[1] See Confidential Message recommending a Western Exploring Expedition in Appendix, p. 241 of this volume.

[2] Don Ulloa mentions a break, similar to this, in the province of Angaraez, in South America. It is from sixteen to twenty-two feet wide, one hundred and eleven feet deep, and of 1.3 miles continuance, English measure. Its breadth at top is not sensibly greater than at bottom. But the following fact is remarkable, and will furnish some light for conjecturing the probable origin of our natural bridge. "Esta caxa, Ó cauce estÁ cortada en pÉna viva con tanta precision, que las desigualdades del un lado entrantes, corresponden Á las del otro lado salientes, como si aquella altura se hubiese abierto expresamente, con sus bueltas y tortuosidades, para darle transito Á los aguas por entre los dos morallones que la forman; siendo tal su igualdad, que si llegasen Á juntarse se endentarian uno con otro sin dextar hueco." Not. Amer. ii. § 10. Don Ulloa inclines to the opinion that this channel has been effected by the wearing of the water which runs through it, rather than that the mountain should have been broken open by any convulsion of nature. But if it had been worn by the running of water, would not the rocks which form the sides, have been worn plain? or if, meeting in some parts with veins of harder stone, the water had left prominences on the one side, would not the same cause have sometimes, or perhaps generally, occasioned prominences on the other side also? Yet Don Ulloa tells us, that on the other side there are always corresponding cavities, and that these tally with the prominences so perfectly, that, were the two sides to come together they would fit in all their indentures, without leaving any void. I think that this does not resemble the effect of running water, but looks rather as if the two sides had parted asunder. The sides of the break, over which is the natural bridge of Virginia, consisting of a veiny rock which yields to time, the correspondence between the salient and re-entering inequalities, if it existed at all, has now disappeared. This break has the advantage of the one described by Don Ulloa in its finest circumstance; no portion in that instance having held together, during the separation of the other parts, so as to form a bridge over the abyss.

[3] 2 Buffon Epoques, 96.

[4] Hunter.

[5] D'Aubenton.

[6] Buffon, xviii. 112 edit. Paris, 1764.

[7] Buffon, xviii. 100, 156.

[8] viii. 134.

[9] It is said that this animal is seldom seen above thirty miles from shore, or beyond the 56th degree of latitude. The interjacent islands between Asia and America admit his passing from one continent to the other without exceeding these bounds. And in fact, travellers tell us that these islands are places of principal resort for them, and especially in the season of bringing forth their young.

[10] I. 233, Lon. 1772.

[11] Ib. 233.

[12] l. xxvii.

[13] XXIV. 162.

[14] XV. 42.

[15] I. 359. I. 48, 221, 251. II. 52.

[16] II. 78.

[17] I. 220.

[18] XXVII. 63. XIV. 119. Harris, II. 387. Buffon, Quad. IX. 1.

[19] Quad. IX. 158.

[20] XXV. 184.

[21] Quad. IX. 132.

[22] XIX. 2.

[23] Quad. IX. 41.

[24] The descriptions of Theodat, Denys and La Honton, cited by Monsieur de Buffon, under the article Elan, authorize the supposition, that the flat-horned elk is found in the northern parts of America. It has not however extended to our latitudes. On the other hand, I could never learn that the round-horned elk has been seen further north than the Hudson's river. This agrees with the former elk in its general character, being, like that, when compared with a deer, very much larger, its ears longer, broader, and thicker in proportion, its hair much longer, neck and tail shorter, having a dewlap before the breast (caruncula gutturalis LinnÆi) a white spot often, if not always, of a foot diameter, on the hinder part of the buttocks round the tail; its gait a trot, and attended with a rattling of the hoofs; but distinguished from that decisively by its horns, which are not palmated, but round and pointed. This is the animal described by Catesby as the Cervus major Americanus, the stag of America, le Cerf de l'Amerique. But it differs from the Cervus as totally as does the palmated elk from the dama. And in fact it seems to stand in the same relation to the palmated elk, as the red deer does to the fallow. It has abounded in Virginia, has been seen, within my knowledge, on the eastern side of the Blue Ridge since the year 1765, is now common beyond those mountains, has been often brought to us and tamed, and its horns are in the hands of many. I should designate it as the "Alces Americanus cornibus teretibus." It were to be wished, that naturalists, who are acquainted with the renne and elk of Europe, and who may hereafter visit the northern parts of America, would examine well the animals called there by the names of gray and black moose, caribou, original and elk. Monsieur de Buffon has done what could be done from the materials in his hands, toward clearing up the confusion introduced by the loose application of these names among the animals they are meant to designate. He reduces the whole to the renne and flat-horned elk. From all the information I have been able to collect, I strongly suspect they will be found to cover three, if not four distinct species of animals. I have seen skins of a moose, and of the caribou: they differ more from each other, and from that of the round-horned elk, than I ever saw two skins differ which belonged to different individuals of any wild species. These differences are in the color, length, and coarseness of the hair, and in the size, texture, and marks of the skin. Perhaps it will be found that there is, 1, the moose, black and gray, the former being said to be the male, and the latter the female; 2, the caribou or renne; 3, the flat-horned elk, or original; 4, the round-horned elk. Should this last, though possessing so nearly the characters of the elk, be found to be the same with the Cerf d'Ardennes or Brandhitz of Germany, still there will remain the three species first enumerated.

[25] Kalm II. 340, I. 82.

[26] The Tapir is the largest of the animals peculiar to America. I collect his weight thus: Monsieur de Buffon says, XXIII. 274, that he is of the size of a Zebu, or a small cow. He gives us the measures of a Zebu, ib. 4, as taken by himself, viz. five feet seven inches from the muzzle to the root of the tail, and five feet one inch circumference behind the fore-legs. A bull, measuring in the same way six feet nine inches and five feet two inches, weighed six hundred pounds, VIII. 153. The Zebu then, and of course the Tapir, would weigh about five hundred pounds. But one individual of every species of European peculiars would probably weigh less than four hundred pounds. These are French measures and weights.

[27] VII. 432.

[28] VII. 474.

[29] In Williamsburg, April, 1769.

[30] VIII. 48, 55, 66.

[31] XVIII. 96.

[32] IX. 41.

[33] XXX. 219.

[34] XVIII. 146.

[35]

[36] In so judicious an author as Don Ulloa, and one to whom we are indebted for the most precise information we have of South America, I did not expect to find such assertions as the following: "Los Indios vencidos son los mas cobardes y pusilanimes que se pueden vÉr: Se hacen inÖcentes, le humillan hasta el desprecio, disculpan su inconsiderado arrojo, y con las suplicas y los ruegos dÁn seguras pruebas de su pusilanimidad. Ó lo que resieren las historias de la Conquista, sobre sus grandes acciones, es en un sendito figurado, Ó el caracter de estas gentes no es ahora segun era entonces; pero lo que no tiene duda es, que las Naciones de la parte Septentrional subsisten en la misma libertad que siempre han tenido, sin haber sido sojuzgados por algon Principe extrano, y que viven segun su rÉgimen y costumbres de toda la vida, sin que haya habido motivo para que muden de caracter; y en estos se vÉ lo mismo, que sucede en los Peru, y de toda la AmÉrica Meridional, reducidos, y que nunca lo han estado." Noticias Americanas, Entretenimiento xviii. §. 1. Don Ulloa here admits, that the authors who have described the Indians of South America, before they were enslaved, had represented them as a brave people, and therefore seems to have suspected that the cowardice which he had observed in those of the present race might be the effect of subjugation. But, supposing the Indians of North America to be cowards also, he concludes the ancestors of those of South America to have been so too, and, therefore, that those authors have given fictions for truth. He was probably not acquainted himself with the Indians of North America, and had formed his opinion from hear-say. Great numbers of French, of English, and of Americans, are perfectly acquainted with these people. Had he had an opportunity of inquiring of any of these, they would have told him, that there never was an instance known of an Indian begging his life when in the power of his enemies; on the contrary, that he courts death by every possible insult and provocation. His reasoning, then, would have been reversed thus: "Since the present Indian of North America is brave, and authors tell us that the ancestors of those of South America were brave also, it must follow that the cowardice of their descendants is the effect of subjugation and ill treatment." For he observes, ib. §. 27, that "los obrages los aniquillan por la inhumanidad con que se les trata."

[37] XVIII. 146.

[38] Linn. Syst. Definition of a Man.

[39] A remarkable instance of this appeared in the case of the late Colonel Byrd, who was sent to the Cherokee nation to transact some business with them. It happened that some of our disorderly people had just killed one or two of that nation. It was therefore proposed in the council of the Cherokees that Colonel Byrd should be put to death, in revenge for the loss of their countrymen. Among them was a chief named SilÒuee, who, on some former occasion, had contracted an acquaintance and friendship with Colonel Byrd. He came to him every night in his tent, and told him not to be afraid, they should not kill him. After many days' deliberation, however, the determination was, contrary to SilÒuee's expectation, that Byrd should be put to death, and some warriors were despatched as executioners. SilÒuee attended them, and when they entered the tent, he threw himself between them and Byrd, and said to the warriors, "This man is my friend; before you get at him, you must kill me." On which they returned, and the council respected the principle so much as to recede from their determination.

[40]

Philadelphia, December 31, 1797.

Dear Sir,—Mr. Tazewell has communicated to me the inquiries you have been so kind as to make, relative to a passage in the "Notes on Virginia," which has lately excited some newspaper publications. I feel, with great sensibility, the interest you take in this business, and with pleasure, go into explanations with one whose objects I know to be truth and justice alone. Had Mr. Martin thought proper to suggest to me, that doubts might be entertained of the transaction respecting Logan, as stated in the "Notes on Virginia," and to inquire on what grounds that statement was founded, I should have felt myself obliged by the inquiry; have informed him candidly of the grounds, and cordially have co-operated in every means of investigating the fact, and correcting whatsoever in it should be found to have been erroneous. But he chose to step at once into the newspapers, and in his publications there and the letters he wrote to me, adopted a style which forbade the respect of an answer. Sensible, however, that no act of his could absolve me from the justice due to others, as soon as I found that the story of Logan could be doubted, I determined to inquire into it as accurately as the testimony remaining, after a lapse of twenty odd years, would permit, and that the result should be made known, either in the first new edition which should be printed of the "Notes on Virginia," or by publishing an appendix. I thought that so far as that work had contributed to impeach the memory of Cresap, by handing on an erroneous charge it was proper it should be made the vehicle of retribution. Not that I was at all the author of the injury; I had only concurred, with thousands and thousands of others, in believing a transaction on authority which merited respect. For the story of Logan is only repeated in the "Notes on Virginia," precisely as it had been current for more than a dozen years before they were published. When Lord Dunmore returned from the expedition against the Indians, in 1774, he and his officers brought the speech of Logan, and related the circumstances of it. These were so affecting, and the speech itself so fine a morsel of eloquence, that it became the theme of every conversation, in Williamsburg particularly, and generally, indeed, wheresoever any of the officers resided or resorted. I learned it in Williamsburg, I believe at Lord Dunmore's; and I find in my pocket-book of that year (1774) an entry of the narrative, as taken from the mouth of some person, whose name, however, is not noted, nor recollected, precisely in the words stated in the "Notes on Virginia." The speech was published in the Virginia Gazette of that time, (I have it myself in the volume of gazettes of that year,) and though it was the translation made by the common interpreter, and in a style by no means elegant, yet it was so admired, that it flew through all the public papers of the continent, and through the magazines and other periodical publications of Great Britain; and those who were boys at that day will now attest, that the speech of Logan used to be given them as a school exercise for repetition. It was not till about thirteen or fourteen years after the newspaper publications, that the "Notes on Virginia" were published in America. Combating, in these, the contumelious theory of certain European writers, whose celebrity gave currency and weight to their opinions, that our country from the combined effects of soil and climate, degenerated animal nature, in the general, and particularly the moral faculties of man, I considered the speech of Logan as an apt proof of the contrary, and used it as such; and I copied, verbatim, the narrative I had taken down in 1774, and the speech as it had been given us in a better translation by Lord Dunmore. I knew nothing of the Cresaps, and could not possibly have a motive to do them an injury with design. I repeated what thousands had done before, on as good authority as we have for most of the facts we learn through life, and such as, to this moment, I have seen no reason to doubt. That any body questioned it, was never suspected by me, till I saw the letter of Mr. Martin in the Baltimore paper. I endeavored then to recollect who among my contemporaries, of the same circle of society, and consequently of the same recollections, might still be alive; three and twenty years of death and dispersion had left very few. I remembered, however, that General Gibson was still living, and knew that he had been the translator of the speech. I wrote to him immediately. He, in answer, declares to me, that he was the very person sent by Lord Dunmore to the Indian town; that, after he had delivered his message there, Logan took him out to a neighboring wood; sat down with him, and rehearsing, with tears, the catastrophe of his family, gave him that speech for Lord Dunmore; that he carried it to Lord Dunmore; translated it for him; has turned to it in the Encyclopedia, as taken from the "Notes on Virginia," and finds that it was his translation I had used, with only two or three verbal variations of no importance. These, I suppose, had arisen in the course of successive copies. I cite General Gibson's letter by memory, not having it with me; but I am sure I cite it substantially right. It establishes unquestionably, that the speech of Logan is genuine; and that being established, it is Logan himself who is author of all the important facts. "Colonel Cresap," says he, "in cold blood and unprovoked, murdered all the relations of Logan, not sparing even my women and children; there runs not a drop of my blood in the veins of any living creature." The person and the fact, in all its material circumstances, are here given by Logan himself. General Gibson, indeed, says, that the title was mistaken; that Cresap was a Captain, and not a Colonel. This was Logan's mistake. He also observes, that it was on another water of the Ohio, and not on the Kanhaway, that his family was killed. This is an error which has crept into the traditionary account; but surely of little moment in the moral view of the subject. The material question is, was Logan's family murdered, and by whom? That it was murdered has not, I believe, been denied; that it was by one of the Cresaps, Logan affirms. This is a question which concerns the memories of Logan and Cresap; to the issue of which I am as indifferent as if I had never heard the name of either. I have begun and shall continue to inquire into the evidence additional to Logan's, on which the fact was founded. Little, indeed, can now be heard of, and that little dispersed and distant. If it shall appear on inquiry, that Logan has been wrong in charging Cresap with the murder of his family, I will do justice to the memory of Cresap, as far as I have contributed to the injury, by believing and repeating what others had believed and repeated before me. If, on the other hand, I find that Logan was right in his charge, I will vindicate, as far as my suffrage may go, the truth of a Chief, whose talents and misfortunes have attached to him the respect and commiseration of the world.

I have gone, my dear Sir, into this lengthy detail to satisfy a mind, in the candor and rectitude of which I have the highest confidence. So far as you may incline to use the communication for rectifying the judgments of those who are willing to see things truly as they are, you are free to use it. But I pray that no confidence which you may repose in any one, may induce you to let it go out of your hands, so as to get into a newspaper: against a contest in that field I am entirely decided. I feel extraordinary gratification, indeed, in addressing this letter to you, with whom shades of difference in political sentiment have not prevented the interchange of good opinion, nor cut off the friendly offices of society and good correspondence. This political tolerance is the more valued by me, who consider social harmony as the first of human felicities, and the happiest moments, those which are given to the effusions of the heart. Accept them sincerely, I pray you, from one who has the honor to be, with sentiments of high respect and attachment, dear Sir, your most obedient, and most humble servant.

[41] Has the world as yet produced more than two poets, acknowledged to be such by all nations? An Englishman only reads Milton with delight, an Italian, Tasso, a Frenchman, the Henriade; a Portuguese, Camoens; but Homer and Virgil have been the rapture of every age and nation; they are read with enthusiasm in their originals by those who can read the originals, and in translations by those who cannot.

[42] There are various ways of keeping truth out of sight. Mr. Rittenhouse's model of the planetary system has the plagiary application of an Orrery; and the quadrant invented by Godfrey, an American also, and with the aid of which the European nations traverse the globe, is called Hadley's quadrant.

[43] In a later edition of the AbbÉ Raynal's work, he has withdrawn his censure from that part of the new world inhabited by the Federo-Americans; but has left it still on the other parts. North America has always been more accessible to strangers than South. If he was mistaken then as to the former, he may be so as to the latter. The glimmerings which reach us from South America enable us to see that its inhabitants are held under the accumulated pressure of slavery, superstition and ignorance. Whenever they shall be able to rise under this weight, and to show themselves to the rest of the world, they will probably show they are like the rest of the world. We have not yet sufficient evidence that there are more lakes and fogs in South America than in other parts of the earth. As little do we know what would be their operation on the mind of man. That country has been visited by Spaniards and Portuguese chiefly, and almost exclusively. These, going from a country of the old world remarkably dry in its soil and climate, fancied there were more lakes and fogs in South America than in Europe. An inhabitant of Ireland, Sweden, or Finland would have formed the contrary opinion. Had South America then been discovered and settled by a people from a fenny country, it would probably have been represented as much drier than the old world. A patient pursuit of facts, and cautious combination and comparison of them, is the drudgery to which man is subjected by his Maker, if he wishes to attain sure knowledge.

[44] I. 126.

[45] At Paris, in 1753, the mercury in Reaumur's thermometer was at 30½ above zero, and in 1776, it was at 16 below zero. The extremities of heat and cold therefore at Paris, are greater than at Williamsburg, which is in the hottest part of Virginia.

[46] Smith.

[47] Evans.

[48] The os sacrum.

[49] Art. 4.

[50] Art. 7.

[51] Art. 8.

[52] Art. 8.

[53] Of these 542 are on the eastern shore.

[54] Of these, 22,616 are eastward of the meridian of the north of the Great Kanhaway.

[55] To bid, to set, was the ancient legislative word of the English. Ll. Hlotharri and Eadrici. Ll. InÆ. Ll. Eadwerdi. Ll. Aathelstani.

[56] Bro. abr. Corporations, 31, 34. Hakewell, 93.

[57] Puff. Off. hom. l. 2, c. 6, §. 12.

[58] June 4, 1781.

[59] Crawford.

[60] The instrument proper to them is the Banjar, which they brought hither from Africa, and which is the original of the guitar, its chords being precisely the four lower chords of the guitar.

[61] Tous doulous etaxen Örismenou nomesmatos homilein tais therapainsin.—Plutarch. Cato.

[62] Suet. Claud. 25.

[63] Furneaux passim.

[64] This sum is equal to £850,000; Virginia money, 607,142 guineas.

[65] By the author of these notes.

[66] Mr. Hazard.

[67] Datura pericarpiis erectis ovatis. Linn.

[68] An instance of temporary imbecility produced by them is mentioned, Beverl. H. of Virg. b. 2, c. 4.

[69] When Boaz had eaten and drank, and his heart was merry, he went to lie down at the end of the heap of corn; and Ruth came softly, and uncovered his feet, and laid her down. Ruth, iii. 7.

[70] This is one generation more than the poet ascribes to the life of Nestor:

[71] In connection with this appendix see letter to Governor Henry, printed as Note in p. 309.

[72] The popular pronunciation of Tomlinson, which was the real name.

[73] The preceding account of Shikellemus, (Logan's father,) is copied from manuscripts of the Rev. C. PyrlÆus, written between the years 1741 and 1748.

[74] See G. H. Loskiel's history of the Mission of the United Brethren, &c. Part II. Chap. 11, Page 31.

[75] First murder of the two Indians by Cresap.

[76] Second murder on Grave Creek.

[77] Massacre at Baker's Bottom, opposite Yellow Creek, by Great-house.

[78] Fourth murder, by Great-house.

[79]

TO MR. PAUL ALLEN, PHILADELPHIA.

Monticello, April 13, 1813.

Sir,—In compliance with the request conveyed in your letter of May 25th, I have endeavored to obtain from the relations and friends of the late Governor Lewis, information of such incidents of his life as might be not unacceptable to those who may read the narrative of his western discoveries. The ordinary occurrences of a private life, and those also while acting in a subordinate sphere in the army, in a time of peace, are not deemed sufficiently interesting to occupy the public attention; but a general account of his parentage, with such smaller incidents as marked early character, are briefly noted, and to these are added, as being peculiarly within my own knowledge, whatever related to the public mission, of which an account is not to be published. The result of my inquiries and recollections shall now be offered, to be enlarged or abridged as you may think best, or otherwise to be used with the materials you may have collected from other sources.

[80]

TO ROBERT WALSH, ESQ.

Monticello, December 4, 1818.

Dear Sir,—Yours of November 8th has been some time received; but it is in my power to give little satisfaction as to its inquiries. Dr. Franklin had many political enemies, as every character must which, with decision enough to have opinions, has energy and talent to give them effect on the feelings of the adversary opinion. These enmities were chiefly in Pennsylvania and Massachusetts: in the former they were merely of the proprietary party; in the latter they did not commence till the revolution, and then sprung chiefly from personal animosities, which spreading by little and little, became at length of some extent. Dr. Lee was his principal calumniator, a man of much malignity, who, besides enlisting his whole family in the same hostility, was enabled, as the agent of Massachusetts with the British government, to infuse it into that State with considerable effect. Mr. Izard, the Doctor's enemy also, but from a pecuniary transaction, never countenanced these charges against him. Mr. Jay, Silas Deane, Mr. Laurens, his colleagues also, ever maintained towards him unlimited confidence and respect. That he would have waived the formal recognition of our Independence I never heard on any authority worthy notice. As to the fisheries, England was urgent to retain them exclusively, France neutral; and I believe that had they been ultimately made a sine qu non, our commissioners (Mr. Adams excepted) would have relinquished them rather than have broken off the treaty. To Mr. Adams' perseverance alone on that point I have always understood we were indebted for their reservation. As to the charge of subservience to France, besides the evidence of his friendly colleagues before named, two years of my own service with him at Paris, daily visits, and the most friendly and confidential conversations, convince me it had not a shadow of foundation. He possessed the confidence of that government in the highest degree, insomuch that it may truly be said that they were more under his influence than he under theirs. The fact is that his temper was so amiable and conciliatory, his conduct so rational, never urging impossibilities, or even things unreasonably inconvenient to them, in short so moderate and attentive to their difficulties as well as our own, that what his enemies called subserviency, I saw was only that reasonable disposition, which, sensible that advantages are not all to be on one side, yielding what is just and liberal, is the more certain of obtaining liberality and justice. Mutual confidence produces of course mutual influence, and this was all which subsisted between Dr. Franklin and the government of France.

I state a few anecdotes of Dr. Franklin, within my own knowledge, too much in detail for the scale of Delaplaine's work, but which may find a cadre in some of the more particular views you contemplate. My health is in a great measure restored, and our family joins with me in affectionate recollections and assurances of respect.

[81] The figures in this table refer to the pages of the original edition of Mr. Jefferson's pamphlet, which in this edition are marked with an asterisk, and placed in the margin.

[82] He says, February, 1804. See address.

[83] Thierry.

[84] Notar. copy, Gravier to Bigarre.

[85] Lafon, in his map of New Orleans, says expressly that the Missisipi, at the city, is uniformly of the breadth of 300 toises only.—MS. Note.

[86] Rep. 19.

[87] Monile's affidavit, MS.

[88] These are French measures: add a fifteenth to make them ours.

[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, qu 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.

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.

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 grati 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, 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 Beocian, Beacian, beatian, to beat: pronounced beachian, as christian, fustian, question, are pronounced chrischian, fuschian, queschion, &c.

[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.