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ferson has conjured up to justify his oppression. There was not, I affirm, even any inconvenience to be apprehended; on the contrary, I am ready to prove, whenever an opportunity is given me, that the beauty of the city, and the health, convenience and commerce of its inhabitants would have been greatly encreased if I had completed my plan; and, in the mean time, I offer the certificates of the harbour-master, the wardens of the port, the commander of the naval force of the United States on this station, and all the masters of the vessels in port at the time it was taken; all these speak a language which shews the nature of the information on which the late president acted, and must convince the world, that even the pretence of public inconvenience was wanting, to justify the flagrant outrage.*But it seems the peace of the city could not be otherwise preserved. Mr. Jefferson says, page 20, that he was “urged by the repeated calls of the governor, who declared he could not be responsible for the peace or preservation of the place, by the tumults and confusion in which the city was held.” We must remark that we are not favoured here, as in the former page, with an extract of these repeated calls; it is given as the substance of sundry letters. I wish they had been produced, because I cannot well conceive that governor Claiborne, after having on the sixteenth of September declared that every thing was quiet, and when in fact every thing was so, should write, that he could not answer for the peace or even the preservation of the place—that he should talk of tumult and confusion, after he had told us, that every thing was in a state of tranquillity; and that he should urge the president to take violent measures, when his other letters, during the continuance of the tumult, only advise a revision of the sentence in some other tribunal. These dangers, however, (whether real or imaginary the reader may now judge), were sufficient in the president's opinion to justify the calling of a cabinet council, and we are now prepared to examine with due respect their important deliberations. We are first told: “They took such views of the whole case, as the state of their information then presented.” This I understand; but when Mr. Jefferson tells us in the next sentence that he will “dévelop them (that is the views) in all the fulness of the facts then known,” I confess I am utterly at a loss to discover his meaning. What we are to understand by “developing views in all the fulness of facts” either known or unknown, I confess passes my comprehension; but when he adds “and of those which have since corroborated them,” I begin to discover that this is a phrase purposely rendered obscure, that “seeing we might not perceive, and hearing we might not understand.”— The council had but very scanty materials for this important proceeding—It would not do therefore to give a simple sketch of their views, from the proofs then before them; four years were to be employed in fostering prejudices, in collecting calumnies, in making faithful translations and learned extracts, in procuring affidavits, and in all the other honourable means I have detected, in order to bolster up this weak, wicked, and unconstitutional measure. And they were to be introduced by an obscure phrase, which would lead cursory readers to believe that the cabinet had all those arguments, facts and laws before them, at the time of their deliberation. Let us give them the advantage of all that the diligence, ingenuity, and influence of the late president has heaped together, for their support, and see on what grounds the determination stands. The preliminary decision, that the question was to be determined by the French not by the Spanish laws, was erroneous; but, as both codes are equally favourable to my argument, I should spend no time in refuting it, if it were not to shew, that by a kind of fatality attached to this proceeding, it was conceived in false principles, aud has through every stage been marked with error. The principle that the laws of a ceded country do not change by the mere effect of the transfer, is true as to those laws which affect the inhabitants in their relations to each other; but is it so with respect to those fundamental principles which regulate the prerogative of the sovereign, and the right of the subject? It appears to me they must of necessity be changed by a cession;–that, for instance, which was made of the province of Louisiana, absolved the inhabitants from the duty of allegiance which they owed to France, and made them, by the very act, subjects of the crown of Spain. The same relation was created between them and their new sovereign, which subsisted between him and his other subjects. If that relation gave rights to the new sovereign which were not due to the old, the people were bound to submit; on the contrary, if the people to which they then became united had greater privileges, these were immediately communicated to them, and the new sovereign could not, without injuring the fundamental laws of the kingdom, attach to himself greater prerogatives in this, than he had in his other colonies; and even if the right of alluvion were inherent in the crown of France, it may reasonably be doubted whether that right passed by the transfer of the province to the king of Spain. If a province of France should have been, under the old monarchy, ceded to Spain, so as to be incorporated with that kingdom, I am inclined to think that the droit d’aubaine, and other local rights of the crown, would not by the very act of transfer be vested in the king of Spain.—I do not urge this argument as conclusive, but I think it has some weight, and deserves abstractedly more development than its importance in this inquiry will excuse. But whatever may be thought of these principles, there is andther more generally acknowledged, which applies directly to the case;—it is, that the ancient laws of a ceded country are in force, only until the new sovereign shall direct them to be changed.* This principle is not denied in the work to which I reply, but we are told that the sovereign never made such an expression of his will in Louisiana, and the very instruments, on which I might rely (even without other proof) to evince the change, are cited to shew that there was none. O'Reilly's proclamation in 1769, it is acknowledged, changes the form of government. This, it is said, might be done while the system of law remained; this is true, but what do we do with the remainder of the sentence? It is not only the form of political government (Jeff. p. 22) but the “administration of justice prescribed by the wise laws of Spain,” which are declared to be introduced. The proclamation details the new offices and the duties of the officers, and it is accompanied by instructions “for the instituting and carrying on civil and criminal suits, and rendering ordinary judgments conformably to the Recopi
* See Appendix, No. 3.
lacton, (or Digest of the laws) of Castile and of the Indies, for the government of the judges and parties, until the Spanish language shall be more familiar, and a more extensive knowledge of those laws shall be attained.” This proclamation and the instructions both refer to the laws of Spain as forming the code of the country, the first of these instruments by general words, the second more particularly, to the laws of Castile and the Indies, of which the instructions contain such an abstract as was required for daily use.—But neither the proclamation nor the instructions were necessary for the introduction of the Spanish laws. A code had been long prepared for the government of the Spanish colonies in the Indies, by which name they designated all their American possessions. It is called the “Recopilacion de las Leyes de las Indias.”* It introduces the law of Castile, those of the Partidas, and of Toro; that is to sav, the whole body of the laws of Spain, in all cases not provided for by the laws of the Indies,f and declares that the laws of that collection shall prevail in all the Spanish colonies, as well those then established, as those which might in future be discovered or established. The moment then, that Louisiana became a Spanish province, it was subjected de jure, to the system of laws I have described; and de facto, none other has had the slightest authority since the transfer. Whence therefore Mr. Jefferson has derived his idea that the French and Spanish laws were confounded in practice, I know not; certain it is, that in all their tribunals none but Spanish laws were cited by the advocates, or admitted by the judges; that the assessors by whose advice all decrees were rendered, were Spanish, not French lawyers; that in their official opinions, they referred only to the laws of Spain and the Indies, as their rule of decision; and that “the changes after 1769, were not, as is supposed, chiefly in the organization of the government, but that they also pervaded the whole system of jurisprudence.” It is admitted that the French laws were in force at the time of the sale of the Jesuits’ property; but it is not admitted that, as Mr. Jefferson alleges, the question “was then generated.” The generation of the question could not have taken place before the property existed. Now there is not the slightest evidence of any increase by alluvion, between the year 1763, the time of the sale of the Jesuits’ property, and 1769, the period of the transfer of the province. On the contrary, Mr. Laveau a witness for the city declares “that at the time of the sale of the Jesuits’ property, vessels came to the levee, opposite to Madame Delor's,” and that there was then no batture from thence to the city.” Whatever unanimity therefore might have reigned in the cabinet as to the laws they were to be governed by in their ex parte trial of my title, the impartial reader will, I think, perceive at least some doubts as to the correctness of this preliminary decision. These doubts will be increased, when he peruses the report of the attorney general, a member of that cabinet. With a candour which does him honour, he says “the facts from which alone the law can arise, are much controverted. These must be correctly ascertained before a satisfactory opinion can be formed,”—and again, “All the light afforded by the statements and papers on each side, was not deemed sufficient to ascertain with precision the facts. The law itself which should furnish the rule of determination, was also a matter of controversy; perhaps it might be considered not improperly as foreign laws, and in some degree at least the subject of proof.”—Now, if the attorney general in June 1809, thought the facts uncertain, and the law a matter of controversy even after all the light afforded by the statements and publications, it is a little singular, that Mr. Jefferson should tell the world there was but one opinion in the cabinet of which this very attorney general was a member in the year 1807. It is true, the attorney general adds in this report that he adheres to his former opinion. But what was that opinion? Merely, according to his own expression (Correspon. p. 8), a concurrence with Messrs. Derbigny and Gurley, provided the statement of facts furnished and officially laid before him was correct.” But it is evident from the parts of the report I have just quoted, that he considers the law of France among those facts, since after two years consideration of the subject, he treats it as a foreign law, and calls for further.
* Leyes de Indias, Vol. L. lib. 2. tit.1, laws 1st and 2d. # It establishes for the government of all those possessions a royal council called the Gouncil of the Indies.