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 3
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It was upon this occasion that Judge Martin pronounced his first opinion as a Judge of the Supreme Court, and the judgment of that Court upon these two important questions of Constitutional Law. In answer to the bold and novel assertion that by the proclamation of martial law the officer who issued it had conferred upon himself, over all his fellow-citizens within the space he had described, a su- preme and unlimited authority, which being incompatible with the exercise of the functions of Civil Magistrates, necessarily suspends them, he declared that the exercise of an authority vested by law in that Court could not be suspended by any man. He then went into the question as to the power of the Executive, or any subordinate
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acting under his authority, to suspend the regular operation of the laws, and the writ of habeas corpus ; and he demonstrated by unan- swerable arguments, and by the highest authority both in the United States and in England, that it can only be done by Legislative autho- rity. He showed that in England, martial law could not be declared. to the extent contended for but by the authority of Parliament, and that even during the invasion of the Pretender, the Crown did not assume that power, but referred it to the decision of Parliament. The second point involved also an important question of constitutional law, and the application of that clause in the Constitution of the United States, which prohibits the State Legislatures from passing any law impairing the obligation of contracts. Upon this part of the case, he argued that the obligation of the contract referred to in the Constitution consisted in the necessity every man is under, in foro legis, to do or not to do a particular thing : that the Constitution spoke of the legal obligation rather than the moral, and that any law as- suming to interfere between the debtor and the creditor, and abso- lutely recalling the power which the creditor enjoys of compelling his debtor, in foro legis, to perform his contract, would be a law impairing its obligation : and that a law destroying or impairing the remedy is as unconstitutional as one affecting the right in the same manner. He goes on to show that a law procrastinating the creditor in his remedy, generally speaking, destroys a part of the right, on the prin- ple that he who pays later pays less-mimus solvit que serius solvit. But he continues : "It does not necessarily follow that an act called for by other circumstances than the apparent necessity of relieving debtors, one of the consequences of which is nevertheless to work some delay in the prosecution of suits, and consequently.to retard the recovery and payment of debts, must always be declared uncon- stitutional. In making a contract, each party must know that his legal remedy must depend on the laws of the country in which he may institute his suit. That the lex loci as to his remedy, even in the States that compose the Federal Union, is susceptible of juridical improrement. That the number of Courts of original and appellate jurisdiction, the nature and extent of the respective jurisdiction of these, the number, time and duration of their sessions, must from time to time, especially in new and growing settlements, be regulated by the Legislature, according to the wants and exigencies of the coun- try." He adds that in times of war, domestic commotion or epidemy, circumstances may imperiously demand for a while even a total sus- pension of judicial proceedings : that under such circumstances, the
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Courts might of their own authority be justified in adjourning, and that the Legislature might well declare the necessity of such an ad- journment, and, with a view to that order and regularity which uni- formity produces, fix a day on which judicial business might be resumed, without impairing the obligation of contracts. The act of the Legislature was therefore declared to be of binding force. +
These two great.principles, that the habeas corpus cannot be con- stitutionally suspended by any Executive or Military authority, and that the Legislative power is itself incapable of impairing the obliga- tion of private contracts, form the very basis of constitutional free- dom in a government of laws. Without the first there would be no guard against arbitrary imprisonment-no safety for personal liberty; and without the second, private rights would be at the mercy of arbi- trary legislation. The Courts, governed by the Constitution as the supreme and paramount law, are guardians of both.
The elaborate treatises and numerous adjudged cases published since that day have thrown but little additional light upon that part of Constitutional Law. These principles have been, it is believed, uniformly recognized as sound, and especially by very recent decisions of the Supreme Court of the United States. Indeed, it may be as- serted without hesitation that Judge Martin was an able constitutional lawyer, well acquainted with the complex machinery of our American Governments. It is a branch of public law, with which the Jurists of England and of the Continent are very imperfectly acquainted, because it is here alone that a great central power exists, round which numerous co-ordinate, thoughlimited sovereignties, revolve, in well de- fined orbits, and their centrifugal tendencies are controlled and coun- teracted by the insensible attraction of the great centre; and where the Judicial tribunals are invested with the power of pronouncing, in all cases assuming a Judicial form, upon the validity of acts of ordi- nary legislation emanating from either, and thus maintaining the har- mony and regularity of the whole system.
And here let me remark, once for all, that Judge Martin exhibited on that occasion, as well as every other, during his long Judicial career, the highest degree of moral courage and firmness of purpose. Nothing could deter him from the fearless expression of his opinion, without the slightest regard to persons. To him, it was quite imma- terial who the parties were ; as much so as it is to the Geometrician by what letters may happen to be designated the angle he is about to mcasure.
The first opinion pronounced by him affords also a fair sample of
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his style as a writer. It is true his style underwent a great change at a more advanced period of life-but at the time I am speaking of, it was plain and strong, and free from ambiguity, and much more copious than in after life. IIe came at last to pride himself upon the terseness of his style and his great brevity, and often repeated the injunction of the poet :
" Sæpe stylum vertas, iterum qua digna legi sint Scripturus -; "
. though he sometimes appears to have forgotten another caution of the same author :
" Brevis esse laboro, obscurus fio."
Judge Martin did not lose by removing to Louisiana his fondness for book-making. Besides other publications which I shall have oc- casion to mention, he published in 1816 his Digest of the Territorial and State Statutes up to that time, called " Martin's Digest," in two volumes, in French and English. This work was undertaken under a resolution of the General Assembly. It is mentioned mainly to show with what indefatigable industry he pursued his labors, besides those of the Bench, and his constant devotion to studies connected with his profession. His Digest was in constant use by the profes- sion for many years.
Hle continued to publish his Reports of the Decisions of the Su- preme Court until 1830, and, including the two small volumes con- taining the Decisions of the Superior Court, already mentioned, he produced twenty volumes, embracing the entire period from 1809 to 1830. During nearly all that time from 1810 he was one of the Judges, and performed his full share of the labor of the Court. The opinions prepared by him exhibit evidences of deep learning and ex- tensive research, while at the same time he superintended himself the printing and publication of his Reports.
But what is most surprising is that, while thus engaged in groping his way with his colleagues through the labyrinth of our earlier law, often bewildered by the cross-lights of conflicting codes and discordant commentators-while thus assiduously employed, and doing his full share in reducing it to something like a regular system --- he should have found time to collect, from various sources, both public and pri- vate, very ample materials for a History of Louisiana. His History was put to press in 1827, and narrates the principal events in the Province, Territory and State, from its first settlement down to the Treaty of Ghent. It contains many curious and interesting statistical
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tables, showing the comparative state of commerce, agriculture, and population, at different periods. Its pages exhibit to the young Louisianian, to use the language of the author in his preface, his re- mote progenitors-a handful of men, left on the sandy shore of Biloxi, harassed during the day by the inroads, disturbed at night by the yells, of hostile Indians-the incipient state of civil government un- der the authority of the Crown-the tardy progress of agriculture and trade under the monopolies of Crozat and the Western Company -the massacre of the French among the Natchez-the destruction of that nation and the subsequent war with the Chickasaws-the slow advances of the Colony after the Crown resumed its government -the cession to Spain, and the languishing state of his country while a Colony of that Kingdom-and may afterwards behold the dawn of liberty on his natal soil under the Territorial Government of the United States, and finally the rise of Louisiana to the rank of a sove- reign State. The subject is one full of romantic interest, and though not treated by our author in the most attractive form, yet the work is always referred to with entire confidence in the historical accuracy of its statements, and of the events which it records. It is a faithful repository of materials for a more extended and elaborate history. It is, however, upon the juridical labors of Judge Martin that his fame must hereafter rest. He became, at the same time, so exten- sively and favorably known as a jurist and a scholar, that he was elected in 1817, a member of the Academy of Marseilles, his native place. Some years afterwards the University of Nashville, in Ten- nessee, conferred on him the degree of Doctor of Laws ; and in 1841, the University of Cambridge, the oldest College in North America, honored him with the same degrec.
It is manifestly impossible to speak of the judicial labors of Judge Martin, without embracing a view of those of his colleagues, at least as low down as 1834, when Judge Porter retired. It was during that period the greatest changes took place in our positive Legislation, and in the development of our Jurisprudence. In 1825 the Code was amended, and among the amendments were embraced many of the principles already settled by the Supreme Court. About the same period, the Code of Practice was promulgated; and its first effect was to unsettle the practice, and to give rise to an infinite number of in- tricate and difficult questions ; and finally, in 1828, all the oll Civil Laws of the country were abrogated. From that period the Spanish Law ceased to have any force here, and it was no longer necessary to recur to it as the guide of decision, except in the few cases which
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arose before that period. The study of the Spanish law was no longer prosecuted, except as a matter of curiosity, and the adjudged cases, which turned upon some principle or exception of the Spanish law, could not always be safely followed under the new legislation of the State. The new Code introduced many important modifications, par- ticularly relating to restrictions upon testamentary dispositions- changing the rules of inheritance-providing something like a regular administration of estates, and in other respects profiting by the able commentaries which had already appeared in France upon the Napo- leon Code. The system was much more complete, though not en- tirely free from provisions-apparently contradictory-but it was certainly a great approximation to what Lord Bacon in one of his aphorisms regards as the best law-that which leaves the least room for the discretion to the Judge.
It cannot be expected that I should enter on this occasion much at large on the labors of the Court during the period I have mentioned. There is, however, one class of cases depending upon that branch of international Jurisprudence, called the conflict of laws, which engaged its attention more frequently than perhaps any other Court in the United States. This arose from our peculiar position. This great commercial emporium, having relations with most of the States of the Union, and most of the nations of Europe, which are governed by different laws, and many emigrants being married abroad and under other Regimes, and acquiring property here, innumerable ques- tions arose touching the rights of the parties, and the construction of contracts executed abroad, or entered into here, to have their effect ·Isewhere. These questions were often perplexing, and it is generally conceded that the decisions of that Court threw great light upon the subject, and satisfactorily solved most of the questions thus presented. Such at least is the opinion of Judge Story, as expressed by him in perhaps the most learned, though not the most satisfactory of his able Treatises upon different branches of the law -- I mean his Comment- aries on the Conflict of Laws. There is one opinion, however, de- livered by Judge Martin, upon which a single remark may not be amiss-I allade to the case of Humphreys & Dupau. The question was whether a promissory note, made here and payable in New York, twaring a rate of interest not permitted by the laws of New York, was valid or usurious. The Judge put forth on that occasion all his learning, ingenuity, and even subtlety, to show that the validity of the contract, though to be executed in New York, was to be tested by the laws of Louisiana. The decision did not escape the censure of
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Judge Story, who, in his first edition of his Conflict of Laws, com- ments on it somewhat at length, and endeavors to show that it is erroneous in itself, and even unsupported by the authorities cited in support of it. Judge Martin never possessed any improper obstinacy or pride of opinion ; on the contrary, he was always open to convic- tion, and often yielded his first conclusions to the force of argument and authority. But on that occasion he was tenacious of his opinion -so much so that when he visited the North some years afterwards, he repaired to Cambridge for the purpose principally of discussing with his critic the doctrines maintained by him in the case above al- luded to. He thought he had on the way enlisted Chancellor Kent as an ally in the controversy; whether it was so is questionable. He, however, repaired to Cambridge, and a long discussion ensued. As usual among lawyers, cach maintained his ground, and each was con- firmed in his opinion by his own arguments. In the next edition of the Conflict of Laws, the learned author returns to the charge, and combats, at much greater length, the soundness of that decision. Under such circumstances, it may well be doubted, to say the least of it, but it will depend on others whether it shall be ultimately overruled.
" Non nostrum est tantas componere lites."
Not only was Judge Martin aided in moulding into form and sym- metry our system of Jurisprudence, by the quick perception of what is just, and the instinctive sense of equity of Mathews, and the more ardent industry and extensive research and crudition of Porter, and previously by the unpretending but extensive learning of Derbigny, but the period between the organization of the Territorial Govern- ment and the repeal of the Spanish Law was the classical age of the Bar of Louisiana. The Court was assisted in its researches, and en- lightened in its path, by the various learning and elegant scholarship, and profound knowledge of different systems of Jurisprudence of Livingston and Brown, Workman and Moreau Lisbet, and Duncan, and numerous others. It does not become me to speak of the sur- vivors of that distinguished corps. They form the living and bril- liant link which connects that generation of lawyers with the present. It was then the source of the Roman, Spanish, and French laws were extensively explored, and a taste for comparative Jurisprudence was created for the first time in the United States. The principles of the common, the customary, and the Roman laws were invoked together, and placed in juxtaposition. The illustrious writers on
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Jurisprudence of the 16th century in France, Spain, Italy, and Ger- many were consulted and compared. The most antiquated of the Gothic Codes were studied, not as monuments of literary curiosity, but as fragments of preexisting systems of human laws, originating either with the Romans or their barbarian conquerors. The whole of these various and often discordant materials were fused into one mass, - and the Court left to select such principles as appeared most consonant with the general scope and enactments of the Codes. Whoever has read the first twenty-five volumes of our Reports cannot fail to have observed what vast stores of legal erudition were brought to light in the discussion of leading cases, and how much the range has been narrowed since our jurisprudence has become better settled, under the more full and explicit text of the new Code.
It is thus we have witnessed the formation, even its process of crystallization, as it were, of the existing Jurisprudence of Louisiana .*
. The jurisprudence of Louisiana is a mixture of the Roman, French, and Spanish law, tinctured with no inconsiderable portion of the common law of England, as understood and expounded in the sister States of the Union, espe- cially in criminal and commercial matters. These different elements of law are, however, blended in so confused a manner, that it is often extremely difficult to trace the lines of demarcation, or to determine what the law is on any given subject.
When the province of Louisiana was transferred to the United States, the colonial laws of Spain did, at least to a certain extent, govern the country, al- though in point of fact, beyond the precincts of the capital, the military posts scattered far apart over its immense territory, and the settlements contiguous to and dependent on them, there were neither judges, nor any regular adminis- tration of justice.
The indolent, arbitrary, and yet paternal government of Spain felt really lit- tle interest in the prosperity of the colony, from which it derived no revenue, and which it had acquired and preserved, rather with a view of debarring all foreign access to New Spain, than from any desire of enriching itself by the productions of the soil, or to profit by the exhaustless resources of the country, which the industry and enterprise of its present possessors have so successfully explored. Spain, nevertheless, with its habitual love of display, had established a colonial government, surrounded with the insignia of royalty, and having an Administrative hierarchy dependent on it, which, though of little practical utility, and attended with much useless expense, still gave to the whole a semblance of power and regularity, which was sufficient, under ordinary circumstances, to in- spire respect on the part of the colonists.
When the United States had acquired possession of Louisiana, this form of government necessarily disappeared, and the new one introduced was framed with the simplicity and economy suited to republican habits and institutions.
Changes in the legislation, as well as in the administration of the laws of the country, became of course indispensable; but they were made with great
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Its ingredients are derived from various sources, and after being fil- tered through numerous codes, meet in one harmonious mass. The
caution, and care was taken neither to shock received opinions, nor to change abruptly institutions which had the sanction of long usage, and to which the inhabitants had become attached. Notwithstanding all these precautions, murmurs and discontents were often heard shortly after the cession of the colony, which the firm and coneiliating conduct of Congress and of Mr. Jefferson soon succeeded in appeasing, and which a few years of increasing prosperity wholly effaced.
In the meantime, the territory of Orleans, was severed from the rest of the ancient French colony of Louisiana, and erected into a distinct portion of the Union, the executive department of which was under the direction of a governor, the legislative in the hands of a council, and the judiciary under the direction of three judges, elected every four years, and certain inferior magistrates.
The highest court of judicature, called the Superior Court of the territory of Orieans, was composed of three judges, of which one constituted a quorum, and was invested with original and appellate jurisdiction in criminal and civil causes.
The criminal law, which had governed Louisiana prior to its transfer, was entirely abolished, and in its place were substituted certain penal statutes pro- viding for the punishment of offences, which they did not define, but left the definitions to be sought for at common law, in reference to which all future criminal proceedings were to be conducted.
Civil suits were brought by petition, and the practice was simple.
In relation to the civil jurisprudence of the country, the necessity was imme- diately felt of reducing it to some sort of order, to enable those who had been appointed to govern, as well as to judge, to know what it was, a fact of which, .at the time of their appointment, they were profoundly ignorant. The legis- . lative council, having made a vain attempt to " procure a civil and criminal code for the " territory," to use the language of Judge Martin, the first territorial legislature appointed, in the year 1806, Messrs. James Brown and Moreau Lis- let, two members of the bar, to prepare a digest of the laws in force in the ter- ritory. These gentlemen, having finished the task imposed on them in 18OS, reported " a Digest of the civil laws now in force in the Territory of Orleans, with alterations and amendments, adapted to the present form of government," which was adopted by the Legislature, and constitutes what is at present called the old Civil Code.
The gentlemen thus appointed to prepare a digest of the laws in force in Louisiana, instead of looking to the Spanish colonial law, and consulting exchi- sively the Partidas and the Recopilacion de las Indias, &c., as they surely would have done had the Spanish law alone been in force, transcribed literally, and incorporated into their Digest large portions of the projet of the Code Napoleon. The reasons assigned for this by Judge Martin is, that no copy of the Code Napo- leon, although promulgated in 1804, had as yet reached New Orleans. The same learned, and we must add, accurate writer, in all which concerns cotem- porancons events, speaks of this conduct on the part of the compilers of the Digest as praiseworthy, adding that, "although the project is necessarily much
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protection of wives, incautiously engaged for the contracts of their husbands, rests upon a Roman Senatus Consultum-their ultimate rights in the property acquired during the marriage, upon the cus- toms of the erratic tribes that overrun Gaul, and were carried by the Visigoths across the Pyrences. The wisdom of Alphonso is found infused into many of the institutions which owe their origin to Al- - fred the Great. The common law has paid back a part of what it had borrowed from the Roman Jurisprudence. The commercial law, standing out almost independently of the Code, rests in a great mea-
more imperfect than the Code, it was far superior to anything that any two in- dividuals could have produced early enough to answer the expectations of those who employed them."
Judge Martin says -- " The Fuero Viejo, Fucro Juego, Partidas, Recopilaciones, Leyes de las Indias, Autos Acordados, and Royal Schedules remained part of the written law of the territory, when not repealed expressly, or by a necessary implication." And he adds :--
" Of these musty laws the copies were extremely rare; a complete collection of them was in the hands of no one, and of very many of them not a single copy existed in the province."
" To explain them, Spanish commentators were consulted, and the Corpus Juris Civilis, and its own commentators were resorted to, and to eke out any deficiency, the lawyers, who came from France or Hispaniola, read Pothier D'. iguesseau, Dumoulin," &c.
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