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LAWS OF THE STATE OF LOUISIANA, WITH NOTES REFERRING TO CIVIL AND SPANISH LAWS RELATING TO THEM, 1814
The purpose of this work is to make known, by written notes on the blank pages attached to the Digest of the laws of this state, the texts of civil and Spanish laws having some relation to them.
For this purpose, there will be found, beside the English text, a general list of all the titles of the Roman and Spanish laws, which relate to the materials treated in each chapter of the Digest, and beside the French text, article by article, the citation of the principal laws of the various codes from which the dispositions of our local statute are drawn.
In citing the laws which have some relation to the various articles of the Digest, indications have not been limited to those which only contain similar dispositions; but those laws have been added which may present differences in prescription regarding the same matter, or which may contain exceptions to the general principle therein contained.
But as it would have been too drawn out to refer to the laws of all the codes of the Roman and Spanish law, it is sufficient to cite Domat in regard to the civil laws, because there is to be found in each of the dispositions of this work, the texts of the Roman law from which they are taken. And, in regard to the Spanish law, it is believed sufficient to cite the laws of the principal codes which compose it, such as the Partidas, the Fuero Real and the récopilations, etc., and to refer to the observations concerning each of them contained in various works which enjoy the greatest authority in the Spanish tribunals, that is to say, the Libréria de Escribanos De Febrero and the Curia Philipica de Don Juan de Hevia Balaños, the studies of canon and civil laws of Pierre Murillo Velarde entitled "Cursus iuris canonici, hispani et indii," and the works of Antoine Gomez entitled "D. Antonii Gomezii varia resolutiones" etc. or "Gomez Opéra" with some additions to each chapter.
Perhaps this is the place to say a word concerning the various codes of Spanish laws and concerning the degree of authority which they respectively enjoy in the tribunals.
The Roman law was formerly the law of Spain, and its dispositions were observed there until the moment when the Visigoths and the Vandals seized this country about the year 466 and introduced their laws and customs there.
These laws and these usages, which existed a long time without being reduced to writing, were finally collected and published under the form of a regular code about the year 693 A.D. under the title Fuero Juzgo.
The Fuero Viejo, otherwise called the ancient law, was only published in the year 992, when the largest part of Spain was still occupied by the Moors. In this code are found traces of the ancient usages and customs of the Spanish nation.
The Fuero Juzgo and the Fuero Viejo, having nearly fallen into desuetude by the promulgation of various codes which succeeded them, have only been cited by titles under the various chapters of the Digest to which they correspond.
After the year 992, when the Fuero Viejo was published, until the year 1255 when the Fuero Real was promulgated, an event occurred which served much to diffuse throughout Europe the sounder knowledge which until then had been beyond the Jurisprudence. This was the public instruction in the principles of the Digest and of the other parts of the civil law called the general law, which was begun at the University of Bologna in Italy.
About the middle of the thirteenth century, Fredinand III, having given more extent, force and stability to the Spanish monarchy than it had had previously, considered submitting all classes of citizens to a general code of laws, which might remedy the abuses of the feudal laws under which they had lived until then. But the death of the prince, which happened in 1252, prevented the accomplishment of so salutary a project, and it was reserved to his son, Alphonse X, called the Sage, to put it into operation by the formulation of two codes.
The first of these codes, which is the Fuero Real, appeared in the year 1255, almost to serve as the precursor of the Partidas. And this code is to the Partidas as the Institutes are to the Digest of Justinian.
The Partidas, or Parties, so-called because this code is divided into seven parts, were finished in the year 1263; but they were only published in the year 1348 and acquired their full operation only in the year 1505 under the monarchs Ferdinand and Jeanne. This is the most complete and most perfect code of Spanish law and it is almost entirely drawn from the Roman laws.
The laws of Stile (Leyes de Estilo), so-called because they treat principally of the form of procedure in the tribunals, was published in the year 1310. They number in all 252.
The Ordonnance de Alcala, published in 1348, is a collection of various laws and ordonnances which appeared at various periods after the publication of the Partidas.
The laws of Toro, which take their name from the Cortes held in the town of Toro where they were published in 1501, are 83 in number, and are nearly all inserted in the Recopilation de Castille under the corresponding titles.
The ordonnance Royale (ordinamiento Real), published in 1496, is a collection of various pragmatiques, cédules, and other Résolutions Royales made from time to time, succeeding as circumstances required them. The greater part of these laws is inserted in the Récopilation de Cast?lle.
The récopilation de Castille was first published in the year 1567, by virtue of the order of King Philip II, who gave it the force of law and inserted into it the laws of the ordonnance de Alcala, of the Ordonnance Royale which had not been repealed, and of all of those of Toro, as well as those which had been published subsequently. After the year 1567 until 1777 there were several editions of this code, with some brief additions.
The name Récopilation is also given to the Autos Accordados or resolutions or consultations of the Conseil, to which the King of Spain gave the force of law. This collection was published for the first time in 1749 and it forms the third and last volume of the récopilations de Castile édition in 4°.
Finally, the récopilation des Indes was fashioned in the year 1661, and contains a collection of all the regulations or laws relative to the exercise of civil, military or ecclesiastical powers in the Spanish colonies of the two Indies and to the administration and internal government of these countries and of the peoples who inhabit them.
In the Spanish tribunals of the Indies and of the colonies of this nation, the laws of the récopilation des Indies should first of all control everything that they provide for; in default of these laws, the laws of the Récopilation de Castille should rule, and finally the Partidas. But in regard to the laws of Fuero Real and of Stile, it is necessary to establish their usage before they can control, unless they have been included in the Récopilation.
In regard to the dispositions of the Roman law, they cannot be cited as laws in Spain, but only as written-reason. See Murillo, Cursus iuris canonici, n° 23, vol. 1, p. 9.
N.B. Translation into English by Mitchell Franklin, An Important Document in the History of American Roman and Civil Law: The De La Vergne Manuscript, originally published in 33 Tul. L. Rev. 39-42 (1958). Reprinted with the permission of the Tulane Law Review Association, which holds the copyright.
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