Colonial Arkansas, 1686-1804 by Morris S. Arnold

Author:Morris S. Arnold [Arnold, Morris S.]
Language: eng
Format: epub
Tags: History, United States, Colonial Period (1600-1775), General, State & Local, South (AL; AR; FL; GA; KY; LA; MS; NC; SC; TN; VA; WV)
ISBN: 9781557283177
Google: YYM4DwAAQBAJ
Publisher: University of Arkansas Press
Published: 1993-12-01T03:12:49+00:00

By a secret covenant of November 3, 1762, France ceded the western part of Louisiana to Spain, but plans for transferring possession of the colony were held in abeyance for a considerable time. It was not until about two years had elapsed that word of the agreement even reached Louisiana. Two more years passed before Antonio de Ulloa, the first Spanish governor, arrived on March 5, 1766.

Not surprisingly, the treaty by which France transferred the sovereignty over Louisiana to Spain made no mention of what legal system was to be in effect under the new regime. The royal letter of April 21, 1764, by which Louis XV notified the Louisiana governor of the cession, did, however, express the hope that the king of Spain would order “the judges ordinary and the Superior Council [to] continue to render justice according to the laws, forms, and usages of the colony.”74 In fact, it seems to have been the original Spanish plan not to replace French law with Spanish, at least not immediately,75 but in the event that was done.

Ulloa ran into considerable difficulty when he attempted to establish his authority in the province and was expelled from it late in 1768.76 It was nine months before Gen. Alexandro O’Reilly resumed Spanish control. When he did, he did so swiftly, firmly, and (some say) cruelly. Within two months of his arrival he had held treason trials resulting in the execution of five of the principal participants in the bloodless revolution against Ulloa. Significantly, the judgment in the case recited that the Spanish court had proceeded “segun nuestras leyes” (“according to our laws”).77 It was a portent of things to come.

On November 25, 1769, O’Reilly abolished the Superior Council and issued two documents known today as O’Reilly’s Laws. One of these documents consisted of ordinances creating the Ayuntamiento or Secular Cabildo of New Orleans as a replacement for the Superior Council; these ordinances also regulated the Cabildo’s judicial functions.78 The other document was a set of Instructions containing rules of civil and criminal procedure, the substantive law of crimes, and provisions for testate and intestate succession.79 These two instruments left no doubt as to the sources employed to produce them, for annotations to two Spanish digests, the Recopilación de las Indias and the Nueva Recopilación de Castilla, were provided by the draftsmen. The first of these works is a digest of Spanish ultramarine law before 1680 that deals mainly with public-law matters; the second is a digest of Castilian law and concerns itself with private law.80 Professional lawyers were at work: The preamble to these Instructions stated that they were digested and arranged “by the Doctor Don Manuel Joseph de Urrustia and the counsellor Don Felix Rey.”

Because the Instructions did not cover every substantive legal area, and because their preamble contained a somewhat tentative declaration that they were to serve “until a more extensive information upon those laws [i.e., Spanish law in general] may be acquired,” it used to be a question much mooted whether Spanish law ever completely superseded French law in Louisiana.

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