Page images

introduced some new principles relative to testaments, and some contracts and modes of proceeding. The laws of Toro, eighty in number, were promulgated in 1505, by Ferdinand and Juana. They regulate, more particularly, the forms and solemnities of wills; prohibit wives from becoming security for their husbands; establish the quantum which a father may give to one of his children, over and above the others, or the mejora de tercio y quinto, and the rules of succession. These laws had been preced. ed by the Ordonamiento Real, which was subsequently incorporated in the great compilation of Spanish written law, in the reign of Philip II., entitled the Recopilacion de Castilla. This work was first published in 1567, and has been amended and enlarged at different periods. It was intended to clear up the confusion created by so many previous codes and ordinances ; contains few new provisions of much importance ; and leaves the authority of the Partidas generally unimpaired. It is divided into nine books, and subdivided into laws. The laws of Toro are embraced in it.

We do not pretend to have given a full history of the legislation of Spain ; much less are we disposed to enter into a minute analysis of its provisions. The Recopilacion is first in authority, whenever its provisions are repugnant to former enactments. But the Partidas, which have alone been partially translated by authority of the state, are always referred to as embodying the common law of Spain, unless changed or abrogated by the Recopilacion. So conclusive was its authority, that at one period it was a capital crime in Spain to cite the Roman law.

The cession of Louisiana to the United States necessarily introduced the trial by jury, in a modified form, and the writ of habeas corpus, which were unknown to the pre-existing laws. The legislative council of the territory of Orleans borrowed largely from the common law, but principally those forms of proceedings necessary to confer on the courts, organized under the authority of the Union, efficient powers. But in the adjudications of suits between individuals, the Spanish jurisprudence was the sole guide, except in commercial questions. Those laws were all written in a foreign language, and buried under an immense mass of useless matter; and although they were illustrated by numerous and able commentators, it is not extraordinary that the highest tribunal should have rendered some judgments, which, by subsequent researches, when the laws came to be better understood, were supposed to be erroneous. Feeling the necessity of some compilation of the existing laws, in English and French, the prevailing languages of the country, the legislative council, as early as 1806, by joint resolution, appointed two able jurisconsults to compile and prepare a civil code for the use of the territory. They were directed by the same resolution, “ to make the civil laws, by which this territory is now governed, the ground-work of said code.” With such ample and indefinite powers, the two jurisconsults prepared “the Digest of the Civil Laws now in force in the territory of Orleans, with alterations and amendments, adapted to the present system of government,” and which is mentioned at the head of this article. It was reported to the legislature in 1808, and adopted. The Act by which the digest or code was established, contains the following repealing clause ; “that whatever in the ancient civil laws of this territory, or in the territorial statutes, is contrary to the dispositions contained in said digest, or irreconcilable with them, is hereby repealed.” In the body of the code are some express repeals; but the clause above recited was entirely nugatory ; for by the most obvious rule of construction, if the dispositions of the new code were repugnant to the former law, it was tacitly repealed, and there was no necessity for such a declaration. It followed, therefore, that the code came to be considered principally as a declaratory law; and instead of introducing a new system to stand by itself, and to be construed by its own context, it was regarded as an imperfect index to the Spanish law; and the two were construed together as statutes in pari materiâ. Whenever the general principle, as applicable to a particular case, was the same in both systems, and the Spanish law recognised an exception not expressly retained by the code, nor even mentioned, the exception was considered as still existing. Prescriptions or limitations of actions not enumerated in the code, were declared still to exist by virtue of the ancient laws. The Spanish law was still considered the unwritten, as the code was the written law of Louisiana. The compilers adopted the arrangement of the Code Napoleon, and even copied entire titles, almost literally ; but the rules of construction applicable to the two codes were entirely different. The Code Napoleon superseded all the pre-existing laws, ordinances, and customs, leaving none in operation, except certain local usages, which continued to be respected, as aiding in the construction of certain contracts; such, for example, as the notices to be given to lessees, &c. The clause of the ordinance by which the Code Napoleon was introduced, which contains the express repeal of the previous laws, is as follows : “Qu'à compter du jour où ces lois sont executoires, les lois Romaines, les ordonnances, les coutumes générales ou locales, les Statuts, les Réglements, cessent d'avoir force de loi générale ou particulière dans les matières qui sont l'objet des dites lois composant le present code.” It became, therefore, a text entirely unique, to which the tribunals were bound to conform. And when it is considered that the whole code is composed of only two thousand two hundred and eighty-one articles, and that the judges are not to refuse to decide on account of the silence, obscurity, or insufficiency of the law, it must be admitted that many cases must necessarily arise, in which the courts will be guided by strong or more remote analogies, or by natural equity. Any misapplication of a particular article of the code, by inferior tribunals, is corrected by the court of cassation, which never inquires into the proper or improper construction of a contract, or into the merits of any case, as between man and man, but was organized for the purpose of maintaining the authority of the law against judicial usurpation or misrepresentation. “La demande en cassation,” says a modern commentator, “est un nouveau procès, bein moins entre les parties qui figuraient dans le premier, qu' entre l'arrêt et la loi.In Louisiana, on the contrary, the laws of Spain, except so far as they were expressly abolished, or tacitly abrogated, by a clear repugnance to the provisions of the code, or to the paramount authority of the federal constitution, still continued in full vigour. The reports of cases decided in the supreme court of the state, are full of illustrations of this position; and every year has evolved from the abyss some new provision of law, whose existence could not have been suspected, from the most careful perusal of the code by itself. The lawyers and the judges are constantly digging in this Herculaneum of legal antiquities. Their progress is marked by piles of learned rubbish, in which gleams an occasional speck of genuine ore; the ancient and the modern languages are brought into play ; and it would seem, from some of the briefs, that counsel had adopted the maxim of Figaro : “A Pédant, pédant et demi, qu'il s'avise de parler Latin, j'y suis Grec.”

In 1819, the legislature passed an Act to encourage and authorize a translation of such parts of the Partidas, as were considered to have the force of law in the state. The preamble to the Act, alleges as a motive, “the great importance to the citizens of the state, not only that copies of the laws should be multiplied, but that they should have them in a language more generally understood than the Spanish.” The translation has been faithfully executed, so far as we have compared it with the original, and are capable of judging of it. The publication in the United States, and in the English language, of a body of laws so celebrated as the Partidas, the boast of Spain, may be regarded as a singular event; and it contributed to throw light on the jurisprudence of the state, at once obscure and heterogeneous.

We have thus far confined ourselves chiefly to historical facts, and such general remarks, as suggested themselves in our progress. We are sensible, that we can give at best but an imperfect notion of the system, by any analysis compressed within the usual limits of an article for a literary journal. In pursuing our inquiry, we must suppose our readers more or less acquaint

ed with the prominent features of the Roman law. The Institutes of Justinian, as we have already observed, arrange into three classes, all the objects and purposes of municipal law: 1st. Persons: 2d. Things: and, 3d. Actions. The subject of things, or property, is considered however in a twofold view; 1st, as to the nature, kinds, and modifications of property; and, 2d, the modes of acquiring it—which form two books. "The code of Louisiana, omitting actions or remedies as the proper subject of a distinct code regulating the practice of the court, conforms to the method of the Code Napoleon, and is divided into three books. I. Of persons: II. Of things, and the different modifications of property : and, III. Of the different modes of acquiring the property of things.

I. Of persons. The word person, is used abstractedly, to indieate the relations sustained in society by an individual—his relative duties, obligations, and capacities, or incapacities—arising from sex, age, marriage, or fraternity, and the like; as the relation of parent and child, master and servant, guardian and ward. The code recognises some distinctions unknown to the common law; and to these, we shall chiefly confine our attention. Children, for example, are either legitimate, natural, or bastard. Natural children are those born of an illicit union, but between whose parents there existed at the time no legal impediment to marry; and who may be either lawfully acknowledged as natural children, and entitled in some cases, as will be explained hereafter, to receive by will, or even inherit, as heirs, from their natural parents; and who may be rendered to all intents legitimate, on the subsequent intermarriage of the parents, by a dictation to that effect, in the marriage contract. Bastards are those illegitimate children, between whose parents there existed a legal impediment, either by a previous marriage of one of them, affinity within the prohibited degrees, or colour. They are incapable of being acknowledged as natural children, and of receiving any thing but mere alimony.

Minority is divided into two periods. Females until the age of twelve, and males until the age of fourteen, are incapable of any contract, and their persons and estates are protected and administered by tutors. Above that age, they pass under the charge of curators ad bona. Tutors are either natural, such as the surviving father or mother-or testamentary, when the surviving father or mother appoints a tutor by last will--or dative, such as are appointed by the judge, in default of the former. The code requires also the appointment of an under tutor, whose duty it is to represent the minor, when his interests are adverse to those of the tutor. The mother, who, in her widowhood, is the natural tutrix of her minor children, forfeits that right, by contracting a second marriage, without taking the advice of a family meeting. Curators are appointed by the judge, who is bound to appoint the person indicated by the minor adult, if he possess the legal qualifications. Tutors represent, and act in the name of their pupils. Curators, on the contrary, only advise and assist the minor in his contracts and transactions; and the contracts of an adult minor for necessaries, even without the sanction of his curators, are binding on him. Minors over the age of puberty, must appear as parties in a court of justice, by curators, ad litem. They may be emancipated by their father, or, if they have no father, by their mother, after attaining the age of fifteen years, by a declaration before a notary public and two witnesses. They are emancipated, ipso facto, by marriage. The emancipated minor is, however, incapable of alienating his real estate, or of mortgaging it without the consent of the judge, and of a family meeting, in cases of absolute necessity, or certain advantage; nor can he validly bind himself beyond the amount of one year's revenue of his estate. Emancipated minors, engaged in commerce, are considered as of full age for every thing which concerns their trade.

The practice of adoption is abolished by the code. This part of the code provides for the interdiction of insane persons, the administration of their estatcs, by a curator to be appointed by the judge, and it provides also for the administration of the estates of absentees, who have left no authorized agent for that purpose.

Marriage by the code is, of course, considered only as a ci vil contract. The legal capacity to contract, commences at the age of fourteen for males, and twelve for females. Marriages may be declared null and void, at the suit of one of the parties, when there has been a mistake as to the person, or when the consent has been extorted by violence. No causes of divorce, a vinculo matrimonii, are specified in the code; but the marriage is dissolved, when, after an absence of ten years without news, the party thus deserted contracts a second marriage, on furnishing proof of the fact, and obtaining permission of the judge. Separation from bed and board, may be decreed for the following causes. The husband may claim it, in case of adultery on the part of his wife; the wife for adultery on the part of the husband, only when he maintains his concubine in their common dwelling. It may be reciprocally claimed for abandonment, excesses, cruel treatment, or outrages of such a nature as to render their living together insupportable—for public defamation of one against the other—for an attempt of one upon the life of the other. The wife is incapable of entering into any contract, without the husband's consent, or of appearing as party in a court of justice; but if his consent be abitrarily and unjustly withheld, the judge may give permission.

« PreviousContinue »