reason attained by no other. The study of this system too was become the favorite of the age, and, offering ready and reasonable solutions of all the new cases presenting themselves, was recurred to by a common consent and practice; not indeed as laws, formally established by the legislator of the country, but as a RATIO SCRIPTA, the dictate, in all cases, of that sound reason which should constitute the law of every country. Over both of these systems, however, the occasional* edicts of the monarch are paramount, and amend and control their provisions whenever he deems amendment necessary; on the general principle that 'leges posteriores priores abrogant. sequent laws abrogate those which were prior. This composition of the French code is affirmed by all their authorities. One only of them shall be particularly cited, to wit, Ferriere Dict. de droit. Ordonnance.

24*

Sub

The following instances will give some idea of the steps by which the Roman gained on the Feudal laws. A law of Burgundy provided that 'Si quis post hoc barbarus vel testari voluerit, vel donare, aut Romanam consuetudinem, aut barbaricam, esse servandam, sciat.' 'If any barbarian subject hereafter shall desire to dispose by legacy or donation, let him know that either the Roman or barbarian law is to be observed.' And one of Lotharius II. of Germany, going still further, gives to every one an election of the system under which he chose to live. Volumus ut cunctus populus Romanus interrogatur quali lege vult vivere: ut tali lege, quali professi sunt vivere vivant : illisque denuntiatur, ut hoc unusquisque, tam judices, quam duces, vel reliquus populus sciat, quod si offensionem contra eandem legem fecerint, eidem legi, quâ profitentur vivere, subjaceant' 'We will that all the Roman people shall be asked by what law they wish to live: that they may live under such law as they profess to live by: and that it be published, that every one, judges, as well as generals, or the rest of the people, may know that if they commit offence against the said law, they shall be subject to the same law by which they profess to live. Eneye. 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.

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.

'Les Ordonnances sont les vraies

lois du royaume.
Elles font la
partie la plus générale et la plus
certaine de notre droit Français,
attendu qu'elles sont soutenues de
l'autorité aussi bien que de la rai-
son; au lieu que les loix Romaines
ne subsistent que par leur équité,
elles n'ont par elles-mêmes aucune
autorité, qu'autant qu'elles sont con-
sidérées comme une raison écrite,
du moins en pays coutumier; et à
l'égard du pays de droit écrit, les
loix Romaines n'y ont force de loi,
que parceque nos rois ont bien voulu
y consentir.

*25

The Ordinances are the true laws of the kingdom. They constitute the most general and certain part of our French law, inasmuch as they are supported by authority as well as reason; whereas the Roman laws stand on their equity alone, having of themselves no authority, but as they are considered as written reason, at least in the provinces of Customary law. And as to those of written law, the Roman laws are in force only because our kings have thought proper to consent to it.

This system of law was transferred to Louisiana, as is evinced by the charter of Louis XIV. to Crozat, bearing date the *14th of Sept. 1712. The VIIth article of that is in these words. Our edicts, ordinances and customs, and the usages of the Mayorality and Shreevalty of Paris, shall be observed for laws and customs in the said country of Louisiana.' The customary law of Paris seems to have been selected, because considered as the best digest, and that to which it was proposed to reduce the customary law of all the provinces. Enc. Meth. Jurispr. Coutume. 405. This is the first charter we know of which established the boundaries and laws of Louisiana. It

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.

says nothing of the Roman law; but that, having become incorporated, by usage, with the customs of Paris, and constituting, as a supplement, one system with them, seems to have been considered as of their body, and transferred with them to Louisiana.† In 1717, Crozat transferred his rights to the Compagnie d'Occident, at the head of which was the famous Law, 8. Raynal. 166. [edit. 1780.] which again in 1720, by union with others, became the Compagnie des Indes, who in 1731, surrendered the colony back to the king. 1. Valin, 20. But these various transfers from company to company, of the monopoly of their commerce, for that was the sum of what was granted them, and their final surrender to the king, could not affect the rights of the people, nor change the laws by which they were governed. When they returned to the immediate government of the king, their laws passed with them, and remained in full force until, and so far only as, subsequently altered by their legislator. That this was the sense of their government may be inferred from a clause in the edict creating the Compagnie des Indes Occidentales, art. 34.

26*

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 E. gland were originally adopted in most of these states, and still stand on no other ground.

'Seront les juges établis en tous les dits lieux tenus de juger suivant les lois et ordonnances du royaume, et les officiers de suivre et se conformer à la coutume de la Prevôté et vicomté de Paris, suivant la quelle les habitans pourront contracter, sans que l'on y puisse introduire aucune autre coutume, pour éviter la diversité. 1. Moreau de St. Mery, 100.

Alluvion.

"The judges established in all the said places shall be held to adjudge according to the laws and ordinances of the kingdom, and the officers to follow and conform themselves to the customs of the Prevoté and vicomté of Paris, according to which the inhabitants may contract, without that any other custom may be introduced, to avoid diversity.' 1. Moreau de St. Mery, 100.

This then is the system of law by which the legal character of the facts of the case is now to be tested: and the plaintiff and his counsel having imagined that, in the Roman branch of it, they had found a niche in which they could place the batture to great advantage, have availed themselves of it with no little dexterity, and by calling it habitually an alluvion, have given a general currency to the idea that it is really an alluvion: insomuch that even those who deny their inferences, have still suffered themselves carelessly to speak of it under that term. Were we, for a moment to indulge them in this misnomer, and to look at their claim as if really an alluvion one, the false would be found to avail them as little as the true name. The Roman law indeed says, 'quod per alluvionem agro tuo flumen adjecit, jure gentium, tibi adquiritur.' 'What the river adds to your field by alluvion, becomes yours by the law of nations. Institute. L. 1. tit. 1. §. 20. Dig. L. 41. tit. 1. §. 7. The same law, in like manner, gave to the adjacent proprietors, the sand bars, shoals, islands rising in the river, and even the bed of the river itself, as far as it was contracted or deserted. Inst. 2. 1. 22. and 2. 1. 23. But the established laws of France differed in all these cases.

'Par notre droit Français, dit Pothier, les alluvions qui se font sur le bord des fleuves, et des rivières

'By our French law, says Pothier, one of their most respected authorities, the alluvions formed on the

And Guyot, in the Répertoire Universel de Jurisprudence, a work also of authority and cited with approbation by the plaintiff and his counsel, [Liv. 21. Du Ponceau, 14.] under the word 'île,' says,