this act, that it was to give the president the means of depriving an individual of a possession, which perhaps might be the only evidence of his title, in a populous city where the claims of the public could easily be ascertained by law, and if well founded could as easily be enforeed. Examine the whole of the act with this view, and it will be found that its provisions and expressions strongly impress these general ideas.-Settlements and taking possession are forbidden, as are surveys and designating boundaries "by marking trees," or otherwise. The second section allows the actual settler to obtain permission to continue on the "tract or tracts of land," he may occupy, "not exceeding three hundred acres"-and it is from the "lands aforesaid" that is, from such tract or tracts, that the president is authorised to remove the settler.

All these expressions clearly indicate the species of property, the description of lands, which the legislature intended to affect by this law-and shew that its spirit is violated by applying it to city lots, of which the possession, after a long course of expensive litigation, had been assured to an individual by the decree of a competent court.

The property in question comes as little within the letter, as it does within the spirit of the law.

The first section, which is said (p. 69) to be "my part of the act", enacts "That if any person or persons shall, after the "passing of this act, take possession of, or make a settlement "on any lands ceded or secured to the United States, by any "treaty made with a foreign nation, or by a cession from any 66 state to the United States, which lands shall not have been "previously sold, ceded, or leased by the United States, or the "claim to which lands, by such person or persons, shall not "have been previously recognised and confirmed by the United "States: or if any person or persons shall cause such lands to "be thus occupied, taken possession of, or settled; or shall sur"vey or attempt to survey, or cause to be surveyed, any such "lands; or designate any boundaries thereon, by marking trees, or otherwise, until thereto duly authorised by law; such of"fender or offenders, shall forfeit all his or their right, title, and "claim, if any he hath, or they have, of whatsoever nature or "kind the same shall or may be, to the lands aforesaid, which "he or they shall have taken possession of, or settled or caused "to be occupied, taken possession of, or settled, or which he or

"they shall have surveyed or attempt to survey, or cause* to be "surveyed, or the boundaries thereof he or they shall have de"signated, or causef to be designated, by marking trees or other"wise. And it shall moreover be lawful for the president of the "United States, to direct the marshal, or officer acting as marshal, in the manner hereinafter directed, and also to take such "other measures, and to employ such military force as he may "judge necessary and proper to remove from lands ceded or "secured to the United States, by treaty, or cession as aforesaid, "any person or persons who shall hereafter take possession of "the same, or make, or attempt to make a settlement thereon, "until thereunto authorised by law. And every right, title, or "claim, forfeited under this act, shall be taken and deemed to "be vested in the United States, without any other or further "proceedings: Provided, that nothing herein contained shall be "construed to affect the right, title, or claim, of any person to "lands in the territories of Orleans and Louisiana, before the "board of commissioners established by the act, entitled "An "act for ascertaining and adjusting the titles and claims to land "within the territory of Orleans and the district of Louisiana," "shall have made their reports, and the decision of congress "been had thereon."

To bring the premises within the words of this section, they must be:

First, lands ceded or secured to the United States.

Secondly, possession must be taken after the passage of the act (3d March 1807). But:

1st, These lands were not ceded or secured to the United States. The treaty of the 30th of April, 1803, which cedes Louisiana to the United States, gives them the sovereignty of the country, and all public lots, buildings, squares and vacant lands,‡

It is so printed in the statute book, attempt-cause; from the context, however, it seems it should be attempted—caused.

Same remark as in the preceding note.

See the case of The Commonwealth v. M'Kissick et al. 4 Dallas 292, where these terms "vacant land” are adjudged not to include property in a city. Lands granted by the British government before the revolution and forfeited to Virginia, are not "vacant, waste, or unappropriated lands," and could not be located as such by a person having a right to locate lands under the general land law of that state. Crace v. Trustees of the University, Court of Appeals, Kentucky.

but by the third article expressly provides, that the inhabitants shall be protected in their property.-If this land, then, was an inherent part of that which had, long prior to the treaty, been granted to those under whom Gravier claimed, they were not included in the cession to the United States, and were excepted out of it by the third article. That it was, by the very law of its existence as alluvial property, an inherent part of the original grant, I think has been sufficiently shewn. It was then not "ceded or secured to the United States," but on the contrary reserved for, and secured to the proprietors of the original grant.

And 2dly, These were not lands of which the possession was taken after the passage of the act.

It has been shewn from the nature of the property, that a constructive possession was all that could have been had in it, until its increase rendered it an object for improvement. That from that period, evident and notorious acts of ownership were exercised; public sales of parts thereof made fourteen years before the passage of the law, and an actual occupation, a pedis possessio, taken of other parts more than three years before. These acts, also, were made known to Mr. J. not only by publications but by record. The judgment of the superior court, whatever may be its effect as to the title of the United States, ought certainly to have been, at least, presumptive evidence to the president, of the facts asserted in it; he ought in common decency, in common justice to the characters of the judges, to have supposed that they would not have asserted on their oaths of office, that as fact, which was not proven before them,-and to have had at least respect enough for men of his own choice, to have supposed them capable of knowing when a fact was proved or not.

That judgment rendered by men of abilities and integrity, rendered after two years most laborious hearing of the cause, on the spot where the facts were controverted, against the popular side of the question, in defiance of clamour and riot; that judgment quieted the plaintiff in his enjoyment of the property, but did not give him a new possession. It referred to that which he had always enjoyed, and made perpetual an injunction against disturbing him, which had been granted at the beginning of the suit, two years before the passage of the law.

But because I took possession by virtue of my purchase from Gravier, after the passage of the law, my possession is not to

be protected. He could not have dispossessed Gravier, because his possession was anterior, but he may dispossess me who purchased that possession, because mine was posterior to it. What monstrous doctrine! Am I eternally obliged to be repeating the first principles of law, to one of the first lawyers in the United States?

That the vendee has all the rights of the vendor; that the possession of the one, is continued to the other, so as to effect even a title by prescription, is now for the first time called in doubt. It is true in all laws and particularly well settled in the civil-"Quotiens autem dominium transfertur; ad eum, qui accipit, tale transfertur, quale fuit apud eum qui tradit." Dig. de adq. rer. Dom. 1. 20. s. 1. The only question is, what possession had the person from whom I purchased? I say a complete one, a possession in fact, a possession in law, a possession shewn by record, and a just possession.

"Justè possidet qui auctore prætore possidet," Dig. de adquir. vel amitt. possess. 1. 11. "He is a just possessor who is in by the authority of the judge."-Gravier was in by the authority of the judge, by virtue of the injunction issued in April 1806, more than a year before the passage of the law.

Gravier's possession was my possession, it was a just one and was long anterior to the passage of the law.

If this were not true, every purchaser of property in this country, since the 3d of March 1807, would be liable to be dispossessed by the words of this act, although the seller had been in possession from time immemorial. It is clear then, that the act contemplated a new, not a continued possession, although the possessor might be changed. Mr. Jefferson, (p. 69), affects to think that my counsel contend for what he calls a remitter of possession under the judgment, and says he will shew the judgment to be void, as being given by incompetent judges. In the first place neither my counsel nor myself, have contended for any thing like a remitter. We had said what I have just repeated, that my possession is a continuance of Gravier's, that the pos session is entire, though the person of the possessor is changed, and we rely on the judgment only as evidence of the fact of possession, not as giving us any right against those who were no parties to it. Sensible of the weakness of his argument on

this point, Mr. Jefferson is reduced to a necessity which would deserve our pity, if the expedient he adopts to relieve it, did not excite feelings of a different description.

"If (says he) the judgment of the Court had been a remitter," that is, if my possession should be deemed a continuation of Gra vier's, and of course not subsequent to the law, "then I should have observed that the order had been executed on a person not comprehended in it, for it was expressly restrained to possessions taken after the 3d of March, 1807. In that case the marshal must justify himself not under the order, but in virtue of his personal right to remove a nuisance." What?-The whole of this transaction, then, is a trap for the poor marshal: you have worded your order in such equivocal terms, that though he should do, what you acknowledge it was your intention he should do your order should be no justification for him; acting under the mandate of the President, that mandate is not to be his warrant, but he is to justify himself for taking possession of the Batture, as of "Lands ceded to the United States," under his right to remove a nuisance which he never did remove, and which both you and he well knew was no nuisance.

In the whole of this transaction, then, we find a consciousness of wrong, a fear, from the very commencement, of legal investigation, and a studied contrivance to shield himself from the consequence of his illegal acts, at the expence of those by whose ministry they were carried into execution; and this suggestion by which Mr. J. endeavours to escape from the responsibility of the act, and throw it on an honest man who would have lost his office if he had refused to obey; this generous contrivance by which the marshal is left to escape as he can, behind the poor paper defence that is prepared for him,-all this is of a piece with the plea made in Virginia, that I ought not to sustain my action against the principal aggressor, because I had not brought in his instrument to share the penalty and ease him of its load." In that case the marshal must justify himself not under the order, but his personal right to remove a nuisance." Not so, sir; the principal aggressor is not so easily to escape; it is not the marshal who is to justify himself, but the President who directed him; the order is not to be withdrawn, in order to make room for the abatement of the nuisance; the mandate and its maker, must and shall stand before the public, at least, if I