The Doctor and Silas Deane were in conversation one day at Passy, on the numerous errors in the Abbé's "Histoire des deux Indes," when he happened to step in. After the usual salutations, Silas Deane said to him, "The Doctor and myself, Abbé, were just speaking of the errors of fact into which you have been led in your history." "Oh, no, Sir," said the Abbé, "that is impossible. I took the greatest care not to insert a single fact, for which I had not the most unquestionable authority." "Why," says Deane, "there is the story of Polly Baker, and the eloquent apology you have put into her mouth, when brought before a court of Massachusetts to suffer punishment under a law which you cite, for having had a bastard. I know there never was such a law in Massachusetts." "Be assured," said the Abbé, "you are mistaken, and that that is a true story. I do not immediately recollect indeed the particular information on which I quote it; but I am certain that I had for it unquestionable authority." Doctor Franklin, who had been for some time shaking with unrestrained laughter at the Abbé's confidence in his authority for that tale, said, "I will tell you, Abbé, the origin of that story. When I was a printer and editor of a newspaper, we were sometimes slack of news, and, to amuse our customers, I used to fill up our vacant columns with anecdotes and fables, and fancies of my own, and this of Polly Baker is a story of my making, on one of these occasions." The Abbé, without the least disconcert, exclaimed with a laugh, "Oh, very well, Doctor, I had rather relate your stories than other men's truths."
THE PROCEEDINGS
OF THE
GOVERNMENT OF THE UNITED STATES
IN MAINTAINING THE PUBLIC RIGHT TO THE BEACH OF THE
MISSISSIPPI, ADJACENT TO NEW ORLEANS, AGAINST THE
INTRUSION OF EDWARD LIVINGSTON.
PREPARED FOR THE USE OF COUNSEL,
CONTENTS.[81]
| Page | |
| Title of the Jesuits, | [5] |
| Term 'face au fleuve,' | [5] |
| Confiscation, | [5] |
| Title of B. Gravier, | [5] |
| Establishment into a fauxbourg, | [5] |
| Gravier's sale, | [6] |
| Streets, | [8] |
| Beach or batture, | [9] |
| Purchase by Inventory, | [9] |
| Livingston's arrival, | [11] |
| Parisien, | [11] |
| De la Bigarre, | [13] |
| Decision of Court, | [14] |
| Alarm occasioned, | [14] |
| Servitude of maintaining road, | [14] |
| United States no party to the decision, | [16] |
| Livingston's Intrusion, | [17] |
| Appeal to government of U. States, | [18] |
| Livingston's works, | [19] |
| Deliberation of the Cabinet, | [21] |
| What law to decide, | [21] |
| Proclamation of O'Reilly, | [21] |
| French code, | [22] |
| Roman law, | [23] |
| Alluvion, | [26] |
| Edict of Louis XIV | [33] |
| Napoleon Code, | [34] |
| Portalis, | [34] |
| M. Moreau de Lislet, | [36] |
| Note.—M. Thierry, | [38] |
| Rural and Urban possessions, | [39] |
| Principal and accessory, | [41] |
| The Beach or Batture not Alluvion, | [42] |
| The bed, beach, bank of a river, | [44] |
| Missisipi, | [49] |
| Nile, | [50] |
| Property of the bed and bank, | [52] |
| Limitations of the rights of property, | [54] |
| Surety, | [58] |
| Levées and Police of Missisipi, | [61] |
| Suspension of Livingston's works, and the authorities by which, | [62] |
| Nature of those works, | [63] |
| Remedies, to wit, Abatement of Nuisance, | [64] |
| Forcible entry, recaption, | [65] |
| Roman law de vi bonorum raptorum, | [66] |
| Squatters, | [68] |
| Jurisdiction over public property, in whom, | [68] |
| When it results to the courts, | [68] |
| Act of Congress, 1807, c. 91, | [68] |
| Remitter, | [69] |
| Recapitulation, | [70] |
| Opinions and Orders of the Government, | [72] |
| Proceedings under them, | [72] |
| Chancery injunction from the court, | [73] |
| Proceedings of the legislature of Orleans, | [76] |
| Message to Congress, | [76] |
| Removal of the case before them, | [77] |
| Responsibility of a public functionary, | [78] |
PREFACE.
Edward Livingston, of the territory of Orleans, having taken possession of the beach of the river Missisipi adjacent to the city of New-Orleans, in defiance of the general right of the nation to the property and use of the beaches and beds of their rivers, it became my duty, as charged with the preservation of the public property, to remove the intrusion, and to maintain the citizens of the United States in their right to a common use of that beach. Instead of viewing this as a public act, and having recourse to those proceedings which are regularly provided for conflicting claims between the public and an individual, he chose to consider it as a private trespass committed on his freehold, by myself personally, and instituted against me, after my retirement from office, an action of trespass, in the circuit court of the United States for the district of Virginia.
Being requested by my Counsel to furnish them with a statement of the facts of the case, as well as of my own ideas of the questions of right, I proceeded to make such a statement, fully as to facts, but briefly and generally as to the questions of right. In the progress of the work, however, I found myself drawn insensibly into details, and finally concluded to meet the questions generally which the case would present, and to expose the weakness of the plaintiff's pretensions, in addition to the strength of the public right. These questions were of course to arise under the laws of the territory of Orleans, composed of the Roman, the French, and Spanish codes, and written in those languages. The books containing them are so rare in this country as scarcely to be found in the best-furnished libraries. Having more time than my Counsel, consistently with their duties to others, could bestow on researches so much out of the ordinary line, I thought myself bound to facilitate their labors, and furnish them with such materials as I could collect. I did it by full extracts from the several authorities, and in the languages in which they were originally written, that they might judge for themselves whether I misinterpreted them. These materials and topics, expressed in the technical style of the law, familiar to them, they were of course to use or not to use, according to the dictates of their better judgment. If used, it would be with the benefit of being delivered in a form better suited to the public ear. I passed over the question of jurisdiction, because that was one of ordinary occurrence, and its limitations well ascertained. On this, in event, the case was dismissed; the court being of opinion they could not decide a question of title to lands not within their district. My wish had rather been for a full investigation of the merits at the bar, that the public might learn, in that way, that their servants had done nothing but what the laws had authorized and required them to do. Precluded now from this mode of justification, I adopt that of publishing what was meant originally for the private eye of counsel. The apology for its general complexion, more formal than popular, must be found as well in the character of the question, as in the views with which its discussion had been prepared. The necessity, indeed, of continuing the elaborate quotations, is strengthened in the case of ordinary readers, who are supposed to have still less opportunity of turning to the authorities from which these are taken.