the whole of what I have cited. Other respectable authorities might be produced, to the same effect, were it necessary to multiply them: and it is also admitted that authorities of weight, and of a different aspect exist, among these is Dumoulin, as respectable as Pothier, Guyot, or any other who has been cited. Were it absolutely incumbent on me, more than on those who rely on the contrary authorities, to assign reasons for a difference of opinion among lawyers, on any point, it might be ascribed in this case to a difference of impression from views of the same subject, diversified as were the customs of the various provinces of France, on this very point. Dumoulin wrote a century and a half before the Ordinance of Louis XIV. In that course of time, printing had become more diffused, books greatly multiplied, and a more correct collation of these customs could be made. So that had Dumoulin written in the days of Pothier and Guyot, and with their advantages, he would probably have concurred in the preceding observation, that if there were any doubts, this Ordinance has dissipated them.' Be this as it may, Louis XIV. and his council have decided between these two opinions, and if it were not law before, his decision made it so. By this edict he declares the law of France, 'incontestably,' to be that 'Alluvions *30 belong to the king in all navigable rivers.' But with a spirit* of indulgence, meriting more respect than he has found in the language of the adverse party who dislike the truths he has declared, he confirmed all anterior usurpations, on payment of certain compositions and future rents, re-establishing, by the example, the authority of the laws, and rights of the crown against these usurpations. This Ordinance was past 19 years before the charter to Louisiana, and consequently was comprehended among the edicts and ordinances originally established as the law, of the Province. Mr. Livingston and his advocates have asserted that the right to the beds and increments of rivers, is a gift of the feudal system to the sovereign, that is, to the nation, and is a peculiarity of that system: and further, that that system was never introduced into Louisiana. That the latter assertion is palpably erroneous, could be readily shown, were not the question altogether unnecessary. With respect to the former, surely it is putting the cart before the horse to say, that the authority of the nation flows from the Feudal system, instead of the Feudal system flowin from the authority of the nation. That the lands within the limits assumed by a nation belong to the nation as a body, has probably been the law of every people on earth at some period of their history. A right of property in moveable things is admitted before the establishment of government. A separate property in lands not till after that establishment. The right to moveables is acknoleged by all the hordes of Indians surrounding us. Yet by no one of them has a separate property in lands been yielded to individuals. He who plants a field keeps possession till he has gathered the produce, after which one has as good a right as another to occupy it. Government must be established and laws provided before lands can be separately appropriated, and their owner protected in his possession. Till then the property is in the body of the nation, and they, or their chief as their trustee, must grant them to individuals, and determine the conditions of the grant. In certain countries they have granted them on a system of conditions and principles which have acquired the appellation of Feudal. Surely then it is the sovereign which has created the Feudal principles, and not these principles which have created the rights of the sovereign. The Edinburgh Reviewers, [No. 30. 339. Jan. 1810.] who in the progress of their work have deservedly attained a high standing in the public estimation, reviewing the condition of land-tenures among the Hindoos, say, the territory of the nation, belonging in common to the nation, belongs, in this general sense, to the king, as the head and representative of the nation. As far accordingly as we have sufficient documents respecting rude nations, *we find their kings, without perhaps a single exception, recognised as the sole proprietors of the soil.' And they quote as their authorities, In Europe. For Wales, Leges Walliæ. c. 337. *31 Great Britain. The Bretons while they held the whole island, Turner's Anglo Saxons, c. 3. Gaul and Germany. Cæsar, 4. 1. To which add Spain, Portu gal, Italy and all feudal states. For China. Barrow. 397. In Asia. India. Montesq. Sp. L. 14. 6. Scott's Ferishta, vol. 2. 148495. 2. Bernier, 189. Persia. 3. Chardin, 340. Syria and the Turkish dominions. 2. Volney, 402. In Africa. For Egypt. Herodot. 2. 109. Volney passim. Other parts of Africa. 4. Hist. gen. des voyages 13. v. do. 7. 5. 17. Mod. Univ. Hist. 322. Parke, 260. In America. For the Spanish part. Acosta 6. 15. and 18. Garcilaso, 1. 5. 1. Carli. letter 15. For the United States and the Indian hordes of our continent, we cite our own knolege. It seems then to be a principle of universal law that the lands of a country belong to it's sovereign as trustee for the nation. In granting appropriations, some sovereigns have given away the increments of rivers to a greater, some to a lesser extent, and some not at all. Rome, which was not feudal, and Spain and England which were, have granted them largely: France, a feudal country has not granted them at all on navigable rivers. Louis XIV. therefore was strictly correct when in his edict of 1693, he declared that the increments of rivers were incontestably his, as a necessary consequence of the sovereignty. That is to say, that where no special grant of them to an individual could be produced, they remained in him, as a portion of the original lands of the nation, or as new created lands, never yet granted to any individual. They are unquestionably a regalian, or national right, paramount, and pre-existent to the establishment of the feudal system. That system has no fixed principle on the subject, as is evident from the opposite practices of different feudal nations. The position, therefore, is entirely unfounded, that the right to them is derived from the feudal law; and it is consequently unnecessary to go into the proof of what the grants in that country *exhibit palpably enough, that infeudations were partially at least, if not generally, introduced into Louisiana. *32 It ought here to be observed however that, so far as respects the beds and navigation of rivers, the right vested in the sovereign is a mere trust, not alienable. It is not like lands, imposts, taxes, an article of public property constituting the revenues of the state; but like roads, canals, public buildings, reserved for the use of the individuals of the nation. See an explanation of this subject, Vattel 1. 235. 239. I have now to advert, and I do it with extreme reM. Thierry. gret, to a passage in the very able Memoire of M. Thierry, a Memoire conspicuous for it's learning and sound reasoning, and to which I acknolege myself peculiarly indebted for information on the points he has discussed. He says, p. 30. 'To the ancestors of John Gravier the right of alluvion belonged, not only by virtue of the Coutumes de Paris, which for two centuries back acknoleged the principle of the Roman law, and against which, for that reason, the Ordinances of the kings of France could with no manner of success be pleaded, inasmuch as a royal ordinance specially made that Coutume the civil law of this colony; but also by virtue of the Spanish laws, which from 1769 have been constantly in force in Louisiana.' 1. That the Roman principle of Alluvion was acknoleged by the Coutumes de Paris has not been proved. The adverse counsel, [Dupon. p. 9.] has said, indeed, that those Customs were silent on this subject. But I have considered Pothier, Guyot, and Le Rasle as better authority. 2. Mr. Thierry supposes that a Royal Ordinance having specially made that Coutume the civil law of Louisiana, the Ordinances of the kings of France were excluded from the system, and could not controul what was Coutume. He had not, I presume, seen the charter of 1712, which makes the edicts and ordinances with the Coutume de Paris, the law of that province; nor sufficiently considered that had the Coutumes been alone established by one ordinance, another might change them. 3. He supposes the Spanish laws have given Alluvions to the riparian proprietor. But the laws of the province, established by their charter, were not annulled by the change of one king for another, as their legislator. The latter might change them. But has he done so? If he has, his edict must be produced, that we may weigh it's words, and judge of it's effects for ourselves. And we must guard against admitting that the example of a Spanish Governor, if such example has occurred, No. XVII. E *33 occasionally and incorrectly acting on the laws of Spain, amounted to a repeal of the whole system then existing, and a formal establishment of a different one. No such intention on his part, *to make so momentous a change, should be so slightly inferred; and no power of his could effect it, even if intended. Nothing less than an Ordinance of the Sovereign himself, signed with his own hand, and sanctioned by all the solemnities attending their enactment and promulgation, was competent to reverse at once the legal condition of a whole people, and the laws under which their lives and properties were held. Again, even such an ordinance could not change the law as to past rights; and those now in question were vested before the Spanish government took place, and could not be annulled by a subsequent law. These gratuitous admissions, therefore, of Mr. Thierry, not at all necessary to his argument, and therefore probably not well considered, and in opposition to the opinions and demonstrations of an able brother counsellor (Mr. Derbigny), must be disavowed, and the authority of the Ordinance of 1693 insisted on with undiminished confidence. Mr. Thierry himself will perhaps the more readily abandon them, when he sees with what avidity his eagle-eyed adversary has pounced upon them in a letter to some member of the government, in which he considers them as giving up all ground of opposition to his claims. Edict of To that edict then I shall now recur; and to the cavils raised against it by the advocates of the claims it annihilates. It is idle for them to call it bursal, fiscal and the act of a tyrant, &c. [Duponc. 10.] as if the authority of laws was to be graduated by the character of the existing legislator; and as if we were to be the judges, for other nations, of the character and obligation of their laws. It is vain to pretend that because the word 'Alluvion,' inserted in the enacting clause of the edict, is not in the preamble, therefore it has no force in the body of the law: as if the preface, giving the general reason and views of a law, was alone to be the law, and it's ac tual enactments a mere nullity. Although the preamble of a statute is considered as a key to open the mind of the makers as to the mischiefs in their view, yet in general it is no more than a recital of some inconveniences, which does not exclude any other for which the enacting clauses provide; nor must the |