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in force, and they continued to be quoted and acted on in the courts untill 1828, when by one sweeping clause in the statute of 25th of March, known to lawyers as the great repealing act, all the civil laws which were in force before the promulgation of the civil code then lately promulgated, were repealed. If it was the intention of the Legislature to prevent reference to foreign systems of law, principles, maxims and rules for the exposition and interpretation of our own, and to confine our courts to the meagre provisions of the civil code and of statutory law for all rules of right and justice, it was a mistaken labor. The Legislature might as well attempt to repeal and abrogate the language of its people and the rules of logic, as to prevent the lawyer from recurring to the ancient principles and maxims of the [law as well as its history, in order to ascertain its meaning. The enactment of a law whether organic, as in the case of constitutions, or legislative, presupposes the existence of rules of interpretation. And so it has happened that the ancient laws are still examined, not only as reflecting light upon those remaining, but also as furnishing the great store-house of equitable maxima for the decision of cases not foreseen by the lawgivers. The ancient laws and maxims teach us what is equitable and just.
By resolution of the Legislature, passed the 14th of March, 1822, Messrs. Livingston, Derbigny [and Moreau Lislet were appointed on joint ballot, to revise the civil code of 1808, by amending it in such a manner as they should deem advisable, and by adding thereto such laws as were still in force and not included therein. These jurists, among whom the last named was not the least, reported their proposed amendments of the code to the Legislature, and the articles of the old code and the amendments were numbered continuously, and on the 12th of April, 1824, they were approved by the Legislature, aud went into operation in 1825; in the city of New Orleans, the 20th day of May, 1825, the day of its promulgation.
There are very many articles in the civil code of 1808, and as amended in 1825 and continued by the recent revision of 1870, which are identical with articles in the Napoleon code, and lead to the supposition that whenever the compilers of the code of 1808 found an article in the projet of the French code, which fully expressed the sense and meaning of a provision of the law of Louisiana, it was appropriated. In other instances, the French text was amended to conform to our law and so adopted. In others, the Spanish law was first written in French and translated into English. Nevertheless, the laws of Louisiana, where differing from the Napoleon code, have been preserved, and thus the civil code contains some provisions in sharp contrast with the Napoleon code. The Napoleon code lias 2281 articles; ours has 3556, and that of 1825 had 3522 articles.
When the code of 1808 was enacted, laws were passed in French and English. The government being territorial, there was no constitutional provision requiring the laws to be passed in the English language. Hence the French text of the articles found in code of 1808, and still retained, have been held to be of equal force with the English articles, and have been resorted to by the courts to prevent the evils which might flow from a bad translation _
Although Spanish law has been the law of the land, and our courts take judicial knowledge of the same without proof, and although the French laws are estemeed foreign laws which require to be proven when brought in controversy in our courts, yet the similarity of the French text of our late codes to the Napoleon code has been so great, that commentators on the French code, as well as the decisions of the Court of Cassation, have exercised great influence on controversies arising under our own code. Perhaps one reason has been that we have no commentaries of our own further than some annotated codes, and a work on criminal law and digests of the decisions of the courts, owing to the limited sale which has followed all similiar publications. Hence French authors are an essential part of a lawyer's library.
The practice of the State courts of Louisiana up to September, 1825, when the Code of Practice, prepared under the resolution of 1822, approved April, 1824, went into effect, was regulated by the act of 1805 (which was based on the Spanish laws) and amendments thereto. The Code of Practice itself was written by its compilers in the French language, and many of its articles are badly translated. It has recently (1870) been revised, by incorporating some amendments (which have from time to time been enacted) into the body of the work. It has not been materially changed in other respects, and the numbers of the articles remain the same.
We notice some efforts now being made to introduce further amendments in order to lessen the present heavy costs of litigation which drives suitors from the courts of justice. Some change is certaiuly very desirable, not so much to amend, as enforce the law Voi. I. a No. 2. respecting costs. When we consider how extensive the litigation is which arises from the adoption by the Legislature of a new system of practice, it should admonish us to modify with some caution. It took twenty years to settle the Practice Act of 1805. and since 1825 our courts have had much of their time occupied in ascertaining the meaning of the Code of Practice. The experiments in our sister States in adopting codes of procedure have also given rise to a great deal of litigation. Hence it would seem that if any change was to be introduced, it could best be done by way of amendments to the present system. It may also be observed that the new codes of procedure are rather imitations of our Code of Practice than otherwise. The preparation of the pleadings by the attorneys in New York is, I think, but a continuation of the ancient practice in that State of making up the rolls by the attorneys. The attempts of the Legislature to codify the other branches of the law failed.
A projet of a commercial code was prepared under the resolution of 1822, but fortunately never was adopted. It would be extremely unsatisfactory for a single State of the Union to adopt a system of commercial law which should sometimes come in conflict with the commercial law of the neighbouring States, as settled by their courts, and in conflict with the law as settled by the courts of the nation. As it is, the courts being free to act, have gracefully yielded on questions of commercial law to the customs of merchants and the rules settled under the common law and in our sister States, so that the whole body of the commercial law governing this Union is, in the main, moulded into a harmonious whole. As it had been formed upon the custom of merchants, engrafted upon the common law, the decisions in England were generally looked to with great respect, and what is commercial law in London is commercial law in Washington, as well as among most commercial nations.
A like attempt was made to reduce the criminal law and criminal proceedings to a simple code in 1820. In 1821, Edward Livingston was elected by ballot of the General Assembly to draft a criminal code. Livingston prepared and presented to the Legislature a system comprising " a code of crimes and punishments, a code of procedure, a code of evidence, a code of reform and prison discipline, and a book of definitions." This constituted the celebrated Livingston code, a work more famed abroad than at home—a work noted for its scientific description of crimes and offences, and of the proceedings devised for the trial, prison discipline and punishment of offenders and their reformation. The projet never having become a law, has left the world unenlightened as to what would have been its practical operation. Being based upon the common law, which Livingston sought to simplify, much of it would doubtless have worked well, but like all unbending legislative provisions regulating the details of practice, it would have taken years of discussion before the courts to settle its meaning. As it was, scarcely a question could be raised under the criminal law which had not been previously decided by some binding decision.
The Legislature of 1855 attempted to revise the statutes of the State, and adopted the hazardous experiment of annexing to each statute a clause, not only repealing all laws contrary to the provisions of each act revised, but all laws on the same subject matter, except what was contained in the Civil Code and Code of Practice. There being no saving clause except as to the act relating to crimes and offences, an adherence to the language of the statutes would have occasioned the overthrow of offices and the loss of rights. It forced the courts to depart from the letter of the law in order to ascertain its meaning and prevent an evil which the lawgivers had not foreseen.
In the recent revised statutes the Legislature has repeated the same experiment, without even a saving clause as to crimes and offences, and again forced the courts to interpret so as to prevent great evils. The revised statutes of 1870 are comprised in 3990 sections, and contain the matters of the revised statutes of 1856, and the recent amendments.
Having thus hastily glanced at some of the prominent points in our legislation, we will look for a moment into the courts in session in our midst, and take a practical view of the laws enforced in them. We shall find that the courts of the United States have jurisdiction of cases—
1st. In admiralty.
2d. In bankruptcy, patents and copyrights; and
3d. Of revenue and prize cases, offences against the United States, and other causes in which the United States Government is interested as a plaintiff, and concurrent jurisdiction with the State courts.
4th. Of all causes in which a citizen of another State is plaintiff or defendant, and the other party is citizen of the State, and of cases in whiob. an alien is a party.
We shall find that the State courts have exclusive jurisdiction of crimes and offences against the State, of probate matters, of all controversies between citizens of the State, whether it respects their property or status, or obligations arising from wrongs done to them by others. And they have concurrent jurisdiction with the courts of the United States on all these questions when an alien or citizen of another State submits himself to the jurisdiction of the State courts, or when sued, does not avail himself of the right which he has to remove his cause to the courts of the United States.
If we now regard the mode of proceeding in the different courts we shall find it very dissimilar, and in a few particulars, resting upon principles directly the opposite of each other; for example, if your ship has been damaged by collision, on navigable waters, and the party who was instrumental in occasioning the damage is within the reach of process of the court, you have your choice, to proceed against such party on the law side of the State or Federal courts, according to the citizenship of the party, or to bring your action in admiralty in rem or against the person. If you sue on the law side of the courts you must take care that neither you nor your agents controlling the ship have been in fault. For the courts of law deriving their rules from a rigid morality, inform you that they do not sit to balance negligences, faults and wrongs; that whoever comes before them must come with pure hands. Their maxim is, procul, 0 procul estc profani, and the suitor who has been partly in the wrong is sent away without redress, however much he may have been damaged, and how much greater soever may be the fault of the other party.
The courts of admiralty looking at human actions in a more benevolent light and with a juster appreciation of the conduct of men in times of danger and excitement, consider the faults and negligence of both parties, and where both are in fault estimate the lo3S of both vessels, and divide the loss between the parties, and grant relief where in a court of law it would be refused.
The procedings in admiralty are of civil law origin, and many of the principles governing the court of very great antiquity. They can be read back to the Greeks before the Christian era from whence they were received into the Roman jurisprudence.
The jurisdiction of the courts of admiralty is exclusive whenever the proceeding is in rem, that is, against the vessel or other thing not subject of maritime jurisdiction. If, however, at the