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 4
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The result of the labors of Messrs. Brown and Moreau Lislet was a Digest, containing upwards of 500 pages, printed in English and French, and divided · into three books, of which the first treats of persons; the second of things or estates ; and the third of the different manner of acquiring the property of things. Each book is subdivided into titles, and cach title into chapters and articles. This Digest is the groundwork of the Civil Code actually in force in Louisiana, from which it does not differ very essentially.
Louisiana having become a State in 1812, organized in 1813 a Supreme Court, composed of three judges, which, in conformity with the 2d section of the 4th article of the Constitution of the State, had "appellate jurisdiction only, which jurudution shall extend to all civil cases, when the matter in dispute shall exceed the rum of the: laundred dollars." It is from this period that the jurisprudence of the Sitte began to assume some definite form, and to extend itself so as to em- brare the numerous controversies which soon arose among an intelligent, com- mercinl, ami litigious population.
The Supreme Court thus formed and constituted, had most arduous and dif- frukt duties to perform-duties which required, besides the patience, learning and nategrey always requisite to discharge the functions of a judge, incessant and laborious researches into the ancient jurisprudence of Rome, France and Spain, joined to a thorough knowledge of constitutional law, and an intimate acquaint- atice with the habits and wants of the people, on whom the decisions were to vperte.
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HISTORICAL COLLECTIONS OF LOUISIANA.
sure upon the usages of commercial States, but more especially of the United States and Great Britain, but slightly modified by positive local legislation. The whole body of our law thus forms a system, most admired by those who understand it best, and who can trace back its principles to the sources from which they originally flowed. Of the spring-heads of our law it may be said, as it has been of the waters of Castalia :
"There shallow drafts intoxicate the brain, But drinking deeply sobers us again."
If I might be allowed to enlarge still further upon this interesting topic, I would say that the same process of the formations of laws has been going on in all ages, and in every region within the range of history. Conquest, and commerce, and the migration and intermin- gling of races have everywhere brought about changes of laws. The oracular obscurities of the twelve tables were brought by the Decem- virs from Greece. At a later period, the same laws, developed and improved, were disseminated everywhere by the victorious legions of the Republic. They became mingled with local usages, which were respected by the conquerors. The migratory Germanic tribes carried with them their customs, which acquired the force of laws-and hence many of the different customs and fueros which prevailed in France and in Spain. The Norman conquest introduced into England many of the customs of that province, and the law itself was administered by Normans in Norman French. Hence we may trace to the cus- . toms of Normandy the widow's third, and other peculiarities of the English Law. The Military Feudality of the middle ages upset the whole system of land titles and tenures, and established that relation of lord and vassal, a fruitful source of innumerable laws and customs. In Rome, not only the edicts of the Prætor often modified the exist- ing laws, but the wildest decrees of the plebeian order were respected, even under the reign of the Caesars. The Saracen conquest of Spain left indelible impressions on the laws and institutions of the peninsula, and the Alcalde of the present day derives his name from and ever- cises similar functions to those of the Cadis of Bagdad. Even among ourselves, local usages, and the usages of trade are referred to in order to aid in the construction of local contracts. Law is not, then, always the solemn expression of Legislative will. The whole doctrine of Bills of Exchange originated in, and is based upon, the customs of merchants, and the Maritime Law upon the practice of States and Towns engaged in navigation and trade. The customs of Paris be-
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HON. FRANCOIS XAVIER MARTIN.
came the law of Louisiana by the charter of Crozat, and were swept away in their turn by the ordinance of O'Reilly. Indeed, the inter- nal history of the law-that is to say, a history of its different ele- ments, tracing them from their origin through the successive and often insensible modifications to their amalgamation as they are now found, combined and harmonizing together-such an analysis, I say, consti -. tuting the chemistry of legal science, would require almost endless research and labor. The same process of fusion and diffusion is still going on under the auspices of the great principle of the comity of nations. The able and learned works upon most of the branches of Jurisprudence by Story and Kent, tend to demonstrate to what ex- tent the Roman is blended with the common law, and to what extent both have been improved by the mutual infusion of principles. Whenever the municipal law has not expressly provided for a parti- cular case, a principle in itself reasonable is sometimes adopted from a foreign system by the tribunals, and thus becomes at last an element of our own Jurisprudence. The whole law of Evidence, with the exception of a few elementary principles, is borrowed from the con- mon law. The practice of the Federal tribunals, professing to be governed by State laws, threatens us with alarming innovations, by introducing among us the discretion of a Master in Chancery, to de- cide upon important interests, and by their forms of execution menacing the overthrow, in favor of foreign creditors, of our equita- ble system of distribution of a debtor's effects, and making his pro- perty anything but the common pledge of his creditors. How far such innovations can be tolerated-it is not for me to say.
. I have entered into these details principally with a view of enabling you to form a more just estimate of the intricacy of the subject, and of the great labor and research required by the Court in the adminis- tration of justice under laws so unsettled, and of such various origin and discordant materials, and especially to fix the just value of the services of Judge Martin, who during that entire period, and even as late as 1846, continued to labor with unmitigated zeal and industry, combining all the learning required for such a task with a constant devotion to public duties.
He almost always enjoyed a vigorous health, maintained by great temperance and daily exercise. His temperance was indeed remark- able. Though a native of the country of the vine, he never had tasted wine, as he has often assured me, until approaching the age of sixty, and then in great moderation, and never in his whole life had he tasted ardent spirits of any kind. Being a bachelor, he was un-
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HISTORICAL COLLECTIONS OF LOUISIANA.
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disturbed by domestic cares and duties. All the powers of his mind were devoted to the law, rather as a profound thinker than a great reader. Ile investigated particular subjects deeply, rather than at- tempting to keep up by regular reading with the legal erudition of the day. He rarely indulged even in a momentary flirtation with the Muses, and I have never heard him speak of any other poets than Virgil, Horace, and Boileau. With works of imagination bis ac- quaintance was extremely limited, and he never enjoyed the romantic literature of the age, though cotemporary with Sir Walter Scott, and the great writers of the French school. The law had no such rival in his affections, and all the rays of a vigorous intellect were con- verged to one focus. He enjoyed at the same time a constant serenity of mind, and possessed an equanimity at all times, and under all cir- cumstances, most remarkable. He was never querulous nor petulant, and even in the ardor of debate in consultation with his colleagues he possessed the most perfect self-control, and never became angry or impatient. It was perhaps on such occasions that he displayed to the greatest advantage all the vigor and acuteness of his mind, and the resources of his learning. Those who have contended with him best know how expert and powerful a wrestler he was-and yet he often detected the fallacy of his own reasoning, and convinced himself that he had been originally wrong. His great peculiarity was in pushing first principles to their most remote, ultimate consequences, let them end where they might. Ilis method of reasoning was sometimes emi- nently Socratic, and it was necessary in discussions with him to be extremely cautious how you admitted his premises. If you answered unguardedly a series of questions affirming the remote principle from which he started, you ran the risk of finding yourself involved at last in a mesh of sophisms, and convicted on your own confessions. It often happened that he would return the next day after a protracted discussion, and say, " Well, I have consulted my pillow on that ques- tion, and after all I believe I was wrong."
Judge Martin was an agreeable companion. His conversation was always amusing and entertaining. He was uniformly calin and quies- cent, and never querulous or garrulous, notwithstanding his very ad- vanced age and its increasing infirmities. Ile was sometimes facetious, and many of you probably remember the case in which he spoke of the violent proceedings of a mob, to tear down a house in order to get rid of the obnoxious tenants, as the service of the frontier writ of cjectment. Never disposed to be censorious, he was, when the occa- sion required it, inexorable in his denunciation of the fraudulent con-
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HON. FRANCOIS XAVIER MARTIN.
duct of parties litigant before the Court, exposing their turpitude to publie censure with an unsparing severity. This he could do with great propriety and consistency, for he felt the full force of, and him- self acted up to the great precepts of the law-" honesté vivere"- " alterum non lædere"-" et suum cuique tribuere."
Judge Martin's general health continued in a great measure unim- paired to a good old age. He rarely lost a single day in his attend- ance at Court, or at the stated times for consultation. But his eye- sight began to fail many years ago, and as early as 1836 he became so blind as to be no longer capable of writing his opinions, and from that period he dictated to an amanuensis. But he bore this great privation with remarkable fortitude, and it did not seem to disturb the habitual serenity and cheerfulness of his disposition. He con- tinued, however, to hope for the restoration of his sight; consulted numerous oculists, but never found but one disposed to attempt an operation, and he promised too much, and was distrusted. To the last, even at the age of 84, he never exhibited any of the usual marks of extreme old age-although his memory was somewhat impaired, his reasoning powers were still vigorous; he had none of the garrulity of age, and his existence closed without the usual evening twilight of intellect.
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In the summer of 1844, he visited his native France, for the first time since he had left there in his youth. He remained in Paris some weeks, and his eyes were examined by the ablest oculists of that capital. But they declined attempting an operation, it having been well ascertained that the case was hopeless -- a confirmed gutta serena. Hc returned to Louisiana in the autumn of the same year, and resumed bis duties on the Bench.
The long and painful struggle of Judge Martin in his youth against poverty exerted a great influence upon his habits and turn of mind through life. The accumulation of wealth by constant economy be- comne habitual with him, at the same time that he was serupulously honest and fair in all his dealings. Indeed, he had always a strong til abiding sense of what is just, which showed itself in his conduct, both as a man and as a judge.
His reports forin the most useful of his works. They constitute the first chart of a coast at that time in a great measure unexplored -- and although not complete, and leaving much for his successors to supply, yet they served at least to show the intricacy of the navigation, and to point out many of its difficulties and dangers. Such a publication was a novelty at the time in this State, and the
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HISTORICAL COLLECTIONS OF LOUISIANA.
want of it could not have been supplied by the Reports of any other State or country. While it tended to produce uniformity of decision at home, it made our peculiar jurisprudence better known abroad. It exhibited some of its peculiarities and excellencies in such strong light that it has contributed in some particulars, and especially that part of our system, which guards so effectually the rights of married women, to recommend in several of the States the adoption of similar provisions.
There are some strong points of resemblance between Judge Martin and Peter Stephen Duponceau, who declined the appointment of Judge in the Territory of Orleans, about the time that office was accepted by Judge Martin. Both were Frenchmen by birth, and arrived at an early period in the United States, and identified themselves with the country ; both wrote in the English language; both were jurists and civilians of eminence ; each gave to the profession a translation of a foreign work of great merit-Martin, the Treatise of Pothiers on Obligations-Duponceau, that of Binkershoek on Public Law, and both contributed to create a taste for such studies. Martin was more exclusively a lawyer, although, as we have seen, he published two works of History. Duponceau was the more elegant and accom- plished scholar, and particularly distinguished as a Philologist, and so thoroughly versed in the aboriginal languages of this continent as to have received the reward of the French Institute for the best essay on that subject. He published also an original Treatise on the Constitution of the United States, and another on the Jurisdiction of the Federal Courts. The style of Martin was more pointed and brief-that of Duponceau more polished and copious. Both wrote with great purity in a language which was not their vernacular tongue. While Martin was satisfied with usefulness on the Bench, Duponceau prosecuted a more extensive line of studies and pursuits, and was assiduous and useful, among other things, in his efforts to introduce the culture of silk in the United States. Both lived to a very advanced age, were respected and honored by the public for the purity of their lives, and their profound learning and usefulness, and both in turn reflected honor on the land of their adoption.
A great majority of the most eminent lawyers in the United States and in England have passed through the same severe ordeal of early poverty. It is a stern but salutary discipline. Few professional men, who were born to affluence and nurtured in luxury and case, have made a distinguished figure in after life. It is adversity which teaches us the importance of relying upon ourselves, and draws out
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HON. FRANCOIS XAVIER MARTIN.
all the energies and resources of the mind. Nothing discourages and nothing daunts such men. They feel that time and perseverance will not fail to reward their solitary studies, and gratify their long deferred hopes of distinction. The lives of such men are without any striking events or incidents on which the attention of the biographer is fixed; they pursue the even tenor of their way, contented with the cultiva- tion of the intellectual powers, and the distinction which their profes- sion gives them in society. ·
The example of such men is cheering in the highest degree to those who are just entering on a professional career. Let them learn never to despair. If truc to themselves, and devoted to their studies, under whatever disadvantages of early fortune they may labor-how- ever hard the struggle with want and competition, it will come at last -the noblest and purest of all triumphs, that of an innate energy of soul over adversity and want and neglect. If their studies are commensurate with the almost boundless field of the science to which they are devoted, embracing, in the language of Justinian, "divinarum atque humanarum rerum notitia-justi atque injusti scientia," they are prepared to act a distinguished part in any of the departments of public affairs to which they may be called in after life. The profes- sion in the United States has always been the high road to honorable distinction. Many of those who by their intelligence, influence and eloquence prepared the public mind for revolution to resist the en- croachments of power, were lawyers who had studied deeply the true theory of popular government. They afterwards were lawyers who pre- pared and sustained the Declaration of Independence-and especially those who devised the admirable Constitution under which we live and prosper, and who were among its first expounders. The profession here deals not only with private rights, and the controversies between man and man-their studies embrace the great relations of the go- verned with the governor-they regard public offices as public trusts -- and discuss freely the limitations of delegated power, and the duties and attributes of restricted sovereignty. The lawyer who fearlessly and boldly advocates such principles is already half a states- man. The profession in this country have always been, and from the nature of their studies must always be, the advocates and supporters of free government and popular institutions.
François Xavier Martin, let it not be forgotten, was a foreigner by birth, and a naturalized citizen of the United States. He was re- ceived as a brother-became carly identified with the country, and had no connection for more than sixty years with the political vicissi-
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tudes of his native land. He was thoroughly American in his feel- ings and opinions. He was an American lawyer and an American magistrate. If strict integrity of life-if a love of truth, for the sake of truth and justice-if a fearless independence and impartiality in the discharge of public duties-if a profound knowledge of law and the most exemplary devotion to duty during a long life consti- tute the elements of greatness, surely he may well be pronounced great.
What a commentary this upon the liberal institutions of this wide- spread Republic, and the generous spirit of a vast majority of its citizens ! It opens wide its arms to receive and cherish all those who, driven by political calamities, or impelled by a hope of ameliorating their condition in life, are wafted to our shores. They bring with them the arts and industry and learning of their country. It matters not what may have been the land of their nativity-it matters not what may have been their condition in early life-it matters not what may have been the religion of their fathers or their own, or in what language their first thoughts may have been uttered-they are wel- comed as men and as brothers-they become gradually assimilated to the common mass of citizens, and their origin is perhaps forgotten in a second generation. We become one in feeling-one in opinion, and participators in and contributors to the common renown of our great Republic. The Bar of New Orleans, at whose request I appear be- fore you, is at this moment composed of men who were born in most of the polished nations of the globe-France, Germany, Belgium, England, the United States; Ireland, and Sweden. They all contri- bute to the stock of learning for which the Bar is so eminently dis- tinguished. In proportion as our country spreads itself, wider and wider, by the peaceful conquests of civilization, those who take refuge here from other countries, forgetting their native land for that of their choice, enjoy its blessings and advantages in common with native citizens; and if a frenzy for foreign conquest by arms should seize us, it may be pleaded at least as an excuse for us that we are influenced by no selfish and narrow views ; but those conquests will extend still further the influence of free institutions, and furnish a refuge and a home for the oppressed of other lands. It is thus our government is destined to illustrate the noble thought of a living poet :
" Man is one ;
And he hath one great heart. It is thus we feel,
With a gigantic throb athwart the sea,
Each other's rights and wrongs; thus are we men." -- Frsyes.
AN
ANALYTICAL INDEX
OF THE WHOLE OF THE PUBLIC DOCUMENTS
RELATIVE TO LOUISIANA,
DEPOSITED IN THE ARCHIVES OF THE DEPARTMENT
"DE LA MARINE ET DES COLOMES" ET "BIBLIOTHEQUE DU ROI"
AT PARIS.
BY EDMUND J. FORSTALL.
$
AN
ANALYTICAL INDEX, &c.
PORTFOLIO NO. I.
Ist. Remarks on the province of Louisiana, 5th August, 1751- depth of water at the Balize 14 feet-war with Indians-mode of warfare required : detachment from the main body, always within reach of assistance, and the main body always within reach of sup- plies, &c.
2d. 1716, 11th February-memorial of the regency council-ad- vantages of New Orleans developed-proximity to Vera Cruz and Havana-river courses and latent wealth of the interior-fertility of the soil, favorable to tobacco, rice, and cacao-only issue to the Gulf of Mexico-party of twenty Canadians exploring the Red River- voyage performed in three months -- their visit to the province of Leon in Mexico-copper mines discovered-iron, lead, gold and sil- ver found in abundance-plan of colonization presented -- this me- morial is signed by L. A. de Bourbon and the Marshall d'Estrées, and is approved by the " conseil de Regence."
3d. Statistical account by Mr. de Kerlerec of the Indians inhabit- ing the Mississippi and the Missouri-prospects of the colony-this report is signed Kerlerec, 12th December, 1758.
4th. 1712-memorial respecting the situation of Louisiana-pro- ject to deepen the pass from the river to the lake Maurepas, from Tunicas, about seventy-three leagues from New Orleans, by cutting a point of land --- pirogues are stated as being then in communication with the lakes through that pass. This memorial is signed " Dartagnette."
5th. 1712-1726-laws and ordinances relative to Louisiana.
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6th. History of the irruptions of the North Americans upon the lands of Louisiana. This document is signed by "Villars, Favre Daunoy," April, 1778.
7th. Account of the death of Lasalle.
8th. 1680-memorial explaining the reasons which led France in 1680, to undertake the colonization of the country north of the Gulf of Mexico. This memorial is signed by " De la Boulay."
9th. 1725-questions propounded to Mr. de la Chaise by the "Compagnie des Indes"-and his answers thereto.
10th. 1740-memoir of the Engineer Duverges recommending cer- tain works at the Balize.
11th. 1748-Letter from Mr. de Vaudreuil respecting the Balize -depth of the water at one of the passes 18 feet.
12th. Letter to the French minister respecting wax from a certain tree, 1748.
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13th. 7, Dec. 1759-Letter to the French minister from Mr. de Richemore, recommending two financial plans.
14th. Letter from Mr. de Richemore to ministers, containing an account of all the officers and cadets in service.
15th. April, 1764-memorial from Mr. Brand, praying for an ex- clusive privilege to establish a printing office in New Orleans.
16th. April, 1764-letter from Mr. d'Abaddie to the Duke of Choiseul, showing the advantages of the colony-speaking of the first experiments in the culture of the cane, and forwarding samples of sugars from the estate of Chevalier de Masau.
17th. June, 1764-letter from the same, complaining of the de- . moralization produced by the circulation of depreciated paper, and the immoderate use of ardent spirits, even by the higher class of society.
18th. Memorial of the merchants of New Orleans to Mr. d'Abad- die, " Directeur General Commandant la Province de la Louisiana."
19th. 4th Dee. 1768-letter from Gov. Ulloa to the Marquis de Grimaldi, announcing the revolution in Louisiana -- his expulsion and his arrival at Havana.
20th. Statement by Gov. Ulloa of the events in Louisiana-a document containing. about 300 hundred pages, very full and very well drawn up ; whereby it is clearly demonstrated that Aubry in the whole matter was the principal informer. That the plan was not for the purpose of remaining under a kingly dominion, but that the end was freedom-that for that purpose Messrs. Noyan and Masan were deputed to the English Governor of Florida, then residing at Pensa- cola, for the purpose of securing the protection of the British Govern-
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PORTFOLIO NO. I.
ment in behalf of the intended Republic. That the Governor of Florida having refused all aid, the address to France was resorted to by the rebels as the means of concealing their plan. That the lead- ers were Mr. de Lafreniere, a creole, Mr. Foucault, Mr. Villere, bro- ther-in-law of Lafreniere; Mr. Heri, Messrs. Noyan, Verret, Marquis ; four brothers, Le Roy, who have since assumed the name of Lafre-" nière ; Lere, Banlieu and Chauvain, Judice, de Lery, Darimsbourg, Hardi de Boisblanc, Thomassin, Fleurian, Cabare, Ducros and Millet -- that their place of meeting was at a Mad. Pradel's, near the city of New Orleans, where they collected to the number of 500. The plan embraced the whole of Louisiana. This document is full of interest, and shows the cause of the lukewarmness of the French Government in the whole matter. The whole statement of Gov. Ulloa is corrobo- rated by the French Gov. Aubry, who it appears, with the French troops under his command, was treated as an enemy as well as Ulloa. Thus Lafreniere, his brother-in-law Villere, Marquis, and their asso- ciates, died victims of their love for liberty, and not of their love for France, as generally believed.
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