Des modifications que la nature des choses a fait subir aux lois relatives à la propriété et à la jo

CHAP. 18: On the modifications that the nature of things has brought to the laws concerning the property and use of watercourses.

IN observing how the various kinds of properties that exist among peoples are formed, we have seen that each nation has a territory that is its own, and of which it cannot be stripped without being destroyed; that this territory, as long as it remains uncultivated and common to all the men who possess it, offers only weak resources to a small and miserable population; that it acquires great value only after having been divided among individuals or families; that this value is the mediate or immediate product of human industry; and that thus private fortunes, movable or immovable, are generally the result of the labor of man, seconded by the power of nature [^147].

But although labor generally gives things the value they have, by rendering them fit to satisfy our needs, there are several that are useful to entire populations, whose utility is even inexhaustible, and to which, however, human industry can add almost nothing; of this number are rivers and streams, seaports, roadsteads, harbors, and other analogous things that the Romans placed in the rank of public things, because among them each had the right to make use of them, while respecting in others a right similar to his own.

If, by the nature of things, rivers and streams form part of the public domain, can they not fall into the private domain, whether as a result of long possession, or by the effect of particular laws or customs? Are not the doctrines professed in France, relative to non-navigable rivers and streams, and in England and the United States, relative to the rivers in which the ebb and flow of the sea are not felt, proof that all watercourses, whatever their size, can be converted into private properties like lands?

In saying that, by the nature of things, rivers form part of the public domain, I did not mean to affirm that the peoples to whom they belong can never be stripped, by violence, of some of the advantages they naturally produce for them; I did not mean to say, for example, that navigation cannot be hindered by the riparian proprietors, or subjected to arbitrary tributes; or that a privileged caste cannot convert fishing into a monopoly, like the faculty of hunting; I meant to say only that the watercourses that traverse the territory of a nation belong in common to all the members of which it is composed; that partition, if it were possible, would in large part destroy their utility, and that one cannot strip the population that possesses them, without committing against it the most dangerous and most unjust of usurpations.

In the times when the feudal regime was in its full force, usurpations of this kind were consummated or attempted in almost all the states of Europe; but they were never complete, because the nature of things did not permit them to be. This nature of things, against which one can struggle for some time, but which sooner or later ends by triumphing, has caused these usurpations to cease almost entirely in all the countries where they had been consummated. Some peoples have, it is true, preserved the language and some of the doctrines that were established at the time of the usurpations of feudalism; but if, instead of stopping at the words, one observes what happens in practice, one will see that, among them, watercourses are hardly less public than they were under the empire of the Roman laws.

The principal advantages that rivers, which furrow the lower parts of the basins a nation occupies, produce for it, consist, as has been seen previously, in carrying away the waters that fall on its territory, in transporting, by navigation, the objects of its commerce, in bringing fertility to its lands by irrigation, in putting mills or other factories in motion, in serving as a reservoir for fish, and finally in furnishing the entire population with the water it needs for its domestic uses.

At no epoch have the proprietors of the lands that border rivers had the folly to claim that, being masters of the soil, they had the right to prevent the water from flowing, and thus to flood the lands situated above their holdings. If, in the Middle Ages, the lords hindered the course of the rivers that bordered or traversed their properties, to construct mills or render fishing easier, it was less by virtue of their right than by virtue of their force; and their attempts were repressed by the public authority, whenever it had the means.

The riparian proprietors have never enjoyed the exclusive privilege of transporting their foodstuffs or their merchandise on the rivers or streams that bordered or traversed their properties. One conceives, in effect, that this privilege would have been of a weak advantage for each of them, if none had had the right to navigate beyond the limits of his properties. Rivers have therefore always been considered as routes on which each had the right to transport his foodstuffs or the objects of his commerce. In the times of feudal anarchy, the lords, as sovereigns, established tolls on the rivers as on the roads; but these concussions or extortions were likewise repressed as soon as the laws resumed their empire [^148].

The faculty of using a part of the waters of the river that borders or traverses one's properties for their irrigation existed under the Roman laws as under the laws born of the feudal regime. This faculty therefore does not prove that he who exercises it is proprietor of the river that borders his holding, since the Roman laws considered all rivers as forming part of the public domain. These laws likewise authorized each proprietor to construct factories on the watercourses that bordered or traversed his holding, on the condition of harming neither navigation nor the property of others. This faculty that a riparian proprietor had to use the force of the current for his profit did not prevent the rivers from being public.

Alluvial lands, that is to say, those that the course of the water adds in an insensible manner to the riparian lands, became the property of the persons to whom these lands belonged, under the Roman laws, as in the time of feudalism; but this was not for the reason that these persons had the property of the river; it was because they alone could draw some advantage from these accretions. How could the State, or even private individuals other than the proprietors, have taken possession of insensible accretions, and put them into a state of cultivation?

In France and in other countries, the proprietors whose holdings border a navigable river profit not only from the alluvial lands, but even from the part of the bed that the water leaves in withdrawing toward the other bank. One cannot, however, conclude from this that a navigable river is the property of the persons whose lands it borders or traverses. The only consequence that can be drawn from it is that, when a fraction of the public domain can no longer be of any utility for the population to which it belongs, the law adjudges it to the person to whom it can be of profit. There are no other means of giving the abandoned terrain the greatest possible value, and of avoiding at the same time all sorts of debates. The eventual rights that the law gives to each riparian proprietor over some parts of the bed of a river or a stream are therefore not proof that a part of this river belongs to him.

To attribute to the riparian proprietors the exclusive faculty of fishing along their properties, when they are not separated from the river by a public road, it is not necessary to recognize, in principle, that the river is theirs; it suffices that one feels the necessity of putting all properties safe from depredations. One conceives, in effect, that if any person, under pretext of fishing, could freely traverse all the holdings that border the rivers, there would be, for the proprietors, no means of making their properties respected. The men who make fishing or hunting a means of existence for themselves and their families are often exposed to lacking what is necessary. When they do not succeed in their excursions, and misery presses them, the sentiment that takes the most empire over them is not respect for the property of others. There were therefore very good reasons for not recognizing for everyone indistinctly the right to fish in the rivers whose banks one can traverse only through private properties. It was not possible to admit a contrary principle without establishing on all the holdings that border the rivers a servitude that would have in part destroyed their value.

If one could not, without the most serious inconveniences, grant to each the faculty of traversing the private properties that border the rivers, to engage in fishing there, it was necessary either to forbid it to everyone, or to permit it only to the riparian proprietors, within the extent of their properties. In taking this latter course, one has done, for the fish that the rivers feed, what was done for the alluvial lands; one has given the faculty of appropriating it to those who can use this faculty with the least inconvenience and the most advantages. This right being exclusively exercised by the proprietors, and not extending beyond their properties, can neither give rise to any debate, nor serve as a pretext for marauding. It will soon be seen, moreover, that it was not granted to them gratuitously.

In countries where the lands are very divided, the proprietors do not have enough leisure, and they are moreover confined in too narrow a space, to engage in fishing with profit. Being unable to draw any advantage from it by themselves, they often leave the faculty of engaging in it to those who wish to profit from it; it then becomes, in fact, as free as it would be if it were permitted to everyone. The laws that subject it to certain rules, so that the rivers are not depopulated, cease to be executed, because no one being more interested than the others in their execution, no one wants to take upon himself the odium of a prosecution. Each proprietor being moved only by a weak interest, does not have enough power to struggle against those who want to make fishing a trade. When such a disorder exists, and the administration is not enlightened enough or well enough organized to remedy it, it would be in the interest of all that the fishing be leased out for the profit of the communes. The proprietors would draw no less profit from it; their properties would be less exposed, and it would be less difficult to have the laws whose object is to prevent or repress the depopulation of the rivers observed.

But whatever the measures one adopts for the guarantee of riparian properties, and for the conservation of fish, these measures do not prove that non-navigable rivers belong to the riparian proprietors; the particular advantage that a person, because of his position, draws from a public thing, does not cause this thing to fall into the private domain; if it were otherwise, one would have to say that the proprietors who profit from the alluvial lands, left by the most considerable rivers, are the masters of these rivers.

Finally, in no time, nor in any country, has the right been recognized for riparian proprietors to prevent other persons from drawing water from navigable or non-navigable rivers. Running water, considered in itself, is a thing so public by its nature, that to have the right to make use of it, it is sufficient to have a road to reach it.

In France, the Roman laws and the ordinances of Philippe V, Philippe VI, and Charles V, had considered all rivers indistinctly as public. Louis XIV, out of consideration for the usurpations committed under the feudal regime, dared to class among the things that belonged to the State only those rivers that were navigable or floatable from their own depth, and without the hand of man having contributed thereto; he remained silent on all the others. The law of 22 December 1790, and the instruction of the National Assembly of the following 12 August, again placed all rivers, without distinction, in the rank of public things. The law of 22 November of the same year, which gave the definition of the public domain, and article 538 of the Civil Code, which reproduced this definition, have placed by name among the things that are dependencies of the public domain only navigable or floatable rivers. A distinction, born of the feudal regime, has therefore been introduced into the laws by means of which one had wished to destroy even the last vestiges of this detestable regime.

However, the nature of things has prevailed over a bad classification. No law, with the exception of that of 22 December 1790, declares in a general manner that all rivers are dependencies of the public domain; but a great number of legislative dispositions treat them as if they were, in effect, part of it; and no law states that they belong either to the proprietors of the riparian lands, or to the communes.

A riparian proprietor, far from being able to dispose, in the most absolute manner, of the river that borders or traverses his holding, can divert its water for his use only on the condition of returning it to its ordinary course; he can throw nothing into it that renders it harmful for the lower proprietors, or that is fit to destroy the fish; he can neither slow nor accelerate its course, in a manner as to harm the upper or lower holdings; he can establish no factory there, without having obtained the permission of the public authority, which takes care to determine the height at which the water must be kept; finally, he can take fish there, but this is only on the condition of conforming to the general rules established for the police of fishing; these advantages are assured to him only under the condition of contributing to the dredging of the river, in proportion to the interest he has in its being kept in good condition.

According to article 545 of the Civil Code, no one can be forced to cede his property, except for reasons of public utility, and by means of a just and prior indemnity. This disposition, extracted from the various constitutions that have governed France since 1791, is found, in other terms, in articles 8 and 9 of the Charter. The first provides that all properties are inviolable, without any exception for those that are called national, the law making no difference between them. The second adds that the State can require the sacrifice of a property for reasons of legally ascertained public interest, but with a prior indemnity.

If all rivers are dependencies of the public domain, and if the rights that riparian proprietors exercise on those that are not navigable exist only by tolerance and as compensation for the burdens imposed on them, it will follow that these rights can be suppressed, without other indemnity than the suppression of the burdens that accompany them. If, on the contrary, navigable or floatable rivers are the only dependencies of the public domain, and if all the others belong to the riparian proprietors, it will follow that these proprietors cannot be stripped of the rights they exercise there, except for reasons of legally ascertained public interest, and after a just and prior indemnity. It will be necessary, to render a river navigable or floatable, and to make it pass from the private domain into the public domain, to follow all the forms prescribed by the law of 7 July 1855 [sic], for expropriations for reasons of public utility.

But is that what happens in practice? When the government renders navigable a river that was not, does the law oblige it to pay the riparian proprietors an indemnity for each of the rights of which they are stripped? Does it oblige them to indemnify them for the right to establish factories and to form water intakes, rights that are formally taken from them? In no way: the prerogatives they enjoyed are abolished for the profit of the State, which discharges them from the obligation to contribute to the dredging, and which takes this burden upon itself. There is more; when the State authorizes a riparian proprietor to establish a factory on a non-navigable river, it is always with the clause that it may be suppressed without indemnity, if, subsequently, this river were rendered navigable. Is not this clause, which is likewise inserted in any authorization to establish a factory on a navigable river, if the interest of the public service should come to require its suppression, proof that non-navigable rivers belong to the public domain like the others?The riparian proprietors of a non-navigable river that the State makes fit for navigation are entitled to an indemnity only for the towpath they are required to provide, or for cases where it is formally granted to them. This indemnity is just, because a servitude is imposed on their properties that they do not naturally owe, the river not being naturally navigable, and because they experience a loss they ought not to have expected when acquiring these same holdings. It is even to be remarked that, in the calculation of this indemnity, the increased value that the riparian proprietors may acquire through navigation is taken into account. As for the right to make water intakes, and that of establishing mills, they are extinguished without indemnity, and no one complains of usurpation; certain proof that those who enjoy them are not considered and do not consider themselves as proprietors of the river on which these rights are exercised. The State could not thus seize, without indemnity, a pond that belonged to a private individual or a commune [^149].

Some jurisconsults claim, however, that, according to our laws, all non-navigable or non-floatable rivers belong to the proprietors whose holdings they border or traverse. One of them finds this attribution of property quite legitimate, and founded on the nature of things. "The bed of a watercourse," he says, "being a primitive dismemberment of the domain that this watercourse traverses, it must be considered as still forming part of it [^150]." This reasoning would be conclusive, if the author had taken the trouble to prove that the partition of the land into private domains preceded the existence of rivers; but as long as he has not established this historical fact, his argument will have little force [^151].

Another writer [^152] cites in support of the same thesis article 640 of the Civil Code, which declares that lower lands are subject, toward upper lands, to receive the waters that flow naturally from them without the hand of man having contributed thereto; and article 644 which authorizes proprietors to make use of the running water that borders or traverses their holdings.

The lower lands are subject toward those that are higher, to receive the waters that flow naturally from them, not by the dispositions of the Civil Code, but by the nature of things. Rivers, to make their way to the sea, did not wait for the permission of the authors of the Civil Code. Article 640 of this Code states a fact that Roman jurisconsults had long since proclaimed, and which existed before them. The recognition of this fact by the Roman laws did not prevent rivers from being public. It is, on the contrary, because this fact results from the nature of things, and because it is prior to any individual appropriation of lands, that rivers are public; when they began to flow, they invaded no one's fields.

The faculty that the Civil Code grants to riparian proprietors to make use of the watercourses that border or traverse their holdings, when these watercourses are neither navigable nor floatable, does not prove any more that they have the property of them. This faculty, as has already been seen, was granted to them by the Roman laws for navigable rivers as for those that were not; and yet both were public. The manner in which the Civil Code disposes with regard to non-navigable rivers, far from proving that they belong to the riparian proprietors, would rather prove the contrary. Each may do with the thing that belongs to him all that the laws or sound morals have not forbidden; but one may use a river only to the extent permitted by law. In the first case, the legislative power gives limits to the power that each has to dispose of the things that are his; it does not concede the right; it recognizes it and determines its bounds. In the second, on the contrary, it grants the use of a public thing, and all that it does not grant is refused. There it forbids, here it permits. When it is a matter of taking from a citizen, in the general interest, a property that the public authority had guaranteed to him, but which it had not given him, he must be previously indemnified. When it is only a matter of withdrawing a gratuitous and essentially conditional concession, it suffices to remit the charges under which it had been made. Now, this is what happens when a river, which the riparian owners are authorized to use, is made navigable.

The Conseil-d'État, in deciding, by its opinion of 30 pluviôse an 13 (19 February 1805), that the fishing of non-navigable rivers belonged to the riparian proprietors, and not to the communes, based itself, among several other motives, on the fact that the fishing of these rivers was part of the feudal rights, and that these rights had been abolished, not for the profit of the communes, but for the profit of the vassals. One could conclude from this that non-navigable rivers fell into the domain of the riparian proprietors, by the sole effect of the abolition of the feudal regime; but this consequence would be an error.

Feudal usurpations were suppressed for the profit of those whom the lords had dispossessed. A great number had been committed to the prejudice of private individuals, several to the prejudice of the communes, others to the prejudice of the State. The abolition of feudalism returned to each what belonged to him: the State, the communes, the private individuals, thus re-entered into their rights. The rivers were public before the feudal regime; they became so again and by full right, when this regime was abolished. The law of 22 December 1790, in classing them among public things, recognized what already existed. The opinion of the Conseil-d'État, moreover, rules only on the right of fishing; and it declares that this right ceases to exist for the profit of the riparian proprietors from the moment the river is made navigable.

The English, who have not yet shaken off the yoke of the doctrines born of the feudal regime, do not admit that it is labor or a long and peaceful possession that gave birth to territorial property; among them, there is no legitimate property but that which rests on a royal concession. The monarch being considered as the sole primitive and legitimate proprietor of the entire territory, was able to concede the rivers and streams, like the lands through which they flow. It is therefore natural that the great proprietors of England, who do, in effect, hold their vast domains from the munificence of the crown, have caused the theory to prevail that they are the masters of the streams or rivers that border or traverse their holdings.

But have the facts remained subservient to the theory? Have the populations that occupy the basins of these rivers or streams been stripped of the advantages they could derive from them? Can an English proprietor dispose of the river or stream that borders or traverses his holding, as of the land that he leaves in pasture or gives over to cultivation, according as it suits his interests? Can he throw into it objects that degrade it? can he build mills there, whatever the inconveniences that result for the neighbors or for navigation? can he prevent the public from making use of it for the transport of its foodstuffs or its merchandise, as he prevents passage through his farm or his park? could he, finally, establish tolls there as in the time of the feudal regime?

The riparian proprietors have so little the right to throw into the rivers that traverse or border their holdings, materials fit to obstruct their course, that they are held, on the contrary, to dredge them whenever they need it. They can make no work there capable of harming the upper or lower properties, or of hindering navigation. Finally, they cannot prevent anyone from using them gratuitously as a means of transport. He who took it into his head to prevent navigation or to establish a toll on a river that traverses his domains, would be promptly and severely repressed. The exclusive rights that a riparian proprietor enjoys on the rivers that border or traverse his lands, consist in that of taking fish there, and in that of employing the water for his profit, on the condition of not harming navigation, and of causing no damage to others. The rights of the public are therefore superior to his; they are also more extensive; for in a rich and commercial nation, the freedom of navigation has more importance than the fishing of rivers. It must even be remarked that the dredging of those that are navigable in fact, but which are not so in the legal sense, that is to say, by the ebb and flow of the sea, is at the charge of the proprietors who profit from the fishing, and not at the charge of the public, to which navigation profits.

The jurists, who are, in general, in England, the defenders of feudal doctrines, have found a means of reconciling these doctrines with the facts that the force of things and the power of civilization have brought about. The rivers, they say, belong to the persons whose lands they traverse or limit; these persons can dispose of them as they see fit, provided they cause no damage to others. But this property is subject to a servitude toward the public, a servitude that consists in providing a passage for navigation, and in maintaining it with care.

The question, reduced to these terms, has almost no more importance, because in itself, and abstracting from the memories it awakens, it is but a dispute of words. From the moment, in effect, that it is recognized that all citizens can legitimately enjoy all the advantages that the rivers and streams that traverse the national territory can have for them; and that, for their part, the riparian proprietors have no other prerogatives than those that can be usefully exercised only by them, the question of knowing by what names the rights of the ones and the others will be designated, is the final term of the old struggle of usurpation against right. In countries that are still placed under the influence of feudal mores and ideas, it is natural that the proprietors of lands designate the rights they exercise over the watercourses, under the name of property, and that they consider the rights of the public as a servitude that their property bears. In countries, on the contrary, that have not admitted or that have rejected the language and the doctrines of the feudal regime, the rivers and streams must be considered as public properties, and the rights of the proprietors of lands, as the use of a faculty whose exercise must be permitted as long as it is innocent, but which must cease as soon as the public interest requires it.

The English jurists and those of the United States consider, we say, as public the streams and rivers, only from the point where they discharge into the sea, up to that where the ebb ceases to be felt; the entire part situated above the point reached by the tide, is considered as belonging to the proprietors of the riparian holdings. The first part is called navigable, the second is called non-navigable, although, in fact, it serves for navigation; the public rights on the latter are considered only as a servitude established on private holdings.

But this charge, to which the so-called non-navigable rivers are subject, does not unite the essential conditions which, according to Roman law and according to our own laws, characterize servitudes. If it is imposed on a holding, it is not in the interest or for the service of another holding; the passage is not owed only to those who possess lands on the banks of the river or within the extent of the basin that contains it; it is owed to everyone indistinctly; the boatman who has, for his entire fortune, only his arms, his oars and his boat, can make use of it like the lord who possesses half a province. According to the principles of servitudes, the maintenance of the passage is at the charge of those to whom it is owed; the proprietor of the servient holding has only passive obligations. Here, it is quite the contrary; it is not the public to which the passage profits, that takes charge of the maintenance; it is the proprietors by whom it is owed; so that one can say that if they have the honors of property, it is the public that has the advantages. All this does not prevent the principle in itself from being false and vicious: there is always some danger, in legislation, to give to things a name that is not the one that suits them.

The most striking difference that exists between the English laws and the French laws, is that the former do not require, like the latter, that the riparian proprietors furnish to navigation a path for towage. One is all the more astonished by this difference, as commerce and navigation are more honored, and have infinitely more activity in Great Britain than among us. One is tempted at first to attribute it to the immense influence that the great proprietors of lands exercise in that country, and perhaps this cause is not entirely foreign to it. There are, however, some others that explain the difference that strikes us [^153].

Rivers are considered public only from the point where they discharge into the Ocean, up to the point to which the ebb of the sea rises. In this space, a towpath is not absolutely necessary, because the ships and boats ascend or descend with the tide. The coasts of England being, in general, not very high, and having numerous and deep indentations, the sea carries the ships almost to the center of the territory. On the other hand, the country not having a great extent, and being cut by mountains, the rivers have only a short space to traverse before arriving at the point to which the ebb brings the ships; most can be useful to navigation only by feeding the canals. The most considerable have become navigable above the point covered by the ebb, only by means of the works that have been executed on them; if then a towpath has been needed, its value has had to be paid to the riparian proprietors, as it would be paid among us, in similar circumstances. The physical state of the country suffices therefore to explain the differences that we remark between the English laws and our own.

But dispositions good for the rivers of a small island, like England, could not suit the rivers of a vast continent, like America. In admitting, in principle, that a river ceases to be public at the point at which the ebb of the sea stops, the government of the United States has gratuitously created difficulties for the future. If, from its origin, it had admitted the principle of the Roman laws and the French laws, and reserved a towpath on all rivers of some importance, this reservation, made at a time when the lands were almost without value, would have diminished by little the receipts of the public treasury. If, later, this path must be taken from cultivated lands, covered with a numerous population, one cannot dispense with granting to the riparian proprietors an indemnity proportional to the value of the lands that will be taken from them. Then one will see that it is easier to remain faithful to the principles that result from the nature of things than to return to them when one has once departed from them.

There is, between the French laws and the English laws, another difference that it is important to remark. The latter recognize for every person the right to fish in the part of the rivers that they declare public. The former want the fishing of the watercourses, which are dependencies of the public domain, to be leased out for the profit of the State. The disposition of the French laws is more conformable to the principles of a sound administration, than the disposition of the English laws. Whenever a thing belonging to the public can give a revenue, and the collection causes no damage, it is just that the public should profit from it. It must be added that fishing is more easily subjected to a sound regulation, when it is leased out, than when everyone can equally engage in it.

Having recognized that, by the nature of things, all rivers form part of the public domain, that their conservation is important to the entire population, and that those that exist in each basin form a complete system that one cannot break up without danger, it follows that they can be subjected to a good regime only insofar as there is unity in the laws and in the administration, as in the things that must be administered; this unity is however far from existing, either in France, or among the other nations.

One finds, in the voluminous collection of our laws, a multitude of scattered dispositions, made under different regimes, on streams and rivers; but these dispositions, which do not always agree among themselves, present no whole, and could not produce any great result, because they have no common tendency.The administrations are charged with watching over the conservation of rivers, and with preventing any enterprises from being undertaken on them that would be damaging to private individuals or to the public; but as the political division of the territory has no relation to its natural division, it is very difficult for this obligation to be exactly fulfilled. The works that are executed in some parts of a great basin often have only distant effects, whether in time or in distance; those who execute them, and those who suffer from them, are rarely placed under the same authority. A mayor can concern himself with what happens in his commune, a prefect in his department; but neither the one nor the other will take it upon himself to concern himself with what is done in communes or departments that are not subject to his jurisdiction.

The law of 30 floréal an X (20 May 1802), which created a navigation duty in the interest of the watercourses on which it would be collected, and the decree of 8 prairial of the following year, which divided the internal navigation of France into basins, whose limits were determined by the mountains or hills that shed their waters into the principal river, seemed to announce that great comprehensive views had finally been adopted; but these measures had almost no other results than to bring a little more money into the tax coffers.

The engineers placed in the navigation arrondissements did not have to cast their gaze on what was happening beyond the bed of the rivers subject to their jurisdiction; they were not even to concern themselves with those that were not navigable; finally, their purview was limited to giving advice to officials who had no interest in putting them into execution; and in France, no more than elsewhere, it is not common to find men who place their glory in executing what others have conceived.

The administrative arrondissements being, moreover, different from the navigation arrondissements, an engineer, to have his plans adopted, would have had to convince several prefects and several councils, often with opposing views and interests; no more would have been needed to cause the best designs to fail, if such designs had, in effect, existed, and if political circumstances had permitted them to be pursued with perseverance.

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Notes

[^147]: If I were to be objected that there are many great fortunes illegitimately acquired, I would answer that this itself is proof that all wealth is born of labor. Among the natives of New Holland, no one gets rich by monopolies, by extortions, or by confiscations, although lands are not lacking there. [^148]: See, in the regulation of Charles VI, of the month of February 1415, for the jurisdiction of the provost of the merchants and echevins of Paris, the dispositions relative to the customs and constitutions of the rivers (art. 679-698).—The dispositions of this regulation, which related only to the Seine and its tributaries, were reproduced in the ordinance on waters and forests of the month of August 1669. [^149]: Here is the condition that the administration is in the habit of inserting in the authorizations it grants to establish mills on non-navigable rivers: "It is an express condition that, at no time and under no pretext, may the petitioner or his assigns claim compensation for reason of work stoppage, or as a result of changes that the government might deem it advisable to make for the advantage of navigation, industry, or commerce, to the watercourse on which the mill is located. This compensation may not be demanded, even in the case where the demolition of the mill were to be ordered." — A. Daviel, Pratique des cours d'eau; Garnier, Régime des eaux. [^150]: Pratique des cours d'eau, by M. A. Daviel, p. 28 and 29 of the Preliminary Observations. [^151]: The reasoning I report here is, at bottom, the same as that of the preacher who excited his listeners to give thanks to divine Providence, because, in its inexhaustible goodness, it had deigned to make rivers pass through the great cities. The same writer cites, in support of his opinion, dispositions of the Capitularies that grant to riparian proprietors the same rights that Roman laws recognized for them. These dispositions therefore prove absolutely nothing in favor of the thesis he supports. [^152]: Régime, or Traité des rivières, by F. X. F. Garnier, 2nd part, p. 85-86. [^153]: In France, the obligation imposed on riparian properties to provide a towpath for navigation has existed since the most remote times. The regulation of Charles VI, of the month of February 1415, ascertains that at that time this path was owed since time immemorial.