general words of an enacting clause be restrained by the particular words of the preamble. 6. Bac. Abr. Statute. I. 2. and the authorities there cited. So says our law; so says reason; and so must say the Roman law, if it be ratio scripta. But it is further to be observed that the words 'atterrissements and accroissements,' accumulations and increments, used in this preamble are generic terms, of which Alluvion' is a species, and therefore strictly comprehended by it. This is proved by the Roman definition, Alluvio est incrementum* latens,' 'alluvion est un accroissement ou crement imperceptible,' by the Napoleon code cited by Mr. Livingston:

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The accumulations and increments which form themselves successively and imperceptibly against the riparian lands of a river or stream, are called Alluvion.' Sect. 556.

And by the edicts of 1686 and 1689, both of which have the expression 'crémens qui s'y sont formés, soit par alluPortalis. vion, ou par industrie,' &c. And here Portalis's rhetorical

flourish, on presenting this law, is cited, [Duponc. 17. Liv. 22.] with triumph, as declaring that this law terminates the great question of Alluvion, and decides it conformably to the Roman law. It is very true indeed that it has terminated the question as to future cases, by changing the law, by transferring the right of Alluvion from the sovereign to the riparian proprietor, by giving the abandoned bed of a river, as an indemnification to him on whose land it has opened a new passage, and making this the future law of all the provinces. And had Louisiana then been subject to France, the law would have been changed thenceforward, for Louisiana also. I find no fault with Napoleon for this Roman predilection. I believe the change is for the better so far as concerns rural possessions. A decision too of the parliament of Bordeaux is quoted by Mr. Duponceau 19. to prove that the law giving Alluvion to the adjacent possessor has been acknoleged in France by the deci sion of the parliament of Bordeaux, confirmed, as he has heard, on appeal by the parliament of Paris. This proves only that the

Roman law of alluvion was the law of the Generality of Bordeaux, not that it was then the law of all France. In the country called the Bordelois, Customary laws prevail. But

'Lorsque la coutume de Bordeaux ne s'est pas expliquée sur certains points de droit, ce n'est ni à la coutume de Paris, ni à d'autres coutumes qu'on a recours pour les faire décider, mais au droit écrit.' Enc. Meth. Jurisp. Bordeaux.'

'When the Custom of Bordeaux has not sufficiently explained itself on certain points of law, it is neither to the Customs of Paris, nor to other customs that recourse is had for decision, but to the written law,' that is, the Roman law.

The inference then is, either that the Coutume de Bordeaux was the same on this point as the Roman law, or, that being silent, the Roman law was recurred to.t

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*Surely never was the urgency of squeezing argument out of every thing so apparent, as in the emphasis with which the adverse party presses and comments, [Liv. 32.] on the answers of the several tribunals, to which the Napoleon Code was referred for consideration and amendment. A dozen tribunals are named, with an &c. for more, who are acknoleged to have said nothing about alluvion: and this is produced as proof that it had belonged before to the riparian proprietor. But it proves more probably that these tribunals were contented with the change proposed, and had no amendment of it to offer. But, in truth, it proves nothing either the one way or the other. The tribunal of Paris is then quoted, with an acknolegement that they do not make a single observation on the subject. Then long extracts from that of Rouen, proposing that islands, rising in the rivers, shall be given to the riparian proprietors: and recommendations to the same effect from those of Toulouse and Lyons. Now it is remarkable that neither the word Alluvion,' nor the idea of the thing, is either expressed or referred to in any one of these quotations. And yet Mr. Livingston says, we find all these learned men either passing over these articles, as merely declaratory of the old law, or else expressly acknoleging them as

†M. Moreau de Lislet assures us that he was in Paris at the time of the decision of this appeal from Bordeaux, that the decision of Bordeaux was reversed by the king and council, then referred to the parliament of Paris, and the reversal confirmed by that body. See his Memoire, 50.

such; and again after the citation from Rouen, 'here we have the positive declaration of a learned tribunal, &c. deciding that the edicts did not extend to alluvions, but only to islands in navigable rivers.' And yet I repeat that neither the word nor the idea is to be found in any one of the quotations; for it is of these only I can speak, not possessing the book, but I presume Mr. Livingston's quotations are of the strongest passages. It is impossible to characterise such reasoning respectfully. I shall therefore leave it to the reflection of others. And I think myself authorised to conclude on the whole, that had the Batture been really an Alluvion, it's ownership was to be decided by the laws of France; and that Louis XIV. with the advice of his council, certainly knew when they declared what the law of their country incontestably' was; and if we, with our scanty reading on the subject, at this day and distance, know better than they did, yet the enacting clause of the edict made it the law thenceforward; that it came over as law for Louisiana, made the batture, if an alluvion, the property of the sovereign; and certainly the whole tenor of the conduct of the Spanish government proved that they did not mean to relinquish it. Before we quit this branch of the discussion, it is not amiss to observe that the eloquent declamations of these learned men of Rouen, so much eulogised by Mr. Livingston, were not at all heeded. The Napoleon code, §. 560. retained the islands rising in the beds of navigable or floatable rivers, and (changing the French law only as to alluvions) declares, §. 538. in opposition to the Roman law, that

'Les fleuves et rivieres navigables ou flottables, les rivages, lais et relais dela mer, les ports, les havres, les rades, &c. sont considérés comme les dépendances du domaine public.

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'Rivers and navigable or floatable streams, shores, increments and decrements of the sea, ports, harbours, roads, &c. are considered as dependences of the public domain.'

So that notwithstanding the 'persuasive and conclusive arguments of these first lawyers of the country,' Liv. 31. the French

aw as it stands at this day, and stood before, would have given

the batture to the public, being unquestionably the *rivage or shore of the river.t

'Rivage, is most commonly used for the shore of the sea, but correctly also for the shore of a river.

'Chaque fleuve, chaque ruisseau

A partout franchi son rivage.' Regnier. Dict. de Richelet. Rivage.
'Le Tybre écumeux et bruyant

De sa course fougueuse étonne son rivage.' St. Evremont.

It is particularly so used in Law. Sous le nom de rivage est compris le chemin qui doit être entretenu le long des côtes et rivières navigables, pour le hallage des bateaux.' And again, droit de rivage, qui est dû sur les marchandises qui abordentau rivage de la ville de Paris.' Dict. de Trévoux, Rivage. 'Sur le rivage de la Seine.' Dict. de l'Académie.

† Little versed in French jurisprudence, possessing few of the authors teaching it, and, of some of those quoted by the adverse party, so much only as they have thought to their advantage to quote, I had apprehended it possible (pa. 29.) that there might be among those authors, that conflict of opinions on the law of alluvions, which these quotations indicate. But I have lately had an opportunity of reading in MS. a Memoire on the subject of the Batture, written by M. Moreau de Lislet of New-Orleans, a French lawyer of regular education in the profession, who has treated the subject, generally with great learning and abilities, and especially that branch of it which relates to the laws of France in cases of Alluvion. He has proved that the doctrines of these great authorities are not contradictory, and that a proper attention to the different questions under contemplation in the passages quoted, will shew that all are right, and all in perfect harmony. To elucidate this he explains certain principles of French law, which mingling themselves with this subject, have occasioned the misunderstanding with which we have been perplexed. 1. The laws of France leave to the king a right to navigable rivers only, and their increments. On rivers not navigable, the rights of the riparian proprietor prevail as under the Roman law. See Pothier ante. pa. 26. Very early however these rights were drawn into question by the Feudal Superiors, who, looking to the example of the king in the case of navigable rivers in his kingdom, claimed similar rights on those not navigable within their Seignories. But repeated decisions have condemned their claims, and confirmed the rights of the riparian tenant. 2. By the laws of France, as by those of England, lands received by inheritance, descend, on the death of the tenant, to the heirs of that branch, paternal or maternal, from which they came to him. But those he acquires by purchase (acquets) pass to that line of heirs of which himself is the root. When therefore, to a maternal inheritance an acquisition happened to be made by means of Alluvion, a question would arise, between heirs of different lines, to which of them the Alluvion would descend; whether to the direct heirs of the decedent, as being an acquisition first vesting in him, or to the maternal heir as an accessory to his inheritance. The decisions were that it united with the inheritance, became a part of that, and passed with it. 'Incrementum alluvionis nobis adquiritur, jure quo ager augmentatus primum ad nos pertinebat; nec istud incrementum censetur novus ager sed pars primi.' "The increment of Alluvion is acquired to us in the right in which the field

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*I will now proceed further and say, that had the batture been an alluvion, and to be decided by the Roman, instead of the French law, the conversion of the plantation

augmented first belonged to us.' Nor is the increment considered as a new field, but a part of the first.' Renusson. It follows that questions of Alluvion would often arise in cases wherein the king's rights were not at all concerned. They would arise between Lord and vassal, and between individual heirs of different lines. These explanations premised, M. Moreau takes a review of the passages quoted from Henrys, Bourjon, Dumoulin, Ferriere, Pothier, Le Rasle, Renusson, Dargentré, Denisart and Guyot, and shews that in every instance where the question concerned a navigable river, there was no division of opinions as to the validity of the king's right; and that in every instance where the riparian right is asserted, the question has been between private individuals, or concerning rivers not navigable. Recurring then to the edicts and Ordinances placing this right of the king beyond cavil, he observes that a practice had prevailed from early times among riparian proprietors of usurping on the rights of the crown to the increments adjacent to them, and a necessary reaction of the crown, by reclamations and resumptions, to preserve it's own. And he gives a detail of the edicts on this subject proving that that of 1693 instead of being the singular act of a particular prince, whom the adverse party delights to revile, was one only of a long series preceding and following it.

1554. An edict was issued requiring the proper officers to be vigilant in watching over the king's rights in islands, atterrissements, et alluvions, comme ils l'ont accoutumes faire d'ancienneté.' So that it was even ther a law and practice d'ancienneté, and expressly including alluvions. 1664. An Ordinance for making enquiries concerning islands, accroisse ments, &c.

1668. Apr. An Edict quieting possessions of these objects of 100 years continuance, on paying a vingtieme annually.

1669. The Ordonnance des eaux et forêts, 'qui accorde au roi la propriété de toutes les rivières navigables, de leur lit, rives, et de tous les terreins qui peuvents s'y former,' Guyot, ante. pa. 27. ' granting to the king the property in all navigable rivers, their bed, banks, and the grounds forming there.'

1683. Apr. A declaration, reciting that as the rivers belong to the king 'tout ce qui se trouve renfermé dans leur lit, comme les isles, accroissemens et attérissements lui appartient aussi,' confirms title anterior to 1566 without condition, possessions anterior to 1566 on conditions, and reunites all others to the crown.

S

1686. Apr. Two edicts for Languedoc and Bretagne, confirming possessors 1689. Aug. in the said islands, 'ensemble des crémens qui s'y sont formés, et de ceux qui pourraient s'y former à l'avenir, soit par alluvion, ou par industrie.'

1693. An Edict general for the kingdom 'le droit de propriété que nous avons sur tous les fleuves et rivières navigables étant incontestable, &c. Ordonnons que les détenteurs des isles, islots, attérissemens, accroisse