur, lege Juliâ, de vi privatâ tenentur.' Dig. 47. 8. 6. 4 Blackst. 135. Whosoever shall take part in the suit of another, so that whatever shall be recovered by the judgment is to be divided between them, shall be subject to the Julian law de vi privata.' By which law, ib. tit. 7. § 1. they were to lose one third of their goods, and be rendered infamous. The deed was not only criminal on it's face, but was void by an express law of the territory, [a law of Governor Unzaga. Poydras 6. Rep. 25.] and so pronounced to be on the floor of Congress *by their representative, because not executed before either witnesses or notaries. It was kept secret from its date, till the day before judgment was pronounced, when the parties becoming apprised of the decision which was to be given, (for this was known at least on the 20th of May,) [Governor Claiborne's letter May 20, '07,] produced it, for the first time, to

Court.

14*

the Notary to be recorded. And the day after it's Decision of publication, the court, by the opinion of two members against one, [Examen 3.] adjudged the property wholly to the very man, who, if he had ever had any right, had conveyed away two thirds of it, before he brought his action, and the whole while it was pending. The alarm Alarm ocwhich this adjudication produced was immediate and great. The fact was notorious that, from the earliest to the latest extension of the beach, the public had had a free use of

casioned.

* 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.

it, as their Quai in low water, and in high water their port; and never before had their right been doubted by themselves, or questioned by the riparian possessors. If any fact was ever proved by human testimony, this is. Turn to the Pièces Probantes and out of 29 affidavits of the oldest and most respectable persons in the territory, men who had, most of them, borne offices under their former government, 21 of them uniformly declare that the public had ever been considered as having a right to the beach, as their port and Quai, that, as such, the Governors and Cabildo had the constant care and controul of it, had demolished buildings and inclosures erected on it, had, by public Ban, prohibited all erections or obstructions to it's use, had themselves erected a rampart, to inclose within it a chamber accessible for earth at high water for rebuilding the city after the fire, and had exercised uninterruptedly every other act of authority derived from the public rights; and 11 of them prove, as far as a negative can be proved, that the Graviers, till the change of government, and new views by Edward Livingston, had never pretended to more than the right of Common in it, and never had questioned that of the public, or the authority of the Governor and Cabildo over it. While they held the adjacent plantation indeed, they maintained the road and bank, as all rural proprietors are obliged by law to do: for here it is proper to observe, that pursuing the spirit of the Roman law, which prescribed that every one should maintain the public road along his own dwelling, construat vias publicas unusquisque secundum propriam domum.' Dig. 43. 10. 3. The lands in Louisiana were granted generally on a condition, (called in those laws a *servitude,) of furnishing ground for a public road, and of opening and maintaining that road. From which condition, however, they were released as to any portion of the ground which should afterwards become a town; the expense of roads or streets of that portion devolving then on the town itself. Accordingly B. Gravier, after establishing the front of his plantation into a suburb, and thus cutting off the residue from the road and river, being called on to repair the road by an order from Governor Carondelet, who seems at the moment not to

Servitude of road.

*15

6

have adverted to the change, Bertrand Gravier answered, that having sold the lots, faisant face au fleuve, fronting the river, he had abandoned the batture to the town, and that the road and levee could not be at his expense, the Governor, correcting himself at once, says, Gravier is right, all this is true,' and immediately, and ever after had the repairs made by the public. And the Graviers from that time stood discharged from these burthens on the same principle which had freed the original owners of the site of the city from maintaining the banks of the city. This is declared by an host of witnesses in the Pieces Probantes, and probably could have been declared by every antient inhabitant of the place. We are told indeed by Laroche and Segur, in their affidavit, [Livingston 66.] of Carondelet, and some other Governor asking leave of Gravier in 1795 and 1798, to deposit masts on the beach. If this be true, which Mr. Thierry, [p. 42.] who knew the witnesses, treats as ridiculous and absurd, it shows that they were forgetful, or inconsistent, or over complaisant; but not that Gravier required, or expected to be asked; and much less could it divest a public right, acknowledged from the earliest times, and essential to the commerce and existence of the city. An accurate discrimination indeed between the measure of right in the riparian proprietor while he held the adjacent farm, in the individuals of the nation as usufructuaries, and in the sovereign as their representative and trustee, as respectively apportioned to them by the law, seems not to have been attended to either by the citizens at large, or the adjacent proprietors. The riparian possessor appears to have been sensible he had some rights, without distinctly understanding what they were: but, whatever they were, he knew he had parted with them by the deeds establishing his fauxbourg. The citizens, in the daily habit of using without control the port and Quai, imagined themselves exclusive proprietors of it's soil, and came forward in that capacity, claiming, sometimes under some vague title which they did not define, and sometimes under the abandonment of right by Bertrand Gravier; the Sovereign, formerly their kings, but now the United States the legal holder of the public rights in the beds, beaches and banks of all navigable waters, seem not to have been thought of at all in the contest. The United States were no party to the suit;

16*

U. States

no party.

nor could they be, having made themselves amenable to no tribunal. Their property can never be questioned in any court, but in special cases in which, by some particular law, they delegate a special power, as to the boards of Commissioners, and in some small fiscal cases. But a general jurisdiction over the national demesnes, being more than half the territory of the United States, has never been by them, and never ought to be, subjected to any tribunal. Not adverting to this circumstance, however, the consternation in New-Orleans, on this decision, was like that of Boston, on the occlusion of their port by the Boston port bill. If we have not forgotton that feeling, we may judge what the citizens of New-Orleans felt on this decree of the court.

The governor instantly writes, [letter of May 20, '07.] ‘I understand that this morning an important cause has been determined, in which Edward Livingston was the real plaintiff, and the city defendant, as to the right of property to some lands in front of the fauxbourg, made by the river, and over which the city has heretofore exercised a right of ownership. My impression is that the United States are the legal claimants to it.' On the 21st of August, 1807, Mr. Derbigny's opinion was published, [Thierry 5.] and first brought into view the right of the United States, and that the sentence of the court must of course, as to them, be a mere nullity, 'res inter alios acta, quæque aliis non potest præjudicium facere.' A thing passing between others, and which to no others can do prejudice. Codex. 7. 60. And coming, with respect to the United States, under the provisions of the same code.

Tit. 56. Si neque mandasti fratri tuo defensionem rei tuæ, neque quod gestum est ratum habuisti, præscriptio rei judicatæ tibi non oberit: et ideò non prohiberis causam tuam agere, sine præjudicio rerum judicatarum.'

'If you have not committed to your brother the defence of your right, nor sanctioned what has been done, the plea rei judicate shall not bar you: and therefore you shall not be precluded from conducting your own cause, without exception from a former decision.'

Certainly the city council did not appear, nor pretend to appear, under authorization from the government of the United