The Writings of Thomas Jefferson, Vol. 8 · Thomas Jefferson
THE BATTURE AT NEW-ORLEANS.
This then is the system of law by which the legal character of the facts of the case is now to be tested: and the plaintiff and his counsel having imagined that, in the Roman branch of it, they had found a niche in which they could place the batture to great advantage, have availed themselves of it with no little dexterity, and by calling it habitually an alluvion, have given a general currency to the idea that it is really an alluvion: insomuch that even those who deny their inferences, have still suffered themselves carelessly to speak of it under that term. Were we, for a moment to indulge them in this misnomer, and to look at their claim as if really an alluvion one, the false would be found to avail them as little as the true name. The Roman law indeed says, 'quod per alluvionem agro tuo flumen adjecit, jure gentium, tibi adquiritur.' 'What the river adds to your field by alluvion, becomes yours by the law of nations. Institute. L. 1. tit. 1. §. 20. Dig. L. 41. tit. 1. §. 7. The same law, in like manner, gave to the adjacent proprietors, the sand bars, shoals, islands rising in the river, and even the bed of the river itself, as far as it was contracted or deserted. Inst. 2. 1. 22. and 2. 1. 23. But the established laws of France differed in all these cases.
'Nous n'admettons pas comme les Romains, les alluvions, et les accroissemens, au profit des propriétaires riverains, soit par les changemens qui peuvent survenir dans le lit des rivières, soit relativement aux îles, et îlots qui peuvent s'y former. Chez eux le lit, et les bords des fleuves et rivières étaient censés faire partie des héritages riverains; et par une suite de ces maximes, le terrain qu'un fleuve ajoutait à ces héritages, appartenait à ceux qui en étaient propriétaires. Ils réunissaient de même à leurs possessions le lit que le fleuve abandonnait; et lorsqu'il se formait une île dans le milieu de son lit, les riverains y avaient un droit égal, et en partageaient la propriété. Suivant nos principes, les rivières navigables, leur lit, rives, et tous les terrains qui peuvent s'y former, appartiennent au roi, à raison de sa souveraineté. C'est la disposition précise de l'article 41. du tit. 37 de l'Ordonnance des eaux et forêts de 1669, qui a dissipé tous les doutes que l'on cherchait à faire naître dans plusieurs provinces, sur les fondemens des énonciations qui se rencontraient dans les anciennes concessions.
And he refers to the edicts of 1683. 1693. and 1710. And to put aside all further question as to the law of France on this subject. Louis XIV. by an edict of December 15, 1693, says, [Sidenote: 29*] 'Louis, &c. salut. Le droit de propriété que nous avons sur tous les fleuves et rivières navigables de notre royaume, et conséquemment de toutes les isles, moulins, bacs, &c. attérissemens et accroissemens formés pas les dites fleuves et rivières, étant incontestablement établi par les lois de l'état, comme une suite et une dépendence nécessaire de notre souveraineté, les rois nos prédecesseurs et nous, avons de tems en tems, ordonné des recherches des isles et crémens qui s'y sont formés, &c. A ces causes, de l'avis de notre conseil et de notre certaine science, pleine puissance et autorité royale, nous avons par ces *présentes, signées de notre main, dit, statué et ordonné, disons, statuons et ordonnons, voulons et nous plait, que tous les détenteurs, propriétaires, ou possesseurs des îles, îlots, attérissemens, accroissemens, _alluvions_, droits de pêche, péages, ponts, moulins, bacs, coches, bateaux, édifices et droits sur les rivières navigables de notre royaume, qui rapporteront des titres de propriété ou de possession, avant le 1er Avril, 1566, y soient maintenus et conservés dans leurs possessions, en payant au fise une année, et ceux sans titre, ni possession antérieurs au 1er Avril, 1566, en payant deux années de revenu.'
'Louis, &c., Greeting. The right of property which we have in all rivers and navigable streams of our kingdom, and consequently in all the isles, mills, ferries, &c. accumulations and increments formed by the said rivers and navigable streams, being incontestably established by the laws of the state, as a necessary consequence and dependence of our sovereignty, the kings, our predecessors, and ourselves, have from time to time ordered inquiries as to isles and increments therein formed, &c. For these causes, with the advice of our council, and of our certain knowledge, full power and royal authority, we have by these presents, signed with our hand, declared, enacted and ordained, and we do declare, enact and ordain, we will, and it is our pleasure that all the holders, proprietors, or possessors, of isles, islets, accumulations, increments, _alluvions_, rights of fishery, tolls, bridges, mills, ferriers, packets, bateaux, edifices and imposts on the navigable rivers of our kingdom which shall produce titles of property or of possession before the 1st of April, 1566, shall be therein maintained and secured in their possessions, on paying to the treasury one year's revenue, and those without title papers, or possession prior to the 1st of April, 1566, on payment of two years' revenue.'
Having no copy of this Ordinance, I quote it from Mr. Derbigny, p. 20. Duponçeau, p. 10. and l'Examen de la Sentence, p. 8, by putting together the parts they cite, for neither gives the whole of what I have cited. Other respectable authorities might be produced, to the same effect, were it necessary to multiply them: and it is also admitted that authorities of weight, and of a different aspect exist, among these is Dumoulin, as respectable as Pothier, Guyot, or any other who has been cited. Were it absolutely incumbent on me, more than on those who rely on the contrary authorities, to assign reasons for a difference of opinion among lawyers, on any point, it might be ascribed in this case to a difference of impression from views on the same subject, diversified as were the customs of the various provinces of France, on this very point. Dumoulin wrote a century and a half before the Ordinance of Louis XIV. In that course of time printing had become more diffused, books greatly multiplied, and a more correct collation of these customs could be made. So that had Dumoulin written in the days of Pothier and Guyot, and with their advantages, he would probably have concurred in the preceding observation, that, 'if there were any doubts, this Ordinance has dissipated them.' Be this as it may, Louis XIV. and his council have decided between these two opinions, and if it were not law before, his decision made it so. By this edict he declares the law of France, 'incontestably,' to be that '_Alluvions_ belong to the king in all navigable rivers.' But with a spirit* of indulgence, meriting more respect than he has found in the language of the adverse party who dislike the truths he has declared, he confirmed all anterior usurpations, on payment of certain compositions and future rents, re-establishing, by the example, the authority of the laws, and rights of the crown against these usurpations. This Ordinance was passed 19 years before the charter to Louisiana, and consequently was comprehended among the edicts and ordinances originally established as the law of the Province.
Government must be established and laws provided, before lands can be separately appropriated, and their owner protected in his possession. Till then the property is in the body of the nation, and they, or their chief as their trustee, must grant them to individuals, and determine the conditions of the grant. In certain countries, they have granted them on a system of conditions and principles which have acquired the appellation of Feudal. Surely then it is the sovereign which has created the Feudal principles, and not these principles which have created the rights of the sovereign. The Edinburgh Reviewers, [No. 30. 339. Jan. 1810.] who in the progress of their work have deservedly attained a high standing in the public estimation, reviewing the condition of land-tenures among the Hindoos, say, 'the territory of the nation, belonging in common to the nation, belongs, in this general sense, to the king, as the head and representative of the nation. As far accordingly as we have sufficient documents respecting rude nations*, we find their kings, _without perhaps a single exception_, recognized as the sole proprietors of the soil.' And they quote as their authorities, In Europe. For Wales, Leges Walliæ. c. 337. Great Britain. The Bretons while they held the whole island, Turner's Anglo Saxons, c. 3. Gaul and Germany. Cæsar, 4. 1. To which add Spain, Portugal, Italy, and all feudal states.
In Asia. For China. Barrow. 397. India. Montesq. Sp. L. 14. 6. Scott's Ferishta, vol. 2. 148-495. 2. Bernier, 189. Persia. 3. Chardin, 340. Syria and the Turkish dominions. 2. Volney, 402. In Africa. For Egypt. Herodot. 2. 109. Volney passim. Other parts of Africa. 4. Hist. gen. des voyages 13. v. do. 7. 5. 17. Mod. Univ. Hist. 322. Parke, 260. In America. For the Spanish part. Acosta 6. 15. and 18. Garcilaso, 1. 5. 1. Carli. letter 15. For the United States and the Indian hordes of our continent, we cite our own knowledge. [Sidenote: 32*] It seems then to be a principle of universal law that the lands of a country belong to its sovereign as trustee for the nation. In granting appropriations, some sovereigns have given away the increments of rivers to a greater, some to a lesser extent, and some not at all. Rome, which was not feudal, and Spain and England which were, have granted them largely; France, a feudal country, has not granted them at all on navigable rivers. Louis XIV. therefore was strictly correct when in his edict of 1693, he declared that the increments of rivers were incontestably his, _as a necessary consequence of the sovereignty_. That is to say, that where no special grant of them to an individual could be produced, they remained in him, as a portion of the original lands of the nation, or as new-created lands, never yet granted to any individual. They are unquestionably a regalian, or national right, paramount, and pre-existent to the establishment of the feudal system. That system has no fixed principle on the subject, as is evident from the opposite practices of different feudal nations. The position, therefore, is entirely unfounded, that the right to them is derived from the feudal law; and it is consequently unnecessary to go into the proof of what the grants in that country *exhibit palpably enough, that infeudations were partially at least, if not generally, introduced into Louisiana.
It ought here to be observed however that, so far as respects the beds and navigation of rivers, the right vested in the sovereign is a mere trust, not alienable. It is not like lands, imposts, taxes, an article of public property constituting the revenues of the state, but like roads, canals, public buildings, reserved for the use of the individuals of the nation. See an explanation of this subject, Vattel 1. 235. 239. [Sidenote: M. Thierry.] [Sidenote: 33*] I have now to advert, and I do it with extreme regret, to a passage in the very able Memoire of M. Thierry, a Memoire conspicuous for its learning and sound reasoning, and to which I acknowledge myself peculiarly indebted for information on the points he has discussed. He says, p. 30. 'To the ancestors of John Gravier the right of alluvion belonged, not only by virtue of the Coutumes de Paris, which for two centuries back acknowledged the principle of the Roman law, and against which, for that reason, the Ordinances of the kings of France could with no manner of success be pleaded, inasmuch as a royal ordinance specially made that Coutume the civil law of this colony; but also by virtue of the Spanish laws, which from 1769, have been constantly in force in Louisiana.' 1. That the Roman principle of Alluvion was acknowledged by the Coutumes de Paris has not been proved. The adverse counsel, [Dupon. p. 9.] has said indeed, that those Customs were silent on this subject. But I have considered Pothier, Guyot, and Le Rasle as better authority.
2. Mr. Thierry supposes that a Royal Ordinance having specially made that Coutume the civil law of Louisiana, the Ordinances of the kings of France were excluded from the system, and could not control what was Coutume. He had not, I presume, seen the charter of 1712, which makes the edicts and _ordinances_, with the Coutume de Paris, the law of that province; nor sufficiently considered that had the Coutumes been alone established by one ordinance, another might change them. 3. He supposes the Spanish laws have given Alluvions to the riparian proprietor. But the laws of the province, established by their charter, were not annulled by the change of one king for another, as their legislator. The latter might change them. But has he done so? If he has, his edict must be produced, that we may weigh its words, and judge of its effects for ourselves. And we must guard against admitting that the example of a Spanish Governor, if such example has occurred, occasionally and incorrectly acting on the laws of Spain, amounted to a repeal of the whole system then existing, and a formal establishment of a different one.
'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 referred to.[93] [Sidenote: 35*] *Surely never was the urgency of squeezing argument out of everything 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 acknowledged 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 acknowledgment 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 acknowledging them_ as 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 characterize such reasoning respectfully. I shall therefore leave it to the reflection of others. And I think myself authorized to conclude on the whole, that had the Batture been really an Alluvion, its 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.
Pliny 1. 6. affirms that _ager_ is derived from the Greek ἀγρὸς of the same import. And in the Greek Pragmatics of Attaliata tit. 45. the law of alluvion uses 'ἀγρὸς' for _ager_. 'Τὸ ἀνεπαισθήτως διὰ τοῦ ποταμοῦ προστεθὲν τῷ ἀγρῷ μου πρόσχωσις ἐστὶν, ἤτοι πρόσκλυσις, καὶ ἐμοὶ ἁρμόζει.' 'Quod insensibiliter τῷ ἀγρῷ μου per flumen adjectum est, alluvionis est, et mihi competit. 'What is insensibly added by the river _agro meo_ is alluvion [_adundatio, adaggeratio_] and belongs to me.' In the same title 'ὅπερ ἐν τῷ ἀγρῷ σοῦ σπείρω σόν ἐστιν.' 'What I sow ἀγρῷ σου agro tuo, in your _field_, is yours.' And Stephens, in his Thesaur. ling. Gr. voce 'Ἀγρὸς' translates it 'rus, ager,' 'ἐν ἀγρῷ' in agro, ruri. Ἐξ ἀγρου, ex agro, rure. 'Εἰς ἀγρον, in agrum, rus.' And he cites examples: 'Νηῦς δέ μοι ἥδ' ἕστηκεν ἐπ' ἀγροῦ, νόσφι πόληος'. Hom. Od. 1. 185. 'My vessel is stationed in the _country_, apart from the city.' 'Διὰ τὸ μὴ μεγάλας εἶναι τότε τὰς ΠΟΛΕΙΣ, ἀλλ' ἐπὶ τῶν ΑΓΡΩΝ οἰκεῖν τὸν δῆμον ἄσχολον ὄντα.' Aristo. Polit. 5. 'Because, the _cities_ not being then large, the people were occupied in the _country_, where ἀγρὸς is proved to be pointedly the contradiction to πόλις, to wit, the _country_ to the _city_.
From these definitions it appears that the word ager, in the law, constantly means a field, or farm, in the country, and that a city lot is called _area_. In towns, the whole bank and beach being necessary for public use, the private right of alluvion would be inadmissible; and the adverse counsel have been challenged [Thierry, 33.] to produce a single instance, under the Roman law, of a claim of Alluvion allowed in a city. To this might be added a similar challenge as to the laws of England. These give alluvion on rivers, as the civil law does, to the riparian proprietor. Bracton L. 2. c. 2. § 1. Fleta. L. 3. c. 2. Can they from the volumes of English law, with which they are so much more familiar, produce one single instance of the private right of alluvion allowed in a city? In England, I mean, and not in America, where special circumstances have prevented attention to the law on this subject, or the breach of it. And this must be from the reason of the thing alone, because the common law never having been, like the civil law, reduced to a text, no verbal criticisms on a text can have co-operated against the claim.[96] Repeating, *therefore, my reference to the reasoning and authorities of M. Thierry on this point, and my own conviction of their soundness, I consider it as established that, were this question to be decided by the Roman law, the conversion of the farm into a fauxbourg of the city passed to the public all the riparian rights attached to it while a rural possession, and among these the right of alluvion.
The equity on which the right of alluvion is founded is, that as the owner of the field is exposed to the danger of loss, he ought, as an equivalent, to have the chance of gain. But what equitable reason could there be, in the present case, for giving to Gravier the benefit of alluvion, when he could lose nothing by alluvion? If the levee and bank were washed away, they would not go to his plantation, back of the suburb, for a new one. The public would have to purchase a new bed for a road from the adjacent lot holders. Then 'qui sentit onus, sentire debet et commodum.' [Sidenote: Beach or Batture not Alluvion.] But I do deny to the Batture every characteristic of Alluvion. The French and Roman law constituting that of the place, let us seek from them the definition of Alluvion. The Institute 2. 1. 20. gives it in these words, and the Digest. 41. 1. 7. §. 1. in almost verbatim the same. 'Quod per alluvionem agro tuo flumen adjecit, jure gentium tibi adquiritur. Est autem alluvio incrementum latens. Per alluvionem autem id videtur adjici, quod ita paulatim adjicitur, ut intelligi non possit quantum quoquo temporis momento adjiciatur.' 'What the river adds by alluvion to your field becomes yours by the law of nature. Alluvion is a latent increase. That seems to be added by alluvion, which is so added by degrees, that you cannot conceive how much in each moment of time is added.'
And in the Greek version of Theophilus, the words, 'Alluvio est incrementum latens' are rendered 'ἀλουβιων ἐστιν ἠ πρόσκλυσις ἢ πρόσχωσις,' translated by Curtius 'Alluvio est adundatio vel adaggeratio.' Retaining only the words of this paragraph which are definition it will stand thus. 'Alluvio est incrementum [_adundatio_, _adaggeratio_] agro tuo flumine adjectum, ita latens et paulatim, ut intelligi non possit quantum quoquo temporis momento adjiciatur.' 'Alluvion is an increment [_adundation_, _ad-aggeration_] added by the river to your field, so latent and gradual, that the quantity added in every moment of time cannot be known.' This is the Roman definition. In the Law Dictionary of the Encyclop. Method, _voce_ 'Alluvion' by Le Rasle, the definition is: 'Alluvion, un accroissement de terrein qui se fait peu-a-peu sur les bords de la mer, des fleuves, et des rivières, par les terres que l'eau y apporte, et qui se consolident pour ne faire qu'un tout avec la terre voisine.' 'Alluvion, an increment of ground which is made by little and little on the border of the sea, rivers or streams, by earth which the water brings, and which is consolidated so as to make but one whole with the neighboring ground.' To reduce the essential members of the Roman and French definitions to a single one, according with our own common sense, for certainly we all understand what alluvion is, I should consider the following definition as comprehending the essential characteristics of both.
1. 'Alluvion is an extension which the waters add insensibly. 2. By apposition of particles of earth. 3. Against the adjacent field. 4. And consolidate with it so as to make a part of it. 'Incrementum flumine adjectum latens et paulatim. { πρόσχωσις, adaggeratio. { πρόσκλυσις, adundatio. _Agro_. Qui se consolide pour ne faire qu'un tout avec la terre voisine.' I take this to be rigorously conformable with the French and Roman definitions, as cited from the authorities before mentioned, and that it contains not one word which is not within their unquestionable meaning. Now let us try the batture by this test. [Sidenote: 44*] 1. 'Alluvion is an extension which the waters add insensibly.' But the increment of the batture has by no means been _insensible_. Every swell of six months is said [Derb xix.] to deposit usually nearly a foot of mud on the whole surface of the batture, so that, *when the waters retire, the increment is visible to every eye. And we have seen that, aided by Mr. Livingston's works, a single tide extended the batture from 75 to 80 feet further into the river, and deposited on it from 2 to 7 feet of mud, insomuch that a saw-scaffold, 7 feet high when the waters rose on it, was, on their retiring, buried to its top. This increment is, surely, not insensible. See the Mayor's answer to the Governor, Nov. 18, '08. MS.
Ideas discussed in this chapter
Text from Project Gutenberg, public domain in the United States.