| 'Les attérissements et accroissements qui se forment successivement et imperceptiblement aux fonds riverains d'un fleuve, ou d'une rivière, s'appellent Alluvion.' §. 556 | 'The accumulations and increments which form themselves successively and imperceptibly against the riparian lands of a river or stream are called Alluvion.' Sect. 556. |
| Portalis.|And by the edicts of 1686 and 1689, both of which have the expression 'crémens qui s'y sont formés, soit par alluvion, ou par industrie, &c.' And here Portalis's rhetorical flourish, on presenting this law, is cited, [Duponc. 17. Liv. 22.] with triumph, as declaring that this law terminates the great question of Alluvion, and decides it conformably to the Roman law. It is very true indeed that it has terminated the question as to future cases, by changing the law, by transferring the right of Alluvion from the sovereign to the riparian proprietor, by giving the abandoned bed of a river, as an indemnification to him on whose land it has opened a new passage, and making this the future law of all the provinces. And had Louisiana then been subject to France, the law would have been changed thenceforward, for Louisiana also. I find no fault with Napoleon for this Roman predilection. I believe the change is for the better, so far as concerns rural possessions. A decision too of the parliament of Bordeaux is quoted by Mr. Duponceau 19. to prove that the law giving Alluvion to the adjacent possessor has been acknowledged in France by the decision of the parliament of Bordeaux, confirmed, as he has heard, on appeal by the parliament of Paris. This proves only that the Roman law of alluvion was the law of the Generality of Bordeaux, not that it was then the law of all France. In the country called the Bordelois, Customary laws prevail. But
| 'Lorsque la coutume de Bordeaux ne s'est pas expliquée sur certains points de droit, ce n'est ni à la coutume de Paris, ni à d'autres coutumes qu'on a recours pour les faire décider, mais au droit écrit.' Enc. Meth. Jurisp. Bordeaux.' | 'When the Custom of Bordeaux has not sufficiently explained itself on certain points of law, it is neither to the Customs of Paris, nor to other customs that recourse is had for decision, but to the written law,' that is, the Roman law. |
The inference then is, either that the Coutume de Bordeaux was the same on this point as the Roman law, or, that being silent, the Roman law was referred to.[93]
|[35*]| *Surely never was the urgency of squeezing argument out of everything so apparent, as in the emphasis with which the adverse party presses and comments, [Liv. 32.] on the answers of the several tribunals, to which the Napoleon Code was referred for consideration and amendment. A dozen tribunals are named, with an &c. for more, who are acknowledged to have said nothing about alluvion: and this is produced as proof that it had belonged before to the riparian proprietor. But it proves more probably that these tribunals were contented with the change proposed, and had no amendment of it to offer. But, in truth, it proves nothing either the one way or the other. The tribunal of Paris is then quoted, with an acknowledgment that they do not make a single observation on the subject. Then long extracts from that of Rouen, proposing that islands, rising in the rivers, shall be given to the riparian proprietors: and recommendations to the same effect from those of Toulouse and Lyons. Now it is remarkable that neither the word 'Alluvion,' nor the idea of the thing, is either expressed or referred to in any one of these quotations. And yet Mr. Livingston says, 'we find all these learned men either passing over these articles, as merely declaratory of the old law, or else expressly acknowledging them as such;' and again after the citation from Rouen, 'here we have the positive declaration of a learned tribunal, &c. deciding that the edicts did not extend to alluvions, but only to islands in navigable rivers.' And yet I repeat that neither the word nor the idea is to be found in any one of the quotations; for it is of these only I can speak, not possessing the book, but I presume Mr. Livingston's quotations are of the strongest passages. It is impossible to characterize such reasoning respectfully. I shall therefore leave it to the reflection of others. And I think myself authorized to conclude on the whole, that had the Batture been really an Alluvion, its ownership was to be decided by the laws of France; and that Louis XIV. with the advice of his council, certainly knew when they declared what the law of their country 'incontestably' was; and if we, with our scanty reading on the subject, at this day and distance, know better than they did, yet the enacting clause of the edict made it the law thenceforward; that it came over as law for Louisiana, made the batture, if an alluvion, the property of the sovereign; and certainly the whole tenor of the conduct of the Spanish government proved that they did not mean to relinquish it.
|[36*]| Before we quit this branch of the discussion, it is not amiss to *observe that the eloquent declamations of these learned men of Rouen, so much eulogized by Mr. Livingston, were not at all heeded. The Napoleon code, §. 560. retained the islands rising in the beds of navigable or floatable rivers, and (changing the French law only as to alluvions) declares, §. 538. in opposition to the Roman law, that
| 'Les fleuves et rivières navigable ou flottables, les rivages, lais et relais de la mer, les ports, les havres, les rades, &c. sont considérés comme le dépendances du domaine public.' | 'Rivers and navigable or floatable streams, shores, increments and decrements of the sea, ports, harbors, roads, &c. are considered as dependances of the public domain.' |
So that notwithstanding the 'persuasive and conclusive arguments of these first lawyers of the country,' Liv. 31. the French law as it stands at this day, and stood before, would have given the batture to the public, being unquestionably the [94]rivage or shore of the river.[95]