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ness of the facts then known, and of those which have since corroborated them.

The first question occurring was, what system of What law. law was to be applied to them? On this there could be but one opinion. The laws which had governed Louisiana from it's first colonisation, that is to say, the laws of France, with some local modifications, were still in force when this question was generated by the sale of the Jesuits' property to B. Gravier and others. France had indeed, about the end of the preceding year 1762, by a secret convention, ceded Louisiana to Spain, to be delivered whenever Spain should be in readiness to receive it. But this was not announced to the inhabitants till the 21st of April, 1764, nor did Spain receive passession till the 17th of August, 1769. [9 Raynal, 222. 235.] In the mean time the French government and laws continued, the Jesuits' property was sold, and purchased on the faith of the existing laws; and according to these laws must the rights acquired by the purchaser, or left in the crown, be decided. Indeed in no case are the laws of a nation changed, of natural right, by their passage from one to another domination. The sqil, the inhabitants, their property, and the laws by which they are protected go together. Their laws are subject to be changed only in the case, and extent, which their new legislature shall will. The changes introduced by Spain, after 1769, were chiefly in the organisation of their government, and but little in the

Proclamation of O'Reilly.

principles of their jurisprudence. The instrument which some have understood as suppressing the French and substituting the Spanish code, is the proclamation of O'Reilly of November 25, 1769, two months after the actual delivery of the colony. [See appendix to documents communicated to Congress by the President, with his message of October 17, 1803.] The transfer of the country, however, had been announced to the people five years before. Now surely, during these five years French code. the *French laws must have continued entire, and of course after them, so far as not altered. And that this proclamation made specific only, and not general alterations, a brief examination of it's tenor will evince. It begins by charging the late council with a par

*22

ticipation in the insurrection which had taken place, and by declaring it indispensable to abolish that, and to establish the form of politic government and administration of justice prescribed by the wise laws of Spain. But a form of government may surely be changed, and the mass of the laws remain the same, as took place in our revolution. He proceeds then to establish that form of government, dependance and subordination, which should accord with the good of the service, and happiness of the colony. For this purpose he substitutes a Cabildo, in place of the ancient council, and instead of former analogous officers, he says there shall be Alferes, Alcaldes, Alguazils, Depositors, Regidors, a Scrivener, Procurator, Mayordomo, &c.; adopting thus the Spanish, instead of the French organisation of officers, for the administration of the laws. He changes the manner of proceedings in judicial trials, and of pronouncing judgments, according to a digest made by Unestia and Rey, by his order, until a general knolege of the Spanish language and more extensive information on the statutes themselves might be acquired; prescribes rules for instituting actions by parties of different denominations, the names and substance of the pleadings, rules for appearances, answers, replications, rejoinders, depositions, witnesses, exceptions, trials, judgments, appeals, executions, testaments, probates, advancements, and distributions: not changing the great outlines of the law, or the ratio decidendi generally; but merely the organisation of officers, and forms of their proceeding. He states also the criminal law, what it is in sundry cases of irreligion, treason, murder, theft, rape, adultery, and trespass, proclaiming mostly what was already law; lastly, he establishes the fees of officers, and with that closes the proclamation, without a word said about abolishing the French, and substituting the Spanish code of laws generally. As far then as this instrument makes any special changes, it's authority is acknoleged. But the very act of making special changes is a manifestation that a general one was not then intended. He did not mean by this instrument to change 'all and some.' One may indeed conjecture, from loose expressions in the instrument, that a more extensive change was in contemplation for some future time, when the inhabitants, as it says, should have acquired a general knolege of the Spanish

language. But until then expressly, and in the interim, the innovations it specifies are the only ones introduced. The *23 great system of law which *regulates property, which prescribes the rights of persons and things, and sanctions to every one the enjoyment of those rights, is left untouched, in full force and authority. If such a radical change were really meditated, it was never carried into execution; nor seems at any after time to have occupied seriously the attention of government. In the following year 1770, O'Reilly issued an additional ordinance respecting grants of lands; and Carondelet, in 1795, (26 years after possession of the colony, and 8 years only before it's transfer to us,) passed an ordinance of police, concerning bridges, roads, levees, slaves, coasters, travellers, arms, estrays, fishing and hunting; and these three acts seem to constitute the whole of the changes made in the established system of laws during the Spanish occupation of the country. Probably the Spanish authorities found, in the progress of their administration, that the difference between the French and Spanish codes, taken both from the same Roman original, would not justify disturbing the public mind, by a formal suppression of the one, and substitution of the other. Probably the officers themselves, not adepts in either, and partly French, and partly Spanish individuals, confounded them in practice as they found convenient; and hence the ill-defined ideas of what their laws were. But certainly when we appeal, as in the present case, to exact right, the French code is the only one sanctioned by regular authority; and the special changes before mentioned, of organization and police, having no relation to the beds and increments of rivers, that code is to give us the law of the present case. That code, like all those of middle and southern Europe, was originally feudal, [Encyclop. Method. Jurisprudence. Coutume. 400.] with some variations in the different provinces, formerly independent, of which the kingdom of France had been made up. But as circumstances changed, and civilization and commerce advanced, abundance of new cases and questions

Roman.

arose, for which the simple and unwritten laws of feudalism had made no provision. At the same time, they had at hand the legal system of a nation highly civilized, a system carried to a degree of conformity with natural reason attained by no other. The study of this system

foo was become the favourite 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 wherever he deems amendment necessary; on the general principle that 'leges posteriores priores abrogant. Subsequent 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.

'Les Ordonnances sont les vraies lois du royaume. Elles

*24

The Ordinances are the true laws of the kingdom. They con

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 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 interrogetur 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, as well judges, 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 favoured, 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,

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 raison; 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 considé-
rées 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.

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stitute 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 Mayoralty 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 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

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 pub. lic character, e. g. treaties, &c. and especially when those documents are not under our controul, 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.

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