and hypothecated for the purchase money till paid, and that if the law-suit fails, the sale is void, and Bigarre to pretend to no damages for non-execution. It is observable here that neither buyer or seller risked anything. It was a mere speculation on the chance of a law-suit, in which they were to divide the spoils if successful, and to lose nothing if they failed.* It was by our law a criminal purchase of a pretense title, 32. H. 8. 9. and equally criminal by the law of that territory, where I presume the provision of the Roman law is in force, 'qui improbè coeunt in alienam litem, ut quidquid ex condemnatione in rem ipsius redactum fuerit, inter eos communicaretur, lege Juliâ, de vi privatâ, tenentur.' Dig. 47. 8. 6. 4 Blackst. 135. 'Whosoever shall take part in the suit of another, so that whatever shall be recovered by the judgment is to be divided between them, shall be subject to the Julian law, de vi privata.' By which law, ib. tit. 7. § 1. they were to lose one third of their goods, and be rendered infamous. The deed was not only criminal on its face, but was void by an express law of the territory, [a law of Governor Unzaga. Poydras 6. Rep. 25.] and so pro*14 nounced to be on the floor of Congress *by their representative, because not executed before either witnesses or notaries. It was kept secret from its date, till the day before judgment was pronounced, when the parties becoming apprised of the decision which was to be given, (for this was known at least on the 20th of May,) [Governor Claiborne's letter May 20, '07,] produced it, for the first time, to the Notary to be recorded. And the day after its publication, the court, by the opinion of two members against one, [Examen 3.] adjudged the property wholly to the very man, who, if he had ever had any right, had conveyed away two thirds of it, before he brought his action, and Alarm occa- the whole while it was pending. The alarm which this adjudication produced was immediate and great. The fact was notorious that, from the earliest to the latest ex Decision of sioned. * Lafon, in his map of New Orleans, says expressly that the Missisipi, at the city, is uniformly of the breadth of 300 toises only.-MS. Note. tension of the beach, the public had had a free use of it, as their Quai in low water, and in high water their port; and never before had their right been doubted by themselves, or questioned by their riparian possessors. If any fact was ever proved by human testimony, this is. Turn to the Pieces Probantes, and out of 29 affidavits of the oldest and most respectable persons in the territory, men who had, most of them, borne offices under their former government, 21 of them uniformly declare that the public had ever been considered as having a right to the beach, as their port and Quai, that, as such, the Governors and Cabildo had the constant care and control of it, had demolished buildings and enclosures erected on it, had, by public Ban, prohibited all erections or obstructions to its use, had themselves erected a rampart, to inclose within it a chamber accessible for earth at high water for rebuilding the city after the fire, and exercised uninterruptedly every other act of authority derived from the public rights; and 11 of them prove, as far as a negative can be proved, that the Graviers, till the change of government, and new views by Edward Livingston, had never pretended to more than the right of Common in it, and never had questioned that of the public, or the authority of the Governor and Cabildo over it. While they held the adjacent plantation indeed, they maintained the road and bank, as all rural proprietors are obliged by law to do: for here it is proper to observe, that pursuing the spirit of the Roman law, which prescribed that every one should maintain the public road along his own dwelling, 'construat vias publicas unusquisque secundum propriam domum.' Dig 43. 10. 3. The lands in Louisiana were granted generally on a condition, (called in those days *servitude,) of fur- 15* nishing ground for a public road, and of opening and maintaining that road. From which condition, however, they were released as to any portion of the ground which should afterwards become a town; the expense of roads or streets of that portion devolving then on the town itself. Accordingly * Rep. 19. Servitude of road. B. Gravier, after establishing the front of his plantation into a suburb, and thus cutting off the residue from the road and river, being called on to repair the road by an order from Governor Carondelet, who seems at the moment not to have adverted to the change, Bertrand Gravier answered, that having sold the lots faisant face au fleuve, fronting the river, he had abandoned the batture to the town, and that the road and levee could not be at his expense, the Governor correcting himself at once, says, 'Gravier is right, all this is true,' and immediately, and ever after had the repairs made by the public. And the Graviers from that time stood discharged from these burthens on the same principle which had freed the original owners of the site of the city from maintaining the banks of the city. This is declared by an host of witnesses in the Pieces Probantes, and probably could have been declared by every ancient inhabitant of the place. We are told indeed by Laroche and Segur, in their affidavit, [Livingston 66.] of Carondelet, and some other Governor asking leave of Gravier in 1795 and 1798, to deposit masts on the beach. If this be true, which Mr. Thierry, [p. 42.] who knew the witnesses, treats as ridiculous and absurd, it shows that they were forgetful, or inconsistent, or over complaisant; but not that Gravier required, or expected to be asked; and much less could it divest a public right, acknowledged from the earliest times, and essential to the commerce and existence of the city. An accurate discrimination indeed between the measure of right in the riparian proprietor while he held the adjacent farm, in the individuals of the nation as usufructuaries, and in the sovereign as their representative and trustee, as respectively apportioned to them by the law, seems not to have been attended to either by the citizens at large, or the adjacent proprietors. The riparian possessor appears to have been sensible he had some rights, without distinctly understanding what they were: but, whatever they were, he knew he had parted with them by the deeds establishing his fauxbourg. The citizens, in the daily habit of using without *Monile's affidavit, MS. control the port and Quai, imagined themselves exclusive proprietors of its soil, and came forward in that capacity, claiming, sometimes under some vague title which they did not define, and sometimes under the abandonment of right by Bertrand Gravier; *the Sovereign, formerly their kings, but *16 now the United States the legal holder of the public rights in the beds, beaches and banks of all navigable waters, seems not to have been thought of at all in the con U. States no party. test. The United States were no party to the suit t; nor could they be, having made themselves amenable to no tribunal. Their property can never be questioned in any court, but in special cases in which, by some particular law, they delegate a special power, as to the boards of Commissioners, and in some small fiscal cases. But a general jurisdiction over the national demenses, being more than half the territory of the United States, has never been by them, and never ought to be, subjected to any tribunal. Not adverting to this circumstance, however, the consternation in New-Orleans, on this decision, was like that of Boston, on the occlusion of their port by the Boston port bill. If we have not forgotten that feeling, we may judge what the citizens of New-Orleans felt on this decree of the court. The governor instantly writes, [letter of May 20, ’07.] ‘I understand that this morning an important cause has been determined, in which Edward Livingston was the real plaintiff, and the city defendant, as to the right of property to some lands in front of the fauxbourg, made by the river, and over which the city has heretofore exercised a right of ownership. My impression is that the United States are the legal claimants to it.' On the 21st of August, 1807, Mr. Derbigny's opinion was published, [Thierry 5.] and first brought into view the right of the United States, and that the sentence of the court must of course, as to them, be a mere nullity, 'res inter alios acta, quæque aliis non potest præjudicium facere.' A thing passing between others, and which to no others can do prejudice. Codex. 7. 60. And coming, with respect to the United States, under the provisions of the same code. Tit. 56. 'Si neque mandasti fratri tuo defensionem rei tuæ, neque quod gestum est ratum habuisti, præscriptio rei judicatae tibi non oberit et ideò non prohiberis causam tuam agere, sine præjudicio rerum judicatarum.' 'If you have not committed to your brother the defence of your right, nor sanctioned what has been done, the plea rei judicata shall not bar you: and therefore you shall not be precluded from conducting your own cause, without exception from a former decision.' Certainly the city council did not appear, or pretend to appear, under authorization from the government of the United States, nor as the advocates of their rights. They were called there as defendants of their own claim. The court did not un *17 dertake to decide on the right of the United States, which was neither before them, nor within their competence; and the injunction they issued could only be addressed to the parties between whom they had adjudged, and not to suspend the rights of others whom they had never heard, much less of the United States, who could not be heard before them. See 2 Dallas 408. 3 Dallas 412. 414. 415. Intrusion. Presuming, however, that the coast was now clear, and the question finally settled, the ostensible actors withLivingston's drew, and their principal comes forward, is put into possession by the Sheriff, and begins his works. The Governor, in his letter of Sept. 3, 1807, says, 'a few days since, [Aug. 24.] Mr. Livingston employed a number of negroes to commence digging a canal which he projected to take in a part of the land called the batture. But the citizens assembled in considerable force and drove them off. On the day following he went in person, but was again opposed by the citizens. The minds of the people were much agitated. The opposition is so general that I must resort to measures the most conciliatory, as the only means of avoiding still greater tumult, and perhaps much bloodshed. I have not issued a proclamation because it might make an impression in the United States that the people are disposed for insurrection, which is not true. My opinion is that the title is in the United States. If the batture be re |