Chapter XXXVI: Part III: The Batture at New-Orleans (5)

[89] The following instances will give some idea of the steps
by which the Roman gained on the Feudal laws. A law of
Burgundy provided that 'Si quis post hoc barbarus vel
testari voluerit, vel donare, aut Romanam consuetudinem,
aut barbaricam, esse servandam, sciat.' 'If any barbarian
subject hereafter shall desire to dispose by legacy or
donation, let him know that either the Roman or barbarian
law is to be observed.' And one of Lotharius II. of Germany,
going still further, gives to every one an election of the
system under which he chose to live. 'Volumus ut cunctus
populus Romanus interrogatur quali lege vult vivere: ut
tali lege, quali professi sunt vivere vivant: illisque
denuntiatur, ut hoc unusquisque, tam judices, quam duces,
vel reliquus populus sciat, quod si offensionem contra
eandem legem fecerint, eidem legi, quâ profitentur vivere,
subjaceant.' 'We will that all the Roman people shall be
asked by what law they wish to live: that they may live
under such law as they profess to live by: and that it be
published, that every one, judges, as well as generals,
or the rest of the people, may know that if they commit
offence against the said law, they shall be subject to the
same law by which they profess to live.' Encyc. Method.
Jurisprudence, Coutume. 399. Presenting the uncommon
spectacle of a jurisdiction attached to persons, instead
of places. Thus favored, the Roman became an acknowledged
supplement to the feudal or customary law: but still, not
under any act of the legislature, but as 'raison écrite,'
written reason: and the cases to which it is applicable,
becoming much the most numerous, it constitutes in fact
the mass of their law.

[90] Since this publication, Gen. Armstrong, our late Minister
at Paris, has sent me a printed copy of Crozat's Charter in
French, which he says he obtained directly, and in person
from the depôt of laws in Paris, but which he had no means
of comparing with the original. This printed copy, with
Gen. Armstrong's letter, I have deposited in the office
of the Secretary of State at Washington. _MS. Note._

[91] The only copy of this Charter I have ever met with is in
Joutel's Journal of La Salle's last voyage. An application
was made by the government of the United States, through
their minister at Paris, to the government of France, for
permission to have the original of this charter sought
for in their Archives, and an authentic copy obtained. The
application was unsuccessful. We must resort, therefore,
to this publication, made in 1714, two years after the
date of the patent, under the rule of law which requires
only the best evidence the nature of the case will admit.
For although we may not appeal to books of history for
documents of a nature merely private, yet we may for those
of a public character, e. g. treaties, &c., and especially
when those documents are not under our control, as when
they are in foreign countries, or even in our own country,
when they are not patent in their nature, nor demandable
of common right.

[92] If it be objected that the incorporation of the Roman law
with the customs of Paris, and their joint transfer to
Louisiana does not appear, I answer, 1. At the date of
Crozat's charter, the Roman law had for many centuries
been amalgamated with the customary law of Paris, made
one body with it, and its principal part. By the customs
of Paris were doubtless meant the laws of Paris, of which
the Roman then made an important part, and might well be
understood to be transferred with them. It was hardly
intended that the new colonists were to unravel this
web, and to take out for their own use only the fibres of
Parisian customs, the least applicable part of the system
to their novel situation. 2. If the term, coutumes de Paris
in the charter be rigorously restrained to its literal
import, yet the judges of Louisiana would have the same
authority for appealing to the Roman as a supplementary
code, which the judges of Paris and of all France had had;
and even greater, as being sanctioned by so general an
example. 3. The practice of considering the Roman law as
a part of the law of the land in Louisiana, is evidence
of a general opinion of those who composed that state,
that it was transferred, and of an opinion much better
informed, and more authoritative than ours can be. Or it
may be considered as an adoption, by universal, though
tacit consent, of those who had a right to adopt, either
formally, or informally, as they pleased, as the laws of
England were originally adopted in most of these states,
and still stand on no other ground.

[93] M. Moreau de Lislet assures us that he was in Paris at
the time of the decision of this appeal from Bordeaux,
that the decision of Bordeaux was reversed by the king
and council, then referred to the Parliament of Paris, and
the reversal confirmed by that body. See his Memoire, 50.

[94] 'Rivage, is most commonly used for the shore of the _sea_,
but correctly also for the shore of a river.

'Chaque fleuve, chaque ruisseau
A partout franchi son rivage.' Regnier.
Dict. de Richelet. Rivage.

'Le Tybre écumeux et bruyant
De sa course fougueuse étonne son rivage.'
St. Evremont.

It is particularly so used in Law. 'Sous le nom de _rivage_ est
compris le chemin qui doit être entretenu le long des côtes
et rivières navigables, pour le hallage des bateaux.' And
again, 'droit de rivage, qui est dû sur les marchandises
qui abordent au rivage de la ville de Paris.' Dict. de
Trévoux, Rivage. 'Sur le rivage de la Seine.' Dict. de
l'Académie.

[95] Little versed in French jurisprudence, possessing few of
the authors teaching it, and, of some of those quoted by
the adverse party, so much only as they have thought to
their advantage to quote, I had apprehended it possible
(pa. 29.) that there might be among those authors, that
conflict of opinions on the law of alluvions, which these
quotations indicate. But I have lately had an opportunity
of reading in MS. a Memoire on the subject of the Batture,
written by M. Moreau de Lislet of New Orleans, a French
lawyer of regular education in the profession, who has
treated the subject, generally with great learning and
abilities, and especially that branch of it which relates
to the laws of France in cases of Alluvion. He has proved
that the doctrines of these great authorities are not
contradictory, and that a proper attention to the different
questions under contemplation in the passages quoted, will
show that all are right, and all in perfect harmony. To
elucidate this he explains certain principles of French
law, which mingling themselves with this subject, have
occasioned the misunderstanding with which we have been
perplexed. 1. The laws of France leave to the king a
right to _navigable_ rivers only, and their increments.
On rivers _not navigable_, the rights of the riparian
proprietor prevail as under the Roman law. See Pothier
ante. pa. 26. Very early however these rights were drawn
into question by the Feudal Superiors, who, looking to
the example of the king in the case of navigable rivers
in his kingdom, claimed similar rights on those _not
navigable_ within their Seignories. But repeated decisions
have condemned their claims, and confirmed the rights
of the riparian tenant. 2. By the laws of France, as by
those of England, lands received by inheritance, descend,
on the death of the tenant, to the heirs of that branch,
paternal or maternal, from which they came to him. But
those he acquires by purchase (acquets) pass to that line
of heirs of which himself is the root. When therefore,
to a maternal inheritance an acquisition happened to
be made by means of Alluvion, a question would arise,
between heirs of different lines, to which of them the
Alluvion would descend; whether to the direct heirs of the
decedent, as being an acquisition first vesting in him, or
to the maternal heir as an accessory to his inheritance.
The decisions were that it united with the inheritance,
became a part of that, and passed with it. 'Incrementum
alluvionis nobis adquiritur, jure quo ager augmentatus
primum ad nos pertinebat; nec istud merementum censetur
novus ager sed pars primi.' 'The increment of Alluvion is
acquired to us in the right in which the field augmented
first belonged to us.' Nor is the increment considered as
a new field, but a part of the first, Renusson. It follows
that questions of Alluvion would often arise in cases
wherein the king's rights were not at all concerned. They
would arise between Lord and vassal, and between individual
heirs of different lines. These explanations premised, M.
Moreau takes a review of the passages quoted from Henrys,
Bourjon, Dumoulin, Ferriere, Pothier, Le Rasle, Renusson,
Dargentré, Denisart, and Guyot, and shews that in every
instance where the question concerned a _navigable_ river,
there was no division of opinions as to the validity of
the king's right; and that in every instance where the
riparian right is asserted, the question has been between
private individuals, or concerning rivers _not navigable_.
Recurring then to the edicts and Ordinances placing this
right of the king beyond cavil, he observes that a practice
had prevailed from early times among riparian proprietors
of usurping on the rights of the crown to the increments
adjacent to them, and a necessary reaction of the crown,
by reclamations and resumptions, to preserve its own. And
he gives a detail of the edicts on this subject, proving
that that of 1693, instead of being the singular act
of a particular prince, whom the adverse party delights
to revile, was one only of a long series preceding and
following it.

1554. An edict was issued requiring the proper officers to
be vigilant in watching over the king's rights in islands,
attérissements, et _alluvions_, comme ils l'ont accoutumés
faire d'ancienneté.' So that it was even then a law and
practice d'ancienneté, and expressly including _alluvions_.

1664. An Ordinance for making enquiries concerning islands,
accroissements, &c.

1668. Apr. An Edict quieting possessions of these objects
of 100 years continuance, on paying a vingtiéme annually.

1669. The Ordinance des eaux et forêts, 'qui accorde au
roi la propriété de toutes _les rivières navigables_, de
leur lit, _rives_, et de tous les terreins qui peuvents
s'y former.' Guyot, ante. pa. 27. 'granting to the king
the property in _all navigable rivers_, their bed, _banks_,
and the grounds forming there.'

1683. Apr. A declaration, reciting that as the rivers
belong to the king 'tout ce qui se trouve renfermé dans
leur lit, comme les isles, accroissemens et attérissements
lui appartient aussi,' confirms _title_ anterior to
1566 without condition, possessions anterior to 1566 on
conditions, and reunites all others to the crown.

1686. Apr.} Two edicts for Languedoc and Bretagne,
1689. Aug.} confirming possessors in the said islands,
'ensemble des crémens qui s'y sont formés, et de ceux
qui pourraient s'y former à l'avenir, soit par _alluvion_,
ou par industrie.'

1693. An edict general for the kingdom 'le droit de
propriété que nous avons _sur tous les fleuves et rivières
navigables_ étant incontestable, &c. Ordonnons que les
détenteurs des isles, islots, attérissemens, aceroissemens,
alluvions, &c. _sur_ les _rivières navigables_, &c. as
more at large, pa. 28.

1710. Feb. An edict confirming possession of islands, &c.
of the sea on specified terms, copied almost verbally from
that of 1693, using the word _alluvions_ as that does,
and referring to the provisions of that edict.

1722. Sep. An Arret resuming isles, attérissemens, &c.
formed since the edict of 1693. And those of anterior
formation where the possessor has not made the payments
provided by the edict of 1693.

But this whole branch of the argument of M. Moreau must
be read with attention. Its matter cannot be abridged,
nor otherwise expressed, but for the worse.

Having thus luminously reconciled the authorities which
had been so illy understood, and victoriously established
the public right to alluvions on _navigable rivers_, M.
Moreau, with too much facility, gives back to his adversary
one half the ground he has conquered, by a gratuitous
admission, which those interested in the event of the
cause are not ready to confirm. Led away, as it seems,
by an expression in the edict of 1683, 'tout ce qui se
trouve renfermé _dans leur lit_ nous appartient,' and
which is to be found in no other, and yielding to a single
decision of the Parliament of Paris of 1765, found in a
law dictionary, which adjudged that the Ordinances giving
to the king the isles which are formed _'dans le lit_,'
des fleuves et rivières navigables, ne lui donnent pas les
attérissements et _alluvions_ qui peuvent se former _hors_
le lit de ces mêmes fleuves,' &c. He admits that though
alluvions _within_ the bed of a river belong to the king,
those _without_ the bed do not belong to him. M. Moreau
is too reasonable to consider as a compliment to himself
the adoption of an opinion on his authority alone, by
any one not convinced by his reasonings. Certainly I do
not feel myself competent to enter the lists with him, on
any question of difficulty in the French law. Yet after
maturely considering the authorities appealed to in this
case, and which he has rendered so strong by reconciling
and forming them into one mass, I cannot yield, as he
does, so imposing a mass to a single decision of the single
Parliament of Paris. I still must consider all alluvions
on _navigable rivers_ as belonging to the nation, and will
briefly assign my reasons.

1. It is of the essence of _Alluvion_ that it be, not in the
bed of the river, but _out_ of it; that is, adjacent to the
bank. So say expressly the Roman and French definitions.
'Alluvio est incrementum _agro_ tuo flumine adjectum.'
l'Alluvion est un accroissement de terrein qui se fait
_sur les bords_ des fleuves, par les terres que l'eau y
apporte, et qui se consolident pour ne faire _qu'un tout
avec la terre voisine_.' Ante. pa. 26. Increments _within_
the bed of a river, though sometimes carelessly spoken of
under the term _alluvion_, are never so in correct language,
never in the well weighed diction of ordinances and
statutes. They are termed accroissements, attérissements,
assablissements, isles, islots, javeaux, in French, and
in our language shoals, shallows, flats, bars, islands.
_Without_ the bed of the river, they add to the beach, or
to the adjacent field, according to their elevation, and
in this last case only, constitute _Alluvion, within_ the
bed of the river they lose that name.

2. 'Les alluvions qui se forment _dans_ le lit des fleuves'
is not the language of the edicts cited by Moreau himself,
not even of that single one on which this opinion is
founded. That has indeed the expression 'dans les lits,' but
applied, not to alluvions, but to isles, accroissements,
attérissements, to which it is applicable with truth
and correctness. These are the kinds of increments it
enumerates, and describes as being 'dans le lit.' If they
are enumerated _exempli gratiâ_ only as the word _comme_ seems
to imply, and alluvions, though not named, were within the
purview, as they are within the reason of the law, then,
if the thing itself is to be understood, as if expressed
in the text, its true description also is to be understood
as if expressed, that is to say, its adjacence to the
bank. The edicts of 1686 and 1689 mention 'les isles des
rivières navigables, ensemble les crémens qui _s'y_ sont
formés.' That of 1693 says, in like manner, 'le droit,
&c., _sur_ tout les fleuves, et les isles et crémens qui
_s'y_ sont formes,' and again, 'isles et alluvions _sur_
les rivières navigables,' not '_dans leurs lits_.' That of
1710 says 'possession des isles et _alluvion sur_ les dites
rivières.' Thus we see that wherever the edicts mention
_alluvions_, they describe them _sur_ le fleuve, not _dans
le lit_ du fleuve. When they speak of those increments
which are _dans le lit_ des fleuves, they name them as
accroissemens, attérissemens, &c., but not as _alluvions_.

3. This distinction is founded on a single decision of
a single parliament, and on the authority of a king's
advocate, Bacquet, and the dictum of Salvaing there cited,
all perhaps influenced by the same and single expression
in the edict of 1683. It is cited too from a Dictionary by
Prost de Royer, where it is doubtless stated in abridgment
only, and possibly with the omission of circumstances,
arguments, and expressions which, were they before us,
would change the aspect of the case, as M. Moreau himself
has shown to be so possible in his review of the mutilated
authorities produced by the adversary. And are we, for
this, to give up the doctrines of Pothier, Denisart,
Ferriere, and the host of other great authorities, and all
the definitions of the Roman and French laws, all of which
when speaking of _alluvions_, place them exclusively on
the borders, and not in the beds of rivers? I cannot do it.

4. This distinction is new in this cause, having never
been claimed by the plaintiff or his counsel, or suggested
by any other who has treated the question. This naturally
begets a suspicion that it is peculiar; though doubtless
the adversary will adopt it with avidity. And is he
entitled to this gratuitous aid? Is it the equity of his
cause, or even its honesty, or its utility, which gives
him this claim on our tenderness? I cannot consent to a
concession which gives the Batture from the public in the
contingency of its being considered as a real alluvion,
consolidated with, and making part of, the adjacent field.
On the contrary I insist on the public right in this case
also, under the laws of France, as hitherto understood,
and as declared by her highest authorities.

5. I adhere to this ground the more firmly, because I
observe, from another part of his Memoire, pa. 99. that
M. Moreau himself seems not very decided in this new
opinion. After stating the mischief of Mr. Livingston's
works, he says, 'it is to prevent a like abuse that the
Roman and Spanish laws of haute police, which I have
cited, are opposed to every species of works undertaken
on the banks of rivers and navigable streams, the effect
of which might be to extend the limits of riparian fields,
compromising the public safety, and injuring the facility
of navigation. It was with this view, and not to create
fiscal resources for himself that Louis XIV. renewed the
Ordinances which ascribed to the sovereign the property in
rivers and navigable streams, and of whatever is contained
in their bed. For if it be advantageous to navigation that
the king should be proprietor of the islands which form
themselves in navigable rivers, the same interest requires
still more that he should be proprietor of the _alluvions_
and increments formed _along the shore itself_, since any
ownership of these objects, except that of the sovereign,
might oppose obstacles to the free landing on the shore,
which every one ought to have, and to the use of it which
the law gives to the public.'

Considering this admission then, as doubted by M. Moreau
himself on a second and sounder view of it, I conclude
that the law is accurately laid down by Pothier [ante. pa.
26.] 'By our French law, alluvions formed on the borders
of _navigable_ streams and rivers belong to the king. The
proprietors of riparian heritages can have no claim to
them, unless they have documents of the grant made them by
the king, of the right of alluvion along their heritages.
With respect to alluvions formed along the borders of a
river _not navigable_, the property of which belongs to the
proprietors of the neighboring heritage, the dispositions
of the Roman law are to be followed.'

[96] Since this was written, I have seen the case of Smart v.
the magistrates, town council and community of Dundee,
reported in 8 Brown's Reports of Appeals in parl. 119. This
was an appeal from the court of Session in Scotland, to
the H. of Lords. The crown of Scotland had in very ancient
times, granted to the Corporation of Dundee, on the river
Tay, the borough, with all the lands and pertinents, the
privileges, profits, customs, ports, and liberties of
the river on both sides, as freely in all respects as is
possessed by the borough of Edinburgh over that of Leith,
and in a word, as it seems, every right, power and trust
which the crown could grant.--Smart, the proprietor of a
lot bounded on one side per fluxum maris, or the sea flood,
admitting that the sovereign, as trustee for the public,
has a right to prevent all such appropriation of the sea
shore, or the banks of navigable rivers as would impede
navigation, render it dangerous or hurt the interests of
commerce, either inland or foreign, and that all private
persons or corporations, having a grant of a port and
harbor, possess, to a certain extent, the same privileges
as derived from the sovereign within a defined space,
still he insisted on the right of the adjacent proprietor
to ground gained from the sea by its recess, or by his own
industry in embanking, or by any other opus manu factum,
_not prejudicial to navigation or the established rights
of others_. On the other hand the corporation claimed
by their grant, a right to the seashore adjacent to the
town, _in trust for the benefit of the community_, to
make harbors, basons, and works for securing them, market
places, wharves, wood yards, and other repositories for the
accommodation of the trade, and, for these different works,
to take in scites from the water by embankment, in short,
as standing in place of the crown, that they succeeded to
all the cares and powers of the crown, in the territory
and its waters, for the public good; and, for that object,
were now engaged in making an embankment adjacent to the
Appellant's lot, for the benefit of navigation and commerce.
They admit the general doctrine of the riparian right to
the soil which may be acquired from a sea or river, by its
receding naturally, or by industry: but that this does not
apply to the site of a _tenement within a burgh_, where
the corporation is entitled to all the soil not expressly
granted away: that the words, 'per fluxum maris' are but
words of description, which were accurate too at the date
of the grant, but have since become otherwise by a change
of character in the boundary, not in the area granted. They
are a limitation of the subject of the grant in the same way
as a road would be, which, if removed farther off, would
not carry the granted subject with it; or as the tenement
of another would be; and make it an _ager limitatus_, not an
_ager arcifinius_; the particular boundaries being named,
not to limit the coterminous property, but the property
granted. The Appeal was accordingly dismissed by the House
of Lords. No arguments of counsel, other than the written
pleadings, nor reasons of the Lords, are reported: but,
from this case, (crowded as it is with circumstances, many
of which are irrelevant to the merits of the question,
and of those relevant not the words but the condensed
substance is here given,) the book says, that the general
principle to be gathered is that 'where the sea flood is
stated as the boundary of premises granted on the shore of
_a sea-port being an incorporated borough_, this does not
give the grantee a right to follow the sea, or to the land
acquired from it, or left by it where it has receded, in
prejudice of the _corporation_ having, by their charter,
a right vested in them to the whole territory of the
burgh.' And consequently, in prejudice of the _king_, or
_public_, where no such grant has substituted others in
their place: and it authorizes a strong inference that
the English, like the Roman law, restrains the right of
alluvion to the _prædium rusticum__$1_, not admitting it on the
shores bordering the city.

[97] Etymologies often help us to the true meaning of words;
and where they agree in several languages, they shew the
common sense of mankind as to the meaning of the word. In
French _Batture_ is derived from _Battre_, to beat, being
the margin on which the surges beat. In English _Beach_, is
from the Anglo-Saxon verb Beo[~c]ian, Bea[~c]ian, beatian,
to beat: pronounced beachian, as christian, fustian,
question, are pronounced chrischian, fuschian, queschion,
&c.

In Spanish _Playa_, }
Italian _Piaggia_, } are from πλαγὰ, πληγεὶς.
French _Plage_, }
_Platin_ from πλήττειν, percuture. Perhaps from
_Plat_, F. flat.
Greek, αἰγειαλὸς, ἀκτὴ, from ἄγειν, agere.
θὶν, θινὸς, à θείνω, ferio, quia littus fluctibus
feritur. Clav. Homer. A. 34.
Ῥηγμὶν, à ῥήσσω, frango, quia in litore fluctus
frangitur. Ib. v. 437.

[98] Rigor, à rectitudine dieitur, et est cursus aquæ rectum
profluentis tenorem significans. Sic vigor stillicidii
rectus ejus fluxus est. Calvini Lexicon juridicum, _rigor_.
I have therefore translated it 'direction.'

[99] Justum incrementum [Nili] est eubitorum XVI; in XII.
eubitis famem sentit: in XIII etiamnum esurit: XIV eubita
hilaritatem afferunt: XV securitatem: XVI delicias: maximum
incrementum, ad hoc ævi, fuit eubitorum XVIII. eum stetêre
aquæ, apertis molibus admittuntur. Plin. hist. nat. 5. 9.

[100] This part of our subject merits fuller development.
That the periodical overflowings of some rivers do not
differ from the accidental overflowings of others, in
any circumstance which should affect the law of the high
water line, in the one more than in the other, will be
rendered more evident by taking a comparative view of them.
To begin with ordinary rivers. 1. These have along their
greater part, and some of them through their whole course,
natural banks adequate to the confinement of their waters,
in the high water season, except in cases of accidental
inundation. Here, then, the Roman authorities tell us the
inundation does not change the bank, nor the landmark on
it. 2. Along other parts, where the natural bank was not
high enough to contain the river in its season of steady
high water, the hand of man has raised an artificial bank
on the natural one, which effects this purpose, with the
exception, as before, of accidental inundations, where such
happen. This artificial bank performs all the functions
of the natural, and is placed under the same law. 3.
In other parts of them, the natural banks are still not
high enough to contain the high tides, nor have they yet
been made so by the hand of man. Here then the law cannot
operate, because the local peculiarities, as yet, exclude
the case from its provisions. The ground so covered by
inundation, has been, or may yet be, public property. But
the legislator, instead of holding it as the bed of the
river, grants it to individuals as far as to the natural
or incipient bank, that they, by completing the bank, may
reclaim the land, for their own and the public benefit,
and, this done, the law comes into action on it. Much of
this reclaimed, and unreclaimed land exists in all these
states.

I proceed next to rivers of particular character. Of which
among those analogous to the Missisipi, the Nile is best
known to us, and shall be described. That river entering
Upper Egypt at its Cataracts, flows through a valley of
20 or 30 miles wide, and of 450 miles in length, bounded
on both sides by a continued ridge of mountains. Through
most of this course, its natural banks are sufficient to
contain its waters in time of flood, till they rise to that
height, at which, by their law, they are to be drawn off.
In low parts, where the natural banks are not sufficient,
they have been raised by hand to the necessary height. In
addition also to the natural _bayous_, like those of the
Missisipi, they have opened numerous canals, leading off
at right angles from the river towards the mountains, and
sufficient to draw off the greatest part of the current
passing down the river. These, in ordinary times, are
closed by artificial banks raised to the level of the
natural ones. When the flood is at a height sufficient
for irrigating and fertilizing the fields, which by the
Nilometer is at 16 cubits above the bed of the river,
these artificial banks are cut, and the waters let in. The
plain declining gently from the banks of the river, (which,
like those of the Missisipi, are the highest ground,)
towards the mountains, the waters are there stopped, as
by a dam, and continue to rise, and diffuse themselves
till they reflow nearly to the bank of the river. If
the rise ceases there, the waters remain stagnant, and
deposit a fertilizing mud, over the whole surface. But if
uncommon rains above occasion a continuance of the rise
till all the waters meet over the summits of the banks,
then the motion of that in the river is communicated to
the stagnant water on the plains, a general current takes
place, and instead of a depositum left, the former soil
is swept away to the ocean, and famine ensues that year.
This, the traveller Bruce informs us, had happened three
times within the 30 years preceding his being in that
country. When the waters have withdrawn, and the river is
returned into its natural bed, the banks are repaired in
readiness to restrain the floods of the ensuing year. Such
is the case in Upper Egypt. When the river enters Lower
Egypt, it parts into two principal branches, the Pelusian
and Canopic, which diverge and reach the Mediterranean at
about 200 miles apart, including between them the triangle
called the Delta. Besides these, there are, within the
Delta, three natural _Bayous_, and two canals, dry at low
water, which make up the famed seven mouths of the Nile.
The mountains diverge so as do the main branches of the
river, the eastern going off to the isthmus of Suez, and
the Western to the sea near Alexandria. The waters lessened
by depletion, and spreading over a widening plain are
reduced, by the time they reach the base of the triangle
at the sea, to one or two cubits depth. Banks, therefore,
of 3 to 4 feet high, are sufficient to protect the country
until here also they open the _bayous_ and canals which
intersect the triangle. Here then the case recurs of a
river whose natural banks are partly competent to contain
its high waters in common floods, and are partly made so
by the hand of man; so as to furnish an ordinary high
water line. In extraordinary floods it overflows these
banks, and in ordinary ones is let through them. Yet these
inundations as the Digest declares, do not change the
banks. 'Nemo dixit Nilum ripas suas mutare,' &c. But when
the river retires within its natural bed, the banks are
again repaired: 'cum ad perpetuam sui mensuram redierit,
ripæ alvei ejus muniendæ sunt,' ib. [See 2. Herodot. 6-19.
Strabo 788. 1 Univ. Hist. 391-413. 1 Maillet Description
de l'Egypte 14-121. 1 De la Croix 338. Encyclop. Meth.
Geographie. Nil. 1 Savary 3-14. 2 Savary 185-275. 1 Volney
34-18. 4 Bruce 364-407.

[101] Squatters or Intruders on the public or Indian lands were
repeatedly removed by the state of Virginia, before its
cession to Congress, by the old Congress, (see Journ. 15
June 1785,) by the present government at various times,
and, as is believed, by other individual states on the
ground of natural right only. _MS. Note._

INDEX TO VOL. VIII.

ALBINOS--Description of, 318.

AMERICA--Whether animals and man degenerate in, 312.

ARMY--We should not maintain a standing army, 11.

BARBARY STATES--Our relations with, 8, 30, 31, 33, 35, 51, 65, 96,
97.
War with Tripoli, 7, 17.
Peace with, restored, 50.
Case of Hamet Caramalli ex-Bashaw of Tripoli, 54.
Difficulties with Tunis, 61.

BERLIN AND MILAN DECREES--Character of, 100.

BURR, AARON--His conspiracy, 71, 78, 87.

CARRYING TRADE--Condition of, 16.

CENSUS OF 1800, 8.

CHESAPEAKE, THE--Case of, 83, 102, 106, 120.

CLASSICS--Study of, should not be neglected, 389.

DEBT, PUBLIC--Reduction of, 19, 26, 39, 52, 67, 109.

DELUGE--Reasons against a general Deluge, 275.

ENGLAND--Negotiations with, 70.

EMBARGO--Preferable to war--127, 134, 135, 140, 141, 143, 144,
163, 164, 165, 169, 170.

FEVER, YELLOW--Its ravages, 46.

FINANCES--Prosperous condition of, 18, 26.

FOREIGN RELATIONS--40, 47, 62, 85, 102, 106.

FRANKLIN, BENJAMIN--Anecdotes of, 497.

GOVERNMENT--Principles of, as set forth in Jefferson's Inaugural
Address, 1.
Is progressive, 42.
Benefits of Republican, 148.

GUN-BOATS--The use of, recommended, 79.

HENRICK, THE--Case of, 22.

IMPRESSMENT--Our remonstrances against, 58.

IMPROVEMENT, INTERNAL--The Cumberland road, 78, 97.

INDIANS--Their improvement, 7, 51, 118, 185, 191, 210, 214, 219,
226, 229.
Our Indian relations--17, 21, 25, 31, 37, 42, 66, 85, 106, 172,
184, 186.
Acquisitions of Territory from, 25, 52, 93, 94, 108, 190, 192,
199, 206, 219, 237, 239.
Relations with, during revolutionary war, 172, 177.
Our policy towards, 186, 188, 192, 193, 196, 201, 203, 207, 211,
217, 241.
Prohibition of sale of spirituous liquors to, 187, 191, 233.
Commerce with, 196.
Warned against uniting with English in war of 1812, 212, 215,
217, 233, 236.
Virginia Indians, 336.
Burial places of, 341.
Language of, 345.
Origin of, 344.
Catalogue of tribes of, 346.
Logan's speech, 308.
The character of the races of, 304.
The capacity of, 305.
Efforts to preserve peace between, 221, 223, 228, 236.
Removal of, West, 231.
Government of, 435.
Tribes of sea board, 434, 437.

JEFFERSON, THOMAS--Declines being a candidate a third time, 121,
123, 126.

JUDICIARY--Re-organization of, 13.

KOSCIUSKO, GEN.--Biographical sketch of, 480.

LEWIS, MERIWETHER--Biographical sketch of, 480.

LEWIS AND CLARKE--Their expedition, 59, 66.

LOGAN'S SPEECH--Account of, 308.

LOOMING--The phenomenon of, 327.

LOUISIANA--The acquisition of, 23, 29.
Organization of government of, 36.
Reduction of, into possession, 32.
Benefits of acquisition, 41.

MAMMOTH, THE--An account of, 286.

MANUFACTURES--Rise of, during Embargo, 109.

MASSACHUSETTS--Extension of Republican principles in, 116.

MILITIA--Organization of, 49, 108.

NATURALIZATION--Revision of laws of, 14.

NAVY--Necessity of a small navy, 12, 20.

NEGROES--Races of, compared with the whites, 381, 384.

NEUTRALITY--Our true policy, 28.
Violations of our neutral territory, 47, 57.
Right of neutrals to trade with Belligerents, 57.
Berlin and Milan decrees inconsistent with, 100, 103.
Violations of our Neutrality, 103, 128, 129, 130, 132, 149, 151.

OFFICES--Principles on which distributed, 114.

ORLEANS, NEW--Title to the Batture at, 99.

PRESS, THE--The licentiousness of, how far to be tolerated, 43.

RANDOLPH, PEYTON--Biographical sketch of, 477.

RELIGION--Should be free, 113, 137, 138.

RETRENCHMENT--Necessity of, 9.

REVENUE, SURPLUS--How should be disposed of, 68.

SLAVERY--Roman and American slavery compared, 384.
Its effects on manners, 403.
Its evils, 404.

SLAVES--Emancipation of, 380.
Compared with whites, 381.

SLAVE TRADE--Suppression of, 67, 334.

SPAIN--Relations with, 34, 38, 85.
Difficulties with, 48, 60, 62.

TAXATION--Direct taxes should be abolished, 9, 40.

UNITED STATES--Treasonable combinations against, 90, 95.

VIRGINIA--Boundaries of, 249.

VIRGINIA--Rivers of, 250.
Mountains of, 263.
Their height, 265.
Scenery at Harper's Ferry, 264, 429.
Cascades and caverns of, 266.
Natural bridge, 269.
Mines, minerals, trees, and plants, 270.
Mineral Springs of, 279.
Mammoth of, 286.
Whether animals degenerate in America, 290, 297, 300, 431, 432.
Whether man degenerates in America, 303, 313.
The fish of, 319.
Climate of, 320.
Winds of, 323.
Changes in climate, 327.
Population of, 328.
Immigration not desirable, 330.
Militia and regular troops of, 334.
Marine of, 336.
Indians in, 336, 434.
Logan's Speech, 309, 457.
Indian burial places, 341, 440.
Counties, cities, townships, and villages of, 350.
Charters of, 352.
Oppressions of George III, 358.
First constitution of, 359.
Convention of 1776, not authorized to make a constitution, 363.
Proposition to appoint a dictator, 368.
Judicial system of, 372.
The laws of, 374.
Land laws, 378.
Negro slavery in, 380.
Bill proportioning crimes and punishments, 387.
School System of, 386.
Colleges, public establishments, roads &c., 391.
Public buildings of, 394.
Architecture of, 394,
Dwelling houses of, 395.
Property of Tories and English, how far respected during
revolution, 397.
Religious sects of, 398.
Heresy punished, 399.
Free inquiry, 400.
Religious tolerance, 401.
Manners, customs, &c., of Virginians, 403.
Commerce and manufactures of, 404.
Exports and Imports of, 406.
Wheat and tobacco culture compared, 407.
Horses of, 408.
Copy of a constitution for, submitted in 1783, 409.
Weights, coins, and measures of, 409.
Public income and expenses, 410.
Means of defence, 413.
Histories of, 415.

WAR--Preparations for, 86.
Defensive works, 111.
Our only alternative, 151, 152, 153, 154, 155, 156, 157, 158,
159, 160, 161, 162.

WESTERN COUNTRY--Exploration of, 66.

WEST POINT ACADEMY--Its enlargement proposed, 101.

WILLIAM AND MARY COLLEGE--History of, 391.