USA > Louisiana > Sketches, historical and descriptive, of Louisiana > Part 21
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It would be well to restrict the settlements in Upper Louisiana to the following boundaries : Beginning at the mouth of the river St. Francis ; thence up that river to the source of its main westerly branch ; thence a short dis- tance due north to the river Merimak ; thence up that river to a line, which, drawn due west, shall intersect the mouth of the Gasconade, a branch of the Missouri; thence on the dividing line between the United States, and the Sacks and Foxes, as agreed on in the treaty of 1804, to the Jaf- freon, a branch of the Mississippi. 'That part of the tract below the Merimak, and situated between the St. Francis and Mississippi, is about four hundred and sixty miles long, following the course of the latter river, and of va- rious widths ; about fifty five or sixty miles at St. Gene- vieve and cape Gerardeau, and between twenty and thirty miles at New-Madrid ; and it gradually narrows as it ap- proaches the confluence of the two rivers. 'The mouth of the Gasconade is about ninety miles up the Missouri ; and the mouth of the Jaffreon, on the west bank of the Missis- sippi, about one hundred miles above the junction of these great rivers. 'These boundaries include all the white set- tlements, and a sufficient territory for a respectable popu- lation. The extent of this territory along the west bank
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of the Mississippi, is nearly six hundred miles. Nearly one half of it was conceded to settlers by the French and Spanish authorities. The remainder belongs to the Unit- ed States, and is now at their disposal. The vacant lands are divided into a great variety of tracts, scattered here and there among the settlements, and if they remain un- sold, a compact population cannot be formed. , Were they granted to actual settlers, a strong cordon would soon be drawn across our extensive and exposed frontiers, the In- dians kept in awe, and the necessity of a regular force in those regions, at least to any considerable extent, in a great measure cease to exist.
Louisiana possesses a variety of climates and soils, ad- apted to the views and circumstances of every class in society. - The people can exchange commodities with each other to advantage. Those of the north already furnish provisions and raw materials, and those of the south are equally capacitated to remit the conveniences and luxu- ries of life. This mutual dependance serves to strength- en the bands of society, and to perpetuate national friend- ships. No doubt such ligamentous relations were de- signed by the Almighty for the most beneficent purposes, and it would be something worse than folly to oppose the arrangements he has made.
It is a well known fact, that the stream of population generally inclines to the north, and this may be accounted for on rational principles. Much the greatest proportion of mankind depend on manual labor for support. The heats of the south are supposed to forbid this occupation ; while the pure atmosphere of the north strengthens and invigo- rates the human constitution. Lower Louisiana is adapt- ed to the culture of cotton, rice, tobacco, and sugar ; and these require large capitals. All kinds of grain, meats, and vegetables, are the products of Upper Louisiana ; and settlers of moderate resources, who aim to acquire the substantials of life only, will naturally resort to it, where
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also a considerable traffic may be carried on in peltry, lead, and salt. The lands in many parts of the Atlantic states, perhaps by long culture, have become greatly im- poverished, and some considerable slave holders, who now find it difficult to subsist, would soon with the same means accumulate fortunes on the Lower Mississippi. In no other part of the United States can each good slave yield his master from two hundred and fifty to three hun- dred dollars clear annual profit ; and the expense of remov- ing families to that quarter by way of the rivers would be inconsiderable. 'The same comparative advantages would result to agriculturists, were they to exchange their posses- sions on the east side of the Allegheny for lands of a more prolific nature in Upper Louisiana, where provisons of all sorts can be procured more abundantly, and with less labor:
When the United States first took possession of Louisi- ana, the lands had no fixed value ; they cost actual set- tlers no more than the fees of office, and the expenses of surveys. About that period, large quantities of land were offered for sale at twenty five cents per acre ; but as soon as it was understood that the United States would postpone the sale of public lands, the people began to es- timate the value of their own more highly; and in less than three years after the cession, it was difficult to pur- chase good lands, in eligible situations, under two dollars per acre. In fine, the cession raised the general mass of property in Louisiana more than four hundred per centum.
On the subject of promoting the settlement of Louisia- na, and indeed of the Mississippi territory, various consi- derations of a political nature present themselves. Among them, that of providing for the national defence, is cer- tainly important. In case war be declared against us by. any foreign power, (and in the present state of the world .. we have no right to claim exemption from that calamity) the blow will probably be directed to that quarter. We shall then experience the necessity of a strong population
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to sustain at least the first attack, and to furnish the means of successful opposition. As an inducement to emigra- tion, perhaps it would be well to present each actual set- tler with a certain quantity of land. A wise and virtu- ous government will endeavor to anticipate events, and .not postpone the preparation of suitable remedies for pro- bable evils. In fine, we cannot populate Louisiana, par- ticularly the lower Mississippi, too soon ; and our inter- est requires, that this population should consist of men habituated to agriculture, and educated in the principles of our laws and constitution.
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SKETCHES OF LOUISIANA.
CHAPTER VIII.
GOVERNMENT AND LAWS.
FROM what has been said in other parts of this work, a copious exposition of the government and laws of Louisiana, may be dispensed with in this place.
Spain, in acquiring new possessions in America, deemed it necessary to invest their colonial officers with civil and military powers. The numerous enemies the Spaniards had to combat, to conquer, and in some measure to extirpate, added to the refractory disposition of the colonists, served to perpetuate this union amid the various changes, revolutions, and storms, of more than three centuries. These powers though exercised by the
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same functionaries, were really distinct in their nature's ; and those to whom they were confided acted in different capacities in carrying them into effect. Hence the Span- ish government in Louisiana was deemed (at least by those unacquainted with its structure) of a military na- · ture, and extremely arbitrary in its principles. Most pro- bably there were many aberrations in practice ; but the Spanish colonial code contains a complete system of wise and unexceptionable rules, calculated to ensure justice, and to promote the happiness of the people.
The treaty of cession of 1762 was never published, and its stipulations remain unknown. * When Spain came into possession of Louisiana under that treaty, she chang- ed almost the whole of the French colonial jurisprudence, and only preserved the principles of allodium in their grants of lands, and in the settlement and distribution of estates ab intestato ; and this was most probably done out of respect to the civil law. . "The substituted code varied in some particulars from the one adopted in the other Spanish provinces ; and this variance was occasioned by a difference in their circumstances.
The several institutions, by which the Spanish provinces in America are governed, have been the work of much time and labor. These provinces or possessions were al- ways regarded as domains of the crown ; and hence their political and civil systems bear some analogy to those of the mother country. 'These were few and simple in their infancy, and accommodated only to small and detached societies. But when large cities and provinces were cre- ated, and population became numerous, they began to as- sume a more comprehensive and complex form ; and . hence has arisen by degrees an extraordinary and magni- ficent superstructure, duly proportioned in all its parts, and exhibiting the wisdom and ingenuity of the political artists of several centuries,
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The provincial institutions of the Spaniards together with the municipal and other laws, have arrived to as much perfection as the policy of the government, and the circumstances of the people, will admit. These have · been collected, examined, and digested with great care and labor ; such only have been retained as experience dictated to be useful, and those of a different character were consigned to oblivion. This digest bears the stamp of authority in all the provinces, and is denominated the code of the Indies. In all cases where the code is silent, the general laws of Spain, called the laws of the partidas, prevail in all the tribunals. Many prominent features of the Roman jurisprudence are observed in all of them ; and they appear much more conspicuously in the colonial sys- tem of Louisiana than in that of any other of the Spanish provinces. .
The Roman code, indeed, may be said to have furnish- ed laws for the government of Louisiana by adoption. These laws regulated the rates of interest among mer- chants, and on loans among other descriptions of people. ' They laid down precise rules for the fulfilment of the different species of contracts and obligations, and dictated the decisions to be given in contestations on the multipli- city of grounds incident to them.
These laws also regulated the formalities of executing wills and testaments, noncupatives, donations inter vivos, dispositions mortis causa, and revocations. They like- wise sanctioned the principle of implied revocations ; and perhaps this was carried to a greater extent in Louisiana than in any of the United States. It not only embraced those cases recognized by our common law, but it consi- dered all those legacies and bequests as totally void, where the legatees treated the testators with ingratitude, or black- ened their memories.
Bequests of whatever nature to collaterals, and particu- larly to strangers, in prejudice of the direct lines of des-
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cent or ascent, were much discouraged by the laws. This is one reason why, in testamentary dispositions, many for- malities were required. In the first place, a will was of no validity, unless executed in the presence of a notary, or some other public officer. In the second place, no less than seven witnesses were requisite in some instances to give effect to bequests. The Spanish laws also regarded the sanity of testators, and the particular circumstances under which their wills were written and executed with more caution, perhaps, than those of other countries.
No parent could disinh rit his child, except for causes expressly recognized by the laws; as where the latter struck, or raised his hand to strike, the former ; or was cruel, and inflicted on him any grievous injury ; or refus- ed to take care of him when poor or insane ; or to be his bail, or to redeem him from prison or captivity, when he had the means of doing it; or accused him of any capital offence, except that of treason. Nor could a legitimate child, who died without issue, disinherit his parents, or other ascendants, except for causes nearly similar to those just mentioned. Many other causes of disinherison were recognized ; but those already enumerated will afford a sufficient idea of the nature of the Spanish laws on this point.
The succession of heirs, whether descendants, as- cendants, or collaterals, on the principles of allodium, to estates ab intestato, was clearly defined ; and it was pre- dicated on nearly the same principles as those recognized by the laws of the several states in the union. The rights of primogeniture were never admitted into the laws of Louisiana. These laws allowed a reasonable alimony to illegitimates, both before and after the death of their pa- rents. They paid a particular regard to the dowry of wi- dows, and to whatever was secured in marriage contracts. They also defined the rights and privileges of infants and
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minors, provided for their subsistence and education, and for the security of their property.
Children were obliged to support their parents, and other ascendants, if they were in need; and the relations of the direct ascending line were likewise bound to main- tain their needy descendants.
The laws provided for the partition and distribution of estates, and the assignment of dowry.
They also obliged either party to a suit to disclose on interrogatories such facts and papers as were material to the dispensation of justice ; and in most respects the tri- bunals of Louisiana were guided by the same maxims as the chancery courts in England, and those of the same na- ture in the United States. -
It would require the ability and industry of an able ju- rist to delineate even the leading traits of the laws, by which Louisiana was governed. These laws extended to all the ramifications of the various concerns in society, and. afforded such rules as were calculated to direct a just de- cision, when properly applied, on all the points liable to be litigated among men. But the misfortune was, that very few of the public officers, except those attached to . New Orleans, were acquainted with them. None of them were ever published, except one or two hereafter noti- ced ; and those disposed to consult them were obliged to examine a voluminous digest. This obstacle to legal in- formation made it necessary for many of the subordinate officers at a distance from the capital to decide according to their conceptions of equity, except where they were guided by the written instructions of their superiors, which generally contained some useful hints derived from the civil law, or the code of the Indies. No wonder, then, that the Spanish government in Louisiana was deemed arbitrary, and that it was put and kept in opera- tion more by the military than by the civil power.
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O'Reilly, the first Spanish governor general of Louisi- ana, (after he had imbued his hands in the best blood of the province) was active in providing for the administra- tion of justice. He divided the colony into as many dis- tricts as were necessary to accommodate the inhabitants ; in each of which a commandant was appointed, generally taken from the army or militia, and invested with pow- ers, civil, criminal, and military, to such extent as was deemed proper. Their jurisdictions were subsequently extended or abridged as circumstances required.
The judicial power of the district commandants usual- ly extended to the decision of all suits, where the damage claimed did not exceed one hundred dollars. An exact uniformity, however, was not observed in this particular: Some were invested with less, and others with greater au- thority. They executed the mandates of their superiors, arrested criminals and debtors, extended executions on - real and personal estate, watched over the public peace, and superintended the internal police of their respective districts. They received no salaries from the crown, ex- cept one hundred dollars per annum to reimburse their expenses of stationery. If they belonged to the army, their pay, and the established fees of their offices, suppor- ted them comfortably. These fees were by no means ex- orbitant, except in the settlement of estates ab intestata ; they were fixed by a tarif, which all public officers were obliged to keep posted up in some conspicuous place in their respective offices or houses.
New Orleans had its alcaids, whose jurisdiction was of considerable extent. Syndics, or justices of the peace, were placed over small detached settlements in the dis- tricts, the nature of whose powers was similar to that of the commandants. Notwithstanding their jurisdiction in civil causes was limited to twenty dollars; yet it was law- ful to institute suits before them for the recovery of lar-
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ger sums, and they were bound to receive and to record the testimony offered on both sides, and then to remit their proceedings to their superiors.
The Spanish government always encouraged summary - proceedings. Of plain and incontested cases, 'a record was seldom made, unless the judgment or decree was fol- lowed by an execution. In cases of magnitude, where serious contestations took place, the proceedings were sometimes extremely voluminous.
Creditors presented their petitions, in which they sta- ted the nature of their demands. The adverse parties were permitted to reply ; and hence the written debates of the litigants, grounded both on the law and the fact, were often extended to great length.
Upper Louisiana was considered as a province in some measure distinct from the lower one, though dependant . on it. An officer with the title of lieutenant-governor was placed over it, who, although he derived his appointment - - from the crown, was bound to conform to the orders of the governor and intendant generals in their respective departments. He was sub-delegate to the latter officer; and as such he superintended the affairs of the finances within his jurisdiction, in which was included every thing relating to the Indians, to commerce, to the levy and col- lection of the public revenue, and to the sale of lands. As the subordinate of the governor-general, he was at the head of the military ; he appointed as many syndics as he pleased, and also nominated his own district comman- dants. ITis authority was without limitation in civil cau- ses, and it extended to all criminal matters under the de- gree of capital, though his decisions of every kind. were liable to be reversed on appeals. :
The governor-general and, intendant-general, were to- tally independent of cach other in their several depart- ments, and had an exclusive control over all suits, and o-
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ther matters, which appertained to their respective juris- dictions.
Antecedent to 1799, the duties of both were confided to the governor-general ; but in that year a department. of finance was created, and an intendant general ap- pointed.
Separate tribunals were constituted to assist these great officers of the crown in the adjudication of causes : . But their decisions or opinions were of no effect unless ; sanctioned by their superiors ; and indeed the heads of these departments often incurred the responsibility of deciding contrary to the opinions of the tribunals.
The governor-general was at the head of the military and judiciary departments. Ile decided on all criminal and civil suits, not appertaining to the revenue, which were instituted, or came before him by way of appeal. He was in some measure the legislator of the province. He gave occasional instructions to his subordinates, or promulgated ordinances for the benefit of the people at large, or for those of particular districts. These in most respects conformed either to the Roman law, or to the code of the Indies, and were generally digested and re- commended by his advisory tribunals.
The department of finance was organised in a similar · manner, at the head of which was the intendant-general. HIe had a number of dignified officers under him, who performed separate and distinct duties, independent of . each other. IIe took cognizance of all admiralty and fiscal causes. 'The liquidation and settlement of all pub- lic accounts belonged to him; and no money could be drawn from the treasury without his order. It belonged to him to apportion, to levy, and to collect taxes, and to devise regulations for the interior government of the fi- nances. He was assisted by a legal character, named an assessor, to whom all difficult and litigated points were
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referred, though the intendant was not bound to conform to his opinion. He regulated commerce and navigation, and repressed the abuses and disorders in the. several branches of his department. He also regulated the affairs of the Indians, the admission of settlers into the province, and the sale of public lands.
Most of the great officers of the crown were appoint- ed for five years only. Re-appointments were seldom made, except when cogent reasons rendered them neces- sary.
The subordinate tribunals, designed to assist the heads of the two great departments of the government, deserve more particular notice.
The alcaid-general was attached to the civil depart- ment, and had cognizance of all such criminal offences,. under the degree of capital, as were committed without the limits of the city of New-Orleans.
The governor-general was assisted in all. his delibera- tions by a tribunal of civil and military jurisdiction. No sentence of death pronounced against any criminal could be carried into execution before it was examined and rati- fied by a superior tribunal in the island of Cuba.
Each of the provincial tribunals had an auditor, and an assessor, who were doctors of the civil law, and whose du- ty it was to attend and to advise in all matters of import- ance.
The office of procureur general was deemed of the highest consequence. He acted not merely as solicitor for the crown, but was an officer peculiar to the civil law. He did not always prosecute ; but after conviction he in- dicated the punishment awarded by the law, and on his suggestion it was often mitigated. He was also the cura- tor of orphans, the expounder of the privileges of the city, and the public accuser of all public officers, who either infringed the laws, or omitted to perform the duties as- signed them.
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Cabildos are the most popular tribunals in the Spanish colonies, and the most discouraged by the govern nent. They were originally placed over small detached villages and towns, in which they exercised civil and military pow- ers. They devised municipal laws and held municipal courts, and were considered as the general and al nost on- - ly conservators of the peace. They still exist in many of the cities ; but their number is much reduced, and their powers greatly restricted. Superior tribunals have been constituted to receive and to decide on appeals made from their decisions. To the cabildos are usually attached a number of alcaids, regidors, syndics, and registers, who assist them in the administration, and in the execution of the laws. The powers of the cabildos in the several pro- vinces and cities are not uniform ; they are extended or Limited as the circumstances of the people require ; and they differ from those recognized by similar tribunals in Spain, where they are purely municipal.
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: The offices of the members of these tribunals are de- nominated venal by the Spaniards, because they are ac- quired by purchase ; though no man can become a mem- ber in this manner without paying a certain sum into the public treasury, nor unless he be qualified in all'respects to discharge his official trust. Notaries, attornies, assessors, tax-gatherers, and a variety of others, are obliged to pur- chase their respective offices, and to furnish ample security for the faithful discharge of them.
New-Orleans boasted of its cabildo, which consisted of twelve members, and the governor general presided in its deliberations. The judiciary powers of this tribunal were of a limited nature, and extended only to disputes and causes arising within the boundaries of the corporation. It derived its importance from the exercise of other and more extensive powers. The police of the city was con- fided to its discretion. It regulated the admission of phy- sicians and surgeons to practice. The sheriff, alcaid pro-
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vincial, procureur-general, and several other officers, were chosen by it, and generally from among its own members. By the nature of its constitution it was in some measure an advisary council for the several departments of the government, and authorised to deliberate on the general and complicated concerns of the province. It had a right to recommend the adoption of such measures as were deemed useful to the community, and solemnly to protest against all objectionable laws and regulations. This right was frequently exercised by it ; and its protestations and demands were always treated with respect. The mem- bers of this tribunal obtained their offices in the venal man- ner already mentioned, and most probably this circum- stance rendered them the less respectable.
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