they contain a provision which I have not seen in any other code-that if death is caused by any medicines or herbs, given for the laudable purpose of procuring an heir to the childless, it is a punishable offence. The title of Defamation (Deshonras) (a) contains some things well worthy of attention in the disquisition we are now making. It divides defamation into two kinds, by word or by deed. Both are made punishable: and the definition includes every thing that is falsely said or done to dishonour another. Defamation by deed includes writing, printing, gestures, and all other acts done with the same intent, including such as would come within the English definition of assault and battery. One of these laws, although perhaps somewhat too strict for the freedom of modern manners, might, in our days, find some careful guardian, jealous husband, or prudent father to put it in force, if it should be deemed one of those that have lost its use, not its authority; and I transcribe it that the gay gallants who are subject to its penalties, may know the peril of their ways: "Women," says the preamble, "whether widows, wives or maids, who live virtuously in their houses with an honest fame, are frequently injured, grieved and dishonoured by men who take divers means of doing so. Some there are who are continually whispering to them, visiting frequently at their houses, and following them in the streets to the church or other places to which they go; others who dare not pay those public attentions, secretly send jewels to them and to the persons with whom they live, for the purposes of seduction; and others again, strive to corrupt them by the instrumentality of infamous agents, or by other unlawful arts. By these means the weak are led astray, and the virtuous are suspected of evil communication with those who pay them such attentions. Wherefore, we hold that those who conduct themselves in this manner do great wrong and dishonour, not only to the women, but to their parents, their husbands and other relations; and we command that whoever in any such manner offend, shall be fined for the benefit of the woman who is dishonoured: and moreover, the judge shall admonish him who thus follows and dishonours a woman, that he do so no more, and that he desist from such folly, under the penalty of more serious penalty if he do not desist." Among the other evils which are considered as reflecting dishonour on whom they were practised, are the school-boy tricks of shutting another out of his chamber and sealing the door, smoking out the neighbour in the story above you, or throwing water on him who is below. Contemptuously throwing down a book in the presence of the author, is a dishonour under the law, as well as accusing one of theft; but from this last the astrologer, who is consulted to find out stolen goods, is exempted, if he be a true astrologer, but not if he is a pretender to that noble art. It is difficult, in reviewing some of these laws, to preserve the gravity required by the general subject; but it was deemed necessary to show in what manner trivial as well as more serious acts were confounded in the laws, to which we may, by no forced construction, be still liable. Some of those which remain are of a graver nature. Injuries against the peace are provided for in a separate title (de las (a) 7 Part. tit. 9. Fuerças)(a). Most of them are embraced by our statutes. Some, however, are not; and of these last only it is necessary to speak. One of these is the forcible entry into the possession of real or personal property; for which the penalty is the loss of the property, if the party had any in the thing or land forcibly taken, and its value, if he had The same law applies to the tenant who holds over by force; and the borrower who, without paying the debt, shall forcibly resume his pledge. none. In the title of Theft there is one remarkable provision; by which common gamblers are exempted(b) from punishment for theft, or any other crime, except murder, which they may commit in a house, the master of which receives them, knowing their character. Another makes it a punishable offence to remove a land-mark. The sixteenth title, of Fraud, specifies a number of acts of this nature, all of which are punishable by our statute; and require no other remark, than that our modern professors cannot claim the merit of originality, several of their most approved stratagems appearing by these laws to have been practised as early at least as the thirteenth century. Her Offences against morals have not attracted the attention of our legislature. We have but one statute on the subject. In the Spanish law there are many. Adultery is made a crime. The faithless wife is punished with stripes and confinement(c) for life in a convent. seducer with death. The husband may forbid the person he suspects of a design on his domestic peace to visit or speak to his wife; and any interview after this admonition, is conclusive proof of guilt(d). The guardian of a female orphan who marries his ward, or gives her to his son, is guilty of this offence(e). One of our statutes makes incest a crime, punishable by imprisonment for life; but as it gives no definition of the offence, a reference to the Spanish law may be found necessary. This defines the crime to be an illicit connexion between relatives unto the fourth degree of the canonical law, by consanguinity or affinity, expressly including the sistersin-law and brothers-in-law; and, by a subsequent disposition(ƒ) a connexion between persons who were sponsors for the same child (compadres y commadres) incurred the same penalty. The punishment was the same as that of adultery, if the offence were committed without marriage; but, if after marriage, banishment for a nobleman, with the addition of stripes for other offenders. Seduction of a woman(g) of good fame, incurs forfeiture of property and stripes. The husband who sells his own honour and the virtue of his wife, the agent (h) in the seduction of a woman of virtue, and those who educate children for the purpose of public prostitution, are punishable with death. As the legislation of which I am giving a partial review was made in the thirteenth century, it is not surprising to find that astrology, witchcraft and incantations, love-powders and wax images, make a figure in it. Divination is a capital offence, except by astronomy, which is not only permitted, but praised as one of the seven liberal arts, "because the conjectures and presages that are made by this art are drawn from the natural course of the planets and stars, and are taken from the books of Ptolemy and other sages who treat of this science." None, however, but adepts are to meddle with this; all false pretenders to it, witches, sorcerers, fortune-tellers of every description, enchanters who raise the spirits of the dead, were capitally punished; but with the proviso, that if the object of the exorcism or of the black art be to cast out a devil, to preserve the crop from hail, or from lightning, or from insects, or for any other good object, the case is altered, and instead of punishment the operator is entitled to reward. The subject of the few other laws of which I shall speak which were in force here on the change of government, is Religion. There is a general impression, so firmly established as almost to amount to conviction, not only that all former laws on this subject are repealed, but that no law can constitutionally be passed subjecting any one to penalties for his religious belief, or giving any preference to one religion over another. It is to be lamented that this persuasion is unfounded. For however we might rely on the enlightened spirit of the age to prevent the passage of such laws, yet the interest in question is one so essential to the happiness and peace of the people, that it is not only unfortunate but extraordinary, that the liberty of conscience should have been overlooked when the other great interests were secured by the constitutional compact. This omission is the more surprising, because all the several laws and compacts regulating our political state, prior to our constitution, have contained stipulations on this head. The treaty of Paris declares, that until the inhabitants of the ceded territory shall be admitted into the union, they shall be maintained in the free enjoyment of the religion they profess. The law establishing the first grade of government, and the ordinance which gave the second, both contain restrictions on the legislative power intended to secure religious liberty. But our constitution, careful of every other right, descending to minutia which would seem to trench on ordinary legislative power in other cases, is silent in this. That of the United States does not supply the deficit; it only limits the powers of congress on that subject, but imposes no restraint on those of the states. In the examination of this subject, which I have made with solicitude, there are two arguments: one that might be used to show that the old laws were repealed; the other that there exists a restriction on the powers of the legislature. I state them with pleasure, and hope most sincerely that they may always be deemed conclusive with others, although I regret to say they are not so with me. First, as to the repeal. The act of 1804, giving us the first grade of government, contains the following provision: "The governor and council shall have power to alter, modify or repeal the laws which may be in force at the commencement of this act. Their legislative powers shall also extend to all the rightful subjects of legislation; but no law shall be valid which is inconsistent with the constitution or (a) Lib. 8, tit. 3, 1. 5. Recop. de Castello. 7 Part. tit. 23, 1. 1, 2 and 3. laws of the United States, or which shall lay any person under restraint, burthen, or disability on account of his religious opinions, professions or worship; in all of which he shall be free to maintain his own, and not burthened for those of another." I fear that the restriction against laws upon the subject of religion, by the true construction of this clause, operates prospectively only on the laws that might thereafter be passed by the legislative council; if so, it causes no repeal; for the eleventh section provides for the continuance of the laws in force in the territory, except those that are inconsistent with it. Now if the restriction is prospective only, the former laws are not inconsistent with it. Should this, however, be a repeal, it is an implied one, and nothing of such importance ought to be left to implication. The restriction on the powers of the legislature to pass such laws stands on very debateable ground. It is not contained in the construction. But in the ordinance giving us the second grade of government, there are certain articles which are declared to be a compact between the original states and the people and states in the said territory, and which are for ever to remain unalterable, unless by common consent. The first of those provides, that no person, demeaning himself in a peaceable and orderly manner(a), shall be molested on account of his mode of worship or religious sentiments, in the said territory. By the act authorizing the inhabitants to form a state government, it is provided, among other things, that the constitution to be formed shall contain the fundamental principles of civil and religious liberty; and the law admitting the state into the union, contains the proviso, that all the conditions contained in the third section of the last recited act, shall be considered as fundamental conditions and terms, on which the state is admitted into the union. Whether a law passed in contravention of the article of the ordinance or of the proviso in the two laws regulating our admission into the union, would on that account be declared void, when the constitution contains no restriction of power on this subject, is a question requiring an argument that does not come within the scope, and could not be brought within the compass of this report. It is stated to show, that even on this vital subject, the laws respecting religion, there were grounds for the doubts expressed, as one of the motives for directing the work which I have now the honour to present. The laws on this subject are extremely oppressive and highly penal. Heresy, Judaism and blasphemy, were their principal objects. The religion of the Jews was tolerated; but an attempt to make proselytes, leaving their houses on holy Friday, buying a Christian slave, and being guilty of the absurd charge of crucifying young children" at their festivals, were punishable with death; as was the connexion of a Jew with a Christian woman; for, says the lawgiver(b), “if Christians merit death who commit adultery with married women, much more do Jews deserve that punishment for connecting themselves (a) In bad times this phraseology might give rise to oppression: "he is not to be molested in his religion, if he behave in an orderly manner." Do not his religious rights then depend on the order of his behaviour? What would an inquisitor or an inquisitorial judge call orderly? (b) 7 Part. tit. 24, 1. 9. Recop. de Cast. § 2, 3 and 4. with Christian women, who are all spiritually the wives of our Lord Jesus Christ, on account of the baptism they have received in his name." In one instance the Jews had a protection allowed them which the English laws do not give: they could not be arrested on the day of their Sabbath. Heresy is defined to be a departure from the Catholic faith as established by the church of Rome, or disbelief in a future state(a). The punishment is death at the stake. Blasphemy is any thing that is said or done in contempt of God, the Virgin Mary or the saints. The punishment for which, if by words, is forfeiture, according to the rank of the offender and the repetition of the offence; if by deed, with the loss of the hands. Some of these laws may have been repealed by later Spanish laws; others, doubtless, were added prior to the time that Louisiana was ceded, which have not been brought within our reach. Therefore, the enumeration may not be perfectly correct. This will be of less importance if the object of the detail is kept in view. This was to give a general view of such penal laws only as might not be supposed to be repealed by our constitution or laws; and it must also be remembered that the provisions, exceptions and other details contained in those laws, which would have been indispensable if they had been quoted as rules of action, were not thought so when their existence and general operation only was the subject of inquiry; yet I have been guilty of no voluntary omission, and have followed the text always in preference to the commentary of the law. Most willingly would I here close this catalogue; but the present state of our jurisprudence renders it a duty with which I reluctantly comply, to add to the list a word at which humanity shudders, and to ask, whether we are as sure as we'ought to be that torture forms no part of our criminal law? It found, with all its horrors, a prominent place among the laws of Spain; and to determine in what degree they are modified or repealed, the hateful task must be performed of adverting to their provisions. This diabolical power was vested in the judge, with no other limitation as to the degree in which it was to be inflicted, than that it should not extend to loss of life and limb. Within these limits he was not only empowered but instructed so to direct the operation as to create the most excruciating physical and moral anguish. These monsters studied the human frame, to discover in what part it would feel the acutest pain; they marked the working of the mind, to know where the deepest wounds of the spirit could be inflicted: and they insert the result of their cold-blooded calculation in their laws with minutiæ that sickens the heart. Among several delinquents, the judge is directed to select for this operation of cruelty and horror, the youngest, the most delicately framed (b), the most tenderly educated, and-is this an earthly or a hellish code that I am reviewing?-when there is a father and a son, to rack the limbs of the child in the presence of the parent-because," says the worthy commentator on this text, "a father(c) can better bear his own torments than those of his child;" and in the same (a) Part. tit. 26, 1. 1 and 2. Rec. § 3, 1. (b) Ib. tit. 30, 1. 5. Gom. Var. Res. c. 13. |