USA > Louisiana > Historical memoirs of Louisiana, from the first settlement of the colony to the departure of Governor O'Reilly in 1770; > Part 25
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8. If the criminal bo taken after the order for his arrest has been issued, and the proces-verbal conelnde.t, the judge shall direct the jailer to certify that the accused is in prison, and the said judge shall, in person, com- mence the examination by demanding his name, age, quality, profession, country and residence. If he be under twenty-five years of age, he shall
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be enjoined to choose a guardian; and, upon his refusal to do so, the judge shall appoint some one for him, by reason that the said examination can- not proceed without the presence and authority of the said guardian.
9. In the said examination the judge shall charge the accused with the crime, pursuant to the testimony given and shall propound such questions as may tend to the disclosure of the circumstances of the same.
10. The examination concluded, the witnesses both for and against the accused, shall be heard within the shortest delay possible; which, how- ever, if necessary, may be extended to eighty days, as allowed in civil causes in general. During this delay, the accused on one side, and-the prosecutor, or the procurator fiscal, (in default of a prosecutor) on the other, shall produce their proof in the manner provided in civil causes ; and although these proofs should be private, as also the re-examination of the witnesses, they may communicate to each other the documents in the cause in order to the necessary arrangement of their proceedings.
11. The witnesses being re-examined, and the delay allowed having expired, one of the parties shall require that the testimony be made public. This demand shall be communicated to the other party, by a copy thereof, upon whose answer, or in default, thereof, the judge shall direct the publication of the said testimony. The documents shall then be delivered to the prosecutor, or to the procurator fiscal, that he may bring his accusation in form, and allege the sufficiency of the proof.
12. The accusation being made, conjointly with the declaration of the sufficiency of the proof. a copy thereof shall be given to the accused, that he may in defence set forth whatever he may think in favor of his cause. When the said defence shall have been made, the pleadings shall be considered as concluded, and, consequently, the cause in a state to be determined.
13. If it should happen that one or both of the parties except to the witnesses produced, they shall proceed in the manner pointed out under the head of civil causes in general, and shall conform precisely to the instructions therein given for similar cases. After the decision on the said exception has been made, the determination of the cause shail not be delayed; but the judge shall require the documents, and cite the par- ties for the definitive sentence.
14. The accused being convicted of the crime, as being fully establish- ed on the trial, or by some other proof, in conjunction with his own con- fession, he may be condemned to the penalty provided by law for the same. The said condemnation shall also take place when two witnesses of lawful age and irreproachable character shall depose that of their cer- tain knowledge the accused has committed the crime; but when there shall appear against the accused but one witness, and other indications or conjectures, he shall not be condemned to the penalty provided by law ; but some other punishment shall be inflicted as directed by the judge,
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with due consideration of the circumstances which may appear on the trial ; this state of things requires the greatest circumspection, as it must always be remembered that it is better to let a criminal escape than to punish the innocent.
15. After all these precautions, the judge shall pronounce sentence ; and although in criminal causes an appeal should not be admitted, yet if the judge shall have doubts, or from some difficulties on the trial he shall think it advisable to submit the same to the examination of a superior tribunal, execution shall be suspended, and this second instance shall be conducted as in civil causes.
SECTION IV. Of Appeals.
1- When judgment has been given for a sum or an object, the value of which exceeds ninety thousand maravedis, an appeal may be taken by the party who thinks himself aggrieved, directly to the tribunal to be hereafter appointed by his majesty ; and when the said appeal shall have been lodged, communication thereof shall be made to the adverse party, who may plead against the merits of the same; that is to say, whether the sentence shall be suspended or executed, notwithstanding appeal. To determine this point, the judge shall demand the documents, and after examining the same shall pronounce either for or against, as he shall think; and in urgent and particular cases, such as dowry, alimony, or others of a similar nature, in which appeals should not lightly be admit- ted, he shall order execution. In this class are also comprised criminal causes, unless such circumstances should occur as cited at the conclusion of the preceding paragraph ; in which case execution must be suspended until the superior judge has examined the same, and confirmed the sen- tence pronounced.
2. If the appeal be admitted, the second trial shall be conducted in the manner following: The judge shall direct the delivery of the documents in the cause to the appellant, that he may declare in what consists the grievance of which he complains; by which is meant that he shall set forth in argument the injury he would sustain by the execution of the sentence, which, for one or more reasons, is not in conformity to the pro- visions of the law in similar cases, and concluding by moving that the same be annulled. A copy of this declaration shall be given to the other party to reply thereto and confute the arguments of his adversary, by setting forth those tending to prove that the sentence has been pronounced in conformity to law. The judge shall then direct that after having tran- scribed the documents in the cause, at the expense of the appellant, the originals be transmitted to the' tribunal, in which the appeal is to be tried. HI e shall summon the parties to hear the transcripts compared with the
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originals, as also to appear in person, or by proxy, at the tribunal to which the said appeal shall be carried, within the delay that may be allowed, according to the distance of the same from this province. The said de- lay shall commence from the day on which the first registered vessel shall sail from this port for the place where the superior tribunal shall be established; the judge having previously ordered the delivery on board the said vessel, of the original documents aforesaid. He shall inform the appellant, that if, within the delay allowed, he shall not prove that he appeared before the said tribunal with the original documents, he shall fully and indisputably forfeit his appeal, and that the execution of the sen- tence shall consequently be ordered on the first requisition of the adverse . party. If, however, the appellant shall establish the loss of the vessel in which his documents were embarked, or of the one in which he had transmitted the vouchers of his having appeared at the superior tribunal within the time prescribed; or, in short, any other impediment which may discharge him from the aforesaid obligation, the appeal cannot be declared to be abandoned; but on the contrary, a further delay shall be granted; and if the originals have been lost, copies thereof shall be de- livered to him, that he may prove his appearance and compliance with whatsoever has been required.
3: In the case of a judgment for a sum not exceeding 90,000 maravedis, exclusively of the costs, the appeal shall be made to the cabildo of this city, and the same shall be conducted in the manner following: Within five days computing from the day of the signification of the sentence, the appellant shall present his petition, which shall be delivered to the register to annex his certificate thereto; ou sight of which the cabildo shall ap- point two regidors, in quality of commissioners, to decide on the cause of appcal, conjointly with the judge who pronounced the sentence. The said commissioners shall be bound to accept the said appointment, and shall take an oath that they will impartially discharge the duties of the same.
1. The said document with the certificate shall be delivered to the escribano in the cause, who shall institute and pursue the appeal. The document shall be delivered to the appellant, that he may deduce and set forth his grievance in the manner explained in the second paragraph ; which shall be done within fifteen days at furthest ; and communication thereof shall be made to the other party, that he may reply thereto, within a further term of fifteen days ; so that within thirty days from the appoint- ment of commissioners the cause shall be ready for determination. It must be observed tthat the aforesaid term of thirty days cannot be pro- longed, even with the consent of both parties.
5. The pleadings being concluded in the manner prescribed, the escribano shall, within two days, deliver the doemments to the judges, who shall examine the same, and give judgment within ten days, computing
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from the expiration of the thirty aforesaid, annulling or confirming, aug- menting or diminishing. the previous sentence, as they may think just. After the expiration of the aforesaid ten days, judgment cannot be pro- nounced; or, if given, the same shall be void; and the first sentence shall take full effect, and be executed according to the tenor thereof.
6. If a majority of the three judges appointed shall accord in opinion, their sentence shall be valid and conclusive, and an appeal to any other tribunal shall not be admitted; but the judge who pronounced the first. sentence shall cause the second to be executed so soon as the documents shall have been delivered to him for that purpose.
SECTION V. 2
Of Punishments.
1. He who shall revile our Saviour, or his mother, the most ho'y Virgin Mary, shall have his tongue cut out, and his property shall be confiscated, applicable, one half to the public treasury, and the other half to the informer.
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2. He who, forgetting the respect and loyalty which every subject owes to his king, shall have the insolence to vilify his royal person or that of the queen, the hereditary prince, or of the infants, their sous, shall be punished corporally, according to the circumstances of the crime ; and the half of his property shall be confiscated to the profit of the public or royal treasury, if he have legitimate children; but if he have none, he shall forfeit the whole; applicable, two-thirds to the public treasury, and the other third to the accuser.
3. The authors of any insurrection against the king or the state, or those who, under pretext of defending their liberty and rights, shall be concerned or take up arms therein, shall be punished with death, and the confiscation of their property. The same punishments shall also be inflicted on all those, who may be convicted of lese-majeste, or treason.
4. Whosoever shall outrage another either by wounds, cuffs, or blows with a stick, shall be punished as the judge may think suitable to the case and to the rank both of the offender and the offended. But if the abuse consists only in words, and the aggressor be not noble, the judge shall exact the retraction of the same, in the presence of himself and other persons, and shall, moreover, condemn the said aggressor to a fine of 1,200 maravedis, applicable, one-half to the public treasury, and the other half to the party offended. If the aggressor be of rank, or enjoys the privileges of nobility, he shall be condemned to a fine of 2,000 maravedis, applicable, as aforesaid. The judge, however, may in lien of the same, inflict any other punishment which he shall think suitable to the rank of the parties and the nature of the outrage. If no blood has been spilt,
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nor complaint made by the offended, or if he shall desist from prosecuting the same, the judge shall not interfere therein.
5. Hle who shall ravish a girl, a married woman, or a widow of reputable character, shall suffer death, and his property shall be confiscated to the use of the person injured; but if the said person be not of reputable character, the judge shall inflict such punishment as he may think suit- - able to the case.
6. The married woman convicted of adultery, and he who has commit- ted the same with her, shall be delivered up to the will of the husband; with the reserve, however, that he shall not put the one to death, without inflicting the same punishment on the other.
7. The man who shall consent. that his wife live in concubinage with another, or who shall have induced her to commit the crime of adultery, shall, for the first time, be exposed to public shame, and condemned to a confinement of ten years in some fortress ; and for the second time shall be sentenced to one hundred lashes and confinement for life.
8. The same punishment shall also be inflicted on those who carry en the infamous trade of enticing women to prostitution, by procuring them the means of accomplishing the same.
9. He who shall be guilty of fornification with a relation in the fourth degree, shall forfeit half his property to the profit of the public treasury, and shall, moreover be punished corporally, or banished in some other manner, according to the rank of the person, and the degree of the kin- dred. If the said crime be committed between parents and their offspring, or with a professed nun, tho same shall be punished with death.
10. He who shall commit the detestable crime against nature shall afterwards he burned, and his property shall be confiscated to the profit of the public and royal treasuries.
11. The woman who shall be publicly the concubine of an ecclesiastic, shall be sentenced, for the first time. to a fine of a mark of silver, and to banishment for one year from the city or from the place where the offence
" may have been committed. The second time, she shall be fined another mark of silver, and banished for two years, and in case of relapse, she shall be punished by one hundred lashes, in addition to the penalties aforesaid.
12. If fornication be committed between bachelors and girls, they shall be admonished by the judge to discontinue every kind of intercourse with cach other, under the penalty of banishment of the man, and confinement of the girl, for such time as may be necessary to operate a reformation. If this menace have not the desired effect, the judge shall put the same into execution. unless the rank of the parties require a different procedure, in which ease the said offence shall be submitted to the consideration of the judges, collectively, to apply the remedy, which their prudence and zeal for the repression of such disorders may suggest. They shall punish
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all other offences of debauchery in proportion to their extent, and to the injury occasioned thereby.
13. He who shall break his oath, taken in conformity to law, for the validity of an agreement, shall forfeit the whole of his property for the benefit of the public and the royal treasuries.
14. False witnesses in civil causes shall be exposed to public shame, and banished for ten years; but in criminal causes, in which false testi- mony is more important in its consequences, the same shall be punished capitally. If, however, the accused shall not have thereby been sen- tenced to death, the false witness shall only be exposed to public shame, and be sentenced to perpetual banishment to some presido. The said ' punishments may, however, be commuted, when from the rank of the offenders they cannot be condemned to the same.
15. He who shall steal the sacred vessels in a holy place shall suffer deatlı.
16. Assassins and robbers on the highway shall suffer death.
17. The same punishment shall also be inflicted in cases of foreible robbery, which shall be reputed such, when the proprietor or other person shall have made resistance.
18. Robberies of other kinds, other than those comprised in the preced- ing articles, shall be punished corporally, according to the nature of the same, and the rank of persons.
19. He who shall kill another, shall suffer death, unless done in his own defence, or under such circumstances as are explained in the laws of the Nueva Recopilacion de Castilla.
20. He who shall commit wilful murder, or wound another with intent to deprive him of life, although the wounded person may survive, shall suffer death, and shall be dragged to execution at the tail of some animal; . and the half of his property shall be confiscated to the profit of the public or royal treasury.
SECTION VI. Of Testaments.
1. For the validity of a nunenpative will, it is necessary, that the same be received by a notary public, in presence of at least three witnesses, residents of the place; or if there be no notary, there must be present five witnesses, residents of the place in which the will shall be made; if, however, it be impossible to procure the last-mentioned number, three may suffice.
2. A testament shall be equally valid when made in the presence of seven witnesses, although they be not residents of the place, and although the same be not made in the presence of a notary.
3. If, after the closing of a will, the testator shall wish to add to, diminish or change any disposition contained therein, he may do the same
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effectually by a codicil; observing the same formalities, and in the pre- sence of the same number of witnesses required for the validity of the testament itself; but he cannot change the name of the heir, unless another will be made.
4. If the testator be blind, at least five witnesses shall be necessary to each of the instruments aforesaid, in order to prevent the deceptions, to which those who labor under such a misfortune are exposed.
5. For the validity of a mystie will, styled in Latin in scriptis, the testa- tor, on delivering to the notary, (who shall seal it.) shall put an endorse- ment on the cover, stating that the within is his will ; which endorsement shall be signed by himself and seven witnesses, if they can write; and if not, the others shall sign for them ; so that there be eight signatures, in- cluding that of the escribano, who shall also put his signature thereto.
6. Before the opening of a will, after the decease of the testator, it is necessary that the judge who shall have knowledge thereof, shall certify thereto, and that the witnesses appear before the said judge. and declare, on oath, that they were present, when the testator declared the same to be his last will: they shall acknowledge their signatures, or shall declare (if such be the case) that by their request some one has signed for them.
7. As it often occurs that persons, either unable or unwilling to make a will themselves, empower others for that purpose, they are hereby inform- ed, as follows :
8. That such authority must be given in presence of the same number of persons, and with the same formalities required for testaments.
9. That the person empowed to make a will for another, cannot revoke a will previously made by his constituent; unless the said will shall con- tain a special clause to that effect.
10. That he may neither appoint an heir, bequeath a third or a fifth to any of the children or descendants of his constituent, disinherit any of them, substitute others in their stead, nor name a guardian for them with- out an express clause and special authority to that effeet ; by reason, that the constituent should himself nominate his heir, and designate, by his will, whatsoever he may wish to be done.
11. That if the testator has not appointed an heir, nor designated one in the power given to make a will for him ; the person so empowered, may only direct the payment of the debts of the deceased ; after which a fifth part of the proceeds of his property shall be distributed for the repose and relief of his soul: the remainder shall be divided amongst the relations of the deceased, who, according to law, shall inherit ; or, if there be none, the whole shall be applied to pious uses, for the benefit of the soul of the deceased, after previously deducting therefrom what is allowed by law to the wife, as dower, bridal presents, donations, proper nuptius, the half of the profits on the joint estate, and whatever may have fallen to her by succession or donation during the marriage.
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12. That if the constituent shall have appointed an heir, the person em- powered as aforesaid may not dispose of, in legacies pious or profane, more than the fifth part of the property of the testator, his debts being previously paid; unless by a special clause he should be authorized to dispose of a greater part.
13. That the person empowered should proceed to the completion of the will with which he is charged within four months, if he be in the place in which the power was given ; or, if not, within six months ; unless he be out of the kingdom ; in which last case, one year shall be allowed, com- puting from the day of the decease of the constituent. All that may be done by the person, empowered as aforesaid, after the expiration of that term, shall be void and of no effeet, even if he shall allege, that he had no knowledge whatever of his having been so empowered. But all the other stipulations by the testator, in the said power contained, shall be carried into execution, and the remainder of his property shall be delivered to his relations, who inherit ab intestato, and who, with the exception of the legiti- mate children of the descendants or progenitors of the testator, shall give the fifth part of the net proceeds of the said property, for the ease and re- pose of the soul of the said testator.
14. That the person empowered as aforesaid may not in any manner re. voke the will he shall have made by virtue of the authority aforesaid, nor add a codieil, nor any declaration thereto, even if the same should be for pious uses, and notwithstanding he may have reserved the power of re- voking, augmenting, diminishing, or changing the disposal he shall have made.
15. To the said testaments, codicils, or powers given to that effect, women, monks, people under the age of fourteen, drunkards, or other dis- qualified persons, shall not be admitted as witnesses.
16. A testator may bequeath a third or a fifth to any one of his children or other legitimate descendants, by specifying the part of his real or person. al property which he designs for that purpose.
17. When a testator shall make a bequest to any of his children or legitimate descendants, he may impose such condition, remainder, or entailment, upon the property bequeathed as he may think proper, in order that his other legitimate descendants, or, in default thereof, his illegitimate descendants, or if there be none of either of those descriptions, his relations may enjoy the benefits resulting therefrom; to the end that the said be- quest may never pass to a stranger, unless all the relations in the order aforesaid shall be deceased.
18. The father may also, while living, advance any of his children or legitimate descendants, in the same manner as at his death, or by will ; but it is to be understood that he shall make the same advancement but once, and that the same being made during his life cannot be revoked, if settled by agreement and fixed by a public instrument, which should pre-
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cede the delivery of the object in which consists the advancement, or if having been made with a view to marriage, or for any other similar cause ; unless he shall have reserved, by the said instrument, a power to that effect; in which case he may revoke the said advancement.
19. If the father or mother shall have entered into an agreement not to advance any one of their children. the said agreement shall thereafter be binding ; and if they should attempt the said advancement by any public instrument, the same shall be void and of no effect. If, on the contrary, they shall promise the advancement in consideration of marriage, or for other similar cause, the right to a third or a fifth shall be good at the decease of the parent, although no mention thereof shall have been made in the will.
20. The said advancement being made during life, or at the point of death, shall be calculated upon the real value of the property at the time of the decease, and not at the time of making the same.
21. All deeds of gift, or legacies, by the father or mother to their chil- dren or descendants, during life, or bequeathed by will, shall be reputed on account of the third or the fifth, although the same may not have been so expressed. In consequence thereof, they cannot bequeath a third or a fifth to any of the other children or descendants, which shall exceed the value of the said legacies or gifts to the former.
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