« PreviousContinue »
individuals to make this proof than to exhibit French and Spanish grants. The titles have been so long in the process of adjustment, that now, when they are about to be surveyed, it is ascertained the lines of conterminous concessions conflict with each other, which must be decided upon principles of law, prescription, and constructive possession, regulated by the Codes then, and since adopted.
So far as these questions depend upon the laws of Spain, the Compiler has introduced in the first place the translation
Judge Johnson of Trinidad, of the Institutes of Aso, and Manuel. This work has been arranged after the model of Sir William Blackstone's Commentaries on the laws of England. These Institutes of the Civil laws of Spain have undergone six editions in the original at Madrid, and are directed by law 7, title 4, book 8, of the Novissima Recopilacion, to be read, and lectures delivered upon them in the Universities of Spain.
To the original Institutes have been added the Commentaries and notes of the learned Doctor of Laws, Don Joaquin Maria Palacios, Professor of the University of Heusca. These commentaries refer to the “ Leyes de Recopilacion” of 1775, “ Febrero Adicionado,” published in 1818, and to the “ Novissima Recopilacion de las leyes de España.” The laws of the Recopilacion are referred to in the text as quoted, and in brackets  those of the Novissima. It is declared in this new collection of the laws of Spain, and the Indies, that such laws of the old Recopilacion as are not inserted in the new, are not to be considered in force, and for that object the laws of the Recopilacion recited in the text, and not inserted in the table of the Novissima Recopilacion, are noticed in a note, so that a reference, and
medium are given of ascertaining what laws are now in force.
The Compiler does not deem it necessary to do more than to acknowledge his obligation to the learned Judge in Trinidad for incorporating his admirable translation in this collection. A small edition was printed in London, and is not now to be found in that metropolis, and few copies have been received in the United States. This portion of the work will be interesting to every scholar and Statesman, as well as to all students of the Civil law in the United States.
It will be of inestimable value to American merchants, and others having commercial connections, or other intercourse with South America, Mexico, and the Island of Cuba. There is a large capital invested by American industry and enterprise, in the commerce of the Pacific, Central America, and the Gulf of Mexico, and a considerable number of English and Americans are engaged in planting in the Island of Cuba. To all of these this collection must be of great value.
There is perhaps no country in the world where enlightened commentaries on the various Codes were more needed than in Spain. After the Saracen invasion from the 9th to the 14th centuries, there were no regular systems of government and jurisprudence. The Roman Civil Law which was the basis of all the modern Codes of Continental Europe was not much regarded, until the famous Compilation of Alfonso the Tenth was digested and arranged, founded principally upon its maxims. The Visigoths prohibited, under certain penalties, the use of the Roman laws as will be seen by the Fucro Juzgo, repeated in the Fuero
Real. The ancient Fueros, and the Las Siete Partidas, as well as such principles of the Roman Code as had been incorporated in the latter, were in a great measure, repeated by the Neuva Recopilacion.
There is an evident desire in some of the Spanish authors to leave the impression that their Codes have no connection with the Roman, and there are instances in which writers treat of the abuse of referring to foreign authors, or of quoting the civil, canon, or Roman laws.-Others treat the Roman as the common law of the Spanish monarchy.
At one time such was the confusion in the Codes of Castile, and the difficulties in their administration, that they were entirely abandoned, and the Roman law resorted to as the rule of decision.
In the midst of the confusion of the ancient kingdoms of Spain, and of its more modern Recopilacions, the work of Aso and Manuel, with the notes of Palacios, are indispensable in the establishment of the maxims and principles of Spanish law, and to the proper understanding of the old law, the mischief and the remedy, in this conflicting jurisprudence.
These Institutes are divided into three Books relating to persons, things, and actions. Under these comprehensive heads, the “ Ordinances Reales” of Montalvo, the laws of Toro, and the more modern Codes, constituting the present laws of Spain, are treated of. These general principles bearing upon all the relations of Civil intercourse are the sources of authority, and individual right in the provinces.They constitute the present law of Texas, in regard to sales, descents, inheritance, executorship, curatorship, proofs, marriage rights, and indeed, all the multiplied ramifications of
society. By the principles of International law, neither cession by treaty, nor revolution by force, affect the laws of meum and tuum. Political and military revolutions change jurisdiction and sovereignty, whilst the relations of individuals to each other remain the same.
The laws of Spain, therefore, modified by the laws of Mexico and Texas, so far as the Convention and Congress of the latter have acted by positive constitutional, or legislative enactments, are the present laws of that young and rapidly increasing Republic. Whatever changes in its political organisation or Civil Code, the wisdom of its rulers may prescribe, it is evident that their provisions must govern only the lex fori, as to all past transactions, whilst the lex loci contractus must govern the adjudications.
The Compiler admits, that he would not probably have been stimulated to the publication of a new compilation, but for the imperious necessity existing in that country for such a work. Taking a lively interest in the destinies of a young Republic, which seemed to promise so great an extension of human happiness, by the establishment of an empire upon the fairest portion of the North American continent, he deemed it an indispensable obligation to contribute his humble efforts to free it, in its infancy, from those evils and errors which a total ignorance of the laws, and the language in which they were written, would inevitably have entailed. No one is more sensible than himself, of the disadvantages, and prejudicial influences, in any country, of the uncertain and defective assurance of titles to property.
Of all the events of modern times, the revolution of Texas and its rapid progress to national greatness is perhaps the most extraordinary. It was anciently a part of
the province of Louisiana when the celebrated John Law, Controller General of France, projected the magnificent scheme of creating for that country, an empire in America from the Gulf of St. Lawrence to the Rio del Norte, and from the Mississippi to the Pacific, under the viceroyalties of New France, and Louisiana. It was afterwards without any distinct designation of limits feebly claimed as a part of those territories, upon which the proud monarchs of that once glorious, but now humbled monarchy of Spain, boasted that the sun never sat upon their dominions. It was marked off on the map of the Marquis Barbé Marbois, the Minister of Napoleon, as a part of the Louisiana cession to the United States in 1803, but abandoned in 1819, by fixing the southern limit of the United States at the River Sabine, and became a part of the unwieldy Mexican dominions, when that revolted viceroyalty had worried through an inglorious revolution. The first resistance of Mexico to Spain manifested itself when the mother country was desolated by Napoleon's army. In its origin and progress it was marked by that imbecility which has since characterised its mongrel population. The present republic of Texas, from the Sabine to the Rio del Norte, covers a country equal to that of all France, and in its geographical position, as well as climate, resembles, in all respects, upper Italy. It has been established as an independent government, by the valor of the Anglo-Saxon race. With a homogeneous population, and consolidated government, without any of those disturbing elements which occasionally threaten the North American Union, with the adjustment of titles, and assurances of property, which it is hoped this work will in some measure contribute to establish, it is destined to be the most perfect