Glass 
 
 E3J-a 
 
 Book. N 5 T"4^ 
 
BEFLY 
 
 ro 
 
 MR. OUFONCEAU. 
 
 MR. DUPONXEAU has lately published an an- 
 swer to my iVIemoir on the Batiure. In vain I 
 sought in that production, \\ hat its tide so positively 
 promises, a refutation. I have found in it long disser- 
 tations; to prove proposition^;, which, far from having 
 contested, 1 had clearly established ; I have found in it 
 sophisms, which I now undertake to refute ; assertions 
 the fallacy of which I will demonstrate ; and I have 
 perceived throughout a tincture of disir.genuity, which 
 every juri.-xonsult who respects himself, o.^ght to blush 
 to gi\e to his writings. These prelimir.ary observa- 
 tions will doubtless appear rather unceremonious, and I 
 am aware that they are ndt calculated to conciliate the 
 good will o£ the gerjerality of such persons as may chose 
 to accompany me through this discussion ; but they who 
 have read Mr. DupoDceau will please to recollect that I 
 am' represented 'by him as a man whose candour borders 
 on imprudence, and ihen they \\ ill surely excuse the 
 emotions of indignation vhich I have felt on the perusal 
 of a writing, in which the author makes it his sport to 
 advance, not only the most pieposterous parad xes, bat 
 assertions utterly repiig.sant to truth. Mr. Dup .nceaa 
 is pleased to acknowledge, th.it from the j.erusal of my 
 voluminous work, he has concluded that I aj)pear *' to 
 be possessed of a stock of knowledge on the subject of 
 general jurisprudence which falls to the lotof b it few of 
 those who have not made it their professional study ; 
 but that those acquirements in matters of science, which 
 are suiTicient for the purposes of elegant accomplishment 
 
 A 
 
¥;\\\ not do for practical use, and that the application of 
 every branch of human knowledge, is safest in the hands 
 of those who profess it exclusively, and have made it 
 the study of their lives." Were Mr. Daponceau argu- 
 ing on the same side with me in this discussion, he might 
 with propriety express himself in this manner j for it 
 were only to say to me in other words : tho' you have 
 not produced a performr.nce absolutely destitute of 
 merit, much more justice might have been done to your 
 cause ; and this I readily believe. But if his object 
 was merely to throw out these reflections as a prelude 
 tu his intended refutation, I am sorry to observe to him 
 that, besides iheir beirg idle, inasmuch as they do not 
 prepare the mind for auy proof contrary to what I have 
 advanced, they involve a kind of paralogism, as they no 
 where could possibl) have found a proper place, except 
 in the opening of an argument whose object were to 
 make the cause I defend, wear a better aspect than it did 
 from my reasoning. 
 
 It should seem that one of the greatest advantages 
 Mr. Duponceau has derived from the constant study 
 of jurisprudence, is to set himself free from all restraints 
 of order or fidelity in his refutation. I might howe- 
 ver observe to him, that as he had acknowledged the 
 order of my discussion to be excellent, he was indispen- 
 sibly bound to follow me in that order ; that the plan of 
 refutation which he has adopted, betrays either impo- 
 tence or disingenuity ; that where the order of discus- 
 sion is broken, we invariably find that the principles are 
 insulated from their consequences ; that, in a word, 
 there can be no refutation of a work of which all the 
 parts are connected, when he who attempts to refute it 
 docs not strictly confine himself to the order in which 
 the several parts have been conceived and arranged. 
 But I am willing to wave these objections, and I con- 
 sent to consider the distribution made by Mr. Dupon- 
 
(3). . 
 
 ceau ; I will not say as presenting the substance of my 
 work, for the developement of the first proposition is 
 exceptionable, and the statement of the second is entire- 
 ly of his own invention ; but as capable of preseniingaa 
 order to which I will strictly adhere in the discussion. 
 
 Before I enter on the main subject, I think it may 
 not be amiss ti give some idea on the sincerity of my 
 antag )nist- Mr, D lojnceau pretends that my charge 
 was groundless, when I taxed Mr. Derbigny wi h hav- 
 ing mutilated, in a publication in the Monitor, the only 
 quotation he there made from my work ; and he under- 
 takes to prove that Mr. Derbigny had read and under- 
 stood me correctly. 
 
 In order to refute the pretended proofs of Mr. Du-^ 
 ponceau, I need only lay before the impartial reader 
 the very expressions of Mr. Derbigny, and the passage 
 in 37ch page of my Mem )ire to which he refers '•'' It is 
 unfortunate,'* savs Mr. Derbigiy, in speaking of the 
 question of the law of nadoas, '•'■ that after having estab- 
 lished it on a very good basis, he has himself endeavor- 
 ed to destroy his own work, by admittir.g ihat Messrs. 
 Gravier 5»nd those from wht)m they derive iheir title, 
 have constantly enjoyed the right of taking in the suc- 
 cessive portions ot batiure (page 37) which die consoli- 
 dation of the soil permitted them to incorporate with 
 their estate." 
 
 Here follows, word for word, the passage of page 37, 
 to vvh'ch Mr. Deibigny alludes : 
 
 *' What in the next place proves in a victorious and in- 
 " contestible manner, that B. Gravier, in convertmg his 
 '' hereditament into a suburb, had alienated not only the 
 '' principal, but even the accessory, that is, the poriion 
 *' of alluvion then existing, is that, according to the 
 *' point of departure established by Mr. Devezm in his 
 *' survey, and which, agreeably to the opinion of Mr. 
 *' Lafon and the sentiment of Mr. Du ponceau, was 
 '^ not a fixed and immutable point, but only a poiatr 
 
• • (4) 
 
 « from wh'ch the land then appeared tillable, the Je- 
 *' &uit*b plantation, of which that ut iMr. Gravier was 
 *' but a ;)0-iion, c.^niain^d ai tha: tunc bat fifiy arpents 
 *' ill depth, wheiea. it re.uks fro.n the smvey Idtely 
 *' made by Mr. Maisuy, ihac the Gravier plaiKdtion, 
 *' beginnir.g from .he angle of the suburb on the city 
 '' side, is found to have a deptti of fif.y-;,ix arpents. 
 *^ Of th s d.IF-^e.ice, the sole cause tc/ be assigned is 
 " the successive reinion of (/.'^.- ento.rti ns -.f alluvion^ 
 " of which B. Gravier, a \\ .h > .e fro.n vvh Jin hj holds 
 "" 7niy hav iivai't^d IfitmsctvMj^^ 
 
 I now ask aiy iiia.i wh ) d >e3 not mike open profes- 
 sion of disir.genuity, whether it can be pretended that I 
 have admitted that fvLe^srs. G-avier and those froni 
 ^vhom they deri\e thei*- title, h'lve C' nstantly enjo\ ed 
 the rightrf taki g in the p(;jtit.n;5 of batture which \he 
 consolidation of die soil ];ermitted them to iixorporate 
 with hj^ir estate I 
 
 That a cursory and superficial reading of this passage 
 may not have sufficed at <nice to give to Mr. Derbigriy 
 a corect idea of whit 1 had advanced, insomuch that 
 he has attributed to both the Graviers rights which had 
 belonged to Bertrand Gravier, until the period when he 
 converted his estate into a suburb ; this is the less 
 strange, as Mr. Derbigny's attention was at the time 
 much engaged in a woik which he was writing on the 
 same subject ; and indeed the frankness with which he 
 has since acknowledged his error, has fullv convinced 
 me that it was involuntary. But that Mr. Duponceau, 
 in a refutation which he has written, havii^g before his 
 eyes the two objects of comparison, should pretend 
 that hi^ bro'dier lawyer fhid ivell mil and understood me^ 
 this would bespeak an unpaidonabie excess ol levity, 
 if we did not discover, in almost every line of this work, 
 multiplied proofs of his want of sincerity. 
 
 Mr. Duponceau reduces to four propositions, the sub- 
 Stance of my Memoire. The dev elopement which he 
 
(5 ) 
 
 irivcs of the fir<it, rests on principles diametrically op- 
 pobiie to th'>be on which I rt-ued. If he is to be be- 
 lieved, I have asserted that the Batture is part of the 
 bed of ihe Mississi-pi, and as such, is public property. 
 
 I have said, and I have proved : l^t. that the Batture 
 was not an aUuvion, l)ui that it ft^rmed the bai.k, and 
 even a i)art of the bed of the ri'.er; 2dly, that the 
 Batture, bv the establishment <if the suburb, of which 
 it formed the barb >r, had ih-ui become public property; 
 but that, until that period, the sod of n had belonged 
 to the « ordering land- holders, and thii absjluie use of 
 it, to the peo.le ; which is very fa r from having assert- 
 ed 'hat it was originaii\', in its nature, a public property. 
 
 The second pr(^, ositi m is entirely of Mr. j^up^mceaa's 
 own invention. He imputed to me an opiai<;n abso- 
 lutely contrary to the doctrine wh.ch i have pnfessed, 
 and asserts positively that I have maintained that, by 
 the law of naiions as wexl as by the Roman, Span^h 
 and French laws, bai^ks of rivers were public property. 
 The only refutation that such an assertion merits, is to 
 refer him to page 10 *>f his woik, where he formally 
 SicknowltdgGS ihdi I hav(' g-'v en up in t tie mjst explicit 
 vtai.ner the pnnciples oh luhich Messrs. luoreau and 
 JD^.rbigny hac/ founded their legal opinion. Now, v. hat 
 were those principles i The verv same that Mr. Dapon- 
 ceau has since so gratuitously imputed to me : ihac the 
 banks of rivers are public property ; and c^msequently 
 the very principles which I declined to defend, because 
 they might lie open to some objections. I therefore 
 determined to aig ic r,nly a fortiori^ rei\ ing wholly on 
 the civil law, to avoid giving any room for a reply ; and 
 I have effectuallv attained the end 1 had in view, inas- 
 much as of th >se four proposition, the two former are 
 foreign to me, the one in the developement, and the 
 other in the statement ; and the two latter, though faith- 
 fully reported, have not been made by Mr. Duponceau 
 the subject of any refutation. I might say, as to the 
 
(6 
 
 two former propositions, that he ha<^ brought them into 
 view for no other purpose than to draw from them the 
 subject of a long dissertation on points which I am far 
 from having contested, in order to give to his writing 
 the air of a refutation, nearly as Don Quixote, for want 
 of real adversaries, created imaginary ones in the wind- 
 mills, to procure to himself the honor of combating 
 them. As however, some of the authorities cited by 
 pie, have been distorted by ]Vh% Duponceau, it will be 
 no additional trouble for me, in restoring them to their 
 true sense, to follow hun through all the different points 
 of his discussion. 
 
 " The scene is shifted, says Mr. Livingston's counsel, 
 the batiure is no longer an alluvion, it is simply a bat- 
 ture ; a kind of non dcscr'ipt thing mi gene^-'is^ a thing 
 which has never been known or heard of in any other 
 country, and consequently a fit subject for non de script 
 principles, and unheard of rules of law. Thus Oliver 
 Cromwell, say the historians, chose the title of prott'C- 
 tor, in preference to that of king; because the powers 
 of the one was defined, but those of the other were not." 
 
 After so dashing a decision, and such learned rea- 
 soning, it is really unpleasant for Mr. Duponceau that 
 the word Batture is so well known that one needs only 
 to look for It in Boyer's Dictionary, to find its true 
 signification in English. That auihor englishes t?asse 
 or batture by fat or shoal^ and he takes particular care 
 not to confound it with alluvion^ of which he gives a 
 distinct definition in his double dictionary. I know that 
 Mr. Duponceau is as little inclined to parcion me for 
 not having confounded those two terms, as Mr. Liv- 
 ingston is disposed to forgive the President iov hav- 
 ing employed in his message the word shoal, instead of 
 the word alluvion;* but these gentlemen have here.no 
 
 •» Mr. Livingstons address to the people of the United Statesj page 2^. 
 
(7) 
 
 cause of reproach against either the President or me, 
 this dis^inctiiin, unfortunately for them, appears to have 
 been established about a century ago, by a writer whose 
 authority in such case, is conclusive with regard to both 
 the languages. 
 
 From the identity of the idea attached to the words 
 Plage and Butture^ as well as from the nature of things, 
 I was warranted to say that a Batture was to a river 
 that beats against its strand, what a Plage is to the sea 
 that beats its shore ; for the sole difference between 
 these two words, Plage and Batture^ is merely that 
 of the two languages to which each of them belongs. 
 The one is Greek, the other is French ; but they both 
 perfectly represent the same idea. Plage is evidently 
 derived from Plegc of which ti^e Dorians who inhabit- 
 ted Grecia Magna, or the kingdom of Naples, made 
 Plaga^ which the Latins adopted, as they ^\&fama^ in- 
 stead of pheme^ &c. Pltge signifies the action of one 
 body striking against another ; and the Greeks applied 
 it, by metonymy, to the shore of the sea, «/>o ioit och 
 thou para ton chumaton peplegirienou^ that is, from the 
 shore's being beaten by the waves. 
 
 The Italians, the Spaniards and the French, have con- 
 tinued to give to this word the same acceptation. Thus 
 Plage and Batture are substantially synonymous, the 
 one representing the place v/herc the billows of the sea 
 beat, the other the place washed by the waves of a ri- 
 ver. I am well aware that such investigations would 
 more properly find place in an etymological dictionary, 
 than in the discussion of a point of lavv ; but as the main 
 argument of my adversaries is in reality no more than 
 a sophism built on the pretended synonymous import of 
 the terms alluvion and batture, which are words of es- 
 sentially different and distinct acceptation ; in order to 
 refute them, I could not avoid referring them to the 
 most certain elements of language. Had it been as 
 easy for the parliament of England, to circumscribe the 
 
(8 ) 
 
 authority of the protector, by known precedents of a. 
 similar dignity in history, a^ it is to establish a precise 
 and posiiive distinciion between the natu'e of an allu- 
 vion and that of a.batture, there is not the least doub^ 
 but that, in order to attain his purj)0,e,. Cromwell would 
 have given to his government a very different denomi- 
 nation. 
 
 Mr. Duporceau pretends that the definitions to which 
 I have had recourse, have noi p»Oved that ihc batture 
 was on this bide the bank, and he ob^et ves that in dis- 
 cussing the points on wb.ch I rely, he will onfine his 
 references lo the verv authorities I have adduced* 
 
 In order to di cuss \n\ a'guments, and to overthrow 
 them, it would have been nece sary first to prove, that 
 the batture was an alluvion; and as that accession of 
 propert\ requires three cc.ndi ions nhich I have perfect^ 
 ly ebtablihhed fjom auih(*rine.s which Mr. Dapoiiceau 
 takes special ca>e to pass over in sil-nce, to wit, 
 the imneiceptib-ly of the increase, the sicciiy and con- 
 solidaliO-i <'f that accessory with ihe pjiricipai, and 
 finailv such a dereliction of the river, that what consti- 
 tuted its bank, be out of [iublic u.e, that gentleman 
 -ought to have begun by releasing the allusion from such 
 rigid condii.ons. But it is evident that he found that 
 impossible, inasmuch as he must necessarily have con-'' 
 founded it widi the bank, which musi be, and which in- 
 deed by its nature is, a different thing ftOm alluvion, thci 
 ©r.e being the j)ropert} of the borderer, but subject to 
 the undisiuibed use of it which he must aliow to the 
 public, while the odier belongs, without any reserva^ 
 tion, to the borderer, both as to ownership, and to ex- 
 clusive use. It is then fal e that Mr. Duponceau has 
 ccmbated the arguments which I iu-g' d agamst him, he 
 has not even atempted to attack them. 
 
 Let us now exainine whether it be true that I have 
 not proved that the butture is on this bide the bank of 
 the nver. 
 
(9) 
 
 Tt is an fnvanable rule in jurisprudence, that to forna 
 a correct judgment of the meaning of a law. its variou* 
 relations must be compared one with another. " Ad 
 perspiciendiim sensum l^gis, oportet omnes h \jus arti- 
 culos in vicem comparare. '* Mr. Duponceau, after 
 having announced his intention to refute me without hav» 
 ing recourse to any authorities but those cited by me, 
 begins bv keeping out of view the definition of the river 
 given by Paulus : Ripa est quod plenissimum flumen con- 
 tinet " The bank is that which restrains the river when 
 the waters are highest. *' This intentional omission of 
 Mr. Du Ponceau's is the more remarkable, as the au- 
 thority of Paulus is confirmed by Domat, in his legum 
 delectus^ and especially by Pothier, in his classification of 
 the Pandects, a work which, according to the opinioo 
 of that celebrated jurisconsult, comprises the entire sys- 
 tem of the wisdom of the Roman law. Universum ci» 
 vilis Romanorum sapiencix systema in hia pandectif 
 continetur. Path. Proieg, 
 
 If those two writers do not report the definition of 
 TJlpian, it is not, as we shall see, because it essentially 
 differs from that of Paulus, but because it is far from 
 having the same perspicuity and precision. 
 
 Ripa autem^ ait Ulpianus^ tfarecte d-Jinietur id quod 
 jlumen continet^ naturalem rigor em cur. its sui ttnens, 
 Cceterum .li quando vel imbribus^ vel nivibus^ vel mari^ 
 velqud alia rattone^ ad iempus excrevit, rtpas non mutat, 
 Nemo dinique dixit Neliim^ qui incremento JEgyptum 
 eperit, ripas suas mutare vel ampliare f Lib 68 ad Edic' 
 turn. J " The bank, says Ulpian is that which stnctif 
 «' restrains the river in the natural course of its waters. 
 *' If however it should sometimes experience an extra- 
 " ordinary or temporary swell, owing to rains, to snow, 
 " to the sea, or to any other cause, it does not change its 
 " banks. No one in short has said that the Nile, which 
 ^' covers Egypt by iti increase changed or extended its 
 " banks." B 
 
(10 ) 
 
 We shall now see, from the very expressions of U1- 
 |)ian himself, In the same .book 68 ad Edictum what is 
 the true sense of the definition : 
 
 " Semper certior est naturalis cursvsjiiimimim cestate 
 pot'ius quam hyeme.'''* It is in summer, rather than in 
 winter, that ihe natural Cv»urse of rivers is to he ascer* 
 tained." Now the Battuie is, evervyear, constantly co- 
 vered with water, until ihe m«>nih of August; hence it 
 might be comprised even in the d'^ftnition of the bank 
 given by Ulpian. As to ihe restriction which f(>llows it, 
 and is indicated by vhe adversative particle iceterum^ it 
 is evident that it applies to an extraordinary swell, to an 
 inundation. Rains and the thawing of ihe snow, being 
 ever the sole efficient causes of rivers, the only case in 
 which tJlpian can have rej^resented ihem as extraordina- 
 j-y circumstances, a; d have united them with other acci* 
 dents, is when the body of water arising from them, 
 exceeds the regular vohmie that usually encreaseg 
 rivers. This is fully evinced by the concurrence of se*- 
 I'eral expressions which, in a pretty short sentence, all 
 present the characteristic marks of a fortuitous event 
 produced by other causes than such as are indispensably 
 necessary to the existence of rivers. Si quando excrevit 
 ad tempus^ vd mari vel qua ;dia ratioJie, 
 
 In thus expressing himself, it is clear that Ulpian did 
 not mean to give an idea of a regular and periodical 
 swell. Had such been his intention, he surely would 
 have said : Si nivilms^ imbribus^ vel ?nari^Vf I alia notd 
 raiioie ad (ertum ttmpus crevit and not, si quando ex- 
 crevit. This restriction laid dov/n by Ulpian, is there- 
 fore, as I have already observed, entirely applicable to 
 inundation, of which we shall soon have occasion to 
 speak. When UljJian then insiances the Nile, hib ob- 
 vious intent is to establi h a distinction between a river 
 regularly contained wiihin its banks, and one that pe- 
 riodically overflows them ; and moreover, from the fact 
 of lower Eg\ pt'^ being annually inundated, it does not 
 ibllow ihat there is any manaer of reason to compare to 
 
(11 ) 
 
 the land of Egypt, this country which is exposed onlvt© 
 fortuitous inundations, happening at very distant peri ^ds., 
 
 Let us now proceed to the definition in Cui ki Phili^ 
 pica^ which Mr. Duponceau has contrived to distort so 
 effectually, as to find in it a meaning contrary to that 
 which it contains, and really presents. '* La ribtra 
 del rio ae entitnd' todo lo que cubre el a_^ua d^ el qu indo 
 mas cres'c enqualquh-ra tiempo del ano^ sin salir de su 
 hyema y madre. " By the bank of a river is understood 
 whatever is covered by its waters when at their greatest 
 increase, at any time of the year, without going out of 
 its bed. 
 
 Mr. Duponceau pretends to prove from the clause, 
 sin salir de sti ht/etna y mad'e^ h.u the Mississipi over- 
 flows its banks when it covers the BaLture,and ihat cor- 
 sequently the latter cannot be the bank of hat river. He 
 likewise gives us to understand that the levees are no* 
 to be considered as banks, and he is lavish of ingenious 
 pleasantry in ridiculing the idea of raising dikes, in order 
 to create artificial ba .ks, to supply the want of natural 
 ones, (page 31 ) Nar, he proposes to me, page 36, 
 the solution of this problem, at what precise point of the 
 bank of a river, djes private property begin, and public 
 property end ? 
 
 I will first examine whether the batture can be consi* 
 dered as covered by the effect of an inundation, while 
 the Mississippi does not overflow its dikes; and after 
 having sought in ihe Roman law for authorities which 
 may at once define the bed of a river, and present the 
 circumstances which are characterisiic of an inundation, 
 I will endeavor strictly to determine the natural breadth 
 that cannot be refused to us bed. Should I succeed in 
 establishing this in a certain and irresistible manner, I 
 shall have obtained a sufficient solution of Mr. Dupon* 
 ceau's captious problem, which, after all, I might have 
 set aside, by adverting merelv to what it presented of an 
 Lnsolvable nature ; for as I have most clearly admiuecl 
 
(12) 
 
 that beyond the precincts of towns and suburbs, the soil 
 of the banks and of the bed of a river, is private pro- 
 perty, it is evident that this pitiful cavil by which it is 
 asked, at what point of, the bank of a river, public pro- 
 perty ends, and private property begins, would entirely 
 fall of itself. 
 
 A'vtus fossam sign'Jicat per quam Jiumen d labitur. 
 Harp, ad instit. Si fossa manu facta sit per quam fluii 
 jiumen puhiicum^ nihilo minus publira fit. Dig. lib. 43, 
 tit. 12. The bed signifies the sank channel in which a 
 river flows. If the channel in which a public river flows 
 be made by the labour of man, it nevertheless becomet 
 public. 
 
 Let us now apply these authorities to the case before 
 us. Does not the batture, wi:h reference to the soil of 
 the quay of the subjrb, form a sunk channel in which 
 the river flows daring 5 or 6 months of the year? This 
 point our adversaries have granted as to the fact, but 
 they contest it as to the cause. JVIr. Livingston has 
 maintained on the affidavit of Mr. Lafon, that the dif- 
 ference of level between the soil of the batture and that 
 of the suburb, a difference which consequen'^ly forms 
 part of the channel in which the river flows, was owing 
 merely to the adscititious earth thrown on the batture ; 
 now, even admitting Mr. Lafon's declaration, what 
 weight can there be in such an objection, when the text 
 of the digest expressly says : si J jssa manu facta sit^ 
 nihilominus publico /^" If the channel be made by 
 human labour, it nevertheless becomes public. It is 
 therefore uncontrovertible that under this first point of 
 ▼iew, the batture makes part of the bed of the river. 
 
 The throwing up of dikes is not, as Mr. Duponceau 
 would fain persuade us to believe, a measure out of the 
 contemplation of the Roman law ; nay, that very law 
 insists on its expediency. " Ripas fnminwn refctre^ 
 munire ulilissimum est:' Dig. lib. 43, tit. 15. Biit it 
 at the same time recommend* not to change the eourfie 
 
(13) 
 
 of rivers by confining them in too narrow a channel bjr 
 dikes. *• Si forte a^gerem vel qwvn aliam munitiojierft 
 adfitbuit ut agrnm suum tue^etur^ eaque res cursum Jiu' 
 minis ad aliquid immutavrrity cur ei non consulatur 9 
 Pierosque scio prorsu; Jiu>nina avertisse^ alveosque ?nu- 
 tasse dii^n prceiiis snis cansulunt '' t)ig. lib. 43, tit. 15. 
 If, peradveniiire. the throwing up of Dikes, or a;)/ 
 o hir work ,, would change in any manner the course of 
 the river, why should it not be attended to ? I knov^ 
 that many land-holders, in consulting the advan:age of 
 their own estates, have diverted the coarse of rivers or 
 changed their beds. It appears then that levees are 
 permitted a.id recommended by the Roman law, provi- 
 ded they do nr>t contract the channel in which the river 
 fl )ws ; therefore all the channel between two levees, 
 which during five or six monihs of the' year, confine the 
 waters of a river, makes an integrant part of its bed i 
 therefore the Mississippi does not go out of its bed 
 when it covers widi five or six feet of water, daring 
 half the year, a space which it leaves dry during '.he 
 other six months. And indeed, were that space which 
 is covered by the river at high water, to be considered 
 as covered by an inundation, to what should we apply, 
 on the one hand, the quando mas cresce^ since it is a 
 known fact that from the time that the river ceases to 
 be at low water it begins to cover the bature ; and oii 
 the other hand by what characteristic properties should 
 we be able to ascertain an inundation, or ra:her what 
 name would there remain to give to it, since the most 
 inconsiderable \ ise of the river, which would then begin 
 to be no lorger at low water, would have been consid- 
 ered as an inundation ? Nay we must exclude the light 
 of evidence, not to perceive most clearly that the legis- 
 lator understood that the effect of that utmost increase 
 of water should be to cover a space periodically left dry- 
 in the course of the year ; for if the bed of the river 
 Had left no space dry, and if the quando mas cresce wag 
 
(14 ) 
 
 to Tiavc had no reference but to the height of the water, 
 it would have beea nugatory to have provided for that 
 case. ^Vere it indeed consistent with the o^der of na- 
 ture that a river sho'ald retain the ame exjDaase through- 
 out the year, so that its increase should be perceptible 
 only by the depi.h of water, it would, I insist, have been 
 nugatory in the legislator to have said, " todo lo que 
 cuhre el agmi /f el qiianch mas cre^cc, en qiuilqn.iera ti' 
 tmpo del an 0^^"* ** ^11 that its waters cover in their high- 
 est swell at any tiiYie of the year whatever ;" since the 
 same space would have been covered, whether the river 
 were at low water or at its greater increase. Now, as 
 there can no more exist a law witho it an object, than aa 
 effect without a cause, it is m )st evident from he naked 
 text of Curia Philipica, that the space which a river 
 covers in its highest swell, with )ut g'>ing out of its bed, 
 cannot be considered as covered by the effect of an in- 
 undation. 
 
 Let us now enquire whether the characteristic pro- 
 perties of an inundation, as laid down in the Roman 
 iaw, do not corroborate this strict demonstration. 
 
 Iniindatio propr'te est cum fiurmm vel imbrihus^ vel qua 
 alia raiione auciu?n^ in vicinos campos ita se effandit, 
 ut nee ripas nee alveuin mutet, lib* i. §ripa de flum. Hoc 
 cum Jit ^ ait Justinianwi post Gajum, lib* 7. § aliud sane 
 causa^ (hoc tit.) fundi proprit'tiitem non amitti. Arnold 
 Vin Just. Inundatio non mut at fundi specieni : quid 
 ita P ^loniam inundatio rst snbHa et brevis sive exigui 
 temporisy sed ahdi occupatio est lenta ac diuturaa^ Harp, 
 ad insti. 
 
 There is inundation v/hen a river swoln by rains or 
 snow, or by any other cause spreads itself over the ad- 
 jacent lands, without changing its bed or its banks ; and 
 in that case Justinian confirms what was said bv Gains, 
 that the ownership of the soil is not lost. What is the 
 reason whv inundation does not change the species of 
 the soil ? It is because inundation is sudden and of 
 
^15 ) 
 
 short duration, whereas the occupancy of the bed le 
 slow and marked wilh diutarnity. 
 
 Tlius we see that what constitutes inundation is so 
 precisely determined, that it cannot be confounded with 
 the increase of the river, which slowly covers that part 
 of the bed which is left dry at low water. Lands over- 
 flowed suddenly and only for a short time, so that the 
 waters do not form there any excavation or work out 
 a new channel, such are the characteristic and constant 
 signs of inundation. Surely it is impossible to discover 
 the smallest trace of these in the occupancy of the bat- 
 ture by the Mississippi ; and nothing short of such an 
 abuse of words as to render speech unintelligible, can 
 occasion to be considered as an ipundation the periodi- 
 cal increase of the Mississippi, which covers during 
 five or six months of ihe }'ear a shoal contained within 
 its bed, not only by its dikes, but, I v/ili even go so fa? 
 as to say, by its natural ba. ks. 
 
 It IS a fact ascertained by the observations of geolo- 
 gists, that in general the sinuosity of rivers and navi* 
 gable streams form by opposition salient angles which 
 present elevated banks, and receding angles whose shores 
 are gently shelving towards the middle of their beds. 
 The little bay which forms the port of New-Orleans, 
 is an additional proof of the justness of these observa- 
 tions. A bluff rises opposite to the batture of the sub- 
 urb Sc. JMary which constitutes one of the sides of the 
 receding angle. Hence it is incontestibly evident that 
 on the one side the summit of this blafF, and on the 
 other the part of this batture which corresponds to its 
 level, must be considered as presenti g on this point 
 the natural banks of the channel forming the bed of the 
 Mississippi. Now, as for the exact ascertainment oi 
 this level, we cannot have recourse to a more correct 
 regulator than the water itself, it necessarily results that 
 all that is covered with v/ater on the side of the quay 
 of the suburb St. Mary, when the river has risen to the 
 
(16) 
 
 »4tinm^t of the opposite bluff, Is evidently a part of the- 
 nauMal chanjnel of the Mississippi. 
 
 Persuaded <>f the justness of these ideas, I requested 
 the Mavcr of New O. leans to direct the city surveyor 
 t" ascertain whether that shoal were or were not com- 
 prised in the natural chianei which fv^r.ns the bed of 
 the river, by meagiiringon different points the elevatioa 
 of the levee added to the opposite b'>uff, a: id then pro- 
 ceeding on this side, on points parallel to the former, to 
 deduct that elevation from the depth at the foot of the 
 levee which borders the baiture. 
 
 The citv surveyor performed this operation on fi;^« 
 different points, ard the result of it is, according to tha 
 •tatement contained in the proces verbal hereto annexed, 
 that before the river rises above the opposite bluff, thai 
 is, above ihe natural measure of its bed, the batture al 
 the very foot of the levee is covered with water to the 
 mean depth of two feet three inches and three fifihs. It 
 lA therefore an incontestable fact, that from the level of 
 the water itself, the Batture is included in the natural 
 channel or bed of the Mississippi. 
 
 I have said that Mr. Duponceau, in reporting as my 
 opinion that by the public law as well as by the Roman, 
 S, anish and French laws, banks of rivers were public 
 property, had onlv attributed to me a second proposition 
 wholly of his ov/n invenuon, and this it will not be diffi- 
 cult for me to prove. 
 
 In treating the question of public law, I have laid it 
 down as a principle, page 8, that the sovereignty, and 
 not the ownership, of navigable streams with their 
 banks and harbours, of high ways, and in a word, of 
 all means of communication, has ever belonged to the 
 government, under whatever form it may have been ad- 
 minisiered ; that this sovereignty, which essentially re- 
 sides m the people, is transmitted to their representa- 
 tives, or to the prince appointed to govern them ; that 
 k is liable neither to alienation, nor to modifieation $ 
 
(17 ) 
 
 and that in short, it is merely a sovereignty of protec» 
 tion and conservation. Such are the general ideas, suc^ 
 the basis on which I have founded the opinion I decla- 
 red, and still maintain, that the question on which we 
 are at issue was evidently complex. There is nothing 
 in such a definition that can warrant Mr, Daponceau'ft 
 confounding this sovereignty with a public property. 
 But 1 shall be asked, if it be not a public property, to 
 what can possibly apply that sovereigity of protection 
 and conservation ? I ansvver, to the public u^e, a right 
 which is totally distinct and different from that of | /?w^/i(? 
 property. ^' Udfrui jus sibi e.sse solus potest intendere 
 qui habet usumfructum ; doinimis ant em fundi non po» 
 tests quia qui habet proprietotem^ utcndi-J) uendi jus se^ 
 faratum non habet. *' Dtj^\ liv. 7, tit. 6. The use, (he 
 enjoyment to which he alone can pretend who has the 
 usufruct, nor can the owner of the estate claim it, be- 
 cause he who has the property has not the distinct right 
 cf using and enjcwing. 
 
 In order to obviate all objections, it was expedient 
 for me to consider this question of public law in a gen- 
 eral point of view, only inasmuch as I should advance 
 nothing repugnant to the public law acknowledged by 
 every nation whose authority could be adduced; and 
 consequently what I had to prove was, that the genera! 
 principles I had laid down were consonant with the dif- 
 ferent systems of iheir political legislation. 
 
 I accordingly adverted in the first place to the provi- 
 sions of the public law adopted by the Romans and the 
 Spaniards ; provisions which, in assigning to the bor» 
 dering land holder the property of river banks, while 
 they reserved to the public the undisturbed use of the 
 same, necessarily placed that use under the protecting 
 conservation of the people, or of the sovereign; and 
 were entirely conformable to the general ideas which I 
 had just presented. I next brought into view the prin-^ 
 ciples of the public law of France and of England, where 
 
 C 
 
(18 ) 
 
 the king is the established lord of the shores ; but I di4 
 not urge th 'se princi'ples as my own opinion ; I only 
 adduced them in order to prove a fortiori, that those 
 same general ideas, which I had set out with unfolding, 
 were drawn from the public law of those two nations, 
 because the less is contained in the more. It follows 
 then that Mr. Duponceau could not, without exposing 
 himself to the reproach of the most glaring disingenui- 
 ty- represent it as my opinion that river banks xvere 
 public popartij^ and tliat the soil of the banks was noif 
 the property of the bordering land h Jder. 
 
 Let us now examine what opinion I have advanced 
 on this subject in the discussion of the point ©f civil law j 
 for it is evident from all that I have hitherto urged, 
 that Mr. Duponceai cannot be warranted in represent- 
 ing me as having given the preference to the public 
 lav/ of France or England. 
 
 That the Roman laws might be considered as writ- 
 ten reason, is a point on which I have ever seen men of 
 the most correct judgment agree. The superiority of 
 those laws is in no instance more remarkable, than ia 
 the question now before us. Were it not that the order 
 of nature is subject to mutation, insomuch that rivers 
 have dried up or changed their beds, and islands arise 
 within their channel, at the expense of their banks, the 
 legislator might, without inconvenience, have declared 
 that not only rivers, but the soil over which they flow, 
 as well as their banks, were among the niimber of pub- 
 lic things ; but it was necessary x^ provide for the case, 
 where any of the like changes might alter the situation 
 of private property, without impau'iag the use which 
 the public had naturally a right to exercise on rivers 
 and on their banks ; and for this case the Roman law- 
 has indeed provided, by a principle of ad nirable justice, 
 precision and forecast. Flumina et partus publica sunt^, 
 fiparumusus publicus est jure gentium* 
 
(19) 
 
 Such is strictly the doctrine from whence are derived 
 all the authorities which I have cited, and to which im- 
 mediately apply all the arguments I have employed in 
 the discussion of the point of vivil law.^*^ I defy both 
 Mr. Livingston and Mr. Daponceau to point out from 
 my wh ^le work any opinion or any passage that can^ 
 even by induction, be considered in the slightest degree 
 contradictory to this principle of Raman jurisprudence. 
 
 S>> far have I carried my scrupulosity in the discus- 
 sion of the point of the civil law, that I have kept out of 
 view all authorities drawn from the French law, and 
 amongst others the respectable opinion of Ferriere, who 
 positively says, in his law dictionary, at the word Port* 
 " The owner of an estat-e bordering on a navigable 
 river, cannot hinder a port's being attached to it for the 
 public utility, especiallv as by the French law shores be- 
 long to the king," This last citation was abundantly 
 conclusive, and sufficed of itself to decide the question. 
 I might with the more propriety have availed myself of 
 it, as Messrs, Ravvle and Ingersoll, of counsel for Mr# 
 I^ivingston, were of opinion that the French law must 
 govern in the decision of this claim. B.it as I desired 
 to meet Mr. Livingston on the ground chosen by him- 
 self, I thought proper to confine myself to the provi- 
 sions of the Roman and Spanish laws, as then I should 
 constantly possess the advantage of arguing a fortiori. 
 
 * I.Page 8. 2. page 14: The soil of the river bank is the private property 
 of the riparious land-holders ; but it is to be understood that rhe use of the 
 same belongs to the public. 3. Page 17: This use takes from the borderer 
 all exclusive enjoyment of the bank, over which his right of ownership 
 is absolutely similar to that which he may eventually exercise over the 
 bed of the river. 4. Page 32 &33 : By this change the public, who till 
 then had bad only the absolute enjoyment of the road and of the batture 
 in frontof Mr. Marigny's plantation, because the soil had not yet ceased 
 to belong to the latter, became thenceforth the owners of that road and 
 of that batture, as to the absolute right to the soil and enjoyment, in as 
 full a manner as they acquired the ownership of the soil of the streets of 
 that new saburb. 
 
(20) 
 
 I now ask whether Mr. Duponceau be not In a com- 
 plete state of mental derangement, (for after all I would 
 rather consider him as a man of crazed intellects, than 
 as being capable of such an excess of disingenjousness.) 
 when his refataiion rests continually on propositions of 
 his own invention, diametrically opposite to the doctrine 
 from which I have never deviated. 
 
 But he is not at th>j end of Ms resourses* That undis- 
 turbed use which the public h ive a right to exercise on 
 the banks of rivers, opposes to the projects of his client 
 an obstacle too great for him not ;o be startled at it, and 
 not to endeavour to remove, or at least to diminish it. 
 He therefore invokes the genius whose charitable wings 
 extend as happily over the conclusion of his reply to 
 Mr. Derbigny, as over Mr. Livingston's sublime pero- 
 ration ;^ and that angel of mercy suddenly turning to 
 an angel of darkness, inspires him with a little innocent 
 subterfuge, which makes him confound L'lttus with 
 Mipa^ that is, the sea shore with river banks. He at- 
 tempts to prove that the principle does not extend so far 
 a^ to hinder a bordering land-holder from building on 
 the bank of the river, and he cites this passage of the 
 Digest : in littorey jure gentium^ cedificare hcere, nisi 
 lisus publicus impediret, *'■ It is permitted by the la>V" 
 of nations to build on the shore, provided the public 
 use do not suffer thereby." But unfortunately for Mr» 
 Duponceau, this deception cannot impose on any one. 
 The di-tinction between littus and ripa^ is too well es- 
 tablished. Ripa est proprie fuminis siciili littus Maris, 
 Harp. ad. Inst. *^ Bank is a term properly applicable 
 to a river, as shore is applicable to the sea." The text 
 
 *See Mr. Diiponceau's last pamphlet, page 35, and Mr. Liviasjston's 
 Address to the people of the United Sfates, page 37. It is astonishing, 
 some will say, how great geniusses meet : but is there not still more rea- 
 son to think, that great masters have sometimes cerUia iJarasitical tine-' 
 tures tbat discover tbeir coDipositiQ&s ? 
 
(21 ) 
 
 is'no less clear by the distinct and different dcnnitiou 
 it gives of the bank. 
 
 Inst* lib, 2. tit, 1, § 4. Riparmn usus publicics est 
 jure gentium^ sicut ipiiius JlumiuiB, ;< itaque navrs, ad 
 eas uppellere^funes arborihin ibi natis religare^ onwi all* 
 quod in his reponere^ cui-Ubet liberum est sicut per ipsum 
 Jiumen navigare, Sed proprietas ecuum illorum est quo-' 
 rum prcediis hcerent : qua de causa arbores quoque iit 
 iisdem natce^ eorumdem sunt. 
 
 Ibidem § 5. LiUoricm quoque usus publicus cst^ et juris 
 gentium^ et ipsius maris ; et ob id cuilibet liberum est 
 casam ponere in quamse recipiat^ sicut rct'ia siccarey et ex 
 viari deducere, Proprietas auiem eormn, potest inteU 
 ligi nullius esse: sed ejusdem juris esse cu jus et mare^ et 
 qucesubjacet mari terra vel arena. 
 
 The use of banks is public by the law of nations, in like 
 manner as the use of the river itself ; v/herefore every 
 one has the same right to come to land there with a ves- 
 sel, to tie the same to the trees there growing, or to 
 discharge a loading there, as to navigate the river itself. 
 Yet the property of banks belongs to those whose lands 
 border on them ; wherefore the trees there growing do 
 likewise belong to them. 
 
 The use of shores is also public, both by the law of 
 nations and by that of the sea j and it is for this reason 
 that any one may build a h j.t there for shelter, dry his 
 nets there and draw them out of the sea. It may be 
 observed that the ownership of them belongs to nobody, 
 and that they are of the same common right as the sea, 
 or land or sand which it covers. 
 
 Dig. lib, 41. tit, 1, § 14. " De Littore et JEdrflcio ibi 
 positoJ" 
 
 ^od in littore quis ccdi/lcaverit, ejus erit : nam ditto- 
 ra pubiica non ita sunt^ uteaquce in patrinvmio sunt pop- 
 liliy sed ut ea quce primwn a natura prodita swtt et in 
 nullius adhuc dominium pevvcnerunt : nee diss'unHis con-^ 
 
( 22 ) 
 
 (Ji^io eon/m est^ otque pisczum et ferarUm qvce sitnul af^ 
 que afjpreki'nsa: :-,unt sine dubio ejus^ in ciijus potestatettt- 
 pervenerunt^ domhiii fiunt, 
 
 Fiudem § \5, dt' JEdificio in r'tpa posit o, 
 ," ^n autnn in ripd jlhmiuis cedijicat non suumfacitC^ 
 " Of the shore and of buildings there erected." 
 
 What any one has built on the shore, shall belong tO' 
 him, for shores are not public iii the same mauner as 
 things which are of the patrimony of the people j but 
 they are public as are the things which nature presents 
 and have not yet come under the dominion of any one ; 
 nor is their condition dissimilar from that of wild beasts 
 and fish, which, as soon as caught, are doubtless under 
 the dominion of those in whose power they have fallen. 
 *' Of a building erected on a River Bank." 
 
 " But he that builds on the bank of a river does not 
 produce any thing that he can claim as his property." 
 This distinction is also cleaily laid down in book 43, 
 tit. 8. (and not tit. 9.) for the shores of the sea, and tits. 
 12, 13' and 15, for banks of rivers. Adversus eum qui 
 molem in mare projecit^ interdictum utile compctit ei cut 
 forte hcEC res nocitura sit : si autem nemo du7nnum sentit^ 
 tiiendus est is qui in lit tore csdijicat, vel moleju in 7nare 
 jacit. 
 
 '' In littore jure gentium md'ijicare^ respondit Sccevola 
 iicere^ nisi usus puhlicns impedirety 
 
 He who might suffer detriment from a mound's being 
 thrown up against the sea, has a right to oppose the un- 
 dertaking ; but if it be detritnenai to no person, he is 
 to be protected who builds on the shore or throws up a 
 mound against the sea. 
 
 Scaevola made answer, that by the law of nations it 
 was permitted to build on the shore, provided it were 
 ttbt inconsistent with the public use.'* 
 
 But the provisions of the Dgest wHh regard to banks 
 6f rivers are entirely different : and far froai permitting 
 tbe building a house on a bank, they allow merely the 
 
(23 ) 
 
 ariaking or repairing of dvkes, and that only^oti cnndi* 
 tion that neither the navigation or anch >rage be i npaired 
 thereby. See book 43 of Dig. tit- 12: dt; fiumuiibn,^^ 
 ne quid in Jlumine publico rif)a v^ ejus Jiat, tit. 13- ii^ 
 quid quo aliter aquujihmt. tit. 14. de ripa miinitnda. 
 
 The reason of this ditference is very obvious ; for the 
 use of a river whose banks might be obstructed by 
 buildings would be, if rot absoli.ttlv null, at Itabt very 
 incommodious. Such is the doctrine of Harpprichtj 
 who coincides with Rittenhouse. 
 
 Rdiio cur ripnrurn iiaus sit publicuf: juris gentium^ 
 hccc ass^gnuri potest; quia alioqui, JI,,imnis si, e rifjci 
 ^aliret^ nut p line nullus aut ctrt.^ incomm:.di(jr esi^t'tfu- 
 turns us hsJ''' Ha. p. ad irist. dc ripa* 
 
 Finally the Spanish law is neither less clear, nor less 
 ex jilcit on diis head : like the Roniaa law, i. permits 
 the erecting of huildings on the sea shores, aiiu forbids 
 the same on the buiiks of rivers. 
 
 En ia ribera dr. la mar todo ome puedt faz-. r casa, ley* 
 4?. ttt. 28. 3 part, 
 
 llioHno., nin canaU nin casa^ 7vn tortt\ nin cabana^ 
 nin olro tdijicl. niaguno^ non puedc ningunj ome fazer 
 nuevaiurnte en los rios po- lus quales ^o.s ho>nes andan 
 <^on sus ntroios^ ni en 'as ri'^eras dr etj po: que se em^ 
 bargasse el uso comunalde ellos, o si a guno o fiziesse de 
 nutvoy ofuessef cho anti^^-jamente, de que vtm sse dam 
 jfl/ uso comunal^ debe ser d^r ribido, Ibi lem^ ley. 8. 
 
 *' Any one may b.-ild a h'juse oo the sea bhv..re, but 
 no one is permitted to construct a mill, or cut a car-.al, 
 or build a house, turret, hut, or any edifice whatever, on 
 navigable rivers ^r 072 rhtir ba^ku as ihat -.vould ob- 
 struct the common use thereof ; and should any one 
 hereafter execute aay such works, ,)r if anv such have 
 been heretofore exec uted. the same bhall be demo^ 
 lished." 
 
 V 
 
 The law passed by the legislature of Orleans, is not 
 therefore, an immornl law, as Mr. JUuponceau would 
 
(24 ) 
 
 fain persuade us, page o7» It is on this point merely 
 the confirmation of the civil law which governs this ter- 
 ritory, and it rests upon the immutable basis of justice. 
 Trulv immoral indeed appears to me ihe law which 
 Mr. Livingston attempts to establish on this subject, by 
 which every bordering land holder might se'ze on the 
 bed and banks of ihe river, for the puipose of laying, for 
 his private advantage, regardless of the laws and mter- 
 ests of scicieiv, an odious contribution, an arbitrary im- 
 post on navigation and commerce. Huw has Mr. Du- 
 ponceau dared to tax with immorality, and attribute to 
 party spirit, a law that bears the true stamp of Roman 
 legislation ? What a horrid blasphemy ? Was ever 
 oblivion of all principle, of all human respect, carried to 
 a greater length ? And must not a man be determined to 
 put on the livery of the most absurd ignorance, in order 
 to escape the reproach of downright perversity, when 
 he thus presumes to transform into instruments of fac- 
 tion, legislators who have attempted no innovation, and 
 v/hose only offence is that they have not shut their ears 
 to the voice of reason consecrated by the wisdom and 
 experience of ages ? 
 
 " Thanks to Mr. Thierry, says Mr. Duponceau, the 
 batture is again an alluvion. It has undergone many 
 changes in the course of his discussion. 
 
 No, sir, I do not wantonly invade the noble privilege 
 you enjoy of perverting reason. Throughout the v. hole 
 course of my discussion the batture has been only what 
 it really is : but after having considered it under its ap- 
 propriate relations ; after having demonstrated that it 
 could not be an alluvion, as I have proved by argu- 
 ments so ificontescible that you have not even attempted 
 to impugn them, I have gone still further : I have shewn 
 that even were the batture an alluvion, your client could 
 have no claim to it. Now, there is a wide difference 
 between a supposition and a reality ; smd if I have hy- 
 potheticaliy considered the batture as an alluvion, in or- 
 
( 25 ) 
 
 ^er to force you ev^en from your last entrenchments, it 
 surelv does not thence follow, that I have acknowledged 
 it to be essentially such. It is therefore with some- 
 thi; g worse than ill grace that you attempt to represent 
 me as a man inconsibtent with himself. 
 
 As to the third proposition by which I have laid it 
 down that the right of alluvion is inherent in the owner- 
 ship of a riparious field, and not in the ownership of 
 city property, Mr. Duponceau declares thai he has no- 
 thing to say on this point, further than that the civil law 
 absolutely says nothing of what I have slated. The au- 
 thority which I have quoted (page 28 of my first pam- 
 phlet) proves, in his opinion, that praedium means a 
 city property as well as a country estate ; but, says 
 he, let it signify what it may ; because the civilians 
 in the examples by which they have illustrated the prin- 
 ciples which regulate the law of alluvions, may have in- 
 stanced ^ field or 2ifarm^ and not a house in town^ does 
 it follow that alluvions do not accrue to the owners of 
 city property? Surely, continues Mr. Duponceau in. 
 the most overbearing tone, such an argument does not 
 require a serious refutation. 
 
 I might surely dispense with taking notice of this 
 further than to refer Mr. Duponceau to what I have 
 written on this subject, and I should be much better war- 
 ranted than he is, to conclude that such arguments as his 
 require no refutation ; but I will not let slip a fresh op- 
 portunity of proving, not indeed to him, (for he is one 
 of those to whom it is impossible to demonstrate any 
 thing, were it even a physical or mathematical truth) but 
 to every impartial man, that the doctrine of the Roman 
 law is sufficiently explicit with relation to the proposi- 
 tion which I have laid down. 
 
 What first strikes us, and is the very point that must 
 fix our attention, is that the text ascribes the right of 
 alluvion only to the owner of a field. *' Allwuio incre- 
 mentum laUns quod 2i^xojlumen adjicit, Pr aster ea quod 
 
 D 
 
(26 
 
 agro nostro fiimen acJjkit jure gentium nobis acqulrU 
 tur,^^ Dig lib. 41, tit. 1. " In SLgrh limitatis jus allw 
 vionis locum non habere constat, ^^ Ibid. lib. 49, tit. 1. 
 Alluvion, an imperceptible increase which the river adds 
 to a field. What the river adds to o\xt Jield^ accrues to 
 us by the law of nations. The right of alluvion does 
 not exist as to limited ^^/^5. 
 
 It is therefore evident that whether in granting or re- 
 straining the right of alluvion, the text makes no appli- 
 cation of the right, to any but rural property. 
 
 As to the acception of prcedmm^ I proved in the out- 
 Bet, page 28, that unaccompanied by the epithet urba- 
 Tium^ this word could not mean a town property ; and I 
 then adduced the definition of prcedium given by Mo- 
 des iuus, who lays it down that prcedium characterises 
 at once the po= session and the field ; '' nam et ager et 
 ijossessio fi'jus apptllationli fPrcediiJ species suntJ* 
 For the field and the possession constitute the two spe- 
 cies of prcedium. To authorise Mr. Duponceau to set 
 aside so slightingly the respectable authority of the Ro- 
 man jurisconsults, he ought at least to have opposed to 
 thai clear and precise definition bomething less suspi- 
 cious, and less insignificant than the jurisconsult of 
 Philadelphia ; he ought, for instance, to have extracted 
 from the mstitutes, some passages in which it would 
 have been evident that prcedium was used without the 
 epithet urbanum^ to s gnify a town property ; but this I 
 defy him to establi >h by any kind of authority, while 
 on the other hand, I am ready to adduce various cita- 
 tions which prove that, standing without any epithet, 
 prcedium can designate no other property than a farm or 
 such like rural estate. 
 
 Non potest quis vendere prsedium et retinere agrico- 
 las in dicto prsedio existentes. Barth. 
 ll.Imper. Constantinas Aug. ad Dulcitium consulem. 
 
 Si (juis prsediuiu vendere voluerit v^l donare, re^ 
 
(27 ) 
 
 tinere sibi transferendos ad alia loca colonos, pnvati 
 conditioner non possit. 
 
 No person can sell a farm, and reserve to himself 
 the husbandmen attached to it. 
 
 11, The emperor Constantine Aug. to the consul 
 Dulcitius. 
 
 If any person desires to sell or make donation of a 
 farm, let him not be permitted to retain to himself, by 
 a private condition, the husbandmen, in order to trans- 
 port them elsewhere. 
 
 From a number of other citations on which I might 
 rely, I will make choice of two which appear to me the 
 more conclusive, as they prove by induction that if 
 prcediwn means a farm, or such like rural estate, it can- 
 not designate a town property. 
 V. Imper. Valent. & Valens Aug. ad Oricum P. P. 
 
 *' Dumini praediorum id quod terra prsestat accipiant, 
 pecuniam non requirant quam rustici optare nonaudent: 
 nisi consuetudo prsedii hoc exigat. 
 
 VI. lidem Aug. & Gratian. Aug. ad Germanicum. 
 
 *• Omnes omnino fugitivos adscriptos colonos, vel 
 
 inquilinos, sine uUo sexus, muneris, conditionisque dis- 
 
 crimine ad antiquos Penates ubi censiti, atque educati, 
 
 natique sunt, provinciis prsesidentes redire compellant.'* 
 
 The Emperors Valentinian and Valens Aug. to Ori- 
 
 cus. Prefect of the Prsetorium. 
 
 Let the owners of farms receive what the land pro- 
 duces, and let them not require money which the pea- 
 sants dare not desire, unless it be the custom of the 
 farm. 
 
 lidem Augusti and Gratian Aug. to Germanicus. 
 
 Let those who preside over the provinces compel all 
 the slaves whether attached to the soil or to town ser- 
 vice, to return, without any distinction of sex, employ- 
 ment or condition, to their ancient homes (penatesj 
 where they were born and enrolled in the census. 
 ^ If pr(sdium had signified indiscriminately an estate 
 
(28 ) 
 
 either iii town or in the country, why should the empe- 
 rors Valens and Valentinian, after having emplo) ed it 
 to designate a farm, not have continued to use it in the 
 subsequent oidinance, in which that expression must 
 necessarily have found its place, as it related to slaves, 
 some of whom were attached to husbandry, and others 
 to town service ■ If thi Roman jurisconsults had indif- 
 ferently attached to this term an idea common to a town 
 property and to a country estate, why had they recourse 
 to another word to express this community of idea? 
 Why have they written prnntes instead of prcedium ? 
 The reason is this, that piaedium signifies indeed a farm 
 or any other rural estate, but does not equally mean a 
 town property ; whereas PtJiatiS indiscrimmately pre- 
 sents to our mind both those kinds of real property. 
 
 Admitting the justness of this distinction, Mr. Du- 
 ponceau will ask whether from the law';* granting to the 
 ov/ner of a riparious field the right of alluvion, it fol- 
 lows that it refutes that right to the owner of a riparious 
 town property ? Were I not convinced that there is 
 much more artifice than ignorance through the vv^hole 
 production of this lawyer, I would endeavor to bring 
 him back to the first elements of Roman law, by remind- 
 ing him that what the law hath not said, neither ought 
 we to say, and that where the words of a law fail, the 
 provision itself fails in like manner. '' Quod lex non 
 elicit, nee nos dicere debemus, et ubi deficiunt legis ver- 
 ba, ipsa quoque deficit dispositio." Harp, ad insti. 
 Must not Mr. Duponceau have renounced every idea 
 of justice, or rather must he not be utterly unable to 
 discover a defensible position, when he advances a para- 
 dox which is expressly refuted by the first maxims that 
 present themselves to our meditation in the study of 
 the civil law ? " Contra legem facit, qui id facit quod 
 lex prohibet ; in fraudem vero qui, salvis verbis legis, 
 sententiam ejus circumvenit." Paulus, dig. lib. 1. 
 
 *' Fraus enim legi fit, ubi quod fieri noluit, fieri au- 
 
(29 ) 
 
 tern non vetuit, id fit ; et quod distat reton apo d^a- 
 noias^ id est dictum a sevtcniia, h x disiat fiaus ab eo 
 quod contra legem fit." U.p;an, dig. lib. 1. 
 
 He acts contrary to law vvh > dues what the law for- 
 bids, and he fraudulently evades the law, who, in ad- 
 hering to the words thereof perverts the se.:se. 
 
 It is a fraudulent evasion of law, to do what it in- 
 tended should not be done, but the doing of which it 
 did not forbid ; and the difference that exists between 
 the letter and the sense, is the same a9» that which ex- 
 ists between the violation, and the fraudulent evasion of 
 law. 
 
 After authorities so conclusive, it can no longer ap- 
 pear strange that in the im|)Ossibdity of proving that 
 the law of alluvion conld admit of such a laiitude of 
 construction, Mr. Dup-ivxeau was forced to sts ut off in 
 dictatorial state, telling me dial such an argument re- 
 quired no serious refutaiion. 
 
 Let us novv proceed to the discussion of the fourth 
 and last proposition by which I have established that 
 Mr. Gravier had alienated the accessory with the prin- 
 cipal, 
 
 " If^ says Mr Duponceau^ Mr, Gravier has alienated 
 those front lots to individuals^ whtther Che rig-ht to allu^ 
 vion bego ie ah'^g xmth them is merely a question bttween 
 him andthrm^ and the United States kave nothiaif to do 
 tvith It; if to ihe puhlie^ or to the government^ Mr* 
 Thierry must produce ilu conveijance^ 
 
 This dilemma is the only ingenious argument I have 
 found in Mr- Daponceau's reply. 1 must own that had 
 it been generally suppoited b\ such specious reasoning, 
 I should have been disj.osed to excuse whatever cavils 
 it might contain, in consideration of the art that dis- 
 guised them. But wh > can repress the emotions of in- 
 dignation when he sees tru.h exposed to continual out- 
 rage, and the most certain principles denied and brought 
 into question, by the most extrav agaut paradoxes i Al- 
 
(30) 
 
 though this last argument be at bottom but a sophism ; 
 it has at least, over the rest of Mr. Duponceau's disser- 
 tation, this striking advantage, that it rests only on two 
 propositions equally plausible, and which to be admit- 
 ted, would require merely to be applicable :o the facts 
 on which we are at issue. This is not a question of a 
 pure and simple alienation of the principal to several 
 individuals, who thence might have an exclusive tide 
 to the accessory ; the subject in discussion is the con- 
 version of a plantation into a suburb, whereby, as wa 
 proved, the nature and primitive rights of that estate 
 were changed. Now, in this operation the government 
 evidently interposed between Bertrand Gravier and die 
 several purchasers of lots ; for it appears by the plan of 
 the surveyor general, signed and acknowledged by Ber- 
 trand Gravier himself, that the government reserved for 
 the public a quay, streets and two squares. Mr. Dupon- 
 ceau therefore argues against fact when he presents as the 
 strict basis of his reasoning the alternative of the dis- 
 tinct alienation of the principal eidier in favour of pur- 
 chasers of the front lots, or in favour of the Spanish 
 government whose title now belongs to the United 
 States. As to the conveyance which he requires me to 
 produce, I observe that it has been produced already, 
 and that the attorney general must be in possession of 
 one of the original plans ^^igned by Bertrand Gravier, 
 in v/hich the streets, the squares, the quay and the bat- 
 ture under the denomination of riai/a are very distinct- 
 ly acknowledged and designated by Bertrand Gravier. 
 If Mr. Duponceau requires any oiher conveyance for 
 the quay and for the batture, I see no reason why he may 
 not pretend that John Gravier continues to be the owner 
 of the soil of the streets, unless we exhibit to hinr a formal 
 deed of sale by which his ancestor, B. Gravier, has ex- 
 pressly conveyed the soil of the streets. But the Ro- 
 dman law as also the Spanish, has precluded these liti- 
 -gious difficulties, by classing streets and quavs amongst 
 
(31 ) 
 
 those things that constitute universal property,rf* unt- 
 vcrsHatis^ and by declaring that navigable rivers h h'w- 
 bors are of the number of public things : it is true that 
 by a last effort of Jesuitical subterfuge he attempts to 
 insinuaie that that citation relative to harbors^ is ap- lica- 
 ble to sea ports alone, but unfortuna^^ely the authorities 
 of the Roman and Spanish jurisconsults are on this 
 point also, in opposition to the sound doctrine of the 
 lawyer of Philadelphia. 
 
 " Duo hie quae publica sunt, adferuntur, flumina au- 
 tem et portus. " Est atitum partus (a portando nomen 
 habens) /ocus in mari aut Jiumine conclusiis et viiinitiis 
 quo importantur merces et wide exportw-tur^"* (De 
 verb, signif.) Idem est et navibus statio,hoc est, locus 
 accommodatus ad recipiendas naves ut illic tuto stare pos- 
 sitit adversus injuriam prsedonum aut tempestatum. 
 Harp, ad Inst. 
 
 We are here presented with two things that are 
 public ; the river and the ports. The word port, deri- 
 ved ft om porture^ is a place on the sea or on a river, in- 
 closed and defended, whither goods are imported, or 
 whence they are exported. It is also an anchoring place 
 for vessels, that is, a place accommodated for the recep- 
 tion of ships, so that they may there be in safety, exposed 
 neither to pirates, nor to tempests. 
 
 *' Puerto de la mar o rio es el lugar en que estan los 
 naves, y se cargan y descargan, mueven y acaban sii 
 viage como se dice en el derecho civil y real." Curia 
 Philipica Hbro. 3. capit. 1. § 35. 
 
 A port of the sea or of a river is the place where 
 ships lie, where they load and unload, whence they sail, 
 and where they end their voyage, as it is laid down in 
 the ro) al and civil law. 
 
 Mr. Duponceau says that it is on the strength of this 
 doctrine that I thought I might so securely rely as to 
 make the concession of six acres of batture presumed 
 to have been annexed to the Gravier estate since 1763. a. 
 
(32) 
 
 concession to which he takes care to oppose the objectiong 
 made to me by Mr. Derbigny in the following terms ; 
 " You have brought the cause to this point, that we must 
 prove that no batture existed at the time when the Gra- 
 vier estate was converted into a suburb, or we are left 
 wiihout resource. But the contrary is too well found- 
 ed." I shall therefore, says Mr. Duponceau, leave 
 Mr. Thierry to settle this matter with his colleague, 
 and make no further answer to his argument. 
 
 The affair has already been settled with Mr. Derbig- 
 ny, nor will it be less difficult for me to settle it with 
 Mr, Duponceau. 
 
 I had from the beginning the advantage of proving 
 that this doctrine was that of the Roman or Spanish law, 
 which is to guide the judges in the decision of diis affair, 
 moreover I have not made a concession of six acres of 
 bitture. It >vas six acres of alluvion that I said Mr, 
 Gravier had probably united with his plantation ; on 
 account of :he diff.ire ice of six acres between the first 
 survey made by Mr. Devezin and the one lately made 
 by Mr- Mansay. My expressions are these, page 37 : 
 *' Of tins differeiice, the cole cause to be assigned is the 
 successive rei .li )n of different portions of alluvion, of 
 whxh Bertrand Gravier, or thuiie from whom he holds^ 
 may have availed themselves. ' Mr. Duponceau has in- 
 deed the strongest mf>tives to make a last effort to con- 
 found a batture with alluvion land, aUho' these two ob- 
 jects be as different in their nature as in their effects • 
 but as he has not even attempted to weaken the strongly 
 marked features of that dissimilitude which I have de- 
 veloped in my meaioir, from page 13 to page 18, it is 
 evident that I am still warranted to insist on it. What 
 can then result from Mr. Derbigny's objection ? Had 
 it ever been proved on the trial that the Batture existed 
 at the time that B. Gravier converted his estate into a 
 suburb, it surely could not be thence iufjsrred that nei- 
 ther his ancestors nor he had availed themselves of anv 
 
(33) 
 
 portion of alluvion since the survey made by Mr. Deve- 
 zin ; and, as I have fully established this point, that a 
 batture is not alluvion land, I see not in what, or how 
 the avowal of this last circumstance can have injured our 
 cause. Nor can I conceive any difficulty in reconciling 
 the opinion of Mr. Derbigny with mine. Intent, as I 
 have said, on his answer to Mr. Duponceau, he had ta- 
 ken but a cursory view of the writing I had just publish- 
 ed, and had not been struck with the importance of my 
 distinction, the accuracy of which was, however, so obvi- 
 ous, that it naturally presented itself to his mind in the 
 course of his discussion ; and with this Mr. Duponceau 
 does not fail to reproach him in his reply.* Nothing, 
 therefore, I repeat it, appears to me less diO.cult than 
 this reconciliation of opinions, as on the one hand, mine 
 has not varied, and on the other, the involuntary error 
 committed by Mr. Derbigny, in a few lines written ia 
 haste, after a too cursory reading of my work, is effaced 
 and more than amended by a profound discussion, in 
 which he has, as Mr. Duponceau acknowledges, given 
 a luminous developement of ihe very arguments I had 
 used, but which my inexperience in forensic warfare 
 had not permitted me to present in the most advantage- 
 ous light.:): 
 
 Thus have I faithfully followed Mr. Duponceau to 
 the end of his dissertation. I have neither inverted the 
 order of his arguments, nor altered his text, and I may 
 confidently say, that I have strictly conformed to the pro- 
 gress of his discussion. I now leave to the impartial 
 reader to decide on the merit of his objections. 
 
 As to the extraneous observations with wh^ch he con- 
 cludes his work, since he acknowledges that they have 
 nothing to do with the present question, I hope I shall 
 incur no reader's displeasure by declining to prolong a 
 refutation which would become the more drv and tedi- 
 
 *Page 25. :j:Page 13. 
 
 E 
 
(34) 
 
 ous, as it would rest merely on points not properly ap- 
 plicable to this case. 
 
 I have only to add, that in the appendix will be found 
 some documents, which may serve as a full answer to 
 those annexed to Mr. Duponceau's publication. 
 
 New-Orleans^ lQ>th May^ 1809. 
 
APPENDIX. 
 
 O 
 
 N this day, the 23d of April, of the year one thou- 
 sand eight hundred and nine, and the thirty-thirdof the 
 Independence of the United States, 
 
 I, James Tanesse, City Surveyor of New-Orleans, 
 conformably to the directions addressed to me from the 
 honorable James Mather, Mayor of the said City, for 
 the purpose of ascertaining, first on dift'erent points of 
 the bluff opposite to the batture of the suburb St. Mary, 
 the elevation of the levee raised above said bluff, with 
 reference to the level of the soil ; and afterwards, on the 
 said batture, the depth of the waters at the points paral- 
 lel to the said bluff, in order to discover, at the foot of 
 the levee, by the deduction of a depth of water equal to 
 the height cf ;he levee on the opposite bluff', whether the 
 said batture make part of ihe bed of the r"ver, before it 
 rises to its highest increase above the natural bank, of 
 which the opposite bluff gives the indisputable measure> 
 repaired to the opposite bank, where being, I proceeded 
 to the operation herein before indicated, in presence of 
 Messrs. Zeringae, (.he son) Degruys and Mossy, plan- 
 ters on the said shure, and by the computation of the 
 different levels taken, I have ascertained : 
 
 1st. That the portion of the levee added to the bluff 
 opposite to the batture in front of the limit of the suburb 
 St. Mary on the side of the city, presents an elevaiion 
 of 14 inches. 
 
 2dly. That the portion of levee added to the bluff op- 
 posite to the batture in a line with Gravier street, pre- 
 sents an elevation of 8 inches. 
 
odly. That the portion of levee added to the bluff op- 
 posite to the batture in front of Poydras street, presents 
 an elevation of 5 inches. 
 
 4thly. That the portion of levee added to the bluff 
 opposite the batture facing Girod street, presents an el- 
 evation of iwo inches. 
 
 5thly. That the portion of levee added to the bluff 
 opposite the batture facing St. Joseph street, presents an 
 elevation of 8 inches. 
 
 Which different computations give, as the mean term 
 of the elevation of the levee extending along the bluff 
 opposite the batture, a mean height of seven inches and 
 two fifths. 
 
 And after having terminated this operation, I re- 
 quested Messrs. J. B. Degruys, J. Zeringue, F. Bernou- 
 dy, Robin de Logny and Mossy (all land-holders on the 
 bank opposite to the batture) to sign the minute of the 
 process verbal in this place. 
 
 Signed, Joseph Z.-ringue^ (the son) Bernoudy^ 
 y, B, Di'gruys^ Robin Delogr^y^ Mossy. 
 
 And immediately after I crossed over to the oppo- 
 site bank, where the suburb is built ; 1 took soundings 
 at the different places opposite those where I had measu- 
 red the height of the levee on the bluff of the other bank; 
 and those different operations gave me the following re- 
 sult : 
 
 At the foot of the new levee, at its limit next the city, 
 three feet three inches water. 
 
 At the place in a line with Gravier street, at the foot 
 of the new levee, three feet nine inches. 
 
 At the place in a line with Poydras street, at the foot 
 of the new levee, four feet. 
 
 The new levee not having been extended as far as 
 Girod street, and the quay being so much encroached on 
 by the river as to leave no more than sixty feet distance 
 between the houses and the water's edge, I sounded at 
 fifty feet from the edge, in order to complete a space of 
 
one hundred and ten feet, equal to that between thehou^,- 
 es of the quay and the edge of the new levee, and I there 
 found one foot seven inches of water. 
 
 For the same reason, I sounded at fifty feet from the 
 water's edge at the place in a line with St. Joseph street, 
 and I there found two feet of water. 
 
 The mean term of the depth of water at the foot of the 
 levee which borders the batture, being two feet eleven 
 inches, on deductmg from that depth the mean height 
 of the levee raised on the opposite bluff, it results that 
 the river, before it rises above the said bluff, which is the 
 incontestible measure of its bank, has covered the bat- 
 ture with a mean volume of two feet three inches and 
 three fifchs of water; aud that consequently it strictly 
 makes part of its bed, and the more so, as there is not 
 a single one of the point.^ of comparison which we have 
 here laid down, which does not present it covered with 
 water before the river has attained the summit of the 
 bluff which is opposite to it. 
 
 The said process verbal being thus masle and closed 
 in presense of the above named gentlemen, they signed 
 the same with me, on the same day, month, and year as 
 mentioned in the other part. 
 
 Signed, Saturmn Bruno^ Bte. Rollind^ A. VUlamil^ 
 B. RollaniJ, guardian of the children of 
 the late widow Lahatut^ Bomibel and Jh, 
 Gournie*-^ Livoy, -widow Deverbois^ J, B^ 
 Degruij^ y. Pcydras. 
 Signed, TANESSE, City Surveyor. 
 
 SUMMARY VIEW 
 
SUMMARY VIEW OF THE PROCESS VERBAL. 
 
 Heig-ht of the levee, 
 added to the bkiff 
 opposite the Bat- 
 ture. 
 
 1st. Limit next the Ci- 
 ty, 1 foot 2 inches. 
 
 2d. Facing Gravier 
 Street, 8 inches. 
 
 3d. Facing Poydras, 
 5 inclies, 
 
 4d. Facing G'l'od 
 Street, 2 inches. 
 
 5th. Facing St. Joseph 
 Street, 8 inches. 
 
 3 feet 1 inch. 
 
 Depth of water on 
 the Batture at the 
 foot of the levee. 
 
 3 feet 3 inches. 
 
 3 feet 9 inches. 
 
 4 feet. 
 
 1 foot 7 niches. 
 
 2 feet, 
 
 14 feet r inches. 
 
 Elevation of the water 
 covering theBatture 
 in the natui al meas- 
 ure of the river. 
 
 2 feet 1 inch. 
 3 feet 1 inch. 
 
 3 feet 7 inches. 
 1 foot 5 inches. 
 
 I foot 4 inches. 
 
 II feet 6 inches. 
 
 The sum of the five parallel points being 11 feet 6 in- 
 ches, the mean volume of water covering the Batture in 
 the natural measure of the bed of the river, is 2 feet 3 
 inches and three fifths. 
 
 Extract fron the Archives of the Ccihildo^ deposited in 
 the office of the City Council of New-Orleans, 
 
 PETITION of Claude Franfois Girod^ presented 
 on the %UhMai}^ 1801. 
 
 ^ TRANSLATION. 
 
 M. I. A. 
 
 Claude Francois Girod, a citizen and merchant 
 of this city, represents to you with due respect, that 
 v/ishing to* have a Flour Mill constructed by a skillful 
 person who is about to leave this town, having other 
 buildings to attend to up the river, it is necessary to him 
 that your lordships grant him for that purpose an ade- 
 quate space in front of his house, situate on the extent 
 of the suburb St. Louis, lying between the river and the 
 roj^al road. 
 
 In the extensive space of that ground, the contem- 
 plated establishment cannot be any way injurious, whilst 
 
( 39 ) 
 
 ■■J 
 
 Its advantages may be of great pu'olic utility, particu- 
 larly to those who possess a great many slaves, the nat- 
 ural sloth and indolence of slaves making them suffer 
 for want of nourishment, rather than take the trouB'le to 
 pound in wooden mortars the allowance of corn which 
 their masters give them, which being roasted on coals' 
 and eaten without having been baked or boiled, as is 
 the custom, is not only unwholesome, but is attended 
 with considerable waste ; whereas, to the saving that 
 Ivould be made by reducing the corn to meal, would be 
 added the advantage of making of it wholesome nour- 
 ishment, besides the conveniency of using it without 
 the -trouble of pounding, or of any other preparation 
 than that of baking or boiling. 
 
 To afford more facility to the planters who send their 
 grain to mill, the petitioner proposes to form a depot 
 of meal, from which may be taken a portion equivalent 
 to the grain brought to the mill, as soon as delivered, 
 without any deduction except the moderate proportion 
 fixed as a compensation for the w^ork of the mill, ac- 
 cording to the usage and custom existing throughout 
 the Spanish dominions. 
 
 In case of dearth or scarcity of bread, said meal may 
 be a great resource towards supplying the public want 
 in mixing it w^ith wheat, or in making corn bread, such 
 as is used in many countries. 
 
 In consideration of the apparent advantages to the 
 public, to be expected from said establishment, the pe-^ 
 titioner trusts in the known zeal with which your lord- 
 ships protect and promote the welfare of the country, 
 that you will please to grant him your respectable appro- 
 bation for the execution of a project so useful, permit- 
 ting the petitioner to form it on the ground indicated, 
 under your lordships' auspices, and on condition, if your 
 lordships think proper, of the petitioner's paying what 
 MAY EE THOUGHT A JUST TiiiBUTE for the grouud that 
 the works will occupy, confining it to forty feet in fronts 
 
( 40) 
 
 for the mill and the dwelling of the miUer, and a pro= 
 portionate extent in the interior, for a shed for the horses 
 working the machine. 
 
 From the motives above declared, may it please your 
 lordships to grant the respectful petition of the under- 
 signed, as he hopes from your justice and goodness. 
 (Signed) C. F. GIROD. 
 
 REFUTATION 
 
 OF MR. LIVINGSTON'S PAMPHLET, 
 
 entitled: 
 
 An Address to the People of the Uni- 
 ted States^ &c. 
 
 Mr. EDWARD LIVINGSTON, formerly an 
 
 inhabitant of New -York, has lately published an address 
 to the people of the United States. His design in send- 
 ing this publication to Washington city, was to persuade 
 the members of Congress that he was a victim of op- 
 pression, and that the President of the United States 
 was his oppressor. We intend to follow Mr. Living- 
 ston page by page, nor shall we find it very difficult to 
 prove that never has any writer more evidently strayed 
 from the beaten road of sincerity to walk in the crooked 
 paths of the mo it hypocritical and refined calumny. 
 
 Mr. Livingston, in the very first page of his virulent 
 philippic, observes that ^Vthe selection of a remote scene 
 for the exercise of arbitrary power, and of an unfriendly 
 or unpopular individual for its object, renders the case 
 more dangerous from the apathy with which we regard 
 distant eventSj and the ready indulgence we accord to 
 
(41 ) 
 
 illegal measures when they affect those only whom we- 
 dislike." 
 
 This exordium is not wholly void of address ; but as 
 a dexterous adversary Mr. Livingston ought to have 
 perceived in it motives much more explicative of his 
 conduct, and that, on that account, any other exordium 
 would'have been at least preferable. In effect, since he 
 adverts to a scene, for Mr. Livingston never acts a sce- 
 nic part with such success as when he wishes to appear 
 to be prompted by principle, he ought to have been sen- 
 sible that his argument might be instantly retorted by 
 this reply ; that to himself indeed it was of particular 
 importance to make choice of a remote scene, as there 
 alone he could unfold and put in practice the vast theory 
 of his system of spoliation ; and that since he had con- 
 trived so far to impose on the judges, as to cause the bat- 
 ture to be adjudged to himself; he alone haa cause of 
 felicitation in the remoteness of the scene which he had 
 so happily chosen, in hopes that the apathy with which 
 events so distant are regarded, would secure to him the 
 enjoyment of his iniquitous and fraudulent acquisitions. 
 But, thanks be to Gud^ in spite of all the wretched in- 
 trigues of the faction ofClark^ Livingston, h Co. to per- 
 suade the inhabitants of this country that they were a» 
 object of aversion to the government, the Louisianians 
 have found in Mr. Jefferson a friend and protector* 
 The paternal vigilance of the chief magistrate of ihe 
 Republic, soon discovered that the mildness of their 
 manners, their characteristic frankness and rectitude, 
 rendered them worthy of all his benevolence ; nor has 
 he suffered the quondam mayor of New- York, notwith- 
 standing all the artifices that had served as a prelude to 
 the decision of the Batture cause, to repair his fortune 
 at the expence of this country. 
 
 In speaking of the motives which induced him to sub- 
 mit his cause to the public, Mr. Livingston thus artful- 
 ly expresses himself ; 
 
 F 
 
(42) 
 
 ** Honest creditors, who see the fund accumulated 
 during four years of indulgent delay, suddenly placed 
 beyond their reach ; a wid )W and two infant orphans 
 claiming mv professional exertions to resist that illegal 
 violence which has seized rheir only means of support ; 
 a large family f r whom I am bound, as well by duty as 
 affection to provide : these are claims on which I rely^ 
 to justify the measures I am forced to pursue." 
 
 In our opinion Mr. Livingston's honest creditors 
 could have cause to com r lain only inasmuch as he had 
 fairly acquired wherewith to discharge his debts. It 
 were strange indeed that his dissipation should be paid 
 for by the alienation of a public property. This lawyer 
 who, contrary to all reason, reproaches the President 
 with having acted more despotically than an hereditary- 
 monarch would have d.one, ought to have perceived, 
 that, in speaking of his. creditors, he incurred the ridicule 
 of imagining himself a greater lord than the prince of 
 Wales ; f ;r an ac*^; ij{ Parliament is necessary to author- 
 ise the discharging of ihe prince's debts with the public 
 money, whereas Mr. Livingst<in thinks he has reason to 
 consider it as unjust, thcU he is not j;ermitted to dispose 
 of 'public property for the jnirpose of pa\ ing his honest 
 C>:reditors. It m'jst be acknowledged that this motive of 
 consideration is entiieb, novel, and ihat Mr. Livingston 
 must have great reliance on ihe goodness of the Amer- 
 ican -people, to presume to urge it. As to the widow 
 and the two children in whose favor Mr. Livingston 
 appears so generously to solicit the benevolence of the 
 public, they have never possessed either in kind or in 
 equivalent, the means of support which he has the good- 
 liess to assign them, and which he represents as illegally 
 seized by violence. The late Mr. Delabigarre, the 
 head of that family, was concerned with Mr. Livingston 
 in the Batture speculation. He might have gained 
 ^nuch, but as he exposed nothing, he was in no danger 
 
( 43 ) 
 
 of losing : for it may with truth be asserted that therft 
 subsisted between Mr. Oflabigarre, Livingston and 
 Gravier, an agreement, in which it was stipulated that 
 the purchase m )aey should be paid only after the ob- 
 taining .'f quiet possession of that public property. We 
 may even add, without danger of contradiction, that to 
 this day, Gravier, who sold the Batture, has not receiv- 
 ed a cent either from Mr. Delabigarreor from his exec- 
 utors, and that the only payment he has received from 
 Mr I^ivingston, has been in pleadings and law-suits, 
 which have put him in the straight road to beggary. A» 
 to the portion of batture which Mr. Livingston bought 
 from Mr. Girod, the latter sold it to him without guar- 
 anteeing the property, without giving him anv recourse 
 whatever in case of eviction or dis possession, or of a 
 judgment declaring that he never had any right to sell it ; 
 nor was it Mr. Livingston who paid the amount of that 
 purchase, aliho' the deed of sale contains a receipt in his 
 name ; it was that wretched votary of litigation Gravier, 
 who furnished the amount t) Mr. Girod, in a bond for 
 11738 dollars due by Mr. Wiltz, on the amount of 
 which Mr. Girod gave credit to Mr. Livir-g ton for 
 ^10000. As to Mr. Livingston's numerous family, 
 the attachment he bears them is the only favorable light 
 in which he can be considered ; but that family is to de- 
 pend on his honest industry, and not on the possession 
 of an immense national property. 
 
 The following passage is taken from the second page 
 of Mr. Livingston's address. '" The people of the U- 
 nited States will hear with incredulity and astonish- 
 ment, that in a country governed by the wise constitu- 
 tion they had framed, neither its provisions nor the so- 
 lemn stipulations of treaty, coLdd protect an individual 
 in the enjoyment of his property ; that the decrees of 
 the judiciary have been reversed bv the executive, with- 
 out hearing, without notice to the party, without any of 
 the forms prescribed by law, and that, by a refinement 
 
( 44 ) 
 
 •f oppression, the claims (.f the public were suffered f 
 lie dormant, aniil the party confiding in his title, had 
 expended hih whole personal estate in improving land of 
 which he was thus forcibly deprived." 
 
 jMr Livi?>gston has here misrej^resented the motives 
 of the V iblic astonishment and indignation on seeing a 
 coin of justice, in contempt of evtry principle of equi- 
 ty, of ever) iiiiperative provision of law, regardless of 
 the solemn stipulations of treaty, adjudge to an indivi- 
 dual a pint of he bed of a river : on seeing that court 
 of jus. ice maik -heir first decisions in this monstrous 
 suit with tht- most airocious partiality, and then refuse 
 to hear the testimony of one of the nitst respectable 
 men in ihi^> city, for the purity of his morals and his 
 Strict probity. 
 
 But Mr. Livingston asserts that the judicial au- 
 thority was set at nought. This assertion from Mr. 
 Living'. ton is at least erroneous, if not hypocriti- 
 cal. The judgment of the court w^as radically null and 
 void: the) had exceeded the bounds of their jurisdic- 
 tion ; and no decision of the court could impair the 
 claims of the United States. '' The claims of the pub- 
 lic, says Mr. Livingston, were, by a refinement in op- 
 pression, suffered to lie dormant." This last assertion 
 cannot even claim the favor of being looked upon as an 
 error; it is a downright falsehood. It is a matter of 
 public notoriety that both in court, and amongst the ci- 
 tizens of New Orl. ans, the claim of the United States 
 to the batture was fiequently brought forward; and eve- 
 ry one agreed in sa) ing that il the batture did not be- 
 long to the city, it unquestionably belonged to the Uni- 
 ted States. Moreover, many persons flattered them- 
 selves that such was the opinion of Mr. James Brown, 
 the district attorney of the United States ; and it was 
 thought that, should Mr. Livingston succeed in dispos- 
 sessing the city, Mr. Brown would instantly claim that 
 public pro|.'erty as belonging to the United States. But 
 In this expectation all were disappointed j and it is t« 
 
(45 ) 
 
 ibe regretted that the right allowed to a district attoritey, 
 of beiitg of cour.sel for an individual, would not sufi"er 
 Mr. Brown, who in that suit, was concerned for Mr. 
 Livingston, to aj-^pear, wifh any proi^riety', to be per- 
 suaded of the justice of ihe claim (f tht U itcc Siutes. 
 A motion was however made for a utw inal cf die 
 cause, by virtue of the right which the Ui;iied Siates 
 had to that public property. That right became thence- 
 forth the subject of conversation, and was piblici^ dis- 
 cussed in the news papers. Several numbers of the 
 Teiegraghe. and the first number of the Courrier, dated 
 the 14th I'f October 1807, publicly attest this faCt, and 
 fully evivice the falsehood of Mr Livingston's assertion. 
 The citizens had assembled on die baiiure for the [)ur- 
 pose of defending the rights of die United States by op- 
 posing the illegal seizure of a pvhhc p?opert\ ; and at 
 last the Governor, at the request of the people, thought 
 proper to transmit to the g aeral government the claim, 
 laid by the cl izens to ihat public property,, in the name 
 of the sovereign. Alt these Circumstances, the notori- 
 ety of which ca. not be denied, existed !>revious to Mr. 
 Livingston's having expended a shlihng Oii the batture. 
 And )et it is iu he iitce of all the -e facts, which im- 
 print on his add-eos tiie seal of hypocrisv and x:>[ false- 
 hood, that Mr. Livingston has the ellVuntery tu assert 
 that, by a refinement in oppression, the claims of the 
 public were siiiFered to lie dormant, until, ce-nfiding in 
 his title, he had expended his whole personal eslaie in 
 improving the iaud. Let him radicr sa;/ thai hi. v. as in 
 haste to exercise an act of owi ership, and to ap. tar to 
 have experded considerable bums on that part of the 
 bed of the river, in order, if possible, to dimini;sh the 
 invalidity of hi., tide. B.t as Mr. Livii^gston .speaks 
 of the confidence he had in that tide, let us be permuted 
 to ask him what kind of confidence had G^av ier in those 
 pretended claims, notv/ithstaiicii; - which he did not 
 hesitate to sell to JVlr. Deiabigarre and Mr. Livingston 
 
(4bj 
 
 for 10^000 dollars, which he never received, a pretend- 
 ed property which Mr. Livingston values at no less than 
 half a million of dollars ? Let us further be permitted 
 to ask Mr. Livingston, why, with all the confidence he 
 appeared to have in the legality of his title, he did not 
 submit it to the board of land commissioners established 
 by CoDgress, as that was the only tribunal competent to 
 decide as to its validity r But these means could not suit 
 the purpose of Mr. Livingston who, as may be believed, 
 had no m^ore confidence in the justice, that in the vali- 
 dity of his title. Having obtained a judgment from the 
 superior court, he waited till low water to begin to dig 
 a canal and throw up a dike beyond the bank, and he 
 plied the work with incessant assiduity, in hopes, as we 
 have said, that the sums he should expend, might berve 
 to prop his title, or afford him a pretext to aipeai to the 
 liberality and generosity of Congress, and thereby ob- 
 tain an indemnification more considerable that his real 
 expenses and the losses he should have sustair-ed. 
 
 The following quotation from the 2d page of Mr. 
 Livingston's address, announces much less his fears, 
 than it evinces his enmity to the president : " I shall 
 alarm that blind spirit of attachment, which adopting 
 the maxim of English prerogative, will not for a mo- 
 ment admit that a popular leader can be guilty^of wrong 
 — and accords impunity to a President of the United 
 States for acts that would shake the throne of an here* 
 ditary monarch." 
 
 Never was such a spi'-it compatible with the spirit of 
 republican government. I do not believe that any de- 
 mocratical government could exist five years, where such 
 a principle were established by the laws, or by the pre- 
 valence of custom. False patriots, until their masks are 
 worn out, may indeed have usurped popular favor ; but 
 no sooner did they become apostates to the principles 
 which had raised them to popularity, than they irrevo- 
 cably forfeited all public confidence, Mr. Livingston 
 
(47 ) 
 
 may recollect that there was a time when lie enjoyed 
 some degree of popularity ; his talents, his friends, his 
 political connexions, gave him, in those days, some 
 clai nr to the esteem of his fellow citizens. The republi- 
 cans mav even have considered him as one of their lead- 
 ers, and he m";ght siill rank highly in that party in which 
 his family enjoys well merited considt|"ation, had he 
 not misapplied his talent and his influence. But it 
 sometimes happens that the only effect of education 
 is, to bring to full-blown maturity vices which the 
 frost of ignorance and obscurity would have nipped in 
 the bud. Of this the different circumstances of the life 
 of Mr. Livingston afford incontestible proof. " Those 
 indiscretions which compelled him to 'become an exile 
 from his native state have cut him off from all hope of 
 regaining public confidence, notwithstanding all his de- 
 clamations against what he is pleased to call an arbitrary 
 act. But what in reality is that act which would have 
 shaken an hereditary throne, and to which a blind at- 
 tachment to the president has accorded impunity ? Is it 
 possible, Mr. Livingston, that your insatiable avidity has 
 so far impaired your judgment as to make you sincerely 
 consider in so odious a light, the act by which the pre- 
 sident did not permit you to take possession of the Bat- 
 ture ? What, sir, do you think you have such claims 
 to the gratitude of your fellow citizens, that the nation 
 ought to reproach the president w'iih his having wrested 
 from the gra-p of your criminal speculations, a public 
 property so useful, so indispensi.bly necessary to all the 
 inhabitants of this territory and of the western states ? 
 In order to escape your perfidious, your incendiary allu- 
 sions, must the president in contempt of all laws, divine 
 and human, by the most basf^ and reprehensible conde- 
 scension, have suffered yom to snatch from the people 
 rights, secured to them alikle by nature and by the trea- 
 ties which you have the hylpocrisy to invoke f Was it 
 
(48 ) 
 
 to be expected that a republican jrovernment would ac- 
 ki>^ "Udge die righfs of an individual P-' sell to the peo- 
 ple hi- sandy ^Aimr. which ihe river de[.n its, when, un- 
 der a morrarcliical government, ihe i eople's righf to ap- 
 propriate it to their ose, was never contestt^d i Was a 
 citv to be deprived ' f i:s n:..b ar, ar.d wa the stra .d of 
 its river, where annuall"/ co-me to a nafe mooting, boats 
 ioad'.d withcoran[i!)diiies the tnost necesaar) for its c^rai- 
 merce and its home coasumption, t > be trai}sf(^rmed 
 into receptacles of pestilential fiiih, which it wouid re- 
 quire several yeart, to compiete t In a word, wa , it to 
 be expected, that, to satiate your avarice, and that of a 
 few rapacious speculators, the chief magistrate of a re- 
 publican government should prove more insensible to 
 the claims, to the vvants, and to the rights of the people, 
 than the most shameless despot would be to the cravings 
 of his prodigal mistresises and favorites i No, sir, it is 
 time that you and all those who resemble \ ou, should 
 be convinced of this truth — that France did not cede 
 this country to the United Staies, nor did the American 
 government acquire it, m order that a gang of blood- 
 suckers, of ravenous lavv^yers, of foreign capitalists, 
 should, in contempt of all notions of justice and human- 
 ity^ combine under die most criminal compact, for the 
 purpose of chaining its inhabitants under the double 
 yoke of wretchedness and chicane. The American go- 
 vernment possesses principles too liberal to suffer the 
 worthy inhabitants of this country to be immolated to 
 the futility of your arguments, and to the machiavelism 
 of your understrapers. 'I he president would indeed 
 have rendered himself guilty of an act that would have 
 shaken the throne of the most absolute despot, had he 
 rejected the representations of a people jusdy indignant 
 at the audacious attack you had made on rights which a 
 court of justice could not even call in que^ti-Jii. 
 
 In vain do you attempt to associate the'cause of land- 
 holders with your own, ani to make them apprehend 
 
that the same authority which has done no more than 
 op|.ose your usurpations of public property, may hereaf- 
 ter disturb them in the possession of their estates. Y )\i 
 will find no person so blind as not to see, in the firm- 
 ness with which the president has maintained the rights 
 of the public, the most sure pledge of the government's 
 inviolable respect for private property. Every man, on 
 the other hand, would have been persuaded that the 
 right of j;roperty was no longer sacred, that those words 
 had lost all meaning and effect, had your intrigues and 
 machinations so far prevailed, as irrevocably to ci)nsum- 
 mate the spoliation of a public property, their claim to 
 which was so justly and so strongly asserted by all the 
 inhabitants of this territory. What could have availed 
 against your artifices, the right of a solitary individual 
 despoiled of his property by some of your subtle quirks, 
 if the united claims of several thousands of respectable 
 citizens, could not have snatched from your avidity a 
 public property, the common enjoyment of which was, 
 Iwill not say necessary, but indispensible to a whole 
 people I What man could have considered himself se- 
 cure in the possession of his property, however authen- 
 tic his titles, had you been able, in contempt of the most 
 solemn treaties, of rights the most firmly founded in 
 nature and in law, to brave the misery and indignation 
 of the people, and wrest from them a property, their 
 right to which, no one before you had been able to con- 
 test ? What thanksgivings ought not we to render to Mr. 
 Jefferson, were it only for his having given us the hope 
 of seeing a dike opposed to that inundation of knavery 
 and chicane, which threatened to swallow up all our 
 private property, if once it could have carried away that 
 which belonged to the public ! No, sir, do not expect, 
 by your insidious assimilations, to diminish the respect 
 and sincere attachment which we so justly bear to Mr. 
 Jefferson : the gratitude of the inhabitants of ihia coun- 
 try towards the American government, is equal to the 
 
 G 
 
indignation and contempt with which you have mspired 
 them. 
 
 Mr. Livingstv^n declares, in the third page of his pam- 
 phlet, that *' secladed in a remote part of the country, 
 occupied with the business of a hiborious profession, the 
 rap. d chaviges of general pohtics, its ancient divisions 
 and ncr/ c )!nbinations. have for five years passed un- 
 heeded or u. known/' 
 
 It were to be wished, especially for this country, that 
 Mr. Livi.g ton had here spoken the truth in all points. 
 When the im^jr udencies of Mr. Livingston Had driven 
 him into exile, it might have been expected that he would 
 have ch )sen for hi . retreat soaie sequestered spot, where 
 he might have spent the remainder of his days exempt 
 from the reproaches of his fellow citizens ; it was at 
 least tG be hoped thai hid future conduct would be such 
 as carefully to avoid whatever might draw on him pub- 
 lic observation ; bat this mode of life, which prudence 
 prescribed to him, was nol consistent with his views. 
 Intrigue was to succeed to profligacy ; and as it was not 
 expedient that the iheaire of hi . imprudencies should be- 
 come the scene of his wily schemes, it was necessary for 
 him lO make choice of a retreat in a country too little 
 acquainted with what had lately taken place, to have any 
 prepi.sseosioiis unfavorable to him, and yet sufficiently im- 
 portant toaff rd him every opportunity of exercising an 
 influence that might enable him speedily to repair his for- 
 tune, without meeiii.g with any obstacle as to the choice 
 of means. Louisiana, by the change of dominion it had 
 just undergone, presented to Mr. Livingston every ad- 
 vantage he could desire, and New-Orleans became the 
 place of hii residence. His arrival w^as pompously an- 
 nounced in one of the papers of this city, and he had the 
 modesty to cause to be there inserted the flattering 
 thanks, which p'-^ceecled the resignation he was obliged 
 to give in, of the office of mayor, and which were pre- 
 
(51 ) 
 
 rented to him in the name of the cUy council of New- 
 Vork, byhis iUustrious friend Mr. John B. Prevost. 
 
 The Louisianians found in Mr. Livingston a man not 
 destitute of talents, and they flattered themselves that 
 they should find in him a good citizen ; but they were 
 deceived in their expectation. Mr. Livingston, whate- 
 ver he may please to tell us, did not confine himself to 
 the occ'-jaiionsol his profession ; he plunged headlong 
 into speculations, which it was impossible to realize oth- 
 erwise than bv intrigue. Tho' b.irthened wi.h debts, 
 he did not hesitate to co itiact new obligations, with al- 
 most a eertaint}^ of not being able to discharge them. 
 His acquisitioti of the BnUiire \va^ not the only hazard- 
 ous speculation to which he di.ec edhis attention- He 
 knew that the grant made by the Spanish go\ernment to 
 the Baron de Bastrop, was vitceriy void, i;ia. much as the 
 grantee had not com >iied with any of he coiidiiions re- 
 quired of hiin ; he was n'>t ig .orant of the claim the 
 United States hud o that grant ; yet he doi.bted no ^ for 
 amome-ubut that intrigue lii'ght defeat all proof of the 
 nullity of the Baron's title. Let it not be imagined 
 however, that vir. Livingston had so little dexteritv as 
 to hazard in the v/hole course of this affair, an\ thing 
 more than the vast cornbinatio^js of his i; trigue. He 
 had indeed given his i)r>nds fo? the .payment of that )ar- 
 chase, but he had sureh- calculated on never d'scharging 
 them : and herein thj event evinced h^s :>agacity. The 
 term allowed fo. the payment being expired, he regaled 
 his new creditors with a law su\t of prime quality, that 
 is to say with one of '^he '' occupations f /us laborious, 
 profession,^' and he had the talent to prove, by I know- 
 not v/hat argument, that for having preserved that grant 
 unimpaired during two years, and for having failed to 
 discharge the obligations he had contracted tov^ards 
 them, he had a right to restore to them only about one 
 fifth of that pro})erty, and to reserve t^ hunself the re^ 
 maining four fifths. The Congress cannot too soon di- 
 
(52) 
 
 rect their attention to this Ouachita business, which is 
 realU a dexterous trick of juggling concerted by a gang 
 of lawyers. Messrs, IVIoo rehouse, Livingston, & 
 Aaron Burr, formerly citizens of New-York, and 
 Messrs. Lynch & Adair of Kentucky, are the principal 
 persons concerned in this edifying speculation. The 
 surplus of that grant is divided among a number of citi- 
 zens of New-O -leans, who never fail to vote at elec- 
 tions. I request the reader to excuse this short digres- 
 sion ; I will now resume the examination of the conduct 
 of Ml. Livingston. 
 
 On his arrival in this city, his pecuniary resources 
 were null, and his credit was still more so. The estab- 
 lishment of a bank became from that time his favorite 
 project, and he exerted all his ingenuity to cause himself 
 to be appointed one of the directors. But his plan hav- 
 ing utterly failed, he became disgusted with the ordina" 
 ry occupations of civil life, and wished to plunge into 
 the vortex of public affairs. The form of govern- 
 ment assigned to this country was not agreeable to 
 the inhabitants ; Mr. Livingston, who had but just arri- 
 ved in Louisiana, shewed himself, on this occasion, one 
 of the most zealous defenders of their rights 2nd of their 
 interests. His talents, his insinuating manners, acquir- 
 ed him the confidence of many respectable citizens ; but 
 as morality and jsisiice were not the basis of his conduct, 
 their welfare co .Id not long be its object, and according- 
 ly, he soon was unmasked. I agree with Mr. Living- 
 ston, that he is a stranger to the new combination of po- 
 litics in the United States, for no party would confide in 
 him ; but it is not the less true that he is " an adept in 
 the arcana of intrigue," and that he has signalized him- 
 self as one of the most active members of the disorgan- 
 izing faction that has so long desolated this territory. 
 
 Ever faithful to his system f detraction, Mr Liv- 
 ings:, on does not fear to call down upon his head suspi- 
 cion of his being one of the accomplices of Burr, in ex- 
 pressing himself thus : 
 
(53) 
 
 ^^ Where the destruction of personal libertj^ is permit- 
 ted with rnpunity, th« invasion of private property must 
 be a venial crime." We have had but one instance of 
 the suspension of the habeas corpus, and thai was for 
 the purpose of arresting the progret.s of Burr's conspira- 
 cv. Doubtless those iactious hivvyers v ho had sv orn 
 to make the Uniied Slates become, throui^h their in- 
 trigues, the desperate auxiliary of Great Bnuiiii, mast 
 have taken it iU that the energy of the government had 
 hindered ihem from plundering our banks and revolu- 
 tionising the country, in order to force our \vr'etch^:jd fel- 
 low citizens to make an irruption into the Spanish [posses- 
 sions ; it vvas very consistent that thev should raise a 
 loud outcry, on the arrest of a few of their agents, of 
 whose individual liberty it was necessary to make a tem- 
 porary sacrifice to public liberty endangered by their 
 seditious machinations ; nor is it any way surprisilng to- 
 see the innocent Livingston, " a stranger to all pardes," 
 address himself, in this allusion, replete with cand(M', to 
 the scattered wrecks of the army of his general, v/ith a 
 view to call them impartially to the assistance :,'f his 
 cause. It is very natural that he should speak of the 
 destruction of individual liberty, when there no longer 
 existed any alternative between the temporary destruc- 
 tion of the liberty of a fevv' fire brands, and the extermi- 
 nation of public liberty ; nor is it widi less consistency 
 that he cries out against the violation of private proper- 
 ty, when the sole object in view is, to hinder him from 
 usurping the property of the public. 
 
 Mr. Livingston assures us, that " in detailing his 
 facts he shall rely on none but such as are proved by 
 the strongest evidence — that his deductions from th.-in 
 shall be drawn with the candor necessary to the investi- 
 gation of truth." This is doubtless a very fine pronuse> 
 let us see how he will perform it. 
 
 '" At the time of the ratification of the treaty by which 
 Louisiana v,-as ceded to the United States, by one of the 
 
(54 ■) 
 
 articles of which the inhabitants are secured in the un- 
 disturbed enjo) ment of ihtir proper as alb * a ihe time 
 of its execution, *' Johi Gravier, " sa} s Ivlr. Liv;ng;ton 
 *' was proprietor and pos-ie^sor of a farm, or } la.itation, 
 adjoining to the city )i New-Orleans. Ab;> >i fifteen 
 years prior to the ce .sion, he had laid out a part ol his 
 farm into lots, and it now forms a quarter of .he citv, 
 known by the name of the s'jburb Si. Mar;> . I;^ 1, ont 
 of this farm, an increase of land has been gradually 
 forming for the last thirty or forty years." 
 
 This statement is the masterpiece, I will not say of 
 falsehood, but of the most skilfully combined disingen- 
 uousness ; for it is couched in such a manner, that one 
 may pdssitively infer from it that John Gravier, is .till 
 proprietor of a plantation adjoining the river, the back 
 part of which has been converted into a s^iburb, yet with- 
 out its being possible, in proof of the contrary, to con- 
 vict Mr. Livingston of falsehood. Such is indeed, the 
 address wiih which he speaks in this instance, that in 
 appearing to refer it to the present time relative to its 
 contiguity to the plantation, he mav, by an exj^lanation 
 annexing that ciicumstance to a passed time, avoid the 
 mortification of being formally charged with imtrulh. 
 By restoring facts to their physical and chronological 
 order, v/e shall set in the strongest light the candour of 
 Mr. Livingston. 
 
 Long before the sovereignly of Louisiana was ceded 
 to the United States, Gravier had ceased to possess a 
 riparious plaitation. Fifteen years ago the portion of 
 that estate which borders on .he river, was alienated for 
 the purpose of building on it the suburb St. Marv, and 
 the portion that remained in the possession of G a\ ier, 
 is not, as might at first be thought from Mr. Living- 
 ston's statement, situate in front of this increa'^e, but be- 
 hind this suburb, which is adjacent to the river, whose 
 periodical rise covers, during 5 or 6 months of the year, 
 this pretended increasCj which is nothing but a part of 
 
{55) 
 
 its bed. After that ostentatious display of candor, ia 
 not the reader shocked at the duplicity which character- 
 izes such an onset in ihe exposition of facts ? 
 
 I know not what kind of courage Mr. Livingston 
 may possess, but indeed I acknowledge he has that ot 
 impuJeiice in the highest degree. , 
 
 As to that pretended increase, 1 own that Mr. Liv- 
 ingston might expect one more real and more coi>sider- 
 able, were Congress to permit him to execute his projects 
 of encroachment on the bed of the river ; for the mere 
 effect of the dike he had begun, has so far changed the 
 course of the river as to force it to augment the batture 
 by 70 or SO feet, and to raise the soil by upwards of a 
 foot in certain places. But were Congress to grant him 
 that favor, (for a right supposes a title, and Mr. Liv- 
 ingston has none whatever to the batture,) the harbor of 
 the city would soon be choked up, and the river rush- 
 ing with violence thjough that confmed part of its bed, 
 would be carried with velocity on the suburb Marigny, 
 and on the lower banks, where it would probably indem- 
 nify itself for the constraint under which Mr. Living- 
 ston had i -id its course. But would it be just, would 
 it be reasonable that Mr. Livingston, who has no man- 
 ner of right to the batture, and who in that pretended 
 purchase disbursed nothi g more than the equivalent of 
 the very dear words wn.cl|^he had the talent to sell to 
 his unfortunate client, bh.)uld make encroachments ou 
 the river, to the ruin of the harbour and of the estates 
 of the inhabitants on both the lov/er banks ? Shall this 
 city, to wiiich earth is a cjusiant object of primary ne- 
 cessity, whose soil, inclining tov/ards the lake as it re- 
 cedes from the levee, is continual!} washed away by 
 very heavy rains, and which, but for the sandy slime an- 
 nually deposiied by the Mississippi on that batture, 
 would become an immense quagmire, shall this unfor- 
 tunate city be cruelly sacrificed to the attrocious specu- 
 lations of a v/retcb.ed lavrvcr Viho has svrorn to be its 
 
(56) 
 
 scourge ? Shall we see him establish the feudal systetn 
 in she midst of astonished America, by assuming to 
 himself the right of laying a wharfage duty, which be- 
 longs only to the sovereign, or to the corporations that 
 are his delegates ? Shall he dare to lay prostrate all trea- 
 tie.. and ail principles of law, in order to impose for the 
 suppl)' of the exchequer oi chicane, a land tax on all 
 the real property in the city, by leaving to the owners 
 no other alternative than to see their coiirt-yards eiiher 
 turncjd into pesdientiai fens, or burthened with a rent 
 to be paid to him, f f r liberty to take the earth neces- 
 si\ V to raise them ? Yet such would be the odious and 
 sho( king consequences of the spoliation of that public 
 propeay. 
 
 *' About ten years prior to the cession, continues Mr. 
 Livingston, the future value of this property began to 
 be foreseen, and some of the most intelligent inhabi- 
 tants of the suburb, ia order to secure to diemselves the 
 benefit of the increase, made purchases of parts of the 
 alluvion from Gravier, the deeds for which were made 
 before the noiary of the government, whose duty it was 
 to pabs no sales where the vender did not shew a title." 
 
 This statement is no less artful and fallacious than 
 that .hich precedes it. One would imagine that the 
 sales alluded to v,'ere special sales of some portions of 
 batture to- which the vendet Gravier, had shewn a par- 
 ticular title, whereas the fact is that he had shewed none^ 
 and that the deeds in question contain the alienation of 
 those portions of batture merely as accessory to the lots 
 sold. Admitting that, unmindful of the change which 
 the nature of Gravicr's estate had undergone .--y i;s ow- 
 ner's having converted into a suburb the part adjacent 
 to the river, the notary continued to consider tho^e por- 
 tions of batture as the accessory of the principal which 
 was alienated this vvould at most prove the ignorance 
 or inadvertence of that public officer^ but would by no 
 means imply the exhibition of a previous title, as Mr. 
 
{57 ) 
 
 Livingston would fain persuade us. But what evinces 
 that neither the parties nor the notary were as ignorant 
 as we might at first be inclined to think them ; what 
 precludes all doubt as to their full convic ion of the ut- 
 ter illegality of those sales, with regard to the aliena- 
 tion of those portions of batture, is that Mr. Girod 
 himself, one of the purchasers of those very portions of 
 batture, and in right of whom, as we have sewi, Mr. 
 Livingst'Ui claims, ha-^, in presence of the very notary 
 before whom these sales had j assed, and who in this 
 circumstance officiated in his double capacity of secre- 
 tary to the Cabildo, formally ackafjvv lodged the abso- 
 lute nullity of his pretended' title, b. ih^^ ^.etition which 
 he presented to the Cabildo on the 28th of Ma> 1801» 
 In that petition Mr. Girod prayed to be pei milled to 
 build a flour mill on the space between the river and 
 the road in front of his hoise situate in the suburb, 
 that is, Oil that very portion of batture which he had 
 caused to be sold to him by Mr. Gravier, and for this 
 permission he was willing to pay a rent as a tribute of 
 the soil which the contemplated establishment would oc- 
 cupy. Notwithstanding all the appearances of public 
 utility set forth by the petitioner, his request was refu- 
 sed by the Cabildo. It must be acknowledged that this 
 pretension to the soil in question is of a very singular 
 species of property, and I doubt much whether Mr. 
 Livingston, profound as is h:s knowledge of jurispru- 
 dence, could, in the enumeration of the several species, 
 find one under which to class it. A proprietor who not 
 only requests in writing to be permitted by the public 
 authority to make a specific use of the land sold to him, 
 but who cannot obtain his request even though he sub- 
 jects himself to pay a tribute for the soil, and that in 
 presence of the notary who passed the sale of his pre- 
 tended property, and who is silent as to the execution of 
 that deed of sale ! What concurrence of circumstances 
 ever established more evident nullity and fraud than 
 
 H 
 
mh9i presided over the forgery of those sales ? Must 
 not Mr. Livingston have renounced all shame and di- 
 vested him' elf of all rationality, before he could pre- 
 sume to adduce those deeds, acknowledged to be void 
 both by the purchaser himself, and by the notary ia 
 qrality of secretary of the cabildo, as though they were 
 authentic contracts of sale ratified after the exhibition 
 of a previous title. It is really hard to determine which 
 is the more astonishing, the depth of crafty combina- 
 tions discoverable in the arrangement of all the facts 
 stated b} Mr. Livingston, or the unabashed effrontery 
 with which he urges them. For my part, I own that 
 the deeper I dive into the examination of his philippic^ 
 the more I find myself incapable of solving this pro- 
 blem. 
 
 Mr. Livingston possitively asserts that the claims of 
 the city corporation produced the suit on the part of 
 Gravier against the city. Thus does he constantly mis- 
 represent the truth. That suit was not produced by the 
 claims of the city, but by the pretensions raised in the 
 name of Gravier. Mr. Livingston has just acknow- 
 ledged that the public had ever been in the habit of tak- 
 ing earth from the Batture, until Gravier laid claim to 
 it. It is true he gives us to understand that it was 
 done with Gravier's consent ; but where is the proof of 
 this ? To have consented, he must have shown that 
 he had a right to oppose. On the supposition that his 
 clients generosity had permitted the public to commit 
 some trifling depredations on his property, a prudent 
 regard for his own interest required him occasionally 
 to interrupt their continuance, by forbidding a practice 
 which might endanger the prescription of his rights. But 
 no such prohibition was ever attempted, either by him or 
 by his ancestors. Why did he wait till achange of gov- 
 ernment had taken place, before he opposed these pretend- 
 ed usurpations ? It is then to the claims and pretensions 
 he then formed for the first time, that is is to be imputed 
 
(59 ) 
 
 the interruption of he existing state of things, and no^ 
 to the pretensions of thj corporation, who did not raise 
 any new claim, since, as Mr Livingston acknowledges, 
 the people had till then, been in the habit of taking 
 earth from the Batture. Nci.her i , it true chat the suit 
 was really iastituied by Gravier. He merely lent his 
 name in the course of those odious proceedings ; and as 
 soon as Mr. Livingston imagined that the judgment 
 of ihe Superior Court mast secure to him the quiet 
 po'ssession of that pubLc property, of which he thought 
 he had then consummated the spoliation, the lawyer 
 threw off the mask, and finding in the possession of that 
 immense property, sufficient to compensate him, should 
 he be forced to share the maledictions with which the 
 people had till then loaded his client alone, he abun- 
 dantly convinced us that he, and not Gravier, was the 
 real author of that abominable law suit. Till then he 
 had had the precaution to present Gravier as his scape- 
 goat, to be devoted to public execration as the person 
 whose claim he was merely defending : for a lawyer of 
 his description may, without committing himself, defend 
 indiscriminately a good or a bad cause, that is, he may 
 reason justly, or argue in opposition to reason and jus- 
 tice, accordingly as self interest prompts the oracle of 
 law. 
 
 After having positively assured us, in the second 
 page, that the claim of the United States had been suf- 
 fered to lie dormant until he had expended his whole 
 personal estate in improving the land of the Batture, 
 Mr. Livingston acknowledges in page 8th, that the title 
 of the United States to that property, had been the 
 ground of a motion for a new trial in the Superior 
 Court. 
 
 This last avowal, extorted by the force of truth, may 
 be compared to the striking of the watch that discovered 
 the thief who had filched it in the cabinet of Charles the 
 fifth. Mr. Livingston's usual foresight seemsj in this 
 
(60) 
 
 instance, to have forsaken him ; for it is clear that, with . 
 a little more mt^morv, it would have been easier for him 
 to have stifled the voice of truth, than it was for the 
 thief to have stoj>pv^d ihe balance of the watch. But the 
 most active geniu has his moments of drowsiness. 
 
 If we are to believe Mr. Livingston, he boughi the 
 Batture from the heirs of Mr. Delabigare, and from Mr. 
 Girod, for the sum of about ^80,000. 
 
 Wh^ this approxlinaiJo!! ? In a purchase of such 
 importance, und in general in every purchase of real es- 
 tate, the purchaser can speak positively as to the sum 
 it cost him. The term ahoiii is not known in contracts 
 of sale. It is hardlv possible to account for this want 
 of exactness, unless v/e recollect that this purchase being 
 but conditional, Mr. Livingston does not choose to fix 
 the preci .e price, that he may have an opportunity of 
 paying to his venders a sum proportionably less, and of 
 chatging those who are jointly interested, with a sum 
 propurtionably higher, for that pretended purchase, as 
 his expenses and the steps taken by him may have been 
 more considerable and more multiplied, before he suc- 
 ceeds in finally consummating the spoliation of that pub- 
 lic property. Assuredly Mr. Livingston did not thus 
 express himself without some design and some useful 
 dbject. 
 
 Mr. Living-ton asserts,^ th^t the people did not at- 
 tach anv great importance to the ca'-ise during its discus- 
 sion. Two circumstances account for this pretended in- 
 difference ; the first is that the language in whicli the 
 cause was pleaded, is unknown to a great majority of 
 the inhabitants of this countr) ; the second is, that the 
 people, confiding in the strength ancA the evidence of 
 their claim, and relying on the respect which they 
 though would be had for public property, never consid- 
 ered that suit in anv other light, than as being one of the 
 
 *Page 9. 
 
(61 ) 
 
 means devised hvMr. Livingston, to accelerate the ruin 
 of Gravier, b gratif} ing his pjopensity to litigation. 
 
 " No sooii- r was ihe cau'^e decided," continues Mr. 
 Living ton, " ihan everv engine that could excite popu- 
 lar resentment, was set in m tion." 
 
 No engine whatever was set in motion .• it was natu- 
 ral that the discontents of the people sh^^uld be manifest- 
 ed bv an explosion the more energetic and spontaneous, 
 as they had till then been the more firmly and constant- 
 ly convinced of the justice of their claim. 
 
 A mob, (I quote Mr. Livingston) opposed one of the 
 proprietors in his aitempts to make some improvements 
 on the land. 
 
 It is highly irritating to see a man of jMr. Living- 
 ston's description u^e such an expression, in speaking 
 of the people who assembled on the Batture, to op- 
 pose him in his attempt to destroy a })art of -he har- 
 bour of the city. The conduct of those people, whom 
 he has the baseness to provoke and insult, because they 
 are friends to order and incapable of running into 
 the least excess, was as calm and as moderate as that of 
 M . Livingston's was odious and insolent. Persuaded 
 that the government a^one was competent to afford them 
 effectual protection against the audacity and unbridled 
 avidity of Livingston and his understrappers — they en- 
 tirely acquiesced in the assurances which the govern- 
 ment was plea.ed to give them, that the general govern- 
 ment would make the affair an ohjecf of their speedy in- 
 terposition ; and as no excess hud precceded that meet- 
 ing neither was it foilov/ed by an\ disagreeable conse- 
 quences. All the best disposed, the wealthiest and the 
 oldest inhabitants of theciiy, v/ere present at that meet- 
 ing, to protest against the spoliation of a public pro- 
 perty, attempted by Mr. Livingston under forms the 
 more odious, as he had made the majesty of the laws 
 serve as a sanction to his robbery. 
 
 Mr, Livingston, in order to render himself interest- 
 
(62) 
 
 iiig, is pleased to inform us, page 11, that he knew that 
 the malice of his oiemies was active ; he knew that the 
 po teal existence of he most malevolent among ihem 
 de oded on his impressing the President v/ith a per- 
 suasio.^ ofhi-i popula'-ity 
 
 Mr. Livingscnn is here looked upon as an enemv by 
 all the mo-~t wO' thv people in «he country, a;id it woidd 
 surely be dinicult to believe that .here existed the slight- 
 est shade of difference in the opinion hey entertain of 
 that lawyer,, I brlieve they all equally detest and de- 
 spise him ; we cannot however mistake as to the per- 
 son he intended lo designate, for it is evident that this 
 little compUment is addressed to Mr. Claiborne. 
 
 But what is most remarkable is that he imputes to that 
 governor the rancorous sentiments v.hichhe himself has 
 professed towards the latter, sentiments s© publicly 
 knovvTi that his malevolence towards him is become pro- 
 verbial. The hatred that Mr. Livingston bears to Mr. 
 Claiborne, dates its origin from the time that the latter 
 made him suffer a refusal on the application of this up- 
 right fmancier of New-York, to b-; appointed a director 
 of the Louisiana bank. From that moment iMr. Liv- 
 jfigston changed his battery, and apostatized from the 
 principles which it is ihe pride of his family to profess, 
 determined to v/allov/ in the intrigues of Claik & Co. 
 That the Governor holds in abhorrence the views and 
 the conduct of Mr. Livingston, I readily admit ; but 
 that he bi;ars him the least enmity, or has given himself 
 any concern v/ith regard, except in undertaking to dclend 
 the rights and interests of ihe public, shattered by ihe 
 artcilery of his intrigue, this is what I am far from be- 
 lieving. As to the popularity which IVIr. Claiborne en- 
 joys, he does not owe it to the affair of the Batture ; his 
 justice, his rectitude, his vigilance, the sincere attach- 
 ment he bears to the inhabitants «.f the eountry, his firm 
 and prudent conduct vvhen surroimded, as it v/ere, by all 
 the most active elements of the faction of Burr — such are 
 
(b3) 
 
 the honorable titles on which are fonnded hU claims to 
 the affection of all hcmest men, and to the coiifideiice of 
 his government. Sich popularity could receive no in- 
 crease from the affair of the baiture, in which .he gov- 
 ernor did no more than strictly adhere to his dut\ , with 
 reference to the general interest of the United Stales ; 
 and as that affair was not merely a local concern of this 
 territory, but had a considerable influence on the trade 
 of all the western country, had Mr. Claiborne shewn any 
 indifference on this occa ion, not only would he have 
 been highly reprehensible, as unmindful of whai he ow- 
 ed to the interests of those under his government, but 
 he would have merited general reprobation for having 
 suffered the trade of one of ihe richest quarters of the 
 union, to be shackled by the spoliation of that property. 
 Mr. Livingston positively declares, page 12, that the 
 first, second, and third regim-ents of militia were ordered 
 to parade in the subuib, in order to assist the marshal in 
 the execution of the President's mandate This is an 
 additional proof of Mi. Livingston's want of respect fur 
 truth in the arrangement of his specious narrative. 7 he 
 fact is, that not a single company of militia was ordered 
 out. The citizens went in crowds to the Batture, and 
 the marshal had recourse merely to the pos6-e coniit rius. 
 The great concourse of people, when that officer in the 
 name of the government, dispossessed Mr. Livingston 
 of the Batture, is another pro< f bo.h of the interest they 
 took in that affair, and of the pleasure wi.,h Which all ho- 
 nest men beheld the triumph of ju^^iice over iviquity. 
 
 I now beg leave to ask Mr. Livingston, who endea- 
 vors to persuade his readers that the i#ea3ure taken by 
 the president was un|;opuIar, whether all the anterior 
 meetings that had taken place on the Batture, v/ere not 
 spontaneous ? Has he not himself found in those very 
 natural proofs cf the public discontent, a pretext for re- 
 proaches apparently well founded ? Let him rec llect 
 the publications signed ViwVtor and E. Livingston, winch 
 
(64) 
 
 appeared abGiit tliat time in the public prints of this 
 
 tity ; let him call to mind the bitter complaints he ad- 
 dressed to the persons inverited vvith the executive au- 
 thority, relative to those meetings. If until that time it 
 would have required an armed force to prevent them, 
 how can we adinit that in this circumstance, the execu- 
 tive authority v»'as obliged to have recourse to an armed 
 force for a contrary purpose, that is, to prevent the peo- 
 ple's opposing the dispossessing of Mr. Li\ingston, when 
 ihey themselves would have dispossessed him four 
 months earlier, by open force, had not the Governor, in 
 reniinduig tht^in of the respect due to the laws and to the 
 dec.bion o^ a Siiperior court, given them positive assur- 
 aiice cf the interposition of government. But Mr. 
 Living'.ton has already accumulated so many fal ehoods 
 in ihat fallacious exposiiion of facte, ih:it one falsehood 
 m )re or less would be on the vvh{)Ic but f.f slight inipor- 
 laiice, as it could no way affect the regular tenor of his 
 system of deception. 
 
 Mr. Livingston savs, that by being dispossessed of 
 the Battute he was reduced to poverty : 
 
 We Hiust be permitted to aiviv/er that thiv. first objec- 
 tions, were it U ur.ded in truth, couid have no weight 
 in a circun.stance in which it wa the duty of the Pre„ 
 sidcnt to preserve a public property ; hot it is fur- 
 ther to be observed that Mr. Livingston has not been re- 
 duced to poverty, that the Presiderii's orders had only 
 hindered him from trkiug what did not belong to him, 
 and thus giov/ing suddenly rich at i.ther..' expense. This 
 ol)icctV2n IS about as well founded as though Mr, Living- 
 ston w^ere to pretend thai he was ruined by litigants, not 
 one of whom would retain him as their counsel. 
 
 lur. Livingston, pages 13 and 14, lays before rhe rea- 
 de;- the motives thac i'.duced him to g'> to Washington 
 Citv. and the result of his interviews, and of his corres- 
 pondence w^lth the President and the different officers 
 of ,crovernment. The amount of all that rs interesting 
 
(65) 
 
 in these details, only tends to shew in how low estima- 
 tion the person of Mr. Livuigston is held in Washing- 
 ton City, ?^nd that, notwithstanding his confidence in the 
 pretended justice of his claim, which confidence he had 
 had the precaution to prop with the opinion f -f different 
 lawyers, who were favorable to hiin doub less in pro- 
 portion to the money he had expended in seeing them, 
 the President, the Secretary of Stale, the Attorney Gen- 
 eral of the United States, still persisted in the opinion 
 that he had usurped a public property, and that the af- 
 fair must remain in the situation in which the Presi- 
 dent had placed it. 
 
 Mr. Livingston acknowledges, pages 19 and 20, that 
 in consequence of the opinion of the counsel for the 
 city, that the Batture was the property of the United 
 States, he wrote to the Attorney General, and forward- 
 ed to him an answer to Mr. Derbigny's opinion, filter 
 this I once more ask what becomes of all that scaffold- 
 ing of declamations in which Mr. Livingston as- 
 seris that the claim of the United States had been 
 suffered to lie dormant until he had expended his 
 whole personal estate in improving the lands f These 
 inconsistencies so frequently recurring, betray the want 
 of sincerity which pervades the v/hole exposition of 
 facts presented by Mr. Livingston. Thus he is under 
 the continual necessity of contradicting himself. Mr. 
 Livingston reproaches the President, page 21, with hav- 
 ing called the batture a shoal or elevation of the bottom 
 of the river, because, according to him, he ought to have 
 described it by the term alluvion. But the President 
 was thoroughly acquainted with the s'.bject matter; he 
 was certain of the propriety of the expressions he em- 
 ployed, and knew very well that that batture did not 
 possess any of the qualities requisite to constitute allu- 
 vion land ; he knew that that batture was in reality no- 
 thing more than a part of the bed of the river, and that 
 
(66 ) 
 
 it was impossible to give a more exact and faithful idea 
 of it, that by describing it as he did, in his message to 
 Congress. Mr. Livingston had doubdess very cogent 
 reasons to whh that the President had not had, on that 
 subject, notions sufficiently precise to establish the dis- 
 tinction ; but it does not thence follow that he has any 
 right to upraid him with his discernment. 
 
 Mr. Livingston thinks himself further warranted in 
 reproaching the President with having said that the city 
 had immemoriaiiy used the batture, nor can he compre- 
 hend hov/ this exijression can be used with reference to 
 a city founded within a period of ninety-nine years. 
 
 The v/ord immemoriLilly is very properly employed. 
 Several of the witnesses and depopents employed it in 
 attesting that the butti^re was in the use of the public. 
 Ti?'^'^o.riF>consu!t3 v/ho have written on this subject, have 
 also 'adopted that term ; and the President by this ex- 
 ]>res3ion, presented a correct idea, inasmuch as that use 
 i:j preexistyiit to the most remote period in the recollec- 
 tioit of the oldest inhabitants of the cit}^ 
 
 Mr. L^viiigsion, in the same page, further objects to 
 the President's assertion that the batture had only lately 
 been claimed by a private individual, as from the docu^ 
 ments he had transmitted to him, he must have seen that 
 Gravier. twelve ^,^ears before, had sold a portion of the 
 
 batture. 
 
 But the President had also seen, from the documents 
 tv?.nsnr.:ted to nimby the Governor, that that sale, made 
 tv/elve years before by Gravier, v/as a sale the nullity 
 of which was so apparent even in the eyes of Mr. 
 Girod, the purchaser of that portion of batture, that 
 yubsequti t .j that pyctended sale, to wit, on the 
 28ih of IMay ISGl, he presented to the Cabildo a peti- 
 tion requesiin:5 to be permitted to make use of it by 
 building on i: a fiour-mill, offering to subject himself to 
 pay rent for the toil of that same portion of batture. 
 
(67) 
 
 The means of appreciating that pretended 'sale, wera 
 furnished to the President by his perusal of that docu- 
 ment, the original of which is deposited amongst the 
 archives of the City Conncil. whence it is not apprehend- 
 ed that Mr. Livingston will be able to remove it. 
 
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