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145 proof of its provisions. He makes no vain pretence of being deeply versed in a foreign system of laws, to which his studies had not been directed. Fortunate would it have been for me,
and honourable to the country, if others had rendered equal justice to their own ability to decide.
Mr. Jefferson, however, had no doubts, and his council, he
says, were unanimous. On this co-operation of the council, I shall only make this observation: that in all my inquiries, in all my correspondence on this subject, it was never hinted at; nor had I the slightest suspicion of the fact, until I saw it asserted in the publication before me. The member of that council who told me that the order was given in the execution of a personal duty devolved upon the president, in which he had not participated; that influential member of the cabinet, as well as others implicated in this charge of unanimity, owe it to themselves to deny the imputation. To me it is of little moment with whomsoever the measure originated, or whoever sanctioned it. I am prepared to shew, that it is illegal, unconstitutional and oppressive. All who have written on this subject in opposition to my claim, have acknowledged that by the laws of Spain, alluvions belong to the proprietors of the adjacent lands. It was necessary therefore to abandon this point, or to find out some system which would vest property of this description in the sovereign power. The inaccurate expressions of some French jurists, and the grasping provisions of some French edicts, together with the circumstance of this province having once been under the dominion of France, pointed out the jurisprudence of that country, and the laws of France were resorted to; with what success, may be determined by those who will take the trouble of refering to the former discussions of this subject, particularly to the learned arguments of Mr. Duponceau, in two publications, which still remain without refutation. Having repelled all the skirmishing attacks which have hitherto impeded our progress, we at length approach the body of Mr. Jefferson's defence. It consists of the following points: No. XVIII. T
I. That alluvions of navigable rivers, by the law of France, belong to the king, and that those of the Mississippi have been transferred, with the other sovereign rights, to the United States. II. That the right of alluvion accrues only to rural, not to urban possessions. III. That the property in question is not an alluvion, but part of the bed of the river, which belongs to the sovereign. IV. That the use I made of the property was dangerous to the safety of the city of New Orleans, and an infringement on the public right to navigate the river; that my works were a nuisance, and that the president had a right to abate it. In discussing these points, I feel an embarrassment from the reflection, that almost every thing I shall say has been anticipated, either in my own publications, or those of the learned counsellor and excellent friend, whose disinterested zeal has advocated my cause; and I cannot but admire the patient perseverance with which Mr. Jefferson consents to transcribe the oft repeated authorities, to rally the broken sophisms, and once more array in his service the ten times refuted arguments, which, at different periods, have been worn out in his defence. I will not, however, be outdone in the contest. I will revive the charge, as often as he shall choose to repeat the defence; nor will I cease to expose his oppression to the public, until I have an opportunity of arraigning him before another tribunal. I. Let us begin then with the first ground of defence, that alluvions of navigable rivers, by the laws of France, belong to the king, and that those of the Mississippi have been transferred with the other rights of sovereignty, to the United States. The Roman law, Mr. J. acknowledges, (p. 36) gave alluvions to the adjacent proprietors, as well as the sand-bars, shoals, islands, and even the bed of the river, when deserted; but the established laws of France, he contends, differed in all these particulars; and, as usual, Pothier is brought forward to bear the burthen of the contest. He is the only author of any reputation in France, who advances this doctrine; for Guyot, Ferriere, Denizart, and the author of the Title Jurisprudence, in the Encyclopedia, who are quoted by Mr. J. support, as I shall shew most expressly, the right of the adjacent proprietors. If Pothier is to be understood in the sense in which he is quoted, (which I must confess is the most obvious meaning of the passage) he is then contradicted by the venerable sages of French jurisprudence who preceded him, and is followed by no one writer of note. This is so extraordinary a circumstance, that I sought, by a reference to the context, to shew that he was guilty of an inaccuracy of expression, rather than an error in principle.* But if my attempt to
"On this passage of Pothier, I made the following observations in my Examination, pages 19 and 20: “The only remaining authority is that of Pothier. 1 “confess that the part cited, would lead the reader to suppose that this ** writer meant to decide the questido in all cases of navigable rivers; but ** a closer attention will perhaps discover an inaccuracy of expression, or an * error, unavoidable, in some instances, even by the most correct writer, “whose attention is turned to so many points as are embraced by the valua**ble work of Pothier.” “I apprehend that what is laid down here as a general proposition, appli“cable to all navigable rivers in France, is true as to those only, (and this “may be the case perhaps with the greater number) where the grants have “not been bounded by the river, but by a fixed front boundary. I believe so, “because if the doctrine of Pothier were understood in the unqualified sense “in which it is quoted, the other writers whom Ishall cite, and who all, without “exception, give a contrary opinion, would at least notice that of so celebrated “a writer, if they supposed it differed from theirs on so important a point. “I am also inclined to this solution from the passage which follows, in the “160th article, where he gives the reason why, by the Roman law, the alluvion “belonged to the adjoining proprietors.” “It was (says he) by a kind of right of accession, that, according to the “Roman law, the riparious proprietors had each one in his own right, the “property of the islands which were formed in the river, and even in its bed, “when the river abandoned it to take another course.” “The inheritances of these proprietors having towards the river an unlimit“ed extent, and having no other bound, but the river, and which comprehended “even the shores, and all which was not occupied by the river; the bed, which had “been covered, when it ceased to occupy it, was deemed to have made a part “of those inheritances, and to be an accession to them. It was the same thing “with respect to the islands which were formed in the river; these islands “being nothing else but a part of the bed of the river, which it had ceased to “occupy.” “By the French laws, the navigable rivers belong to the king; the islands “which are formed within, as well as the bed when it is abandoned to take a “new course, belong to the king; the proprietors of inheritances on the bank, “cannot at all pretend to it, unless they shew titles of concession from the Hing.” “From these citations I think it appears, that Pothier makes the right of “alluvion to depend on the fact of the concession or grant being bounded by “the river, since he gives the existence of such boundary as a reason why, “under the Roman law, the proprietor was entitled to the alluvion, and de“clares that unless he has a similar concession, he is not entitled to it by the “French law. I have endeavoured, I know not with what success, to reconcile “Pothier with the other French writers, some prior and others subsequent “to his work: every one of whom, at least all that I have been able to consult.
reconcile him to the body of the law be unsuccessful, we must not, with Mr. Jefferson, make the law bend to his authority. Let us examine the other writers who are relied on; they are Guyot, Denizart, Ferriere and the Encyclopedia. It would have been but candid in Mr. Jefferson, when he cited Guyot, to have told his reader that the same author, whose doctrine, under the word island, he quotes, had, under the word alluvion, the one now in question, expressly declared, that the “dispositions of the Roman law were observed in France, except on the rivers Doux and la Fère.” The whole passage is quoted in my Examination, (p. 21). Mr. J. therefore would have had some better title to the character of a fair disputant, had he adverted to it. Ferriere and Denizart, on whom he also relies, say no more, even in the passages cited, than that augmentations, formed suddenly and all at once, belong to the king; a position I am not interested in denying, and which I had transcribed with the rest of the article, which Mr. J. for good reasons, has not chosen to quote. Denizart is as follows: DENIzART: title ALLuvion. Vol. 1, page 74. “I. L'alluvion est un accroissement qui se fait insensible“ment, et peu a peu, sur les rivages de lamer, des fleuves et des “rivieres, parles terres que l'eau y apporte.” “II. Lorscue par alluvion, un héritage se trouve insensible“ment accru, et plus étendu qu'il ne l’était, l'accroissement ap“partient au propriétaire, et celui dont l'héritage est diminué “parcette voie, ne peut pas revendiquer ce qui s'en manque.” “Cette maxime, quiest puisée dans le droit Romain, A LIEu “DANs route LA FRANce, excepté en Franche comté. On y “dit communément au contraire que la riviere du Doux n'öte ni “ne baille. Ainsi l’alluvion n'est point dans le cours de cette “rivière, un moyen d'acquérir. Voyez la remarque de Du“moulin.” “Il faut encore excepter la rivière de Fère, qui, suivant une “coutume locale d'Auvergne, n'éte nine baille, c'est à dire, que “lorsqu’elle prend d’anciennes possessions par inondation ou “autrement, petit a petit, dega ou delà l’eau, il est permis a celui “qui perd de suivre sa possession et de la revendiquer.”
“agree in the doctrine, that the proprietors of land bounded by a river, “whether navigable or not, is entitled to all the increase that may be produced “by alluvion; but that atterissement, a word peculiar to the French jurispru"dence, belongs, in navigable rivers, to the king.”
* III. L'augmentation qui arrive dans un héritage par allu
* vion, est une seule et même chose avec l'héritage accru: *(fundus fundo accrescit, sicut portio portioni,)il en prend toutes * les qualités accidentelles de fief et de roture, de propre et " d'acquêt; Il est sujet aux mêmes charges, fussent-elles d'usu* fruit et de substitution." * IV. Il n'en est pas de même d'un accroissement subit, * occasionné par un débordement, ou par quelqu'autre cas for*tuit: la portion de ce terrain pourrait en ce cas, être réclamée * par le proprietaire. Voyez la coutume de Bar." * V. La maxime est d'ailleurs affermie par l'arrêt rendu au * rapport de Mr. l'abbé de Vienne, en la quatrième chambre * des enquêtes, le 15 Avril, 1744, entre le Marquis de Bouzols * et Mr. de Chamflour, conseiller en la cour des aides de Cler* mont, rapporté par Guyot, Traité des Fiefs, tome 6, chapitre * des Rivières, page 673, n. 1O; et par arrêt du Mercredi 22 Fe*vrier, 1769, rendu en la grande chambre, conformément aux " conclusions de Mr. Seguier, avocat général, la même chose " a été jugée. La sentence qui avoit ordonné une visite des " lieux a été infirmée, et il a été ordonné que par enquête re* spective, il serait verifié si le changement du cours de l'eau, " sur le rivage de la mer, avoit été subit ou insensible. Mr. " Lochard plaidait pour le chapitre de Luçon, et Mr. Caillou o pour le sieur de Champagné." * VI. Bourjon prétend que ce qui accroît par alluvion appar* tient au seigneur haut justicier; mais ni son opinion, ni l'avis * des auteurs qu'il cite, ne sont suivis dans l'usage. Voyez la cou* tume de Normandie, art. 195, l'article 268 de celle d'Auxerre, * l'article 154, de celle de Sens, et celle de Metz, tit. 12. art. 28. * VII. Les attérissements formés subitement dans la mer ou * dans les fleuves et rivières navigables, appartiennent au Roi, * par le seul droit de sa souveraineté. Voyez la déclaration du * mois d'Avril 1683, et Mr. Le Bret, de la souveraineté Liv. 2. * Chap. 16; et les édits des mois de Decembre 1693, et Fev* rier 1710, concernant les attérissements, isles et islots. On " trouve ces deux édits dans le Recueil de Neron, Tome 2." Ferriere is not less express. * The disposition of this sec" tion," (that of the Roman law, Inst. Lib. 2, tit. 1, s. 20, de alluvione) * is observed among us."—And the whole passage from the Encyclopedia, of which a shred is given by Mr. J. reads thus :