« PreviousContinue »
ed, before the cities of Greece were founded; they have outlived the rise and fall of Tyre, Carthage, and Athens; and our posterity may still admire them, when most of the buildings now erecting by the present inhabitants of the globe, shall have ceased to exist.
The size of this work, and the vast number of plates it contains, render it too costly to be generally accessible. We know of no more than two copies, which have reached this country; to one of these, we have had an opportunity of referring. It owes its origin to the pride taken by Napoleon in his oriental exploits, and was supported chiefly by the patronage of his government. This patronage has been continued by the present reigning powers, who not only completed the work commenced under his reign, but have caused the publication of a second edition. It is sufficient, in order to give an idea of the vast labour which it has cost, to state, that the work commenced in Egypt, in 1798, has only been completed within the present year, and is, in its execution, as well calculated to exhibit the taste, the science, and the state of the graphic arts at the present day, as the monuments it delineates, are, to manifest the skill, the public spirit, and the vast power of the Pharaohs.
ART. III.-JURISPRUDENCE OF LOUISIANA.
1.-La Coutume de Paris. 2.-Digest of the Civil Laws now in force in the Territory
of Orleans. 1808. 3.- Las Siete Pantidas-Translated by L. M. LISAT and H.
CARLETON, Esquires. New-Orleans. 1820. 4.-Civil Code of Louisiana. 1824. 5.-Louisiana Term Reports. 15 vols.
Most of the states which compose this Union, even those which were formerly colonies of France and Spain, have retained or adopted the common law of England, as the basis of their municipal law. They have, from time to time, introduced such regulations and modifications, as were called for by their political organization, differing in particulars not very essential; but, in substance, it is the same system. There is however one great, and we may be permitted to say, eminent exception-one state, which, through every change of sovereignty, has uniformly and tenaciously adhered to the civil jurisprudence of its ancestors, originally from the continent of Europe. We mean the state of Louisiana. We speak only of its civil jurisprudence, bccause in criminal matters, the modes of proceeding, and the definition of offences, have been borrowed from the common law of England, and the criminal law of the continent is entirely exploded. Although these facts are generally known to our read. ers, few, we believe, have taken the pains to institute a comparison between the two systems, or to examine minutely, so striking an anomaly. We have therefore thought an inquiry into the origin, the changes, and present state of the legislation of Louisiana, not unworthy of the liberal and enlightened curiosity of the day. It must necessarily be condensed, and confined to those striking peculiarities which are unknown to laws of English origin, together with those modifications which have grown out of their new political relations with a powerful federal republic.
Nothing can be imagined more discordant and bisarre, than the jurisprudence of France, at the period of the colonization of Louisiana. The different provinces, though politically united, and forming one monarchy, were governed by laws differing in many essential particulars. In some of the southern provinces, the Roman law still retains its authority, and those were therefore styled Pays du droit écrit ; but the greater number had their local coutumes, and hence the designation of Pays coutumiers. Dis. tinguished jurists have numbered as many as one hundred and forty different customs; and it was facetiously observed by Voltaire, in the last century, that “Un homme qui voyage dans ce pays-ci change de Loi presque autant de fois qu'il change de Chevaux de Poste. Les mesures sont aussi differentes que les coutumes; de sorte que ce qui est vrai dans le Faubourg de Montmartre devient faux dans l'Abbaye de Saint Denis."
In their origin, they were local usages, which, by long habit and tacit consent, had acquired the force of unwritten law; and which the tribunals were directed to respect in the decision of causes, as early as the year 1248, by an ordinance of St. Louis. Subsequently, however, successive monarchs, from Charles VI. to Louis XII., caused them to be reduced to writing, in the form of local codes; and they were ever after considered as written law, although styled customary, to distinguish them from the Roman civil law, which was, par eminence, called the written law. The custom of Paris, which the colonists brought with them, as the law of the new colony, was first reduced to writing, by royal authority, in the year 1510, in the reign of Louis XII.; and was afterwards enlarged and amended in 1580. The Coutume de Paris is divided into sixteen titles, and subdivided into three hundred and sixty-two articles, and is justly referred to, as the prima legum cunabula of Louisiana. As such, we had prepared an abstract to lay before our readers, but we find that its length will prevent its insertion in the present article.
As a code, the Coutume de Paris is deficient in arrangement, but far from being contemptible, considering the age in which it originated. The parliament of Paris, as a court of judicature on points of doubtful construction, or in cases where no positive provision existed, was governed in its decisions by the maxims of the Roman law, which, even in those provinces where it was without legislative authority, still maintained its influence, and may be considered as the common law of France, when the Coutumes were silent.
The want of a uniform system of laws was long felt and deplored by the ablest jurists and statesmen before the Revolution, and many partial efforts were made to reform the existing legislation. The illustrious D'Aguesseau contributed three important ordinances; that of Donations, in 1731 ; of Testaments, in 1735; and that of Substitutions, in 1747. But these attempts to introduce the Roman law, or rather to reconcile it with the discordant customs of different provinces and towns, still left a singular medley of feudal custom and Roman jurisprudence. The laws of many of the provinces were as different from those of the capital, although resting on a common basis, as their native Patois from the chaste and polished dialect of the Court. The Revolution prostrated all these institutions. Out of their ruins, however, under the guidance of the master genius of the age, arose a sys. tem of laws, composed indeed of discordant elements, but admirably combined and adjusted ; the result of a great compromise between the adherents of customary and Roman jurisprudence. A code adapted to the complicated wants and engagements of an intelligent and active age ; a little selected from one custom, and a little from another, but cemented together by elements drawn from the inexhaustible quarry of Roman wisdom; rejecting the subtleties of the ancient schools; revealing in simple language the simple principles of right, the Tribonians of modern France, after consulting all parties; collating, weighing, and deliberating, as if they were legislating for a world and not a kingdom, produced that most splendid and durable monument of the age ; almost the only enduring conquest of the Revolution, and inscribed it with the name of that extraordinary man, under whose auspices, and with whose personal co-operation, it had been accomplished. The jealousy of the restored dynasty has blotted from the title-page of the code the name of Napoleon ; but if we might be permitted to anticipate the verdict of history, we would confidently predict, that this system of uniform and equitable laws will mark the epoch which gave it birth. The butcheries of the revolution; the rapid conquests of the republic; the mad scenes of the national convention ; the frenzy which marked the first burst of liberty in France, will be regarded hereafter as wonders, momentary in their effects on the condition of man. The glories of Austerlitz and Jena are already becoming dim, and the fragments of the Simplon may be hereafter sought for, as the ruins of the Appian way now are, a puzzle to antiquarians; but the Code Napoleon is destined to survive them all; to confer the most lasting and substantial blessings upon France, and to redeem the character of an era stained with so many crimes of political fanaticism and mad ambition.
Louisiana, though ceded to Spain by the treaty of 1762, continued under the actual government of France, until 1769, when possession was taken by Don Alexandro O'Reilly, who was invested with extraordinary powers by the court of Madrid. His entrance into the province was marked by the execution of some of its first citizens, while others were sent prisoners to the Moro Castle, in the island of Cuba. A total change of its political organization and system of jurisprudence soon followed. The proclamation of O'Reilly, which announced these changes, bears date the 25th November, 1769. After alleging the countenance of the council in the popular insurrection, in opposition to the change of government, the proclamation goes on to say : “For these reasons, and in order to prevent a recurrence of evils of such magnitude, it is indispensable to abolish the council, and to establish in its stead that form of political government, and administration of justice, prescribed by our wise laws, and by which all the dependencies of his Majesty in America have been maintained in perfect tranquillity and subordination.” This proclamation was accompanied by a set of instructions upon the modes of proceedings according to the Spanish law, drawn up by Don Manuel de Urustia, extremely imperfect, but intended as introductory to the body of the Spanish laws, which were from that period considered as having superseded the authority of French jurisprudence. The archives of Louisiana furnish no evidence of the extent of powers conferred by the court of Madrid on O'Reilly ; but it has been admitted on all hands, that from the date of his proclamation, the laws of Spain became the sole guide of the tribunals in their decisions. But the transition was hardly perceptible. The two systems were very similar in their general features, and sprang from a common origin.
In giving an historical sketch of the Spanish laws, we must necessarily be very succinct; and it does not enter into our plan to give an analysis of the various and voluminous codes and com. pilations which have appeared from time to time, and which form a vastly complicated system. The Fuero Viejo, the Fuero Juzgo, and the Fuero Real, were successively adopted in the earlier periods of Spanish history. Alphonso X., commonly called the wise, or the astronomer, felt the necessity of embodying in the form of a code those general maxims of equity, and rules of positive law, which were looked for in vain in the preceding codes. He sat about compiling from the writings of the fathers, and of the ancient sages, and from existing customs, a complete system. Under his auspices, the great body of Spanish law, entitled the Siete Partidas, was completed as early as 1263. This work may be regarded as the Pandects of Spain ; not less curious as a literary monument, than remarkable for the wisdom of many of its provisions, and infinitely superior to the cotemporary legislation of Europe. It must be remembered that the Roman law was not extensively taught at that period, and that Spain had been for centuries engaged in a struggle against the Moors, who had overrun the Peninsula. Alphonso was one of the first and most distinguished elèves of the University of Salamanca, which had been endowed and established by his father, and where he imbibed no contemptible tincture of the physical sciences, for which Spain was indebted to her Arabic conquerors. He was the author of the Alphonsine tables of Astronomy; and indeed such was his reputation as a philosopher and a monarch, that, although Spain was at that time unconnected with the politics of the continent, he was invited to become Emperor of Germany, at the time the choice fell upon Rodolph of Hapsburg. The Partidas were not formally and by royal authority promul. gated, until 1386, by Alphonso XI., the great grandson of the legislator, as appears by an ordinance of Ferdinand and Juana, in 1505, in which is set forth the tenor of the ordinance of Alphonso XI., of the above date. The Partidas, as a code, are defective in the arrangement of matters, but are divided, as its title imports, into seven parts, and each part subdivided into titles and laws. It would be difficult to say, from a perusal of the work, why it was divided into seven parts, in preference to any other number. Such a division is not suggested by any natural division of the subject matter, and appears altogether arbitrary. Some have supposed that it derived that name from the number of years devoted to its composition ; but it is more probable, and more consistent with the spirit of the age, to conjecture, that Alphonso, as well as Justinian, retained a certain respect for the par. ticular number, seven ; the latter having divided the fifty Books of the Pandects into seven parts, composed of unequal numbers of books, not arbitrarily, as he asserts in his preface, but with a reference to the virtues of that number. “Non perperam neque sine ratione, sed ad numerorum naturam et harmoniam respicientes.” But we look in vain for that natural and lucid arrangement of matter, suggested by the threefold objects of all municipal law, persons, things, and actions, which characterizes the institutes of Justinian.