THE BATTURE

AT NEW ORLEANS.

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

PREFACE.

EDWARD LIVINGSTON, of the territory of Orleans, having taken possession of the beach of the river Mississippi 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.

The questions arising, being many and independent of each other, admitted not a methodical and luminous arrangement. Proceeding, therefore, in a course of narrative, I have met and discussed the points of law in the order in which events presented them; thus securing, as we go along, the ground we pass over, and leaving nothing adversary or doubtful behind. Hence the mixture of fact and law which will be observed through the whole.

Vouchers for the facts are regularly referred to. These are principally, 1. Affidavits taken and published on the part of the plaintiff, and of the city of New Orleans, very deeply interested in this question. 2. Printed statements, by the counsel on each side, uncontradicted by the other, of facts under their joint observation and knowledge. 3. Records. 4. Notarial acts, and 5. Letters and reports of public functionaries filed in the office of the Department of State.

FEB. 25, 1812.