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When this natural right was first restrained among the Romans, I am not versed enough in Roman law. their laws to say. It was not by the laws of the XII tables, which continued "long their only laws. #67 From the expression of the Institute, ‘divalibus constitutionibus,” I should infer it was first restrained by some of the Emperors, predecessors of Justinian. L. 4. t. 2. §. 2.
* Divalibus constitutionibus prospectum est, ut nemini liceat virapere vel rem mobilem, vel se moventem, licet suam eandem rem existimat. Quod non solum in mobilibus rebus, quae rapi possunt, constitutiones obtinere censuerunt, sed etiam in invasionibus, quae circa res soli fiunt.”
* By the Imperial constitutions it is provided that no one shall take by force a thing either moveable, or moving, although he considers it as his own.—Which the constitutions have ordained to take place, not only in moveable things, which may be taken, but also in intrusions which are made into lands.”
But I believe that no nation has ever yet restrained itself in the exercise of this natural right of reseising it's own possessions, or bound up it’s own hands in the manacles and cavils of litigation. It takes possession of it's own at short hand, and gives to the private claimant a specified mode of preferring his claim. There are cases, of particular circumstance, where the sovereign, as by the English law, must institute a previous inquest: but in general cases, as the present, he enters at once on what belongs to his nation. This is the law of England. “Whenever the king’s [i. e. the nation's] title appears of record, or a possession in law be cast upon him by descent, escheat, &c. he may enter without an office found: for if his title appear any way of record, it is as good as if it were found by office: and if any one enter on him, even before his entry made, he is an intruder; he cannot gain any freehold in the land, nor does he put the king to an assize or ejectment, or take away his right of entry: for he cannot be disseised but by record. Stamford. Praerogativa regis. 56.57. Com. Dig. Praerog. D. 71. the substance of the authorities cited.
What are the prescriptions of the Roman law in this case, I do not know: nor are they material but inasmuch as they may
be the law of the case in Louisiana. A Spanish law before cited, p. 55. forbidding erections on the beds, or on the banks of rivers, says expressly, “si alguno lo ficiese debe ser deribado.” “If any one does it, it is to be destroyed.’ And the constant practice of the Governors of demolishing such erections was the best evidence of the law we could obtain. Not skilled in their laws ourselves, we had certainly a right to consider the Governor and Cabildo as competent expositors of them, and
as acting under their justification and prescription. We *68 might reasonably think ourselves safe *in their opinions
of their own law. In fact, if the immediate entry was permitted by the English law, and our own, we thought we might, d fortiori, conclude it permitted by those of the province. We had before us too the example of many of the states, and of the general government itself, which have never hesitated to remove by force the Squatters and Intruders on the public lands.” Indeed if the nation were put to action against every Squatter, for the recovery of their lands, we should only have lawsuits, not lands, for sale. While troops are on parade, should intruders take possession of their barracks, and shut the doors, are they to remain in the open air till an action, or even a writ of forcible entry replace them in their quarters? if in the interval of a daily adjournment, introlders take possession of the capitol, may not Congress take their seats again till an inquisition and posse shall reintroduce them? let him who can, draw a line between these cases. The correct doctrine is that so long as the nation holds lands in it’s own possession, so long they are under the jurisdiction of no court, but by special provision, The United States cannot be sued. The nation, by it's immediate representatives, administers justice itself to all who have claims on it's public property. Hence the numerous petitions which occupy so much of every session of Congress in cases which have not been confided to the courts. But when once they have granted the lands to individuals, then the jurisdiction of the courts over them commences. When it They fall then into the common mass of matter jus- ...” ticiable before the courts. If the public has granted lands to B. which were the legal property of A., A. may bring his action against B. and the courts are competent to do him justice. The moment B. attempts to take possession of A's lands, the writ of forcible entry, the action of trespass or ejectment, and the Chancery process furnish him a choice of remedies. The holders of property therefore are safe against individuals by the law; and they are safe against the Nation by it's own justice: and all the alarm which some have endeavoured to excite on this subject has been merely ad captandum populum. As if the people would not be safe in their own hands, or in those of their representatives; or safer in the hands of irresponsible judges, than of persons elected by themselves annually or biennially. The truth is, no injury can be done to any man by another acting either in his own or a public character, which may not be redressed by application to the proper organ to which that portion of the administration of justice has been assigned. 3. Our third, and conclusive remedy was that Act of prescribed by the act of Congress of 1807. c. 91. to Congress. prevent *settlements on lands ceded to the U.S. The Executive had been indulgent, perhaps re- *69 miss, in not removing Squatters from the public lands, under the general principles of law before explained and habitually acted on. This act therefore was a recent call on them to a more vigilant performance of their duty, in the special district of country lately ceded to them by France, with some modifications of its exercise on previous settlers. The act has two distinct classes of Intruders in view. 1. Those who, before the passing of the act, had possessed themselves of the lands, and were actually resident on them at the time of passing it; and 2. Those who should take possession after the passage of the act. 1. With respect to the class of Intruders before the passage of the act, the 2d section provides that, on renouncing all claim, they may obtain from the register or recorder, permission to remain on the lands, extending their occupation to 320 acres, § 3. which permissions are to be recorded; but, § 4. those not obtaining permission are, on three months notice, to be removed by the marshal. But Mr. Livingston was much too wise to qualify himself for the benefit of these sections, by an actual residence on the batture. His part of the act therefore is the first section which enacts that “if any person shall take possession of any lands ceded to the U.S. by treaty, he shall forfeit all right to them, if any he hath; and it shall be lawful for the President of the U.S. to direct the Marshal, or the military, to remove him from the lands. Providing however that this removal shall not affect his claim until the Commissioners shall have made their reports, and Congress decided thereon.” The tribunal to which the legislature had specially delegated a power to take cognisance of the claims on the public lands in Orleans, and to inform them what lands were clear of claim, and free to be granted to our citizens, was a board of Commissioners; and the plain words and scope of the law were, to keep all claims and prior possessions in statu quo, antil they could be investigated by these Commissioners, reported, and decided on by Congress. And this act indulgently provides that the right of a person removed by the Executive for irregularly taking possession of lands which he thought his own, should not be affected by this removal, but that he might still lay his claim before the Commissioners, and Congress would decide on it. Mr. Livingston's claim was clearly within the purview of the law. It was of lands ‘ceded to the U. S. by treaty,’ and he had “taken possession of them after the passage of the act.” For the decree of the court was not till May 23, '07, and his possession was subsequent to that. If he should say, as his counsel seems to intimate, Opinions LXVII. that this was a remitter to him of the antient possession #70 *of Bertrand Gravier, I answer that it was no re
Jurisdiction in whom.
* Squatters or Intruders on the public or Indian lands were repeatedly removed by the state of Virginia before its cession to Congress, by the old Congress, (see Journ. 15 June 1785,) by the present government at various times, and, as is believed, by other individual states on the ground of natural right only. MS. Note.
mitter against any one, because the case was coram non judice, as will be shewn, and still less against the U.S. who were no parties to the suit: and if it had been a remitter, then I should have observed, that the order has been executed on a person not comprehended in it; for it was expressly restrained to possessions taken after the 3d of March '07, in that case the Marshal must justify himself, not under the order, but his personal right to remove a nuisance. But investigations, re
ports, and decisions of Congress were dangerous. It was safer to be his own judge, to seize boldly, and put the public on the defensive. He seizes the ground he claims, and refers his title to no competent tribunal. When ousted, according to the injunctions of the statute, and repossession taken on behalf of the U.S. he passes by the preparatory tribunal of the Commissioners, and endeavours to obtain a decision on his case by Congress in the first instance: in this too he has been disappointed. Congress have maintained the ground taken under the statute; and Mr. Livingston now demands the value of the lands from the magistrate on whom devolved the duty of executing the statute. Taking now a brief review of the whole ground we have gone over, we may judge of the correct- Rouls. ness of the decision of the Cabinet, as to their duty in this case. I trust it will appear to every candid and unbiassed mind, that they were not mistaken in believing That the Customs of Paris, the Ordinances of the French government, the Roman law as a Supplement to both, with the special acts of the Spanish and American legislatures, composed that system of law which was to govern their proceed- ings. That, were this a case of Alluvion, the French law gives it to the Sovereign in all cases; and the Roman law to the private holder of rural possessions only. That Bertrand Gravier had converted his plantations into a fauxbourg, and appendage of the city of New-Orleans; with the previous sanction of the Spanish government, according to his own declarations, by which those claiming under him are as much bound, as if made by themselves; and certainly by its subsequent formal recognitions, and confirmations, which acted retrospectively: and the character of the ground being thus changed from a Rural to an Urban possession, the Roman law of Alluvion does not act on it. That even had his ground retained it's rural character, and admitting that the grant to him face au feuve' conveyed the lands to the water's edge, his sales, “face au feuve' conveyed to his *purchasers the same right which the *71 same terms had brought to him, and they, and not the
plaintiff, now holds the rights of B. Gravier, whatever they were.