Page images
PDF
EPUB

1. Under both the French and English common law, absence or any other disability is not a cause of interruption of commercial and other like short prescriptions.

2. Statutes of limitations are laws of public order and policy.

3. They do not admit exemptions unless therein expressly made. *

4. Prescription affects not the contract but the remedy.

5. la eases of conflict of prescriptions of personal actions, the prescriptive laws of the country, where they are instituted, should prevail.

6. In every country where the English statutes of limitations are in force, as in Lower Canada, cases are not governed by the lex loci contractus but by the lex fori.

D. GIROUARD.

* Since the above article was sent to press, the 21st volume of the Annual Louisiana Reports reached us, containing a very elaborate decision upon the question of interruption of commercial prescription in the case of Smith v. Stewart, in which case the Supreme Court of the State of Louisiana held: 1. That prescription runs against all persons except such as are included in some exceptions established by law; and that the existence oi war not beinj, among the exceptions established by law, will not work an interruption or suspension of prescription. 2. That the inability to sue will not avail against the plea qfprescrip tion, except in the cases specially excepted by law, 3. That the maxim contra non valentem agere non currit prsescriptio, has no application under the system of jurisprudence of Louisiana. 4. That where the Legislature has prescribed rules regulating prescription, and enumerated the causes that interrupt or suspend prescription, the courts will admit no other exceptions. This decision was not only rendered unanimously; but two of the honourable judges, Messrs. Taliaferro and Howell, had on a former occasion arrived at quite the opposite conclusion. See also Jackson v. Yoist, 21 A, 108; Barlley v. Bosworth, 21 id. 126; Nelson v. Scott, 21 id. 203, 626; Rabelv. Bourciau, 20 id. 131; Hatch v. Gilmore, 3 id. 510; Walker's Louisiana Dig. vo. Prescription, 363; McElmoyle v. Cohen, 18 Peters, 327; Bank of the State of Alabama y. Dalton, 9 Howard, 250; Troup v. Smith, 20 Johns 33; Marcade on art. 2251; Duranton, Nos. 285, 286.

D. G.

THE LAWS OF LOUISIANA AND THEIR SOURCES.

By Hon. E. T. Merrick,
Of New Orleans,

Attorney und Counsellor at Law; and late Chief Justice of the Supreme
Court ofthe State of Louisiana. *

The chairman of each section or the Academy is required by a resolution to read a paper on the branches of science submitted to such section. This resolution imposes upon me the duty of reading a paper on either law or political economy.

It is a maxim that all men are presumed to know the law, and that ignorance of the law excuseth no man. This maxim is well enough as it respects offences malum in se and such questions of right and wrong as one's conscience settles, without any elaborate appeal to reason. But when we come to consider regulations which are made merely for convenience, or questions which require the cautious weighing of reasons by the cultivated mind to arrive at what is just, the propriety of the maxim is by no means so clear: yet it is essential to administration of justice.

It has occurred to me that of the subjects at my disposal, a few observations on the laws of Louisiana and their sources would be probably the most useful and interesting, and contribute in a slight degree perhaps to awaken a greater interest in our laws, and tend to diminish the distance between the fact and the presumption, contained in the maxim.

It is well known that the laws of Spain were the laws of Louisiana at the cession of the territory to the United States in 1803, by the treaty of Paris.

It is true, the country had been settled by the French in 1699, and had continued in the possession of France for seventy years, when O'Riley took possession of the same in 1769 for Spain, and that the larger part of the inhabitants were of French descent, and that the country had been retroceded to France by the treaty of Ildefonso in 1800, and by that power transferred to the United States, yet the brief possession de facto by France from the 30th

* This article was read on the 23rd January last, before the New Orleans Academy of Sciences, of which body Mr. Merrick is a member. day of November, A. D. 1803, to the 20th of December of the same year, did not permit the carrying into effect of any material changes in the laws. The only changes made by Lausat, acting for France, was to substitute a Mayor and Council for the government of New Orleans in the place of the Cabildo, and to re-establish the black code of Louis XV, prescribing the duties toward and the government of slaves. But as Spain and her Indies were governed by the civil law, which also prevailed in France and Louisiana, the change was not so marked so far as private rights were concerned as it was respecting the parceling out of the public domain, and laws affecting the public order and the substitution of the Spanish language for the French in legal proceedings. It is quite apparent that the Spanish laws were acceptable to the inhabitants, for no attempt was made to change them after the cession, further than was operated by subjecting the country to the authority and Constitution of the United States. So that at this time, Louisiana is the only State of the vast territories acquired from France, Spain and Mexico, in which the civil law has been retained, and forms a large portion of the jurisprudence of the State. The Treaty of Paris guaranteed to all the inhabitants of Louisiana, then embracing the immense territory from the Gulf to the forty-ninth parallel of latitude, and from the Mississippi River to the Rocky Mountains, all the rights, advantages and immunities of citizens of the United States, and protected them in the enjoyment of their liberty, property and religion. As in matters of treaties, the President and Senate of the United States possess the supreme power, no steps were needed to naturalize the inhabitants of the territory, how short soever the residence in it had been at the time of the cession- They became at once citizens of the United States.

The first government provided for the ceded territory by our Government was exceedingly simple: Congress, in advance of the transfer on the 31st October, 1803, provided that until the expiration of that session of Congress (unless provision for the temporary government should be sooner made) all the military, civil and judicial powers exercised by the officers of the existing government of the same, should be vested in such person or persons, and should be exercised in such manner as the President of the United States should direct for maintaining and protecting the inhabitants of Louisiana in the free enjoyment of their liberty, property, and religion.

It was not long, however, before the principal part of the pre sent State of Louisiana was organized into a territorial government under the name of the territory of Orleans. I say principal part, because although the terms of the law embraced within the territorial limits that part of the State between the Mississippi River and Pearl River, and between the Mississippi territory and the Manchac or River Iberville, this part of the territory was at that time actually held by Spain, and continued to be so held until 1810. The legislative power of the territory of Orleans, by the act of Congress of March 22, 1804, was vested in the Governor, appointed by the President, and in thirteen of the most fit and discreet persons of the territory, who were to be appointed annually by the President. The ancient laws were continued in force until repealed or modified by the Legislature. In March, 1805, Congress reorganized the territorial government, by authorizing the President to establish a government similar to that exercised in Mississippi Territory, which had been created by adopting the same government as that organized under the celebrated ordinance of 1787, for the government of the territory of the United States, northwest of the river Ohio, excluding the last article of the ordinance which prohibited slavery. Therefore to know what law governed the territory, recourse was had to the ordinance of 1787.

As was to be expected, the first changes made in the laws of Louisiana were in relation to crimes and offences, which could, in a country having no immemorial usages, exist only by virtue of statute law, and which were introduced in language and terms known to the laws of England; and in the act of the 4th of May, 1805, the following provision was adopted, viz.: "All the crimes, offences and misdemeanors hereinbefore named, shall be taken, intended, and construed according to and in conformity with the common law of England, and the forms of indictment (divested, however, of unnecessary prolixity), the method of trial, the rules of evidence, and all other proceedings whatsoever in the prosecution of said crimes, offences and misdemeanors, changing what ought to be changed, shall be (except by this act otherwise provided for) according to said common law."

The crimes and offences referred to in the section comprised the principal offences known to our law, so that at the present time the section of the statute of 1805 is deemed to be applicable to all crimes and offences. Standing as it has done on the statute book from 1805 to the present time, without modification or change, in the midst of the various schemes for the revision of our statute laws, it has had a marked influence upon the crimina \ jurisprudence of Louisiana. It has given stability to that jurisprudence, since the inquiry of our judges was limited to the common law as it stood at the time of the passage of the act. They were not bound to follow the common law of England, as it became modified by adapting itself to the changes introduced by statutory law of England, but they were to look to a single standard, viz. the common law of 1805. This venerable provision was re-enacted for the first time in 1870, but at the same time in the last section of the revised statute it is excepted from repeal. The common law of England, ever pliant, and bending itself to the gradual changes wrought by the improvements in science, the arts, manufactures and commerce, and by the modified habits of the people, has never been precisely the same from age to age. Hence the modern English authorities, whenever overruling the standard works on the criminal law of the period of 1805, have not been regarded as of binding authority.

The next important measure affecting the civil laws was the codification of the civil law of the territory. A great misapprehension exists in the minds of many in regard to the Civil Code of Louisiana. It is supposed to be but a re-enactment of the Napoleon Code. It is true the French code preceded our code of 1808 by five years, and a projet of it (for the Napoleon Code, as adopted, had not reached the territory) may have suggested to our legislators the necessity of reducing the laws, which were in the Spaniah language, a tongue foreign to the largest portion of the citizens of Louisiana—Americans, or those who were of French descent—into a single code, which should be published in French and English.

In June, 1806, the Legislature, by a resolution, appointed two prominent lawyers, James Brown and Moreau Lislet, to compile and prepare a civil code, and they were expressly instructed by the legislature "to make the civil law by which this territory" was then " governed, the groundwork of said code," in other words, to make the Spanish law the groundwork of the code. On the 31st of March, 1808, the old code was adopted, declaring merely an abrogation of the ancient laws, wherever the same were contrary to that code, or irreconcilable with it. The effect of this provision was to leave all the Spanish laws not irreconcilable with the code

« PreviousContinue »