James Mather to William C. C. Claiborne
New Orleans, August 5th 1810.
I have not been able till this day to collect sufficient information from the French & Spanish authorities, concerning the powers vested in the Governors for the Kings either of France or Spain, to prevent encroachments on the demesne of the crown, & public property in general. I flatter myself however that the following quotations will fully elucidate this point of law.
1o See Vattel, the law of nations book 1st chapt. 20. ff 249 “all the members of a body having an equal right to their common property, each ought to have the profit of it in a manner that does not injure in any manner the common use. According to this rule, an individual is not permitted to form upon any River that is a public benefit, any work capable of rendering it less proper for the use of every one else as erecting mills, making a trench to turn the water from the bed &a, if he attempts it, he arrogates to himself a particular right, contrary to the common right of all.”
2o See, the presentment of the grand Jury of New Orleans to the superior court 14th November 1807. fo 45. of Mr Thierrys examination of the claim of the United States &a 1808. this presentment signed by W. C. Mumford Esqr foreman of the grand Jury shews that “the operations commenced by Edwd Livingston and others, on the Batture are highly injurious at present, and will have future effects which, in changing the course or current of the River, are hazardous in the extreme.”
3o See Vattel, law of nations book 1st chapt. 20 ff 253. “We shall see presently that the sovereign ought to provide for the preservation of things of a public nature”
See Ibidem chapt 21. ff. 258. “But it is very just to say that the nation ought to preserve its public property with great care, to make a proper use of it, and not to dispose of it but for good reasons &a. I speak of the public property strictly so called or the domain of the state &a As to the property common to all the citizens the nation does an injury to those who receive advantage from it, if it alienates it without necessity or without good reason. It has a right to do this as proprietor of these possessions, but it ought to do it only in such a manner as is agreable to the duties of the body towards its members.”
Ibidem book 1. Chapt 21. ff 259. “ These duties relate to the Prince, the Director of the nation;. He ought to watch over its preservation and the wise administration of the public property, to stop and prevent its dissipation, and not to suffer its being diverted to foreign uses.”1
4o See in the collection of Edicts and declarations of the Kings of France; among other Documents, the declaration of Louis XIV of 1683. The preamble of which says “Whereas the Rivers and navigable streams belong in full ownership to the Kings & Sovereigns as a consequence of their right of sovereignty, all what is included within their beds, as the Isles which they form in different ways, the encrease, and sand banks (atterrissements) the tolls, bridges &a and other things, and duties which they2 produce belong to us and no person can pretend any claim to the same unless by virtue of a legal title & possession.
“Wherefore our officers have at all times taken a special care to preserve them as a principal part of our domain, to which the Kings, our Predecessors had ordered that they should be reunited; namely the King Francis the first by his patent letters of the year 1539, ordered that an inquiry should be made to discover those on the River Rhosne; and charles the IX in the year 1572. appointed commissioners to look into any incroachments made on those of the Rivers Seine, Loire, Garonne, and to reunite them to the domain”
See also the preamble of the Edict of 1693. which says the same thing.
5o See Dénizarts (Decisions of Jurisprudence) at the word Riviére page 19. he shews the above edicts and declarations to have been executed, in France.
6o See Domat’s Public law book 1st tit 8. Sect 2. Nos 6. 7. also No VIII which says “In order to preserve the navigation of Rivers, it is proper for the Government to prohibit and punish all attempts which might hinder it or render it inconvenient, whether it be by any buildings &a and other hindrances or by diverting the course of the Rivers, or otherwise.”
See also No IX. “The same usefulness of the navigation of Rivers, demands the free use of their banks, so that in the breadth and length necessary for the passage and track of the horses, which draw the boats, there be neither trees planted, nor any other obstacles in the way.”
See also No XIX. “If it should happen that some building were made in a public place, it might either be demolished, if it should prove any way hurtful, or inconvenient, or be suffered to stand upon condition of its paying a rent or making some other amends to the Public, if found more advantageous to let it remain”3 &a
6o See Mr Moreau de St Mery’s compilation of the laws of Jurisprudence in force in the French colonies—the ordinance of the King 1st February 1766. regulating the civil Government of the Leward Islands—art. 30th and 37th of said ordinance, 5th vol. Pages 19 & 20.
Ibidem, 5th vol. page 425. an ordinance of the Governor and Intendant ordering “all persons who had encroached on the fifty fathoms of ground along the sea shore belonging to the King’s Domain to be dispossessed—”
See Ibidem volume 1st page 272. an explanation of what was understood by the fifty fathoms of the King (les 50 pas du Roi).
Now coming to the Spanish laws.
I have given you by my last the tenor of the third partida of the laws of Castille, to which I refer; See now the Recopilacion de Indias book 2d tit XVI, law X—and also book 3d tit. 3d law 2d the powers vested in the Governors, and vice Kings, and authorizing them to do and to act according to the best of their Judgement with as full authority as the King himself in all things not prohibited by express laws.
See Ibidem book 4th tit. 17. law 5th & 8th declaring that the waters pasture grounds, &a are common things &a
See above all Ibidem book 4th tit. XII law 21. expressly “ ordering that persons who have in their possession public lands, shall be turned out of the same.”4
As for the Proofs of the exercize of those powers by the Governors and Intendant of Louisiana, we have in the books of the Spanish cabildo records shewing that Mr de Galvez, when Governor, caused all the planters who had drawn their Indigo Plantations close to the river side, to remove the same and to let the sandy grounds adjacent to the river free for the use of the public.
We have also records shewing that the Governor, Barone de Carondelet, caused all persons who had built sheds and huts on the Batture of the Suburb St Mary to remove the same &a5
Before I close this letter, I cannot forbear mentioning that I have derived most of the foregoing informations from Mr Moreau Lislet who has made a careful search of the authorities quoted.
Jas Mather Mayor
RC (DLC); in a clerk’s hand, signed by Mather; at head of text: “To his Excelly Wm C. C. Claiborne Govr of the Territory of Orleans.”
Bernardo de galvez served as governor of Louisiana, 1777–85.
1. Omitted opening quotation mark editorially supplied.
2. Manuscript: “the.”
3. Omitted opening quotation mark editorially supplied.
4. Word interlined.
5. Omitted opening quotation mark editorially supplied.
- Carleton, Henry; The Laws of Las Siete Partidas search
- Carondelet, Francisco Luis Hector, baron; and batture search
- Charles IX, king of France; and1572declaration search
- Claiborne, William Charles Coles; letters from J. Mather to search
- Collection de décisions nouvelles (Denisart) search
- Denisart, Jean Baptiste; Collection de décisions nouvelles search
- Domat, Jean; Les lois civiles dans leur ordre naturel (trans. Strahan) search
- Examen des Droits des Etats-Unis et des pretensions de Mr. Edouard Livingston sur la Batture en Face du Faubourg Ste. Marie (Thierry) search
- France; land patents of1539 search
- France; laws of search
- Gálvez, Bernardo de search
- law; French search
- law; Spanish search
- Le Droit des Gens, ou, Principes de la loi naturelle, appliqué à la conduite & aux affaires des nations & des souverains (E. von Vattel) search
- Les lois civiles dans leur ordre naturel (Domat; trans. Strahan) search
- Loix et constitutions des colonies françoises de l’Amerique sous le vent (Moreau de Saint Méry) search
- Louis XIV, king of France; and edict of1693 search
- Louis XIV, king of France; declaration of1683 search
- Mather, James; and batture controversy search
- Mather, James; letters to W. C. C. Claiborne from search
- Moreau de Saint Méry, Médéric Louis Elie; Loix et constitutions des colonies françoises de l’Amerique sous le vent search
- Moreau Lislet, Louis; The Laws of Las Siete Partidas search
- Mumford, W. C. search
- Spain; laws of search
- Strahan, William, trans.; Les Lois civiles dans leur ordre naturel search
- The Laws of Las Siete Partidas (Carleton and Moreau Lislet) search
- Thierry, Jean Baptiste Simon; Examen des Droits des Etats-Unis et des pretensions de Mr. Edouard Livingston sur la Batture en Face du Faubourg Ste. Marie search
- Vattel, Emmerich von; Le Droit des Gens, ou, Principes de la loi naturelle, appliqué à la conduite & aux affaires des nations & des souverains search