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That John Gravier having elected to take the estate as a purchaser by inventory and appraisement, the Batture, if Bertrand's, was not in that inventory, nor consequently purchased by John Gravier. That the deed from him to De la Bigarre was fraudulent and void, as well by the lex loci, as on the face of the transaction. That the decision of the court in his favour could in no wise concern the United States, who were neither parties to the suit, nor amenable to the jurisdiction. And consequently, that under all these views of the French law, the Roman law, the conveyances ‘face au feuve' the purchase by inventory, and the fraudulency of the deed to Bigarre, the plaintiff’s claim is totally unfounded. And, if void by any one of them, it is as good as if void by every one. But it has appeared further that the batture had not a single characteristic of alluvion: That the bank of a river is only what is above the high water mark: That all below that mark is bed, or alveus, of which the batture is that portion between the high, and low water mark, which we call the beach: That it serves, as other beaches do, for a port while covered, and Quai uncovered: and is the only port in the vicinity of the city which river craft can use. That as a part of the bed of the river, it is purely public property. That it is not lawful for an individual to erect, on either the bed or bank of a river, any works which may affect the convenience of navigation, of the harbour or Quai, or endanger adjacent proprietors on either side of the river. That though it is permissible to guard our own grounds against the current of the river, yet, so only, as to be consistent with the convenience and safety of others. That of this the legal magistrates are to be judges in the first instance; but even their errors are to be guarded against by an indemnification for all damages which shall actually accrue to individuals within a given time. That Mr. Livingston's works, in a single flood, had given alarming extent, both in breadth and height, to the batture:
had turned the efforts of the river against the lower suburbs, and habitations, not before exposed to them: that they would deprive the public of what was their Quai in low water, and harbour* in times of flood: that, by narrowing *72 the river one fourth, it must raise it in equivalent proportion, to discharge it's waters: that this would sweep away the levée, city, and country, or quadruple the bulk of the levée, and the increased danger to which that would expose it: and, even then, would infect the city, by the putridity of the new congestions, with pestilential diseases, to which it's climate is already too much predisposed. That Mr. Livingston was doing all this, of his own authority, without asking permission from the public magistrate, or giving any security for the indemnity of injured citizens: , That under the pressure of these dangers, the Executive of the nation was called on to do his duty, and to extend the protection of the law to those against whose safety these outrages were directed: And that the authorities given by the laws, 1. For preventing obstructions in the beds, or banks of rivers. 2. For re-seising public property intruded on; and 3. For removing intruders from it by force, were adequate to the object, if promptly interposed. On duly weighing the information before us, orders of the which though not as ample as has since been re- overnment. ceived, was abundantly sufficient to satisfy us of the facts, and has been confirmed by all subsequent testimony, we were all unanimously of opinion, that we were authorised, and in duty bound, without delay to arrest the aggressions of Mr. Livingston on the public rights, and on the peace and safety of the city of New-Orleans, and that orders should be immediately dispatched for that purpose, restrained to intruders since the passage of the act of March 3. The Secretary of State accordingly wrote the letter of Nov.30, to the Governor, covering instructions for the Marshal to remove immediately, by the civil power, any persons from the batture Ste. Marie, who had taken possession of it since the 3d of March, and authorising the Governor, if necessary, to use military force; for which purpose a letter of the same date was written by the Secretary at war to the commanding officer at New-Orleans. This force Ne. XVII. I.
however was not called on. The instructions to the Marshal were delivered to him about 9 o'clock in the morning of the 25th of Jan. 1808. [Dorgenoy's letter to the Governor] he improceedings mediately went to the beach, and ordered of Mr. under them. Livingston's labourers. They obeyed; but soon after returned. On being ordered off a second time, the principal person told him that he was commanded by Mr. Livingston not to give up the batture until an adequate armed force should compel him. And, in the mean time, Mr. Livingston had procured, from a single judge of the superior court *73 of the territory,” an order, purporting to be an injunction, forbidding the marshal to disturb Edward Livingston in his possession of the batture, under pain of a contempt of court. The marshal, placed between contradictory orders, of the national government as to the property of the nation, and a territorial judge without jurisdiction over it, obeyed the former; collected a posse comitatus, ordered off the labourers again, who peaceably retired; and no further attempts were afterwards made to recommence the work. Chancery I have said that the marshal received an order, Jurisdiction. - - - - - - - purporting to be an injunction. An authoritative injunction it could not be; because that is a Chancery process, and no Chancery jurisdiction has been given by any law to the superior court of that territory. It's judges were first established by the act of Congress of 1804. c. 38. with commissions for four years, and certain specified powers, which it is unnecessary to state, because an act of March 2, of the next year, c. 83. established, in that territory, “a government in all respects similar to that exercised in the Missisipi territory,’ which government had been established by an act of 1798. c. 5. ‘in all respects similar to that in the territory North-west of the Ohio.' So that we are to find all their powers in the Ordinance of 1787, for the North-Western territory, in which are the following words. “There shall be appointed a court to consist of three judges, any two of whom to form a court, who shall have a common law jurisdiction, and their commissions shall continue in force during good behaviour.” And again “The inhabitants of the said territory shall always be entitled to the benefits of the writ of Habeas corpus, and of the trial by jury.” New commissions were accordingly given to the judges appointed under the first law, and, instead of their former powers, they were now to have a common law jurisdiction. By these words certainly no chancery jurisdiction was given them. Every one knows that common law jurisdiction is a technical term, used in contradistinction to a chancery jurisdiction, and exclusive of that, the common law ending where the chancery begins. The one authority is here given, and therefore they have it; the other is not given, and therefore they have it not. For they have no authority but that which is given by the legislature. If they have not chancery powers, then, by this law, there remains but one other source from which they can legally derive it. The act of 1804 before mentioned $11, says “the laws in force in the said territory, at the commencement of this act, and not inconsistent with the provisions thereof, shall continue in force until altered, modified, or repealed by the legislature.” We have seen that the laws in force were the French and Roman, with perhaps some occasional Spanish regulations. It being perfectly understood that these were not meant to be included in
the *change, it follows that the term common law, when 74* applied to this territory, must be equivalent to the com
mon law of that land, or the law of the land. Was then the establishment of the French and Roman laws an establishment of the chancery system of law? Will it be said that the Roman and Chancery laws, for instance, are the same? That the civil law, and the chancery are synonymous terms, both meaning the same system? Nobody will say that. The system of chancery law is partly concurrent, but chiefly supplementary and corrective of that of the common law. It sometimes corrects the harshness of the letter, where that includes what was not intended. It gives remedies in certain cases where that gave none, and more perfect remedies in other cases. It is adapted to the common law as one part of an indenture is to it's counterpart. It is formed to tally with that in all it's prominences and recesses, it's asperities and defects, and with no other body of law on earth. It consists of a set of rules and maxims, modified by the English Chancellors thro' a course of several centuries, derived from no foreign model, but contrived to reduce specifically the principles of common law to those of justice. The Roman law has something similar in it's jus Praetorium, where the discretion of the Praetor was permitted to mollify and correct the harshness of the leges scriptae. But to apply the jus Praetorium to our common law, or our chancery to the leges scriptae of the Romans, would be to apply to one thing the tally of another, or to mismatch the parts of different machines, so as to render them inconsistent and impracticable. Our chancery system is as different from the civil, as from the common law. All systems of law indeed profess to be founded on the principles of justice. But the superstructures erected are totally distinct. The chancery then being a system clearly distinct from that of the French and Roman laws, it cannot be said that the legislature of the U.S. by establishing the French and Roman laws in Orleans, established there the chancery system. It will not be pretended that the process of subparna, used in the present case, and the sole and peculiar original process of chancery, is a civil law process. It is known to have been the invention of Waltham, Chancellor of Richard II. founded on the statute of Westminster the 2d c. 24. giving writs in consimili casu. Might it be urged (for I am really at a loss to conjecture on what grounds this power has been assumed) that possessing under the act of ’04, the powers of the chancery combined with those of the French and Roman laws, the subsequent act which gave them a common law jurisdiction, did not take away the others? In totidem verbis it did not, but in effect it did completely, by changing the government into one in all respects similar to that in the Missisipi territory, where there was no chancery jurisdiction. Moreover there is not a word in *75 the act of '04, which gives them *chancery jurisdiction. It says, “they shall have jurisdiction in all criminal cases, and original and appellate jurisdiction in all civil cases of the value of 100 dollars, and the laws in force at the commencement of this act shall continue in force.” Here then is their jurisdiction, and the particular system of law according to which they are to exercise it, and the chancery made no part of that system. This argument too would suppose that to the French, the Roman, the Spanish and the Chancery laws, the common law was also added. This would be an extraordinary spectacle, indeed, and the imputation of such an intention would be an insult on the legislature. Their laws have always some rational object in view; and are so to be construed, as to produce order and iustice. But this construction, establishing so many systems, and