USA > Louisiana > Historical collections of Louisiana : embracing translations of many rare and valuable documents relating to the natural, civil and political history of that state > Part 2
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From that date to the sale of Louisiana to Jefferson, the papers are less numerous, and treat of circumstances more generally known. There are a few, however, even of this epoch, of much interest. Un- der the circumstances, I conclude it would most subserve the purposes · of our Historical Society to begin with a transcript of the papers where the publication on the part of the French Government ceases. Accordingly, I hope to send you during the ensuing season a digest, chronologically arranged, of all the papers in the different archives of the French Government referring to Louisiana, from the date of Iber- ville's landing in 1697, down to its final acquisition in 1803 by the United States. The labor of this composition has been great-much more than I could have achieved even with health by myself. I have been fortunate in securing the services of Mr. Margry, to whose mi- nute familiarity with the archives of the Government and the early history of our State must be ascribed any merit that the digest may be found to possess.
When I tell you that it fills a large quarto of 500 closely written pages, you will see how impossible the idea I first conceived of send- ing home certified copies of the documents themselves. Louisiana
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LOUISIANA HISTORICAL SOCIETY.
ought to have them. She owes it to herself to collect this proper patrimony of her sons, in the record of an early history abounding in vivid incident, and illustrated with a display of the noblest traits of man's nature. New York has set a good example in the large appro- priation that enabled our present Secretary of Legation, Mr. Brod- head, to pursue his researches for four years in France, England, and the Hague. He who would now write a history of that State must begin by complimenting the enlightened spirit that places all his materials in the hall of her Historical Society. Massachusetts two years since made a similar collection at the instance of Messrs. Sparks and Everett, whose personal examination of the different foreign ar- chives taught them the value of manuscripts, now fortunately within the reach of every student of Harvard. If the memoranda I send can assist in any way the Historical Society of Louisiana, in accomplish- ing the purpose of its institution, and in attracting attention to the interest of our carly history, I shall be gratified, and shall feel that I have acknowledged in some sort, the politeness of Gov. Johnson's note calling my attention to the subject.
With much regard, your friend, JOHN PERKINS. J. D. B. DE Bow, Esq.
0
The Louisiana Historical Society has yet scarcely more than passed its infancy. It will be for those who come after us to adorn and complete the edifice whose foundation we have but barely laid.
I annex a list of regular and honorary members, but few of whom have taken any active part in the business of the Society.
Your obedient servant, J. D. B. DE BOW, Secretary.
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MEMBERS
OF THE
HISTORICAL SOCIETY OF LOUISIANA.
Hon. H. A. Bullard, President, New Orleans.
J. D. B. De Bow, Esq., Secretary,
Hon. F. X. Martin, 66
Hon. Isaac Johnson,
Hon. Joseph Walker, 66
Hon. Solomon W. Downs, 66
HIon. Henry Johnson, 66
Hon. George Eustis,
Hon. Thomas Slidell, 66
Hon. Geo. Strawbridge, 66
IIon. C. Gayarré,
Hon. Charles Watts, 66
. Rev. Dr. F. L. Hawks,
Benj. F. French, Esq.
E. J. Forstall, E-q.
Miles Taylor, Esq.
Seth Lewis, Esq. 16
Professor C. J. Forshey,
A. M. Michel, Esq.
Bernard Marigny, Esq.
E. Mazureau, Esq.
Lucius Duncan, Esq.
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LIST OF MEMBERS.
Alexander Gordon, Esq.
New Orleans.
HIon. Seth Barton, Esq. Maunsel White, Esq. J. Nicholson, Esq. Sidney Johnson, Esq.
"
66
Hon. A. B. Roman,
Hon. Trasimond Lundry,
Hon. Isaac Preston,
66
Hon. P. A. Rost,
Hon. Henry Bry,
Monroe.
Hon. Pierre Soule,
New Orleans.
Hon. Henry Carleton,
David Randall, Esq.
Donaldsonville.
Lafayette Saunders, Esq.
Feliciana.
Thomas Beatty, Esq.
Thibodeaux.
Judge Butler,
'Feliciana.
John Dutton, Esq.
Plaquemines.
J. Winchester, Esq.
St. James.
Judge Jones,
Tammany.
G. Walterston, Esq.
Livingston.
Col. Nicholas,
Ascension.
Judge Guion,
La Fourche.
C. Morgan, Esq.
Point Coupée.
J. B. Carr, Esq.
Natchitoches.
Dr. R. H. Sibley,
Rapides.
Dr. W. Davidson,
Judge King,
St. Landry.
J. K. Elgee, Esq.
Rapides. Alabama.
Hon. B. F. Porter,
Samuel J. Peters, Esq.
- New Orleans.
Dr. W. Kennedy,
Dr. T. Clapp,
Dr. Wedderstrandt,
66
Dr. W. M. Carpenter,
Dr. A. B. Cenas,
Dr. F. Lebeau,
"
Dr. F. A. Jones,
"
Dr. Harrison, 66
Dr. W. B. Hart,
Dr. C. Luzenberg,
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LIST OF MEMBERS.
Dr. F. Axson,
New Orleans.
Dr. W. McCauley,
Dr. E. H. Barton,
Dr. J. L. Riddell,
Judge Deblieux, 66
Judge Leonard,
John R. Grimes, Esq.
Hon. R. II. Wilde,
66
Hon. T. H. McCaleb,
Judge Morphy,
Thomas J. Durant, Esq.
Judge Labranche,
HI. B. Cenas, Esq.
J. L. Sigur, Esq.
W. E. Elmore, Esq.
Professor Dimitry,
M. M. Cohen, Esq.
B. M. Norman, Esq.
E. A. Bradford, Esq.
General Planche,
Bishop Leonidas Polk,
Bishop Blanc,
Judge Canonge,
Martin Blache, Esq.
Edward Simon, Esq ..
J. Dunbar, Esq.
W. Micon, Esq.
Levi Pierce, Esq.
A. Moise, Esq.
66
Gustavus Schmidt, Esq.
C. Roselius, Esq.
A. Maybin, Esq.
R. Ogden, Esq.
W. Relf, Esq.
Charles Derbigny, Esq.
H. Bullard, Jr., Esq.
66
W. Walker, Esq.
L. Janin, Esq. 16
A. Hennen, Esq.
J. Perkins, Esq.
J. Winthrop, Esq. .
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· LIST OF MEMBERS.
15.16
HONORARY MEMBERS.
W. Gilmore Simms,
Joel R. Poinsett, Thomas Benton, Lewis Cass,
Henry Clay,
South Carolina.
Missouri. Michigan. Kentucky.
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A DISCOURSE
ON
THE LIFE, CHARACTER, AND WRITINGS
OF THE
HON. FRANCOIS XAVIER MARTIN, LL. D.
LATE SENIOR JUDGE OF THE SUPREME COURT, AND FIRST PRESIDENT OF THE HISTORICAL SOCIETY OF LOUISIANA.
BY
HENRY A. BULLARD,
ONE OF THE LATE COLLEAGUES OF THE DECEASED. 1
*
GENTLEMEN :-
It has been the usage of most polished nations, on the demise of men ·who had become eminent in any of the departments of public affairs, to set apart a short time to be devoted to the consideration of their incrits and their services. If they had deserved well of their country -if they had left their impress on the generation in which they flourished, it is proper that their memory should go down to posterity accompanied by the testimonials of their cotemporaries. This is less important in relation to the successful soldier who has fought the battles of his country, and the distinguished statesman who has skill- fully piloted the vessel of state, because history is almost exclusively devoted to recount their exploits and blazon their triumphs; but those whose fame is to be measured by their usefulness, during a long and noiseless career, in the more tranquil and less ambitious pur- suits of life, and especially in the magistracy, ought not to be per- mitted to pass off the stage without dwelling for a few moments upon their merits, and holding them up as examples worthy of being fol- lowed by the generation which is to succeed us.
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HISTORICAL COLLECTIONS OF LOUISIANA.
It was in compliance with this usage that the Bar of New Orleans, on the demise of François Xavier Martin, did me the honor, as the oldest of the late colleagues of the deceased, to request me to pro- nounce, on this occasion, a discourse upon his life and character. Of a man whom I have known for more than thirty years, nearly twelve of which were passed in the discharge of arduous duties by his side, it is impossible for me to speak in the set phrase of common-place eulo- gium-such language would be unsuited to the occasion-unworthy of him and of myself. I shall endeavor rather, by spreading before you what he has accomplished, and what he has written, to let him portray himself, and thereby show you what eminent qualities he possessed as a scholar, a jurist, and a man.
Judge Martin was born at Marseilles, in France, on the 17th of March, 1762, and descended from one of the most ancient and re- spectable families of Provence. His father was a merchant of high standing, a man of piety and extreme exactness in the management of his business. He was the third of a large number of children. His early education was strictly domestic, and his studies were con- ducted by a learned ecclesiastic, who acted at the same time as chap- lain of the family. Under his tuition he acquired a critical knowledge ' of the Latin language, and the elements of the English and Italian. As he was destined for commercial pursuits, his education, up to the age of seventeen, was such as to qualify him for that profession. So exact was his knowledge of Latin, and his recollection of some of the classics, that he was fond of reciting, at a very advanced age, long · passages from Horace, who was his favorite author.
Hle had one unele, who was connected with the French army in Canada, in the commissary department, about the time of the con- quest of that province by Great Britain; and another in Martinique, who had the supply of provisions from the French navy in those seas, and who had amassed a considerable fortune. He was a bachelor, and somewhat advanced in years. Young Martin, at the age of about seventeen or cighteen years, sailed for Martinique, with a view of joining his uncle, and going into business under his auspices, and by his assistance. He had not been long there, before his uncle con- cluded to return to France, where he died soon afterwards. He with- drew his capital from business, but left his nephew the means of commencing an establishment on his own account ; but through youth and inexperience, he was unsuccessful. How long he remained in the island, I have not been able to learn with much precision -- it is sup- posed about three or four years. Having been interested in commer-
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HON. FRANCOIS XAVIER MARTIN.
cial adventures to the Carolinas, where the person concerned with him had died, he embarked on board a schooner bound for North Carolina, in hopes of recovering something which was due to him. In this also he was unsuccessful. It was under such circumstances that the subject of this memoir found himself in Newbern, North Carolina, at the age of about twenty, destitute of resources, among strangers whose language he understood imperfectly, if he could speak it at all. But he did not suffer himself to despair; ashamed to return to his native place, he determined to employ to the best account the means which his early education had furnished him. He engaged in various pursuits, and among others the teaching of the French language. It occurred to him that something might be done in the printing busi- ness, of which he was at that time entirely ignorant. He offered himself to the only master printer then in Newbern, by the name of James Clark, a kind-hearted man, who gave him employment in his office. But finding that young Martin knew nothing of the practical business of a compositor, he made the remark to him. The excuse given by Martin was that the types are distributed in the boxes dit: ferently in France, and that it would take some time to get the run of them. The good easy man was patient with him, until he became a very expert compositor, and continued for some time in his employ- ment. In the mean time, he became more generally known, acquired a better knowledge of English, and wherever he was known was re- spected for his industry and diligence. He finally either bought out bis first employer, or with the assistance of friends purchased an old font of types and a press, and set up for himself as a printer. He published a newspaper, school books, almanacs, the journals and acts of the general assembly, and did other jobs of that kind, until his establishment became somewhat lucrative.
.
His connection with the press inspired him with the idea of de- voting himself to the study of the law. In this he was encouraged by several friends, but especially by one who was at the same time eminent in the profession, and possessed a liberal mind. That man was Abner Nash, who had become acquainted with him, discovered his capacity, his classical attainments, and his constancy in adverse fortune. It was under the auspices, and with the assistance of Mr. Nash, that he prosecuted his legal studies. Judge Martin always spoke of that gentleman as his early benefactor and friend.
He was of course first educated in the common law, and at that time acquired the accurate and extensive knowledge of its principles which marked his whole future career in his profession. He was a
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HISTORICAL COLLECTIONS OF LOUISIANA.
great admirer of those strong barriers which that system of laws throws around the personal rights of the citizen, against the invasions of arbitrary power-of its broad distinctions, the flexibility with which it adapts itself to the progressive changes of society, and the complex transactions of man. Hence he sometimes felt himself cramped by the restraints of a written code-and I remember that perhaps on more than one occasion, when reminded by counsel of that injunc- tion of the Louisiana code which forbids the judge disregard the words of a law under the pretext of pursuing its spirit, he replied, "Certainly never under the pretext of pursuing its spirit; but if, in the sincere desire to ascertain the will of the lawgiver, you discover that it would be violated by giving a literal interpretation to the words he has employed to express it, you are bound to give those words a reasonable interpretation, rather than that which corrodes the text and frustrates in truth the will of the legislator."
I have not been able to ascertain precisely at what period he was admitted to the bar. But it is certain that he engaged in practice to . a considerable extent, became extensively known as a sound and able lawyer, and one of the most distinguished sons of North Carolina. William Gatson, who at different periods of his life was remarkable for his eloquence as a member of Congress, and his ability and learn- ing as a judge of the Supreme Court of that State, was a student in his office.
During the earlier part of his career as a lawyer, he prepared and published a small treatise on the duties of sheriffs, and another relat- ing to the duties of justices of the peace, and a third upon executors and administrators. These works were useful compilations to that class of public officers. They were prepared by him partly to profit by the printing of them himself, but principally with a view of im- pressing more deeply on his own mind the principles and rules of those branches of the law. It was indeed his favorite mode of study, and one which he frequently recommended to young men to pursue.
At a later period, he was encouraged by the legislature of North Carolina to prepare a compilation of the British statutes which were in force in that State at the period of the revolution. It was a work of immense labor to examine critically the whole body of British statutory law, with a view of ascertaining which of them were appli- cable to that colony. I have often heard him express his surprise at finding how very few acts of Parliament existed which had any relation to the general principles of the English law, which appear to have been left almost exclusively to the courts of justice. Most of them
21
HON. FRANCOIS XAVIER MARTIN.
related to mere fiscal regulations, and there was not to be found a single enactment which related to the order of descent and the distribution of estates. The whole rested upon immemorial usage. We certainly did not inherit from our English ancestors our rage for excessive legislation.
It was while preparing this work that the idea occurred to him of collecting materials for the history of North Carolina, which was not, however, published until 1827, but may as well be mentioned in this connection. As early as 1791 his attention was turned to that sub- ject ; but having been employed in 1803, by the legislature of North Carolina, to publish. a revisal of the acts of the General Assembly, passed during the proprietary, royal, and state governments, he ac- quired in carrying out the views of the legislature such information as suggested to him the idea of collecting more ample material for such a history. Having been afterwards elected a member of the House of Commons, as the representative of the town of Newbern, he had access to the records of the State. These materials, so far as they related to transactions before the revolution, he had already ar- ranged before he came to Louisiana. The history was published in New Orleans, in two volumes, octavo. It relates to the history of the Carolinas before the revolution, preceded by a sketch of the discovery and first settlement of the other British colonies in North America. This work evinces great labor and research. It appears from the pre- face that the author had prepared ample notes and materials for a con- tinnation of his history through the war of the revolution, and bring- ing it down to the year 1810, when he left North Carolina. But the · continuation of the work never was written out.
In the year 1802, Judge Martin gave to the profession the first translation into English of the treatise of Pothier on Obligations. Its publication preceded by about four years the appearance of that. of Evans, in England, with ample and useful notes -- and its circula- tion, though extensive in the United States, was probably curtailed by that circumstance. While the publication of this work in English was a valuable addition to the library of the American bar, as it em- bodies the quintessence of the law of contracts and obligations in general, equally authoritative wherever the written reason of the Roman law is respected, the preparation of it for the press tended to imprint more deeply on the mind of the translator the principles of that branch of the civil law, and to direct his attention to the ori- gina! sources from which they flowed. He thus became thoroughly acquainted with that great work, the masterpiece of its author-and
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HISTORICAL COLLECTIONS OF LOUISIANA.
so completely master of the subject, that it appeared to have become a part of the texture of his own mind-and to the last he exhibited a surprising familiarity with the principles which it unfolds with equal simplicity and precision.
It was thus that François Xavier Martin, thrown in his youth among strangers, with whose language he was imperfectly acquainted, by unwearied diligence and rigid economy, uniting the study and practice of the law, with the superintendence of a printing press, not only emerged from poverty to an easy competency, but became the associate of the ablest men of his day in North Carolina, and ac- quired those stores of knowledge, both of the civil and the common law, which prepared him for eminence and usefulness in the new and more extended theatre to which he was soon afterwards called.
Those who have experienced in themselves that sinking of the heart, that utter solitude of soul, which is produced by being cast in youth, destitute and among strangers, without a profession-far from the en- dearments of home-without experience-without a guide-without a patron-chilled by the cold indifference of the surrounding crowd -even although those among whom he is thrown may be connected with him by the sympathies of a common language and a kindred origin, may form some conception of that firmness of purpose, that energy of character, which enabled the subject of this notice, under circumstances still more discouraging, to triumph over " the slings and arrows of outrageous fortune."
So favorably was Mr. Martin known at that time to the public, that as early as the winter of 1809, towards the close of Mr. Jeffer- son's administration, he was designated as a proper person to be ap- pointed one of the Judges of the Superior Court of the Territory of Mississippi. His commission was issued under the signature of Mr. Madison, on the 7th of March, 1809, three days after his inaugura- tion as President of the United States. He continued but a short time in that Territory, and on the death of Judge Thompson he was commissioned on the 21st of March, 1810, a Judge of the Superior Court of the Territory of Orleans, and shortly afterwards entered upon the duties of that office in this city.
Before I proceed to detail the labors of the deceased in Louisiana, let ns pause for a few moments and consider the condition of things here . at that time, and especially the state of our Jurisprudence.
Seven years before the period of which I am speaking, Louisiana was a Spanish Province ; governed by a system of laws written in a language understood by only a small part of the population, and which
23
HON. FRANCOIS XAVIER MARTIN.
had been forced upon the people at the point of the bayonet by O'Reilly, and which superseded the ancient French laws by which the Province had been previously governed. Upon the change of Govern- ment, the writ of habeas corpus, that great bulwark of persons! liberty, had been introduced, together with the system of proceedings in criminal cases, and the trial by Jury, according to the principles of the Common Law. In 1808 was promulgated the Digest of the Civil Laws, then in force in Louisiana, commonly called the Old Code. That compilation was little more than a mutilated copy of the Code Napoleon. But instead of abrogating all previous laws, and creating an entire system, as had been done in France by the Code Napoleon, superseding the discordant customs, ordinances and laws in the differ- ent departments, our code was considered as a declaratory law, repeal- ing such only as were repugnant to it, and leaving partially in force the voluminous codes of Spain. The Superior Court had already been organized for some years, and was composed of three Judges, any one of whom formed a quorum: and as the several Judges then sat separately in the different Districts, each could pronounce a judg- ment in the last resort. There was no means of establishing uni- formity of decision: no publicity had been given to the decisions, and the public was without any guarantee for their uniformity. The law was wholly unsettled, and in a state of chaos. The Court of Cas- sation in France had begun, it is true, to fix the interpretation of their Code, but the rules applicable to ours were obviously different in many respects, in consequence of the manifest difference in their creating and repealing clauses. It became necessary to study and compare the French and the Spanish Codes, and although the Roman lav never had, proprio rigore, any binding force here, yet in doubtful cau s, er in cases in which the positive law was silent, it might well En consulted as the best revelation of the principles of eternal justice, atel, ny it were, an anticipated commentary upon the Code.
Judge Martin felt at once the difficulty of the task before him, and Le d. : ormined to commence without delay the publication of Reports of estes decided by the Superior Court. He was induced to under- take that labor for the double purpose of giving publicity to the deci- Bione of the Court, in the nature of a compte rendu to the people, and thus guarding against misrepresentations or misapprehensions, at: i to insure to a certain extent uniformity of decision. The first volume appeared in the spring of 1811, and a second in 1813, bring- ing down the decisions of the Court from 1809 to the establishment of the State Government.
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HISTORICAL COLLECTIONS OF LOUISIANA.
At that period, a Supreme Court was created, having appellate jurisdiction only. That Court was at first composed of Judges Hall, Matthews and Derbigny, and Judge Martin was appointed the first Attorney-General of the State, on the 19th of February, 1813. He was an able criminal lawyer; and although it has been said he was not eloquent, yet he is admitted to have discharged the duties of that office with zeal and ability. After the resignation of Hall, he was appointed a Judge of the Supreme Court on the first of February, 1815. From that period he continued in office until the 18th of March, 1846-a period of more than thirty-one years. He entered on his eighty-fifth year on the very day he was superseded by the appointments under the new constitution.
The time at which Judge Martin was appointed to the Supreme Court, will ever form a memorable epoch in the history of Louisiana. A powerful invading army menaced the Capital : the citizens were in arms : Martial law had been proclaimed by the General in command, and by an act of the Legislature passed on the 18th of December previous, all judicial proceedings in civil cases were suspended until the first of May : no business was transacted at the January and Feb- ruary terms of the Court. In the mean time, the enemy had been repulsed and peace restored. Official information, however, had not yet reached here of the treaty of Ghent, and when the Court met early in March, martial law was still in force. A motion was then made that the Court should proceed to the trial of a particular case then pending. This motion was resisted on two grounds : first, that the city and its environs were, by general orders of the officer com- manding the Military District, put, on the 15th of December previous, under strict Martial Law ; and secondly, that by the third section of an act of Assembly, approved on the 18th of December, all proceed- ings in any civil case were suspended.
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