With this view, his most Christian majesty being fully sensible of the sacrifices made by the Catholic king in generously uniting with him for the restoration of peace, desires, on this occasion, to give him a proof of the strong interest which he takes in satisfying him and affording advantages to his crown. ^

The most Christian king has accordingly authorized his minister,

I

l UUHHiuMtMlB"

mm'

r

238

APPENDIX.

the Duke de Choiscul, to deliver up to the Mnrquis de Grimaldi, the ambassador of the Catholic king, in the most authentic form, an act whereby his most Christian majesty cedes in entire possession, purely and simply, without exception, to his Catholic majesty and his suc-cessors, in perpetuity, all the country known under the name of Louisiana, as well as New-Orleans and the island in which that place

" But, as the Marquis de Grimaldi is not informed with Bufficient precision of the intentions of his Catholic majesty, he has thought proper only to accept the said cession conditionally and sub spe ratu until he receives the orders expected by him, from the king, hia master, which, if conformable with the desires of his most Christian majesty, as he hopes they will be, will be followed by the authentic act of cession of the said country, stipulating also the measures and the time, to be fixed by common accord, for the evacuation of Louisi-ana and NowOrleans, by the subjects of his most Cliristian majesty, and for the possession of the same by those of his Catholic

majesty. . , , . ,

In testimony whereof, we, the respective ministers, have signed the present preliminary convention, and have affixed to it the seals of

our arms. , „ , .1. j

Done at Fontainebleau on the third of November, one thousand

seven hundred and sixty-two.

TlIK DUKK DK ChOISEUL,

The Marquis de Grimaldi.

Therefore, in order to establish between the Spanish and French nations the Lame spirit of union and friendship which should subsist as they do in the hearts of their sovereigns, I, therefore, take pleasure in accepting, as I do accept, in proper form, the said act of cession, promising also to accept those which may hereafter be judged neces-sary for carrying it into entire and formal execution, and authorizing the said Marquis de Grimaldi to treat, conclude, and sign them.

In testimony whereof, I have ordered these presents to be drawn up signed by my hand, sealed with my privy seal, and countersigned by my counsellor of state and chief secretary of state and war. Given at San Lorenzo el Real on the thirteenth of November, seventeen

hundred and sixty-two.

I, The King.

(Countersigned) Rioardo Wall.

lapnM

naldi, the m, an act m, purely 1 his sue-name of that place

eufficient s thought b ape raltt king, hia Christian authentic isures and of Louisl-1 majesty, s Catholic

ive signed the seals of

; thousand

SEUL, RIMALDI.

and French •uld subsist ,ke pleasure of cession, dged neces-authorizing I them. ;o be drawn )untersigned war. Given r, seventeen

Che King.

APPENDIX.

239

The said acceptation and ratification having been approved by »is, and regarded as a strong evidence of the friendship and good-will of our very dear and well-beloved cousin, the Catholic king, we renew and confirm by these presents, the cession of Louisiana and of New-Orleans, with the island in which that city stands, promising immcdi-ately to conclude with our said brother and cousin a convention, in which the measures to be taken in concert for executing and consum-mating this session to our mutual satisfaction will be fixed by com-mon accord. In faith whereof, we have caused these presents to be drawn up, which we have signed with our hands, and have affi.xed to them our secret seal.

Given at Versailles, on ♦^'O twenty-third day of the month of

November, in the year of ^race one thousand seven hundred and

sixty-two, and of our reign the forty-eighth.

Louis.

(By the King) Choisbui, Dckk db Pkabun.

III.

The seventh article of the definite treaty of peace and unity between the King of France, Spain, and England^ signed at Paris on the 10th of February, 1763; which is word for word, the same with the sixth article of the preliminary convention between the same powers, signed at Fontainebleau on the 3d of November, 1762. Article 7 or 6. In order to re-establish peace on solid and durable foundations, and to remove forever all motives for dispute respecting the limits of the French and British territories on the American con-tinent, it has been agreed that the limits between the states of his most Christian majesty and those of his Britannic majesty in that part of the world, shall hereafter be irrevocably fixed by a line drawn along the middle of the river Mississippi, from its source to the river Iberville; and thence, by another line through the middle of that river, and of the lakes Maurepas and Pontchartrain, to the sea; and for this purpose, the most Christian king cedes to his Britannic majesty, and guaranties to him, the entire possession of the river and port of Mobile, and of all that he possesses or should have pos-sessed on the left bank of the river Mississippi, with the exception

APPENDIX.

of Ncw.Orloans, and of the island whereon that city stands, ^^htch are to renmln sul.joct to Fmnce; it being undcrHtood that the naviga-tion of the Mississippi lliver is to bo e-pmlly free to the «ubjecU. of (Jreat Britain and of Frauee, in its wlu.io breadth and extent, from its source to the sea, and purtieularly that part between the «a.d .sland of New.Orleans and the right banli of the river, as well <;« the en-traneo and departure by its mouth. It is n.oreovor stipulated that vessels belonging to the subjects of either nation are not to be detained, searched, nor obliged to pay any duty whatsoever Iho stipulations contained in the fourth article, in favor of the n.hab.lants of Canada, are to be of e.iual eO'ect with regard to the nihab.tants of the eountries ceded by this article.

IV.

NoUfrom the French Minuter to the Spanish Ambassador.

Vkhbaillks, Ji>n7 2l, 1704. To THE CoNDE uE FcE.TES :_5/r,-The king has caused the ncccs-sary orders to be issued for the surrender of the country of Lou.smna, IZ New-Orleans and the island on which the said c.ty stands, nUo the hands of the commissioner whom his Catholic majesty may ap-noint to receive them. I have sent the same papers to the Marqu s KUm ho win have the honor to present them to his Cathobe „.Ly. Your excellency will see that the king's orders are enl.rely

Tolrmablewith the acts «'«n«^'" ^^«\-^ ^^f^ ^'^XCa" caused some articles to be inserted, equally conducive o the tran quimty of the country afterit is in possession of his Cathohc majesty, and to the happiness of its inhabitants.

I have the honor to be, with great esteem, your excellency's most humble and obedient servant, ^^^^ ^^^^ ^^ Ciioiseul.

V.

Commission of Don Louis de Unzaga y Amezaga. Don Carlos by the Grace of God, &c.-Whcroas, Don Alcxan-droS^ReU ieutenant-gcneralof myroyal armic, and inspector-glral of all my inflmtry, under my commission in the provmceof

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lOISEUL.

Dn Alcxan-

inspector-

province of

APPENDIX.

241

Louisiana, by a letter of Di-cemhor 10th, 17('0, has represented to me, that in consequence of the order which I had deigned to send him, appointing you, Colonel Don Louis Tnzaga y Aniozaga, political and military governor of the city and province of Loui^iiana; he had put you in poRsesiiioti of your command, and had given you proper in-structions fur the performance of its dutie!«, communicating the neces-sary orders to the treasury of the said city to make advances to you out of the sum of six thousand dollars assigned to that office; and that, until such asitignmcnt should receive my royal approval, you would remain responsible for all that you should receive of the same; and as there was yet no example in that city of the sum for which each governor was required to be accountable, as security for his proper administration, he had considered your salary as fixed at three thousand dollars, (taking into consideration the dependencies of that province,) and the amount of your security at the same ; and in order that you might not be reduced to seek for .an inhabitant of the city to become your security, you might h'ave a fifth part of your salary, each year, in the treasury, so that at the expiration of the five years of your governorship, the whole amount would be in my royal treasury ; adding, that he also thought it proper you should be free from the duty of media anata as the ofRee was but newly established; all which dispositions I approved by my royal order of March 24th, 1770. Moreover, having consulted my council and chamber of the Indies, on the 27th day of February of this year, I resolved to order this, my royal patent, to be issued in your favor, declaring you hereby ex-empt from the duty of media anata, as the office has been but lately established, and that the five years of your governorship are to com-mence on the day in which you took possession of the same, your security being arranged as determined by my said commissioner. It is, therefore, my will, that you, the said Don Louis de Unzaga y A mezaga, should be military and political governor of the city of New-Orleans, and province of Louisiana; and I command the council, justices, and magistracy of that city, with the other judges and justices of the same, and of the province, that, after you shall have taken before that assembly the oath and obligation according to the statutes and cus-toms of Spain, in the form established by the said Don Alexattdro O'Reilly, to keep the said city and province in my royal name, and never to deliver nor to surrender it while you live, to any enemy or any person, unless coming with an order to that effect, signed by my

16

APPENDIX.

)l-

roval hand; you should be left in exercise of the said office, for the safd space Jf five years from and after the day on wh.ch you enter „t OS ion of it. or as long as it may bo my royal pleasure; the . forts soldiers, ammunition, and artillery of the said provmce and ctty. hi; deUver^d up by those who may have them in charge, to be used ad ommanded b'y y'ou in all cases and things pertaining thereunto; vou conducting the said military and political government, as your 'rdeceslr Don Antonia de Ulloa, captain in my royal navy, should Tave conducted it. and as the other political and military governors of my kingdoms in the Indies should ; remaining subordmate o my «Iv" nor fnd ca4>tain.gener.l of the island of Cuba nnd c.ty of Ena in politll and military matters, and in all other cases and h «^^^^^ to the said office, conformably to the terms of one of the royal c^«?a,, which you will receive, bearing date on this day you will, therefore, in 'all cases and affairs which may present themselres. r gulate your conduct by the orders which the s d "rs ;nd Lptain-general may give you; obs-vmg m a^l pol t. ral and iudicial concerns, the laws and proceedmgs of the courts, aus^ tiem to be fulfilled in all Po-ts. unless you may have orders o the contrary from me ; and you are not to interfere m the affairs of my oyal h'acienda, or the management of my royal treasury m the" aW province and city; because, as governor, you have no farther powers ^such matters; than that of interposing through the royal office n cases of introduction of illicit goods and confiscations, and iu Sng vessels arriving there, either yourself in person, or by you "17' Wing likewiryour duty to devote yourself w>th especial S purity and disinterestedness, to the defence and security of the province, and to the maintenanceof the most perfect disciphne.^^^^^^^^

Lse in garrison, to the prevention of illicit trade, and to the faithful

°';rr::Snm:l:;^tiacounciUus.ces and magistracy c.

the X of New-Orleans, and all others, ministers, sojourners and

ISntl thereof, and of the province of Louisiana as soon as r.

Lred by this my royal patent, to have, receive, and hold you as

s': h miliUry and'political governor of the said ?-- and -t J

for the whole period during which, as above expressed, '* « -"7 J^'U

L vou should exercise this office ; preserving and securing to you,

l„d to such deputies that you may appoint, according to the forrn

, estaUUhed in another royal cedula, bearing date also this day, all

. .^jBMMWfe ' -^'M ' " ' ''"*'' ' --' ^''^'^"' '' '''

for the ^ 3U enter ire; the , iindcity« I be used ereunto;

as your jr, should overnors te to my I city of jases and IS of one ! on this y present

the said all politi-he courts, ive orders the affairs ■easury, in no farther I the royal itions, and )r by your th especial rity of the line among the faithful

igistracy of urners and

soon as re-Dld you as e and city, t is my will ring to you,

to the form this day, all

APPENDIX.

243

honors, favors, rights, privileges and immunities without exception, corresponding with the respective stations ; all such deputies and others in the said province, commandants, officers and soldiers, con-sidering you as such military and political governor, and obeying the orders which you may give them in my royal service, either verbally or in writing; and I command the royal officers of the said province to pay you, if they have not already done so, the six thousand dol-lars mentioned above, as your salary, for every year of your service, out of any funds which are or may be in my royal hacienda, on authentic presentation of this patent, with your receipt, which sums ■> will be passed to your account for your satisfaction ; it being under-stood, however, that a fifth part of your said salary is to be annually retained as security for your administration. I declare, that for this tavor, you are to pay no duty of media anata, inasmuch as the office you hold is one of recent creation. And note shall be taken of this patent, in the qffices of the accountants-general of distribution of my royal hacienda, and council of the Indies, within two months after the date thereof, in default of which the same shall be void: note shall also be taken by the said royal officers, of the city of New-Orleans.

Given at San Ildefonso, this 17th of August, 1772.

(Signed) I, The Kino.

VI.

Commission of Don Bernardo de Galvez.

Don Carlos, bt the Grace of God, &c. —Whereas, in considera-tion of your merits, and of the especial services performed by you, Don Bernar'lo de Galvez, colonel of the stationary regiment of infantry of Louisiana, while acting as governor, ad interim, of that province, and in condescension to the desires of its inliai)itants, I have thought proper, by my royal decrees of the 22d of April last, to declare you governor {en propriedad) of the same.

Therefore, it Is my will, (hat you, the said Don Bernardo de Galvez should be political military governor of the city of New-Orleans, and province of Louisiana; and I command the council, justices and magistracy of that city, with the other judges and min-isters thereof, and of the province, that, after you shall have taken before that assembly the oath and obligation, eonformably with the

APPENDIX.

W

u

statutes and custom of Spain, and according to the form estabhshed by LieutenantOeneral Don Alexandro ffReilly, to keep the satdaty .andprovince in my royal name, and not to deliver or surrender them, while you live, to any enemy, nor to any person whatsoever, unless he bring you an authority to that effect, signed by my royal hand, they shall leave you in the entire exercise of the office, which you held ad interim, for the space of five years, more or less, accordmg to my pleasure. The forts, soldiery, ammunition and artillery m the said province, being delivered up to you by those who may have been charged therewith, to be commanded and employed by you, m all cases and things pertaining to them; you exercising the said political and military government in the same manner m which your predecessor, Don Louis de Umaga y Amezaga did and should have exercised it, and as the other political and military governors of my kingdoms in the Indies, do and should exercise it; being subordi-nate to my governor, captain-general of the island of Cuba, and city of Havana, in military and political affairs, and in all cases and ctrcum. stances pertaining to the said office, according to the terms of the royal cedula of August 22d, 1772. You will, therefore, conform m all busi-ness and cases which occur, to the orders received from the said governor and captain general; observing in affairs of politics and justice, the laws, and whatever else may emanate from the courts, causing them to be fulfilled in all particulars, unless where 1 shall have commanded to the contrary. And whereas, by virtue of the regulation issued by the said Don Alexandro O'Reilly, and since confirmed by my royal cedula of July 21st, 1776, you have a right to {oseompeten) the facul-ties of intendant of the said province, you are to manage the affairs of my royal hacienda there, in conformity with the said regulation, and as your aforesaid predecessor managed them; it being likewise your duty to devote yourself with the utmost zeal, purity and disin-terestedness, to the defence and security of that province, and to the preservation of the most exact discipline, among the troops garrison-log it, as also to the extinction of unlawful commerce, and the punctual observance of my royal orders. I also command the said oouncil, justices and magistracy of the said city of New-Orleaus, and all other ministers, sojourners and inhabitants thereof, and of the pro-vince of Louisiana, that as soon as required by this my royal patent, they receive you as political and military governor of the said pro-vince and city, for the whole period above expressed, during which it

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APPENDIX.

245

is my pleasure that you should exercise that office, giving and securing to you, as well as to the deputies {tenientes) whom you have appoint-ed, or may appoint, all the honors, favors, rights, privileges and im-munities without exception, which correspond to the respective stations, the said deputies, and others of the said province, com-mandants, officers, and soldiers, considering you as such military and political governor, and obeying all ordere which you may give them, for my royal service, verbally, or in writing. And the accountant and treasurer of the said province is to give and to pay to you the sum of six thousand dollars, being the annual salary assigned to that office, from the day in which it is proved that you have entered into it, to the expiration of the said term of five years, more or less, according to my pleasure, out of any funds which are, or may enter into my royal hacienda, on due presentation of this patent, and of your receipt, without any other formality ; which sum shall be put down to your account, for your satifaction; it being understood, however, that as security for your administration, according to the form established by the said Don Alexandro O'Reilly, a fifth part of your said salary is to be retained in the royal treasury, in each of the said five years, the sum assigned as duty of media anata, for the said salary, being also secured thereon, by the commissary and accountant of said duty, according to the terms of the royal cedula, of the 24th of May, 1778, together with the 18 per cent, additional, for convey, ing the whole to these kingdoms, as set forth in the regulations of the tariff, and various others on the subject. And note shall be taken of this patent, in the offices of the accountants-general of dis. tribution of my royal hacienda, and of my council of the Indies, with-in two months from the date thereof, otherwise it shall become void: note shall also be taken of the same, by the afore-mentioned account-ant and treasurer of New-Orleans.

Given at Aranjuez, on the 8th of May, 1779.

VII. Dispatch of the Marquis de Orimaldi to Don Louis Umaga.

Saint Ildkfonso, August 24, 1770. Likutbnant-Gbneral Don Alexandro O'Reilly, in his letter No. 33, from this city, dated March 1, sent me copies of the instructions

APPENDIX.

which he had drawn up, for the lieutenant-governor established in the Illinois and at Natchitoches, and the new special (particulares) lieutenants of the districts (partidos) of that province. He informed me, that he had himself been to Point Coupc^, and, at the request of the inhabitants, had appointed a surveyor for each partido, at half the former salary. He also enclosed to me an instruction explaining the forms to be observed in this business, and declaring that the granting of land in that province had been confided by his Christian majesty to the governor and comisario ordenator ; and he considered it would be better in future that the governor alone should be author-ized by his majesty to make those grants; and that orders would be given for conforming entirely with the said instructions, which had been drawn up and printed, in the distribution of the royal lands.

The king having examined these dispositions and propositions of the lieutenant general, approves them, and also that it should be you and your successors in that government only, who are to have the right to distribute {repartir) the royal lands, conforming in all points, as long as his majesty does not otherwise dispose, to the said instruo-tions, the date of which is February 18th, of the present year.

I communicate this lo you, in order that you may understand and carry it into effect. God preserve you many years. Given %t Saint Udefonso, August 24,1770.

(Signed) Marquib dk Grimaldi.

VIII. Itoyal Order to Don Pedro Garcia, Mayoral.

The Pardo, January 28, 1771. By decree of May 2d, 1705,1 communicated to my council that I had appointed Captain Don Antonio de Ulloa, of my royal navy, to proceed to the province of Louisiana, which had been ceded by my cousin, the most Christian king, and take possession thereof, as gover-nor, by virtue of warrants and instructions; making, however, for the time, no innovation in its system of government, which is to be entirely independent of the laws and practices observed in my Ameri-can dominions; but considering it is a distinct colony, having even no commerce with the said dominions, and under the control of its own administration, council and other tribunals ; its direction and

i g^<at-lJa. ' fa«fe^'aw!w.r^-' AMit

picture24

APPENDIX.

247

established in (partlculares)

He informed the request of do, at half the on explaining iring that the f his Christian

he considered >uld be author-ders would be >ns, which had oyal lands, propositions of should be you •e to have the g in all points, he said instruc-snt year, inderstand and

>E Grimaldi.

ral.

try 28, 1771. y council that I ■ royal navy, to sn ceded by my hereof, as gover-ig, however, for ;, which is to be id in my Ameri-ly, having even le control of its ,s direction and

the correspondence with it being reserved to the minister of state, as far as regards the situation of the country, and the laws and customs with which its inhabitants are to remain conforming. But those in-habitants having rebelled, on the 25th, 1708, / commissioned Bon Alexandra O'Reilly, lieutenant-general of the army, and inspector-general of all my infantry, to proceed thither, take formal possession, chastise the ringleaders, and {informing me of all) establish the said government, uniting the province to the rest of my dominions ; all of which he did, adapting its laws, and after proposing to me that which he judged proper for the commerce of the country, and for the extinction of the council by which it is governed, establishing a cabildo in the place of said council, and taking other measures, as will be seen from the statements hereunto annexed; — all of which were approved by me, as likewise the appointment of Colonel Don Louis de Umagay Ame-zaga, as political and military governor, with a salary of six thousand dollars, free from the duty of media anata, and of two royal officers, to take charge of the administration of my hacienda, to wit: Don Antonio Jose de Aguier, as comptroller, {contador,) with a salary of 1600 dollars per annum; and Don Martin Navarro, as treasurer with 1,200 dollars per annum; and of three officers at salaries of 500, 400, and 360 dollars respectively. I have resolved, that all which has been established as above, should remain and continue fixru; the said province being, as to its spiritual concerns, annexed t' ■ the bishopric of Havana, and governed according to the laws of ihe Indies, and the regulations provided in them, and by special orders K»r my American dominions, by the ministry of the Indies and the council, as being incorporated with those of my kingdom ; and also that it depend upon the captain-generalcy and administration of the royal hacienda of Havana, just as the government of Cuba does; for which purpose I approved the formation of a tribunal composed of the captain-general as president, and the auditors of war and marine ; the attorney (Jlscal) of the royal hacienda acting as attorney, and the clerk {escribano) of the government as clerk ; to which tribunal these, my vassals, can appeal, and from it to the council, without being obliged to apply to the more distant audiencia of Santo Domingo. This shall be understood in the council, and in the chamber for its observance; and the cedulas shall be issued, and measures provided for carrying into effect what has been determined ; I being consulted on all doubts, and on all amendments which may offer. * Given at the Pardo, on the 28th day of January, 1771.

APPENDIX

IX.

[Report to the King, on Don A. G'Reillif's Statements.

GovNCiL AND Chamber of the Indies, February 21th, 1772.

Your majesty communicated that you had appointed Don Antonio de UMoa governor of Louisiana, which had been ceded by the most Chriatiun king; and that in the instructions given to him, he was commanded to govern that province independently of the practice observed in America, and under the direction of the council of state; but that the inhabitants, ungrateful for this distinction, had risen up in rebellion—;^r tohich reason your majesty had commissioned Liett' tenant-General Don Alexander O'Reilly to proceed thither, take for-mal possession, chastise the ringleaders, and establish such a form of government as would be most compatible with the condition of tht country, its climate, and the character of its inhabitants, *

Your majesty was pleased then to notify the council of the energy, promptness, and activity, with which Don Alekander O'Reilly had executed these difficult charges; and that the measures he had taken were all so just, and so well adapted to the right intentions of your majesty, that they had merited your entire approbation; and that for their being carried into effect, you had commanded the proper cedulas to be issued, yourself being consulted on all doubts and amendments which might present themselves.

The council, entering into the spirit of the royal decree, has exam-ined with scrupulous attention all the dispositions of the said Don Alexander O'Reilly, with all his orders, and proceedings in Louisiana; to which effect it has referred to all the documents accompanying the said decree, viz.: the credula, by which his commission was given, with power to take possession of said province, and six statements, made by him; together with six draughts of royal orders, approving the same—the whole drawn out at length.

O'Reilly setd forth in hh ^rst statement, that the province of Louisiana cannot subsist without trade, its inhabitants requiring flour, wine, oil, arms, ammunition, and all sorts of clothing; in exchange for which, they could give indigo, cotton, skins, Indian corn, rice, and especially woods, which could be sold to great advantage in Havana, if that port were opened to free trade with Spain, with the understand-

picture25

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enta.

1th, 1772.

Don Antonio by the most him, he was the practice acil of state; had risen up 'sioned LieU' her, take for-th a form of Ution of the

f the energy, O'Reilly had ie had taken ions of your and that for roper cedulat amendments

e, has exam-;he said Don n Louisiana; npanying the ,s given, with ments, made pproving the

province of quiring flour,

in exchange >rn, rice, and 9 in Havana, i understand-

APPENDIX.

249

ing, however, that the productions of the province should pay no duty on entering Havana ; nor any alcabala or export duty be laid on goods leaving that port for Louisiana ; that all vess^els belonging to the colony should be admitted as Spanish into Havana, and nil other ports of Spain, with the restriction, however, that no vessel be admitted into New-Orleans, or employed in transportation, unless it be Spanish, or belonging to the province; that vessels arriving from Catalonia with red wine, should take away wood and other articles to Havana, and thence carry sugar; that, for just reasons, he had ex-pelled from Louisiana the English merchants who were established there, and who ruined and impoverished the country by their monopolies and illicit trade; for which he hoped to receive your majesty's approbation. >

He merited such approbation in reality, as appears from the royal order accompanying; and the council having heard the opinions of the attorneys and comptrollers general, declares, that the measures set forth in the said statement, by General O'Reilly, are so proper and so well calculated to render that province happy, that they alone are sufficient to show the profoundness of his comprehension, the '^)u-blimity of his spirit, and the correctness of his judgment; that t'iere is nothing which should be altered in them ; and in those measures, it can see the germ of many improvements, and much that may con-duce to the advantage and prosperity of the colony.

The council, however, considers, that it is not proper to exempt forever from duty goods transported from Louisiana to Havana, but only for a time, and until the motives for such an extraordinary favor shall have ceased. Your majesty is to resolve, also, whether they shall pay the duty of amoxarifazgo ; and, u pon the whole, it is the opinion of the council, that proper cedutas should be issued for carrying into effect the system of commerce, as proposed by the said O'Reilly. '^

General G'BeiUy, in his tecond ttatement, considers it necessary that the said province should be subject to the same laws as the other domin-ions in America; and that all the proceedings should be carried on in the Spanish language; that a new tribunal should be created, com-posed of judges understanding both languages, the appeals from which should not be carried to the audiencia (a higher court) of Santo Domingo, with which the province has but little intercourse, but to Havana, where a tribunal should be established for the pur-

'■ ■aa i i. ' MiWMji'jWit'Baa

APPENDIX.

pose, composed of the governor, the auditors of war and marine, the attorney of the royal hacienda, and the clerk of the government; and from which they should come to the council. Finally, that the government of Louisiana should be dependent on the captain-generalcy and ministry of the royal hacienda of Havana.

Your majesty approved these dispositions of O'lluilly, and the council, considering this as an evi Jence of the advantages to be de-rived, admires th# meai^ures of the naid general, which prove the yastness of his genius, and that the establishment proposed by him is so fur worthy of being made, that the necessary cedulaa should be isbiied to the ministers cf Havana and New-Orleans, regulated in all poinis acci'fding to you; prudent orders, but with the condition, that the int^ndants of the royal hacienda and matine are to have voice and votes ii. the new Iribunal to be formed in Havana.

O'Reilly, in his third statement, declares that he has chosen six regidores, or magistrates of New-Orleans, to form a municipal coun-cil {cabildo), two ordinary alcaldes, a syijdic attorney-general, and a superintendent of public property {Mayordomo de Propioa) ; giving ' the names of these persons, and annexing two principal copies of instructions—the one for the regulation of the cabildo, and the in-struction of its members—the other for the direction of the judges; that in the said cabildo, he had put Don Luis de Unzaga in possession of the government, and had abolished and suppressed the old council; that he assigned more proper salaries to the regidores, clerk, and assessor, and made arrangements for building a house of ayuntamiento (meeting of the municipal body), by a person to whom he had ceded the proprietorship of the land destined for the government garden; and that as funds for the city, he had assigned certain duties on shops, taverns, gaming houses, &c., the arrangements respecting which were received by the inhabitants with great satisfaction; that there had been long established in that capital, a duty, under the denomi-nation of anchorage, destined for the preservation of the levy ; and as repairs were constantly required, he had made no innovation either in the duty or in its destination. Finally, that the appointments of regidores, clerk, Asc, as well as the assignment of funds for the city, merit your majesty's approbation to their firm establishment.

Your majesty has given this approval, and the council respects so wise a resolution; admiring in O'Reilly the energy with which he has proceeded in matters which were out of his ordinary employ-

APPENDIX.

251

marine, tlie nment; and ly, that the the captain-

iy, and the Tea to be de-h prove the tosed by him an should be (ulated in all mdition, that ive voice and

s chosen six inicipal coun-eneral, and a oios) ; giving ' pal copies of , and the in-f the judges; in possession J old council; >s, clerk, and ayuntamiento he had ceded nent garden; ties on shops, ecting which >n; that there r the denomi-he levy; and ovation either pointments of s for the city, iment.

1 respects so rith which he nary employ-

ment and sphere; in his provisions for the civil, economionl, and political government, nothing has been found requiring amendment or addition; moreover, in both undertakings, there appears u delicate knowledge, and acute discernment of the laws of both kingdoms, as well as of the practical and the forensic styles of our courts. The council, therefore, conceives that proper cedulas should be issued, for the formal establishment of these excellent provisions, it being also ordered that some copies of the digests {Recopilacion) of the laws of the Indies, and of Castile, be sent to the colony, and deposited among the archives of the ayuntamiento, in order that the natives of the country may instruct themselves in the form of our government, more minutely than they can from the manual drawn up, with such discretion, by the said general, inasmuch as the latter, though very clearly and methodically expressed, is only an abridgment or com-pendium.

O'Reilly declares in \i\9 fourth statement, that conformably with your majesty's resolution, he had put Don Luis de Unzaga in posses-sion of the political and military government, with a salary of six thousand dollars, from which are to be discounted one-fifth as security, to be restored to him when his term of office expires; it ap-pearing proper that he should be freed from the duty of viedia anata, as the office was one of recent creation.

These dispositions, also, merited your majesty's approval; and the council is of opinion that the cedula should be made out; conforma-bly with what is proposed by the said general, who, in these, as well as in other provisions, has acted with the most consummate policy.

With this^A statement he sent a minute regulation, in which he detailed all the expenses of your majesty in that province, and which were considered necessary, under present circumstances, taking into view the commerce, genius, character, climate, and the causes of the late difficulties among the colonists ; he showed that he had reduced the number of persons employed in the comptroller's office, and in the public store, without any detriment to the prosecution of busi-ness in either office; that eighteen priests, understanding both French and Spanish, were required for the parishes of the country; and that supposing the spiritual affairs to remain under the direction of the bishop of Havana, that prelate might direct some friars of the com-munity of Saint Francis, ut that city, to learn the French language,

-msmi^—

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„^"

APPENDIX.

in order that those missions may at all times be filled ; and that if your majesty approved the enclosed regulation, 130 dollars a year would be saved of the 250 with which the colony was endowed.

Vour majesty also approved all tlial had been propoeed and done by the taid general; and the council consider i that it justly merited the royal approval, nothing appearing among the provisions which does not conduce to the interests of your majesty,and the happiness of the colony. It sees, by the admirable arrangement of pay and destination, which he has proposed in the military and political classes, the treasury gains 130 dollars, which advantage is due to the ^comprehensive and indefatigable genius of the commissioner.

The council also is of opinion that the commissioners should be sent, as proposed, and that the proper cedulas should be sent, for both purposes, as also for the establishment, as your majesty ordains, of public schools, in which thejirst principles of the Christian doctrine may be taught in the Spanish language, in order that the use of the same may be extended. The council hopes your majesty will have sent to him a copy of the contracts to be made with the director and masters of public schools, and the salaries to be paid to the friars, while studying, in order that they be transmitted to the comptroller-general, to be included in the accounts of Louisiana.

In the sixth and last statement, he informs your majesty that he had appointed a lieutenant-governor for the district of Illinois, Natchi-toches, Aic.and giving instructions for the purpose of putting an end to Illicit commerce,preserving good order, and maintaining the provi-sions of the supreme government; he also encloses copies of tLe said instructions, adding that the colonists had admitted the regulations with good will, and they were likely to secure their affections for the sovereign under whose mild government they lived; that in order to complete this, he had gone himself into that distant province, visiting each village, listening to the colonists, and deciding in their disputes and complaints, without the embarrassing forms of forensic proceed-ings ; that he had caused the lands of the inhabitants to be surveyed, fixing the limits, and subjecting this distribution to the forms con-tained in a paper accompanying; that he considered it prober that grants of lands to the colonists should, in future, be made by the governor alone; your majesty first authorizing him to make these grants ; and that they should be regulated according to a paper which O'Reilly caused to be drawn up, in a meeting {junta) called foeJ^t,,

picture26

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nd that if your a year would ed.

ed and don* by tly merited the which does not 18 of the colony. tination, which I, the treasury prehensive and

lers should be i sent, for both 'ity ordains, of istian doctrine f the use of the esty will have le director and d to the friars, le comptroller-sty that ho had Uinois, NatohU putting an end ining the provi-pies of tl.e said the regulations Fectiuns for the that in order to ovince, visiting 1 their disputes rensic proceed-bo be surveyed, the forms con-d it prober that e made by the to make these ^o a paper which ) called for that

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APPENDIX.

253

purpose, and composed of the persons best acquainted with the aflairs of the colony.

Your majesty deigned to approve the provisions of this last state-ment, as well as those of all the preceding ones, except the article relating to the punishment of adulterers, which was ordered to be led in suspense. And the council considers, that in a cumniission so troublesome and difficult, and which, from the number of intricate matters embraced, met with numerous obstacles, and demanded a high degree of method and order, Don Alexandro O'Reilly has had the good fortune to be right in all cases, and to arrange things with so much prudence, that (provided his plans are suifjred to continue) all will infallibly be conducted for the best interests of both their majesties. He has caused the new power under which the colonists are placed, to be loved and respected ; he has enforced justice and the laws; has protected and extended commerce; has established harmony and concord with the neighboring Indians ; has ordered and placed troops at convenient positions, disciplining them with that skill which is so remarkable even among the many extraordinary qualities of this general officer; nothing has escaped his comprehen-sive penetration. The particular employments of persons destined for the public service—utensils to be distributed to the troops—the formation of various companies of militia, and their duties—and in a word, all that belongs to the political and military government of that province, has been disposed by this general with so much accu-racy, prudence, and wisdom, that the council finds nothing requiring the slightest amendment; but, on the contrary, many things worthy of its admiration and praise, which it justly bestows ; all of which, it appears to the council proper that your majesty should approve, and that royal cedulat should be issued conformably with the representi^ tions, instructions, and notices of this commissioner.

The chamber represents to your majesty, that at the same time the eedulaa are sent, the royal will be expressed to the bishop of Cuba, that he, in exercise of his new jurisdiction and pastoral ministry, promote all that may conduce to the spiritual government and good of those parishes, and that he give account of what occurs, as well as of what he considers necessary for the improvement.

Determined March 23, 1772, thus: "*

. " Let the above be carried into effect, and the proper cedulas be issued by the council, for the confirmation of those establishments, in all their points.

Jij4f,U;t!A'iJ«JS ' JVJSR' g

APPENDIX,

ORDINANCES AND INSTRUCTIONS OT DON ALEXANDER o'rEILLT,

Commamler of Benfai/an, of the order of Alcantara, Lieutenanl-General of the armies of IIi» Majesty, Inspector-General of Infantry, and, by commit-sion, Governor and CajitaiH'General of the province of Louisiana.

The prosecutions which have been liad in consequence of the insurrec-tion which has taken place in this colony, having fully demonstrated the part and iiiliuetft:e which the council have taken in those pruceedingsi countenancing, contrary to duty, the most criminal actionn, when their whole care should have been directed to maintain the people in the fideli-ty and subordination which are due to their sovereign; for these reasons, and with a view to prevent evils of such magnitude, it is indispensable to abolish the said council, and to establish in their stead that form of politi-cal government and administrationof justice prescribed by our wise laws, and by which all the states of his majesty in America have been main-tained in the most perfect tranquillity, content, and subordination. For these causes, in pursuance of the power which our lord, the king (whom God preserve), has been pleased to confide to us by his patent, issued at Aranjuez, the 16th of April, of the present year, to establish in the military police, and in the administration of justice and of his finances that form of government, dependence, and subordination, which should accord with the good of his service and the happiness of his subjects in this colony: We establish, in his royal name, a city council or cabildo, for the administra-tion of justice and preservation of order in this city, with the number of six perpetual regidors, conformably to the second law, title 10, book 5, of the Recopdacion do las Indias; among whom shall be distributed the ofTices of alferes royal, alcade mayor provincial, alguazil mayor, depository general, and receiver of penas de camara, or fines for the use of the royal treasury; these shall elect, on the first day of every year, two judges, who shall bo styled alcaldes ordinary, a' syndic procuradOr general, and a man-ager of the rents and taxes of the city; such as the laws have established for good government and the faithful administration of justice. And as the want of advocates in this country, and the little knowledge which his new subject possess of the Spanish laws, might render a strict observance of them difficult, and as every abuse is contrary to the intentions of his majesty, we have thought it useful, and even neoessaxy to form an abstract or regulation drawn from the said laws, which may serve for instruction and elementary formulary in the administration of justice and in the economical government of this city, until a more general knowledge of Spanish language may enable every one, by the perusal of the aforesaid laws, to extend his information to every point thereof. In consequence

SEILIT,

anl-Generdl of nJ, by commit-sianu.

f the insurreo-aonst rated the a proceedings! isi, when their e in the fideli-these reasons, idispensable to L form of politi-our wise laws, ve been main-■dination. For le king (whom itent, issued at in the military ;es that form of iccord with the s colony: We [he administra-i the number of e 10, book 5, of distributed the lyor, depository use of the royal wo judges, who ral, and a man-lave established ustice. And as ledge which his trict observance intentions of his form, an abstract e for instruction ice and in the al knowledge of of the aforesaid In consequence

APPENDIX.

255

whereof, anil with the reserve of his majesty's good ploasure, wo order and command tho justicoi, cabildo, and thoir ollicers, to conform punctually to what is required by the following articles:

SXCTION I.

Of the CahiMo.

1. Tho cabildo, at which tho governor shall preside, or, in his absence, the ordinary alcalde, who shall have tho first voice, shall assemble at the city hotel on the first day of every year, and proceed to the election of ordinary alcaldes and tho other officers above mentioned; it shall also as-semble every Friday, for the purpose o^deliberating on all that may con-cern the public welfare. The syndic procurator-general shall propose in these assemblies what'may appear to him for the welfare of the colony. One or two regidors shall immediately after inform the governor, if he has not presided, of the resolutions that have been taken; and, except in pressing cases when the cabildo for very important reasons may assemble at the governors dwelling, it shall not assemble in any other place than the city hotel; under the penalty, to the officers who compose it, of being deprived of their employments.

2. In urgent cases, which cannot be deferred until the usual day of meeting, the regidors may hold an extraordinary sitting; they shall be notified to that etfect by one of the door-keepers of the cabildo; and if any one of the members shall not have been notified, the resolutions which may have been taken shall, if he shall challenge the same, be void; as also in case the majority should not have been notified, even if those who have not been notified shall not object thereto. No assembly shall ever be held but by order of the governor, and the assistants shall keep a pro-found silence in respect to the subject upon which the assembly may have deliberated.

3. The regidors shall have an active voice in the elections, as well as the alcaldes of the preceding year, who shall remain in the cabildo until the election of their successors shall be confirmed, and they shall have been received. The alcalde, however, who, in the absence of the gover-nor, shall exercise the functions of president, shall not have an active voice; and so soon as the elections shall have been determined, the secre-tary of the cabildo shall give information thereof to the governor, who alone may decide on the validity of the opposition made by any member to the persons elected to the municipal offices, and confirm the alcaldes and other officers.

4. The office of alcalde should be given to capable persons who may have the information necessary to fill worthily a charge so important. They shall have a house in the city, and shall reside therein. Those who

,?!Mt-«tt>^ilJJ^4a.!ta^.^'^^ ' "T '

^* APPENDIX.

are employed in the militia may be named to those offices; and they may also be given U. the regidors. vrhose employments may not be .ncom-

n'';r alclS Ke other elective offices of the cabildo cannct be continued in their employments but when all the ^e^b^^^^^^hout excep-tTon shall have given their vot«s for their continuation. Withou this con-dTrn'they cltt be re-elected until two years after they shall have quitted the distinguishing badge of their office. • .„v,,,, ,„ »»,-

^ 6. Neither the officers of the finances, ^^ose who are indebted to the said finances, the sureties of either the one or the other, those who have not attained Ihe age of twenty-six years, nor the new converts to our holy faith can be elected to the said offlces.

7 The election being confirmed by the Soyemor,a.. Mee^rs^^ deUver tickeU from the escribano to the elected, notifymg the- to attend at the hall of the assembly, in order to take the o^'\P]'^'^''^'^^J^^l' the form ofwhich will be found annexed to this regulation, and to be re-ceived and put in possession of their offices. .n i aUaaAl.,

8 The escribano of the government will keep a book entitled " Re olu-tions "in which he shall record the elections and decisions of the a em-15 orlary and extraordinary; and which .hall be signed by all the judges and members who may have assisted thereat.

^ 9 The regidors cannot give their votes for the said <'«<'«'' '"J^j;;/ the r father, son, brother, step-father, son-in-law, step-son, or step-bro her lf"erwi;es, although 'they may be elected by all those who shaU be 'irW^neverthe cabildoshall deliberate upon an afTairwhichmaV per-Jally re^d a regidor, or other officer of the cabildo, or even any one of ^b- l^inr for other particular reasons which might induce a sus-

"ir^rt^rrrl^r^sf:?! dispatches,which maybe ad-

mey may o alcaldes should be wantmg at the same

"Twtrev., tt..r.gido» m., ».W i« . lKKly,th.y .Ul P-."/"-

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•air

I

T

»; and they )t be incom*

o, canntt, be thout excep-out this con-f shall have

lebted to the le who have ts to our holy

keepers shall lem to attend ibed by law; and to be re-

,led "Resolu-of the assem-led by all the

3es in favor of • step-brother, who shall be

'hich may per-ren any one of induce a sus-all not return

h may be ad-athorized min-,11 be recorded, ildo.

y alcaldes, the g the time that ho may be de-g at the same or, provided he h that employ-heads of those

r shall preserve eres royal shall

APPENDIX.

257

take the first place; the alcalde mayor provincial the next; the alguazil mayor, and the other regidors according to liieir rank and their seniority-

14. Each regiJor, according to his rank, and by tuins, shall be charged with the maintenance of the municipal ordinances, and the other dispo-sitions of government for the public good. He shall attend to the prices of provisions, e.vacting the fines, and putting in force the penalties incurred by the delinquents.

15. Whenever there shall be the question of augmenting the price of meat, with which this city is abundantly and constantly supplied, the ca-bildo, at a public bidding, shall adjudge the contract to him who shall oblige himself to furnish it on the best terras and for the greatest advan-tage of the public.

16. The Ciibildo shall have cognizance of appeals from sentences pro-nounced either by the governor, or by the ordinary alcaldes, where the sum does not exceed 90,000 maravedis; which must be understood as extend, ing only to causes wholly civil, for in criminal cases the appeal must be made to the superior tribunal, which his majesty will have the goodness to appoint, in consequence of my representations to him on that subject,

17. To legalize similar appeals, the cabildo shall name two regidors who, in quality of commissioners, and after having taken the oath, shall decide on the justice or injustice of the sentence from which an appeal is made, conjointly with the judge who may have pronounced the same. The nomination shall be made so soon as the cabildo shall be required thereto by the appellant; the form of which, and of the institution of the said appeal, will be detailed in their places.

18. In the first ordinary assembly which may be held after that for the elections of each year, the cabildo shall name two regidors to receive the accounts of the mayor-domo de proprios of the preceding year of the sums which he may have received for account of the city, and of the expendi-tures by order of the cabildo for the objects to which those sums are des-tined. They shall have those accounts rendered with the greatest exact-itude, and shall oblige the said mayor-domo to deliver up immediately to his successor the re.sidue of the said account; the said regidors being re-sponsible for the total thereof when the said accounts shall be settled by one of the principal officers of finance.

19. Although the application and expenditure of the proprios for the objects to which they are destined belongs to the cabildo, it cannot, even in extraordinary cases, dispose of more than 3,000 maravedis thereof; and when a greater expenditure may be necessary, the consent of the governor must be previously obtained, without which the said cabildo cannot assign either salary or allowance upon any occasion whatsoever.

20. The electors in the two jurisdictions being responsible for the injury and detriment which the public may sustain by the bad conduct and in-

17

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•meii liMHiWii'i^'> JliMtW

APPENDIX.

inations during the time they ^y ^^/^^J: ;2tdTn that respect.

aoonsible for the consequences which ma> resuio neglect of exacUag those securities f..m the go^

...igning them, by which lh.y «'",^''f"''™':^„„ ,„ ,h, iiret

™E'5rh:^tr^^»w..htj;»^;;^t;t;r^^^^ ■s;r:j^cr.i::urt^^;r.rr;sae.«h.».y

said assignment, as liKewise uiu au ,, '-ijuer of these precau-

assignor shall have survived^^-.T^/^ttwoffi^^^^^^^^^ '^'^^ ^ tions be taken the assignor f ^"J°^^;' f^^^^^^^^^^ ,„'d neither he nor

^T, m Lt' assignments shall not be valid, unless made in favor of pe^rkno"^ t^ Wpable, of the age of twenty-six years, aud posse^

The said assignments shall be carefully executed and preserved Dy p lie notary of the place at which they may be made. ^

l# l |W» l l« «fcl M i ri' i

APPENDIX.

259

the manage-ts in the elec-God, the king; t, their choice )8t suitable for n for the kingi

I. K

rem the gover-itsurety, anda :ies and exam-lents; and that \ that respect, ildo, who is re-,a omissioa or

may be sold; nner prescribed lis favor, and in y the facility of ferred from one ury, for the first ay be rated, and lereof, exclusive ny deduction in Icaldes who may

lurvive the same (of; and the as-iventy days from ibstantiating the nty days that the of these precau-B, which shall be lid neither he nor ch the same may

made in favor of years, aud posses-on good of the re-jury which would ese qualifications, reserved by a pub-

Section II. 0/the Ordinary Alcdlda.

1. The ordinary alcaldes shall have cognizance of all matters in dispute, either civil or criminal, betwein inhabitants residing within their jurisdic-tion, whi h shall ext«nd throughout the city and the dependencies there-of, excepting those which may come within the cognizance of the eccle-siastical, military, or other special court.

2. The ordinary alcaldes cannot interfere in aflfairs of government, which come exclusively within the jurisdiction and competency of the governor.

3. In all matters on which the cabildo may deliberate, the ordinary alcaldes, who may assist thereat, shall, during their year of office, have an equal vote with the regidors.

4. The alcaldes shall appear in public with decency and modesty, bear-ing the wand of royal justice—a badge provided by law to distinguish the juidges. When administering justice they shall hear mildly those who may present themselves, and shall fix the hour and the place of the audi-ence, which should be at 10 o'clock in the morning, at the city hotel; and for the decision of verbal causes, in the evening between 7 and 8 o'clock, at their own dwellings, and in none other.

6. One of the principal objects of justice being to prevent, effectually, those disorders which take place during the night, one of the alcaldes, as-sisted by his alguazils and the escribano, should go the rounds of the city; and, in case a greater force should be necessary, they piay not only de-mand it from those persons who may be present) but also from the corps-de-garde nearest thereto.

6. It is also the duty of the ordinary alcaides to keep a watchful eye upon fornification, and to punish the same, and all other public oflences, conformably to the laws: of which a sufficient detail will be given herein.

7. The alcaldes may hear and decide verbally in civil cases, when the demand shall not exceed twenty dollars, as also in criminal causes of little importance. They may also hear and decide verbally those which may exceed that sum, in case the parties interested shall consent thereto.

8. Causes legally brought before one of the judges shall be continued and determined in his tribunal, and neither the governor nor any other shall deprive him of the cognizance thereof. Tho governor, however, being required thereto by the parties, nay, by an order in writing, and suitable to the case, require and summon the alcalde to render speedy justice, conformably to law.

9. In cases of controversy, with respect to jurisdiction, between the governor and one of the alcaldes, or between these last, where one of them may claim the cognizance of a cause instituted with the other, either by reason of the said cause having been also instituted in his tribunal, or his

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picture27

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< APPENDIX.

supposing the same exclusively within his jurisdiction, they ^^^^^^"^ ^^TprLverbal of the said controversy, in which they «hal set for^h lir pretensions in a grave and judiciary style, ^he case shall r^^^^^^^ in suspense until the decision of the superior, whom »hey sh^UJe l^^^^^^^^^ to consult and to whom they shall deliver an exact copy f^he proceed ngs unle. one of the judges may give way tothe da.m of the oth^^^^^^^^^^ thereby Put an end to the said controversy. If, however, n the mterval of the Lotion, one of the judges should proceed in, or take the last cog-nLance of 2 aforesaid Luse, he shall forfeit his claim to the same, which shall be immediately vested in the other. ,,„„>,„

0 If one of the parties pleading shall e^^^P* ^g^^^f ^f "^'^f« ^J" may have already Lken cognizance of a cause, he shall "ot «—« * J« Tme but in conjunction with the other; and, if this last should also be evTepted a-ains^, he shall associate himself with a reg.dor, who shall tie an oatl to do his duty impartially, and U> terminate the, cause accordi.-tl law, and as speedily as possible. Whatever may be done bvTl^ dcalde alone, after L may have been excepted agamst, shall be yoid and have no effect. The oath taken by the party o the wntten a t of exception, that he is mistrustful of the alcalde, shall be «"ffic ent to render the same valid; but, if the party shall purpose to exclude h»a en ely from the cause besides the aforesaid oath, he shall -ke ^"own and substantiate the ground on which he reUes ^^ *« l^J^^^'eeTo tensions. If the judge should be ^f^ed, even m he fourth degree, to

- the adverse party, or in such habits of friendship with h.m as to excite a picionof partiality, or prepossessed against the e-eP'°V-J these cases he shall h% excluded from the hearing of the cause in controversy, which shall be committed to the other alcalde.

1 Two referees appointed, one by the alcalde, and the other by the excepU.r, after being sworn to execute their office 7"^-"^' f f ^f ^^^ mine whether the case be of the nature before meiitioned 5 ^nd. rf o^ the said nature, they shall exact the entire exclusion of the alcalde therefrom and i a d fference should arise between the referees, a third named by "e judge, shall -lecide therein; which decision shall be indispensably

"f he diversity of cases not permitting a special detail of the forms of preceding therein, the alcaldes shall be guided by the formulary hereunto amiexed; and shall consult with the counselor, to be appomted for tha rurpose.upon all doubtful cases which may occur m their practice, or whfch may not be provided for by the said formulary; and shal approach Is nearTyL possibb. to the spirit of our laws for the administration of

^"ta'Vhe ordinary alcaldes, accompanied by the alguazil mayor, and the escribano, shall, every Friday, make the visitation o the PJ- Thej shall examine the prisoners, the causes of their detention, and the time

mm^'^^^^w ^

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NOT

ey shall draw ihall set forth shall remain lall be boand f the proceed*? the other, and

I the interval e the last cog-i to the same,

le alcalde who )t continue the should also be dor, who shall ate the, cause • may be done gainst, shall be the written act )e sufficient to o exclude him

II make known iport of his pre-mrth degree, to n as to excite a tor, in all these

in controversy,

lie other by the ally, shall deter-I; and, if of the jalde therefrom; third, named by e indispensably

il of the forms of mulary hereunto ppointed for that [heir practice, or d shall approach, administration of

lazil mayor, and the prison. They ion, and the time

imfi^

APPENDIX.

261

oT their imprisonment. They shall release the poor who may be defamed for their expenses, or for small debts; and the jailer shall not exact from them any release fee. The alcaldes may not set at liberty any of the prisoners detained by order of the governor, or of any other judge, without

their express consent.

14. They cannot release those who are imprisoned for debts due to the domain; nor for fines imposed by law, unless the sum due shall be previ-ously deposited.

15. The governor, with the alcaldes, the alguazil mayor, and the escn-bano, shall, yearly, on the eves of Christmas, Easter, and Pentecost, make a general 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 the debtors are known to be insolvent; and shall allow them a sufficient term for the pay-ment of their creditors.

Section III. Of the Alcalde Mayor Provincial.

. 1. The regidor alwlde mayor provincial shall bear the rod of justice, and shall have cognizance of crimes committed in the inhabited places with-out the cities and villages. Thefts, robberies, carrying away of property by force, rapes, as also treason, assaults, accompanied by wounds, or fol-lowed by death, setting fire to or burning down houses or crops, and other crimes of this nature, shall be within the competency of the said alcalde mayor provincial.

2. He may also take cognizance of t^ aforesaid crimes, although com. mitted in cities, when the offenders hM quitted the same, and have with-drawn to the country with their plunder; as also of murders or assaults committed on officers while in the exercise of their duties, or in the inter-Tal thereof, if the same are the effect of malice. If, however, the gover-nor, or one of the ordinary judges of the city, shall have previously taken cognizance thereof, the alcalde mayor provincial shall not interfere there-in, by reason that the jurisdiction of the same is vested in the ordmary alcalde. The judge, however, who shall have apprehended the offender, shall have the preference therein, even if the others should have preceded

him.

3. Whenever it shall be known Ihat the crime does not concem the tribunal of the Saint Hermandad, the alcalde mayor provincial shall refer the cognizance of the same to one of the ordinary alcaldes, without wait-ing until he may be required thereto.

4. The alcalde mayor provincial shall see that travelers are furnished

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APPENDIX.

vrith provisions at reasonable prices, as well by the proprietors of plant*, tions as by the inhabitanU of the places through which they may pass.

5. The principal object of the institution of the tribunal of the Saint Hermandad being to repress disorders, and to prevent the robberies and assassinations committed in unfrequented places by vagabonds and delin. quents, who conceal themselves in the woods, and attack travelers and the adjacent inhabitants, the alcalde mayor provincial should assemble a sufficient number of the commissaries or brothers of the St. Hermandad to clear his jurisdiction of those kinds of people, by pursuing them with spirit, seizing or putting them to flight.

6. For the purpose aforesaid, and conformably to the usage of the other Indian provinces within the domain of his majesty, the alcaldes mayores provinciales, their commissaries, and the brothers of the St. Hermandad, shall have the right of arresting, either within or without the city, all run-away negroes and fugitives, and may exact a reasonable fee therefor; which right shall not be vested in any other person save the master of the fugitive slave.

The said fee is so much the more just, inasmuch as the alcalde mayor provincial, to comply with his duty, must, at his own expense, travel through the unfrequented places, for the benefit of the inhabitants.

7. The said officer shall render speedy justice in all matters within his competency, and from his judgment there shall be m appeal; otherwise it would be impossible to remedy the consequences tMt would result there-from. But,;on the other hand, his judgments shall be pronounced in strict conformity with the spirit of the laws, to which end he shall consult some lawyer; but, in the interim, he shall be guided by the instructions herein contained, which relate to the administration of justice and the forms of proceeding.

8. This office of the Hermandad being created with a view to prevent those disorders which may be Admitted in unfrequented places, the alcalde mayor should make frequent excursions from the city. This duty consequently renders his emp'.oyment incompatible.with that of ordinary alcalde, to which he cannot be elected, unless he shall have previously obtained permission of the king, to commit a lieutenant^ appointed by him-self, the duties of the St. Hermandad.

9. The said officer, and his lieutenants, should take an oath, of the form annexed to this abridgment; he shall account to the governor for the ap-pointments he may have made, and shall notify him of the judgments he may have pronounced, to the end that the same may be put into execu-tion. Although this formality is not prescribed by any law, yet it is necessary for the purpose of preserving harmony and subordination, and for the purpose of procuring assistance.

10. In all controversies, with respect to jurisdiction, which may occur between the tribunal of the St. Hermandad and any other tribunal of tlH

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of the Saint 'obberies and ids and delin. ravelers and Id assemble a . Hermandad ng them with

;e of the other ildes mayores .. Hermandad, 9 city, all ran. fee therefor; } master of the

dcalde mayor xpense, travel bitants. bers within his sal; otherwise Id result there-unced in strict 1 consult some ructions herein id the forms of

iew to prevent ed places, the ity. This duty lat of ordinary ive previously ointed by him-

ith, of the form rnor for the ap-I judgments he mt into execu-law, yet it is ordination, and

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province, the parties shall conform punctually to the instractions which have been given in the particular article, which relates to the ordmary alcaldes. The instructions which have been jriven in relation to excep-tions against judges, should also be strictly followed, as no altercation •hould Uke place on that subject between these officers.

Section IV. 0/the Algmzit Mayor.

1. The alguazU mayor is an officer charged with the execution of ■entences and juvlgments rendered, as well for payments ordered, taking possession of goods for sale, and imprisonments, as for the punishment of crimes. He cannot be elected ordinary alcalde, unless he shall have ap-pointed a lieutenant to discharge his duties, in the manner prescribed to the alcalde mayor provincial.

2 Recovery of moneys upon writs of execution, orders for taking po^ session of goods, and seizures of real property, shall be carefully executed by the alguazil mayor, he taking the fees allowed by law, and fixed by the tariff included in the present regulation.

3. The alguazil mayor shall also have the supe;intendence of the prisons, shall commission the jailers and keepers of prisons, after having presented them to the governor, that he may judge of their capacity for those offices, under the penalty of being deprived, for one year, ol the right of nominating the same; which right shall, for that term, be vested in the governor. All the jail fees which the prisoners may pay, shaU be for the use of the alguazil mayor.

4. The said officer cannot appoint as lieutenants any persons but such as are known to be suiUble for those employments, who are young, and do not exercise any mechanical profession ; they shall be presented to the governor, and approved by him, and shall take the oath required. The alguazil mayor cannot appoint to the said office either the relations or domestics of the judges and officers, but he shall be allowed to change the said lieutenants, when he may have just reasons therefor.

5. The alauazil mayor and his lieutenants shall go the rounds, and shall visit the public places, both by night and day, to prevent noises and dis-putes, under the penalty of being suspended from their offices, and pay-ment of the damages that may result from their negligence. They shall arrest, without other authority, the offenders, and shall give immediate information thereof to the alcaldes. They shall not tolerate unlawful games, nor public and scandalous offences. They are also hereby inform-ed that, although they have the power of arresting any one without other authority, they may not release the same, under the penalty of being de-prived of their offices, and being declared incapable of holding any other.

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6. The al^uazil mayor shall conrorm strictly to the articles which relate to the prisons, and to the tariff which specifies tlie fees which are demand* able. He shall also assist with the judjores ordinary at the visitations of the prisoners, which shall be made at the times prescribed by this logu-lation.

Section V.

Of the Depotitory General.

The depository general, whose duties are incompatible with those of a judge, cannot be elected ordinary alcalde, unless he may name a lieutd* ant) who may be charged with the care of tiie depositee.

2. Before entering upon the said office, the depositary general shall give good and sufficient sureties, who shall answer for the safely of the depo-sites, and who shall be approved by the governor, the alcaldes, and the cabildo. This surety shall be recorded in the book to be kept by the escribano of the cabildo, for the recording of the deposites; in which he shall inscribe the day, month, and year, of the said sun ty.

3. The governor, the alcaldes, and the cabildo, shall carefully examine the books, which exhibit the sureties of the depositary general, the state of his property, and that of the said sureties, which shall be certified by the esoribano of the cabildo, in order that the same may be verified the succeeding year, and the necessary order taken thereon.

4. If, by the said examination, it shall be found that the situation of the depositary general, or of his sureties, be such as to excite apprehension, they shall prevent him from exercising the duties of his office, until he shall have rendered his accounts, and given a better security.

5. The depositary general shall deliver on the first order the sums which may have been deposited with him, in the same coin ii> whi jh he received them; to which the judges, and other officers competent thereto, should pay particular attention.

i6. The depositary general shall record the deposites in a honk similar to that of the escribano of the cabildo; he shall receive for the same, and for deposite fees, three per cent., as explained in the commission which he iias received for the exercise of his office.

Section VI. Of the Receiver of Finei,

1. The receiver of fines (whose duties are incompatible with those of ordinary alcaldes) shall have cognizance of all matters in relation thereto, as also of those imposed by the judge; of which last he shall keep and fender an account, having for that purpose a book similar to that kept by

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APPENDIX.

266

which relate I are demand* visitations of by this rugu-

ith those of a me a lieute^i-

ral shall give y of the depc aides, and the 3 kept by the

in which he

J

fully examine eral, the state )e certified by )o verified the

ituation of the apprehension, }<Iice, until he

>»'. sums which h he received hereto, should

)ook similar to same, and for iion which he

with those of lation thereto, hall keep and ) that kept by

the escrihano for the same object; in which they shall be entered accord-ing to date.

2. For the safety of the balance of the account rendered by the re-ceiver of fines, he shall give good and sufRcient sureties, in the same manner as the depositary general. Examination shall be yearly made into the situation of the said sureties, which shall be changed if they be> come less substantial.

3. To the end that the receiver may fully discharge the duties of his office, and a certain knoweldge be acquired of the funds iti his possession, the escribano, in whose presence the fines shall have been paid, shall ad-vise the escribano of the cabildo of the same, who shall enter them in a book, the leaves of which shall be marked by the governor. After which, the escribano of the calbildo shall inform the receiver thereof, who, by these means, will at once perceive the amount of the Fums which he ought to receive; and the book of the cabildo will serve to make him render an account of the sums which are entered therein.

4. The receiver of fines cannot employ the proceeds thereof without the order or permission of his majesty, by reason that the same being the pro-perty of his majesty cannot be removed without his approbation. He shall dispose of that portion of them only which have been imposed by the judges in conformity to the orders he may receive, and not otherwise.

5. The receiver shall discharge, out of the aforesaid portion of fines, the drafts which may be drawn by the governor, the alcaldes, and the other judges, who shall restrain themselves to the sums which may be neces-sary.

6. The said receiver shall render a yearly account of the sams he may have received and paid in the execution of his office. His account shall be settled by the officers of finance appointed thereto in this province.

7. He shall be allowed a commission of ten per cent, on all sumi which may be recovered and received by himself, or by those commis-sioned by him, for the recovery thereof.

Section VII. Of the Procurator General

1. The procurator general of the republic is an office', appointed to assist : the public in all their concerns, to defend them, pursue their rights and

obtain justice, and to pursue all other claims which have relation to the public interest.

2. In consequence thereof, the procurator general, who is appointed solely for the public good, sh%II see that the municipal ordinances are strictly observed, and shall endeavor to prevent every matter or thing by which the said public might suffer.

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3. For these purposes he shall apply to the tribunals competent thereto, for the recovery of debts and revenues due to ttie city funds, in quality of attorney fur the city. He shall pursue causes with the activity and dili-gence necessary to discharge him from the responsibility in which ha would be placed by the slightest omission.

4. He shall see that the 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; atid in case of deterioration thereof, he shall demand the renewal, conformably to law.

5. Ho shall be present at, and shall interpose in, the direction of lands. and«ther public matters, to the end that nothing unsuitable or injurious may occur in the distribution of the same.

Section VIII. 0/the Mayor-domo de Proprio$.

1. The mayor-domo de proprios shall have the management of, and shall receive all that is comprised within the denomination of city funds; ho ■hall give receipts to debtors, and shall record all sums which he may re-ceive, as also the expenditures he may make for account of the cabildo, in order that he may be able to render his accounts so soon as his year of office shall expire.

2. He shall discharge the drafts of the cabildo upon the rents *of the city, and none other. He shall abstain from furnishing or lending any sums to any individuals whatever, under the penalty ot being responsible therefor, and of being declared incapable of holding any office in the colony.

3. The construction and keeping in repair of bridges, within and with-out the city, shall not be defrayed out of the city funds; this expense shall be borne by those who shall enjoy the benefit thereof, amongst whom the same shall be proportioned in the manner pointed out by law.

4. Whenever any public work shall be undertaken, either by the cabil-do or by individuals, care shall be taken that the same be substantial and durable. A regidor shall be named for that purpose, who, without any requital, shall inspect the said undertaking. i

5. The expense of public mourning for the royal family shall be defray-ed from tile city funds, with all the economy which the cabildo can adapt to these circumstances. "^

Section IX.

0/the Escribano of the Cabildo.

1. This officer shall preserve in his archives all the papers which may concern the cabildo, or its proceedings. He shall inscribe in a book all the

APPENDIX.

267

petent thereto,

H, in quality of

livily and dili-

in which ha

iliio discharge nl, the receiver ch as are good dl demand the

iction of lands • t>le or injurious

mt of, and shall city funds; he ich he may re-of the cabildo, 1 as his year of

le rents 'of the or lending any ing responsible f ofBce in the

ithin and with-

s expense shall

ingst whom the

aw.

jr by the cabil-

substantial and

10, without any

i

hall be defray-)ildo can aiiapt

ers which may 1 a book all the

•ecuritios and depositos which have relation to the depositary general; and. in another book, those which relate to the receiver of fines, lie shall, also, keep a third book for guardians and their sureties, ordinary and ex' traordJnary, in which he shall also record the patents and commissions gra.ited by his majesty, aud shall take care to preserve the originals in the archives of the cabildo.

2. The escribanoof the cabildo shall never suffer any paper or act to be removed from his archives; and if the judges should be obliged to have recourse to the same, he shall furnish them a correct copy thereof, but shall never part with the ori^rinal.

3. The said escribano of the cabildo, and of the government, shall note at thefoot of all acts and instruments of writing, and copies of the same which he may deliver,the fees which he has received therefor, under the penalty of furfeitini; the same, and of incurring the other penaltioi estab-lished, to prevent him from exacting mora than is allowed by the tariff

4. The escribano of the cabildo and of the government shall in-scribe, in a separate book, the mortgages upon all contracts which may be made before him or any other; he shall certify, at the foot of each deed, the charge of mortgage under which the sale or the obligation may have been made, conformably to the intention of the law, in order to prevent the abuse and frauds which usually result therefrom.

5. The regidors, the escribano, and all those who may succeed to any of the venal ofHces established by the laws of the Indies, are hereby in-formed that the royal ordinances require, that within the term of five years, computing from the date of their commission, they must obtain his majesty's confirmation, and present the same to the governor of the city or province in which they reside, under the penalty of being deprived of the said offices.

Section X. 0/ the Jailer and the Prisons.

1. The jailer 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 received, and to take an oath to discharge faithfully the duties of the said office, to guard the prisoners, and to observe the laws and ordinances established in this respect, under the penalties therein declared.

2. The said jailer must not enter upon the duties of the said office, until he shall have given good and sufficient sureties in the sum of two hundred dollars, which sureties shall warrant that no prisoner detained for debt shall be released without an order from the judge com(>etent. thereto.

APPENDIX

all the prisoners, that of the ju(!ge by whose order they have been arrest-ed, tho caiHO for which they are detained, and the name of those who may have arrested them. He shall reside in prison, and for each considerable fault committed by him he shall pay sixty dollars, applicable one half to the royal chamber, and the other half to the informer.

4. It is the duty of the jailer to keep the prison clean and healthy, to supply it with water for the use of the prisoners, to visit them in the eve. ninff, to prevent them from gaming or disputing, to treat them well, and to avoid insulting or oiTending them.

5. It is likewise the duty of the jailer to take care that tho female pri-soners are separate from tho men ; that both of them are kept in their respective apartments, and that they are not worse treated than their offence deserves, or than is prescribed by the judges.

6. With respect to his fees, the said jailer shall confine himself strictly to those which are established; he shall take none from the poor under a penalty of tho value of the same. He may not, without incurring the same penalty, receive any gratification either in money or 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 chamber, one-third to the informer, and the remaining third to the poor prisoners.

Form of the oath to he taken by the governors, the alcaldes, and the other judges, when taking possession of their ojjices :

Don N., elected governor, or alcalde, &c., (according to the employment or office,) I swear before God, the holy cross, and the evangelists, to up-hold and defend the mystery of the immaculate conception of our lady the Virgin Mary, and the royal jurisdiction to which I am attached by my employment. I also swear to obey the royal ordinances and the decrees of his majesty, faithfully to discharge the duties of my office, to decide according to law in all cases which may come before my tribunal; and for the more certain attainment thereof, I promise to consult with such as are well informed in the law, whenever opporthnities may occur in this city; and, lastly, I swear that I will never exact other fees than those fixed by the tariff, and that I will never take any from the poor. At Nkw-Orleans, November 25, 1769.

Don Alexander CReillt.

Printed by order of his excellency Francois Xavier Rodriguez, esoribano of the expedition. ... ..* ..-.. -^

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ml healthy, to sm in the eve. letn well, and

ho female pri-B kept in their ;ed than their

limself strictly e poor under a rring the same tds. Ho shall macy with the le-third to the ns third to the

the oihtr judges,

le employment ngelists, to up-of our lady the ttached by my ind the decrees ffice, to decide f tribunal; and lit with luoh as ly occur in this 'ees than those 3 poor.

»ER O'ReHjLT.

iguez, esoribano

APPENDIX.

269

Jnttrtictioni a> to the rmnnty of institutmg suits, eivtt and cHminnl, and of prowuncing judgments in general, in cou/ormity to the laws of the ^utva Recopilacionde Costilla, and the Recopilacion de las Indian, for the govern-ment of the judges andjmties pleading, until a more general hwu-kdge of the Spanish language, and more eitensive information vpon those laivs may be acjuired: digested and arranged by Doct. Don MnnuelJoseph de Vrrtit-iia, and the counsellor Don Felix Rey, by ordtr of his excellency Don Alex-ander O'Reilly, Governor and Captain General of this^irovince, by special commission of his masj-.ty.

Section I.

Of Civil Judgments in General.

1. It must, in the first place, bo observed, that in causes civil or criminal, of any nature whatsoever, persons belonging to any religious order may neither appear, nor make any demand without the permission of their Buperior. This permission is equally necessary to the son, whose father be living, and whose consent must be obtained; to the slave, who may not act without the consent of his master; to the minor, who must be author-ized by his tutor, who may be chosen by himself at the full age of four-teen years, or appointed by the judge, when of an age less advanced; to the wife, who must obtain the permission of her husband; and, lastly, to lunatics'and idiots, who must be represented by (he curator appointed by law to take care of their persons and property.

2. It must also be observed, that the consent of the father is not neces-sary to the son. when pleading in his own name for the recovery of pro-perty or rightsacquired by his services in war, which are styled castrcnses^ or by particular gratification from the prince; or lastly, of those he may have acquired by some public employment, which are styled quasi cos-trenses. But in the case where the son shall demand a maintenance or wish to be emancipated, he shall previously obtain the permission of the judge, by reason of the consideration and great respect ilue to a father, or other superior. Tlie slave is also allowed ttie same course of proceeding towards his master, if the latter, in the exercise of his authority, shall ex-ceed the bounds prescribed by law, in which case the slave is entitled to require either his liberty or to be sold. The wife may, also, without the consent of her husband, require her dowry, if he shall be on the point of squandering the same; or an alimony, in the case of separation or lU-

treatment.

3, He who may purpose to institute an action at law for a sum exceed-ing one hundred livres, shall commence the same by a petition setting forth the fact, and the motives upon which he proceeds; he shall also specify whether bis demand be for the proceeds of some sale, for money

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APPENDIX.

lent^ or other similar claim, with every circumstance necessary to the elucidation of the case, and for the information of the judge. He shall conclude by requiring either the return of the money, if lent^ or the pay-ment of his demand, and the condemnation of the adverse party to the payment of costs, if he shall unjustly maintain the contrary.

4. The said petition shall be signed by the party or by his proxy, and shall then be presented to the judge, who shall cause the same to be com-municated to the party against whom the demand may be made, which proceeding shall have the validity of a citation. The defendant shall make his defence within nine days, computing from the day on which he may have been notified of the demand. He shall draw up a counter-declara-tion in answer thereto, which shall contain such arguments as tend to de-feat the claim of the adverse party, if the same be not founded, and shall make his defence in the manner observed by the plaintiff in his introduc-tory petition (requtte).

5. If the ilefendant does not answer within the nine days, the plaintiff shall require judgment by default, by a writing setting forth that the delay has expired; and moving that, no answer having been made, the defend-ant be contlemned by default; and that, consequ ?ntly, his claim be re-puted acknowledged and sufficiently established.

6. If, on the contrary, the defendant shall answer within the nine days, and shall allege that he is not bound to defend the suit as to the merits thereof, by reason that judgment in the case is not within the competency of the judge who has taken cognizance of the same, that the plaintiff can-not plead in his own name, that the term of his engagement has not yet expired, or other similar exceptions, communication thereof shall be made to the plaintiff that he may reply, within sis days, thereto. Upon his re-plication the judge shall decide whether the cause shall be defended as to the merits thereof; in which case, without admitting an appeal, the said cause shall be tried on the merits thereof.

7. But if the defendant, without producing any similar exceptions, shall set forth pleas tending indirectly to admit the demarfd, as by alleging that the thing demanded has not become due, that the same has been already paid, or any other i/ieas, supported by vouchers, which may be admitted before the putting of the cause at issue, the effect of which pleas would discharse him from the demand, the same shall be communicated to the plaintiff^ to reply thereto; a copy of which reply shall be delivered to the defendant for a rejoinder to the same; after which the judge shall require the documents, and shall proceed to give judgment.

8. If the fact contested should be admitted to proof, as being doubtful, the sam3 shall be determined within eighty days, at furthest; during which delay the parties shall furnish their proofs, and shall summon each other reciprocally to attend to the administering of the oath to the wit-nesses.

APPENDIX.

271

essary to the ge. He shall ), or the pay-9 party to the

is proxy, and nae to be com* made, which ,nt shall make 'hich he may inter-declara-as tend to de-Jed, and shall t his introduc-

, the plaintiff that the delay e, the defend-i claim be re-

he nine days, I to the merits e competency plaintiff can-nt has not yet shall be made Upon his re-e defended as in appeal, the

ceptions, shall r alleging that I been already Y be admitted h pleas would iiioated to the divered to the e shall require

>eing doubtful, thest; during summon each ath to the wit-

9. The testimony of the witnesses shall be so secretly given that neither of the parties shall have knowledge of the depositions of his own wit-nesses, nor those of the adverse party. The term to which the cause may have been continued having expired, one of the parlies shall move that by reason of the said expiration the testimony of the witnesses be made public. This motion shall be communicated to the other party, wtio shall consent thereto, or if he shall not reply to the same, he shall be condemned by default iu the manner observed, when one of the parties does not reply to the plea of the other. Tlie judge shall order the publication of the said testimony, and the deliverance thereof to the parties; observing that the same be first deUvered to the plaintiff, that he may, if necessary, strength-en the same.

10. The testimony being made public, should the plaintiff find the wit-nesses of the defendant inadmissible, as being either his enemies, or the intimate friends or relations of the defendant, or for other causes which may weaken the faith which would otherwise be due to their testimony, he shall draw up a declaration in which his exceptions shall be specified, after taking an oath that he has no intention of offending ;them; which oath shall be notified to the defendant, who may in reply state his excep-tions to the witnesses of the plaintiff. The said exceptions shall then be put to the proof, and forty days may be granted therefor, or one half of the term allowed for the taking of the testimony in the principal cause.

11. When the term allowed for the admission of proof of the exceptions shall have expired, the publication of the testimony, as in the principal cause, shall not te allowed, but the documents shall be delivered to the plaintiff, that he may set forth his proof; and if he shall establish that the same is more complete than that of the adverse party, a copy thereof shall be given to the defendant, upon whose reply, or in default thereof, the judge shall declare the controversy determined. He shall then order, that the parties await the final decision, which must be given within twenty days, computing from the day on which he may have required the docu-ments in the cause. He shall attentively examine the said documents, and determine the suit by condemning the debtor to payment, or by dis-charging him from the demand, according to the merits of the case.

: 12. If judgment be given for a sum not exceeding 90,000 maravedis, an appeal to the cabildo may be taken within five days, computing from the day on which the parties may have been notified of the sentence. If the judgment given be for a greater sum, an appeal shall lie to the tribunal, that may be appointed by his majesty, in consequence of the representa-tions which have been made to him on that subject. A brief explanation

of the manner in which this recourse may be had, will be given at the

conclusion of these instructions.

13. If no appeal shall be lodged within the five days allowed, the party,

who may have obtained judgment in liis favor, shall draw up a writing,

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APPENDIX.

by which he shall move, that noappeal having having been takeii within the legal delay, the judgment be considered definite; and that, in pur-suance thereof, execution be ordered; a copy of which shall be given to the adverse party; and on his reply, or in default thereof, the judge shall pronounce both on the validity of the judgment and the expiration of the delay; after which he shaU order that the sentence take efiect, and be put into execution.

Section II. Of Exectttory Proceedings.

1. When a debt shall be fully established, and it imports a confession of judgment, as by an agreement or obligation made before a notary ; by a simple note, legally acknowledged by the drawer; by confession of judg-ment, although without any written title from the debtor; by a definite sentence of the court, or by the cash books of the debtor acknowledged by himj in all these cases the creditor shall draw up a declaration setting forth his claim and his action, annexing thereto the document which enti-tles him to an order of execution, and moving that by virtue of the said document, a writ of execution be granted him for the sum due, as also the tenth and the costs which may be allowed. He shall observe that his declaration contains the oath that the sum demanded is certain, due, and ought to be paid by the debtor. . . , , ,-*

2. The judge shall examine if the document which entitles the creditor to a recovery imports a confession of judgment; and, if such be the case, he shall order immediate execution, by addressing an order in wntmg to the alguazil mayor, directing him to summon the debtor to pay the de-mand, or, in default thereof, his property shall be seized to the value of the same, with the tenth and the costs.

3 By virtue of the said order, the alguazil mayor shall summon the debtor; if he complies, the execution shall cease. • If otherwise, his pro-perty shall be seized and held in custody by the depositary general; un-less he shall give goo I and sufficient security for the payment of the sum in which he is condemned by the sentence. But if he shall not give the security aforesaid, or if he has not property sufficient, he shall be im-prisoned, unless exempted therefrom by the privilege of nobility, which is also enjoyed by the military, regidors, officers of finance, women, law-yers, physicians, and other distinguished persons. The alguazil mayor shall note, at the foot of the writ, his proceedings thereon, as also the day and the hour of his executing the same.

4 The property being seized, the creditor shall, by another wntmg, move that the same be valued by two capable pe'^sons, on whom the par-ties may agree, and that public notice be given that the sale thereof will

!■

mmmmi

APPBNDIX.

278

1 taken within id that, in pur-all be given tos^ he judge shall ;piration of the I efiect, and be

a confession of a notary ; by a fession of judg-•; by a definite knowledged by aration setting ,ent which enti-rtue of the said due, as also the jserve that his jrtain, due, and

ties the creditor [ch be the case* er in writing to to pay the de-l to the value of

lii summon the lerwise, his pro-ry general; un-nent of the sum lall not give the le shall be im-nobility, which ce, women, law-alguazil mayor , as also the day

another writing, a whom the par-sale thereof will

be made after the usual delay, according to the nature of the property. The said delay shall be of nine days' duration, for personal property, with a public notice every three days; and of thirty days' duration, for real property, of which notice shall be given every nine days; but, if the debtor shall consent, the said notices need not be given.

5. The said term being expired, and public notice being given, the creditor shall require that the debtor definitively summoned to make op-positiun, and to prove that the sum demanded is not due or has already been paid. In pursuance thereof the debtor shall be definitively sum-moned, if he has not previously opposed, which he might do, during the time of the seizure, or of his detention in prison.

6. If the debtor shall not make opposition, within three days, computing from the day on which he may have been definitely summoned, he shall be attached by default; but if he shall make opposition, he shall be ordered to prove his exceptions within ten days at furthest, which shall be common to both parlies to prove the justice of their pretensions in the manner which to them may seem best.

7. During the said delay, the proofs offered by the two parties shall be re-ceived, and they shall cite each other reciprocally to attend at the adminis-tering of the oath to the witnesses, in conformity to the provision of section 1, Nos. 8 and 9, for civil judgments in general; with this difference, how-ever, that the said delay may be prolonged at the request of the creditor, in which case the debtor shall enjoy the benefit of the said prolongation.

8. The term allowed having expired, no further proof shall be allowed save the confession of the party; and the documents shall be returned to the creditor that he may set forth his right, of which a copy shall bs given to the debtor. Upon his reply, or in default thereof, the judge shall re-quire the documents, and shall proceed to give judgment.

9. He shall examine with attention if the exceptions made by the debtor are just, and more fully established than the claim of the plaintiff; and, if such be the case, he shall discharge him from the demand insti-tuted against him. He shall order the restoration of his property, and shall condemn the plaintift to the payment of the costs.

10. If, on the contrary, the debtor has not proved his exceptions, and the sum demanded be found legally due, the judge shall declare the seizure to be valid, and shall order the fourth and last public notice of the sale to be given, and the adjudication of the property to the highest bidder, and that from the proceeds of the same the demand of the creditor be fully discharged, as also the tenth and the costs. The creditor shall, however, be held to give security in the amount of these sums, to answer in the evenly the sentence should be annulled by a superior tribunal.

11. This sentence shall be carried into execution notwithstanding ap-peal, but shall not prevent the party who may have been aggrieved from appealing to the cabildo, provided the sum does not exceed 90,000 mara-

Tedis, otlierwise the appeal must be made to the superior tribunal, to be hereafter appointed by his majesty.

12. Defniiti ve judgment being pronounced, the day for the fourth and last notice of the sale of the property seized shall be appointed. On the said day the sale shall bo made in the presence of the parties, who shall be legally summoned to aUend; and the amount of his demand shall be paid to the creditor, who shall give the security aforesaid; the tenth shall be paid to the alguazil mayor, and the costs and expenses to the other • officers, in conformity to the regulations of the tariff.

13. It must be observed, that, if the debtor discharges his debt withm seventy-two hours after the seizure is pronounced to be valid, the tenth shall not be demanded; but in default thereof, the payment of the same cannot be dispensed with; and on this account it has been heretofore declared indispensably necessary to note the day and the hour of the pro-ceedings in the seizure. -.;

Section III.

0/Judgment in Criminal Causes.

1 When information shall have been obtained of any crime, such as homicide, robbery, &c, having been committed, if no prosecutor shall appear the judge shall officially draw up a procci-verhal containing the knowledge he has acquired of the said crime, and shall order an inquiry to be made into the circumstances of the same ; as, for example, in the case of homicide, he shall cause the body to be examined by one or more sur"eons,who shall declare whether the wounds have been mortal or other-wise- thpv shall set forth in what place and in what situation the body was found, and with what instrument it appears that the crime has been committed. In the case of robbery, an examination will be made ami the escribano shall detail and certify the marks of violence on the house or the furniture, indicating that said crime has been committed. The same statement of facts shall also be made in all crimes a formality which is the basis of judicial proceedings, and without which the criminal cannot be prosecuted. The judge shall, at the same time, order that the information be taken and the witnesses heard. , . , , u n

2 When ihe party injured shall bring forward a complaint, he shall , commence by a petition, containing a correct and brief exposition of the fact, and requesting an examination into the circumstances of the crime, ,in the manner before mentioned, and also that a summary inquiry may be ,made int.. the truth of the facts set forth m his petition. The judge shall take order on the said petition in the following words: " Be it done as is

'^r'The jud-e shall make the said inquiries in person, unless unayoid-ably prevented; in which case he may intrust the same to the register

mmUmtim

ribunal, to be

burth and last On the said (vho shall bo anil shall be le tenth shall s to the other

3 debt within ilid, the tenth t of the same en heretofore mt of the pro-

;rime, such as ^ ■osecutor shall Bontaininy the der an inquiry ample, in the )y one or more mortal or other-ation the body . irime has been 1 be maile, and e on the house nmitted. The 3s i a formality shthe criminal , order that the

)laint, he shall [position of the s of the crime, inquiry may be rhe judge shall Be it done as is

unless unavoid-to the register

APPENDIX.

If, however, tie crime be established, and the criminal unknown, every inquiry, search and examination necessary to obtain a knowledge of the said criminal shall be made.

4. When the inquiries have been made, verifying (he crime, and the criminal is known, if two witnesses appealer one witness of credit, joined to other circumstances, proving him to be the offender, the judge shall cirect the body of the gnid a^L'gressor to be taken into custody, as also an inventory of his property to be taken, and the sequestration of the same in the hands of the depositary general.

5. If the criminal has not been arrested, by reason of either absence or concealment, the judge shall direct that, as it appears by the report of the alguazil, the said criminal has not beeii arresteil, ho be cited by public proclamation, three times repeated, in the manner following.

6. The accused shall first be cited to appear and deliver himself up within nine days; of which, the judge shall direct the escribano to certify that the term has expired, if the jailer affirm that the offender has not ap-peared. In consequence of the said certificates, which shall bo annexed to the documtmts in the cause, the accused shall be condemned to the penalty of contumacy ; and the judge shall direct that he be again cited to appear within the aforesaid term of nine days. On the expiration of this second delay the escribano and jailer shall certify as before; after which the judge shall issue an order for his arrest, and direct the publica-tion of the sams, as also the continuance of the proclamation aforesaid These last nine days being expired, the escribano shall again ceilify there-to, and the jailer shall affirm that the accused has not appeared at the prison. The judge shall then declare him (ully convicted of contumacy ; and if there be no prosecutor, a procurator fiscal shall be appointed to take the necessary steps in the case; but if there be a prosecutor, the cause shall be committed to him that he may proceed therein as he may think best, in order to bring the same before the tribunal, in which provisional judgments are given, and the criminal is cited as if he was present. The proceedings shall then be continued until the definitive sentence either in favor of or against the accused be pronounced.

7. If, however, previous to, or after the sentence, the accused shall pre-sent himself at the prison, the cause shall be instituted anew, and the de-fence of the accused shall be heard with attention ; and upon what the prosecutor or the procurator fiscal may set forth in opposition thereto, the

.previous sentence shall be either confirmed or annulled, according to the documents reproduced on the trial.

8. If the criminal be taken after the order for his arrest has been issued, and the proces-vetbal concluded, 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

picture31

APPENDIX.

be enjoined to choose a guardian; and, upon h.s refusal to do so, the judge 111 appoint some one for hirr., by reason that the sa.d exammat.on can-not proceed >vilhout the presence and authority of the sard guardian

7 n the said examination the judge shall charge the accusal w.tb the crime pursuant t<, the testimony given, and .hall propound such questions as mav tend to the disclosure of the circumstances of the saine.

,0 The examination concluded, the witnesses both for and aga.nst the accused shall be heard within the shortest delay possible; which, how-Te,"'necessary, may be extended to ^'g^^'y''^'y''^ ^""^^^ "J ;'] Iluses in general During this delay, the accused on one side and the Zecu or or the procurator fiscal, (in default of a prosecutor on the ErSl produce their proof i» the manner provide.l in civil causes and altlough these prpofs should be private, as also the re-exam.nafon of the witnesses, Ihey may communicate to each other the documents in the cause in order to the necessary arrangement of their proceedings.

1 The witnesses being re-examined, and the delay allowed havmg expred one of the parties shall require that the testimony be made pile ' This demand shall be communicated to the other party, by a l%ereof, upon whose answer, or in default thereof, the judge shall direct the publication of the said testimony. The documents shall then S de ivered to the prosecutor, or to the procurator fiscal, that he may bring hL accusation in form, and allege the sufficiency of the proof.

ir The accusation being made, conjointly with the declaration of the sufficiency of the proof, a copy thereof shall be given to the accused, that hfrnly I defence'set'forth whatever he may think in favor of his cause^ Whl the said defence shall have been made, the peadmgs shall be Isldered as concluded, and, consequently, the cause m a state to be

"^ta If" H 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 cLuses in general, and shall conforrn precisely to he nLuctions therein given for similar cases. Aft^r he decision on the ad exception has been made, the determination of the cause shall not be delayed; but the judge shall require the documents, and cite the par-

ties for the definitive sentence. „„t„>,iuh

14 The accused being convicted of the crime, as beiuR 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 in4ipted as directed by the judge,

tmiij'fcit i Miiiiri'.i i fr ii

,)iniMiiiiinlwl»i'ii'ii'

picture32

APPENDIX.

277

1

0 so, the judge mination can-ruardian. iused with the such questions ime.

id against the which, how-ilowed in civil e side, and the jcutor) on the n civil causes; 3xamiiiatiun of cuments in the eedings. .^

liowed having nony be made her party, by a he judge shall lents shall then it he may bring roof.

claration of the le accused, that iror of his cause, ladings shall be 1 a state to be

3 except to the minted out under precisely to the I decision on the 3 cause shall not and cite the par-

b; fully establish-ith his own con-I by law for the jn two witnesses that of their cer-but when there ler indications or )rovided by law; «d 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.

15. Afterall 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 difRculties 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 pointy 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 whinh 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. He shall summon the parties to hear the transcripts compared with the

r"

APPENDIX.

r

originals, as also to appear in person, or by proxy, at the tribunal to which the said appeal shall be carrieii, within the lielay ihat may be alloweu, according to the distance of the same from this province. The said de-lay shall commence from the day on which the fust 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 ho appeared belore the said tribunal with the original documents, he shall fully and indisputably forfeil his appeal, and that the execution of the sen-tence shall consequently be ordered on the first re.iuisition 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 sura not exceeding 90,000 maravedis, exclusively of the costs, the appeal shall be made Ut the cabil.lo 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; on sight of which the cabildo shall ap-point two regidors, in quality of commissioners, to decide on the cause of appeal, 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. j i lu

4. 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 (urthest; and communication thereof shall be made to the other party, that he may reply thereto, withm 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 documents to the judges, who shall examine the same, and give judgment within ten days, computmg

APPENDIX.

279

bunal to which lay be allowed, The said ile-gistered vessel iburial shall be livery un board hall inform the prove that ho iinenls, he shall uliuii i)( the sen-n of the adverse of the vessel in which he had niperior tribunal )ediinent which ppeal cannot be r delay shall be reof shall be de-compliance with

0,000 maravedis, e cabildo of this lowing: Within the sentence, the ed to the register cabildo shall ap-e on the cause of , sentence. The ippointment^ and the duties of the

delivered to the the appeal. The ty deduce and set 3Cond paragraph; ;1 communication ily thereto, within from the appoint-letermination. It ^8 cannot be pro-

' prescribed, the

0 the judges, who

1 days, computing

from the exjiiration 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-nounned; or, if given, the snme shall be void; and the first sentence shall take full efTect, 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 apppal to'any other tribunal shall not be admitted; but the judge who pronounced the first sentence shall cause thn second to be executed so soon as the documents shall hare been delivered to hiui for that purpose.

Section V.

0/Punishments.

1. He who shall revile our Saviour, or his mother, the most holy Virgin Mary, shall have his tongue cut out, and his property shall bo confiscated, applicable, one half to the public treasury, and the other half to the informer.

2. He who, forgetting the respect and 'oyalty 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 sons, 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, ho 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 saifie punishments shall also be inflicted on all those, who may be convicted of I6se-majest6, 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 ofTended. But if the abuse consists only in words, and the aggressor be not noble, the judjre 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 (he other half to the party offended. If the aggressor be of rank, or enjoys the privileges of nobdity, he shall be condemned to a fine of 2,000 maravedis, applicable, as aforesaid. The judge, however, may in lieu 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 baen spilt.

L

APPENDIX.

nor complaint made by the ofTended, or if he shall desiit from proMouiinf

the same, the juil^e shall not interfere therein.

5. He who shall ravish a t^irl, 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 concnbinafje with another, or who shall have induced her to commit the crime of a<lultery, 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 on 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 decree, 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*the same shall be punished with death.

10. He who shall commit the detestable crime against nature shall afterwards be 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 each other, under the penalty of banishment of the man, and confinement of the girl, for such time as may bo 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 case 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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1 proMcuting

of reputable seated to the of reputable ly think suit-has oommit-he husband; lealh, without

ubina^e with

B of adultery,

ndemned to a

nd time shall

I.

Mr ho carry on

ocuring them

I in the fourth iblic treasury, n some other ree of the kin-Iheir offspring, eath.

t nature shall to the profit of

n eoclesiastio, silver, and to re the offence I fined another )f relapse, she the penalties

:ir1s, they shall tercourse with I confinement a reformation. 1 put the same ent procedure, )nsideration of prudence and y shall punish

APPENDIX. Up,

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 apreemenf, 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 bo 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 bo sentenced to perpetual banishment to some presido. The said punishments may, however, be commuted, when from the rank of the ofTendcrs they cannot be condemned to the same.

15. lie who shall steal the sacred vessels in a holy place shall suffer death.

16. Assassins and robbers on the highway shall suffer death.

17. The same punishment shall also be inflicted in cases of forcible robbery, which shall be reputed such, when tlie 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 Rccopilacion do 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 nuncupative will, it is necessary, that the samd 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 sufiice.

2. A testament shall be equally valid wlien made in the presence of •even 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 disposiiion contained therein, he may do the same

l»S»»>»**l^^

APPENDIX.

e(r.'ptii!illy by a codiril; ob^orvinp; the same formalitios, and m the pro-«Hnc« of til.! sam. imml.or of witnesses req.iire.l for the vali.hty of tho testam.-nt ilsolf; but he cannot change the name of the heir, unless another will be made.

4 If tho testator be blind, at least five witnesses shall be necessary to each of the instruments aforesaid, in order to prevent tho deceptions, to which those who labor under such a misfortune are exposed.

rj For tho validity of a mystic will, styled in Latin in scripts, tho testa-tor, on delivering to the notary, {who shall seal it,) shall put an endorse-ment on the cover, statin? that the within is his will; which en.lorsement shall be si-rned by himself and seven witnesses, if they can write; and if not the others shall si-n for them ; so that there be ei^'ht siirnatures, m-clndinT (hat of the oscribano. who shall also put his signature thereto.

6 Before the opening of a will, aRer tho decease of the testator, it is necessary that the judge who shall have knowle.lge thereof, sha I certily thereto and that the witnesses appear before the said judge, and declare, on oath, that they were present, when the testater declared the same to be his last will: they shall acknowledge their signatures, or shall declare (it 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 inlorm-

ed, as follows : „™k<.,

8. That such authority must bo 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 pre.lously 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 titth to any of the children or descendants of his constituent, disinherit any ot them, substitute others in their stead, nor name a guardian for them with-

• out an express clause and special authority to that effect; 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 filth pait of the proceeds of his property shall be distributed for the repose and relief of his soul: the remainder shall be ilivided amongst the relations ot 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, atler previously deducting therefrom what is allowed by law to the wife, as dower, bridal presents, donations, proper Mptias, the hall ot the profits on the joint estate, and whatever may have fallen to her by succession or donation during the marriage.. «—.—

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't APPENDIX.

283

and in the pro-validity of tho :ho heir, unless

bo necessary to 10 (leceptioiis, to sed.

.criptii, the testa-I put an eudorse-ich endorsement • can write; and ht signatures, in-ature thereto, tlie testator, it is eof, shall certify dfjo. and declare, «d the same to be r shall declare (if led for them, ivillingto make a :o hereby inform-

the same number

itaments.

er, cannot revoke

lid will shall con-

; third or a fifth to disinherit any of lan for them with-it ; by reason, that designate, by his

designated one in I empowered, may after which a fifth

for the repose and gst the relations of r, if there be none, t of the soul of the

allowed by law to uptias, the half of re fallen to her by

12. That if the constituent shall liavn appointed an ht>ir, tho person em-powereil as iiforesaid may not dispose of, in li'irnpies pums or profaim. miro than the llfth part of th.; propirty of llie Ifsditor. Iiis di-lits Ix inir previously paid ; uiiioss by a special clause ho should be authori/oil to disiioso of a greater part.

13. That tho person omixiwerod should propood to the completion of (ho will with which he is charged within four months, if ho be in the place in which the power was given; or, if not, within si.x months: unless ho bo out of tho kingdom ; in which last case, one year shall be aliowod. com-puting from tho day ol the decease of the con-tiluont. All that may lie done by tho person, empowered as aforesaid, after the expiration of that term, .shall be void and of no olfoct, even it he shall allege, that he had no knowledge whateverof his having been so enjpowered. But all tht! other stipulations by the testator, in the said power contained, shall be carried into execution, ami the remninder of his projM-rty shall be delivered to his relations, who inherit ab intestah, and who, with the exception of the legiti-mato children of the descendants or progenitors of the testator, shall give the fifth part of the not proceeds of the said property, for the case 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 codicil, nor any declaration (hereto, 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, codicil.s. or powers given to that, effect, women, monks, people under the age of fourteen, drunkards, or other dij-qualifii-d persons, shall not be admitted as witnesses.

16. A testator may bequeath a third or a fifth to anyone of hischildren 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 tl o 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 ileath, 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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APPENDIX.

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 ?aid advancfiment.

19. If the father or mother shall have entered into an ag^reement 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 ihe said legacies or gifts to the former.

22. When any one shall die intestate, and without having empowered another to make a will for him, in the manner hereinbefore explained, if there be no legitimate children, or ascendants, who can inherit, the rela-tions by blood and kindred of the fourth degree shall inherit the whole of the property; observing that the nearest relations shall inherit of right, and to the exclusion of those who may be further removed, unless the nearest relations shall be brothers of the deceased; in which case, the children of the other brothers, who shall have died previous to the ilecease of the per-son intestate, shall take a portion of the whole; that is to say, that if one brother, and three or four children of another brother, be living, the said children shall be entitled to an equal proportion, or one-half of the property; and the brother, uncle of the said children, shall inherit the other half, by reason that the nephews succeed by representation of their father, and not in their own right. This rule shall be followed in the division of estates when there may be a greater or less number of heirs; the foregoing being intended for an exi^mple.

23. If the deceased shall have neither ascendants nor descendants capable of inheriting, in the order explained, in the preceding aiticle; the king shall be his heir, and the property shall be vested in the treasury or royal chamber.

24. Those who have not legitimate descendants may will in favor of their illegitimate children, although they may have ascendants. It must be understood that by illegitimate children are meant those born of a free

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APPENDIX.

285

icement, or if imilar cause, ower to that

lement not to thereafter be by any public the contrary, arriage, or for e good at the ve been made

it the point of ty at the time

to their chil-.11 be reputed not have been th a third or a Eili exceed the

ig empowered B explained, if herit, the rela-rit the whole of rit of right, and less the nearest the children of sase of the per-lay, that if one living, the said of the property; B other half, by r father, and not ision of estates foregoing being

9r descendants ing article; the the treasury or

will in favor of idaiits. Il must se born of a free

girl, to whose marriage with the father of the said children no legal im pediment existed. Those cliildren shall succeed in their own right, to their mother, and shall inherit the whole of their property, whether she may have died intestate, or otherwise, and shall have a preference over the ascendants, in case she shall have no legitimate children, who would otherwise iidierlt, to the exclusion of the illegitimate children.

25. Illegitimate children of every description shall incont«stably sue-ceed to thiir mother, if she have no legitimate children or descendants, even to the exclusion of her father or other ascendants.

26. The father and mother having legitimate children or descendants, cannot give, by way of maintenance, to their illegitimate children, more than the fifth part of their property; of which proportion they may also dispose for the benefit of their souls, or by a legacy to a stranger ; except-ing from the foregoing, the children of ecclesiastics, or monks, who can-not in any manner inherit from their parents or kindred, nor pretend to anything possessed by them during their lives.

27. A son or daughter, while under the authority of the father, being of competent age, that is to say, the son being fourteen, and the daughter being twelve, may will in the same manner as if they were emancipated from their parent, and may dispose of the third part of their property by succession, donation, or in another manner, unless derived from the father, who shall inherit the remaining two-thirds in the same manner as the mother or other ascendant.

Itible of Fees, demandable by Judges, Lawyers, Escribanos, Attorneys, and the other Officers of Justice.

Jdsoes. —For a signature containing the baptismal and family name of the judge, four reals in silver dollars of America, as also for the other fees hereafter detailed. They shall put the aforesaid signature to judgments, decrees, warrants, titles, and despatches which they may deliver for another tribunal. They shall exact but two reals in the same money for a signature containing their family name only, and the same for their cipher.

For a sitting of two hours and a half, in cases of inventories, seizures, assessments, public sales, adjudications of real or personal property, proces-vtrbaux, declarations, examinations, and other acts of justice of whatsoever nature, two ducats, equal to twenty-two reals in milled dollars. For affix-ing the seals, in case of death, one ducat. If a longer time be necessary for the security of the property, the fee may be augmented in proportion to the time that shall be employed. For the opening of a will, and the examination of the seven tvitnesses, which should precede the opening of the will, forty-eight reals, viz: forty-four for two sittings, and the other

mW:'i>v ninni iMWini— k—

APPENDIX.

four for the signatures to the two instruments. They shall receive four ducats per diem while employed in tho country, to contmue until their return to their own houses; they shall be decently ente 'ained, and shaU be provided with a horse and other things necessary. _ ; ,

Assessors shall have also two ducats for each sitting in the city, and four for the country, either with or without commission. They shall charge one real per leaf for revising documents, they paying due attention to the bulk of the same, to the circumstances of the case, and to what may be only a continuation of the usual business.

The Alcalde Mayor Provincial, and the Officers or the Saint Hermandad shall receive the same fees as the other royal judges, for their signatures and their sittings.

REGiD0R8.-In causes of little importance, which may be brought be-fore the cabildo by appeal, two regidors shall be appointed as commission-ers conjointly with the judge, who shall have pronounced the previous serit^nce. In all such cases they shall receive the same fees as the judge for their signatures and sittings.

The Alouazil Mayor.— In common executions against debtors, tney shall require payment, and if the same be not complied with within seventy^ wo hours from the moment of the summons, the saul debtors shall pay besides the fees to the judge and the other officers of justice the tenth fo the alguazil mayor, which is five milled dollars for the first hundred dollars, ai^l two and a half dollars for every other hundred dol ars; so that if the execution be issued for three hundred dollars, he shal take ten dol-lars for the tenth. He shall not, however, exact the same until the creditor be satisfied in the sum for which the execution be given.

The Depositary General shall take three per cent, on all sums m specie, which may come into his possession by way of deposit and he same for plate, jewels, or other personal property which may be deposited

with him. , ....

For real estate, as houses, plantations, and other property yielding reve-nue he shall take five per cent, upon the said revenue, which shall be his 'compensation for the management of said properly, for receiving the proceeds thereof, and for rendering an accountof the same to the tiibunal by whom he is appointed, whenever he shall be required thereto. He shall also take five per cent, upon the proceeds of the labor of all slaves in his care, who may not be employed upon the estate.

Whenever bonds or notes shall be deposited with him, he shall take five per cent, upon the sums which he may recover on account of the same.

Lawyers -The fees of lawyers shall be settled by another lawyer whom the judge shall appoint: and for every sitting their compensation shall be the same as that of the judges and assessors. But when they may be employed in examining documents in order to assist at a court, they shall be paid separately.

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receive four le until their led, and shall

the city, and

They shall

due attention

1 to what may

)T THE Saint dges, for their

e brought be-

3 commission-

the previous

8 as the judge

debtor?, they with within i debtors shall lice, the tenth 1 first hundred ' ollars; so that I take ten dol-lil the creditor

n all sums in posit, and the y be deposited

yielding reve-?hich shall be r receiving the to the tribunal 1 thereto. He ir of all slaves

I shall take five of the same, nother lawyer r compensation But when they ist at a court,

APPENDIX. V

287

EscBiBANOs shall have fifteen reals for a sitting in the city, and thirty per diem when employed in the country, to be continued until their return to their own houses, and two reals for each leaf of writing, and they shall be furnished with a conveyance, and decently entertained.

For the opening of a will, the examination of the seven witnes.ses which should precede the same, and legacies to the church, fifty-two reals.

For a copy of a decree or a provision, one real. For an act, two reals. For a notification, citation, or participation, two reals. For a declaration in his own house, six reals; or, if elsewhere, eight reals; and two reals for each leaf of writing either in his own house or elsewhere. For a despatch two reals per leaf, and eight for the commencement and conclusion of the same. For each leaf of an exemplification of an act, one real and three quartillas, and one real for his signature. For duplicates, or copies of documents drawn from his record, two reals per leaf.

For a bill of sale of slaves, twelve reals. For a sale of personal property, which usually contains two leave*, two dollars; and if the same shall con-tain more on account of the conditions which the parties may wish to be inserted, he may augment in proportion. For a simple bond, eight reals • for a bond with mortgage, twelve reals; and if there be several mortgages comprised in the said bond, he shall be paid according to the labor and trouble he may have had in drawing up the same. For a receipt. ei"ht reals. For an agreement^ according to the number of leaves the same may contain; and if an examination of documents be necessary, the same should be taken into consideration, and the charge should be at least doubled.

For a will containing three or four sheets, four dollars, and augmented in proportion to the number of sheets.

The Recorder of Mortgages. —For a certificate relative to a hou.se, plantation, or other real property, eight reals. For a certificate of a slave, from one to the number of eighteen, four reals; and from that number to one hundred, twelve reals for each certificate. For a certificate of a mort-gage on a vessel, four reals. For recording in the bouk of mortgages, those given for the security of payments, either for personal property, slaves, or vessels, four reals; and if the same Oe of an unusual length, eight reals; but when only a short note to designate the page in which the mortgage is recorded be required, no charge shall be made.

AxToRNEys.—For an introductory demand, five reals. For assisting in the city, at an inventory, sale, adjudication, or seizure, twelve reals; for the same in the country, if employed a whole day, three dollars. If, how-ever, the case requires much writing, they shall be paid according to the time that the lawyer may have been employed in drawing up the said case,

TuE Judiciarv Contador. —For every five hours employed in prepar-ing an account for settlement, four ducats, making forty-four reals, observ-ing that five hours shall be accounted a day; and out of the aforesaid sura

'■""'rrtm C

,.

APPENDIX.

ha shall pay four reals to the escribano for each sheet of twenty-five lines to a page.

The Assessor of Costs shall be paid one quariilla for each sheet of the documents contained in the cause, the costs of which he shall assess. Four quartiilas make a real.

Appraisers of Personal Propkrtt, Slaves, and other Effects.— To the exchange broker, for the valuation of furniture, houses, slaves, merchandise, &c., eleven reals, notwithstanding the appraisement may re-quire two hours and a half.

Alarifs, Experts of Carpentry, and Assayers of Silver Alarifs,

experts of carpentry, masonry and joinery, shall have a ducat for every thousand dollars of the amount of the appraisement; and if the same shall exceed four, six, or eight thousand, they shall not demand more than four ducats; but if tliey be employed in the country, and the appraisement shall not amount to one thousand dollars, they shall have two ducats per diem during the time they may be employed, on account of the distance. If, however, one day only shall be necessary, although the appraisement shall amount to three or four thousand dollars, they shall be paid as if the same had been made in the city; but they shall be furnished with a horse, and shall be decently entertained. The assayer of silver shall have eleven reals for each appraisement, although the articles may be valuable, by reason that little time is required for that purpose.

The Appraisers of Land shall have two ducats per diem, and the same when they shall value buildings of little consequence in the country, wood-land, and fields in grain.