declamatory style, and begs the questions which it calls upon counsel to decide.*

This case, with the opinion of Mr. Derbigny subjoined to it, was immediately sent on to the seat of government, accompanied by representations calculated to impress the executive with an idea that the city of New Orleans would be utterly ruined, unless a speedy and effectual remedy were applied to their imaginary grievance. It was stated, on what foundation I shall show in the sequel, that the Batture was the only spot from whence sand and earth could conveniently be procured for raising their streets, that the whole city was in danger of being laid under water for want of those indispensable materials, and that the works which Mr. Livingston was carrying on, unless arrested in time, would bring on the inhabitants the dreadful scourge of pestilence.+ These powerful considerations contributed not a little to produce the executive measure which has given rise to the present discussion.

In this state of things, Mr. Livingston laid his case before me, and requested on it my professional opinion. I read with the greatest attention that which had been given by Mr. Derbigny in favour of the claim of the United States, and was soon satisfied that it was not tenable. Although it was divided into five distinct propositions, yet it rested only upon three material points.

I. That the United States were entitled to the Batture in right of the kings of France, who by virtue of certain edicts of Louis XIV, were the lawful owners of all alluvion lands within their dominions.

II. That the Jesuits' estate to which the Batture belongs, was not at the time of its sale, bounded by the Mississippi, but by a

• The gentlemen who had undertaken to defend the claim of the United States, have repeatedly, and in the most unequivocal terms, charged me with partiality in the opinion which I gave in favour of Mr. Livingston; I may therefore with propriety retort the charge upon them, particularly with the certainty that the facts will bear me out.

+ See the case stated for Mr. Derbigny's opinion, p. 2, 3. [See the case stated, and the opinions of Messieurs Derbigny, Livingston, Duponceau, &c. in the second volume of our first series.Ed.]

publick road, the soil of which belonged to the sovereign, and which had been excepted out of the grant.

III. That Bertrand Gravier had abandoned or given up his right to the Batture.

To the first of these propositions I answered,

I. That it was true that there were edicts of Louis XIV, under which the French exchequer had claimed a right to the alluvions of navigable rivers; but that after a long controversy in which the lawyers of France had taken different sides, the point had been, before the late revolution, solemnly settled by the Parliaments of Paris and Bordeaux, against the king and in favour of the subject.

2. That the claim of the French sovereigns to alluvions being derived from feudal prerogative, had never been extended to the colonies, where the feudal law was not established, and that in Louisiana particularly, the alluvions of the Mississippi had constantly been enjoyed by the owners of the adjacent grounds. To the second proposition I answered,

1. That the road in question did not belong to the sovereign, but was a mere servitude or charge upon the estate.

2. That it had not been reserved out of the grant, either expressly or by any reasonable implication.

3. That on the contrary the estate was described in the instruments of title, as fronting the river, (face au fleuve) and not as fronting the road, (face au grand chemin.)

To the third proposition I answered,

That Bertrand Gravier had indeed consented that the publick should have the free use of his Batture while it remained unenclosed, but that he had never given up the property thereof. That the Spanish government, on various occasions, had shown that they considered him as the owner of the Batture, and that its officers had even permitted him to alienate sundry parcels thereof.

Upon the whole, I concluded that the claim of the United States to the Batture could not be supported either in law or in fact.

This opinion was published at New Orleans, by Mr. Livingston, together with his own able "Examination of the title of the United States to the Batture," in which Mr. Derbigny's positions

are amply refuted. This last work brought conviction home to every candid mind, and the corporation themselves were compelled to abandon the grounds which Mr. Derbigny had assumed. They caused a work to be published under their express sanction, and at the publick expense, in which the propositions laid down in Mr. Derbigny's opinion were expressly given up, and the claim of the United States was attempted to be supported upon entirely new principles; the last effort of exhausted ingenuity.

I allude to the publication of Mr. Thierry, entitled " Examination of the claim of the United States, and of the pretensions of Edward Livingston, Esq. to the Batture in front of the suburb St. Mary," 51 pages 4to. published at New Orleans by the author, both in the English and French languages, at the expense of the corporation, and which by their order has been distributed to the officers of government and the members of both houses of Congress. In that work, avowed by our adversaries, and relied on by them, the principles on which their former counsel, Messrs. Moreau and Derbigny had founded the nominal claim of the United States, are given up in the most explicit manner.

Let us hear Mr. Thierry on the subject of Mr. Derbigny's first proposition, that the United States are entitled to the Batture, in right of the kings of France under the edicts of Louis XIV.

"I will not deny," says that gentleman, page 30, in English, "that the ancestors of John Gravier were the riparious landholders, to whom the right of alluvion certainly belonged, not only by virtue of the coutume de Paris, which for two centuries back acknowledged the principle of the Roman law, and against which, for that reason, the ordinances of the kings of France could with no manner of success be pleaded, inasmuch as a royal ordinance specially made that coutume the civil law of this colony; but also by virtue of the Spanish laws, which from 1769 have been constantly in force in Louisiana."

Mr. Thierry goes farther; he proves in the most incontestible manner, that the French laws have nothing to do with the present controversy, as the Batture which now exists, was entirely formed since the establishment of the Spanish government in

* See Appendix, No. I.

Louisiana. "When," says he, "the Jesuits' property, of which that of Mr. Gravier is but a portion, was surveyed by Devezin, in the year 1763, it contained but fifty arpents in depth, whereas it results from the survey lately made by Mr. Mansuy, that the Gravier plantation, beginning from the angle of the suburb on the city side, is found to have a depth of fifty-six arpents. Of this difference, the sole cause to be assigned is, the successive re-union of different portions of alluvion, of which B. Gravier, and those from whom he holds, may have availed themselves."*

Now it is left doubtful by the testimony taken in the Gravier cause, whether there was or not any Batture existing in front of the Jesuits' estate in the year 1763, when the property was sold. Mr. Derbigny at most contends that there existed at that time a commencement of Batture.+ The Spanish laws were established in Louisiana, only six years afterwards, in the year 1769. Surely it will not be contended that six acres in depth of alluvion ground could have been formed, consolidated and successively annexed to the principal estate in that short space of time. The last parcel at least must have been annexed after the year 1769, when the Spanish law had superseded the French ordinances. It follows, therefore, that the Batture which is the object of the present controversy, was formed under the government of the law of Spain, and of course that the edicts of the kings of France, cannot in manner operate upon

it.

It is thus that Mr. Thierry not only has controverted the first and most important proposition of Mr. Derbigny, on legal prineiples, but has furnished us with a fact and an inference which altogether destroys its application to the present case.

As to the other propositions of Mr. Derbigny, Mr. Thierry dismisses them in a very few words. "The first," says he, page 7, in English," of Mr. Derbigny's five propositions, embraces the fundamental point of the whole question; and strictly considered, the other propositions are no more than corollaries of the first."

And to crown the whole, Mr, Thierry has the goodness to compliment me, page 8, in English," for having discovered, as he says, with great sagacity, the weak side of Mr. Derbigny's

* See Mr. Thierry, page 37, in English.

See his reply to my opinion page 5, 25.

performance." I do not accept this compliment; Mr. Derbigny had, it is true, a weak cause to support, but the manner in which he has managed it, will always do him the greatest credit with all impartial judges of professional talent.

At any rate. here is a formal disavowal by the corpora tion of New Orleans, (who by the sanction which they have given to it, must be considered as the authors of Mr. Thierry's work) of the opinion of Mr. Derbigny, on which they until then had relied. As it was on the faith of that opinion, now abandoned, that Mr. Livingston was deprived of the possession of his property, justice seems to require that he should immediately be re-instated into it; for it must be presumed that the corporation will not want advocates, who will raise up a new legal edifice as fast as the former ones shall be overthrown, and by that ingenious device this controversy may be protracted until the delay of justice shall amount to a complete and peremptory denial.

Mr. Derbigny, as may well be supposed, was highly displeased with the disrespectful manner, to say the least of it, with which his opinion was treated by the very clients whom he had so ably and so faithfully served. He resented it by a publication in the Louisiana Moniteur,* in which he complained of the abandonment of those principles which he conceived would have been of the greatest advantage to the common cause, and gave a pretty correct idea of those which Mr. Thierry had substituted in their place, by saying that he had brought the cause to that point, that it now depended on the more or less correct understanding of a nice definition. Mr. Thierry replied in the Louisiana Courier, by charging Mr. Derbigny with having mutilated the only quotation which he had made out of his work, and with not having read it with sufficient attention + But I hope I shall be able to show that Mr. Derbigny had well read and understood him, and that both he and Mr. Thierry have been more successful in combating each other's doctrines than those of their adversaries.

Mr. Derbigny, however, generously stifling his private resentment, has thought it his duty once more to step forward in de