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“Alluvion is an increase of the ground, which takes place by “slow degrees, on the shores of the sea, on the borders of “feuves and rivers; occasioned by the earth which the water “conveys to it, and which becomes so consolidated with the “contiguous land, that it forms a whole with it—an identity. “The name of alluvion is also given to those lands which are “slowly and imperceptibly left uncovered by the water. “The Roman law places alluvions in the number of the means “of acquiring according to the law of nations, as being a kind “of accession; that augmentation being operated in a slow and “imperceptible manner, remains to the inheritance to which it “is found united. “The portion which is thus added insensibly, is not consi“dered as a new land, it is a part of the old which becomes pos“sessed of the same qualities, and it belongs to the same mas“ter, in the same manner as the growth of a tree forms part of “the tree, and is the property of the proprietor of the tree. “That right of increase by alluvion is grounded in the maxim “of law, which bestows the profits and the advantages of a “thing, to him who is exposed to suffer its damages and its “losses. “THE REGULATIons of rhE Rom An LAw on ALLuvion, “ARE GENERALLY Followed IN FRANCE. The coutumes of “Metz, Sens, and Auxerre, have on that subject precise regu“lations, which form their common law. “But the province of Franche comté must be excepted, where “it is established as a maxim, that the river Doux neither gives “nor takes away;-that is to say, that the person whose inheri“tance is diminished by the inundation of the river, may in“demnify himself by possessing himself of the land which it “has abandoned. “The same thing takes place on the inheritances bordering “on the river Fère, in Auvergne, where the local coutume esta“blishes the same right. “The alluvions which the sea produces on the lands which it “bathes, also belong as a right of increase, to the proprietors of “those inheritances, who may also make levées or dykes, to “secure them. “We must observe, however, that to acquire by right of al“luvion, two conditions are necessary.
“FIRsr.—That the increase should be made slowly and im“perceptibly, in such a manner that it cannot be discovered in “what time each part of the alluvion has been formed to, and “consolidated with the inheritance. “SEconD.—That the inheritance by virtue of which the right “of acquiring by alluvion is claimed, be contiguous to the river, “in such a manner that the bed on which it flows, seems as it “were, to be a part of the same inheritance;—for, in case it “did not bound exactly to the river, and it was bounded by a “causeway or by a road, the parts left uncovered by the river “between its bed and the road, cannot belong to the proprietor “of the inheritance situated on the other side of the road. Those “lands belong to the king in navigable rivers, and to the feudal “lords, in those that are not so.” Thus we see, that out of five writers on the French law, cited by the late president, four directly oppose his doctrine, and are made to favour it only by that ingenious and novel device which makes the scriptures declare “there is no God.” After laying before the public, for the second or third time, the whole of these texts, of which partial extracts are given by the gentleman with whom I contend, I pause to ask whether a perusal of the whole does not give a different idea from that conveyed by the extract?—Whether it does not give an opposite idea?—Whether the whole text was not under his eyes when he wrote, and had not been successfully quoted before, to answer and explain the passages he cites?—An affirmative answer (and no other can be given to these queries) must involve Mr. Jefferson in the reproach of endeavouring to deceive the public, by a partial quotation of authorities, a conduct which would not be tolerated by any tribunal, still less by that of the public, to which he has appealed. Having shewn that all the elementary writers, save one, which have been relied on, prove the reverse of the doctrine for which they were introduced, let us now examine the authority which we are told is to “put aside all further question, as to the law of France on this subject.”—The edict of Louis the XIVth, of the 13th of December, 1693. It is, however, a little extraordinary, that during the century which has elapsed since this decisive decree, but one writer of any note in the whole kingdom can be found, whose doubts have been “put aside” by its provisions, and that not one tribunal has decided in conformity with the construction now put upon it. This edict has been so often pushed forward to bear the brunt of the controversy, that I am tired of referring to it, and shewing that neither its declaratory nor enacting clauses warrant the conclusion drawn from it. The first rule in construing statutes, is, to examine how the law stood prior to their being made. The only sources from which we can draw a knowledge of this point, are statutory laws, elementary writers, or decisions of courts. Positive law is not pretended to exist, or the edict would have been produced instead of the one which is referred to. The only elementary writers cited, who wrote prior to this edict, declare, that alluvions belong to the adjacent proprietor, though islands and increments formed in the beds of rivers, by sudden changes, belong to the king, and not a single decision either before or since has been discovered vesting them in the sovereign. We may fairly, then, take it for granted, that at the time of the rendering that edict, the fundamental law of France gave alluvions to the proprietors of the land on which they were formed. Now, let us examine whether this edict either could change or does purport to change this law. We have seen, that as the law stood before the edict, islands and increments formed in the bed of a river, detached from the shore, belonged to the king; but, that alluvions formed imperceptibly on the bank, belonged to the private proprietor.— Now, if the edict intended to make so serious a change in the laws of the country, it would have been done by express terms, and in the enacting part of the statute. But the statute in question, in its preamble or declaratory part, asserts, that the king has a right of property on (sur) (which is improperly translated in, by Mr. Jefferson) on all navigable rivers and fleuves (a term meaning a navigable river falling into the sea, for which we have no equivalent) in the kingdom, and consequently to all the islands, mills, ferries, sudden accumulations, (attérissements)* and increments formed by the said feuves and rivers.-That this right being incontestably established by the laws of the state, as a necessary consequence and dependence of his sovereignty, the kings his predecessors and himself, had ordered researches to be made as to the isles and increments formed THEREIN. In all this, I see nothing but an assertion which I am not interested to deny, that the laws of the land gave islands and attérissements to the crown, when formed in the channel of navigable rivers. But it is said, p. 33, that the word accroissement (increment) is also used—that this is a generic term, of which alluvion is a species, and that therefore the edict comprehends it. But where there are two species of increment, to the one of which the king has a right, and to the other he has none, would it be a fair construction to say that the use of the generic term would imply an assertion of his right to the whole? Suppose, for instance, a king of France in some edict relative to the royal residence were to recite that he and the kings his predecessors had an undoubted right to the Palais in the city of Paris, could this be fairly construed into a confiscation of all the palaces of the nobility and clergy in the city?—or would it not be restricted by the rules of law as well as common sense, to that species of property which really belonged to the king?— and as the distinction must have been known to the framer of this edict, had he designed to have changed the law, or even to have declared, that every species of this kind of property belonged to him, he would have found some term to have expressed the idea, and would not have left any cavil to his subjects on the occasion; but that he did not intend it, is apparent not only from wha: I have said, but from the recital that in consequence of this right of property, he and his predecessors had ordered researches to be made, as to the isles and increments formed therein (the rivers), that is by attérissement in the bed, not by alluvion on the bank;-but it may be asked, why employ the word accroissement when he had already used the word attérissement, if they are synonymous?—but they are not. There are accroissements which are neither attérissements nor alluvions,—and it is to this species that the ordinance refers, as we learn from the most respectable authority.—“Il y a donc (says
*** Nous appelons attérissement le canal et le lit que la riviere a tout d'un coup quitté.” We call attérissement the channel and bed which the river hath all at once quitted. 2 Ferriere on the Inst. 45.
“Ferriere, p. 52.) de la différence entre l'alluvion et l'accroisse“ment fait par la violence des eaux.”—“Par notre droit Fran“Qais, quand ces accroissements qui se sont faits tout-à-coup “sont considérables, on prétend qu'ils doivent appartenir au “roi, comme une espèce d’épave; ce qui parait conforme aux “ordonnances royaux, parlesquelles les isles et attérissements “quise forment dans les grands fleuves, appartiennentau roi.”— ““There is then a difference between an alluvion and an ac“croissement made by the violence of the waters.”—“By our “French law, when these accroissements which have been made “suddenly are considerable, it is pretended that they ought to “belong to the king as a kind of waif, which appears to be con“formable to the royal ordinances by which isles and attérisse“ments which are formed in navigable rivers belong to the “king.” Thus every word in the preamble is satisfied without construing the edict so as to make a change in the laws of the kingdom, and an inroad upon private rights. Let us see whether the enacting part of the edict goes further. For these reasons (says the sovereign), we enact—what?— That all alluvions shall hereafter belong to the crown?—that the occupants shall immediately abandon them?—No, but simply, that all the holders, proprietors or possessors of isles, islots, accumulations, increments, alluvions, rights of fishery, &c. on navigable rivers, shall be maintained in their possession, on paying one year's revenue, if they have a title prior to the year 1566, or two years’ revenue, if they have no title or possession prior to that period. The same observation may be made as to the body of the edict, which was used with respect to the preamble. There are alluvions to which the king had a right, and there are others to which he had none. Of the first kind were those which were formed upon his property; of the latter those which were annexed to that of his subjects.—The islands in navigable rivers were his; islands more frequently are enlarged by alluvion than lands on the bank, because the current always forms an eddy at the lower end of an island. This alluvion belonged to the king, because it was annexed to, formed a part of his property. When, therefore, he was confirming the title to the possessor of the island, he did it but by halves, if he did not give