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^^ authorizes such proceedings, it is unconstitutional; if it do
^^ not authorize them, the misconstruction ought to be remedied.
^^ I might therefore, sir, without presumption, claim that inter-
*^ ference, as a matter of the highest public duty, which, in my
^^ present situation, I am content to solicit as a private favor.
^^ Deprived of a fortune that would place me in a state of inde-
^^ pendence, I am, by the act of the government, reduced to
^ poverty, and ejcposed to die pursuits of creditors whose pa-
^* tience will, I fear, be exhausted by further delay: twice obliged



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^ to leave my profi^on and place of abode, my means are t^
*^ hausted, aod my business lost. Under these circumstances, sir,
^^ I am persuaded that you will not suffer the trifling inconve-
^ nience of a few hours delay, to balance the utter ruin of a fellow
^ citizen, who cannot trace misfortune to any imprudence of his
*' own, and who only asks that fair trial which the constitution,
^ you have sworn to defend, secures indiscriminately to all.

** EDW. LIVINGSTON.

"23d June, 1809.''

If there be any man who can join Mr. Jefferson's merriment
at the terms of thb letter, I do not envy that man's enjoyments,
and would much rather be the sufferer under the wrongs there
detailed, than the one, however high his office, who could first
inflict and then deride them.

I have digressed, and return to the course of my argument.
Congress cannot, then, from the nature of their organization^
firom their necessary attention to more important business, oc*
cupy themselves with the investigation of titles; but if they had
the power, whence do they derive the rightf«-certainly not from
the words of the constitution,«-that, as we have seen, gives the
judicial power to a separate body. Not from the practice of
other nations, because we have seen, that in all others, even of
the most absolute form, means were provided to prevent the
nation being both party and judge,— -not from any necessity, be*
cause, if that were the case, it would eitist in other nations as
well as purs; but practice seems to be resorted to (p. 68.) and
the principle that the nation cannot be sued. That the nation
cannot be sued does not prevent relief being granted, when the
action is in r^m.— I cannot sue the United States for a debt
they owe me, I cannot attach their duties in the hands of the
collector, or serve an execution on the monies in the treasury,*
but I may form my action for the recovery of my land, by a
process in rem. The public, then, like any other claimant, may

* Hence arises the necessity to petition in case of tnoney claims, but wise
men bcve thought that the public would not lose by establishing some perma-
nent tribunal to take cognizance of them; in most instances the wages of
members while the justice of the demand is discussing, amount to more than
the debt: one for the value of a horse I found when I came into Congress in
}795. 1 left it there in 1801, and I believe it was finally decided ten years af-
terwards. The discussion of this claim alone must have cost at least 25001
dollars. In a Court of justice the costs would not have been one hundred.



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263

Ibsen their right, and the judges will determine on it, widiout
any reference to Congress, and so far I misconceived my remedy
while I was vainly seeking relief from the legislature. Thb
course of proceeding is not new nor beneath the dignity even
of our government. It is every day^s practice in the courts of
admiralty; should a collector or any other officer seize a vessel
as belonging to the United States, a libel would be filed by the
proprietor, and it most certainly would not be dismissed on a
suggestion that it was the property of the United States, their
title must be set forth and tried in the same manner as the title
of an individual.— * Where then is the difference if I direct my
action against the land; must not the public as well as any other
claimant set forth their right and recover or lose, according to
die strength or weakness of their title. If this reasoning be just,
Mr. Jefferson's ideas on this head are totally unfounded, and
Congress have neither the physical power, from their organiza-
tion, nor the constitutional right to try titles, and of course there
18 no check to that assumed by the President of judging what
lands belong to the public or not; he acts without appeal, with-
out control and without responsibility, and I, therefore, under
our government, am warranted in my conclusion that he acts un-
constitutionally.

I have proved, therefore, under this head;

tst. That my case is not one embraced by the purview of the
act of March, 1807.

2. That if it were, the direcuons of the act have not been
pursued.

3. That as construed and acted under by Mr. J., the act is
unconstitutional.

All these conclusions were so apparent, that in a few hours
after the president's mandate had been received at New Orleans
I had stated the substance of them in a petition which I pre-
sented to the superior court, praying them to enjoin the marshal
from executing it. The order to that effect was given, not as
Mr. Jefferson (with his usual attention to fact) asserts, by a
singkjudge^ but by the two who composed the court, and on
motion in open court.* Thb order was served on the marshal,

* I should not notice thU little aberration if it were not wilfuUy made. My
petition with the signature sf the f«p« judges wis before the prendeot; it \$



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3M

who din-cgaided it; and hit diaobedieaoe b justified by Mn J.
by reasoning which involves in it an attack cm the -egularity of
the proceedingi and the judgment by which Gravier was quiet-

f nblUhed p. Ixi. of the autffr ^pinwn tf cotami, and I insert it here at Icngtli,
that the reader may Judge for himself.

To the honourable, the Superior Court of the first District of the territory of

Orleans.
The petition of Edward Livingston, of the city of New Orleans, counsellor at

law.
Humbly shewcth.
That John Gn^vier by viitue of sundry grants from the crown of France, aad
divers mesne conveyances under them, in the month of November, in the year
of our Lord, 1805, was possessed of and entitled to a certain farm, or parcel dT
land, part of which had been prerioosly lidd out into streets and tots, and was
and is known by the liane oTthe Suburb St Mary: That the said Arm had, lbs
sundry years past, increased by an alluvion formed by the river Btississippiy
which is the front boundary of the said plantation, and which by the laws of
the land, became (in proportion as the same was formed) the property of the
said John Gravier, and of the several proprietors of the said planution under
which he held, and was Ineorporated ints the body of the said plantatioo, and
by the laws afpcesaid, was so held ap part of the same. — ^But the said John
Gravier, and those under whom he chums, have uninterruptedly held the said
plantation, of which the said alluvion so formed a part, for upwards of eighty
years, until some short tfane previous to the month of November, 1005, when
the mayor, aldermen and inhabitants of the city of New Orleans, having dis*
tnrbed him in the enjoyment of the said alluvion, he presented his petition to
the superior court, to be quieted in his possession, and relieved against die
said disturbance, and that such proceedings were thereupon had, that the said
Superior Court on the 23d of May, ISOT, pronounced the decree, a eepy
whereof is hereunto annexed, in pvrtaance ef which decree the said John
Gravier was put in peaceable possession of the said alluvion, and the said
mayor, aldermen and inhabitants were perpetually enjoined from disturbing
him thereini and your petitioner shews that since the rendering the said judg-
ment, he hath purchased from Nicholas Girod, and the trustees of Peter Dels*
bigarre, under the title of the said John Gravier, and from the said John
Graner himself in all, for the sum of eighty thousand dollars and upwards, all
that part of the said plantation and alluvion, which is bounded on one side by the
road, and on the other by Mississippi river, and extends fh>m die limits of the
city to the street called Jfue yulie, of which yourpet&tioner was piitin possession
and on wlueh he has expended very large sums in impeoveMoat^ and particii^
Urly in making a canal and levde, which are nearfy complete: That your petir
tioner is informed, and verily believes, that the president of die United States,
being ignorant of the true circumstances ef your petitioner's title, but iasti-
gated, as he believes, by some malicious . tisrepresentations ef your petttioner^i
enemies, has given directions to F. L. B. Dorgenoy, the marshal of the district^
to lemove your petitioner by force from the said piece of land, so purchased
by him as sforesaidi and that under colour of an act entitled ** An act to pre*
vent settlements being made on lands ceded to the United States, until autho-
rised by laWy" which law, as your petitioner is advised and believes, cannot



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S65

ed in his.pOMestkmi as well as die Ustihig the ii^uactiM te
prevent the execution of the mandate.

The decree of the court, he contends, is a nullity, and is void
for three reasons.

U Because the United States were not a party.

%• Because the court bad no jurisdiction of the subject of dit
suit.

3. ^^ Because it was the result of a process and a course ci
proceeding and trial belongisg to a court whose powers they do
not possess by law.'*

The two last of these objections affect the powers of the court,
and (should they be well founded) render the judgment voidaa
to all the world. ,

appljr to your petitioner's case, as by a reference to the said law will more fuUy
and at larg^ appear.

l%at if your petitioner is dispossetied at this season of the year, the i^atett
iijttiy win result to him not oiUy by t^e destructtoa of tbe unfinidied wor]i%
by the annual inundation which may now In a few weeks be expected, but also
by the failure of many contracts he has formed, and l>y the loss of the revenue
arisinf^ ftom his canal and basin, for the next year.

And your petitiener shews, that the navigation of the river wfll be greitly
inpeded by the half finished woiks, and that the greatest danger is to b«
dreaded to the health of the city from the existence of a teiaporaty dyk«
which it was your petitioner's intention to have removed prior to the rising of
the waters-* Wherefore and inasmuch as the said order must have unadvisedly
ksoedyas the same is contrary to the 'fraaty by which this country is ceded t#
the United States, to the laws thereof, and to the constitution, and particularly
to that article which declares that no private property shall be taken for public
use without just compensation; and also in direct violation of that part of the
iidinance for the government of this territory, which directs that no man shall
be deptivtd of his liiberty or propsrty^but by dM judgment of his peers, or the
law<^theUttd.

May it please your honours to er\ioin the said F L. B. Dorgenoy, marshal^
firom execating the said order, and to grant to your petitioner such other re-
fief as the nature of his case may require.

KD W.LIVINGSTON.
Signed and sworn to in open coart»
January 35th, 1808.

J. W. SMITH, Clk.
Let an injunction fistue agreeable to the piUyer of the petition. 25th Ja*
miary, 180a

GEO. MATTHEWS, JuQ.
JOSHUA LEWIS.
I hereby certify that the foregoing b a true copy of the original petition imd
erder on file in this office.

J.W. SMITHtCUcS.G.
March 28, 1808*

No. xvm. S L



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9^

Tire first, if the United States were a necessary party, wffl
render i- vo d as to them, but good against all odiers who were
|>arties to the suit.

I have admitted that the United States, if they claimed an in*
terest in the land in their own right or for another not a party
to the suit, wouM not be affected by it. The law cited by Mr.
Jefferson is a first principle in the civil, and, as far as my know*
ledge extends, pervades every other code. But the case would,
I think, be different, if the United States claimed not for their
own use, but for that of persons who were parties to the suit.— »
'When once a contest is decided by a sentence of the proper
iribunaly regularly judging in the last refforf,— diat decision is
final, it becomes res judicata; for, it is the interest of the com-
monwealth that there be an end to' litigation, ^ interest reipuh^
Hew ut aitjinis litium;^* and therefore though the judgment be er-
roneous it must stand.— -The principle cited by Mr. Jefferson, is
an exception to this rule-**the res judicata does not bind those
who were not parties to the suit; and the reason is, that they had
no opportunity to defend their rights. But if the person applying
for the benefit of this exception in order to open the judgment,
claims no right for himself, but only asserts it for the benefit of
another who was a party to the suit, and had an opportunity to
defend his rights and did defend them, then the reason of the
^xdeption failing, the exception itself must fail with it. Cessanie
rationcy ceaeat et ipsa lex.

To apply these principles to the case before us: The corpora-
tion of the city of New Orleans were parties to the suit in ques-
tion; they defended their rights, they were heard, they set up,
in a motion for a new trial, that very title in the United States
which is now contended for, as a bar to the plaintiff^s recovery.
On a full hearing the court determined against this claim, en-
joined tfiem perpetudly against asserting it, and quieted the ad-
versary possession. Now let us examine what is the claim of the
United States. If on their otvn account, I admit they are not
barred; ifjbr the city of New Orleans, I contend thev are. The
purpose for which an act is done, is to be gathered from the de-
clarauons, either oral or written, of the Actor, or from his con-
duct. Where the public is the actor, the declarations and conduct
of their representative in the act are to be looked to; the presi-
dent in this case was, as he says, the agent ^ the United S^ws.



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«67

What were Us dedtradoiis, and what was his conduct? l»^^
diately after he had notice that his orders had been obeyed by
the marshal, he sent a message to congress, which he transcribas
p. 77 of his work. Speaking of this property he says: ** It has been
ttsed tmmemoriaUy by the city^ to furnish earth for raising their
streets and court-yards, for mortar and other necessary purposes,
and as a landing or quai,'' &c.; he next states as an allegation tha^
the title, origiaaUy in the former sovereigns, was never parted
with by them, but was retained by themybr the use of the city
and province, and consequently has now passed over to the
United States. And he adds; ^^ Until this question can be decided
under legislative authority, measures have been taken according
to law, to prevent any change in the state of things^ and to keep
the grounds clear from intruders." Here is no allegation whatever
of any beneficiary interest in the United States; on the contrary, a
prescriptive title to the usufruct in the city of New Orleans, and
an allegation of a mere trust tkle in the former sovereign, to
which the United States have succeeded; and the intent with
which the possession was taken, is plainly expressed to be for
the use of the city. It was (says the message) to prevent any
change in the state of tAtn^j.— -What was the state of things al«
leged? Why, the use of the property in the city. The president'Ss
message, then, as clearly as language can express any thing, tells
us that the United States claimed nothing for themselves, every
thing for the corporation of New Orleans.-«>It does more; it
informs us, what is exactly the fact, that a court, which I shall
shew to be a competent one, having decided on a question of
title, the president of the United States interposed his executive
authority to correct the errors of the judiciary, and seized the
property in question to restore it to the losing party; for he tells
congress: ^* This (the batture) having been claimed by a private
individual, the city opposed the claim on a supposed legal title
in itself, but it has been adjudged that the legal title was not in
the cityJ*^ Here, then, is an acknowledgment that judgment was
rendered against the claims of the city, and this passage, taken
in conjunction with those I have quoted, amount to this: The
city have a title to the use of this property, they have used it
immemorially; it is therefore theirs by prescription-^ut an in*
dividual has claimed it, and the court has wrongfully given judg*
nent in his favour; I have therefore turned this individual out
•f possession in order (o restore that of the city, in other words



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topreveaft Wf change in the Mtate of things. OAtbiituppoiitioa
abne of a claim for the use of the cityt can we recoocile Mr«
Jefferaoo's aasertio^s pages 63 and 7d, that after the passage of
liie territorial law, it was in my power to resume my works, by
obtaining permission from the jury, and that had I obtained that
permbsion it would have been respected by the national execu-
tive. Had the seizure been for the use of the United States^ how
could a compliance with any territorial regulation^ enable me to
continue the occupation of the property of the United States?
How could the national executive have had so much respect for
die permission of a parish jurVf as to suffer the public lands to re-
gain in the hands of an intruder? It is clear, dierefore, from all
diese declarations that the agent of theUnitedStates did not seiae
for their use but for that of the defendants in a suit that had been
decided* His acts speak the same language* From the time of my
dispossession. to the present moment (with a short interval of a
few days, during which I resumed the possession in the fall of
1810) the United States have made no other uee of the proper^
than to keep me out^ and suffer the dty to enjoy. It woul4 have
brought, if sold, some hundred thousands of dollars into the
public treasury, yet no attempt has been made to sell; if leasedy
it would have produced a rent proportionate to such a aqiita!*
yet it remains unimproved. The city draws a great annual re-
venue from the wharfage, digs up the seU when the river re<-
tires, and, until it was destroyed by the last year's hurricane,
occupied by their guard the house I had erected, though the
United States hired buildings for their troops*— All this con-
duct coincides with the declarations of the executive and plainly
shews for whose benefit he acted—^md as the rights of that body
have been already decided on in a cause to which they were
parties, the question as to them can never be legidly revived
.^ther by themselves or others for their use. Until therefore the
United States shall assert some claim of tide for themselves^
not 9iB fiduciaries for the party which is concluded by a former
judgment, that judgment binds them.

S* But the court had no legal cognisance of the case, having
no jurisdiction over the subject of the suit,— and to prove thb
we are referred to p. 68, where I find it suted expressly, that
^so long as the nation holds lands in its own possession, so
long they are under the jurisdiction of no court but by specid
yrovtsioni" which special provision, it is contended, is not
made in the United States^ but that when they come to the



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369

poMMstoo of iodividuala) then the cMrts are opta for the djt«
ciiSBton of caDtendiDg claims* Now, at Mr* Jefferson in Im
message «nd dsewhere in his book$ tefls us that the city of New
Orleatuf were in passeeeioHj he excludes that of the United
States, and shews a case in whidi by his own acknowledgment
the courts may legally decide on the tide. I think this a conclu*'
ttve answer to this head of objection; there are others which I
have been obliged to anticipate, to which I refer the reader.*

But it b urged,

Sd. That the judgment in the case of Gravier, as well as the
injunction issued against die execution of the president's man-
date, are void, because ^ They are the result of a process and
coone of pleading and trial belonging to a court, they (the
territorial court) ^ did not possess by law."^-In support of this
objection we are told, that by an ordinance of Congress of the
13tb of July, tTB7% made for the then territory of the United
States N. W. of the Ohio, but extended to Louisiana shortly
after the cession, it was provided that there should be in that
territory a court consisting of three judges, who should have
<* COMXON LAW jurisdiction," thus excluding, by a necessary im-
plication, the powers and forms of proceeding of those courts
whidi are known in England and in the United Sutes by the name
of Courts ofChancert/y and in our S3rstem of jurisprudence are
contradistinguished from those which proceed according to tlie
course of the EngAtth common lam* Thence Mr. J. argues, that
the superior court of the territory of Orleans, having no chan*
eery powers^ could neither issue an injunction^ nor rencjer a
decree to piiet apooseooimt^ nor try a cause without a jury.

This is, evidently, a play upon words, and the whole quibble
turns upon the words ^chancery** and ^common law.^ Mr.
Jefferson confesses, (p. 74) that, the latter, as applied to Lout-
juana, do not mean the ^^ common law of England^^ but ^* the
common law of thia land!^ which he acknowledges to be the
Romant or civil law. This is all I desire. I acknowledge

• Ante, p. 25r, et seq.

f One of the first acts of the territorial Court, after the transfer of possession
to the United States, was a solemn determination that the change of govern-
ment operated none in the municipal laws. This determination has been uni-
iEbrmlj aoqwetoed in since, and has lately received the sanction of the supreme
court of appeals of the state. The common law of Lomsiana b therefore esta»>
blisbed to be the civil or Roman law$ and the constitution of this st^te con-
tains a spedal clause expressly intended to guard against the introduction of
any other system of ciTfl juriBpnidencCt



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270

Aat die superior cotut of Orleans is not a court of chancetyi
and that it has no powers whatever as such. Mr. J. acknow-
ledges that it possesses the powers of a court of civil law;
now, therefore, the only question seems to be, whether such
a court has the power to issue an injunction, or quiet a pos-
session, and whether it usually proceeds with or without A
jury. Mr. Jefferson triumphantly asks: **Wa8 the ea(tablish-
ment of the French and Roman laws an establishment of the
chancery system of law?"— -The answer is obvious— It was
so, as far as those several systems are similar, but no farther.
He again asks: ^ Will it be said that the Roman and chaai
eery laws, for instance, were the same?^' If Mr. Jefferson does
not know that the English chancery system was borrowed from
the civil law, and that it professedly pursues its forms and
modes of proceeding,* I must assent to what he acknowledges
in several parts of his justification, that he is not deeply versed
in the Roman, to which I think I may add^ at leasts the EngliA
chancery system of jurisprudence. But, however that may be, the
question is not here whether the rules and modes of proceeding
of the courts of civil law and those of chancery courts are the
same, but whether the forms pursued in the case before us were
really those which are prescribed and pointed out by the ** com-
mon law of the territory of Orleans'' (which is acknowledged to
be here the rule) or in other words by the *^ Roman civil law?"
And, now, it is easy to shew, that there was no need in this
case to search or adopt the precedents of an English or Ameri-
can court of chancery, and that neither the action brought by
Gravier, nor my petition for an injunction against the marshal
were derived from that source; but that they were suits and
modes of proceeding as well known and as strictly defined in the
civil, as those of trover and ejectment are in the common law.

It is a fact well known, not only to professed civilians,
but to all those who are tolerably conversant in that system,

• This is so well understood in the United SUtet» that by in act of Cong^rets,
passed on the 29th of September, 1789, it was expressly enacted, •' Thit the
forms and modes of proceedin^^ in causes of equity (chancery) and of admiralty



Online LibraryJohn Elihu HallThe American law journal → online text (page 28 of 53)