the Ordinances of France have regulated the use of navigation, and of fishing, in the sea and in rivers.' Dom. P. L. 1. 8. 2. 1. note. Observe that the work of Domat was published 61* in 1689, and he died in 1696. *Dict. hist. par une société. verbo Domat. We know then from him the state of the laws of France, at a period a little anterior only to the establishment of the colony of Louisiana, and the transfer of the laws of France to that colony by its charter of 1712. To the provisions which have been thus made by the Roman and French laws and transferred to Louisiana, no particular additions, by either the French or Spanish government, have been produced on the present occasion. We know the fact, and thence infer the law, that from a very early period, the governors of that province were attentive especially to whatever respected the harbor of New-Orleans, which included the grounds now in question. We see them forbidding inclosures, or buildings on them, pulling down those built, publishing bans against future erections, forbidding earth for buildings and streets to be taken from the shore adjacent to the city, and assigning the beach Ste. Marie for that purpose, protecting all individuals in the equal use of it as a Quai, in which cares and superintendence the Cabildo or City Council, participated; and on the change of government we see that council pass an Ordinance declaratory of the limits of the port of N. Orleans, and come forward in defence of the public rights, in the first moment of J. Gravier's intrusion, by pulling down his inclosure, and when that intrusion under the enterprise of Mr. Livingston, assumed a more serious aspect. they, as municipal guardians of the interests of the city, made an immediate appeal to the Judiciary, the Executive, and Legislative authorities. In addition, too, to the French laws for the protection of the bed and bank of the Levees and Police river, the territorial legislature, on the 15th of Feb. 1808, passed an Act, reciting that inasmuch as the common safety of the inhabitants of the shores of the river Missisipi depends not only on the good condition of the levées or embankments, which contain the waters of the said river; but also on 6 of Missisipi. the strict observance of the laws concerning the police of rivers and their banks, which are in force in this territory, and by which it is forbidden to make on the shores of the rivers, any work tending to alter the course of the waters, or increase their rapidity, or to make their navigation less convenient, or the anchorage less sure, [almost in the words of the Roman law, 'ne quid in flumine publico'] they therefore enact that no levée shall be made in front of those which exist at present, but on an inquisition by 12 inhabitants, proprietors of plantations situate on the banks of the river, convoked for that purpose, by the Parish judge; that no such levée, which at the present time of passing this act shall happen to be commenced in front of others already existing, shall be continued or finished without a like authorization:* that those who act in contravention shall be fined 100 dols. for every offence in contravention, and pay the expenses of removing the nuisance, and costs of suit; and prohibiting the receiving compensation for the use of the shores under a penalty of 500 dols. A law of wonderful, not to say imprudent and dangerous tenderness to the riparian proprietors, who are thus made the sole judges in cases where their own personal interests may be in direct opposition to the interests, and even the safety of the city, to which it gives no participation or control over the power which may devote it to destruction. *62 This act is partly declaratory of the existing law, and partly additional. Application to the Prætor was under the Roman law (Dig. 43. 13. 6.) for permission to fortify a bank for the protection of a farm. He might refuse permission if injurious; but if he thought it would not be injurious, the party was to give security to make good all damages which should accrue within ten years; and this security was for the protection, not only of immediate neighbors, but of those also on the opposite bank trans flumen possidentibus.' The Governor and Cabildo seem to have held this Prætorian power in Louisiana, as well as that of demolishing what was unlawfully erected. This act of the Legislature, without taking the power from the Governor and City Council, gave a concurrent power to the parish judge, and a jury of 12 riparians: and without dispensing with the security required by the existing law, adds penalties against con traveners. And surely it is the territorial legislature, which not only has the power, but is under the urgent duty, of providing regulations for the government of this river and its inhabitants, regulations adapted to their present political regulations, as well as to the peculiar character and circumstances of the river, and the adjacent country. Their power is amply given in the act of Congress of 1804. c. 38. §. 11. 'The laws in force in the said territory at the commencement of this act, and not inconsistent with the provisions thereof, shall continue in force, until altered, modified, or repealed by the legislature. §. 4. The Governor, by and with advice and consent of the said legislative council, or of a majority of them, shall have power to alter, modify, and repeal the laws which may be in force at the commencement of this act. Their legislative powers shall extend to all the rightful subjects of legislation;' with special exceptions, none of which take away the authority to legislate for the police of the river. And if ever there was a rightful subject of legislation, it is that of restraining greedy individuals from destroying the country by inundation. Suspension of Liv.'s works, by whom? 63* And here it must be noted that Mr. Livingston's works were arrested by the Marshal and posse comitatus, by an order from the Secretary of State on the *25th of January 1808, and on the 15th of the ensuing month, the legislature took the business into the hands of their own government, by passing this act. From this moment it was in Mr. Livingston's power to resume his works, by obtaining permission from the legal authority. The suspension of his works therefore by the general government was only during these 21 days. That Mr. Livingston's works were clearly within the interdict of the Roman, the French, and the Spanish laws, which forbid the extending a mole into the water, constructing in it mills, Their nature. floodgates, canals, towers, houses, cabins, fisheries, stakes or other things which may obstruct or embarrass the use, will result from a brief recapitulation of their character and effects, drawn from the statement before given. For it is not to establish a mill, which, though an intrusion would be but a partial one it is not to erect a temporary cabin or fisherman's hut, which would be a minor obstacle: but it is to take from the city and the nation what is their port in high water, and at low tide their Quai; to leave them not a spot where the upper craft can land or lie in safety; to turn the current of the river on the lower suburbs and plantations; to embank the whole of this extensive beach; to take off a fourth from the breadth of the river, and add equivalently to the rise of its waters; to demolish thus the whole levée, and sweep away the town and country in undistinguished ruin. And this not as a matter of theory alone, but of experience: the fact being known that since the embankment of the river on both sides through a space of three or four hundred miles the floods are two or three feet higher than before that embankment. In fine, should they have time to save themselves from inundation by doubling the height and breadth of their levée, it is that they may fall victims to the pestilential diseases which, under their fervid sun, will be generated by the putrefying mass with which he is to raise up the foundation between the old and new embankments. But has he entitled himself to attain these humane achievements by fulfilling the preliminary requisites of the law? Has he obtained the Prætorian, or Pro-Prætorian license, that of the governor and city council, to erect this embankment? Has he given security for all the damages which shall be occasioned by his works for ten years? Has he even carried his case before a jury of 12 brother riparians? Or does he fear to trust it even to those having similar interests with himself? lest the virtuous feelings of compunction for the fate of their fellow citizens should scout his proposition with honest indignation? And yet, until this permission, every spadeful of earth he moved was an outrage on the law, and on the public peace and safety, which called for immediate suppress ion.* What was to be done with such an aggressor? Shall we answer in the words of the Imperial edict, on a similar occasion, that of breaking the banks of the Nile? Cod. 9. 38. Flam- 64* mis eo loco consumatur, in quo vetustatis reverentiam, et propemodum ipsius imperii appetierit securitatem; consciis et consortibus ejus deportatione constringendis; sic ut nunquam supplicandi, eis, vel recipiendi civitatem vel dignitatem, vel substantiam, licentia tribuatur.' 'Let him be consumed by the flames. in that spot in which he violated the reverence of antiquity, and the safety of the empire, let his accessories and accomplices be cut off by deportation from the possibility of supplicating forgiveness, or of being restored to country, dignity and possessions. Our horror is not the less because our laws are more lenient. Remedies. Such, then, were the facts, and such the state of the law, on which we were called, and repeatedly and urgently called to decide: not indeed in all the fulness in which they have since appeared, but sufficiently manifested to show that an atrocious enterprise was in a course of execution, which if not promptly arrested, would end in a desolation for which we could never answer. The question before us was, What is to be done? What remedy can we apply, authorised by the laws, and prompt enough to arrest the mischief? Abatement of 1. Were the case within the jurisdiction of our own laws, its character and remedy would be obvious enough. A navigable river is a high way, along which all are free to pass. And as the obstructing a highway on the land, by ditches or hedges, or logs across it, or erecting a gate across it, is a common nuisance, so to weaken injuriously the current of a river, by drawing off a part of its water, to obstruct it by moles, dykes, weirs, piles, or otherwise, is a common nuisance; and all authorities agree, that every one is allowed to remove or destroy a common nuisance. Hawkins, P. C. 1. 75. 12. pleading the order from 6 The Marshal and posse, instead of the Secretary of State, have a right to say we did this as citizens, and the law is our authority:' and it would really be sin |