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The public officers were bound to take the following oath :
" I, appointed ... (here followed the desig- nation of the office,) ... swear before God, on the holy cross and on the evangelists, to maintain and defend the mystery of the immaculate conception of Our Lady the Virgin Mary, and the royal jurisdiction to which I ap- pertain in virtue of my office. I swear also to obey the royal ordinances and decrees of his Majesty, to fulfil faithfully the duties of my office, to decide in conformity with law in all the affairs which shall be submitted to my tribunal; and the better to accomplish this end, I promise to consult persons learned in the law, on every occasion which may present itself in this town; and, finally, I swear never to exact other fees than those fixed by the tariff, and never to take any from the poor."
This last clause of the oath is worthy of being recom-
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O'REILLY'S PROCLAMATION.
mended to the attention of officers acting under more liberal institutions.
These were the principal features in the organization of the new government.
On the 25th of November, 1769, O'Reilly issued a proclamation making known a set of instructions which he had caused to be prepared by two of his legal ad- visers, Don Jose Urrustia and Don Felix Del Rey, who acted so conspicuous a part in the prosecution against Lafrénière and his accomplices. These instructions were an abridgment or summary of the rules to be followed in civil and criminal actions, and of the laws of Castile and of the Indies, to which they referred, and to which they might serve as an index. This compendium was intended as a guide to all the functionaries and to the public. It contained also an enumeration of all the offices in the colony, and a definition of all the functions and privileges thereto appertaining. In the preamble to his proclamation, O'Reilly said :- " Whereas the want of jurists in this colony and the little knowledge which the new subjects of his Catholic Majesty possess of the Spanish Laws, may render a strict observance of them difficult (which would be so much at variance with the intentions of his Majesty), we have thought it useful and even necessary to have an abstract made of said laws, in order that it may become an element of in- struction or information to the public, and a formulary in the administration of justice, and in the municipal government of this town, until a more general know- ledge of the Spanish language be introduced in this province, and until every one be enabled by the perusal of those laws, to know them thoroughly. Wherefore, under reserve of his Majesty's pleasure, we order and command all the judges, the Cabildo, and all other
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DUTIES AND JURISDICTION OF PUBLIC OFFICERS.
public officers, to conform strictly to what is required by the following articles." This document* is given at length in the. Appendix, and is in every way worthy of an attentive perusal. It will be found, with the excep- tion of a few objectionable provisions, to be remarkable for wisdom and humanity, and it would not require much investigation to discover worse legislation in these our days of enlightened morality and progressive knowledge.
The Article 20, of Section I., concerning the Cabildo, runs thus :
"The electors, in the two jurisdictions, being re- sponsible for the injury and detriment which the public may sustain, by the bad conduct and incapacity of the elected in the administration of justice and the manage- ment of the public interests, should have for their only objects, in the election of ordinary alcaldes and other officers, the service of God, the king, and the public ; and, in order to prevent an abuse of that great trust, their choice should be directed to those persons who shall appear to them most suitable for those offices, by the proofs they may possess of their affection for the king, their disinterestedness, and their zeal for the public welfare."
With the omission of the word king, this article would not be found inapplicable to present circumstances, and might be fitly recommended to that generation of elec- tors who hold now in their hands the destinies of our country.
Article 21 said : "The Cabildo is hereby informed that it must exact from the governors, previous to their taking possession of their office, a good and sufficient
* American State Papers, vol. i., p. 363. Miscellaneous.
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DUTIES AND JURISDICTION OF PUBLIC OFFICERS.
surety, and a full assurance to this effect-that they shall submit to the necessary inquiries and examinations dur- ing the time they may be in employment, and that they shall conform to whatever may be adjudged and deter- mined against them. This article merits the most serious attention of the Cabildo, which is responsible for the consequences that may result from any omission and neglect in exacting the aforesaid securities from the governors."
Considering the age in which it was framed, and the source from which it emanated, this article deserves to be noticed, on account of the check which it intends to impose on the exercise of the executive power.
The section 11, on the ordinary alcaldes, is not without interest. The 4th article of that section says :
" The alcaldes shall appear in public with decency and modesty, bearing the wand of royal justice-a badge pro- vided by law to distinguish the judges. When admi- nistering justice, they shall hear mildly those who may present themselves, and shall fix the hour and the place of audience, which shall be at 10 o'clock in the morning, at the Town Hall; and, for the decision of cases in which no writings are required, they shall sit in the evening between 7 and 8 o'clock, at their own dwellings, and in none other."
Art. 13 and 15 read thus: Art. 13-"The ordinary Alcaldes, accompanied by the Alguazil Mayor (High Sheriff), and the escribano (clerk), shall, every Friday, proceed to the visitation of the prisons. They shall ex- amine the prisoners, the causes of their detention, and ascertain how long they have been imprisoned. They shall release the poor who may be detained for their ex- penses, or for small debts; and the jailor shall not exact from them any release fee. The alcaldes shall not set at
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DUTIES AND JURISDICTION OF PUBLIC OFFICERS.
liberty any of the prisoners detained by order of the Go- vernor, or of any other judge, without the express consent of said authorities."
" Art. 15. The Governor, with the Alcaldes, the Al- guazil Mayor, and the escribano, shall, yearly, on the eve of Christmas, Easter, and Whitsunday, make a gene- ral visitation of the prisons, in the manner prescribed by the Laws of the Indies. They shall release those who have been arrested for criminal causes of little importance, or for debts, when such debtors are known to be insolvent, and shall allow them a sufficient term for the payment of their creditors."
These articles are imbued with a spirit of humanity and christianity highly creditable to the legislation of Spain.
The section 3d defines the attributions of the Alcalde Mayor Provincial, and shows that the celebrated institu- tion of the Santa Hermandad was established in Loui- siana.
The 4th article of this section shows great regard for the comfort and protection of travelers and strangers. It says : "The Alcalde Mayor Provincial shall see that travelers are furnished with provisions at reasonable prices, as well by the proprietors as by the inhabitants of the villages through which they may pass."
The 5th article says: "The principal object of the institution of the tribunal of the Santa Hermandad (holy brotherhood).being to repress disorders, and to prevent the robberies and assassinations committed in unfre- quented places by vagabonds and delinquents, who con- ceal themselves in the woods, from which they sally to attack travelers and the neighboring inhabitants, the Alcalde Mayor Provincial shall assemble a sufficient num- ber of members or brothers of the Santa Hermandad, to clear his jurisdiction of the perpetrators of such evil deeds,
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DUTIES AND JURISDICTION OF PUBLIC OFFICERS.
by pursuing them with spirit, seizing, or putting them to death."
Section 7th concerns the Procurador General. The article I. is as follows :
" The Procurador General is an officer appointed to assist the people in all their concerns, to defend them, preserve their rights, and obtain justice on their behalf, and to enforce all other claims which relate to the public interest.
"In consequence thereof, the Procurador General, who is appointed solely for the public good, shall see that the municipal ordinances are strictly observed, and shall endeavor to prevent everything by which the said public interest might suffer.
"For these purposes, he shall apply to the tribunals competent thereto, for the recovery of debts and revenues due to the treasury of the town of New Orleans, in the capacity of attorney for said town. He shall pursue these causes with the activity and diligence necessary to dis- charge him from the responsibility he would incur by the slightest omission.
" He shall see that the other officers of the Council or Cabildo discharge strictly the duties of their offices ; that the Depositary General, the Receiver of Fines, and all those who are to give sureties, shall give such as are good and sufficient ; and in case said sureties should cease to be good, he shall demand that they be renewed conformably to law.
"He shall be present at, and shall interpose in the division of lands, and in other public matters, to the end that nothing unsuitable or injurious shall occur."
It must be admitted that this whole section is replete with a feeling of liberality and a regard for the interests of the people, which is supposed to appertain only to a republican government.
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DUTIES AND JURISDICTION OF PUBLIC OFFICERS.
The section 10, which treats of the jailor and the prisons, breathes not that spirit of ferocity, which is generally believed to be akin to the subject, and characteristic of that age, as well as the attribute of the presumed tyranny of Spanish legislation and officials ; but, on the contrary, it seems to have been framed under the mild influence of modern philanthropy. The provision which prohibits jailors from exacting any fee from the poor, and from receiving any gratuity, either in money or goods, is wor- thy of commendation. It may not be inappropriate to quote the whole section.
Art. 1. "The jailor shall be appointed by the alguazil mayor, and approved by the governor before entering on the duties of his office. He shall also be presented to the Cabildo to be inducted into office, and to take an oath to discharge faithfully the duties of the said office, to guard the prisoners watchfully, and to observe the laws and ordinances established in this respect, under the penalties therein declared.
Art. 2. "The said jailor must not enter upon the duties of the said office until he shall have given good and suffi- cient sureties in the sum of two hundred dollars, as a warranty that no prisoner detained for debt shall be released without an order from the judge competent thereto.
Art. 3. "The jailor shall keep a book, in which he shall inscribe the names of all the prisoners, that of the judge by whose order they have been arrested, the cause for which they are detained, and the names of those who may have arrested them. He shall reside in the prison intrusted to his care, and, for each considerable fault committed by him, he shall pay sixty dollars, applicable one half to the royal chamber. and the other to the informer.
. Art. 4. "It is the duty of the jailor to keep the prison
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O'REILLY'S LEGISLATION.
clean and healthy, to supply it with water for the use of the prisoners, to visit them in the evening, to prevent them from gaming or disputing, to treat them well, and to avoid insulting or offending them.
Art. 5. "It is likewise the duty of the jailor to take care that the female prisoners are separate from the men ; that they be kept in their respective apartments, and that they be not worse treated than their offence deserves, or than is prescribed by the judges.
Art. 6. "With regard to his fees, the said jailor shall confine himself strictly to those which are established ; he shall take none from the poor, under a penalty of the value of the same. He shall not, without incurring the same penalty, receive any gratuity, either in money or in goods. He shall avoid entirely either playing, eating, or forming any intimacy with the prisoners under the penalty of sixty dollars, applicable, one third to the royal cham- ber, one third to the informer, and the remaining third to the poor prisoners."
Persons of noble birth, the military, the municipal and other civil officers, lawyers, physicians, women, and cer- tain other individuals, were exempted from imprisonment for debt.
The section on criminal trials has some remarkable features, among which the art. 14, which says : "The accused, being convicted of the crime, on its being fully established on trial by sufficient proof, or by some other proof in conjunction with his own confession, 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 certain knowledge, the accused has committed the crime ; but when there shall appear against the accused but one witness, and other indications or con- jectures, he shall not be condemned to the penalty pro-
15
O'REILLY'S LEGISLATION.
vided by law; but some other punishment shall be inflicted as directed by the judge, 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."
This provision concerning condemnation on the testi- mony of one witness, whatever may be said as to the propriety of its policy, is certainly more humane than the law by which we are now governed, and which may send a man to the scaffold on the bare testimony of ano- ther. It will also be observed that the well known axiom that "it is better that guilt should go unpunished, than that innocence should suffer unjust punishment," is not confined to the common law of England. It may, more- over, not be amiss here-to remark, in a parenthesis, that the boasted privileges of English liberty existed in some parts of Spain, although destroyed since, long before they were dreamed of in that noble land from which we have borrowed so much of our judicial and political organi- zation. *
The whole chapter concerning appeals is characterized by the desire of bringing lawsuits to a speedy termina- tion-a thing not to be expected, according to public opinion, from Spanish Legislation.
It must be confessed, however, that some of the penal- ties inflicted, savored of the peculiar temperament of the age and of the exaggerated devotion to the church and the throne which marked the Spanish character at the time ; for instance, art. 1 of section v. on punishments, decreed that : "he who shall revile Our Saviour, or his mother the Holy Virgin Mary, shall have his tongue cut out, and his property shall be confiscated, applicable one
* See art. Navarre, in the Encyclopædia Britannica, vol. xv., p. 748.
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O'REILLY'S LEGISLATION.
half to the public treasury, and the other half to the informer."
Art. 2d. said : "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, of the hereditary prince, or of the infantes (princes of the blood) or of their sons, shall be punished corpo- rally, according to the circumstances of the crime ; and the half of his property shall be confiscated to the profit of the public or the royal treasury, if he have legitimate children ; but should he have none, he shall forfeit the whole, applicable two thirds to the public treasury, and the other third to the accuser."
Art. 3. "The authors of any insurrection against the king or the state, or those who, under pretence of defend- ing their liberty and rights, shall be concerned in it, 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 high treason."
The Art. 4. contains a remarkable feature., A plebeian, using opprobrious language to the detriment of any one, was condemned to pay a fine of 1200 maravedis; but should a nobleman have committed the same offence, the penalty for him was 2000 maravedis. This distinction seems to have originated from the impression, that such an offence ought to be more severely punished in one of gentle than of base blood, on account of its being more heinous in one who, on account of his rank, ought to have been more correct in his deportment.
The following articles show at least that the new government was imbued with puritanical severity, and was disposed to check by extreme punishment all infrac- tions against morality.
Art 6. said : "The married woman convicted of adul-
17
O'REILLY'S LEGISLATION.
tery, and he who has committed the same with her, shall be delivered up to the husband, to be dealt with as he may please ; with the reserve, however, that he shall not put one of them to death, without inflicting the same punishment on the other.
Art. 7. "The man who shall consent that his wife live in concubinage with another, or who shall have induced her to commit 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.
Art. 8. "The same punishment shall also be inflicted on those who carry on the infamous trade of enticing women to prostitution, by procuring them the means of accomplishing the same.
Art. 9. " He who shall be guilty of fornication with a relation in the fourth degree, shall forfeit half of his pro- perty to the profit of the public treasury, and shall, more- over, be punished corporally, or banished, or undergo some other penalty, according to the rank of the person and the degree of kindred between the parties. If the said crime be committed between parents and their off- spring, or with a professed nun, the same shall be punished with death.
Art. 10. "He who shall commit the detestable crime against nature shall suffer death, and his body shall after- wards be burnt, and his property shall be confiscated to the profit of the public and royal treasuries.
Art. 11. "The woman who shall be publicly the con- cubine 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 town 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
2
18 ITS EFFECTS ON THE LAWS PREVIOUSLY EXISTING.
two years, and, in case of relapse, she shall be punished by one hundred lashes, in addition to the penalties afore- said .*
Art. 12. "If fornication be committed between un- married persons, they shall be admonished by the judge to discontinue every kind of intercourse with each other, under the penalty of banishment for the man, and con- finement for the woman, during such time as may be ne- cessary to operate a reformation. Should this menace have not the desired effect, the judge shall put the same into execution, unless the rank of the parties requires a different procedure-in which case, the said offence shall be submitted to the consideration of the judges collect- ively, to apply the remedy which their prudence and zeal for the repression of such disorders may suggest. They shall punish all other offences of debauchery in proportion to their degree, and to the injury occasioned thereby."
Ever after the promulgation of this document, it is to be supposed that all judicial decisions were grounded on the laws of Spain. At a later period, however, it became a question, which was debated in the courts of justice of Louisiana, how far the French laws had been repealed by O'Reilly, and whether he had the authority to abolish them, as the extent of his powers had never been exactly known. But now the question is set at rest, as it is ascertained that O'Reilly was clothed with unli- mited authority,t and that all he did in Louisiana was fully confirmed by the king and the council of Indies. In a communication addressed to his government, on the 17th of October 1769, he had said, "it seems proper
* No penalty was decreed against the ecclesiastic by the civil authorities, be cause he probably had the privilege of being tried only by the tribunals of his holy order.
+ See the Letter of the Marquis of Grimaldi to the Count of Fuentes, at the · court of Versailles. Gayarre's Louisiana, 3d series of Lectures, p. 264, vol ii.
¿ En la 3d Fha, en Nueva Orleans, 17 de Oct. de 1769, dice: " Que le parece con-
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O'REILLY'S INSTRUCTIONS TO COMMANDANTS.
that this colony be governed by the same laws which prevail in the other dominions of his Majesty in America, and that in its military, judicial, and financial organization, it be, in each of these respective departments, a depen- dency of the Island of Cuba." The government gave its approbation to these views of O'Reilly .* Fortunately, there was no very great dissimilarity between the funda- mental principles of the Spanish and the French juris- prudence, which had the same sisterly origin, and drew their existence from the honored womb of Roman legis- lation, emphatically called the "Civil Law," and so well known under that name.
O'Reilly had a set of instructions drawn up, which he sent to the parish commandants. From those addressed to de Mézières, who was in command of Natchitoches, I extract the following passage: "The commandant of the Post of Natchitoches shall not omit to employ every means to prevent the trade now going on with the Mex- ican provinces ; and, whereas every officer who commands a post, ought not to be ignorant of anything that occurs within the limits of his jurisdiction, he shall bear the responsibility thereof in every respect. There is nothing which renders a government more respectable and bene- ficent than the prompt and equitable administration of justice. Therefore do I most particularly recommend the observance of this duty to every commandant, and any want of exactitude in the discharge of official functions I shall consider as a contempt of the authority of the Governor General of this province. Those in command have been clothed with power, only to make their subor-
veniente que dicha colonia se gobierna por las mismas leyes que los demas dominios de S. M. en America, y que en lo militar, judicial y economico dependa de la isla de Cuba."
* See the Records of the deliberations of the Council of the Indies on O'Reilly's acts in Louisiana, which are in manuscript in the office of the Secretary of State at Baton Rouge.
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O'REILLY'S INSTRUCTIONS TO COMMANDANTS.
dinates happy, and to endear the government of the king to his subjects by its gentleness and benefits. This end will be accomplished by the impartial administration of justice, by a strict compliance with the orders of the Governor General, and by an enlightened exhibition of firmness and humanity on all occasions.
X *
" It shall be made known to all the inhabitants that, by the laws of his Majesty, which shall go into operation in this province on the 1st of December, 1769, it is not permitted that Indians be held in slavery; wherefore, from the date of the notification of these presents, no one shall buy, exchange, and barter, or appropriate to himself Indian slaves. They shall neither sell, nor in any way part with, those they now have (unless it be to set them free), until they hear further from his Majesty on this subject. M. de Mézières shall make out an exact list of the Indian slaves who are within his jurisdiction. Said list shall contain the names of the owners, the price which they ask for every one of their Indian slaves, and the exact filiation of said slaves. This will obviate any future abuse on a subject which has so strongly excited the solicitude of our laws. * * *
"I have remarked a considerable number of traders in the census of Natchitoches. These men can have no other object in view than an illicit trade. Therefore I charge M. de Mézières, most particularly, to cause to depart those named Ménars, Poeyfarré, Dartigo, Durand, Duvivier and Villars, of whom I know enough to desire that they be dismissed from that post, and be forced to remain in this capital (New Orleans), or be expelled altogether from the province.
" M. de Mézières shall cause the inhabitants to make
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O'REILLY'S INSTRUCTIONS TO COMMANDANTS.
to their parochial church all the repairs which decency and the security of the edifice require. This is the first duty of every good Christian, and no one has the right nor the power to refuse his contribution thereto. M. de Mézières shall make known to every inhabitant the equity of this contribution, and shall have recourse to compulsory means, only when it shall be absolutely necessary, to enforce the fulfilment of so essential a duty."
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